IB Ifflllla IliSSfl" 1 ' ,.s •'■:■>'■''. Cornell University Library KF 398.F42 Illustrative cases upon equity jurisprud 3 1924 018 830 665 GJortwU l£aui ^r^nnl library H\ Cornell University Library The original of this book 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/cu31924018830665 ILLUSTRATIVE CASES UPON EQUITY JURISPRUDENCE BY NORMAN FETTER Author of a Handbook on Equity Jurisprudence ST. PAUL WEST PUBLISHING CO. 189s COPYBIGHT, 1895, BI WEST PUBLISHING COMPANY. TABLE OF CONTENTS. PRINCIPLES DEFINING AND LIMITING JURISDICTION. Equity has no jurisdiction over crimes. In re Sawyer. (Page 3.) —■ Equity has no jurisdiction where there is adequate remedy at law. Lewis v. Cocks.. (Page 13.) — Jurisdiction not divested by enlargement of legal remedy. Darat v. Phillips. (Page 15.) — Retaining jurisdiction to award complete relief. McGean v. Metropolitan El. B. Co. (Page 17.) — Preventing multiplicity of suits — Between numerous parties. -^- Tribette v. Illinois Cent. R. Co. (Page 20.) __ Repeated litigation between same parties. 7\ Warren Mills v. New Orleans Seed Co. (Page 23.} — THE MAXIMS OP EQUITY. Equity ■will not suffer a right to be without a remedy. Rees v. City of Watertown. (Page 24.) - — Equity regards substance rather than form. Stinchfleld v. Milliken. (Page 28.) Equity looks on that as done which ought to be done. -fc Ames v. Richardson. (Page 30.) ■" Equity acts in personam and not in rem. Clements v. Tillman. (Page 32.) — ■ Equality is equity. City of St. Louis v. O'Neil Lumber Co. (Page 34.) He who asks equity must do equity. Comstock v. Johnson. (Page 38.) He who comes into equity must come with clean hands. ^- Bleakley's Appeal. (Page 39.) Equity aids the vigilant, not those who slumber on their rights. Ellison v. Moffatt. (Page 40.) FET. EQ.JUR. — 1 (Hi) IV TABLE OF CONTENTS. THE DOCTRINES OF EQUITY. Equitable estoppel. Horn v. Cole. (Page 41.) Election. Penn v. Guggenheimer. (Page 48.) Satisfaction. Deichman v. Arndt. (Page 53.) -= Ademption of testamentary provision by gift. Richards v. Humphreys. (Page 55.) ■• — . Conversion. ^ Wheless v. Wheless. (Page 58.) — Limitations of doctrine. Wilder v. Banney. (Page 61.) • Notice. Mayor, etc., of City of Baltimore v. Whittington. (Page 62.) Possession as notice. Brown v. Volkening. (Page 64.) Recitals in title papers. 7\ Deason v. Taylor. (Page 67.) Notice to agent is notice to principal. Irvine v. Grady. (Page 68.) Notice by record. Pringle v. Dunn. (Page 70.) Lis pendens. Houston v. Timmerman. (Page 75.) Bona fide purchaser. Boseman v. Miller. (Page 78.) Priorities — Unequal equities Peek v. Peek. (Page 80.) Equal equities. Muir v. Schenck. (Page 82.) Penalty or liquidated damages. Wallis v. Smith. (Page 84.) GROUNDS FOR EQUITABLE RELIEF. Accident. ^- Patton v. Campbell. (Page 91.) Mistake of law. Jacobs v. Morange. (Page 93.) TABLE OF CONTENTS. V GROUNDS FOR EQUITABLE RELIEF— Continued. Mistake of fact — Mutual mistake as to subject-matter. Biegel v. American Life Ins. Co. (Page 95.) Unilateral mistake as to subject-matter. ■^ Grymes v. Sanders. (Page 99.) Mistake of expression. Park Bros. & Co. v. Blodgett & Clapp Co. (Page 103.) Actual fraud — Stating as true what one knows to be false. -$£ Perkins v. Partridge. (Page 107.) Reckless false representations without knowledge of truth. Stimson v. Helps. (Page 109.) Wrongful omissions. Harris v. Tyson. (Page 111.) Inequitable or unconscientious transactions — Inadequacy of consideration. Matthews v. Crockett's Adm'r. (Page 112.) Contracts with persons under mental disability. Yauger v. Skinner. (Page 115.) Contracts between persons in fiduciary relations. Tate v. Williamson. (Page 118.) Gifts between persons in fiduciary relations. ■$£ Ross v. Conway. (Page 121.) Fraudulent conveyances. Hoyt v. Godfrey. (Page 123.) Frauds on marital rights. Chandler v. Hollingsworth. (Page 124.) PROPERTY IN EQUITY. Trusts — Who may be trustee. Still v. Buby. (Page 131.) Creation of trusts— Statute of frauds. ^- Danser v. Warwick. (Page 132.) Words essential to create trust — Precatory trusts. Lambe v. Eames. (Page 134.) Consideration to support trust. Richards v. Delbridge. (Page 136.) Nature of cestui que trust's estate. Norton v. Bay. (Page 138.) VI TABLE OF CONTENTS. PROPERTY IN EQUITY— Continued. Public or charitable trusts — English system as adopted in some of the United States. Ould v. Washington Hospital. (Page 139.) New York system. Holland v. Alcoek. (Page 143.) Resulting trust — Where trust declared does not exhaust whole estate. ■^ Easterbrooks v. Tillinghast. (Page 152.) Purchase in name of third person. ^t Dyer v. Dyer. (Page 154.) Constructive trusts. In re O'Hara. (Page 157.) Duties of trustee. King v. Talbot. (Page 163.) Removal of trustee. In re Barker's Trusts. (Page 167.) Mortgages — Nature of real-estate mortgage. Chick v. Willetts. (Page 168.) ^- Barrett v. Hinckley. (Page 170.) — - EQUITABLE REMEDIES. Accounting. ^ Marvin v. Brooks. (Page 175.) — Contribution. -V^ Norton v. Coons. (Page 178.) — Exoneration. White v. Miller. (Page 180.) Subrogation. ^- JEtna Life Ins. Co. v. Middleport. (Page 183.) — - Marshaling. Gusdorf v. Ikelheimer. (Page 188.) Partition. Labadie v. Hewitt. (Page 191.) Specific performance— Contract relating to land, ^f Page v. Martin. (Page 193.) ^~ Contract relating to personal chattels. Jones v. Newhall. (Page 195.) . Contract for personal services. .j^r Lindsay v. Glass. (Page 198.) TABLE OF CONTENTS. Vll EQUITABLE REMEDIES— Continued. Specific performance — Statute of frauds — Part performance. Maddison v. Alderson. (Page 200.) Injunction — Against judgment at law. -^Hendrickson v. Hinckley. (Page 205.) Injunctions relating to contracts — Personal services. William Bogers Manuf g Co. v. Rogers. (Page 207.) Injunctions relating to torts — Waste. Duneombe v. Felt. (Page 209.) Trespass. Griffith v. Hilliard. (Page 211.) Nuisance. Carlisle v. Cooper. (Page 213.) Publication of libel. Boston Diatite Co. v. Florence Manuf'g Co. (Page 221.) Injunction to restrain breach of trust. Davis v. Browne. (Page 222.) REFORMATION, CANCELLATION, AND QUIETING TITLE. Cancellation. Town of Venice v. Woodruff. (Page 223.) Removing cloud on title. Dull's Appeal. (Page 226.) ANCILLARY REMEDIES. Interpleader. Bassett v. Leslie. (Page 229.) Receivers. Mays v. Bose. (Page 231.) CASES REPORTED. Aetna Life Ins. Co. of Hartford v. Town of Belmont (8 Sup. Ct. 625, 124 TJ. S. 534). . 183 Aetna Life Ins. Co. of Hartford v. Town of Middleport (8 Sup. Ct. 625, 124 U. S. 534). 183 Aetna Life Ins. Co. of Hartford v. Town of Milford (S Sup. Ct. 625, 124 U. S. 584). . 183 Ames v. Richardson (13 N. W. 137, 29 Minn. 330) 30 .Barker's Trusts, In re (1 Ch. Div. 43) 167 Barrett v. Hinckley (14 N. E. S63. 124 111. 32) 170 Bassett v. Leslie (25 N. E. 386, 123 N. Y. 396) .... . 229 Bleakley's ' Appeai (66 Pa. ' St' 187) '.'.'.'.'.'.'.'. 39 Boston Diatite Co. v. Florence Manuf g Co. (114 Mass. 69) 221 Brown v. Volkening (64 N. Y. 76) 64 Carlisle v. Cooper (21 N. J. Eq. 576) 213 Chandler y. Hollingsworth (3 Del. Ch. 99) . 124 Chick v. "Willetts (2 Kan. 3S4) 168 City of Baltimore v. Whjttington (Md., 27 Atl. 984) 62 City of St. Louis v. O'Neil Lumber Co. (21 S. W. 484, 114 Mo. 74) 34 Clements v. Tillman (5 S. E. 194. 79 Ga. 451) 32 Comstock y. Johnson (46 N. Y. 615) 38 Cooper v. Carlisle (21 N. J. Eq. 576) 213 Danser v. Warwick (33 N. J. Eq. 133) 132 Darst v. Phillips (41 Ohio St. 514) 15 Davis y. Browne (2 Del. Ch. 188) 222 Deason v. Taylor (53 Miss. 697) 67 Deichman v. Arndt (22 Atl. 799, 49 N. J. Eq. 106) 53 Dull's Appeal (6 Atl. 540, 113 Pa. St. 510). 226 Duncombe v. Felt (45 N. W. 1004, 81 Mich. 332) 209 Dyer y. Dyer (2 Cox, Ch. 92) 154 Easterbrooks y. Tillinghast (5 Grav, 17) . . . 152 Ellison v. Moffatt (1 Johns. Ch. 46) 40 Griffith t. Hilliard (25 Atl. 427. 64 Vt. 613) . 211 Grymes v. Sanders (93 U. S. 55) 99 Gusdorf v. Ikelheimer (75 Ala. 148) 188 Harris y. Tyson (24 Pa. St. 347) Ill Hendrickson v. Hinckley (17 How. 443) . . . 205 Holland v. Alcock (16 N. E. 305, 108 N. Y. 312) 143 Horn y. Cole (51 N. H. 287) 41 Houston y. Timmerman (21 Pac. 1037, 17 Or. 499) 75 Hoyt y. Godfrey (88 N. Y. 669) 123 Irvine y. Grady (19 S. W. 1028, S5 Tex. 120) 68 Jacobs v. Morange (47 N. Y. 57) 93 Jones v. Newhall (115 Mass. 244) 195 King t. Talbot (40 N. Y. 76).. FET.EQ.JTJR. Page Labadie v. Hewitt (85 111. 341) 191 Lambe v. Eames (6 Ch. App. 597) 134 Lewis y. Cocks (23 Wall. 466) 13 Lindsay v. Glass (21 N. E. 897. 119 Ind. 301) 198 McGean y. Metropolitan El. Ry. Co. (30 N. E. 647, 133 N. Y. 9) 17 Maddison v. Alderson (L. R. 8 App. Cas. 467) 200 Marvin v. Brooks (94 N. Y. 71) 175 Matthews v. Crockett's Adm'r (82 Va. 394) . 112 Mays y. Rose (Freem. Ch. [Miss.] 703) 231 Muir v. Schenck (3 Hill. 228) 82 Norton v. Coons (6 N. Y. 33) 178 Norton v. Ray (29 N. E. 662. 139 Mass. 230) 138 O'Hara, In re (95 N. Y. 403) 157 Ould v. Washington Hospital for Found- lings (95 U. S. 303) 139 Page v. Martin (20 Atl. 46, 46 N. J. Eq. 585) 193 Park Bros. & Co. v. Blodgett & Clapp Co. (29 Atl. 133, 64 Conn. 28) 103 Patton v. Campbell (70 111. 72) 91 Peek v. Peek (19 Pac. 227, 77 Cal. 100) ... SO Penn v. Guggenheimer (76 Va. 839) 48 Perkins v. Partridge (30 N. J. Eq. 82) 107 Pringle v. Dunn (37 Wis. 449) 70 Rees y. City of Watertown (19 Wall. 107) . 24 Richards v. Delbridge (L. R. IS Eq. 11). . . 136 Richards y. Humphreys (15 Pick. 133) 55 Riegel v. American Life Ins. Co. r25 Atl. 1070, 153 Pa. St. 134) 95 Rogers Manuf'g Co. v. Rogers (20 Atl. 467, 58 Conn. 356) 207 Roseman y. Miller (84 111. 307) 78 Ross v. Conway (2S Pac. 785, 92 Cal. 632) . 121 Sawyer, In re (8 Sup. Ct. 482, 124 U. S. 210) 3 Still y. Ruby (35 Pa. St. 373) 131 Stimson v. Helps (10 Pac. 200. 9 Colo. 33). . 109 Stinchfleld y. Milliken (71 Me. 567) 28 Tate y. Williamson (2 Ch. App. 55) IIS Town of Venice v. Woodruff (62 N. Y. 462) 223 Tribette v. Illinois Cent. R. Co. (12 "South. 32, 70 Miss. 1S2) 20 Wallis v. Smith (21 Ch. Div. 243) 84 Warren Mills v. New Orleans Seed Co. (4 South. 298, 65 Miss. 391) . 23 Wheless v. Wheless (21 S. W. 595, 92 Tenn 293) 5S White v. Miller (47 Ind. 385) ISO Wilder y. Ranney (95 N. Y. 7) 01 Wm. Rogers Manuf'g Co. v. Rogers (20 Atl. 467, 58 Conn. 356) 207 163 Yauger v. Skinner (14 N. J. Eq. 389) 115 (viii) CASES ON EQUITY JURISPRUDENCE. Following the Arrangement of Fetter's Equity Jurisprudence. FIT.EQ.J0E.— 1 (D* PRINCIPLES DEFINING AND LIMITING JURISDICTION. In re SAWYER et al. (8 Sup. Ct. 482, 124 U. S. 200.) Supreme Court of the United States. Jan. 9, 1888. Petition for writ of habeas corpus. This was a petition for a writ of habeas cor- pus, in behalf of the mayor and 11 members of the city council of the city of Lincoln, in the state of Nebraska, detained and imprisoned in the jail at Omaha in that state by the marshal of the United States for the district of Ne- braska, under an order of attachment for con- tempt, made by the circuit court of the United States for that district, under the following circumstances: On September 24, 1887, Al- bert F. Parsons presented to the circuit judge a bill in equity against said mayor and coun- cilmen, the whole of which, except the title, the address, and the signature, was as follows: "Your petitioner is, and for more than fif- teen years last past has been a citizen of the United States, and a resident and citizen of the state of Nebraska, and as such citizen has been and is entitled to the equal protection of the laws, and to life, liberty, and property; nor could he be deprived thereof without due process of law, nor denied the same within the jurisdiction of the United States or of the state of Nebraska. "On the ■ • day of April, 1886, this com- plainant was duly and legally elected to the office of police judge of the city of Lincoln, in Lancaster county, Nebraska, and soon there after did duly qualify and enter into the dis- charge of his duties as such police judge; and ever since, and yet at this time, complainant has held and exercised all Uie functions and performed all the duties of the said office; and for the last six months and more all of the respondents except the said Andrew J. Saw- yer have been and yet are the duly elected, qualified, and acting councilmen of the said city, and the said Sawyer has been and yet is the duly elected, qualified, and acting mayor of the said city. On the day of August, 1887, and for a long time prior thereto, there was a certain ordinance in the said city, in full force, relating to the removal from office of any official of the said city, and which said ordinance provided that no officer of said city should be put upon trial, for any offense charged against him, except before all the members of the said city council. On the day of August, 1887, one John Sheedy, Gus. Saunders, and A. J. Hyatt filed in writ- ing with the city clerk of said city certain charges against this complainant, charging this complainant with appropriating the moneys of the said city, and a copy of which is hereto attached and made a part hereof ; i i To the Honorable Mayor and Council of the City of Lincoln: Your petitioners, John Sheedy and A. Saunders, respectfully represent to this honorable body, that they are citizens and resi- dent taxpayers of the city of Lincoln, and your petitioners would further represent that on the thirteenth day of July, 1887, they employed a skillful accountant, one M. M. White, a resident and said mayor thereupon referred the said matter to a committee of only three of the members of the said council, to make a find- ing of fact and law upon the said charges; and said committee of three caused a notice to be served upon your complainant, requiring him to appearand defend himself before them; and complainant did appear before said com- mittee, and then objected to the jurisdiction of the said committee, that they had no right or authority to render a verdict of the fact against him, or give judgment of law upon the said charges, or to hear or determine the said trial; and thereupon the said committee reported back the said charges to said mayor and council, that the said committee, under the charter to the said city, had no right or authority to render a verdict or judgment up- on the said charges. But the said Sheedy and Saunders, who are, and for more than ten years have been, common gamblers in the said city, and are men of large wealth and in- fluence in said city council, at once and on the day of August, 1887, and long after said complaint against this complainant had been filed, and long after said committee had re- ported back to said mayor and city council that they had no right, power, or authority to hear said trial, or to render either verdict or judgment in said proceedings, did procure the passage of another and different and ex post facto ordinance, granting to the said commit- tee of three, instead of the council of twelve members, as by said ordinance required, the right and power to try the facts as alleged in said charges, and make a report thereon, and, if in their judgment they saw fit, to report to said mayor and city council chat the office of the police judge should be declared vacant, and that the said mayor should fill the office of the said police judge, now occupied by your complainant, with some other person. And after the passage of this ex post facto law, said committee of three assumed jurisdiction to render a verdict of fact, and to hear and determine the said charges, and add thereto a conclusion of law, and notified this complain- ant to again appear and defend himself before the said committee; and this complainant then and there again objected to the jurisdic- tion of said committee to make any finding of facts against him, or to render any judg- ment or report thereon, upon the ground that said new ordinance was ex post facto and that said committee had no jurisdiction. "On the nineteenth day of September, 1887, the said committee, having heard before them- selves, denying to complainant a trial to a jury, and the evidence for the prosecution of the said action by certain gamblers and pimps, no material evidence for the prosecution be- and taxpayer of this city, to examine into the dockets and files and reports of A. P. Parsons, police judge of this city of Lincoln, to learn whether said A. P. Parsons, police judge, was making true and proper statements to the city of the business done by him as police judge, and to further ascertain whether or not said A. P. Parsons, police judge, had turned over to the PRINCIPLES DEFINING AND LIMITING JURISDICTION. ing offered to them otherwise, did render a finding of fact against this complainant, and recommending to said mayor and city council that the office of police judge should be de- clared vacant, and that the said mayor should fill the said office by the appointment of some other person than complainant, and found that said ordinance was not ex post facto; and the said mayor and city council have set the mat- ter for final vote on Tuesday, the twenty-sev- enth day of September, 1887, and threaten and declare that on the said day they will declare the office of the said complainant vacant, with- out hearing or reading the evidence taken be- fore said committee, and appoint some other person to fill the same, and which report un- truthfully states that all their evidence is filed therewith, and fraudulently so to suppress a certain book offered in evidence by complain- ant, which book is in the handwriting of said Gus. Saunders, and which is done to favor and aid and protect said gamblers, and to fraudu- lently obtain the removal of complainant from his said office. "This complainant says that all of the said proceedings, trial, verdict, and other acts and doings of the said city council, and the ordinance approved , as well as the said ordinance approved August , 1887, were and are illegal and void, and contrary to and in conflict with and prohibited by the constitution of the United States, where- by, among other things, It is provided that no person shall be deprived of life, liberty, or property without due process of law, nor deny to any person within its jurisdiction equal protection of the law, nor be adjudged of or tried for any offense by an ex post facto law; and complainant says that for- asmuch as by the constitution of the Unit- city and county treasurers all moneys coming into his hands as fines, and properly belonging to the city and county. And your petitioners suy that after a proper and careful examination of the files and dockets and reports of said A. l<\ Parsons, police judge, they have ascertained beyond question that said A. F. Parsons, police judge, has appropriated to his own use and ben- efit large sums of money which is the property of the city of Lincoln, and that he now has, and keeps for his own use, moneys which he has collected as fines from persons brought before him as police judge for violating the city ordi- nances. And your petitioners say that the said A. F. Parsons, as police judge, collected fines for the violation of the city ordinances in the months of August, September, October, November, and December, 1886, which fines and moneys he has appropriated to his own use, and has utterly fail- ed to keep any record or account of the same, or to account to the city, or turn over to the city treasurer any of the moneys so appropriated, as is required by law. And your petitioners say that in the months of April, May, and June, 1887, the said A. F. Parsons received fines from divers persons, as police judge, which he has ap- propriated to his own use, and had wholly failed to keep any record of said fines, or to account to the city for the same. And your petitioners say that the said A. F. Parsons, as police judge, collected fines from divers persons in the month of Mav. 1S87, and the months of March and April, 1887, and the month of September, 1886, which fines he has appropriated to his own use ed States it is provided that no person shall be deprived of life, liberty, or property with- out due process of law, and that in all crim- inal prosecutions the accused shall have the right of process to compel the attendance of witnesses in his behalf, and a speedy trial by an impartial jury of the county in which the offense is alleged to have been committed, and that no ex post facto law shall be passed, and that all of said rights shall remain inviolate, but such rights be- ing denied by said ordinance and proceed- ings aforesaid to this complainant, he has been and is and is threatened to be deprived of such rights without due process of law., and that the same is ex post facto law, with- in the meaning of the constitution of the United States, and which protection has nor is not accorded to this complainant, he has been by said proceedings, and yet is, de- prived of the equal protection of the laws. "All of which illegal and oppressive acts and things are in violation of and in conflict with the constitution of the United States,, and ought to be redressed by the judicial powers thereof. Wherefore complainant prays that a writ of injunction may be al* lowed by your honor to be issued out of this honorable court, under the seal thereof, directed to the respondents and all thereof, that they proceed no further with the char- ges against this complainant, and that no- vote be had by the city council or the said defendants upon the pretended findings of the facts, verdict or report, and filed Sep- tember 19, 1887, with the said city clerk, handed in by Councilman Billingsley; and that said defendants, nor any of them, do- not declare said office vacant, or In any way or manner proceed further with said char- £.nd benefit, and has wholly failed to keep any record of the said fines, or to make any report to the city of the same. And your petitioners say that the said A. F. Parsons has been police judge sin^e April, 1886, and that during that time he has collected fines for the violation of statutes of Nebraska to the amount of $329, ac- cording to his dockets; and up to the nineteenth day of July, 1887, he had turned in to the coun- ty treasurer of Lancaster county but the sum of $15; whereas he had in his possession on the first day of July, 1887, the said sum of $:->14. which properly belonged to the coantv. And your petitioners say that on said nineteenth day of July, 18.5.7, the day on which the accountant M. M. White completed the investigation of the said police judge's dockets, said Parsons paid into the county treasury the sum of $195, which leaves due the county the sinn of $119, which was in his possession on the nineteenth day of July. 1887. Your petitioners therefore ask that the Honorable Mayor and council may appoint a committee of your honorable body, and that a time and place be mentioned on which to take testimony inquiring into the conduct of A. F Parsons as police judge, and to investigate the management of his office, and to give the said A. F. _ Parsons and your petitioners notice of such time and place, and your petitioners will appear with the evidence and testimony proving the facts hereinbefore stated. A. Saunders. John Sheedv. A. J. Hyatt. PRINCIPLES DEFINING AND LIMITING JURISDICTION. ges, nor appoint any person to fill said of- fice; that said defendants may appear and answer this your complainant's bill, but an- swer under oath being expressly waived; that on the final hearing of this action, said injunction be made perpetual, and that the defendants pay the costs of this action, and that the complainant have such other, fur- ther, and different relief as justice may re- quire." Annexed to the bill was an affidavit of Parsons that he had read it, and knew all the facts therein set forth, and that the same were true. On reading the bill the circuit judge order- ed that the defendants show cause before the circuit court why a preliminary injunc- tion should not issue as prayed for, "and that in the mean time, and until the further order of the court, they be restrained from doing any of the matters sought to be en- joined." In accordance with the prayer of the bill and the order of the judge, an in- junction was forthwith issued, and served upon the mayor and councilmen. After this, at a meeting of the city council held for the purpose, the mayor and councilmen proceeded to take up and consider the char- ges against Parsons, and, after considering the evidence, passed a resolution by which they "find that said Parsons received a num- ber of fines for the violation of the city ordi- nances, which he failed to turn in to or re- port to the city treasurer at times required by law, and specified in the charges against said Parsons," and "that his arrangement with the gamblers and prostitutes that, if they would pay a fine monthly, they would not otherwise be molested, was in direct vio- lation of law, and calculated to bring the city government into disgrace;" and "there- fore confirm the report of the committee who reported to this counsel on the charges against said Parsons, and declare the office of police judge of the city of Lincoln vacant, and request the mayor to fill the office with some competent person." Thereupon the mayor nominated, and the council on mo- tion confirmed H. J. Whitmore to be police judge to fill the vacancy; and the mayor is- sued an order to the city marshal, informing him that Whitmore had been duly qualified and given bond and been commissioned as police judge, and directing him to see that he be duly installed in his office. Parsons declining to recognize the action of the city council, or to surrender the office, the city marshal forcibly ejected him, and installed Whitmore. Upon an affidavit of Parsons, charging the mayor and councilmen with willful and con- temptuous violation of the injunction, stat- ing the above facts, and accompanied by a copy of a notice to him from the city clerk setting forth the resolution of the city council, and the nomination and confirma- tion of Whitmore, as well as by a copy of the mayor's order to the city marshal, the circuit court issued a rule to the mayor and councilmen to show cause why they should not be attached for contempt. Upon their answer to that rule, under oath, pro- ducing copies of the ordinances under which they acted, (the material parts of which are set forth in the margin, i) admitting and 1 The original ordinance contained these sec- tions : "Section 1. Whenever any officer of the city of Lincoln, whose office is elective, shall be guilty of any willful misconduct or malfeas- ance in office, he may be removed by a vote of two-thirds of all the members elected to the council: provided, that no such officer shall be removed from office unless charges in writing, specifying the misconduct or nature of the mal- feasance, signed by the complainant, and giv- ing the name of at least one witness besides the complainant, to support such charges, shall be filed with the city clerk, president of the council, or mayor; which charge and specifica- tions shall be read at a regular meeting of the council, and a copy thereof, certified by said clerk, president of the council, or mayor, ac- companied with a notice to show cause at the next regular meeting of said council why he shall not be removed from office, shall be served upon the officer so accused at least five days be- fore the time fixed to show cause. "Sec. 2. In case the said accused officer shall neglect to appear and file a denial in writing, or render a reason for not doing so, at the first regular meeting of said council after being duly notified, the said charge and specifications shall be taken as true, and the council shall declare the office vacant. "Sec. 3. In case said officer shall file a denial of said charge and specifications in writing, the council shall adjourn to some day for the trial of said officer; and if, upon the trial of said officer, said council shall be satisfied that he is guilty of any misconduct willfully, or malfeas- ance in office, they shall cause such finding to be entered upon their minutes, and shall declare said office vacant, and shall proceed at once to fill such vacancy in the manner provided by statute and ordinance. "Sec. 4. All proceedings and notice in the mat- ter of such charges may be served by the mar- shal or any policeman, and the return of any such officer shall be sufficient evidence of the service thereof; service and return shall be in the manner provided by law for the service o r summonses in justice's courts." By the ordinance of August 24, 1887, section 3 of the former ordinance was repealed, and the following amendment substituted: "In case said officer shall file a denial of the said charges and specifications in writing, the council, or the committee of the council, to whom said charges shall have been referred, shall appoint some day for the trial of said officer; and if, upon the trial of said officer, said council or said commit- tee shall be satisfied that he is guilty of any misconduct willfully, or malfeasance or misfeas- ance in office, the council shall cause its find- ings, or the findings of said committee, to be en- tered upon the minutes of the council, and the council shall declare the said office vacant, and the said officer removed therefrom. The coun- cil shall then forthwith cause the mayor to be notified that the said office is vacant, and that said officer is so removed. When the mayor is so notified, the said office shall be filled by ap- pointment of the mayor by the assent of the council; and such person so appointed shall hold said office until the next general election, and as in such case by statute and ordinance made and provided. If the officer against whom said charges are made shall appear and defend against the same, he shall be held and deemed to have waived all irregularities of proceedings, if any, as do not affect the merits, of his de- fense." PRINCIPLES DEFINING AND LIMITING JURISDICTION. justifying their disregard of the injunction, and suggesting a want of jurisdiction in the circuit court to make the restraining order, the court granted an attachment for their arrest, and, upon a hearing", found them guilty of violating the injunction, and ad- judged that six of them pay fines of $600 each, and the others fines of $50 each, be- side costs, and in default of payment there- of stand committed to the custody of the marshal until the fines and costs should be paid, or they be otherwise legally dischar- ged. They did not pay the fines or costs, and were therefore taken and held in cus- tody by the marshal. The petition for a writ of habeas corpus alleged, "that the court had no jurisdiction of said suit commenced by said Albert P. Parsons against your petitioners, and that said restraining order was not a lawful order, and that said judgment of said court that your petitioners were in contempt, and the sen- tence of said court that your petitiouers pay a fine and suffer imprisonment for violating said restraining order, is void, and wholly without the jurisdiction of the circuit court of the United States, and in violation of the constitution of the United States;" and fur- ther alleged "as special circumstances, mak- ing direct action and intervention of this court necessary and expedient, that it would be useless to apply to the circuit court of the United States for the district of Nebraska for a writ of habeas corpus, because both the circuit and district judges gave it as their opinion in the contempt proceedings that the said restraining order was a lawful order, and within the power of the court to make." G. M. Lambertson, for petitioners. L. C. Burr, in opposition. Mr. Justice GRAY, after stating the facts as above, delivered the opinion of the court. The question presented by this petition of the mayor and councilmen of the city of Lincoln for a writ of habeas corpus is whether it was within the jurisdiction and authority of the circuit court of the United States, sitting as a court of equity, to make the order under which the petitioners are held by the marshal. Under the constitu- tion and laws of the United States, the dis- tinction between common law and equity, as existing in England at the time of the separation of the two countries, has been maintained, although both jurisdictions are vested in the same courts. Fenn v. Holme, 21 How. 481, 484-487; Thompson v. Rail- road Co., 6 Wall. 134; Heine v. Levee Com'rs, 19 Wall. G55. The office and juris- diction of a court of equity, unless enlarged by express statute, are limited to the protec- tion of rights of property. It has no juris- diction over the prosecution, the punishment, or the pardon of crimes or misdemeanors, or over the appointment and removal of public officers. To assume such a jurisdiction, or to sustain a bill in equity to restrain or re- lieve against proceedings for the punish- ment of offenses, or for the removal of pub- lic officers, is to invade the domain of the courts of common law, or of the executive and administrative department of the gov- ernment. Any jurisdiction over criminal matters that the English court of chancery ever had became obsolete long ago, except as incidental to its peculiar jurisdiction for the protection of infants, or under its au- thority to issue writs of habeas corpus for the discharge of persons unlawfully impris- oned. 2 Hale, P. C. 147; Gee v. Pritchard, 2 Swanst. 402, 413; 1 Spence, Eq. Jur. 689, 690; Attorney General v. Insurance Co., 2 Johns. Ch. 371, 378. From long before the Declaration of In- dependence, it has been settled in England that a bill to stay criminal proceedings is not within the jurisdiction of the court of chancery, whether those proceedings are by indictment or by summary process. Lord Chief Justice Holt, in declining, upon a mo- tion in the queen's bench for an attachment against an attorney for professional imtscon- duct, to make it a part of the rule to show cause that he should not move for an injunc- tion in chancery in the mean time, said: "Sure, chancery would not grant an injunc- tion in a criminal matter under examination in this court; and, if they did, this court would break it, and protect any that would proceed in contempt of it." Holderstaffe v. Saunders, Holt, 136, 6 Mod. 16. Lord Chan- cellor Hardwicke, while exercising the pow- er of the court of chancery, incidental to the disposition of a case pending before it, of restraining a plaintiff who had, by his bill, submitted his rights to its determina- tion, from proceeding as to the same matter before another tribunal, either by indict- ment or by action, asserted in the strongest terms the want of any power or jurisdiction to entertain a bill for an injunction to stay criminal proceedings; saying: "This court has not originally and strictly any restrain- ing power over criminal prosecutions;" and, again: "This court has no jurisdiction to grant an injunction to stay proceedings on a mandamus, nor to an indictment, nor to an information, nor to a writ of prohibition, that I know of." Mayor, etc. v. Pilkington. 2 Atk. 302, 9 Mod. 273; Montague v. Dud- man, 2 Ves. Sr. 396, 39S. The modern deci- • sions in England, by eminent equity judges, concur in holding that a court of chancery has no power to restrain criminal proceed- ings, unless they are instituted by a party to a suit already pending before it, and to try the same right that is in issue there. Attorney General v. Cleaver, IS Ves. 211, 220; Turner v. Turner, 15 Jur. 21S; Saull v. Browne, 10 Ch. App. 64; Kerr v. Preston, 6 Ch. Div. 463. Mr. Justice Story, in his Commentaries on Equity Jurisprudence, af- firms the same doctrine. 2 Story, Eq. Jur. PRINCIPLES DEFINING AND LIMITING JURISDICTION. § 893. And in the American courts, so far as we are informed, it has been strictly and uniformly upheld, and has been applied alike whether the prosecutions or arrests sought to be restrained arose under statutes of the state, or under municipal ordinances. West v. Mayor, etc., 10 Paige, 539; Davis v. Amer- ican Soc, 75 N. Y. 362; Tyler v. Hamersley, 44 Conn. 419, 422; Stuart v. Board Sup'rs, 83 111. 341; Devron v. First Municipality, 4 La. Ann. 11; Levy v. Shreveport, 27 La. Ann. 620; Moses v. Mayor, etc., 52 Ala. 198; Gault v. Wallis, 53 Ga. 675; Phillips v. Mayor, etc., 61 Ga. 386; Cohen v. Goldsboro Com'rs, 77 N. C. 2; Oil Co. v. Little Rock, 39 Ark. 412; Spink v. Francis, 19 Fed. 670, and 20 Fed. 567; Suess v. Noble, 31 Fed. 855. It is equally well settled that a court of equity has no jurisdiction over the appoint- ment and removal of public officers, whether the power of removal is vested, as well as that of appointment, in executive or admin- istrative boards or officers, or is intrusted to a judicial tribunal. The jurisdiction to de- termine the title to a public office belongs exclusively to the courts of law, and is exer- cised either by certiorari, error, or appeal, or by mandamus, prohibition, quo warranto, or information in the nature of a writ of quo warranto, according to the circumstances of the case, and the mode of procedure, estab- lished by the common law or by statute. No English case has been found of a bill for an injunction to restrain the appoint- ment or removal of a municipal officer. But an information in the court of chancery for the regulation of Harrow school, within its undoubted jurisdiction over public charities, was dismissed so far as it sought a removal of governors unlawfully elected, Sir William Grant saying: "This court, I apprehend, baa no jurisdiction with regard either to the election or the amotion of corporators of any description." Attorney General v. Claren- don, 17 Ves. 491, 498. In the courts of the several states, the pow- er of a court of equity to restrain by injunc- tion the removal of a municipal officer has been denied in many well-considered cases. Upon a bill in equity in the court of chan- cery of the state of New York by a lawfully appointed inspector of flour, charging that he had been ousted of his office by one un- lawfully appointed in his stead by the gov- ernor, and that the new appointee was in- solvent, and praying for an injunction, a re- ceiver, and an account of fees, until the plaintiff's title to the office could be tried at law, Vice-Chancellor MeCoun said: "This court may not have jurisdiction to deter- mine that question, so as to render a judg- ment or a decree of ouster of the office;" but he overruled a demurrer, upon the ground that the bill showed a prima facie title in the plaintiff. Tappen v. Gray, 3 Edw. Ch. 450. On appeal, Chancellor Walworth re- versed the decree, "upon the ground that at the time of the filing of this bill the court of chancery had no jurisdiction or power to afford him any relief." 9 Paige, 507, 509, 512. And the chancellor's decree was unan- imously affirmed by the court of errors, up- on Chief Justice Nelson's statement that he concurred with the chancellor respecting the jurisdiction of courts of equity in cases of this kind. 7 Hill, 259. The supreme court of Pennsylvania has de- cided that an injunction cannot be granted to restrain a municipal officer from exercis- ing an office which he has vacated by ac- cepting another office, or from entering upon an office under an appointment by a town council, alleged to be illegal; but that the only remedy in either case is at law by quo warranto. Hagner v. Heyberger, 7 Watts & S. 104; Updegraff v. Crans, 47 Pa. St. 103. The supreme court of Iowa, in a careful opinion delivered by Judge Dillon, has ad- judged that the right to a municipal office cannot be determined in equity upon an original bill for an injunction. Cochran v. McCleary, 22 Iowa, 75. In Delahanty v. Warner, 75 111. 185, it was decided that a court of chancery had no jurisdiction to entertain a bill for an injunc- tion to restrain the mayor and aldermen of a city from unlawfully removing the plain- tiff from the office of superintendent of streets, and appointing a successor; but that the remedy was at law by quo warranto or mandamus. In Sheridan v. Colvin, 78 111. 237, it was held that a court of chancery had no jurisdiction to restrain by injunc- tion a city council from passing an ordi- nance unlawfully abolishing the office of commissioner of police; and the court, re- peating in great part the opening proposi- tions of Kerr on Injunctions, said: "It is elementary law that the subject-matter of the jurisdiction of a court of chancery is civil property. The court is conversant only with questions of property and the mainte- nance of civil rights. Injury to property, whether actual or prospective, is the founda- tion on which the jurisdiction rests. The court has no jurisdiction in matters merely criminal or merely immoral, which do not affect any right to property; nor do matters of a political nature come within the juris- diction of the court of chancery; nor has the court of chancery jurisdiction to inter- fere with the duties of any department of government, except under special circum- stances, and when necessary for the protec- tion of rights of property." 78 111. 247. Up- on like grounds it was adjudged in Dickey v. Reed, 78 111. 261, that a court of chancery had no power to restrain by injunction* a board of commissioners from canvassing the results of an election; and that orders grant- ing such an injunction, and adjudging the commissioners guilty of contempt for disre- garding it, were wholly void. And in Har- ris v. Schryock, 82 III. 119, the court, in ac- cordance with its previous decisions, held that the power to hold an election was polit- PRINCIPLES DEFINING AND LIMITING JURISDICTION. ical, and not judicial, and therefore a court of equity had no authority to restrain officers from exercising that power. Similar decisions have been made, upon full consideration, by the supreme court of Ala- bama, overruling its own prior decisions to the contrary. Beebe v. Robinson, 52 Ala. 66; Moulton v. Reid, 54 Ala. 320. The statutes of Nebraska contain special provisions as to the removal of officers of a county or of a city. "All county officers, including justices of the peace, may be charged, tried, and removed from office for official misdemeanors" of certain kinds, by the board of county commissioners, upon the charge of any person. "The proceedings shall be as nearly like those in other actions as the nature of the case admits, excepting where otherwise provided in this chapter." "The complaint shall be by an accuser against the accused, and shall contain the charges with the necessary specifications under them, and be verified by the affidavit of any elector of the state that he believes the charges to be true." No formal answer or replication is required, "but, if there be an answer and reply, the provisions of this [the?] statute relating to pleadings in ac- tions shall apply." "The questions of fact shall be tried as in other actions, and, if the accused is found guilty, judgment shall be entered removing the officer from his office, and declaring the latter vacant, and the clerk shall enter a copy of the judgment in the election book." Comp. St. Neb. c. 18, art. 2, § 7. The nature of this proceed- ing before county commissioners has been the subject of several decisions by the su- preme court of the state. In the earliest one the court declared, "The proceeding is quasi criminal in its nature, and the incumbent undoubtedly may be required to appear without delay, and show cause why he should not be removed. But questions of fact must be tried as in other actions, and are subject to review on error. The right to a trial upon distinct and specific charges is secured to every one thus charged with an offense for which he is liable to be re- moved from office." "Neither is it sufficient for the board to declare and resolve that the office is vacant. There must be a judgment of ouster against the incumbent." State v. Sheldon, 10 Neb. 452, 456, 6 N. W. 757. The authority conferred upon county commis- sioners to remove county officers has since been held not to be an exercise of strictly judicial power, within the meaning of that provision of the constitution of Nebraska which requires that "the judicial power of this state shall be vested in a supreme court, district courts," and other courts and mag- istrates therein enumerated. Const. Neb. art. 6, § 1; State v. Oleson, 15 Neb. 247, 18 N. W. 45. But it has always been consid- ered as so far judicial in its nature that the order of the county commissioners may be reviewed on error in the district court of the county, and ultimately in the supreme court of the state. State v. Sheldon, above cited; Minkler v. State, 14 Neb. 181, 15 N. W. 330; State v. Meeker, 19 Neb. 444, 44S. 27 N. W. 427. See, also, Railroad v. Wash- ington Co., 3 Neb. 30, 41; Code Civil Proc. Neb. §§ 580-584, 599; Cr. Code (Ed. 1885) § 572. This view does not substantially differ from that taken in other states, where sim- ilar orders have been reviewed by writ of certiorari, as proceedings of an inferior tri- bunal or board of officers, not commissioned as judges, yet acting judicially, and not ac- cording to the course of the common law. Charles v. Mayor, etc., 27 N. J. Law, 203; People v. Fire Com'rs, 72 N. Y. 445; Dona- hue v. County of Will, 100 111. 94. In Nebraska, as elsewhere, the validity of the removal of a public officer, and the title of the person removed, or of a new ap- pointee, to the office, may be tried by quo warranto or mandamus. Comp. St. Neb. c. 19, §§ 13, 24; Id. c. 71; Code Civ. Proc. §§ 645, 704; Cases of Sheldon, Oleson, and Meeker, above cited; Queen v. Saddlers' Co., 10 H. L. Cas. 404; Osgood v. Nelson, L. R. 5 H. L. 636. The provisions of the statutes of Nebraska as to the removal of officers of cities of the first class (of which the city of Lincoln is one) are more general, simply conferring up- on the mayor and council "power to pass any and all ordinances not repugnant to the constitution and laws of the state; and such ordinances to alter, modify, or repeal;" and "to provide for removing officers of the city for misconduct;" and to fill any vacancy oc- curring in the office of police judge or other elective office by appointment by the mayor, with the assent of the council. Comp. St. Neb. c. 13, §§ 11, 15; St. 1887, c. 11, §§ 8, 68, 114. The original ordinance of the city coun- cil of Lincoln, made part of the record, ap- pears to have been framed with the object that the rules established by statute for conducting proceedings for the removal of county officers should be substantially fol- lowed in the removal of city officers elected by the people. After ordaining that when- ever any such officer "shall be guilty of any willful misconduct or malfeasance in office, he may be removed by a vote of two-thirds of all the members elected to the council," it provides that no such officer shall be re- moved unless "charges in writing, specifying the misconduct or nature of the malfeasance, signed by the complainant, and giving the name of at least one witness besides the complainant, to support such charges, shall be filed with the city clerk, president of the council, or mayor," and be read at a regular meeting of the council; and a certified copy thereof, with a notice to show cause against the removal, be served upon the officer five days before the next meeting; that if he does not then appear, and file a denial in PRINCIPLES DEFINING AND LIMITING JURISDICTION. 9 writing, "the said charge and specifications shall be taken as true, and the council shall declare the office vacant;" but, if he does, the council shall adjourn to some day for his trial; "and if, upon the trial of said officer, said council shall be satisfied that he is guilty of any misconduct willfully, or malfeasance in office, they shall cause such finding to be entered upon their minutes, and shall declare said office vacant, and shall proceed at once to fill such vacancy in the manner provided by statute and ordi- nance;" and that all proceedings and notices in the matter of such charges may be served by the city marshal or by a policeman, and the "service and return shall be in the man- ner provided by law for the service of sum- monses in justice's courts." The only ma- terial change made in that ordinance by the ordinance of August 24th is that the trial of the officer, and the finding of his guilt, may be either by the whole council, or by a "committee of the council to whom such charges shall have been referred." In either case the finding is to be entered upon the minutes of the council, "and the council shall declare the said "office vacant and the said officer removed therefrom," and certify the fact to the mayor, whereupon the vacancy shall be filled by appointment by the mayor, with the assent of the council. The whole object of the bill in equity filed by Parsons, the police judge of the city of Lincoln, against the mayor and councilmen of the city, upon which the circuit court of the United States made the order for the disre- gard of which they are in custody, is to pre- vent his removal from the office of police judge. No question of property is suggested in the alle- gations of matters of fact in the bill, or would be involved in any decree that the court could make thereon. The case stated in the bill is that charges in writing against Parsons for appropriating to his own use moneys of the city were filed, as required by the original ordinance, by Sheedy and Saunders, (Hyatt, not otherwise named in those charges, would seem to have signed them as the additional witness required by that ordinance;) that the charges were referred by the mayor to a committee of three members of the council; that upon notice to the accused, and his ap- pearance before that committee, he objected that the committee had no authority to try the charges, and the committee so reported to the council; that thereupon Sheedy and Saunders procured the passage of the amend- ed ordinance, giving a committee, instead of the whole council, power to try the charges, and report its finding to the council; that aft- er the passage of this ordinance, and against his protest, the committee resumed the trial, and, in order to favor and protect his ac- cusers, and fraudulently to obtain his re- moval from office, made a report to the city •council, falsely stating that they reported all the evidence, and fraudulently suppressing a book which he had offered in evidence, and finding him guilty, and recommending that his office be declared vacant, and be filled by the appointment of some other person; and that the mayor and city council set the mat- ter down for final vote at a future day named, and threatened and declared that they would then, without hearing or reading the evidence taken before the committee, declare the office vacant, and appoint another person to fill it_ The bill prays for an injunction to restrain the mayor and councilmen of the city of Lin- coln from proceeding any further with the charges against Parsons, or taking any vote on the report of the committee, or declaring the office of police judge vacant, or appointingc_ any person to fill that office. The matters of law suggested in the bill as grounds for the intervention of the circuit court are that the amended ordinance was an ex post facto law, and that all the pro- ceedings of the city council and its commit- tee, as well as both ordinances, were illegal and void, and in conflict with and violation of those articles of the constitution of the United States which provide that no per- son shall be deprived of life, liberty, or prop- erty without due process of law; that in all criminal prosecutions the accused shall enjoy the right to a speedy and public trial by an impartial jury of the state and district where the crime shall have been committed, and to have compulsory process for obtaining wit- nesses in his favor, and that no state shall pass any ex post facto law, or deprive any person of life, liberty, or property without due process of law, or deny to any person within its jurisdiction the equal protection of the laws. The fifth and sixth amendments to the con- stitution of the United States, which provide that no person shall be deprived of life, liber- ty, or property without due process of law, and secure to the accused in criminal prose- cutions trial by jury, and compulsory process for obtaining witnesses in his favor, apply to the United States only, and not to laws or pro- ceedings under the authority of a state (Spies v. Illinois, 123 U. S. 131, 8 Sup. Ct. 21;) and that provision of the constitution which pro- hibits any state to pass ex post facto laws applies only to legislation concerning crimes (Calder v. Bull, 3 Dall. 3S6). If the ordi- nances and proceedings of the city council are in the nature of civil, as distinguished from criminal, proceedings, the only possible ground, therefore, for the interposition of the courts of the United States in any form is that Parsons, if removed from the office of police judge, will be deprived by the state of life, liberty, or property without due process of law, in violation of the fourteenth amendment to the constitution, or that the state has denied him the equal protection of the laws, secured by that amendment. It has been contended by both parties, in argument, that the proceeding of the city council for the removal of Parsons upon the charges filed against him is in the nature of 10 PRINCIPLES DEFINING AND LIMITING JURISDICTION. a criminal proceeding; and that view de- rives some support from the judgment of the supreme court of Nebraska in State v. Sheldon, 10 Xeb. 452, 450, 6 N. W. 757, before cited. But, if the proceeding is of a criminal nature, it is quite clear, for the reasons and upon the authorities set forth in the earlier part of this opinion, that the case stated in the bill is wholly without the jurisdiction of any court of equity. If those proceedings are not to be considered as criminal or quasi criminal, yet if, by reason of their form and object, and of the acts of the legislature and decisions of the courts of Nebraska as to the appellate jurisdiction exercised in such cases by the judicial power of the state, they are to be considered as proceedings in a court of the state, (of which we express no deci- sive opinion,) the restraining order of the circuit court was void, because in direct con- travention of the peremptory enactment of congress that the writ of injunction shall not be granted by any court of the United States to stay proceedings in any court of a state, except when authorized by a bankrupt act. Act March 2, 1793, c. 22, § 5 (1 Stat. 335;) Diggs v. Wolcott, 4 Cranch, 179; Peck v. Jenness, 7 How. 612, 625; Rev. St. § 720; Watson v. Jones, 13 Wall. 679, 719; Haines v. Carpenter, 91 U. S. 254; Dial v. Reynolds, 96 U. S. 340; Sargent v. Helton, 115 U. S. 348, 6 Sup. Ct. 78. But if those proceedings are to be considered as neither criminal nor judicial, but rather in the nature of an offi- cial inquiry by a municipal board intrusted by law with the administration and regula- tion of the affairs of the city, still, their only object being the removal of a public officer from his office, they are equally beyond the jurisdiction and control of a court of equi- ty. The reasons which preclude a court of equity from interfering with the appoint- ment or removal of public officers of the government from which the court derives its authority apply with increased force when the court is a court of the United States, and the officers in question are offi- cers of a state. If a person claiming to be such an officer is, by the judgment of a court of the state, either in appellate pro- ceedings or upon a mandamus or quo war- ranto, denied any right secured to him by the constitution of the United States, he can obtain relief by a writ of error from this court. In any aspect of the case, therefore, the circuit court of the United States was without jurisdiction or authority to entertain the bill in equity for an injunction. As this court has often said: "Where a court has jurisdiction, it has a right to decide every question which occurs in the cause; and, whether its decision be correct or oth- erwise, its judgment, until reversed, is re- garded as binding in every other court; but, If it act without authority, its judgments and 07-ders are regarded as nullities. They are not voidable, but simply void." Elliott v. Peirsol, 1 Pet. 328, 340; Wilcox v. Jack- son, 13 Pet. 498, 511; Hickey v. Stewart, 3 How. 750, 762; Thompson v. Whitman, 18 Wall. 457. 467. We do not rest our conclusion in this case, in any degree, upon the ground, suggested in argument, that the bill does not show a mat- ter in controversy of sufficient pecuniary value to support the jurisdiction of the cir- cuit court; because an apparent defect of its jurisdiction in this respect, as in that of citizenship of parties, depending upon an in- quiry into facts which might or might not support the jurisdiction, can be availed of only by appeal or writ of error, and does not render its judgment or decree a nullity. Prigg v. Adams, 2 Salk. 674, Garth. 274; Fisher v. Bassett, 9 Leigh, 119, 131-133; Navigation Co. v. Homestead Co., 123 U. S. 552, 8 Sup. Ct. 217. Neither do we say that, in a case belonging to a class or subject which is within the jurisdiction both of courts of equity and of courts of law, a mis- take of a court of equity, in deciding that in the particular matter before it there could be no full, adequate, and complete remedy at law, will render its decree absolutely void. But the ground of our conclusion is, that whether the proceedings of the city council of Lincoln for the removal of the police judge, upon charges of misappropriating moneys belonging to the city, are to be re- garded as in their nature criminal or civil, judicial or merely administrative, they re- late to a subject which the circuit court of the United States, sitting in equity, has no jurisdiction or power over, and can neithei- try and determine for itself, nor restrain by injunction the tribunals and officers of tiie state and city from trying and determining. The case cannot be distinguished in prin- ciple from that of a judgment of the common bench in England in a criminal prosecution, which was coram non judice; or the case of a sentence passed by the circuit court of the United States upon a charge of an in- famous crime, without a presentment or in- dictment by a grand jury. Case of the Marshalsea, 5 Coke, 68, 76; Ex parte Wil- son, 114 U. S. 417, 5 Sup. Ct. 935; Ex parte Bain, 121 U. S. 1, 7 Sup. Ct. 781. The circuit court being without jurisdic- tion to entertain the bill, in equity for an in- junction, all its proceedings in the exercise of the jurisdiction which it assumed are null and void. The restraining order, in the nature of an injunction it had no power to make. The adjudication that the defend- ants were guilty of a contempt in disregard- ing that order is equally void, their deten- tion by the marshal under that adjudication is without authority of law, and they are entitled to be discharged. Ex parte Row- land, 104 U. S. 604; Ex parte Fisk, 113 U. S. 713, 5 Sup. Ct. 724; In re Ayers, 123 U. S. 443, 507, 8 Sup. Ct. 104. Writ of habeas cor- pus to issue. PRINCIPLES DEFINING AND LIMITING JURISDICTION. 11 FIELD, J., (concurring.) I concur in the judgment of this court that the circuit court of the United States had no jurisdiction to interfere with the proceedings of the mayor and common council of Lincoln for the re- moval of the police judge of that city. The appointment and removal of officers of a municipality of a state are not subjects with- in the cognizance of the courts of the Unit- ed States. The proceedings detailed in the record in the present case were of such an irregular and unseemly character, and so well calculated to deprive the officer named of a fair hearing, as to cause strong com- ment. But, however irregular and violent, the remedy could only be found under the laws of the state and in her tribunals. The police judge did not hold his office under the United States, and in his removal the common council of Lincoln violated no law of the United States. On no subject is the independence of the authorities of the state, and of her municipal bodies, from federal interference in any form, more complete than in the appointment and removal of their officers. I concur, also, in what is said in the opin- ion of the court as to the want of jurisdic- tion of a court of equity over criminal pro- ceedings, but do not perceive its application to the present case. The proceedings before the common council were not criminal in the sense to which the principle applies. That body was not a court of justice, ad- ministering criminal law, and it is only to criminal proceedings in such a tribunal that the authorities cited have reference. In many cases, proceedings, criminal in their character, taken by individuals or organized bodies of men, tending, if carried out, to despoil one of his property or other rights, may be enjoined by a court of equity. WAITE, C. J., (dissenting.) I am not pre- pared to decide that an officer of a munici- pal government cannot, under any circum- stances, apply to a court of chancery to re- strain the municipal authorities from pro- ceeding to remove him from his office with- out the authority of law. There may be cases, in my opinion, when the tardy reme- dies of quo warranto, certiorari, and other like writs will be entirely inadequate. I can easily conceive of circumstances under which a removal, even for a short period, would be productive of irremediable mis- chief. Such cases may rarely occur, and the propriety of such an application may not often be seen; but if one can arise, and if the exercise of the jurisdiction can ever be proper, the proceedings of the court in due course upon a bill filed for such relief will not be void, even though the grounds on which it is asked may be insufficient. If the court can take jurisdiction of such a case un- der any circumstances, it certainly must be permitted to inquire, when a bill of that character is filed, whether the case is one that entitles the party to the relief he asks, and, if necessary to prevent wrong in the mean time, to issue in its discretion a tem- porary restraining order for that purpose. Such an order will not be void, even though it may be found on examination to have been improvidently issued. While in force it must be obeyed, and the court will not be without jurisdiction to punish for its contempt. Such, in my opinion, was this case, and I therefore dissent from the judgment which has been ordered. HARLAN, J., (dissenting.) I concur in the views expressed by the chief justice, and unite with him in dissenting from the opin- ion and judgment of the court. The proceed- ings inaugurated by the defendants against Parsons are certainly not of a criminal na- ture; nor are they embraced by. the provi- sion of the statute which declares that "the writ of injunction shall not be granted by any court of the United States to stay pro- ceedings in any court of a state, except in cases where such injunction may be author- ized by any law relating to proceedings in bankruptcy." Rev. St. § 720. The act of March 3, 1887, declares that the circuit courts of the United States shall have orig- inal cognizance, concurrent with the courts of the several states, of all suits of a civil nature, at common law or in equity, aris- ing under the constitution of the United States. Parsons' suit is confessedly of a civil nature; and it proceeds upon the ground that what the defendants propose to do will violate rights secured to him by the constitution of the United States. It is therefore a suit arising under the constitu- tion of the United States. Whether the cir- cuit court, sitting in equity, could properly grant to the plaintiff the relief asked, is not a question of jurisdiction within the rule that orders, judgments, or decrees are void where the court which passed them was without jurisdiction. It is rather a question as to the exercise of jurisdiction. As this suit is one arising under the constitution of the United States, and is of a civil nature, the inquiry in the mind of the circuit judge, when he read the bill, was whether, ac- cording to the principles of equity, a decree could be properly rendered against the de- fendants? Osborn v. Bank, 9 Wheat. 738, 858. The statute provides that "suits in equity shall not be sustained in either of the courts of the United States in any case where a plain, adequate, and complete rem- edy may be had at law." But if one of those courts should render a final decree in behalf of the plaintiff, notwithstanding he had a plain, adequate, and complete remedy at law, would the decree be a nullity? Could it be assailed collaterally as void, upon the ground that no case was made jus- tifying relief in equity? When a party has disregarded a preliminary injunction issued by a circuit court of the United States, 12 PRINCIPLES DEFINING AND LIMITING JURISDICTION. has been fined for contempt, and is in cus- tody for failing to pay the fine, must he be discharged upon habeas corpus in every case where it appears, upon the face of the bill, that the plaintiff has a plain, adequate, and complete remedy at law? Those ques- tions, it seems to me, should receive a nega- tive answer. I do not understand the court to decide that the circuit court could not, under any circumstances, or by any mode of proceeding, enforce the rights which the plaintiffs contend are about to be violated by the defendants, but only that the court below, sitting in equity, had no authority to interfere with the proposed action of the defendants. It seems to me that this ques- tion would properly arise upon appeal from any final decree rendered in the cause, and is not determinable upon writ of habeas corpus. PRINCIPLES DEFINING AND LIMITING JURISDICTION. LEWIS v. COCKS. (23 Wall. 466.) Supreme Court of the United States. Oct, 1874. Appeal from circuit court, D. Louisiana. In 1863 one Anderson brought suit in the provisional court of New Orleans, which was a court established by proclamation of the president during the occupancy of the city by federal troops, against Cocks, who was then out of the state, and his agent, Hylle- sted. Judgment was rendered for Anderson, and an execution issued, under which the property in controversy in this case was sold to one Izard. After the death of Anderson and the reestablishment of the regular fed- eral courts, Cocks filed a bill in equity against Izard, asking that he be compelled to recon- vey the property sold under the execution, on the ground that the judgment of the pro- visional court was void, and that sufficient service had not been made on Cocks or Hylle- sted, and that Hyllested was not such an agent that service could be made upon him; and further, that Izard had been guilty of fraud in procuring title to the property, in that he had represented at the execution sale that he was buying for Cocks, and had there- by kept other persons from bidding, and that he now repudiated his fiduciary relation to Cocks. Defendant's answer denied the ma- terial allegations of the bill, and alleged that the property had been mortgaged to Lewis, and the title had become vested in the latter by foreclosure. Lewis answered to, the same effect, and was made defendant in place of Cocks. The further facts are stated in the opinion of the court. Mr. P. Phillips, for appellant. Mr. Conway Robinson, contra. Mr. Justice SWAYNE delivered the opinion of the court. The question of the validity of the provi- sional court is not an open one. We have held it valid upon more than one occasion when the question has been before us. The Grapeshot, 9 Wall. 129. The fraud charged upon Izard is expressly denied by his answer and is not sustained by the evidence. There is a decided preponder- ance against it. We are unanimous upon the point. It could serve no useful purpose to examine the proofs in detail in order to vin- dicate our judgment. Nothing further need be said upon the subject. The remaining part of the case is that which relates to the allegations of the non- service of process. In considering the bill, we must regard it as being just as it would be if it contained nothing but what relates to this subject. Everything else must be laid out of view. It must be borne in mind that the complain- ant is not in possession of the property. If the bill alleged only the nullity of the judgment, under which the premises were sold, by reason of the non-service of the orig- inal process in the suit, wherefore the de- fendant had no day in court, and judgment was rendered against him by default, and upon those grounds had asked a court of equity to pronounce the sale void, and to take the possession of the property from Izard and give it to the complainant, could such a bill be sustained? Such is the case in hand. There is nothing further left of it. and there is nothing else hefore us. Viewed in this light, it seems to us to be an action of ejectment in the form of a bill in chan- cery. According to the bill, excluding what relates to the alleged fraud, there is a plain and adequate remedy at law, and the case is one peculiarly of the character where, for that reason, a court of equity will not in- terpose. This principle in the English equity jurisprudence is as old as the earliest period in its recorded history. Spence, Eq. Jur. 408, note b; Id. 420, note a. The sixteenth section of the judiciary act of 1789 (1 Stat. 82), enacting "that suits in equity shall not be sustained in either of the courts of the United States in any case where plain, adequate, and complete remedy may be had at law," . is merely declaratory and made no change in the pre-existing law. To bar equitable relief the legal remedy must be equally effectual with the equitable remedy, as to all the rights of the complain- ant. Where the remedy at law is not "as practical and efficient to the ends of justice and its prompt administration," the aid of equity may be invoked, but if, on the other hand, "it is plain, adequate, and complete" it must be pursued. Boyce v. Grundy, 3 Pet. 215. In the present case the objection was not made by demurrer, plea, or answer, nor was it suggested by counsel, nevertheless if it clearly exists it is the duty of the court sua sponte to recognize it and give it effect. Hipp v. Babin, 19 How. 278; Baker v. Bid- die, Baldw. 416, Fed. Cas. No. 764. It is the universal practice of courts of equity to dismiss the bill if it be grounded upon a merely legal title. In such case the adverse party has a constitutional right to a trial by jury. Hipp v. Babin, 19 How. 27S. Where the complainant had recovered ;i judgment at law and execution had issued and been levied upon personal property, and the claimant, under a deed of trust, had re- plevied the property from the hands of the marshal, and the judgment creditor filed his bill praying that the property might be sold for the satisfaction of his judgment, this court held that there was a plain remedy at law; that the marshal might have sued in trespass, or have applied to the circuit court for an attachment, and that the bill must therefore be dismissed. Knox v. Smith, 4 How. 298. In the present case the bill seeks to enforce "a merely legal title." An action of eject- ment is an adequate remedy. 14 PRINCIPLES DEFINING AND LIMITING JURISDICTION. The. questions touching the service of the process can be better tried at law than in equity. If it be desired to have any rulings of the court below brought to this court for review, they can be better presented rjy bills of exception and a writ of error than by dep- ositions and other testimony and an appeal in equity. There is another important point, which we have not overlooked. It is whether the judg- ment of the provisional court can be pro- nounced a nullity without the legal represent- ative of Anderson, the deceased plaintiff, being before the court as a party. As the first objection is a fatal one we have not con- sidered that question. Decree reversed, and the case remanded with directions to dismiss the bill. PRINCIPLES DEFINING AND LIMITING JURISDICTION. 15 DARST v. FHILLIPS. (41 Ohio St. 514.) Supreme Court of Ohio. Jan. Term, 1885. Error to district court, Lucas county. Bill by Phillips and others against one Darst to enjoin the enforcement of a judg- ment, and for other relief. Judgment for plaintiffs, and defendant appeals. Affirmed. C. F. France and E. H. Rhoades, for plain- tiff in error. Dodge & Raymond, for defend- ants in error. MARTIN, J. Darst took judgment in the common pleas of Williams county against Phillips and others as makers of a promis- sory note with warrant of attorney attached. There was no service of process or notice. Execution was issued to* the sheriff of Lu- cas county, who levied it on the goods of the judgment defendants. Thereupon they brought the original action in the common pleas of Lucas county, setting out several defenses to the note, 'one of which was that it had been paid before the judgment was taken, and averring that Darst fraudulently obtained the judgment, and praying for in- junction and other relief. The defendant demurred to the jurisdic- tion. The district court, on appeal, over- ruled the demurrer, and granted a perpetual injunction. The object of the present pro- ceeding is to obtain a reversal of this judg- ment. In the first place, it is claimed that sec- tion 5354 et seq., Rev. St., afforded an ade- quate remedy at law, and that it was exclu- sive. By those sections it is provided that a court of common pleas, a district or supe- rior court, may vacate or modify its own judgments after the term, for (amongst oth- er causes) fraud practiced by the successful party in obtaining them, and for taking judgments on warrants of attorney for more than was due when the defendant was not served or notified. The proceeding is re- quired to be by petition brought within a limited time after the rendition of the judg- ment, and provision is made for an injunc- tion to suspend process on the judgment. In our opinion, this statutory remedy is merely cumulative. It is not disputed that courts of equity, prior to the statute, had jurisdiction to impeach judgments for fraud, and enjoin proceedings thereon. It is a fun- damental principle that when such courts have once been legitimately vested with ju- risdiction they retain it, notwithstanding courts of law subsequently acquire jurisdic- tion by statute or otherwise, unless the leg- islature abolish or restrict it. 1 Story, Eq. Jur. 64. This principle is distinctly recog- nized as applicable in respect to the reme- dies provided by our practice act in Long v. Mulford, 17 Ohio St. 484, where it is held that "what would have been a good cause of action to sustain an original bill is a good cause of action under the Code." In Coates v. Bank, 23 Ohio St. 415, it is held that the provisions of the statute for the vacation of judgments for fraud do not abridge or qualify the right to maintain an original action impeaching a judgment for fraud. Judge Day, in announcing the opin- ion, intimates that such an action is main- tainable in all cases where an original bill might, before the statute, have been sus- tained, and states that Long v. Mulford, su- pra, is regarded as so holding by his breth- ren. The bench and bar of the state have so understood that case, and, as we think, correctly. We are satisfied with the rule, and consider it definitely settled. In the case at bar, therefore, the judgment defendant had an election to proceed under the statute to vacate and enjoin, or by origi- nal action for injunction. In the next place, it is objected that the common pleas of Lucas county had no ju- risdiction of the action. Under the act for its ovsrftn ization a cmrt of common pleas in this state has general original jurisdiction at law and in equity. An action to enjoin pro- Cfcas irom a juugiuent on the giounci of fraud is within this jurisdiction, and is with- in the jurisdiction of the particular court where the fraud is properly laid. Either of several courts, according to special circum- stances, may have jurisdiction in a particu- lar case. Darst was duly served with pro- cess, and appeared for the purposes of his demurrer. Is the fraud properly laid? The fraud charged was one upon the court as well as upon the judgment defendants. It amounts to this: that the steps evidencing the jurisdiction and cause of action were falsely and fraudulently simulated without the knowledge of the defendants or oppor- tunity for knowledge, and that Darst was at the time subjecting their property to seizure by the sheriff of Lucas county. The vital fact is that there was no cause of action. The payment of the debt revoked the power and left the cognovit without any support, and there was no jurisdiction actually ac- quired. This fact courts of equity may for some purposes consider, and is undoubted cause for impeachment and injunction. And we dp not forget that a judgment, until re- versed, must be deemed valid, because it is the sentence of the law on the record of the facts (3 Bl. Coram. 395), and, therefore, it is immaterial whether the facts be true or false. The remedy sought in the case at bar op- erates, in contemplation of law, on the per- son, and we think it is clearly available to the judgment defendants. Miller v. Long- acre, 26 Ohio St. 291, referred to in the briefs, was an action brought in the com- mon pleas of Union county to enjoin the en- forcement of an execution issued from a judgment rendered in the common pleas of Marion county. The action was sustained. It appears that the primary actiou was upon 16 PRINCIPLES DEFINING AND LIMITING JURISDICTION. promissory notes, and there had been a sec- ond trial under the statute then in force. Both judgments were given for the plaintiff therein, the first being larger than the sec- ond. The execution issued from the first; the creditor claiming, for certain reasons, that it was valid as against some of the de- fendants. The court held that, as no objec- tion to the jurisdiction was made until after answer, the relief could be granted. In that case the trial court giving the judgments had undoubted jurisdiction, and there was a good cause of action, and no fraud was practiced. The points of the ruling were waiver and the general jurisdiction of the common pleas. The case illustrates the fa- vor with which the general jurisdiction is regarded, even in cases where another com- mon pleas court could more appropriately administer the remedy. It will be observed that the case at bar is distinguishable from one of fraud practiced on the trial; from a case to enjoin a pending action; to impeach a judgment for error; to restrain an execu- tion erroneously issued, as in Miller v. Long- acre, supra; and from a variety of other cases supposed to be analogous, and in re- spect to which many authorities have been cited. And in many cases the nature of the relief required, as also the necessity for new parties, is such that a simple impeachment of the judgment is inadequate, and an origi- nal action is indispensable. Judgment affirmed. PRINCIPLES DEFINING AND LIMITING JURISDICTION. 17 McGEAN v. METROPOLITAN EL. RY. CO. et al. (30 N. E. 647, 133 N. Y. 9.) Court of Appeals of New York. April 12, 1892. Appeal from superior court of New York city, general term. Action by James H. McGean, as execu- tor and trustee under the will of Delia Powers, against the Metropolitan Elevat- ed Railway Company and the Manhattan Railway Company. From a judgment of the general term of the superior court of New York city awarding damages and an alternative injunction in favor of plain- tiff, defendants appeal. Affirmed. Bmianrd Tolles, for appellants. Roger Foster & E. J. McGean, for respondent. MAYNARD, J. This action was brought July 19,1 8X9. The judgment appealed from restrains the defendants from maintaining an elevated railway structure on, or in front of, plaintiff's premises, known as "No. 15}^ Division Street,"' in the city of New York. The injunction is not to be operative if the defendants shall, within one month, elect to pay plaintiff the sum of $1,500, as and for the permanent dam- ages to the fee of the premises sustained by him in consequence of the appropria- tion by the defendants of the use of the .street for such a purpose. Upon payment or tender of such sum, the plaintiff is re- quired to execute a conveyance of the prop- erty found by the decision to have been taken by the defendants, and, in case of failure to execute such conveyance, it is, in substance, provided that the judgment of injunction shall have no force or effect. Damages to the amount of $500 are also awarded for the injury to the property dur- ing theiime intervening between June 10, 1S87, and March 20, 1890. The rightfulness of this judgment is not questioned except upon a "ingle ground. It was proven by the plaintiff upon the trial, and it has been found by thetrial court, that after is- sue was joined, and on March 20, 1890, the plaintiff conveyed the premises to one Rosenbaum, for the consideration of $8,- 800. It is, for this reason, contended that plaintiff was not, at the time of the trial, entitled to any preventive relief with re- spect to these premises, and, in the absence of the right to such relief, that the court could not retain jurisdiction of the action for the purpose of awarding damages for past injuries. It is undoubtedly true that the substantive cause oi action in all such cases is the right to a prevention of the continuance of the trespass upon plain- tiff's property by the defendants, but, when this right is established, the equita- ble jurisdiction of the courtis complete, and itcan award theinjured party full com- pensation for all the damages sustained by the wrongful act soughtto beenjoined, subject to the statutory limitations of time. It is equally true that, if there is no such right to a preventive remedy, the matter of damages for past trespasses cannot be the subject of inquiry in a court of equity. Relief must be sought in an- other forum. In thisconnection.it is to FKT.KQ.JUE. — 2 be observed that the defendants do not claim that the right to this kind of a rem- edy is extinguished by a transfer during the pendency of the action. Its existence is admitted,' but it is asserted that it has been transferred by the plaintiff's own act to his grantee, and that the latter alone can prosecute the action. It would seem that in such a case section 756 of the Code of Civil Procedure would be a sufficient an- swer to such an objection. That section provides that, in case of a transfer of in- terest, the action maybe continued by the original party, unless the court directs the person to whom the interest is transferred to be substituted in the action or joined with the original party, as the case re- quires. The action proceeds in the same manner as if the conveyanceof the proper- ty, which is the subject of thecontroversy, had not been made, unless the court di- rects the grantee to Vie made a party. The question cannot properly be present- ed for the first time upon the trial of the action, but must be brought to the atten- tion of the court, either by motion or by asupplemental pleading. If the defendant has not had the means of knowing that the plaintiff has parted with his title to the subject matter of the action until the fact is disclosed upon the trial, and he de- sires to have the new party in interest substituted for or joined with the original plaintiff, he can move to have the trial ar- rested until the necessary steps can be- taken for that purpose, and the trial court can suspend the proceedings if, in the exer- cise of a sound discretion, it is satisfied that the adoption oi such a course is re- quired for the protection of the defendant.. 1+ is not seen how, ordinarily, the defend- ant is prejudiced by a transferor the plain- tiff's interest pendente lite, unless there is some ouestion of the solvency of the par- ties in.olved. A judgment recovered against the original party would as effect- ually conclude his assignee after suit brought upon all the issues litigated as if 1 the latter had been substituted in place of his assignor. The statute makes no distinction in this respect between actions- at law and in equity, provided the cause of action is assignable, ts'or.v, Eq. PI. § 15(i. This view does not militate against the rule which authorizes courtsof equity,, where they have once obtained jurisdic- tion of a cause, to administer all the relief which the nature of the case and the facts require, and to bring such relief down to the close of thelitigation between the par- ties. The subject of the controversy re- mains unchanged, which is the unlawful appropriation of certain rights or ease- ments which are appurtenant or incident to the premises designated in the com- plaint, and, if the decree rendered con- cludes the owner of the property, whoever he may be, it matters notthat the title has shifted during the progress of the ac- tion. But in the present case the plaintiff has not parted with his title to the cause of action, or to the entire property to which it.relates. His deed to Rosenbaum contains the following important reserva- tions: "Reserving to the vendor all dam- ages to said property caused or to be caused by the present, past, or future 18 PRINCIPLES DEFINING AND LIMITING JURISDICTION. maintenance and operation of the elevated railway on Division street, as now con- structed, and all the fee and easement in Division street, now or heretofore or hereafter occupied and invaded by the said elevated railway structure, when maintained and operated as aforesaid ; and the conveyance is made subject to the said reservation to the said party of the first part, his heirs, executors, and admin- istrators." He thus has retained all' the title which he ever had to the rights and easements appropriated by the defend- ants, and to the fee of one-half of the street in width in front of No. 15% Division street. This street was laid out in 1765, under articles of agreement between Henry Rutgers and James De Lancey, who owned the lands which it traverses, by the terms of which it was mutually covenanted that it should belaid out on the division line between their respective farms, and each granted to the other a fee interest in that half of the street im- mediately abutting upon the grantee's property, subject to the right of the pub- lic to use the same as a highway; and each conveyed to the other an easement of light, air, and access in the remainder of the street. The decision of this court in Henderson v. Railroad Co., 78 N. Y. 123, thus becomes directly applicable. In that case the plaintiff, when he brought the action, was the owner of some of the abutting lots, and also of the fee of the street, subject to the public easement therein for the purposes of a highway. Before the action was brought the plain- tiff had sold some of the lots, and before the last trial of the action had sold and conveyed the remaining lots, reserving, however, the fee of the street and the damages to the adjacent property, both past and prospective; and it was held that his right to the eauitable interference of the court for his protection agninst the encroachments of the aeiendants was not thereby affected, and the court decreed a perpetual injunction, unless the defend- ants paid the amount found by the referee to be a fair compensation for the addi- tional burden imposed upon his property. It is true there is not a separate finding in This case, as there was there, aB to the value of the fee of the street or its de- preciation in consequence of its occupa- tion by the defendants. But it is not seen how the application of the principle is in any wise affected by this omission. It has been found that the existence and use of the defendants' structure, and its threat- ened continued use, has permanently dam- aged the fee value of the entire premises to the amount of at least $1,500. There was no request to find, separately, the amount of permanent damage to the fee of the .street and to the property conveyed by the plaintiff. They are so connected that a separate finding as to each might be difficult, if not impracticable. As tne right to the damages to both pieces of property was still in The plaintiff, such a rinding was unnecessary. So long as the ownership of the fee of the street and of the damages to the adjacent property re- mained in the same person, equity would not permit the defendants to acquire a right to maintain its structure in the street without paying the damages to the adjacent property which the erection and maintenance of such structure have inflicted upon it. This view is in harmony with the well- settled rules of equitable jurisprudence. No principle has been more frequently asserted, or is so well established, as that, when a court of equity has jurisdiction over a cause for any purpose, it may re- tain the cause for all purposes, and pro- ceed to a final determination of all the matters at issue. To such an extent has the doctrine been carried that it has been declared that if the controversy contains any equitable feature, or requires any purely equitable relief belonging to the ex- clusive jurisdiction of equity, or pertain- ing to the concurrent jurisdiction of equity and law, and a court of equity thus acquires a partial cognizance of the action, it may go on to a complete ad- judication, and establish purely legal rights and grant legal remedies, which would otherwise be beyond the scope of its authority. Pom. Eq. Jur. §§ 181,231, 242. So Jong as one of the grounds of equitable interference in this class of cases is the avoidance of a multiplicity of suits, this rule must prevail. The plaintiff being entitled to a decree restraining the defend- ants from the unlawful use of the street in which he still has an interest, it was the duty of the court to award him all the damages sustained in consequence of such unlawful use. As to the permanent dam- ages for the injury to the fee, the defend- ants are not compelled by this judgment to pay them. They have been ascer- tained, and payment of them provided for, as h favor to tne defendants, and as a condition upon which They may br re- lieved from the disastrous consequences to their business, which must result from the maintenance of the perpetual injunc- tion, to which, in strict equity, the plain- tiff is entitled. The defendants are not harmed, but favored, by such a disposi- tion of the cause. Further litigation is avoided, and a perfect right acquired to maintain in the street, in front of these premises, what has hitherto been an illegal and unauthorized structure. The grantee of the plaintiff has no interest in the subject of this controversy. He has taken his conveyance with a reservation to the plaintiff of the fee of the street and the permanent damages to the adjoining property. Presumably, to the extent of the value of the rights thus reserved, the cost of the property to him has been pro- portionately diminished. Ha is estopped by the reservation in his deed, which is to bo given the same effect as a direct grant, from asserting any title to any part of this cause of action, or to the rights which the defendants will acquire underthe judg- ment, which puts them in privity of title with the plaintiff. We have not consid- ered, and, in view of the peculiar features of this case, we deem it unnecessary to consider or determine, the abstract ques- tion whether the owner of real property, injuriously affected by the maintenance of an unlawful structure in the street un- on which his property abuts, can, either before or after suit brought, convey the entire premises, and reserve to himself the PRINCIPLES DEFINING AND LIMITING JURISDICTION. 19 fight to maintain an action in equity to restrain the continuance of such structure, or for the recovery of the permanent dam- ages to the property by reason of its maintenance. Such question must be re- served until it arises in concrete form. In the present case the grantor has retained title to a part of the fee of the premises, and unquestionably sufficient to preserve intact the jurisdiction of a court of equity. The judgment must be affirmed, with costs. All concur. 20 PRINCIPLES DEFINING AND LIMITING JURISDICTION. TRIBETTE et al.v. ILLINOIS CENT. R. CO. (12 South. 32, 70 Miss. 182.) Supreme Court of Mississippi. Dec. 5, 1892. Appeal from chancery court, Hinds coun- ty; H. C. Conn, Chancellor. Action by W. H. Tribette and others against the Illinois Central Railroad Compa- ny. Prom an order overruling plaintiffs' motion to dissolve au injunction issued' en- joining plaintiffs from prosecuting their dif- ferent actions, and compelling them to unite their controversies in one suit in equity against defendant, plaintiffs appeal. Re- veised. Calhoun & Green, Williamson & Potter, and Brame & Alexander, for appellants. Mayes & Harris, for appellee. CAMPBELL, C. J. A number of differ- ent owners of property in the town of Terry, destroyed by fire from sparks emitted by an engine of the appellee, severally sued in the circuit court to recover of the appellee damages for the respective losses by said fire, alleged to nave resulted from the negligence of the de- fendant. "While these actions were pending, the appellee exhibited its bill against the sev- eral plaintiffs, averring, that no liability as to it arose by reason of the fire, which arose, not from any negligence or wrong of it or its servants, but from the fault of others, ior which it is not responsible: and that the plaintiffs in the different actions are wrong- fully seeking to recover damages by their several actions, all of which grew out of the same occurrence, and depend for their solu- tion upon the same questions of fact and of law; wherefore, to avoid multiplicity of suits, and the consequent harassment and vexa- tion, all of the said several plaintiffs are sought to be enjoined from prosecuting their different actions, and to be brought in and have the controversies settled in this one suit in equity. There is no common interest be- tween these different plaintiffs, except in the queslions of fact and law involved. The injunction sought was granted, and the de- fendants served with process, when they ap- peared and demurred to the bill, and moved to dissolve the injunction on the face of the bill. The case was heard on motion to dis- solve the injunction, and it was overruled, and an appeal granted. The question pre- sented is as to the rightfulness of the suit a-ainst the defendants, on the sole ground that their several actions at law involve the very same matters of fact and law, without any other community of interest between them. The granting and maintaining the injunction are fully sustained by 1 Pom. Eq. Jur. § 255 et seq., and it is probable that any judge authorized would have grant- ed the injunction upon the text cited. But we affirm, after careful examination and full consideration, that Pomeroy is not sustained in his "conclusions" stated in section 269 of his most valuable treatise, and that tho cases he cited do not maintain the proposition that mere community of interest "in the ques- tions of law and fact involved in the general controversy, or in the kind and form of relief demanded and obtained by or against each individual member of the numerous body," is ground for the interposition of chancery to settle in one suit the several controversies. There is no such doctrine in the books, and the zeal of the learned and usually accurate writer mentioned to maintain a theory has betrayed him into error on this subject. It has so blinded him as to cause the confound- ing of distinct things in his view of the subject, to wit, joinder of parties and avoid- ance of multiplicity of suits. It has bten found that many of the cases he pressed into service to support his assertion are on the subject of joinder where confessedly there could be no doubt that the matter was of equity cognizance. Every case he cited to support his text will be found to be either where each party might have resorted to chancery, or been proceeded against in that forum, or to rest on some recognized ground of equitable interference other than to avoid multiplicity of suits. The eases estab- lish this proposition, viz.: Where each of several may proceed, or be proceeded against, in equity, their joinder as plaintiffs or de- fendants in one suit is not objectionable^ But this is a very different question from that, whether, merely because many actions - at law arise out of the same transaction or, occurrence, and depend on the same mat-' ters of fact and law, all may proceed or be proceeded against jointly in one suit in chancery; and it is believed that it has never been so held, and never will be, in cases like those here involved. Where each of several parties may proceed in equity separately, they are permitted to unite and make com- mon cause against a common adversary, and one may implead in one suit in equity many who are his adversaries in a matter common to all in many cases, but never when the only ground of relief sought is that the adversaries are numerous, and the suits are for that not in itself a matter for equity cognizance. Atten- tion to the distinction mentioned will resolve all difficulties in considering the many cases on this subject. There must be some recognizecT ground of equitable interference or some com- munity of interest in the subject-matter of the controversy, or common right or title in- volved, to warrant the joinder of all in one suit; or there must be some common pur- pose in pursuit of a common adversary, where each may resort to equity, in order to be joined in one suit; and it is not enough that there "is a community of interest mere- ly in the question of law or of fact involved,^- etc., as stated by Pomeroy in section 268. JTfT though he asserts that this early theory has long been abandoned, he fails utterly to prove it. An examination of the cases he cited under section 256 et seq. will show this to be true. The opinion of the justice (Harlan) in Osborne v. Railroad Co., 43 Fed. Rep. 824, does support the text of Pomeroy, and cites 1 PRINCIPLES DEFINING AND LIMITING JURISDICTION. 21 Pom. Eq. Jur. §§ 245, 255, 257 268, 293, and Crews v. Burcham, 1 Black, 352-357 We are content with what has already been said as to the text of Pomeroy, and affirm that not one of his citations sustains his con- clusion, and the language of Harlan, J., in the case cited. Nor does Crews v. Burch- am sustain the language of Justice Harlan. It belongs to the class of cases where each party might have brought his bill, and all who had a common cause were permitted to make common contest in chancery with their adversaries who were united by a common tie. The decision of the case in which Harlan, J., gave his support to the doctrine of Pome- roy is not complained of, but the opinion is not justified by any case with which we have been made acquainted. The case was one in which each might have brought his sepa- rate bill to quiet title, and all concerned were permitted to unite in one bill against their common adversary; and so, it is believed, will be found all the cases on this subject. Certainly, those relied on by Pomeroy are ol this character. Those cited in the note to sec- tion 269, in which he asserts most broadly the doctrine we combat, are Keese v. Citv of Denver, 10 Colo. 113, 15 Pac. Rep. 825; Carlton v. Newman, 77 Me. 408, 1 Atl. Rep. 194; De Forest v. Thompson, 40 Fed. Rep. 375; Osborne v. Railroad Co., 43 Fed. Bep. 824; Railroad Co. v. Gibson, 85 Ga. 1, 11 S. E. Rep. 442; Schuyler Fraud Case, 17 N.Y. 592; Sheffield Waterworks Case, L. B. 2 Oh. App. 8; and Caseof the Complicated Contract, Black v. Shreeve, 7 N. J. Eq. 440. The case in 43 Fed. Rep. 824, has already been noticed supra. The opinion in the case in 10 Colo., 15 Pac. Rep., quotes the language of Pom. Eq. Jur. § 269, but the case was one where one or more plaintiffs may sue in equity for the benefit of all others similarly situated. Carlton v. Newman, 77 Me. 408, i Atl. Rep. 194, affirms the jurisdiction of equity to en- join the collection of an illegal tax for the purpose of preventing the multiplicity of suits where the entire levy affecting all the taxpayers was illegal. It appears to be ex- ceptional, and to rest on peculiar grounds, not applicable to the case before us. The opinion cites Pom. Eq. Jur. § 269, but seems to rest on the proposition that the whole tax was illegal. The case in 40 Fed. Rep. 375, was that of a plaintiff exhibiting a bill to set aside a sale of land, and vacate deeds made in pursuance of it, against numerous parties, all of whom claimed by separate par- cels, but under the proceeding attacked as void. A bill might have been exhibited against each one separately, and it was held lo be proper to unite all in one suit. That was clearly right, but Jackson, J., in his opinion, concurred in by Harlan, J., cited Pom. Eq. Jur. §§ 245-269, inclusive, which we have shown to be unsupported by any case of authority. The case in 85 Ga., 11 S. E. Bep., is where a few persons, as rep- resentatives of a class consisting of many, exhibited a bill in behalf of all, and lends no countenance to the proposition for which it is cited. The cases in 17 N. Y. 592, L. R. 2 Ch. App. 8, and 7 N. J. Eq. 440, furnish no sort of support to the text of the author, and it is confidently claimed that every case that can be found, if entitled to any consideration, will be seen to be one resting on some other principle than that for which it has been cited in the connection now under review.' And while judges have in various instances cited, and sometimes quoted, Pomeroy, in the lan- guage above characterized as unsupported, in every instance, we think the case will be found not to call for it, but to be resolvable independ- ently of it upon other grounds of equitable in- terference; and in our opinion not one of the learned courts which have cited or quoted Pomeroy in the way mentioned would sus- tain this bill if it was before it for decision. There is danger that by frequent repetitions and piling up assertions, judges citing and quoting text books, and text writers citing the cases thus referring to them, a false doc- trine may acquire strength enough to dis- pute with the true; but we do not belie\e that any accumulation of dogmatic assertion and citations and quotations can ever estab- lish the proposition that a defendant sued for damages by a dozen different plaintiffs, who have no community of interest or tie or con- nection between them except that each suf- fered by the same act, may bring them all before a court of chancery in one suit, and deny them their right to prosecute their ac- tions separately at law as begun by them. It has never been done. There is no prece- dent for it, and, while this is not conclusive against it, it is significant and suggestive. If it is true, as stated by Pomeroy and some quoting him, that mere community of inter- est in matters of law and fact makes it ad- missible to bring all into one suit in chancery in order to avoid multiplicity of suits, al) sorts of cases must be subject to the princi- ple; any limitation would be purely arbitra- ry. It must be of universal application, and strange results might flow from its adoption. The wrecking of a railroad train might give rise to a hundred actions for damages insti- tuted in a dozen different counties, under our law as to venue of suits against railroad companies, in some of which executors or administrators or parents and children might sue for the death of a passenger, and in others claims would be for divers injuries. If Pom- eroy's test be maintained, all of these nu- merous plaintiffs, having a community of interest in the questions of fact and law, claiming because of the same occurrence, de- pending on the very same evidence, and seek- ing the same kind of relief, (damages,) could be brought before a chancery court in one suit to avoid multiplicity of suits. But we forbear. Surely the learned author would shrink from the contemplation of such a spectacle; but his doctrine leads to it, and makes it possible. The learned counsel for the appellee here felt the difficulty of the possible result of the doctrine contended for, 22 PRINCIPLES DEFINING AND LIMITING JURISDICTION. and sought to limit its application to contro- versies about property, excluding those for injuries to be redressed by the estimation of juries; but, as we have said, any such re- striction is arbitrary and inadmissible. If preventing multiplicity of suits is such a good thing as to justify bringing into one suit all who are interested in the same ques- tions of law and fact, it is needful that its benefits shall be extended to all cases where it can be applied, and not restricted in its beneficent operations. It should have full sway in all classes of cases. The sole object, we are told, of the doctrine, is to prevent multiplicity of suits by uniting all who have a common interest in the same questions in one suit, and it is quite as important to ef- fect this in one class of cases as another; and, as actions against railroad companies are quite numerous these days, it is of es- pecial concern to prevent multiplicity in this class of cases. Therefore, if the doctrine advanced were sound, it would have to be applied wherever the conditions prescribed ex- isted, — that is, wherever many are interested in the same questions of fact and law. That this is inadmissible must be apparent. The case of Supervisors v. Deyoe, 77 N. Y. 219, contains a good illustration of what we have said. In that case the suit against numer- ous parties was maintained because it com- bined elements of jurisdiction in each of the cases of interpleader, bill of peace, and can- cellation of written instruments. The re- covery of damages for a tort or breach of contract does not pertain to courts of chan- cery, which decree damages only in a very limited class of cases or under peculiar cir- cumstances or as an incident to some other re- lief. 1 Pom. Eq. Jur. § 112; 2 Story, Eq. Jur. § 799. Even this learned author, (Pomeroy,) does not say that the existence of numerous suits for damages by a tort or breach of con- tract, where each case depends on the same questions of fact and law, may be drawn into chancery in one suit, and no case has been found to warrant it. Every case cited by Pomeroy and by the learned and diligent counsel in this case has been examined, and may be disposed of on some other principle acted on by courts of chancery than that con- tended for, and necessary to sustain the bill in this case. Every case is resolvable on some well-recognized principle of equity pro- cedure, and not one sustains the bill. The cases repudiating the doctrine contended for are numerous. We do not cite them, for it is unnecessary, in view of the fact that not a ?a^e has been found in England or America to sustain this bill. No question as to mis- take of jurisdiction between courts of law and chancery, within the contemplation of section 147 of our constitution, arises in this case; for if we had only one forum, armed with full power to administer all remedial justice, join- der of all these parties in one action would not be admissible. Bliss, Code PI. This au- thor says, (section 76:) "Two or more owners of mills propelled by water are interested in preventing an obstruction above that shall interfere with the down flow of the water, and may unite to restrain or fijjfltg '*■ gg g nuisance; but they cannot henceunite in an actron TTor damages, for, as to the injury "Uuffyi'tlU" there is no community of inter- est. There is no more a common interest than though a carrier had at one time care- lessly destroyed property belonging to differ- ent persons, or the lives of different passen- gers," — thus putting the very case we have. The supreme court of California has cited with approval this very section. We thus confront Pomeroy with an equally intelligent author, and a decision by the supreme court of his own state, at war with his views on this subject, if, indeed, it is true that he would uphold this bill, which we do not be- lieve. We have written so much to combat error supported by a distinguished author, and which has had a misleading influence which should be counteracted before further injury results from it, as far as in our power to do it. Reversed, and injunction dis- solved. PRINCIPLES DEFINING AND LIMITING JURISDICTION. 23 WARREN MILLS v. NEW ORLEANS SEED CO. (4 South. 298, 65 Miss. 391.) Supreme Court of Mississippi. April 23, 18S8. Appeal from chancery court, Warren coun- ty; Warren Cowan, Chancellor. The appellee, the New Orleans Seed Com- pany, conducts its business in New Orleans. It buys many thousand sacks of cotton-seed; owns many thousands of sacks, which it distributes throughout the country for the purpose of buying and having them filled with cotton-seed, to be shipped to the com- pany in New Orleans. These sacks are plain- ly marked with its name. The Warren Mills owns a much less number of sacks, which it j distributes; and the agents of the Warren j Mills use the sacks of the appellee, which ! are plainly branded with its name, for the purpose of shipping cotton-seed to the War- ren Mills; and do this by having a large number of appellee's sacks, together with a few of its own sacks on top and at bottom, to make it appear that all the sacks are its own. Thus the Warren Mills, an opposition company, used sacks owned by the New Or- leans Seed Company, against the frequent ob- jections of said seed company. The New Or- leans Seed Company filed a bill in the chan- cery court setting up the above facts, and praying for an injunction against the use of its sacks by the Warren Mills. The War- ren Mills demurred to this bill. The demur- rer was overruled, and injunction continued, from which the Warren Mills appealed. Lea & McKee, for appellant. Miller, Smith & Hirsh, for appellee. ARNOLD, J. The demurrer was properly overruled. The allegations in the bill, of re- peated, willful, and continuous wrongs com- mitted and threatened by appellants, war- ranted the issuance of the injunction. The jurisdiction of equity in such case cannot be doubted. It is said that the prevention of vexatious litigation, and of a multiplicity of suits, constitutes a favorite ground for the exercise of the jurisdiction of equity; and it may be laid down as a general rule that wherever the rights of a party aggrieved cannot be protected or enforced in the ordi- nary course of proceedings at law, except by numerous and expensive suits, equity may properly interpose, and afford relief by in- junction. 1 High, Inj. § 12; 1 Pom. Eq. Jur. § 245. Where trespass to property is a sin- gle act, and is temporary in its nature and effects, so that the legal remedy of an action at law for damages is adequate, equity will not interfere; but if the trespass is continu- ous in its nature, and repeated acts of tres- pass are done or threatened, although each of such acts, taken by itself, may not be de- structive, or inflict irreparable injury, and the legal remedy may therefore be adequate for each single act if it stood alone, the en- tire wrong may be prevented or stopped by injunction. 1 Pom. Eq. Jur. § 245; 3 Pom. Eq. Jur. § 1357. The separate remedy at law for each of such trespasses would not be adequate to relieve the injured party from the expense, vexation, and oppression of numerous suits against the same wrong- doer in regard to the same subject-matter. The ends of justice require, in such case, that the whole wrong shall be arrested and concluded by a single proceeding. And such relief equity affords, and thereby fulfills its appropriate mission of supplying the defi- ciencies of legal remedies. Affirmed and remanded, with leave to ap- pellants to answer within 30 days after the mandate of this court herein is filed in the court below. 24 THE MAXIMS OF EQUITY. REES t. CITY OF WATERTOWN. (19 Wall. 107.) Supreme Court of the United States. 1873. Mr. Justice HUNT delivered the opinion of the court. This case is free from the objections usual- ly made to a recovery upon municipal bonds. It is beyond doubt that the bonds were issued by the authority of an act of the legis- lature of the State of Wisconsin, and in the manner prescribed by the statute. It is not denied that the railroad, in aid of the con- struction of which they were issued, has been built, and was put in operation. Upon a class of the defences interposed in the answer and in the argument it is not necessary to spend much time. The theories upon which they proceed are vicious. They are based upon the idea that a refusal to pay an honest debt is justifiable because it would distress the debtor to pay it. A vol- untary refusal to pay an honest debt is a high offence in a commercial commu- nity and is just cause of war between na- tions. So far as the defence rests upon these principles we find no difficulty in overrul- ing it. There is, however, a grave question of the power of the court to grant the relief asked for. We are of the opinion that this court has not the power to direct a tax to be levied for the payment of these judgments. This i power to impose burdens and raise money is the highest attribute of sovereignty, and is exercised, fust, to raise money for public j purposes only; and, second, by the power of legislative authority only. It is a power that has not been extended to the judiciary. ' Especially is it beyond the power of the Fed- eral judiciary to assume the place of a State in the exercise of this authority at once so delicate and so important. The question is not entirely new in this court. In the case of Supervisors v. Rogers,* an order was made by this court appointing the marshal a commissioner, with power to levy a tax upon the taxable property of the county, to pay the principal and interest of certain bonds issued by the county, the pay- ment of which had been refused. That case was like the present, except that it occurred in the State of Iowa, and the proceeding was taken by the express authority of a statute of that State. The court say: "The next question is as to the appointment of the marshal as a commissioner to levy the tax in satisfaction of the judgment. This de- pends upon a provision of the code of the State of Iowa. This proceeding is found in a chapter regulating proceedings in the writ of mandamus, and the power is given to the court to appoint a person to discharge the duty enjoined by the peremptory writ which the defendant had refused to perform, and for which refusal he was liable to an at- *7 Wallace, 175. tachment, and is express and unqualified. The duty of levying the tax upon the tax- able property of the county to pay the princi- pal and interest of these bonds was specially enjoined npon the board of supervisors by the act of the legislature that authorized their issue, and the appointment of the mar- shal as a commissioner in pursuance of the above section is to provide for the perform- ance of this duty where the board has dis- obeyed or evaded the law of the State and the peremptory mandate of the court." The State of Wisconsin, of which the city of Watertown is a municipal corporation, has passed no such act. The case of Supervisors v. Rogers is, therefore, of no authority in the case before us. The appropriate remedy of the plaintiff was and is a writ of man- damus. f This. may be repeated as often as the occasion requires. It is a judicial writ, a part of a recognized course of legal pro- ceedings. In the present case it has been thus far unavailing, and the prosppct of its future success is, perhaps, not flattering. However this may be, we are aware of no authority in this court to appoint its own officer to execute the duty thus neglected by the city in a case like the present. In Welch v. St. Genevieve* at a Circuit Court for the district of Missouri, a tax was ordered to be levied by the marshal under similar circumstances. We are not able to recognize the authority of the case. No counsel ap- peared for the city (Mr. Reynolds as amicus curios only); no authorities are cited which sustain the position taken by the court; the power of the court to make the order is disposed of in a single paragraph, and the execution of the order suspended for three months to give the corporation an oppor- tunity to select officers and itself to levy and collect the tax, with the reservation of a longer suspension if it should appear advis- able. The judge, in delivering the opinion of the court, states that the case is without precedent, and cites in support of its de- cision no other cases than that of Riggs v. Johnson County,** and Lansing v Treas- urer. \ The first case cited does not touch the present point. The question in that case was whether a mandamus having been issued by a United States court in the regu- lar course of proceedings, its operation could be stayed by an injunction from the State court, and it was held that it could not be. It is probable that the case of Supervisors v. Ro(/ers§ was the one intended to be cited. This case has already been considered. The case of Lansing v. Treasurer (also cited), arose within the State of Iowa. It fell within the case of Supervisors v. Rogers, tRiggs II. Johnson County, 6 Wallace, 193. *10 Am. Law Reg. (N. 8.) 512, Fed. Cas. No. 17 . 873. ** 6 Wallace, 166. J9 Am. Law Reg. (N. S.) 415, Fed. Cas. No. 16 58S §7 Wallace, 175. THE MAXIMS OF EQUIT: 25 and was rightly decided because authorized by the express statute of the State of Iowa. It offered no precedent for the decision of a case arising in a State where such a statute does not exist. These are the only authorities upon the power of this court to direct the levy of a tax under the circumstances existing in this case to which our attention has been called. The plaintiff insists that the court may accomplish the same result under a differ- ent name, that it has jurisdiction of the per- sons and of the property, and may subject the property of the citizens to the payment of the plaintiff's debt without the intervention of State taxing officers, and without regard to tax laws. His theory is that the court should make a decree subjecting the indi- vidual property of the citizens of Watertown to the payment of the plaintiff's judgment; direct the marshal to make a list thereof from the assessment rolls or from such other sources of information as he may obtain; re- port the same to the court, where any objec- tions should be heard; that the amount of the debt should be apportioned upon the sev- eral pieces of property owned by individual citizens; that the marshal should be directed to collect such apportioned amount from such persons, or in default thereof to sell the property. As a part of this theory, the plaintiff argues that the court has authority to direct the amount of the judgment to be wholly made from the property belonging to any in- habitant of the city, leaving the citizens to settle the equities between themselves. This theory has many difficulties to en- counter. In seeking to obtain for the plain- tiff his just rights we must be careful not to invade the rights of others. If an inhab- itant of the city of Watertown should own a block of buildings of the value of $20,- 000, upon no principle of law could the whole of the plaintiff's debt be collected from that property. Upon the assumption that individual property is liable for the pay- ment of the corporate debts of the munici- pality, it is only so liable for its proportion ate amount. The inhabitants are not joint und several debtors with the corporation, nor does their property stand in that relation to the corporation or to the creditor. This ia not the theory of law, even in regard to tax- ation. The block of buildings we have sup- posed is liable to taxation only upon its value in proportion to the value of the entire property, to be ascertained by assessment, and when the proportion is ascertained and paid, it is no longer or further liable. It is discharged. The residue of the tax is to be obtained from other sources. There may be repeated taxes and assessments to make up delinquencies, but the principle and the general rule of law are as we have stated. In relation to the corporation before us, this objection to the liability of individual property for the payment of a corporate debt is presented in a specific form. It is of a statutory character. The remedies for the collection of a debt are essential parts of the contract of indebt- edness, and those in existence at the time it is incurred must be substantially pre- served to the creditor. Thus a statute pro- hibiting the exercise of its taxing power by the city to raise money for the payment of these bonds would be void.* But it is otherwise of statutes which are in existence at the time the debt is contracted. Of these the creditor must take notice, and if all the remedies are preserved to him which were in existence when his debt was con- tracted he has no cause of complaint. f By section nine of the defendant's charter it is enacted as follows: "Nor shall any real or personal property of any inhabitant of said city, or any individual or corporation, be levied upon or sold by virtue of any exe- cution issued to satisfy or collect any debt, obligation, or contract of said city." If the power of taxation is conceded not to be applicable, and the power of the court is invoked to collect the money as upon an execution to satisfy a contract or obligation of the city, this section is directly applicable and forbids the proceeding. The process or order asked for is in the nature of an execu- tion; the property proposed to be sold is that of an inhabitant of the city; the purpose to which it is to be applied is the satisfaction of a debt of the city. The proposed remedy is in direct violation of a statute in existence when the debt was incurred, and made known to the creditor with the same solemnity as the statute which gave power to contract the debt. All laws in existence when the contiact is made are necessarily referred to in it and form a part of the measure of the obligation of the one party, and of the right acquired by the other.J But independently of this statute, upon the general principles of law and of equity jurisprudence, we are of opinion that we can- not grant the relief asked for. The plaintiff invokes the aid of the principle that all legal remedies having failed, the court of chancery must give him a remedy; that there is a wrong which cannot be righted elsewhere, and hence the right must be sustained in chancery. The difficulty arises from too broad an application of a general principle. The great advantage possessed by the court of chancery is not so much in its enlarged jurisdiction as in the extent and adaptabil- ity of its remedial powers. Generally its jurisdiction is as well defined and limited as is that of a court of law. It cannot exercise jurisdiction when there is an adequate and complete remedy at law. It cannot assume control over that large class of obligations called imperfect obligations, resting upon •Van Hoffman v. City of Quincy, i Wallace, 535. tCooley, Constitutional Limitations, 235, 287. JCooley, Constitutional Limitations, 285. 20 THE MAXIMS OF EQUITY. conscience and moral duty only, unconnected with legal obligations. Judge Story says.f "There are cases of fraud, of accident, and of trust which neither courts of law nor of equity presume to relieve or to mitigate," of which he cites many instances. Lord Tal- bot says:J "There are cases, indeed, in which a court of equity gives remedy where the law gives none, but where a particular remedy is given by law, and that remedy bounded and circumscribed by particular rules, it would be very improper for this court to take it up where the law leaves it, and extend it further than the law allows." Generally its jurisdiction depends upon legal obligations, and its decrees can only en- force remedies to the extent and in the mode by law established. With the subjects of fraud, trust, or accident, when properly be- fore it, it can deal more completely than can a court of law. These subjects, however, may arise in courts of law, and there be well disposed of.* A court of equity cannot, by avowing that there is a right but no remedy known to the law, create a remedy in violation of law, or even without the authority of law. It acts upon established principles not only, but through established channels. Thus, as- sume that the plaintiff is entitled to the pay- ment of his judgment, and that the defend- ant neglects its duty in refusing to raise the amount by taxation, it does not follow that this court may order the amount to be made from the private estate of one of its citizens. This summary proceeding would involve a violation of the rights of the latter. He has never been heard in court. He has had no opportunity to establish a defence to the debt itself, or if the judgment is valid, to show that his property is not liable to its payment. It is well settled that legislative exemptions from taxation are valid, that such exemptions may be perpetual in their duration, and that they are in some cases be- yond legislative interference. The proceed- ing supposed would violate that funda- mental principle contained in chapter twen- ty-ninth of Magna Cbarta, and embodied in the Constitution of the United States, that no man shall be deprived of his property without due process of law — that is, he must be served with notice of the proceeding, and have a day in court to make his defence.** "Due process of law (it is said) undoubt- edly means in the due course of legal pro- ceedings, according to those rules and forms which have been established for the protec- tion of private rights. "|| In the New Eng- land States it is held that a judgment ob- tained against a town may be levied upon and made out of the property of any inhab- itant of the town. The suit in those Kates is brought in form against the inhabitants tl Equity Jurisprudence, § 61. JHeard v. Stanford, Cases Tempore Talbot, 174. *1 Story's Equity Jurisprudence, § 60. ** Westervelt v. Gregg, 12 New York, 209. lib. of the town, naming it; the individual inhab- itants, it is said, may and do appear and de- fend the suit, and hence it is held that the individual inhabitants have their day in court, are each bound by the judgment, and that it may be collected from the property of any one of them.* This is local law pe- culiar to New England. It is not the law of this country generally, or of England. || It has never been held to be the law in New York, in New Jersey, in Pennsylvania, nor, as stated by Mr. Cooley, in any of the Wes ' • ern States. "jf So far as it rests upon the rula that these municipalities have no common fund, and that no other mode exists by which demands against them can be enforced, he says that it cannot be considered as ap- plicable to those States where provision is- made for compulsory taxation to satisfy judgments against a town or city.g The general principle of law to which we have adverted is not disturbed by these references. It is applicable to the case be- fore us. Whether, in fact, the individual has a defence to the debt, or by way of ex- emption, or is withmrt defence, is not im- portant. To assume that he has none, and therefore, that he is entitled to no day in. court, is to assume against him the very point he may wish to contest. Again, in the case of Emeric v. Oilman, before cited, it is said: "The inhabitants of a county are constantly changing; those who- contributed to the debt maybe non-residents upon the recovery of the judgment or the levy of the execution. Those who opposed the creation of the liability may be sub- jected to its payment, while those, by whose fault the burden has been imposed, may be entirely relieved of responsibility. . . . To enforce this right against the inhabitants of a county would lead to such a multiplicity of suits as to render the right valueless." We do not perceive, if the doctrine con- tended for is correct, why the money misrht not be entirely made from property owned by the creditor himself, if he should happen to- own property within the limits of the cor- poration, of sufficient value for that pur- pose. The difficulty and the embarrassment aris- ing from an apportionment or contribution among those bound to make the payment we do not regard as a serious objection. Con- tribution and apportionment are recognized heads of equity jurisdiction, and if it be as- sumed that process could issue directly against the citizens to collect the debt of the city, a court of equity could make the appor- tionment more conveniently than could a. court of law.f *See the cases collected in Cooley's Constitu tional Limitations, 240-245. | Russell v. Men of Devon, 2 Term R. 667. I See Emeric v. Oilman, 10 California, 408, whera all the cases are collected. JCooley's Constitutional Limitations, 246. I I Story's Equity Jurisprudence, § 47U and on- wards. THE MAXIMS OP EQUITY. 27 We apprehend, also, that there is some confusion in the plaintiff's proposition, upon which the present jurisdiction is claimed. It is conceded, and the authori- ties are too abundant to admit a question, that there is no chancery jurisdiction where there is an adequate remedy at law. The writ of mandamus is, no doubt, the regular remedy in a case like the present, and or- dinarily it is adequate and its results are satisfactory. The plaintiff alleges, however, in the present case, that he has issued such a writ on three different occasions; that, by means of the aid afforded by the legisla- ture and by the devices and contrivances set forth in the bill, the writs have been fruit- less; that, in fact, they afford him no remedy. The remedy is in law and in theory ade- quate and perfect. The difficulty is in its execution only. The want of a remedy and the inability to obtain the fruits of a remedy are quite distinct, and yet they are con- founded in the present proceeding. To il- lustrate: the writ of habere facias posses- sionem is the established remedy to obtain the iruits of a judgment for the plaintiff in ejectment. It is a full, adequate, and com- plete remedy. Not many years since there existed in Central New York combinations of settlers and tenants disguised as Indians, and calling themselves such, who resisted the execution of this process in their counties, and so effectually that for some years no landlord could gain possession of his land. There was a perfect remedy at law, but through fraud, violence, or crime its execu- tion was prevented. It will hardly be argued that this state of things gave authority to in- voke the extraordinary aid of a court of chancery. ' The enforcement of the legal remedies was temporarily suspended by means of illegal violence, but the remedies remained as before. It was the case of a miniature revolution. The courts of law lost no power, the court of chancery gained none. The present case stands upon the same principle. The legal remedy is ade- quate and complete, and time and the law must perfect its execution. Entertaining the opinion that the plaintiff has been unreasonably obstructed in the pur- suit of his legal remedies, we should be quite willing to give him the aid requested if the law permitted it. We cannot, however, find authority for so doing, and we acquiesce in the conclusion of the court below that the bill must be dismissed. Judgment affirmed. 2a THE MAXIMS OF EQUITY. STINCHFIELD v. MILLIKEN. (71 Me. 567.) Supreme Judicial Court of Maine. December, 1880. PETERS, J. The following facts are de- ducible from the evidence in this case: The complainant purchased of the defendants, certain steam-mill machinery, for removal from Hallovvell to Danforth, in this State. There was at the time a verbal agreement, that the complainant should build a mill, and put the machinery into it, on a lot of land in Danforth, bought by him of one Russell, who was to deed the lot directly to the defendants. The complainant was also to procure a deed of his home (another) lot to the defendants from the heirs of H. E. Prentiss, who held an absolute title thereof as security for the complainant's indebtedness to them, there being a small balance only unpaid, which the defendants were to pay for him. The de- fendants were to give an agreement, to con- vey to the complainant if he paid his indebt- edness to them according to the tenor of cer- tain notes to be given. On June 15, 1875, the complainant gave to the defendants a mortgage on the machinery as personal property to secure the notes here- after named, in order to protect a lien there- on until the machinery should be put into the mill to be built, and become a part of the real estate. And there was embodied in this mortgage, an agreement of the complainant to build the mill and put the machinery into it. On June 16, 1875, Russell conveyed the mill lot to the defendants. On August 2, 1875, Prentiss conveyed the home lot to them, they paying the balance of the Prentiss claim. On August 4, 1875, the defendants gave a writing to the complainant, agreeing to con- vey the property to him upon the condition that he would pay to them his notes on one, two, three, and five years, respectively, with interest. The notes were given for the amount payable for the machinery, the sum paid to Prentiss, and for other loans and ad- vances. The complainant went on and erected and completed a mill on the Russell lot, and the steam-mill machinery became a part of it. The complainant seeks to redeem the prop- erty, claiming the transaction to be a mort- gage. The defendants contend that the transaction was not a mortgage, that it was a conditional sale. It was not a legal mortgage: Because the defeasance has no seal. Warren v. Lovis, 53 Maine, 463. And because the papers were not between the same parties. At law, the conveyance must be made by the mort- gager and the defeasance by the mortgagee. Shaw v. Erskine, 43 Maine, 371. But the transaction was in equity a mort- gage — an equitable mortgage. The criterion is the intention of the parties. In equity, this intention may be ascertained from all pertinent facts either within or without the written parts of the transaction. Where the intention is clear that an absolute convey- ance is taken as a security for a debt, it is in equity a mortgage. No" matter how much the real transaction may be covered up and disguised. The real intention governs. "If a transaction resolve itself into a securi- ty, whatever may be its form, and whatever name the parties may choose to give it, it is in equity a mortgage." Flagg v. Mann, 2 Sumn. 533, Fed. Cas. No. 4,847. The existence of a debt is well nigh an in- fallible evidence of the intention. The in- tention here is transparent. The defendants have a debt and held the property as a se- curity for its collection. A legal mortgage i was avoided; an equitable mortgage was made. Although different at law, in equity a mortgage is not prevented because the con- , veyance does not come from the equitable mortgager. It is sufficient that the debtor has an interest in the property conveyed, either legal or equitable. Having such an interest, if he procures a conveyance to one who advances money upon it for him, taking the property as security for the money ad- vanced, he has a right to redeem. The grantee in such case, acquiring the title by his act, holds it as his mortgagee. Jones on Mort. 2d ed. § 331. Stoddard v. Whiting, 46 N. Y. 627 ; Carr v. Carr, 52 N. Y. 251. It is denied that this court has the power to declare that an absolute deed shall be deemed to be a mortgage, allowing an equi- table mortgager the right to redeem. At law, it has no sucli power. Nor, when the court had a limited jurisdiction in equity, was the doctrine admitted. It was always under- stood, however, that, in a case like the pres- ent, if, instead of a demurrer, an answer was filed admitting the facts alleged, the court had the power to apply the remedy. Thomaston Bank v. Stimpson, 21 Maine, 195; Whitney v. Bachelder, 32 Maine, 313; Howe v. Russell, 36 Maine, 115; Richardson v. Woodbury, 43 Maine, 206. But since the act of 1874 conferred general chancery pow- ers upon the court, it has full and complete jurisdiction in such cases. Rowelly.Jewett, 69 Maine, 293-303; Jones, Mort. (2d ed.) § 282. Courts of equity generally exercise such power. While the grounds upon which the doctrine is admitted vary with different courts, there is a great concurrence of opin- ion as far as the result is concerned. In our judgment, it is a sound policy as well as principle to declare that, to take an absolute conveyance as a mortgage without any de- feasance, is in equity a fraud. Experience shows that endless frauds and oppressions would be perpetrated under such modes, if equity could not grant relief. It is taking an agreement, in one sense, exceeding and differing from the true agreement. Instead of setting it wholly aside, equity is worked out by adapting it to the purpose originally intended. Eauity allows reparation to be THE MAXIMS OF EQUITY. 29 made by admitting a verbal defeasance to be proved. The cases which support this view are too numerous to cite. The American cases are collected in Jones, Mort. 2d ed. § 241, et seq. See Campbell v. Dearborn, 109 Mass. 130; and Hassam v. Barrett, 115 Mass. 256. The complainant seeks to separate the arti- cles originally mortgaged as personal prop- erty, and, being allowed the value of them, redeem the balance of the estate only. That would not be equitable. The personal be- came a part of the real as originally designed to be. It was affixed and solidly bolted there- to. The mortgage was evidently only to serve a temporary purpose. It was not just to either party that there should be two mort- gages instead of one. It is urged that the defendants foreclosed the personal mortgage. It could not be done. The personal mort- gage was extinguished when attempted to be done. That was but a ruse to get the pos- session which the defendants were entitled to. No severance was ever made or attempt- ed to be made. It is intimated that the mill has burned down, pendente lite, under an insurance ob- tained by the defendants, and a question may arise, before the master, whether the complainant should have a credit of the net proceeds. If the insurance was obtained on the mortgagees' own account only, they should not be allowed. Gushing v. Thomp- son, 34 Maine, 496; Pierce v. Faunce, 53 Maine, 351. The head note in Larrabee v. Lumbert, 32 Maine, 97, is erroneous in that respect. It was allowed in that case by con- sent. Insurance Co. v. Woodbury, 45 Maine, 447. But where a mortgagee insures the prop- erty by the authority of the mortgager, and charges him with the expense, then any in- surance recovered should be accounted for. And if a mortgager covenants to insure, and fails to do so, the mortgagee can himself in- sure at the mortgager's expense. One of the defendants testifies that "Stinch- field agreed to pay all taxes and Insurance." He also says, " We have had the house, stable and mill insured, and have paid the insurance, $108." We think this is evi- dence of an insurance obtained by the mort- gagees at the expense of the mortgager on account of his failure to keep his verbal cov- enant to insure, and renders it proper that the net proceeds of any insurance obtained should be allowed in the settlement between them. But this cannot be, if the insurance was collected under a policy in which it is agreed between the insured and insurer that the company in case of loss should be subrogated to the right of the mortgagee. For in such case the insurance is not in fact on the mort- gager's account, nor is it such an insurance as could be made available to him. Jones, Mort. (2d ed.) § 420, and cases in note. The complainant may redeem the whole property upon payment of whatever may be due upon the whole debt. Inasmuch as the complainant sets up a claim exceeding the equitable right, neither party to recover costs up to the entry of this order; and whether future costs shall be recovered by either side, to be reserved for decision when the proceed- ings are to be finally terminated. Another reason why complainant should not recover costs is, that when his bill was commenced the mortgage debt was not due. The mort- gage could not be redeemed until 1880. The bill was commenced long before that time. But as the mortgage is now due, and no point is taken that the proceeding was pre- mature, it will probably be lor the interest of all the parties that their matters may be adjusted under this bill. For which purpose a master must be appointed, unless the par- ties can best determine the accounts between themselves. Decree accordingly. APPLETON, C. J., WALTON, DAN- PORTH, V1KGIN, and LIBBEY, JJ., con- curred. so THE MAXIMS OP EQUITY. AMES v. RICHARDSON. (13 N. W. Rep. 137, 29 Minn. 330.) Supreme Court of Minnesota. July 25, 1882. Plaintiffs brought this action, in the district court for Hennepin county, against the West- ern Manufacturers' Mutual Insurance Com- pany, to recover the amount due on a policy of insurance for $2,000, issued to one Robert Cochran, on a mill and machinery in this state. The mill was destroyed by fire, and the loss under this policy was adjusted at $1,317.70 on July 19, 1880. On the same day Cochran assigned all his rights under the policy to plaintiffs. Ruth C. Richardson, who had a mortgage upon the mill property, claiming to be entitled to this sum, was sub- stituted as defendant in place of the insur- ance company. The action was submitted 'to the court, Toting, J., presiding, upon the complaint and answer, the allegations of which were ad- mitted to be true, and the material portions of which are stated in the opinion. The court found for the plaintiffs, and ordered judgment accordingly. Defendant appeals from an order refusing a new trial. BERRY, J. On December 16, 1879, Coch- ran, being owner of a piece of land in this state, insured a mill, machinery and fixtures therein against damage by fire, in the West- ern Manufacturers' Mutual Insurance Com- pany, for $2,000. December 18, 1879, he borrowed of defendant $5,200, for which he gave his promissory note on five years, se- cured by a mortgage of the land mentioned, which was duly recorded December 22d. By the •terms of the mortgage Cochran cove- nanted with Richardson that at all times dur- ing its continuance he would keep the build- ings on the premises "unceasingly insured" for at least $5,200, payable in case of loss to Richardson, to the amount then secured by the mortgage. December 28, 1879, Coch- ran insured the mill, machinery, and fixtures for $1,500 in one company, and for $2,000 in another, and, by indorsement upon each of the two policies issued to him, the loss was made payable to Richardson, as her in- terest might appear. On July 9, 1880, while the three insurances were in force, the in- sured property was totally destroyed by fire' Before this Richardson had no knowledge of the first insurance. The loss was adjusted by Cochran and the three insurance com- panies at $4,298.03, as the true value of the property destroyed. The result was that the losses payable to Richardson were scaled from $3,500 (the face of the last two policies) to $2,442.20, and this sum was paid to her and applied on the note. The loss under the first insurance was scaled and adjusted at $1,317.- 70, and that sum agreed to be paid Cochran accordingly. This was done July 19, 1880, and on the same day the certificate which had been issued to Cochran by the Western Manufacturers' Mutual Insurance Comuanv, in lieu of a policy, was for a valuable con- sideration duly assigned to the plaintiffs. They brought this action against the insur- ance company to recover the amount of the loss as adjusted.at $1,317.70. Nothing hav- ing been paid upon Richardson's note and mortgage other than the sum of $2,442.20 before mentioned, and the whole debt hav- ing been declared due under a provision in the mortgage, there remains due and un- paid thereon something over $3,000. Rich- ardson laying claim to the money ($1,317.70) realized from the first insurance, the com- pany paid it into court, and Richardson was substituted as defendant in the company's place. The question is, who is entitled to this money — plaintiffs or Richardson? It is well settled that, in the absence of an agreement by a mortgagor to insure for the benefit of his mortgagee, the latter has no right to any advantage whatever from an insurance upon the mortgaged property ef- fected by the former for his own benefit. 1 Jones, Mortg. § 401; Nichols v. Baxter, 5 R. I. 491; Plimpton v. Ins. Co., 43 Vt. 497; May, Ins. §§ 449, 456; Carter v. Rookett, etc., Ins. Co., 8' Paige, 437. It is equally well settled that an agreement by the mortgagor to insure for the benefit of his mortgagee gives the latter an equitable lien upon the proceeds of a policy taken out by the former and embraced in the agree- ment. And when the agreement is that the mortgagor shall procure insurance upon the mortgaged property, payable in case of loss to the mortgagee, and the mortgagor, or some one for him, procures insurance in the mort- gagor's or a third person's name, without making it payable to the mortgagee, though this be done without the mortgagee's knowl- edge, or without any intent to perform the agreement, equity will treat the insurance as effected under the agreement, (unless this has been fulfilled in some other way,) and will give the mortgagee his equitable lien ac- cordingly. This is upon the principle by which equity treats that as done which ought to have been done. Thatis to say, inasmuch as the insurance effected ought to have been made payable to the mortgagee, equity will give the mortgagee the same benefit from it as if it had been. In support of these gen- eral propositions we refer to Thomas v. Vonkapff, 6 Gill & J. 372; Carter v. Rock- ett, etc., Ins. Co., and Nichols v. Baxter, su- pra; Wheeler v. Ins. Co., 101 U. S. 439; Cromwell v. Brooklyn Fire Ins. Co., 44 K Y. 42; Miller v. 'Aldrich, 31 Mich. 408; 1 Story, Eq. Jur. § 64 Kib- bee, of the Oconee circuit, was designated to preside in his stead. THE MAXIMS OF EQUITY. 33 mere payment of money, which the court has jurisdiction to adjudge he shall do, if he disobeys, the authority of the court is defied; he is guilty of contempt, and the arrest and imprisonment of his person is not imprison- ment for debt in any appropriate sense of the term. But if a court of equity should render a simple decree for money on a simple money verdict,— a decree which it may now enforce by the ordinary common- law process against property,— the failure to pay the decree would not be contempt, nor could compulsory process against the per- son of the party in default be resorted to to enforce payment In Coughlin v. Ehlert, 39 JIo. 285, the court uses the following lan- guage: "We do not mean to say that a party may not be put in contempt for dis- obeying a decree for the performance of acts which are within his power, and which the court may properly order to be done. If it were shown, for instance, that the party had in his possession a certain specific sum of money or other thing which he refused to deliver up, under the order of the court, for any purpose, it may very well be that his disobedience would be a contempt for which he might lawfully be imprisoned." In Carlton v. Carlton, 44 Ga. 220, Judge Mc- C'ay, delivering the opinion, says: "We do not intend to say that simply because a debt is adjudged by a decree in chancery, in- stead of by a judgment at law, it may there- fore be enforced by imprisonment. The im- prisonment must be clearly for the contempt of the process of the court, and be of one who is able and unwilling to obey the order of the court. * * * It ought never to be resorted to except as a penal process, found- ed on the unwillingness of the party to obey. fet.eq ,tur. — 3 The moment it appears that there is inabil- ity, it would clearly be the duty of the judge to discharge the party," etc. The court fur- ther held that, "ordinarily, it would be im- proper to include in the order the alternative order for imprisonment on failure, since it is not to be presumed that a contempt will en- sue." The constitutional provision, "there shall be no imprisonment for debt," was not intended to interfere with the traditional power of chancery courts to punish for con- tempt all refusals to obey their lawful de- crees and orders. This proposition may be conceded to be sound without affecting the case at bar in any respect. "The power in question was never exercised by chancery courts except in those cases where a trust in the property or fund arose between the par- ties litigant, or some specific interest in it was claimed, or the chattel had some pe- culiar value and importance that a recovery of damages at law for its detention or con- version was inadequate. Such interference was in the nature of a bill quia timet, and was asserted only on a proper showing that the fund or property was in danger of loss or destruction." 1 Story, Eq. Jur. §§ 708- 710. "No jurisdiction to compel the pay- ment of an ordinary money demand uncon- nected with such peculiar equities ever ex- isted in chancery courts, nor had they the- power to compel such payment by punishing the refusal to pay under the guise of con- tempt." In the case at bar the decree was right in awarding an execution against the executor as set forth in said decree, but the facts did not authorize an alternative order imprison- ing the defendant on failure to pay. Judg- ment reversed. 34 THE MAXIMS OF EQUITY. CITY OF ST. LOTOS v. O'NEIL, LUMBER CO. et al. (21 S. W. 484, 114 Mo. 74.) Supreme Court of Missouri, Division No. 1. Feb. 6, 1893. Appeal from St. Louis circuit court; Jacob Klein, Judge. Petition by the city of St. Louis that certain creditors of James McLane, a con- tractor, be compelled to interplead for the purpose of determining their rights in a fund owing by the city to the contractor. From a judgment of the circuit court giv- ing preference to the O'Neil Lumber Com- pany, James M. Doyle and others ap- pealed. The court of appeals affirmed the judgment, and the case was then certified to the supreme court. Reversed. J. H. Trembly and Rassieur & Schnur- macher, for respondent. BRACE, J. This case is certified here from the St. Louis court of appeals, under section 6 of the amendment of the consti- tution adopted in 1884. The statement of the case, made by Judge Biggs of that court, is as follows: "On the 17th day of July, 1888, the mu- nicipal assembly of the city of St, Louis passed an ordinance anthorizingtbe board of public improvements to contract for certain alterations and repairs at the House of Refuge. Section 2 of the ordi- nance is as follows: 'Thecostof the above work shall be paid by the city of St. Louis, and the sum of forty-five hundred dollars is hereby appropriated out of funds set •apart for improvements, alterations, and ■repairs of the House of Refuge.' The work was let to one James McLane, under three separate contracts. Contract No. 2,071 provided for the erection of two new privy buildings at a cost of twenty-eight hun- dred dollars. By contract numbered 2,0h3 McLane agreed to make certain altera- tions in the basement and in the dormi- tory of the old building, for the sum of eight hundred and fifty dollars. The third contract, numbered 2,076, provided for furnishing lumber and laying the floor in the shoe shop of the House of Refuge. The foregoing contracts were signed bi' Mc- Lane as principal and the interpleaders Thomas C. Higgins and John M. Sellers as his sureties. Among other things, the con- tracts provided that 'in case the con tractor shall abandon the work * * * the com- missioner of public buildings shall have power, under the direction of the board of public improvements, to place such and so many persons as he may deem advisable, by contract or otherwise, to work and complete the work to be done, and to use such materials as he may find on the line of said work, or to procure other materials for the completion of the same, and to charge the expense of said labor and ma- terials tothecontractor; that thisexpense shall be deducted and paid out of such moneys as may then be due, or may at any time thereafter grow due, to him un- der the contract; and.ineasesuch expense is less than the amount still due under the contract, had it been completed by the contractor, he shall be entitled to receive the difference, and, in case such expense is greater, the party of the first part (which includes tho contractor and his sureties) shall pay the amount of such excess.' The contracts also contained the following provision: 'And said party of the first part (which includes the contractor and his sureties) hereby further agrees that he will furnish the said board of public im- provements with satisfactory evidence that all persons who have done or fur- nished materials under this agreement, and are entitled to alien therefor under any law of the state of Missouri, have been fully paid, are no longer entitled to such lien ; and, in case such evidence be not furnished, such amount as the board may consider necessary to meet the lawful claims of the persons aforesaid, provided said persons shall notify said board before the final estimates be returned, shall be re- tained from the moneys due the said parly of the first part under this agreement, un- til the liabilities aforesaid may be fully dis- charged.' Under paragraph S of the con- tract, an estimate of the amount of the work done each month is to be made about the first of each succeeding month, and a valuation according to the current market prices put thereon. From the amount of such estimate, ten per cent, is to be deducted, and the balance certified as due. The obligation of Higgins and Sellers binds them, with McLane, to the city of St. Louis, and for the faithful per- formance of the foregoing contracts in ev- ery particular. The foregoing quotations from the contracts are believed to be suffi- cient for an understanding of the legal propositions arising upon this record. McLane entered upon the work, and con- tinued it until the 20th day of November, 18S8, when he absconded from the state, leaving the work in an unfinished condi- tion. It is conceded that up to the 1st day of November the city had paid to McLane for work done and materials furnished un- der contract No. 2,071 the sum of one thousand and threedollars and fifty cents. This would leave the sum of one thousand and seven hundred and ninety-six dollars and fifty cents due from the city if the work should be completed. The work un- der contract No. 2,083 was also left in an unfinished condition. Monthly estimates of the work under this contract had also been made, and up to the 1st day of No- vember McLane had been paid on account thereof six hundred and seven dollars and fifty cents, leaving a balance due from the city, if the work had been completed, of two hundred and forty-two dollars and fifty cents. The work under the third con- tract had been fully completed and paid for. It was also admitted that, in addi- tion to the amounts earned by McLane under the two contracts between the 1st and 20th of November, the city owed him the sum of thirty-seven dollars for work done at the House of Refuge not embraced in either contract. When McLane aban- doned the contracts, the city made an ar- rangement with Higgins and Sellers to complete the work. No new contract was entered into. The work was to be com- pleted under the old contracts. Higgins and Sellers finished the work to the satis- faction of the city authorities. A few days THE MAXIMS OF EQUITY. 35 after this arrangement with Higgins and Sellers, the O'Neil dumber Company, one of the interpleaders, filed a suit in equity against McLune and the city, in which it claimed that McLane was indebted to it for lumber furnished on account of said ■contracts of the value of seven hundred and fifty dollars, and it asked that this amount be charged against the remainder of the money due from the city under the contract. Then followed a like suit by John M. and Edward Doyle, the appel- lants herein, in which they claimed to have performed work and furnished materials to McLane, under contract No. 2,071, of the value of thirteen hundred and four dol- lars. They sought to make their claim a charge upon the balance due from the city under said contract No. 2,071. Other mechanics and material men followed with like suits, but, under the view we have taken of the case, it will not be nec- essary to notice them. When Higgins and Sellers completed the work they claimed that the work done and the materials fur- nished by them in the completion of con- tract No. 2,071 actually cost them the sum of one thousand and fifty-nine dollars and eighty-nine cents; that they did work in completing contract No. 2,083 of the value of forty dollars; and thac they did extra work under the last-mentioned contract amounting to twenty-nine dollars and fifty cents,— making a total of eleven hun- dred and twenty-nine dollars and thirty- nine cents. Their contention was, and is now, that, asthey had earned this amount in the completion of the work, they were entitled to be first paid out of the balance of the funds due under the McLane con- tracts, in preference to the O'Neil Lumber Company and Doyle Bros. When the city found itself beset witli these conflicting claims, it brought into court the amount due from it under the McLane contracts, to wit, two thousand one hundred and five dollars and fifty cents. The foregoing facts were stated in its petition, and the court was asked to compel the claimants to interplead for the fund, and that they be restrained from the further prosecution of the suits against the city. The neces- sary orders were made, and thereafter such proceedings were had in the case as to re- sult in a trial between the several inter- pleaders of their respectiveclaims to prior- ity. The courtheld that Higgins and Sell- ers must be paid tirst. This left a balance of nine hundred and seventy-six dollars and eleven cen's, which the court found had been earned by McLane between tne 1st and 20th of November. As the O'Neil Lumber Company was the first to insti- tute suit and have the city served with process, the court gave its claim priority over those of the other interpleaders, and ordered it to be paid in full. The suit ol trie Doyle Bros, being the next in point of time, the remainder of the fund, to wit, the sum of two hundred and twenty-five dollars and sixty cents, was ordered paid to them. From this order of distribution Doyle Bros, have prosecuted their appeal." The court of appeals affirmed the judg- ment of the circuit court, (42 Mo. App.ose,) all the judges agreeing that out of the funds to be distributed the amount found to be due Higgins and Sailers must be first paid. But to the conclusion reached by a majority of the court of appeals and the circuit court, — that the remainder should be distributed among the inter- pleaders according to the priority of their suits, — Judge Thompson dissented, and filed, a dissenting opinion, as follows: "The statute relating to mechanics' liens contains the following section : ' The liens for work and labor done or things fur- nished, as specified in this article, shall be upon an equal footing, without reference to the date of filing, the account, or lien; and in all cases where a sale shall be or- dered, and the property sold, which may be described in any accouut or lieu, the proceeds arising from such sale, when not sufficient to discharge in full all the liens against the same without reference to the date of tiling the account or lien, shall lie paid pro rata on the respective liens: pro- vided, such accountor liens shall havebeen filed and suit brought as provided by this article.' Re v. St. 1H89, § 6727 ; Rev. St. 1S70, §3193. With this statute in force, the city of St. Louis, in making the contract with McLane, inserted the following provision : 'And said party of the tirst part (which includes the contractor and his sureties) hereby further agrees that he will furnish the said board of public improvements with satisfactory evidencethat all persons who have done work or furnished mate- rials under this agreement, and are enti- tled to a lien therefor under anylawof the state of Missouri, have been fully paid, or no longer entitled to such lien; and, in case such evidence be not furnished, such amount as the board may consider neces- sary to meet the lawful claims of the per- sons aforesaid, provided said persons shall notify said board before the final es- timates be returned, shall be retained from the moneys due the said party of the first part under this agreement until the liabili- ties aforesaid may be fully discharged.' With this provision in force, indicating the policy of the state to be that all mechanics and material men entitled to liens shall share ratably, the city sees fit to insert this clause in its contract with the me- chanic, indicating a clear purpose on its part to see that the policy of the statute is carried out, and that it will withhold enough of what is due to the principal contiaetor to pay his subcontractors or material men. It is true that such per- sons are not, under the law as judicially construed, entitled to a mechanic's lien against any property belonging to the city; but that does not seem to afford a good reason why no effect whatever should be given to this clause of the con- tract. The city had no right, under the decision of Luthy v. Woods, 6 Mo. App. 67, and St. Louis v. Keane, 27 Mo. App. 042, to hold enough of what was due McLane in the characterof trustee for tne material men who had furnished to him materials which he used in the work. But events took such a turn that there wasnotenough for all, and the city, finding itself thus em- barrassed, instead of executing the trust itself, brought the fund into a court of equity, and asked that court to adminis- ter it; in other words, asked that court to require the contending parties to inter- plead for it, which was done. It is also 36 THE MAXIMS OF EQUITY. true that the city has not, under the terms of the contract, elected to set this fund apart, and to hold it for any particular beneficiary; but nevertheless I cannot but think that it ought to be distributed, not according to the attachment law, but ac- cording to the policy of the mechanics' lien law. This clause of the contract lias no doubt existed in the contract forms on which the city lets out contracts for city buildings from a time when it was sup- posed that the city buildings were liable to mechanics' liens. Persons supplying materials to city contractors may fairly be presumed to know that such a clause exists in such contracts. They may, there- fore, be fairly presumed to give credit to the contractor on the faith of being pro- tected by the city. But this faitli is broken, and this just expectation disap- pointed, when the creditor that makes the first grab at the fund set apart for all gets a preference over the other, albeit in a court called a court of equity. "The ground on which this result is reached, if I understand the reasoning, is that this fund has never been impressed with the character of a trust, which dis- tinguishes the case from the previous deci- sions of this court. To my mind, it is a conclusive answer to this to say that the city has done all that it could safely do to impress the fund with the character of a trust fund for the equal benefit of the ma- terial men, and has certainly not indicat- ed t> ccntrary purpose by handing it over to a court of equity for distribution. But it is said that the proceedings in equity, which were taken against the city by the material men before the petition of inter- pleader was filed, were 'equitable garnish- ments,' and therefore the provision of the attachment law is to be imported into a court of equity, under which, instead of doing equity by making a ratable distri- bution among the creditors of equal mer- it, the rule of distribution is to be, first come, first served. It is true that in judi- cial decisions in this state the proceeding has been denominated an 'equitable gar- nishment.' But that expression was used for the mere convenience of having a name for an anomalous proceeding. It was not used with reference tothe question of prior- ities, which we are here considering. To my mind, there is no such thing as an 'eq- uitable garnishment' in the sense in which it is here sought to employ the term, any more than there is an equitable indict- ment, or an equitable bill of attainder. But if we are to disregard the policy of th9 statute relating to mechanics' liens, and if we are also to disregard the contract be- tween the city and McLane, which shows that both parties had in mind the idea that the material men of McLane should share equally, there is another ground which is inexorably logical as well as un- deniably just, on which the same result should be worked out. It is the doctrine of our supreme court in Rieper v. Rieper, 79 Mo.3f>2,— the same being, so far as 1 can see, the last controlling decision of that court upon this question, —in which the familiar rule of equity is applied that what are called 'equitable assets' are to be di- vided pari passu among all creditors be- fore the court. The same doctrine was stated and applied by this court in Hci- man v. Fisher, 11 Mo. App. 275, and in St. Louis v. Keane, 27 Mo. App. 646. What, then, are equitable assets' Judge Bake- well, in Heiman v. Fisher, 11 Mo. App. at page 280, says that 'equitable assets are such as can be reached only by the aid of a court of equity, and the established rule is that assets which can only be reached in equity must be distributed pari passu among all creditors.' I take theruleto be that, where assets are of such a character that they are not vendible under an execu- tion at law, and that no lien can be made to attach to them by any proceeding at law, but that they can only be reached and subjected to the demand of a creditor by the aid and the processes of a court of equity, they are for that reason, and that reason alone, equitable assets. Nor doe,< it appear to me to make any difference why, or on what theory of law or of pub- lic policy, they are held to be available to the creditor through the aid of processes of equity alone. To bring them within the well-known rule in respect of the dis tribution of equitable assets, it is enough that they cannot be touched in any wav without aid of a court of equity, and that whatever creditor gets satisfaction out of them must submit himself to the princi pies of a court whose favorite maxim is that equity is equality. But to this view there is opposed the argument tha t in this state, in the case of what is called a cred- itors' bill in aid of an execution at law to reach assets which have been concealed or fraudulently conveyed by the debtor, the rule is that the creditor first filing such a bill gets a priority over the others. Such is, no doubt, the rule in this state, though the contrary principle is every day admin- istered in the courts of the United States here in our midst. But the assets thus pursued and made available by the cred- itor are not equitable assets within the sense of the rule under consideration, for the reason that they are vendible under his execution at law. The creditor can levy upon his debtor's interest in property which the latter has fraudulently con- veyed, have it sold at sheriff's sale, become- the purchaser, and then bring a suit in eq- uity to clear his title; and I understand that a third person may become the pur- chaser at sheriffs sale, and have the like remedy in equity. Rights may thus at- tach to such assets in proceedings at law which in their very nature givea priority, — not merely a priority of lien, but a priori- ty of title. But there is another reason which distinguishes those cases from thi*. In those cases the moving creditor, even where he does not firstsell the dehtor's in- terest under his execution at law, often goes to great labor and expense in uncov- ering assets of his debtor. It is therefore debatable, to say the least, whether he ought to be required, after fighting the battle, to allow the camp followers who have skulked in the rear to come in and divide with him the fruits of the victory. But no such condition of things exists in respect of the question we are considering. The debtor has made no fraudulent con- veyance, has concealed no assets. He has simply run an ay, leaving visible certain assets in the hands of a custodian, who is THE MAXIMS OF EQUITY. 37 so privileged, under the policy of the law, that that custodian can only be compelled to account for them and to distribute them by a court of equity. Shall the prin- ciple which rewards the diligence and courage of the judgmentcreditor who sues to set aside a fraudulent conveyance be applied so as to give a priority to the creditor seeking satisfaction out of such equitable assets merely because he may happen to file his bill a day before the oth- ers? This is not rewarding diligence, cour- age, labor, and the expenditure of money. Jt may result merely in rewarding good fortune. The creditor first filing his bill may not even be the most, diligent; he may merely be the most fortunate. A day's sickness in the case of his rival cred- itor, the accident of employing one law- yer instead of another, may, if this is to be the rule, turn the scale, and give him all, while the others standing in equal right get none. I can see no difference in princi- ple between this case and the case of Riep- er v. Rieper, 79 Mo. 352, which was, beyond question, correctly decided. In both cases the assets are well known, uncovered, un- denied, unconcealed, but capable of being subjected only by proceedings In equity. The moving creditor, who. as in Kieper v. Kieper, seeks to subject the separate es- tate of a married woman, gets no lien by the mere filing of his bill, and for the naked reason that the assets are equitable as- sets, and that it Is the act of the court, and not the act of the creditor, that cre- ates the lien. The lien is created by the decree, and not by the bringing of the suit. In all such cases the well-known rule of chancery procedure is that all creditors who come in before the final decree of dis- tritiucion share pari passu. In this conclusion reached by the learned dissenting judge we concur. We think he might have snfely rested it upon the case of Rieper v. Rieper, 79 Mo. 352, and the last ground so forcibly put in his opinion, to which we deem it necessary to add only a word in explanation of our position. "While a court of equity, underthe admira- ble doctrine announced in the ableopinion of Judge Bliss in Pendleton v. Perkins, 49 Mo. 565, can and will give a remedy to creditors against assets in its custody, or which can be reached only by its strong arm, yet such courts cannot create for their benefit either the process of garnish- ment on the one hand, or the remedies to be acquired under the mechanic's lien law on the other, and are not constrained to a distribution of those assets to creditors according to the principles that would ob- tain under the law governing either, but will make such distribution according to right and justice, which in this case would be (after paying Higgins and Sellers the amount fouud due them for the finish- ing the work out of the fund) to distrib- ute the remainder among the interpleaders in proportion to the amounts found to be severally due them. That this may be done, the judgment of the St. Louis court of appeals affirming the judgment of the St. Louis circuit court is reversed, and the same remanded to said court of appeals, to be proceeded with accordingly. All concur, except BARCLAY, J., who dis- sents. 38 THE MAXIMS OF EQUITY. COMSTOCK v. JOHNSON. (46 N. Y. 615.) Court of 'Appeals of New York. 1871. CHURCH, C. J. The principal question in this case, involving the construction of the grant of water, was correctly decided in the court below. It is well settled in this State that the terms used in this grant are to. be taken as a measure of the quantity of water granted, and not a limitation of the use to the particular machinery specified. ( Wakely v. Davidson, 26 N. Y., 387; Cromwell v. Selden, 3 id., 253.) It was found by the court that, at the time the defendant shut the water off, he asserted that the plaintiff had forfeited his right to the water, and claimed a right to shut it off. In this he was mistaken. In de- priving the plaintiff of the use of the water under an assertion of forfeiture, he rendered himself amenable to the process of the court for the protection of the plaintiff's rights. The judgment enjoining the defendants from depriving the plaintiff of the quantity of wa- ter to which he was entitled under his deed, cannot be disturbed. The only serious ques- tion in the case relates to the use of the buzz saw in front of the mill. The plaintiff did not, by his deed, acquire the title to the land in front of the mill, because the description is limited to the land upon which the mill stands, but he did acquire an easement in such land for the purpose of ingress and egress, and also for the purpose of piling and sawing wood for the use of the mill, as it had been used and enjoyed for forty years. Ev- erything necessary for the full and free enjoy- ment of the mill passed as an incident, pp- purtenant to the land conveyed. (2 Kent's Com., 467; Blaine's- Lessee v. Chambers, 1 Serg. & Kawle, 174.) But this would not au- thorize the plaintiff to erect and use ma- chinery upon this land not necessaty to the use of the mill, as it had been used, and would not authorize the use of the buzz saw upon that land. The objection is not that the plaintiff propelled the buzz saw with the wa- ter from the clam, as he had the right to use the water for any machinery and in anyplace which he was entitled to occupy; but he could not occupy the space in front of the mill for that purpose. At the time the water was shut off by the defendants, it was being used only to propel this saw ; and it is claimed that the defendants were justified in shutting off the water from that machinery; and for that reason the judgment should be reversed, or, at least, that it should be modified so a3 to restrain the plaintiff from using his buzz saw on the defendants' premises. As we have seen, the judgment against the defendants ia fully warranted by the findings; and the ques- tion is, whether any modification should be made against the plaintiff. It is a rule of equity that he who asks equity must do eq- uity. The plaintiff was in fault in using the buzz saw on the defendants' premises. It is said that this was an independent transac- tion, for which the defendants might have an action; and this was the view of the court below. The rule referred to will be applied when the adverse equity grows out of the very controversy before the court, or of such circumstances as the record shows to be a part of its history, or 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. [Tripp, v. Cook, 26 Wend., 143; McDonald v. Neil-son, 2 Cow., 190; Caster v. Shipman, 35 N. Y., 533.) All the facts connected with the right of the plaintiff to use the buzz saw were not only spread out upon the record, but were in fact litigated upon the trial, and, as to his strict legal rights, are undisputed; and we cannot say that, but for his use of the saw on the defendants' premises, the water would not have been shut off. Whether this was so or not, the controversy in relation to his right to use the saw was involved in the liti- gation, and was intimately connected with the wrongful act of the defendants; and, be- ing so, it is proper to apply the equitable rule. It is not indispensable to the applica- tion of this rule that the fault of the plaintiff should be of such a character as to authorize an independent action for an injunction against him. The plaintiff, in strictness, was in the wrong in placing his buzz saw in front of the mill. The defendants were in the wrong in shutting off the water, and es- pecially in asserting a forfeiture; and. as both parties are in court to insist upon their strict legal rights, we think substantial justice will be done by modifying the judgment so as to enjoin the plaintiff from using the buzz saw on the land in front of his mill, and, as mod- ified, judgment affirmed, without costs to either party against the other in this court. All concur. Judgmeut accordingly. THE MAXIMS OF EQUITY. 89 BLEAKLEY' S APPEAL. (66 Pa. St. 187.) Supreme Court of Pennsylvania. 1870. The opinion of the court was delivered, October 27th 1870, by AGNEW. J. The facts of this case are few. Robert Lamberton was the owner of a judgment for $31 ,000, entered agai nst Sam uel P. Irvin on the 8th day of June, 1865. Irvin had purchased of F. D. Kinnear, Esq., lot No. 449 in Franklin at $2600, of which $820 only remained unpaid, and would fall due on the 6th of August 1865, with a provision for forfeiture of the contract in case of non-pay- ment for thirty days after it fell due. On the 19th of July 1865, Irvin assigned his contract to James Bleakley, binding him to pay the $820 to save the forfeiture, and with the admitted understanding that Irvin should refund the $820 to Bleakley, settle his in- debtedness to the bank, of which Bleakley was cashier, and that then Bleakley should | reconvey to Irvin's wife. But the assign- ment was anteilated to the 1st of May 1865, thus overreaching Lamberton's judgment. The master finds that this was done to de- fraud the plaintiff. The finding is ably vin- dicated in the opinion of Judge Trunkey. The absolute character of the paper, though but a security, the agreement to reconvey to Irvin's wife instead of himself, and the at- tempt of Bleakley to use the paper to defeat the sheriff's sale of the property by Lamber- ton on his judgment, evince the true motive for antedating the paper. Bleakley paid the $820 to Kinnear, and now claims a decree for this sum, before specific performance shall be decreed to Lam- berton, who purchased Irvin's title at the sheriff's sale. Kinnear does not resist spe- cific performance, but stands ready to convey to Lamberton, whenever the covinous assign- ment to Bleakley is put out of his way. It is Bleakley who resists the decree until he is refunded the $820, paid upon the footing of the fraudulent agreement with Irvin, to de- feat Lamberton's judgment. Bleakley is j made a party to the bill only for the purpose I of putting aside the covinous assignment to j enable Kinnear to convey to Lamberton. Tjie question then is wh ejherajrtiirncelloj^ woyldliiqiiTwnSmJJerton to refun d the $820 j to Bleakle2j_a^^conditio"n"to"settogas2g>the_; assig nment and_ entitling Lamberton to spe- ^citic TperisrmancejrfJKihnear. "— BuTcTearty Bleakley cannot demand repay- ment of Lamberton either at law or equity. And first he is not entitled to subrogation to Kinnear's rights. Subrogation is not a mat- ter of contract but of pure equity and benev- olence: Kyner v. Kyner, 6 Watts 221; Wal- lace's Appeal, 5 Barr, 103. On what pretence, in f'oro vonscientice, can a party attempting to carry out a scheme of fraud against an- other, by a payment, claim compensation of the party he has attempted to defraud? Con- science and benevolence revolt at such an iniquity. Again Bleakley did not recognise Kinnear's title by the payment. He did not profess to bargain for it, and Kinnear did not profess to sell it to him. His act was simply a payment and no more, made by him because of Irvin's duty to pay, and accepted by Kinnear because of his right to recehe ftom Irvin. Besides the payment was ac- cepted by Kinnear in ignorance of the at- tempted fraud. There can be no legal in- tendment therefore of a bargain on Kinnear's part to vest his right to receive the money in Bleakley. As to Lamberton the payment by Bleakley was not only fraudulent and in- tended to displace his judgment, but it was also voluntary. It was not paid at Lamu i ton's request nor for his use and benefit; but on the contrary was intended to defeat his right, as a creditor by overlapping his judg- ment, by means of the covinous transfer. Bleakley is therefore neither a purchaser, nor a creditor of Lamberton, nor an object of benevolence, but is forced upon the record to compel him to put out of the way the fraudulent barrier to Kinnear's specific per- formance to Lamberton. He cannot, thus standing before a chancellor, ask him to make repayment to him a condition to a de- cree to remove the fraudulent obstruction he threw in the way. The payment is one of the very steps he took to consummate the fraud upon Lamberton. If he have a legal right of recovery he must resort to his action at law, and if he can have none, it is a test of his want of equity. And in addition to all this, it is a rule that a chancellor will not assist a party to obtain any benefit arising from a fraud. He must come into a court of equity with clean hands. It would be a singular exercise of equity, which would as- sist a party, who had paid money to enable him to perpetrate a fraud, to recover his money, just when the chancellor was engaged in thrusting out of the way of his doing equity to the injured party, the very instru- ment of the fraud. Who does iniquity shall not have equity: Hershey v. Weiting, 14 Wright 244-5. We are therefore of opinion the court com- mitted no error in refusing compensation, and the decree of the court below is confirmed. 40 THE MAXIMS OF EQUITY. ELLISON v. MOFFATT. (1 Johns'. Ch. 46.) Court of Chancery of New York. 1814. THE CHANCELLOR. The parties lived in the same county, and, without accounting for the delay, the plaintiff suffered a period of 26 years to elapse, from the termination of the American war, to the time of filing his bill. The offer made by the executors being for peace, and without any recognition of ■the justness of the demand, and being re- jected by the plaintiff, cannot affect the ques- tion. It would not be sound discretion to over- haul accounts, in favor of a party who has slept on his rights for such a length of time; especially, against the representatives of the other party, who have no knowledge of the original transactions. It is against the prin- ciples of public policy, to require an account, after the plaintiff has been guilty of so great laches. The bill must be dismissed on the ground of the staleness of the demand; but without costs. THE DOCTRINES OF EQUITY. 41 HORN v. COLE et al. (51 N. H. 287.) Supreme Judicial Court of New Hampshire. July Term, 1868. Mr. Fletcher, for plaintiff. Mr. Ray, for defendants. PERLEY, C. J. There is no complaint that the rulings and instructions of the court on the trial were erroneous or improper, pro- vided the evidence warranted the jury in re- turning a verdict for the defendants; and the verdict must stand, if the evidence was com- petent to prove such representations by the plaintiff as would estop him to set up his title to the goods attached to the property of Charles E. Horn. The evidence reported in the case was com- petent to prove that the plaintiff made the representations on the occasion and in the circumstances testified to by Cole; that the plaintiff, though not indebted .to Cole, was in debt to others; that Cole, believing the representations to be true, and relying on them as true, caused the goods to be at- tached as the property of Charles E. Horn; and, also, that the plaintiff made these rep- resentations knowing them to be false, with the intention that all persons who were in- terested in the subject should take them to be true, and act on them as such, and with the intention to mislead and deceive all to whom the representations were communi- cated, and induce them to act on them as true; that his intention was to deceive his own creditors, and prevent them from taking the goods as his for the debts which he owed to them. These facts must be taken to have been established by the verdict. But, as there was no evidence that the plaintiff knew Cole had any demand against Charles E. Horn, we cannot infer that the plaintiff had Cole in his mind' as an individ- ual whom he meant to deceive by his false representations, or that he had an intent to prevent Cole from taking the goods for a debt which he owed to Cole, as he owed no such debt; and, on the evidence reported, the jury were not at liberty to find that the plaintiff had Cole in his mind as an individ- ual whom he meant to deceive and defraud by inducing him to take the goods for his demand against Charles E. Horn. This rais- es the point, which the counsel for the plain- tiff takes, whether, to estop a party from showing that his representations were false, it is necessary that the false representations should have been intended to deceive and de- fraud the individual party who trusted to them and acted on them, provided there was a general intention to deceive and defraud all persons who were interested in the subject- matter of the false representations. The ground on which a party is precluded from proving that his representations on which another has acted were false is, that to permit it would be contrary to equity and good conscience. This has been sometimes called an "equitable estoppel," because the jurisdiction of enforcing this equity belong- ed originally and peculiarly to courts of equi- ty, and does not appear to have been fa- miliarly exercised at law until within a com- paratively recent date; and, so far as relates to suits at law affecting the title to land, I understand that in England and in some of the United States the jurisdiction is still confined to courts of equity. Stores v. Bar- ker, 6 Johns. Oh. 166, 168; Evans v. Bicknell, 6 Ves. 174, 178; Pickard v. Sears, 6 Adol. & E. 469. The doctrine, however, is a very old head of equity, and is recognized and applied in a great number of the early cases. Dyer v. Dyer, 2 Ch. Cas. 108; Teasdale v. Teasdale, 13 Vin. Abr. 539; Hobbs v. Norton, 1 Vern. 136; Gale v. Lindo, Id. 475; Huns- den v. Cheyney, 2 Vem. 150; Lamlee v. Hanman, Id. 499; Raw v. Pote, Id. 239'; Blanchet v. Foster, 2 Ves. Sr. 264; East In- dia Co. v. Vincent, 2 Atk. 83; Stiles v. Cow- per, 3 Atk. 693; Webber v. Farmer, 13 Vin. Abr. 525; 2 Brown, Pari. Cas. 88; 2 Eq. Cas. Abr. 481; Neville v. Wilkinson, 1 Brown, Ch. 543; Storrs v. Barker, 6 Johns. Ch. 166; Strong v. Ellsworth, 26 Vt 366. Many of these cases related to underhand agreements in fraud of marriage settlements; but the principle is of general application. 1 Fonbl. Eq. 267, note x. Relief was given according to the circumstances of the case, — sometimes by enjoining suits at law, iu which the legal title was set up, and some- times by decreeing conveyances and the can- celling of deeds and other instruments; but in all these cases relief was given in equity contrary to the strict legal rights of the de- fendants. Thus, in the case of an equitable estoppel, a party is not allowed to assert his strict le- gal right because, in the circumstances of the individual case, it would be contrary to equity and good conscience. Take the pres- ent case for an illustration. In trover, fol- lowing the legal definition of the action, if the plaintiff proves property in himself and a conversion by the defendant, he has main- tained his action, and is entitled to a ver- dict and judgment. It is conceded that the plaintiff owned the goods, and that the de- fendants converted them. The defense here set up appeals from the strict rule at law to the equitable doctrine that a party shall not be allowed to exercise his legal right of proving the facts, if, on account of his pre- vious declarations or conduct, it would be contrary to equity and good conscience. So in a writ of entry; by the technical rules at law, if the demandant proves seisin in himself and a disseisin by the tenant within the time of limitation, he is entitled to judg- ment; but if the demandant, having a dor- mant title to the land demanded, concealed his title, and encouraged the tenant to pur- chase from another, he is not allowed, in our 42 THE DOCTRINES OF EQUITY. practice, to set up his legal title, because it would be contrary to equity and good con- science. It thus appears that what has been called an "equitable estoppel," and sometimes, with less propriety, an "estoppel in pais," is prop- erly and peculiarly a doctrine of equity, orig- inally introduced there to prevent a party from taking a dishonest and unconscientious advantage of his strict legal rights,— though now with us, like many other doctrines of equity, habitually administered at law. But formerly the practice was different, and suits at law, the courts being incapable of giving effect to this equity, were often enjoined where the party insisted on his rights at law contrary to the equitable doctrine, as in Raw v. Pote, Stiles v. Cowper, and Webber v. Farmer, qua supra. It would have a tendency to mislead us in the present inquiry, as there is reason to sus- pect that it has sometimes misled others, if we should confound this doctrine of equi- ty with the legal estoppel by matter in pais. The equitable estoppel and legal estoppel agree indeed in this, that they both preclude from showing the truth in the individual case. The grounds, however, on which they do it are not only different, but directly op- posite. The legal estoppel shuts out the truth, and also the equity and justice of the individual case on account of the, suppos- ed paramount importance of rigorously en- forcing a certain and unvarying maxim of the law. For reasons of general policy, a record is held to import incontrovertible verity, and for the same reason a party is not permitted to contradict his solemn ad- mission by deed. And the same is equally true of legal estoppels by matter in pais. Certain acts done out of court and without deed were, by a technical and unyielding rule of law, upheld on like grounds of public pol- icy, and followed always by certain legal consequences. The legal effect of such acts was not permitted to be controverted by proof. Thus, If one accepts a lease and enters under it, he is estopped to claim any other estate in the land during the term; he can- not show that he owned the land when the lease was made. Estoppels by matter in pais were few in number, and all of this general and well defined character; and they all enforced some technical rule of the law against the truth, and also against the justice and equity of the individual case. Coke, in his examination of the different kinds of estoppel by matter in pais, enumer- ates the following: "By livery, by entry, by acceptance of rent, by partition, and by ac- ceptance of an estate." Co. Litt. 352a. In Lyon v. Reed, 13 Mees. & W. 309, Parke, B., speaking of legal estoppels by matter in pais, says: "They are but few, and are point- ed out by Lord Coke, Co. Litt. 352a. They are all cases which anciently really were, and in contemplation of law have always continued to be, acts of notoriety no less sol- emn than the execution of a deed, such as= livery, acceptance of an estate, and the like. Whether a party had or had not concurred in an act of this sort was deemed a matter which there could be no difficulty in ascer- taining, and then the legal consequences fol- low." In the authorities which contain the most complete enumeration of the different kinds of legal estoppels and the fullest discussion of the law on the subject, I find no allusion to- the equitable estoppel which we are now con- sidering. All legal estoppels, whether by rec- ord, by deed, or by matter in pais, depended on strict legal rules, and shut out proof of the truth and justice of the individual case. Vin- er, Abr., "Estoppel," passim; Lyon v. Reed, 13 Mees. & W. 309; Freeman v. Cooke, 2: Exch. 658. For this reason, because legal estoppels, whether by record, deed, or matter in pais,, shut out proof of the truth and justice of indi- vidual cases, they have been called odious, and have been construed with much strictness against parties that set them up. They were- formerly required, like other defences regard- ed as inequitable, to be pleaded with certainty to a certain intent in every particular. If" they were relied on by way of averment, and tried by the jury, the jury might find, and according to some authorities were bound by their oath veritatem dicere to find, according to the truth of the case, regardless of the es- toppel. Trials Per Pais, 284; Co. Litt 227a;. Com. Dig. "Estoppel," E, 10. The practice is now different, and legal estoppels may be re- lied on, when given in evidence, without being specially pleaded. Legal estoppels exclude evidence of the truth and the equity of the particular case to support a strict rule of law, on grounds of public policy. Equitable estoppels are admitted on the ex- actly opposite ground of promoting the equity and justice of the individual case by prevent- ing a party from asserting his rights under a general technical rule of law, when he has so conducted himself that it would be contrary to equity and good conscience for him to al- lege and prove the truth. The facts upon, which equitable estoppels depend are usually proved by oral evidence; and the evidence should doubtless be carefully scrutinized, and be full and satisfactory, before it should be admitted to estop the party from showing the truth, especially in cases affecting the title to land. But where the facts are clearly proved, the maxim that estoppels are odious— which was used in reference to legal estoppels, be- cause they shut out the truth and justice of the case— ought not to be applied to these equitable estoppels, as it has sometimes been,, inadvertently, as I think, from a supposed an- alogy with the legal estoppel by matter in pais,, to which they have, in this respect, no resem- blance whatever. Lord Campbell, in Howard v. Hudson, 2 El. & BI. 10; Andrews v. Lyons, 11 Allen, 349, 351. In other cases, where- THE DOCTHINES OF EQUITY. 43 more attention has been paid to the real nature of this equitable doctrine, it has been held that such estoppels are not odious, and to be construed strictly, but are entitled to a fair and liberal application, like other equitable doctrines which are admitted to suppress fraud and promote honesty and fair dealing. Mellor and Compton, JJ., in Ashpitel v. Bryan, 3 Best & S. 474; Cowen, J., in Dezell v. Odell, 3 Hill, 220; Com. v. Moltz, 10 Pa. St. 530, 531; Buckingham v. Hanna, 2 Ohio St. 557; Van- Rensselaer v. Kearney, 11 How. 32G; Preston v. Mann, 25 Conn. 118, 128. In this equitable estoppel, the party is for- bidden to set up his legal title because he has so conducted himself that to do it would be contrary to equity and good conscience. As in other cases of fraud and dishonesty, the circumstances out of which the question may arise are of infinite variety; and, unless courts at law are willing to abdicate the duty of ad- ministering the equitable doctrine effectually in suppression of fraud and dishonesty, the ap- plication of it cannot be confined within the limit of any narrow technical definition, such as will relieve courts from looking, as in other cases depending on fraud and dishonesty, to the circumstances of each individual case. Certain general rules will doubtless apply, as in other cases where relief is sought on such grounds. But I find myself unable to agree with the authorities where the old maxim that legal estoppels are odious has been applied to this equitable estoppel, and where attempts have been made to lay down strict definitions, such as would defeat the remedy in a large proportion of the cases that fall within the principle on which the doctrine is founded. The doctrine having been borrowed from equity, courts at law that have adopted it should obviously look to the practice in equity for their guide in the application of it; and in equity, the doctrine has been liberally applied to suppress fraud and enforce honesty and fair dealing, without any attempt to confine the doctrine within the limits of a strict defini- tion. For instance, the doctrine has not in equity been limited to cases where there was an actual intention to deceive. The cases are numerous where the party who was estopped by his declarations or his conduct to set up his legal title, was ignorant of it at the time, and of course could have had no actual inten- tion to deceive by concealing his title. Yet, if the circumstances were such that he ought to have informed himself, it has been held to be contrary to equity and good conscience to set up his title, though he was in fact ignorant of it when he made the representations. Hobbs v. Norton, Hunsden v. Cheyney, Teas- dale v. Teasdale, qua supra; and Burrowes v. Lock, 10 Ves. 470. So, if the party knew the facts, but mistook the law. Storrs v. Barker, 6 Johns. Ch. 166. Nor is it necessary in equity that the intention should be to deceive any particular individual or individuals. If the representations are such, and made in such circumstances, that all persons interested in the subject have the right to rely on them as true, their truth cannot be denied by the party that has made them against any one who has trusted to them and acted on them. Gale v. Lindo, Webber v. Farmer, qua supra. In the much and well considered case of Preston v. Mann, 25 Conn. 118, 128, Storrs, J., delivering the opinion of the court, says: "The doctrine of estoppel in pais, notwith- standing the great number of cases which have turned upon it and are reported in the books, cannot be said even yet to rest upon any determinate legal test which will reconcile the decisions, or will embrace all transactions to which the general principles of equitable necessity wherein it originated demand that it should be applied. In fact, it is because it is so peculiarly a doctrine of practical equity, that its technical application is so difficult, and its reduction to the form of abstract formulas is still unaccomplished." This was said in IS.jO, and little has since been done towards extricating the doctrine from the confusion and conflict of authority with which it was then embarrassed. This, as I think, has been caused by the fact that courts have continued to exercise their ingenuity in the vain attempt to compress a broad doctrine of equity within the narrow limits of a technical definition. The case of Pickard v. Sears, 6 Adol. & E. 469, decided as late as 1837, appears to have been regarded, both in England and in this country, as the leading case at law on this subject. It was trover by the mortgagee of personal goods against the defendants, who were purchasers at a sheriff's sale on execu- tion against the mortgagor. The facts set up in defence were, that the plaintiff was pres- ent at the sale, did not disclose his title as mortgagee, and encouraged the defendants to purchase. The question on trial was as to the property of the plaintiff in the goods, and Lord Denman directed a verdict for the plain- tiff. A rule to show cause why the verdict should not be set aside was made absolute. In delivering the judgment of the court, Lord Denman said: "His [the plaintiff's] ti- tle having been established, the property could only be devested by gift or bale, of which no specific act was even surmised. But the rule of law is clear that where one, by his words or conduct, willfully causes another to believe the existence of a certain state of things, and induces him to act on that belief so as to alter his own previous position, the. former is con- cluded from averring a different state of things as existing at the same time; and the plaintiff might have parted with his interest in the property by a verbal gift or sale, with- out any other formalities that threw technical difficulties in the way of legal evidence. And we think his conduct in standing by and giv- ing a kind of sanction to the proceedings un- der the execution was a fact of such a nature that the opinion of the jury ought to have been taken whether he had not, in point of fact, ceased to be the owner." It is worthy of note that in this suit at law 44 THE D0CT1UXES OF EQUITY. the court, so late as 1837, after stating the general equitable doctrine, did not venture to put the defence directly on the ground that the plaintiff was estopped by his conduct to prove the truth of the case, but allowed the facts to go to the jury as evidence that the plaintiff, in some undefined and mysterious way, had parted with his property in the goods. So late and so reluctant were the courts to admit in suits at law this defence, which depended on fraud and dishonesty, and which belonged, originally and appropriately, to the jurisdiction in equity. It can hardly be supposed that Lord Den- man, in the statement which he made of this equitable doctrine in reference to the facts of that case, understood that he was laying down a technical definition fixing the limits of the doctrine, and excluding all cases that did not come clearly within the terms which he used on that occasion. Nevertheless, the remarks of Lord Denman have often been treated as a sort of authoritative text covering the whole ground, which it was the business of courts in later cases to expound and explain. And it is curious to observe what different and con- tradictory interpretations have been put on his statement of the equitable doctrine. It has been cited in Massachusetts as authority for decisions in which it has been held that the representations, to estop the party from show- ing they were not true, must have been made with the intent to deceive, and the intent to deceive the party who sets up the defence. Plumer v. Lord, 9 Allen, 455; Andrews v. Ly- ons, 11 Allen, 349. And in California the same case has been relied on for the rule that where a representation comes in any way to the ears of a party, who acts on it, the party making the representation is estopped to deny its truth, unless it had the character of a confi- dential communication. Mitchell v. Reed, 9 Cal. 204. In England it has been treated as a statement of the equitable doctrine made in reference to the circumstances of that case, and not intended as a formal and complete definition. Freeman v. Cooke, 2 Exch. 654; Gregg v. Wells, 10 Adol. & E. 90; Jorden v. Money, 5 H. L. Cas. 212. It would be a laborious and not a profitable task to attempt an analysis of all the recent decisions on this subject. I will briefly advert to some of those which appear to be the most important. In Plumer v. Lord, 9 Allen, 455, it was held that to create an estoppel in pais, the declarations or acts must have been accom- panied with a design to mislead; and Lang- don v. Doud, 10 Allen, 433, is to the same point. In Andrews v. Lyons, 11 Allen, 349, the court went one step further, and decided that the declarations or acts must have been accompanied with a design to deceive the party who sets up the estoppel, and induce him to act on them; and In this last case it is said that such an estoppel shuts out the truth, and is odious, and must be strictly proved. In Hawes v. Marchant, 1 Curt. 144, Fed. Cas. No. 6,240, the rule is laid down that to be estopped the party must have de- signedly made admissions inconsistent with the defense or claim which he proposes to set up, and another, with his knowledge and consent, so acted on this admission, that he will be injured by allowing the admission to be disputed; and this rule is cited and apparently approved in Audenried v. Bette- ley, 5 Allen, 382. In these cases, it is to be observed, the court have not been content with saying, in reference to the facts before them, that, if certain things concurred in the case, it would fall within the equitable doctrine, and the party would be estopped, but they have un- dertaken to lay down a strict legal defini- tion of general application, excluding from the operation of the doctrine all cases that do not fall within. the terms of the definition. Applying the rule as laid down in Hawes v. Marchant to the present case, if Horn had known that Cole had a demand against Charles E. Horn, had falsely represented to Cole that the goods belonged to Charles, with the design to deceive him and induce him to attach the goods as the property of Charles, and Cole, relying on the representa- tion, had taken the goods as the property of Charles, and as Horn intended, yet if, after he had made the false representation, he did not know that the goods were taken as the property of Charles, and assent that they should be so taken, he would not be estop- ped to set up his own title in the goods. The statement that another party must have act- ed on the false statement with his knowl- edge and assent must mean this, or it can mean nothing; for he could not know that he had acted on it at all until the act was done and accomplished. The remark of Lord Campbell in Howard v. Hudson, qua supra, though not called for by the case, is to the effect that the repre- sentation must have been intended to de- ceive. These authorities would seem to sustain the plaintiff's counsel fully in his position that the false representation must not only be intended to deceive but also to deceive the identical party that acted on them. There are, however, authorities of equal respectability, and in greater numbers, which maintain a different doctrine. In England, the case of Pickard v. Sears does not appear to have been understood as intended to lay down a complete definition of the equitable doctrine excluding all cases that could not be brought within the terms of the remarks made by Lord Denman. In Freeman v. Cooke, 2 Exch. 654, it was held that the term "willfully," used in Pickard v. Sears, was not to be understood in the sense of "maliciously"; and that, whatever a man's real meaning may be, if he so con- ducts himself that a reasonable man would take the representation to be true, and be- lieve it was meant he should act on it, and THE DOCTRINES OF EQUITY. 45 lie did act on it as true, the party making the representation would be equally preclud- ed from contesting its truth. This is wholly inconsistent with the notion that an inten- tion to deceive is an essential ingredient of the representation, which precludes the par- ty making it from showing that it was false. So in Jorden v. Money, 5 H. L. Cas. 212, it was held not to be necessary that the party making the representations should know that they were false; that no fraud need have been intended at the time; but, if the party unwittingly misled another, you must add that he has misled him under such cir- cumstances that he had reasonable ground for supposing that the person whom he was misleading would act upon what he was say- ing. In Gregg v. Wells, 10 Adol. & E. 90, Lord Denman says: "Pickard v. Sears was in my mind at the time of the trial, and the prin- ciple of that case may be stated even more broadly than it is there laid down. A party who negligently or culpably stands by and allows another to contract on the faith and understanding of a fact which he can con- tradict, cannot afterwards dispute that fact in the action against the person whom he has himself assisted in deceiving." This shows that Lord Denman did not himself understand that his remarks in Pickard v. Sears were to be taken as a definition and limitation of the equitable doctrine, for he says the principle of the case might be stat- ed more broadly than it is laid down there, and may include the case of a culpable neg- ligence. So Hobbs v. Norton, 1 Vern. 136; Hunsden v. Oheyney, 2 Vern. 150; Teasdale v. Teasdale, 13 Vin. Abr. 539; Burrowes v. Lock, 10 Ves. 475,— before cited, show that the practice in equity does not require that there should in all cases be an intention to de- ceive, or even a knowledge that the repre- sentation was false. We come now to the decisions in this coun- try, which give a broader application to this doctrine than those before cited. In Dezell v. Odell, 3 Hill, 221, the general doctrine is said to be that when a party, ei- ther by his declarations or his conduct, has influenced a third person to act in a particu- lar manner, he will not be afterwards per- mitted to deny the truth of the admission if the consequence would be to work an injury to such third person, and that in such case it must appear— First, that he made an ad- mission which is clearly inconsistent with the evidence he proposes to give, or the claim which he proposes to set up; second, that the party has acted on the admission; third, that he will be injured by allowing the truth of the admission to be disputed. According to this interpretation of the equi- table doctrine, it would seem not to be nec- essary that the representation should be in- tended to deceive, or that the party making it should know it to be false, or that it should be intended the party should act on it, who does so in fact, and is deceived by it. The rule of this case has been adopted and followed in Newman v. Hook, 37 Mo. 207; Carpenter v. Stillwell, 12 Barb. 135; and Eldred v. Hazlett, 33 Pa. St. 316. In Roe v. Jerome, 18 Conn. 138, the gen- eral doctrine is stated to be that where one person, by his words or conduct causes an- other to believe in a certain state of things, and thus indiices him to act on that belief, so as injuriously to affect his previous posi- tion, he is concluded from averring a differ- ent state of things as existing at the time; and this rule was followed in the later cases of Cowles v. Bacon, 21 Conn. 451, and Dyer v. Cady, 20 Conn. 563; and in Preston v. Mann, 25 Conn. 118, before cited, it is said that the doctrine did not then rest on any determinate, legal test which will embrace all transactions to which the general princi- ples of equity, in which it originated, de- mand that it should be applied. Buchanan v. Moore, 13 Serg. & R. 304, 306, is to the point that, though the party be- lieved his representation to be true, and made it under a mistake, he is estopped to show that he made the representation inno- cently believing it to be true, provided the other party acted on it, and had reason to act on it, as true. So in Strong v. Ells- worth, 26 Vt. 366, it is said by Redfield, C. J., that he who by his words or actions, or his silence even, intentionally or carelessly induces another to do an act which he would not otherwise have done, and which will prove injurious to him if he is not al- lowed to insist on the fulfillment, may insist on such fulfillment; and that the doctrine of equitable estoppels lies at the foundation of morals. In Mitchell v. Reed, Cal. 204, it was held that where a statement made to a third person is not confidential, but gen- eral, and is acted on by others, the party making the declaration is estopped to deny its truth; that the intention with which the declaration is made is not material, except, perhaps, where it is confidential. This case and Quirk v. Thomas, 6 Mich. 76, are au- thorities that to work the estoppel it is not necessary the declaration should be made to the party who acts on it, nor in his presence, nor that the declaration should be intended to come to the knowledge of any particular person. In a suit at law to recover damages for a false affirmation that the signer of a note was of age, it was decided, in Lobdell v. Baker, 1 Mete. (Mass.) 193, that it was not necessaiy to allege or prove that the defend- ant knew the signer was an infant. Wilde, J., in delivering the opinion of the court, said: "A party may render himself liable in an ac- tion for damages to a party prejudiced by a false affirmation, though not made with any fraudulent intention." This, it may be- said, is not directly in point, but the only dif- ference is in the form of the remedy. The principle involved is the same, whether the 46 THE DOCTRINES OF EQUITY. question is raised in a suit to recover dam- ages for the false representation, or redress is sought by estopping the party to prove the falsehood of the representation. Both cases go on the same general ground that the party is responsible for the consequences of his false representation. There are numerous authorities that it is not necessary to the estoppel that the decla- rations or conduct should be intended to de- ceive any particular person or persons; that, if they were intended to deceive generally, or were of such a character, and made in such circumstances, that it must have been under- stood they were likely to deceive, and any person using due diligence was in fact de- ceived by them, it is enough. Gregg v. Wells, 10 Adol. & B. 90; Wendell v. Van Rensselaer, 1 Johns. Ch. 353; Adams v. Brown, 16 Ohio St. 78; Dezell v. Odell, 3 Hill, 221; Quirk v. Thomas, 6 Mich. 76; Mitchell v. Reed, 9 Cal. 204. It has been declared in many cases that this equitable estoppel involves a question of legal ethics, and applies wherever a party has made a representation, by words or con- duct, which he cannot in equity and good conscience prove to be false; and that this kind of estoppel, being a broad doctrine of equity, cannot be limited in application by the terms of any narrow legal definition. In Canal Co. v. Hathaway, 8 Wend. 483, it is said by Sutherland, J., that the party is estopped when in good conscience and equity he ought not to De permitted to gain- say his admission; and in the same case, by Nelson, X: "From the means in which the party must avail himself of these estoppels, it is obvious there can be no fixed and settled rules of universal application." And in De- zell v. Odell, 3 Hill, 225, Bronson, J., adopting the language of Nelson, J., in Canal Co. v. Hathaway, adds, "It is a question of eth- ics." In Strong v. Ellsworth, 26 Vt. 366, Reclfield, J., says the doctrine lies at the foundation of morals. In Lucas v. Hart, 5 Iowa, 415, the court holds that: "In these estoppels there can be no fixed and settled rules of universal application to regulate them as in technical legal estoppels; that in many, and probably in most, instances, whether the act or admission shall operate as an estoppel or not must depend on the cir- cumstances of the case, though there are some general rules which may materially as- sist in the examination of such cases." In the application of these general rules to that case the court decided that the acts and ad- missions of the respondent estopped him from asserting his title to the property in question; that to permit him to do it would be "un- conscionable, and contrary to that fairness and honest dealing which courts of equity seek ever to promote and encourage." In Frost v. Saratoga Ins. Co., 5 Denio, 154, it is said by Beardsley, C. J., that such an estoppel is a' question of ethics, and is al- lowed to prevent fraud and injustice, and exists wherever a party cannot in good con- science gainsay his own acts or assertions. The case of Preston v. Mann, 25 Conn. 118, is strong to the point that this estoppel, de- pending on a broad doctrine of equity, cannot be governed in application by narrow and strict rules of construction, such as have pre- vailed in legal estoppels. In some, if not in most, of the cases, in which it is said that if a party makes repre- sentations intending to deceive the party that acts on them, the equitable estoppel applies, it was not intended, as I think, to lay down a rule excluding all cases that did not fall within the statement made in reference to the facts of the case then under considera- tion; that what is said is not to be taken as a rule to limit and define the doctrine and exclude all other cases. They say, if such and such things concur, "this case will fall within the doctrine"; but they do not intend to say no other cases are within it. For ex- ample, in Kinney v. Farnsworth, 17 Conn. 361, Storrs, J., says that "admissions which have been the means, designedly, of leading others to a particular course of conduct, can- not afterwards be conscientiously retracted by one who has made them." He could not have intended to lay down the rule that one would in no case be estopped by a repre- sentation not designed to deceive, because the same judge, in Preston v. Mann, says: "The doctrine is not reduced to the limits of any formula," and, "whatever the motive may be, if one so acts or speaks that the natural consequence of his words or conduct will be to influence another to change his con- dition, he is legally charged with the intent to induce the other to believe and to act on that belief, if such proves to be the result." So Lord Denman, speaking, in Gregg v. Wells, 10 Adol. & E. 90, of his judgment in Pickard v. Sears, says: "The principle of that case may be stated even more broadly than it is there laid down." In this state we have several cases where the general question has been more or less considered. In Wells v. Pierce, 27 N. H. 503, the doctrine of equitable estoppel was traced to its origin in equity, and it was held that if the owner actively encourages the pur- chase of his property from another, he will be precluded from claiming it, though he was not aware of his interest at the time; which is clearly in conflict with the notion that the representation must be accompanied with an intention to deceive. In Davis v. Handy, 37 N. H. 65, the doctrine of Wells v. Pierce was approved and applied. In the recent case of Drew v. Kimball, 43 N. H. 285, one point directly involved was whether it was necessary that the party to be estop- ped should intend to deceive and defraud the individual to whom the repiesentation was made, and who set up the defence; and it was held that it was not necessary. Indeed it seems to me that it would be trifling with a doctrine depending on equity and good con- THE DOCTKINES OF EQUITY. 47 science to hold otherwise. So, if a repre- sentation was intended to deceive one man, and it in fact deceived and defrauded an- other. Then, again, if the representation were intended to have one operation, and, as it turned out, deceived and defrauded by another method not contemplated by the party at the time, but still the natural con- sequence of the representation, it would be quibbling with a doctrine depending for its application on the morality of the act to hold that the party would not be answerable for the consequences of his false and fraudulent representation as much as if it had taken effect on the party and in the manner intend- ed. In a case depending on a question of "legal ethics," it would bring down the mor- ality of the law to a very low standard to hold that a party was not liable for the wrong caused by his fraud to one man, be- cause the fraud was contrived against an- other man. In Drew v. Kimball the case did not raise the precise point taken in this case. But, on a full discussion of the general doctrine, and a review of the authorities, the court, adopt- ing the hypothetical case put by Parke, B., in Freeman v. Cooke, say: "If, whatever a man's intentions may be, he so conducts him- self that a reasonable man would take the representation to be true, and believe it was meant he should act upon it, and he did act upon it, as true, the party making the repre- sentation would be equally precluded from contesting its truth. In short, the repre- sentations are to be regarded as willful when the person making them means them to be acted on, or if, without regard to intention, he so conducts himself that a reasonable man would take the representation to be true, and believe it was meant he should act on it." There have been several other cases in this state where this equitable doctrine has been considered and applied. Thompson v. San- horn, 11 N. H. 201; Simons v. Steele, 36 N. H. 73; McMahon v. Portsmouth Mut. Fire Ins. Co., 22 N. H. 15; Odlin v. Gove, 41 N. H. 473; Corbett v. Norcross, 35 N. H. 99, 115; Richardson v. Chickering, 41 N. H. 380, 385. Though I do not find that the precise point taken here for the plaintiff has been directly decided in any of our cases, yet the general current of our decisions on the sub- ject tends to a liberal application of the doc- trine for the suppression of fraud and dis- honesty, and the promotion of justice and fair dealing. No disposition has been shown in the courts of this state to treat this equita- ble estoppel as odious, and embarrass its ap- plication by attempts to confine it within the limits of a narrow technical definition. We are content to follow where the spirit and general tone of these decisions lead ; and they lead plainly to the conclusion that, where a man makes a statement disclaiming his title to property, in a manner and under circum- stances such as he must understand those who heard the statement would believe to he true, and, if they had an interest in the sub- ject, would act on as true, and one, using his own means of knowledge with due dili- gence, acts on the statement as true, the party who makes the statement cannot show that his representation was false, to the in- jury of the party who believed it to be true, and acted on it as such; that he will be lia- ble for the natural consequences of his rep- resentation, and cannot be heard to say that the party actually injured was not the one he meant to deceive, or that his fraud did not take effect in the manner he intended. Our conclusion is that, on the facts which the verdict has established, the plaintiff was estopped to show his representation that the goods belonged to Charles E. Horn to be false, though he did not know that the de- fendant Cole had any demand against Charles B. Horn, and though he had not Cole in his mind as the party whom he meant to deceive. Judgment on the verdict 48 THE DOCTBINES OF EQUITY. PENN et al. v. GUGGENHEIMER et al. (76 Va. 839.) Supreme Court of Appeals of Virginia. Oct. 16, 1882. Appeal from circuit court, Botetourt county. Bill by Max Guggenheinier and others against William J. Penn, as administrator of Stuart B. Penn and in his own right, Ann S. Penn, and others, to ascertain the interest of William J. Penn in the estate of S. B. Penn, deceased, and to subject the same to judgments of plaintiff against said William J. Penn. Under the will of Charles B. Penn certain lands were given to his children. He owned a third interest in cer- tain land on James river, known as the "Home Place," the other two-thirds of which belonged to his wife by descent from her father. Under said will he expressed a wish that his wife should retain the "home place," and at her death it should be the property of her son Stuart B. Penn. The widow, in 1850, received the personal estate given to her under the will of her husband, and gave a receipt reciting that she received it "agree- ably to the provisions of his said last will and testament." At the same time the "home place" was put on the land book of the county and assessed for taxes in her name as tenant for life and devisee of her husband. She never renounced the will, nor had dower assigned, but she filed an answer in 1867 to the plaintiff's bill, in which an- swer she denied that she had done anything to divest herself of her two-thirds in the "home place." The circuit court entered a decree that the widow had elected to accept the provision in the will of her husband, and that the remainder of the "home place" passed on the death of the said Stuart B. Penn, childless, among others, to the said William J. Penn, who was entitled to an interest of one-fourth, subject to his moth- er's life estate, which interest was liable to be subjected by his creditors to the satis- faction of their judgment liens. From this judgment Ann S. Penn appealed, and, pend- ing the appeal, died. Affirmed. Edmund Pendleton, for Mrs. Ann S. Penn. J. H. H. Figgatt and John J. Allen, for Max Guggenheimer. G. W. & L. C. Hansbrough, for George Skillen Penn and Mrs. Frances L. Mayo. STAPLES, J. The main question in this case turns upon the construction to be giv- en to the will of Charles B. Penn which was admitted to probate at the September term of the county court of Botetourt, In the year 1849. The testator, at the time of his death, was possessed of a valuable real and person- al estate, which he devised and bequeathed to his wife, Mrs. Ann Penn, and to his four children. To his two sons George S. Penn and William Penn he gave severally a tract of land. To Mrs. Mayo, his married daugh- ter, he gave certain real estate and a sum of $10,000 iii bank stock. To his wife he be- queathed all his slaves, with the full confi- dence that she would make such disposition of them among his children as should be just and equitable, after retaining such of them as she might desire for her own use during her lifetime. His other personal es- tate he directed to be sold, and the balance remaining, after the payment of his debts, together with the proceeds of any real es- tate not specifically devised, he bequeathed to his wife, with the full confidence that she would divide it among his children as she might deem just and proper. The third clause of the will, which gives rise to this controversy, is as follows: "It is my will and desire that my wife shall retain the home place, and at her death it shall be the property of my son Stuart B. Penn, which I hereby give to him, his heirs, and assigns forever." The home place, thus mentioned by the testator, is a tract of about 820 acres, one- half of which, known as the "lower half," was the property of Mrs. Penn, devised to her by her father. She was also the owner of one-third of the upper half of the tract, derived by descent from her sisters. The testator was entitled to two undivided thirds acquired by purchase in the upper half of the tract. So that his interest at the time of his death did not exceed one-third of the entire tra,ct. The first question arising under the clause already quoted is whether the testator in- tended to dispose of the entire -tract, or whether the will is to be construed as dis- posing merely of his undivided third. If the former interpretation be the true one, it is conceded that it was incumbent upon Mrs. Penn, the widow, to make her election, and that she cannot claim both her own estate and the provision made for her by the will. Before entering into a diucufsion of that question it will be proper briefly to advert to some of the principles of law governing in such cases. The doctrine of election is said to rest up- on the equitable ground that no man can be permitted to claim inconsistent rights with regard to the same subject, and that any one who asserts an interest under an instrument is bound to give full effect, as far as he can, to that instrument. Or, as it is sometimes expressed, he who accepts a benefit under a deed or will must adopt the contents of the whole instrument, conform- ing to all its provisions, and relinquishing every right inconsistent with it. In the terse language of Lord Rosslyn in Wilson v. Lord Townsend, 2 Ves. Jr. 697: "You cannot act. You cannot come forth to a court of justice claiming in repugnant rights. When you claim under a deed, you must claim under the who?e deed together. You cannot take one clause, and advise the court to shut their eyes against the rest THE DOCTKINES OF EQUITY. 4£> Suppose, in a will, a legacy is given to' you by one clause; by another, an estate of which you are in the possession is given to another. , While you hold that, you shall not claim the legacy." 1 Pom. Eq. Jur. §§ 465, 4G6; 1 White & T. Lead. Cas. Eq. pt. 1, pp. 541, 547, 548; Kinnaird v. Williams, 8 Leigh, 400; Craig v. Walthall, 14 Grat. 518; Dixon v. McCue, Id. 540. In order, however, to raise a case of election, it is well settled the intention on the part of the testator to give that which is not his own must be clear and unmistakable. It must appear from lan- guage which is unequivocal, which leaves no room for doubt as to the testator's design. The necessity for an election can never arise from au uncertain or dubious interpretation of the clause of donation. 1 Pom. Eq. Jur. § 472; 2 Story, Eq. Jur. § 10. It is not necessary, however, that this in- tention should be expressly declared. The dispositions of the instrument, fairly and reasonably interpreted, may of themselves show a clear design on the part of the testa- tor to bestow upon the devisee property which in fact belongs to another. As in other cases, the intention may be gathered from the whole and every part of the instrument. The difficulty of ascertain- ing the testator's intent, it is said, is al- ways much greater where he has a partial interest in the estate devised than where he undertakes to dispose of an estate in which lie has no interest. In the former case, the presumption is that he intended to dispose of that which he might properly dispose of, and nothing more; and this presumption will always prevail, unless the intention is clearly manifested by demon- stration plain, or necessary implication on the part of the testator to dispose of the whole es- tate, including the interest of third parlies. Generally, when the testator has an undivided interest in certain property, and he employs general words in disposing of it, as "all my lands," or "all my estate," no case of election arises from it; for it does not plainly appear that he meant to dispose of anything but what was strictly his own. 2 Story, Eq. Jur. § 1087; 1 Pom. Eq. Jur. § 489. A case of election does arise, however, when the testator, having an undivided or partial Interest in an estate, devises it specifically, thus indicating a purpose to bestow it as an entirety. This rule on this subject is thus laid down in 1 Pom. Eq. Jur. § 480. Where the testator proposes to give the whole thing itself, using language which, by reasonable in- tention, must necessarily describe and define the whole corpus of the thing in which his particular interest exists as a distinct and identified piece of property, then an intention to bestow the whole, and not merely the tes- tator's individual share, must be inferred, and a case for an election arises. This rule is mentioned and commented on by Judge Chris- tian in delivering the opinion of this court in Gregory v. Gates, 30 Grat. 83, to which I refer fet.eq juk — 4 as authority for other views here announced. Now, let us apply these principles to the case in hand. In the first place, there can be no doubt that the tract of land or estate in ques- tion was universally known and described as the "Home Place." It is so spoken of by all the witnesses, by the parties, and it was so de- nominated in all the pleadings. Mrs. Penn, in her answer, describes it as the "Home Place." She speaks of the "upper half of the home place" and the "lower half of the home place." It is scarcely to be supposed that the testator would term it differently from every other person; that he referred only to his partial interest of one-third when by universal consent, usage, and habit, the entire tract was known and recognized as the home place. His language is: "That my wife shall retain the home place, and at her death it [the home place] shall be the property of my son Stuart B. Penn, which I hereby give him. .his heirs and assigns, forever." What gives some sig- nificance, at least, to this language is that the mansion house, occupied by the testator and his family for many years, was located, not. upon the half in which the testator had an interest of two-thirds, but upon that portion; exclusively owned by Mrs. Penn. It was this portion upon which the family resided that might with some propriety be termed the- "Home Place," and not the two undivided thirds of one-half, constituting merely a part j of the tract It was said in the argument before this ! court that the language of the clause now un- | der consideration is different from the other clauses of the will. For example, that the testator, when disposing of his own property, I invariably uses the words, "I give and be- queath," whereas in the present instance he merely expresses the wish that his wife shall 1 retain the home place. This difference of phraseology grows out of the fact that the tes- tator was carefully defining and limiting an ! estate to be enjoyed by his wife during her ' life, and the language used by him was such as he supposed would accomplish the object. He then proceeds to say that it is his will and desire at her death it (the home place) "shall be the property of my son Stuart B. Penn. which I hereby give him, his heirs and as- signs, forever." It is impossible by argument or illustration to add to the force and perspicu- ity of this language. Nothing can be plainer, more direct and comprehensive. The cases of Padbury v. Clark, 2 Main. & G. 298; Howells v. Jenkins, 2 Johns. & H. 706; Grosvenor v. Durston, 25 Beav. 97; Grissell v. Swinhoe, L. R. 7 Eq. 291, 295,— in which it was held that the devisee was bound to elect,— are directly in point and conclusive of the question. The other dispositions made by the testator confirm thoroughly this view of his intention. He gave to his son George S. Penn an estate worth about $11,000, to his son William Penn an estate of the value of $14,000, and to Mrs. Mayo property worth $12,000 or $15,000. The provision made for his wife was more 50 THE DOCTKLNES OP EQUITY. than sufficient for her support and mainte- nance during her life in the most comfortable and abundant manner. If, however, he de- signed that his son Stuart B. Penn should take the one-third of the home place, subject to the incumbrance of the life estate, the provision for him was wholly inadequate, and dispro- portionate to the benefits conferred upon his other children. On the other hand, if the tes- tator intended that the entire home place should be the property of his son Stuart B. Penn, the period of his enjoyment would be postponed until the death of Mrs. Penn, and the value of the devise would be about equal to the provision for the other children. I am therefore of opinion that by the plain terms of the will Mrs. Penn was put to her election, and that she could not and cannot choose both her own estate and the bequests made in her favor. The next inquiry is, whether Mrs. Penn did, in fact, elect to claim under the will. An election may be implied as well as ex- pressed. Whether there has been an election must be determined upon the circumstances of each particular case, rather than upon any general principles. 1 White & T. Lead. Cas. Eq. 539, 571, 572. It may be inferred from the conduct of the party, his acts, his omis- sions, and his mode of dealing with the prop- erty. Unequivocal acts of ownership, with knowledge of the right to elect, and not through a mistake with respect to the condi- tion and value of the estate, will generally be deemed an election to take under the will. 1 Pom. Eq. Jur. §■§ 514, 515. Lapse of time, al- though not of itself conclusive, yet, when con- nected with circumstances of enjoyment, may be decisive upon the question of election. In Adsit v. Adsit, 2 Johns. Ch. 448, 451, Chancellor Kent said: "Taking possession of property under a will or other instrument, and exercising unequivocal acts of ownership over it for a long period of time, will amount to a binding election." "Positive acts of acceptance or renuncia- tion," says Mr. Justice Story, "may arise from long acquiescence, or from other circumstances of a stringent nature, and are not indispensa- ble." "Again," he says, "it may be necessary to consider whether he [the devisee] can restore other persons affected by his claim to the same situation as if the acts had not been perform- ed, or the acquiescence had not existed, and whether there has been such a lapse of time I as ought to preclude the court from entering j upon such inquiries upon its. general doctrine I of not entertaining suits upon stale demands , or after long delays." 2 Story, Eq. Jur. §§ 1097-1098. Where the election is once made by the party bound to elect, either expressly' or im- pliedly, and with full knowledge of all the facts, it binds not only himself, but also all those parties who claim under him, his rep- resentatives and heirs. 1 Pom. Eq. Jur. § 516. Let us apply these principles to the case be- fore us. Upon the death of the testator, in the year 1849, Mrs. Penn continued in the pos- session of the home place until the present time, a period of 30 years. It does not appear that she ever expressed any dissatisfaction with the provisions of the will till the filing of her answer in the cause in the year 1867. In the year 1850 the entire tract was entered upon the commissioner's books of the county and assessed with taxes in her name, as ten- ant for life. Whether this was done by her direction or not, it does not appear. -It can scarcely be supposed she was ignorant of a fact disclosed on every tax ticket paid by her. It has been already stated that by the will testator's slaves were given to Mrs. Penn, in full confidence that she would make such dis- position of them among his children as would be just and equitable, after retaining such proportion of them as she might desire for her own use during her life. The residue of the real and personal es- tate was also given to her in trust for the benefit of the children. In the year 1850,— not long after the testator's death,— the ex- ecutors turned over to her the entire person- al estate, including slaves, and took her re- ceipt, stating that this was done in con- formity with the provisions of the will. The executors must therefore have understood that Mrs. Penn had accepted the provision made for her benefit. Upon no other ground would they have been warranted in thus dealing with the assets. The terms of the receipt given by her show that she was per- fectly apprised of the contents of the will, that she knew the condition and value of the property, and that she had united with the executors in fulfilling the intentions and wishes of the testator. Had Mrs. Penn re- nounced the will, as she was bound to do, in order to claim her own estate, she would have been entitled only to one-third of the slaves for life, and one-third of the personal property absolutely. As it was, she received from the executors under the will 49 slaves, of the value of $18,370, and other property, worth between $5,000 and $6,000. The testi- mony shows that Mrs. Penn never made any formal division of the property; that she, however, distributed among her children about 12 of the slaves, retaining the residue in her own possession, for her own use and benefit, until their emancipation in I860. It is of no sort of consequence that during his lifetime Stuart B. Penn resided at the home place, and managed and controlled all the operations of the estate. This was, of course, done by the authority of Mrs. Penn, and doubtless for the reason that it was more agreeable to her that one of her sons should relieve her of the trouble and re- sponsibility, to which, amid the infirmities of declining years, she was unequal. She certainly exercised a dominion and owner- ship of the property, to which she was en- THE DOCTRINES OF EQUITY. 51 titled only under her husband's will, and which she could never have assumed unless she intended to conform to its provisions. After this long lapse of time, after this long-continued enjoyment and possession of the estate, and unequivocal recognition of the provisions of the will by receiving the property from the executors, it is too late for Sirs. Penn, at this day, to disclaim the testator's bounty, and assert title to her own estate. The slaves have long since been emanci- pated, the personal property exhausted, and it is now impossible to place the children in the condition they would have occupied had Airs. Penn in the outset declared her inten- tion to hold her own property. So far from it, it is very clear that she made her election to claim under the will, and that she did so with a deliberate and intelligent choice, and with a full knowledge of all the circumstances, and of her own rights. No possible injury can accrue to any one from the conclusion thus reached, for Mrs. Penn lived and died in the enjoyment of the estate. She never attempted any other disposition of it. Stuart B. Penn, the devisee, is dead, with- out children, and the estate has passed in due course of law to Mrs. Penn's children. A contrary decision can result only in dis- turbing a condition of things settled and acquiesced in for many years by all parties. I think, therefore, there is no error upon this branch of the case in the decision of the circuit court The learned counsel for the appellant, in his petition for an appeal, and in his argu- ment before this court, has taken the ground that the parties bringing this suit are neither heirs nor purchasers nor beneficiaries under the will of Charles Penn, but judgment cred- itors of William J. Penn, and, as such, in- truders and volunteers, seeking to set aside a family settlement, and to vest in William J. Perm an interest which he himself does not claim, and to which he never asserted any title. It will not be denied that com- plainants, by virtue of their judgments, have a lien upon all the real estate of their debtor, and that under our statute they may enforce that lien in a court of equity. This right of the complainants, and, in- deed, of all judgment creditors, cannot be affected by any omission of disclaimer on the part of the debtor. According to repeat- ed decisions of this court, when the free- hold has once vested, the owner cannot di- vest himself of the title by any mere parol disclaimer; but he can only do so by deed or some other act sufficient to pass an es- tate. Even had William J. Penn executed such deed, voluntarily relinquishing his title, his creditors would not be bound by it. When the court has once settled that Stuart B. ""enn is entitled to the home place undei the will of his father, William J. Penn, as one of his heirs, has an absolute title to his just share or proportion of that estate. and his creditors may not only subject it to satisfaction of their debts, but they may re sort to a court of equity for the purpose of ascertaining that interest, and of removing every obstacle in the way of the just en- forcement of their liens. William J. Penn can no more defeat the claims of his cred- itors by a disclaimer of title than he could do so by a voluntary deed, or gift or assign- ment. In Dold v. Geiger's Adm'r, 2 Grat. 98, It was held that choses in action, to which the wife becomes entitled during coverture, are liable to the claims of the husband's cred- itors, and a voluntary relinquishment of the same by the husband, and a settlement upon the wife, before being reduced into posses- sion, will not protect such choses in action from such creditors' claims. Judge Stanard, in answer to an objection similar to the one made here, said: "I think it may safely be laid down as a just deduc- tion from the elementary principles of our law that the general rule is that the rights of property of a debtor, whether in posses- sion or in action, present or reversionary, in law or in equity, and of value adequate to pay his debts, and without which he is insolvent, and the payment of his debts must be frustrated, cannot by the mere vo- lition of the debtor, in the form of assign- ment, surrender, or other modes of arrest, pass to volunteers without valuable consid- eration, and be thereby placed in the hands of such volunteers, beyond the reach and secure from the claims of such creditors." This opinion of Judge Stanard, and, indeed, the decision itself, constitutes a complete answer to the points made by counsel, ami render unnecessary any further discussion of the subject. The next question is whether the circuit court erred in disallowing the account of William J. Penn against the estate of Stuart B. Penn, for money alleged to have been paid by the former as administrator of Stuart B. Penn. The latter died in the year 1S57, considerably indebted. William B. Penn qualified as his administrator, and re- moved to the home place, thereafter resid- ing with his mother, the life tenant. There is no doubt that the net income derived from the estate was appropriated by him to the payment of his brother's debts. The only question is whether this income was sufficient for that purpose, or whether any part of the indebtedness was discharged by William J. Penn out of his private means. William J. Penn, in one of his depositions, states that from 1857 to 1860 he realized from the home place an income of $6,190.15, all of which, by the direction of his mother, was applied to the payment of his brother's debts. He further states that Stuart B. Penn had a note in bank of $4,600, for which the witness, at the request of his mother, substituted his own note. The larger por- THE DOCTRINES OF EQUITY. tion of this latter note was paid off by him in February, 1804, and the balance in 1S65, in Confederate money. This, reduced to its actual value in sound money, amounts to a very insignificant sum. In the concluding part of William J. Penn's deposition he expresses the opinion that he has been fully reimbursed for all moneys ex- pended by him in the payment of his brother's debts. Unfortunately for the par- ties setting up this claim, William J. Penn is their witness, and their only witness. They cannot ask the court to discard their own testimony, and enter a decree in their favor upon a case unsupported by proof. I have no doubt, however, that William J. Penn has given an accurate and truthful ac- count of his transactions and dealings with tne estate. The home place was regarded as one of the most valuable estates on James river, yielding a large income annually to its own- ers. A very small portion of its profits was required for the support of Mrs. Penn; the balance passed into the hands of William J. Penn, and I am satisfied that he was fully reimbursed for every dollar appropriated by him for the payment of his brother's debts. The complainants, after the fullest oppor- tunity, have been unable to adduce any tes- timony to the contrary. They are clearly not entitled to a reversal of the decree in the present state of the case, and it is most ap- parent that nothing is to be gained by fur- ther inquiry. Upon the whole, I think the decree of the circuit court should be affirmed. Decree affirmed. THE DOCTRLNES CF EQUITY. 53 DEICHMAN v. ARXDT. (22 Atl. 799, 49 N. J. Eq. 106.) Court of Chancery of New Jersey. Oct. 26, 1891. Action by Deichman against Arndt for the construction of a will. Charles A. Fitch, for complainant. Wm. M, Davis, for defendant BIRD, V. C. By the bill in this ca.se the complainant asks the aid of the court in determining the true construction of the last will of Ann Arndt, deceased, and con- sequently the rights of the legatees and devisees under said will. At the time or her death and of the making of her will she was the owner of a lot of land with a dwelling thereon, in which she resided. Before the making of her will she gave a bond to William M. Davis, the guardian of Harry King Arndt, one of her infant children, conditioned for the payment of ,$500, with interest. To secure this bond she gave a mortgage upon said house and lot. By her willshedevises this house and lot to her son Hariy in the following language: "I give to my son Harry King Arndt, absolutely, to be held in trust, however, by my executor hereinafter named, the dwelling-house and lot where- in I now reside, situate on Main street, in Phillipsburg, N. J., until he arrives at the age of twenty-one (21) years; my executor to rent the same, collect the rent, pay all taxes, insurance, services, and repairs, and the balance remaining to be used for the support and maintenance of my son Har- ry King Arndt, hereinbefore named." Two questions are presented in the bill for consideration, viz.: Is the devise to be regarded as a payment and discharge of the bond, and is the gift to Harry an absolute fee? In this case the testatrix in clear language directs that all of her debts be paid as soon as conveniently can be after her decease. She makes disposi- tion of her personal estate, including bank- stock, giving a portion thereof to her daughter, a portion to another son, and a portion to the said Harry. The divis- ion of this personal property is not equal, but the extent, of inequality is not made apparent. She first gives to her daugh- ter certain household furniture; and, in the second place, to her son Frank cer- tain household furniture; and, in the third place, makes the devise of the house and lot to Harry. She then provides for the protection of her cemetery lot, and gives the three children all of her silver-ware. Immediately after this she directs her ex- ecutor to sell "the balance of my house- hold effects, "and to divide the proceeds thereof between her three children, direct- ing him, however, to hold the share of Harry until he arrives at the age of 21 years. Then she directs her executors to collect the dividends of her 19 shares of bank-stock, and to pay the same towards the support and maintenance of Harry until he arrives at the age of 21 years, at which last-mentioned date he is author- ized to sell the said stock and divide the proceeds between her threechildren. Not- withstanding this last provision, she au- thorizes her executor to sell all the said shares of bank-stock at such time or times as he shall think fit, and to invest the proceeds, and pay the interest thereof for the support and maintenance of her son Harry until he arrives at the age of 21 years. She then directs that the residue of her estate, "consisting principally of bonds and mortgages and notes, money and stock, should be divided equally be- tween my three children, share and share alike, my executor, however, retaining that portion falling to my son Harry King Arndt until he arrives at the age of tweuty-one years." From this it appears that the testatrix was indebted to the guardian of her son in the sum of f50!l: that she made her said son both devisee and legatee, imposing a condition upon the devise that the executor should re- ceive the rents and profits until the son arrives at the age of 21 years, for his sup- port and maintenance, and a like condi- tion upon the gift of the legacy ; and that. as the matter stands, both the devise and the legacy are of uncertain value. Where there is nothing to show a contrary in- tention upon the part of the testator, and he directs the payment of his debts, the gift of a legacy is never presumed to have been given for the purpose of discharging a debt due from the testator to the lega- tee. Van Riper v. Van Riper, 2 N. J. Eq. 1 , Heisler v. Sharp, 44 N. J. Eq. 167, 14 Atl. Rep. 624; Rusling v. Rusling, 42 N. J. Eq. 594, 8 Atl. Rep. 534; Chancey'sCase.l P. Wms. 408,410, 2 White & T. lead. Cas. 752, notes, 820; Reynolds v. Robinson, 82 N. Y. 103; Boughton v. Flint, 74 N. Y. 477; In re Huish, 43 Ch. Div. 260. The courts so little favor the discharge of debts by legacies that they have uniformly laid hold of slight circumstances to overcome the presumption that payment was in- tended independently of the direction to pay debts. Hence, when the gift has been of land or of goods and chattels, or upon conditions unfavorable to the donee when compared with the present discharge of the debt, the payment of both has been required. 2 White & T. Lead. Cas. 821. "Money and land being things of a differ- ent kind, the one, though of greater value, shall never be taken in satisfaction of the other, unless so expressed." "Whatever is given by will is prima facie to be in- tended a benevolence." Eastwood v. Vinke. 2 P. Wms. 613, 616. In this case the court remarked: "But, though the court has gone so far, it never yet construed a devise of land to be a satisfaction for a debt of money." In Bryant v. Hunter, 3 Wash. C. C. 48, Fed. Cas. No. 2,068, Washington, J., says: "The general rule is that a devise of land is not a satisfaction or part performance of an agreement to pay money. " See, also, Eaton v. Benton, 2 Hill, 576, 580. The bond in this case being for the payment of money, and the gift being land, the construction must necesswrily be con- trolled by the cases cited. It can make no difference that the payment of the bond was secured hy mortgage on the land de- vised. It cannot be doubted but that the gifts of goods and chattels and proceeds of bank-stock and residue by the testa- trix to her son Harry are alike subject to the same conditions that govern with 54 THE DOCTRINES OF EQUITY. respect to the devise of land. According to nil of the cases there is no similitude whatever between those gifts and the ob- ligation which the testatrix had directed her executor to pay. I have not thousrht it necessary to put any stress upon the fact that both the bond and the mortgage were given to the guardian of the devisee and legatee. It has been suggested that if this honrl be paid to the guardian of Harry, Harry's proportion of the estate of the testatrix will lie much larger than the portion re- ceived by his brother and sister. This would be an important consideration if it were the duty of courts to construe wills so as to make an equal disposition of the estate disposed of thereby among legatees and devisees, irrespective of the directions of the will. There is nothing in this will to give any certain assurance to the court that the testatrix intended to make an equal disposition of her es- tate among herchildren. If there beany inequality in the value of the gifts, the testatrix may have had very good reason therefor; but, whether she had or not, she had a lawful right to make any dis- tinction she chose. This bond must be first paid out of the personal estate, as other debts, before the payment of any of the legacies. The next question presented for consid- eration is whether or not the interest de- vised to Harry be less than the fee-simple absolute. When the sentence making the devise to Harry is read, if there beany doubt as to the extent of the interest de- vised, such doubt will be dissipated upon careful reflection. The testatrix first de- clares that she gives him the premises ab- solutely, but afterwards gives such direc- tions as at first view would seem to have been intended as a qualification to the ex- tent of limiting his interest to the rents and profits until he arrives at the age of 21 years. But when this sentence and this apparent qualification are read in connec- tion with the succeeding clauses in the will, by which gifts are made to Harry, the doubt is removed. She ordered the silver to be divided between her three children ; but Harry's interest in other personal property and in the bank-stock and in the residue of the personal property is to be retained by the executor, and the in- terest and dividends paid to Harry, until he arrives at the age of 21 years, when he is entitled to the possession of the prin- cipal. From the control given to the ex-, ecutor over the interest of Harry until he arrive at the age of 21 years the testa- trix in all probability intended to provide against the necessity of appointing a guardian for him. In my judgment the fee-simple absolute vested in Harry. THE DOCTRINES OF EQUITY. 55 RICHARDS v. HUMPHREYS. (15 Pick. 133.) Supreme Judicial Court of Massachusetts. Oct. Term, 1833. By an agreed statement of facts It ap- peared that John Hawes, the defendant's tes- tator, on October 23, 1813, made his last will, by which he bequeathed to the plaintiff, who was his sister, the sum of $500, she being then the wife of Jeremiah Richards; that the plaintiff, having been informed of this legacy by the testator, applied to him to ad- vance her money, in order to enable her to make a purchase of some land; that, in con- sequence of her application, the testator, on December 7, 1826, advanced the sum of $466, and she gave a receipt therefor, which stat- ed that the money was received of the tes- tator "in part of her right of dower in his last will and testament"; that this payment took place without the interference or par- ticipation of the plaintiff's husband; and that the testator stated to the plaintiff that he was desirous of paying off, in his lifetime, this legacy, and several others, given by him to his brothers and sisters and their children, and offered to pay her the residue of the legacy given to her, but that she declined re- ceiving it on that occasion. It further appeared that the plaintiff's hus- band died on. February 4, 1828; that the tes- tator died on January 22, 1829; that the will was duly proved and allowed on June 14, 1830; that on March 2, 1832, the plaintiff de- manded of the defendant the payment of the legacy, and that the defendant offered to pay the residue of the legacy after the sum of $4G6 should be deducted, and, upon the entry of this action in the court of common pleas, brought into court the sum of $35.S7. If the court should be of opinion that the plaintiff was entitled to recover the whole of the legacy, then the defendant was to be defaulted, and judgment to be rendered against the estate of the testator for such sum as the court should determine to be proper; otherwise the plaintiff was to be- come nonsuit. Metcalf & Lovering, for plaintiff. Mr. Ayl- win, for defendant, SHAW, C. J., drew up the opinion of the court. The only quesiton left for the deci- sion of the court in the present case is whether the payment made by John Hawes, the testator, in his life, to his sister, Mrs. Richards, the present plaintiff, under the cir- cumstances in proof, amounted to an ademp- tion, pro tanto, of the legacy now sued for. The ademption of a specific and of a gen- eral legacy depends upon very different prin- ciples. A specific legacy of a chattel, or a particular debt, or parcel of stock, is held to be adeemed when the testator has collected the debt, or disposed of the chattel or stock, in his lifetime, whatever may have been the intent or motive of the testator in so doing. But when a general legacy is given, of a sum of money, out of the testator's general assets, without regard to any particular fund, inten- tion is of the very essence of ademption. The testator, during his life, has the absolute power of disposition or revocation. If he pay a legacy in express terms during his lifetime, although the term "payment," "sat- isfaction," "release," or "discharge" be used, it is manifest that it will operate by way of ademption, and can operate in no other way, inasmuch as a legacy, during the life of the testator, creates no obligation on the testa- tor or interest in the legatee, which can be the subject of payment, release, or satisfac- tion. If, therefore, a testator, after having made his will, containing a general bequest to a child or stranger, makes an advance, or does other acts, which can be shown by ex- press proof or reasonable presumption to have been intended by the testator as a sat- isfaction, discharge, or substitute for the lega- cy given, it shall be deemed in law to be an ademption of the legacy. Hence it is that when a father has given a child a legacy as a portion or provision for such child, and afterwards, upon the event of the marriage or other similar occasion, makes an advance to such child as for a portion or provision, though to a smaller amount than the legacy, it shall be deemed a substitute for the pro- vision contemplated by the will, and thence as an ademption of the whole legacy. This is founded on the consideration that the duty of the father to make a provision for his child is one of imperfect obligation, and vol- untary; that his power of disposing is en- tire and uncontrolled; that he is the best and the sole judge of his ability in this respect, and of the amount which it is proper for him to appropriate to any one child as such pro- vision. The law presumes, in the absence of other proof, that it was the intention of the father by the legacy to make such provision; that it was not his intention to make a double provision; that when, after the will is executed, another provision is made for the same child, the original intent of making such provision by will is accomplished and completed; that the purpose of giving the legacy is satisfied, and, of course, concludes; that the legacy itself is adeemed. And if the subsequent portion or provision made in the lifetime of the testator is less than the laga- cy, still it operates as an ademption of the whole legacy, not because a smaller sum can be a payment of a larger, but because it manifests the will and intent of the testator, who is the sole disposer of his own bounty, to reduce the amount of the provision orig- inally contemplated when he made his will. Hartop v. Whitmore, 1 P. Wms. 081; Clarke v. Burgoine, 1 Dickens, 353. From this view of the subject of the ademption of general legacies, it seems manifest that the ademp- tion takes effect, not from the act of the legatee in releasing or receiving satisfaction THE DOCl'lUXES 01' EQU1T1'. of the legacy, but solely from the will and act of the testator in making such payment or satisfaction, or substituting a different act of bounty, which is shown by competent proof to be intended as such payment, satis- faction, or substitute. The question, therefore, is whether, from fie facts shown in the present case, it suffi- ciently appears that the advance of money made by the testator in his lifetime to his ■sister was intended as a part payment and ■satisfaction of the legacy given to her by his will. If it was so intended, the law deems it .an ademption pro tanto. Most of the cases cited on the part of the plaintiff to show what the law does and what it does not regard as an ademption are cases where the testator, in making an ad- vance during his lifetime, does not express the object or purpose of such advance, and its intended effect upon the legacy given, and are designed to show from what combina- tions of facts and circumstances the law will or will not raise a presumption that it was the intention of the testator that the advance should or should not operate, in whole or in part, as a satisfaction or sub- stitute for the legacy. But they all pro- feed upon the assumption that, where such intention is proved, either by legal or com- petent proof or by legal presumption, the consequence of ademption will follow. Such were the cases of Ex parte Dubost, IS Yes. 140, and Powel v. Cleaver, 2 Brown, Oh. 499, —the former, that of an illegitimate child, described as the daughter of another per- son; and the latter, of a niece. There was nothing in either case satisfactorily to show that the testator intended to place himself in loco parentis, and therefore nothing, ac- cording to the somewhat artificial reasoning before stated, to raise the presumption that he intended the legacy as a provision for a child. The ground, therefore, was taken away upon which the law would conclude that the advance on marriage was intended .as a provision; and therefore, there being neither evidence nor presumption that the advance was a substitute for the legacy, it 8 THE DOCTRINES OF EQUITY. WHELESS v. WHELESS et al. (21 S. W. 595, 92 Tenn. 293.) Supreme Court of Tennessee. March 2, 1S93. Appeal from chancery court, Davidson county ; J. A. Cartwright, Special Chan- cellor. Bill for partition by Joseph Wheless and others against H. H. Wheless. Judgment forcomplainants. Defendant appeals. Af- firmed. Dickenson & Frazer, Stokes & StokeH, and Frizzell & Zarecor, for appellant. Jo- seph Wheless, Jr., and N. D. Malone, for respondent G. A. Tillman, guardian ad litem. J. S. Pilcher, for widow of J. F. Wheless. J. W. Byrnes, for petitioner Mc- Crosky. CALDWELL, J. Ken. John F. Wheless died intestate and without issue, leaving a widow, and numerouscollateral kindrtd. Tbe bill in this cause was filed for a parti- tio of his lands, where thateould bedone, ood for wale and division of proceeds, where partition in kind mightnotbe prac- ticable. The widow, in her answer, claimed that the undivided interest of her husband in what is known as the"Baxter Smith Tract" was not realty, but personal property, under the doctrine of equitable conversion, and that it therefore belonged to her, as distributee, and not to the heirs. The chancellor decided this question against her, and she appealed. No doctrine is more firmly fixed in Eng- lish and American jurisprudence than that of equitable conversion, by which, under certain circumstances, real estate is treated, in equity, as personal property, and personal estate as real property. Through this doctiine, courts of equity treat as land money directed to be em- ployed in the purchase of land,, and, as money, land directed to be sold and con- verted into money; and theUirection upon which the conversion arises may be made by will, or by deed, settlement, or other contract inter vivos. Adams, Eq. *135, l;S6; 1 Pom. Eq. Jur. § 371 ; 2 Story, Eq. Jur. §790; 4 Araer. & Eng. Eric. Law, 127; 6 Amer.& Eng. Enc. Law, 664, 665. Itwas early recognized in this state, (Stephenson v. Yandle, 3 Hayw. [Tenn.] 109.) and has since been applied in several eases upon the construction of wills. McCormick v Cantrell, 7 Yerg. 015; Williams v. Bradley, 7 Heisk. 58; Green v. Davidson, 4 Baxt. 4-18. The difficulty which sometimes arises in the application of the principle to a par- ticular instrument lies, not in the subtlety of tne principle itself, but rather in ascer- taining the intention of the maker from the words employed. To operate as a con- version, I he direction that the form of the property be changed must be imperative, in the sense of being positive and unmistak- able. If the intention, as gathered from the whole instrument, be left in doubt, or the direction allows the trustee to sell or not, as he deems best, the courts are not at liberty to say that a conversion has taken place, but must deal with the prop- erty according to its actual form and char- acter. 2 Story, Eq. Jur. § 1214. Mr. Fomeroy says: "No express declaration in. the instrument is needed that land shall be treated as money, although not sold,, or that money shall be deemed land, al- though not actually laid out in the pur- chase of land. The only essen tial requisite- is an absolute expression of an intention that the land shall be sold, and turned in- to nionej, or that the money shall be ex- pended in the purchase of land. * *• * The true test, in oil such cases, is a simple one: Has the will or deed creating the trust absolutely directed, or lias the con- tract stipulated, that the real estate be turned into personal, or the personal es- tate be turned into real?" 3 Pom. Eq. Jur. § 115i). Again: "The whole scope and meaning of the fundamental principle underlying the doctrineare involvedin the- existence of a duty resting upon the trus- tees or other parties to do the specified act; for, unless the equitable risht ex- ists, there is no room for the operation of the maxim, 'Equity regards that as done- which ought to be done.' Theruleis there- fore firmly settled that, in order to work. a conversion while the property is yet. ac- - tually unchanged iu form, there must be a clear and imperative direction in the will, deed, or settlement, or a clear, imperative agreement in the contract, to convert the property; that is, to sell the land for money, or to lay out the money in the pur- chase of land. If the act of converting — that is, the act, itself, of selling the lam!, or of laying out the money in land — is left to the option, discretion, or choice of the trustees, or other parties, 'then no eq- uitable conversion will take place, beca use- no duty to make the change rests upon them. It is not essential, however, that the direction should be express, in order- to be imperative. It may be necessarily implied. * * * If by express language, or by a reasonable construction of all its- terms, the instrument shows an intention, that the original form of the property shall be changed, then a conversion neces- sarily takes place." Id. § 1160. To the- same effect are Wurt's Exr's v. Page, 19 N. J. Eq. 375; Ford v. Ford, 7i> Wis. 19, 33. N. W. Rep. 188; Hobson v. Hale, !>5 X. Y. 588. Numerous other authorities, text- books, and judicial decisions are at hand;, but they are, in the main, so harmonious, and so entirely in accord with the full, quotations just made from Mr Pomeroy, that we forbear to make further citations, with respect to the character of direction necessary to work the notional change,, and call the doctrine of equitable conver- sion into play. As a matter of some mo- ment on the question of construction, it is well to observe that unless the sole or purchase contemplated is expressly di- rected to be made at a specified timein the future, or upon the happening of some particular event, which mayor may not happen, the conversion takes place, in wills, as from the death of the testator;, and iu deeds, and other instruments in- ter vivos, as from the date of their execu- tion. 3 Pom. Eq. ,lur. § 1162. The instrument upon which the contro- versy arises in this cause is a deed, in the- following language: " We, Baxter Smith and wife, Bettie G. Smith, * * * in consideration of the sum of !J>3-1,:!!)3.60, paid. THE DOCTKINES OF EQUITY. 59' and secured to be paid as hereinafter men- tioned, have bargained and Hold, and do hereby transfer and convey, unto James H. Yarbrougli, in trust, as hereinafter men- tioned, the following tract of land * * * to liuveand to hold, for himself and other beneficiaries hereinafter named, in trust for the following uses and purpuses: That is to say, said tract of land has been jointly purchased by James C. Warner, Percy \\ arner. John P. White, John F. Wheless, B. F. VVilson, W". M. Grantland, Charles L. Ridley, Baxter Smith, and J. H. Yar- brougli, L. H. Davis, and G. A. Maddux,— the last three purchasing as a firm, under the firm name and style of Y a rbrough, Mad- dux and Davis,— each paying and to pay one tenth of the purchase money for said land, as hereafter set out, except John P. W hite, w ho pays two tenths. * * * Said tract of land is conveyed to said J. H. Yurbrough. as trustee for eaid named pur- chasers, with power and authority to hold, possess, and manage thesamein theirinter- est and behalf, and to sell and convey the same, by deed in fee simple, upon the writ- ten direction of a majority in value of the adult beneficial owners then living, upon such terms and conditions as they may direct, and to collect and divide the pro- ceeds of sale among said beneficiaries, their heirs, administrators, executors, and assigns, as their several interests may ap- pear. * * The aforesaid sura of $34,395.60 has been paid, and secured to be paid, as follows: * * To secure the payment of the promissory notes herein described, a lien is expressly retained upon the share or interest of the maker alone, and not against the tract as a whole. In ease any of the beneficial ies herein named, in order to preserve his or their own title, should have to pay and discharge for an- other any accruing taxes or other incum- brance or lien upon the whole property, then, in that event, he or they shall have a lieu upon the share or interest of the per- son who has failed to make such pay- ment. Should said J. H. Yarbrough de- sire to resign the trust herein given him, he may do so, by and with the consent and approval, in writing, of a majority in value of the adult beneficiaries, owners, named above, and appoint in his room and stead a new trustee, and clothe him with like power and duties as those now conferred on him, by a suitable deed of conveyance in writing, to be recorded in the register's office of Davidson county, Tennessee." Such are the material portions of the instrument the court is called upon to con- struein thiscase; and the inquiry is wheth- er the land conveyed thereby is to be treat- ed." in equity, as realty, or as pers onalty? It as realty, the share of lien. Wheless passed to his h?irs, under the statute of descent; if as personalty, it went to his widow, as sole distributee, subject in ei- ther case, of course, to his debts. A general view of the deed readily dis- closes a proposed speculation, entered into by several persons jointly,— a syndicate buying land to sell again. In furtherance of the scheme a trustee was appointed, and the land conveyed to hiin for the ben- efit of all the purchasers,— for each of them according to his interest. The idea of a resale, as the ultimate object of the enter- prise, runs through the whole instrument. It appears, from the nature of the transac- tion ; fiom the words conferring upon the trustee power and authority "to sell, * * * and collect and divide the pro- ceeds;" snd from the provision for ap- pointment of a successor in case the trus- tee should resigu. That a partition in kind should ever occur, or that the trust should cease before a sale of the land and division of its proceeds were fully accom- plished, was never contemplated. The land was bought to sell again, and a trus- tee was appointed as a part of the plan. All this is clear; but it is entirely consist- ent with the proposition that the trust was created merely as a cheaper and more convenient method of preserving and con- veying theland. More is required to make a case of equitable conversion. The fact of a contemplated resale is present in ev- ery purchase of land upon speculation; and lund purchased with such view is not converted into personalty by the mere ap- pointment of a trustee to receive the title, and as the agency through which the re- sale is to be accomplished for the owners. It is manifest that, the paramount object of the enterprise was a resale of the land through the trustee, as representative of the beneficial owners, yet the deed does not contain any imperative direction that he shall sell; no absolute, unconditional duty to sell is placed upon him. "The equitable 'ought' " is not to be found in the deed, either as a matter expressed or to he necessarily implied. Not only does it contain no positive direction that he shall sell, but it, in reality, does not even permit him to sell, upon his own motion. His only power of sale is made to depend, expressly, upon the direction of others. He has no independent authority in that respect. The words of the deed on this point are: " With power and authority to hold, possess, and manage the same in their interest and behalf, and to sell and convey the same, by deed in fee sin. pie, up- on the written direction of a majority in value of the adult beneficial owners then living, upon such teims and conditions as they may direct. " This language imposes upon the trustee no positive, unqualified obligation to sell the land at all events. At most, it but gives him authority t<> sell atsuch time, and upon such terms and conditions, as others may direct. In effect, it but makes him the instrumentalily through which a majority of the beneficial owners living at any given time may make a sale. He has no right to sell with- out their written direction, and no au- thority to demand or require such direc- tion at one time or another. It cannot tie that a conversion was wrought by the creation of a trust so passive as thisoneis. To meet the fact that the trustee has no power to sell unless directed by a majority of the adult beneficiaries to do so, it is suggested that the beneficiaries themselves are clothed with a trust, to the extent of being empowered to direct when and how the sale shall be made, and that they are bound to give such direction. There can be no doubt that it was contemplated that the beneficiaries should at some time give the trustee the required direction to CO THE DOCTRINES OF EQUITY. sell the land, and that a duty was, to that extent, indirectly devolved upon them ; but that can hardly be said to have made trustees of them, or to have magnified the limited power of the real trustee into an imperative obligation to convert the land into money. The purchasers, though in- tending an ultimate sale, clearly had no thought that the terms of the deed changed the character of the property, and converted the real estate id to person- alty. That they intended the land to be held as realty until actually sold and turned into money is manifest from the gensral frame and terms of the deed, and especially from those parts of it retaining separate liens in favor of the grantor, and providing for a special lien in favor of such beneficiaries as might be compelled to pay taxes or discharge liens for others. In the portion of the deed last referred to, Hie interest of each of the several benefi- ciaries is referred to as an interest in land, as such, and provisions are made with ref- erence thereto which would be inappro- priate as applied to personalty. We are of opinion that the deed shows upon its face when considered as a whole, that the land was conveyed to a trustee merely for convenience, and to save expense and trouble in the ultimate sale and convey- ance, and that no couversion took place. Our attention has been called to the very instructive and soundly reasoned case of Crane v. Eolles, (N. J. Ch.) 24 Atl. Rep. 237, in which a conversion of land into money was held to have oc- curred under direction contained in a will. There are several points of similarity be- tween that case and this one, and perhaps as many important differences. The prin- ciples of law laid down in that case are the same recognized and applied by us in this one, the difference in result reached being due to differencein purport of instru- ments construed. Without stating the aspects in which the two instruments agree, or those in which they differ, we are content with simply saying that the court in that case said that the direction for sale was "imperative," and did not depend on the "request or consent" of the testator's children, while in this case there is no imperative direction to sell, and the power to sell does depend on the direction of the beneficiaries. Affirm the decree. THE DOCTKINES OF EQUITY. 61 WILDER v. RANNEY. (95 N. Y. 7.) Court of Appeals of New York. 1884. Appeal from a judgment of the general term, where the judgment of the trial court at a special term was affirmed. This was an action for specific performance of a covenant in a lease to sell and convey the leased premises. The facts are stated in the opinion of the court. William W. Badger, for appellant. E. Coun- tryman, for respondent. EARL, J. In January, 1879, Henry D. Ran- ney died in the city of New York, leaving a last will and testament, in which he appointed Lafayette Ranney and Thomas Russell ex- ecutors, who were also to act as trustees in the execution of the provisions of the will. He gave and devised to his executors, for the uses and purposes mentioned in his will, all his residuary estate, and directed them to con- solidate it into a safe and permanent fund, which would yield a regular interest or in- come; gave them power to sell and convey real estate, loan and invest money as the best interests of his estate might demand, and di- rected that the entire interest or income thus derived, after paying taxes, repairs to houses, and all necessary expenses and disbursements connected with his real estate, should be paid over to his wife for her support through life; and after the decease of his wife, he directed the estate to be distributed as mentioned in the will. After his decease the will was ad- mitted to probate, and letters testamentary were issued to both of the executors, and they qualified and entered upon the discharge of then - duties under the will. Among the lots of land left by the testator as a part of his residuary estate, was a lot in the city of New York, with a house thereon, and on the 10th day of April the executor Ranney entered into a agreement in writing with the plaintiff for leasing the house and lot to him for a term of three years from the first day of May, 1S79, at an annual rental of $1,200, the agreement pur- porting to be between the two executors as parties of the first part, and the plaintiff as party of the second part; and it contained a stipulation that upon payment by the party of the second part of all claims under the lease, and the further payment of the sum of $12,- 000, the parties of the first part would ter- minate the lease, and convey the property by deed to the party of the second part; provided, however, that such purchase should be per- fected within two years from the date of the agreement. The agreement was signed by Ranney alone as executor, and by the plaintiff. The other executor, Russell, refused to ex- ecute it, objecting to the clause giving to the plaintiff the option to purchase within two years. The plaintiff was at the time informed by Ranney of this objection and refusal on the part of his co-executor, but he was told by Ranney that one executor was as good as two. At the end of the two years the plaintiff claimed to have exercised his option to pur- chase, and offered to perform on his part, but the defendant Russell refused to execute any deed, and perform the agreement, upon the ground that he was not bound thereby. Then this action was commenced to compel the specific performance of the agreement; and the court at trial term dismissed the complaint on the ground that the contract was not binding upon both executors, and that both could not be compelled to join in the conveyance. By the terms of the will the title to the real estate left by the testator was vested in the two executors, and it is settled beyond any controversy that in such a case it can be con- veyed only by a deed executed by both. Un- der this will the executors had a discretion to exercise as to the time when, and the terms upon which, the real estate should be sold, and the parties interested as beneficiaries in the estate had the right to the exercise of the dis- cretion by both executors. One could not convey without the other, or enter into any agreement to convey which would be binding upon the other. Brennan v. Willson, 71 N. Y. 502; Berger v. Duff, 4 Johns. Ch. COS. Here it is proved by uncontradicted evidence, and found by the trial court, that Russell did not assent to the clause in the agreement giv- ing the plaintiff the option to purchase, and the plaintiff was informed of that fact, and Russell never thereafter ratified the agreement, but uniformly objected to that clause when- ever it was called to his attention. If the property agreed to be sold had been strictly personal, the rule would be otherwise, because one executor, or one trustee, may dispose of personal property to a bona fide purchaser without the consent of the other. This lot was not, for the purpose now in hand, personal estate, within the principles laid down in Bogert v. Hertell, 4 Hill, 492, and other cases. There may have been a conversion of this real estate into personalty for many purposes, but not for all purposes. It physically remained real estate, taxable as such, controllable as such, and it could only be conveyed as such. And the rules of law generally applicable to real estate remained applicable to this. No case was made upon the proofs for dam- ages against Ranney for a failure to convey in pursuance of the agreement executed by him; and it does not appear that any claim upon the trial was made that relief should be awarded to the plaintiff by way of damages. On the whole, therefore, we are of the opin- ion that this case was properly disposed of, and the judgment should be affirmed. All concur. Judgment affirmed. 62 DOCTRINES OF EQUITY. MAYOR, ETC., OF CITY OF BALTIMORE et al. v. WHITTINGTON. (27 Atl. 984.) Court of Appeals of Maryland. Nov. 1G, 1893. Appeal from circuit court of Baltimore city. Suit by Jacob Craft Whittington against the mayor and city council of Baltimore and Clarence M. Ellinger for injunction. Prom a decree for complainant, defendants appeal. Affirmed. Argued before ROBINSON, O. J., and BRISCOE, BRYAN, FOWLER, and Mc- SHERRY, J J. Thos. G. Hayes, Jas. P. Gorter, Wm. S. Bryan, Jr., and P. W. Story, for appellants. F. C. Slingluff and T. Wallis Blakiston. for .appellee. McSHERRY, J. By section 47, art. 49, of the Municipal Code of Baltimore City, it is enacted, in substance, that when any lots of ground are chargeable with the payment of taxes, and are subject to ground rents or leases for terms of years, renewable for- ever, the collector shall, in the sale of such lots for nonpayment of taxes, first sell only the leasehold interest, if it should sell for an amount sufficient to pay the taxes, but, if it should not, then that he shall sell the whole fee-simple estate, provided these pro- visions "shall not apply to cases where the books of the city do not disclose the fact that the lot or lots are on lease as aforesaid, •or unless the collector shall have actual no- tice of such lease prior to the sale thereof." The city tax collector of Baltimore sold in March, 1891, for the nonpayment of state and city taxes, the fee-simple estate in a lot of ground on Druid Hill avenue, and the mayor and city council became the pur- chaser. The sale was reported to the circuit court of Baltimore city, and was ratified in May, 1892. In October following, the city, tuiougjj and by its comptroller, sold the lot to Clarence M. Ellinger, to whom it was thereafter conveyed. When the sale was made by the collector, the lot was subject to a lease for 99 years, renewable forever, which was owned by J. Henry Weber, and the reversion or fee was owued by the ap- pellee, Whittington. The unpaid taxes were due by the owner of the leasehold estate, but the collector sold the whole fee, without hav- ing first offered, or having attempted to sell, the leasehold, as required by the section of the City Code to which reference has been made. There was no entry on the books of the collector showing that the lot was sub- ject to a lease, and the single question in- volved in the case is whether, when the col- lector made the sale, he had "actual notice" of the existence of the lease. If he had, the sale was irregular. If it was irregular, the decree of the circuit court of Baltimore city, restraining by injtmction the mayor and city council, and its grantee, Ellinger, from dis- turbing the possession of the owner of the reversion, must be affirmed. It appears by the record that in 1883 pro- ceedings were instituted in the circuit court of Baltimore city by Rebecca and Mary Mc- Keen against J. Henry Weber for a sale of this same leasehold estate under a mortgage thereon executed by Weber in 1881. Mr. T. Wallis Blackiston was appointed trustee to make the sale. He took possession of the property, and collected the rents and profits, but, owing to a depreciation in its value, made no sale of it. In the mean time the ground rent was regularly paid to the ap- pellee, up to July, 1S92, but the state and city taxes for the eight years beginning with 1882 remained unpaid. On the 1st day of December, 1890, Lewis N. Hopkins, city col- lector, filed a petition in the foreclosure pro- ceedings representing that taxes for the years just mentioned were in arrear upon the property "decreed to be sold." The peti- tion further statad that the collector was una- ble to enforce the collection of those taxes by reason of the pendency of the foreclosure proceedings, and it prayed that the trustee might be required to pay the taxes out of the rents theretofore collected from the prop- erty, or that the collector might "be allowed to proceed to collect said taxes by sale of the property in the ordinary way." This peti- tion was signed by the late Mr. W. A. Ham- mond, "city solicitor, attorney for petitioner,'' and was sworn to by the deputy city col- lector. Subsequently, an order was passed, requiring the trustee to pay the taxes within five days out of the funds previously collected by him "as rents from the property decreed to be sold," and directing, upon his failure to do so, that the property be sold in the ordi- nary way by the collector. The trustee did fail to pay the taxes, and the collector made, under authority of this order, the sale of March, 1891, already mentioned. It is upon these facts that the appellee relies to show that the collector had "actual notice" of the existence of the leasehold estate. Notice is of two kinds, — actual and con- structive. Actual notice may be either ex- press or implied. If the one, it is estab- lished by direct evidence; if the other, by the proof of circumstances from which it is inferable as a fact. Constructive notice is, on the other hand, always a presumption of law. Express notice embraces, not only knowledge, but also that which is communi- cated by direct information, either written or oral, from those who are cognizant of the fact communicated. Wade, Notice, § 6. Im- plied notice, which is equally actual notice, arises where the party to be charged is shown to have had knowledge of such facts and circumstances as would lead him, by the exercise of due diligence, to a knowledge of the principal fact. 16 Amer. & Eng. Enc. Law, 790. Or, as defined by the supreme court of Missouri in Rhodes v. Outcalt, 48 DOCTKINES OP EQUITY". 63 Mo. 370, "a notice is regarded in law as ac- tual when the party sought to be affected by it knows of the particular fact, or is con- scious of having the means of knowing it, although he may not employ the means in his possession for the purpose of gaining fur- ther information." It is simply circumstan- tial evidence from which notice may be in- ferred. It differs from constructive notice, with which it is frequently confounded, and which it greatly resembles, in respect to the character of the inference upon which it rests; constructive notice being the creature of positive law, resting upon strictly legal presumptions, which are not allowed to be controverted, (1 Story, Eq. Jur. § 399; Town- send v. Little, 109 U. S. 504, 3 Sup. Ct. 357.) while implied notice arises from inference of fact, (Williamson v. Brown, 15 N. Y. 354; "Wade, Notice, § 3.) With constructive no- tice we are not now concerned, and it is not pretended that the city collector had express notice, or knowledge personally, of the exist- ence of the leasehold estate. But he be- came a party to the equity proceeding, where- in a decree had been passed directing a sale of the leasehold interest He did more. Ho asked, notwithstanding the decree had been long before signed and enrolled, that be be permitted to sell for the nonpayment of taxes, under the summary process of dis- traint, the identical property previously de- creed to be sold, and no other or different interest; and the property which had been thus previously decreed to be sold was not the fee simple, but only the leasehold interest in the lot in question. He obviously knew there was a proceeding pending in the cir- cuit court of Baltimore city, having for its object the sale of some interest in the prop- erty. He knew, further, the equity proceed- ing interfered with the execution of his dis- traints, and he applied to the court for leave to proceed, in spite of the decree, to sell the sime property which had been decreed to be sold. We say he knew these things, and we say so, not because the record shows that he was personally aware of them, as mat- ters of actual knowledge, but because the deputy city collector and the collector's at- torney, both of whom were his agents in this transaction, did have such knowledge; the one having sworn to the facts stated in the petition, and the other having signed the pe- tition itself. So both the attorney and the deputy collector knew, or at least were in possession «of facts which would necessarily lead, upon the exercise of the slightest dili- gence, to a knowledge or notice, of the exist- ence of the lease. They must therefore be regarded as knowing that which, with ordi- nary diligence, they might have known, or that which they were conscious of having the means of knowing. This result is not a legal presumption, but an inference of fact, and it seems to us an irresistible inference. It would be idle to say that the collector was ignorant of facts relating to the title to prop- erty which he was about to sell for the non- payment of taxes, when his deputy, acting for him and in his name, was in full posses- sion of them, or that he did not know the things which his attorney was aware of in that particular proceeding respecting the state of the title; and it would be equally idle to say that the deputy, when he swore to the petition, and the attorney, when he signed it, filed it, and procured a court's order upon it, were not apprised of the character of the es- tate previously decreed to be sold, or were not in a position where they were conscious of having the means of knowing precisely what property the decree affected. At ail events, the exercise of ordinary diligence would most assuredly have informed both of these agents of the collector of every fact which the records in the equity case dis- closed, and among those facts was the mate- rial and important one that the lot was sub- ject to a lease for 99 years, renewable for- ever. It is consequently a legitimate infer- ence of fact that both of these representa- tives of the collector knew what the record in the foreclosure case disclosed as to there be- ing a leasehold estate in Weber, and not a fee, and this was implied actual notice. No- tice to the attorney, as well as notice to the deputy, was notice to the collector, and was actual, and not merely constructive, notice to him, for the principal is bound by and affected with notice to his agent, and he is equally bound by notice received by his attor- ney in the same transaction. Astor v. Wells, 4 Wheat 466; Heed's Appeal, 34 Pa. St. 209- Houseman v. Association, SI Pa. St. 256; Smith v. Ayer, 101 U. S. 320. If this were not so, then, in every case where notice is necessary, it might bo avoided by simply em- ploying an agent. We are, for the reasons we have given, of opinion that the collector had, through the means we have indicated, such actual notice of the existence of the lease as to bring him within the proviso quoted from the City Code, and that he was therefore not authorized to sell the fee-simple estate until he had first offered the lease- hold for sale. It results, then, that the sale made by him was irregular, and the decree granting the injunction applied for by the ap- ppllee must be affirmed. Decree affirmed, with costs in this court and in the court be- low. 64 DOCTRINES OF EQUITY. BROWN v. VOLKENING. (64 N. Y. 76.) Court of Appeals of New York. 1876. Appeal from common pleas of New York city and county, general term. This was an action to foreclose a mortgage given to the plaintiff by one Decker. De- fendant's answer alleged that before the exe- cution of the mortgage Decker had conveyed to him the premises in question in considera- tion of certain mantels, mirrors, etc., which were furnished by defendant for nineteen houses which Decker was building; and that defendant had taken possession prior to the execution of the mortgage, and that plaintiff had notice of his rights. There was. a find- ing of the court upon the facts, which fol- lows: "That prior to the execution of the mort- gage in said complaint mentioned, and on or about the 15th day of June, 1872, said Decker had surrendered the keys of the house to said Volkening, and said Volkening had entered into and had the actual and exclusive possession of the premises in said mortgage mentioned and described as pur- chaser thereof, under and in pursuance of an agreement made and entered into by and between him and said Peter P. Decker, in January, 1872, for the sale and conveyance thereof by said Decker to him, and has made various alterations and improvements in the dwelling-house thereon exceeding $2,000 in value, and had, prior to July, 1872, so far performed said agreement on his part and paid the full consideration in said agree- ment mentioned, that he had become entitled to a specific performance thereof by said Peter P. Decker, and to a conveyance to him by said Decker and wife, free from any such incumbrances thereon as that subsequently attempted to be created by the said mort- gage to the plaintiff. "That such possession of said Volkening so continued, and at the time of the execu- tion of said mortgage was actual and exclu- sive and could have been easily ascertained by the plaintiff by inquiry on said premises." And as a matter of law: "That such possession of said premises by said Volkening, as such equitable owner, was notice to the plaintiff of his rights; that the plaintiff was not a purchaser or incum- brancer of the said premises in good faith, and that the mortgage was not a valid lien, as against Volkening, and thereupon direct- ed a dismissal of the com'plaint as to him." Judgment accordingly. Further facts in the opinion. Amasa J. Parker, for appellant. Samuel Hand, for respondent. ALLEN, J. The findings of facts by the learned judge by whom the action was tried are equivocal. Read as a whole, they only imply of necessity a constructive possession of the premises, a mere power over them by the respondent. They come far short of showing an actual use and occupation by him. The delivery of the possession to him by Decker was symbolical, by a surrender of the keys of the house, and the actual and exclusive possession, and the expenditure of moneys in making alterations and improve- ments in the house as stated in the findings, must be regarded in the connection in which the statements are found, as but the contin- uance of that constructive possession com- menced and evidenced by the delivery of the keys. The cautious finding or treatment of the judge that such possession, so continued, could have been easily ascertained by the appellant by inquiry on said premises, with- out indicating that there was an actual oc- cupant of whom such inquiry could have been made, tends strongly to show that the learned judge used the word "possession," as distinct from that of actual occupation, and in its strictly technical sense. Posses- sion means simply the owning or having a thing in one's own power; it may be actual, or it may be constructive. Actual posses- sion exists where the thing is in the imme- diate occupancy of the party; constructive is that which exists in contemplation of law, without actual personal occupation. Had the judge intended to find an actual visible occupation of the premises by the respondent, he would, with his usual ac- curacy, have so found in terms and not by argument found a possession merely, which from the circumstances stated as establish- ing such possession show a constructive pos- session, as that term is understood in the law. If the evidence is referred to to give effect to the findings and judgment, it entire- ly fails to establish any thing more than the merest constructive possession in the re- spondent, and that of a very doubtful char- acter. So that while in cases where the findings of fact are doubtful and may be in- sufficient unexplained to sustain the judg- ment, the evidence may be resorted to in aid of the interpretation and in support of the judgment; a reference to the testimony in this case shows that a finding of actual and visible occupation, such an occupation as is required (as well in law as in equity) to break in upon the registry laws, would have been without evidence and erroneous. The testimony viewed in its most favora- ble light for the respondent shows that he did not at any time accept the house from Decker, his grantor, as finished "and com- pleted until long after the mortgage to the plaintiff; that until late in the fall he was urging Decker to complete the house as he had agreed, and complaining that it was not done, and did not accept the deed thereof until November. The work which he did upon the house after the delivery of th& keys in June was performed by mechanics and laborers, and substantially in the execu- tion of his agreement with Decker, for work upon the nineteen houses which Decker was DOCTRINES OE EQUITY. 05 building', including the one upon the mort- gaged premises. The fact that the work put upon the house in question by the re- spondent was of a better character and more expensive than was put upon the other houses, or that he was bound to put upon this, did not vary the character of the act, or give any particular significance to it as affecting the plaintiff, or third persons. Whether Decker had or had not men at work upon the house during the same time may be doubtful upon the evidence, and the fact is not found. The only possession of the respondent was by having laborers and me- chanics at work upon an unfinished house, one of a block of nineteen houses, the rec- ord title of which was in Decker, and to which the respondent had no paper title, with nothing to indicate any difference in the proprietorship or the direction of the work between this house and any of the other eighteen houses. There was no one remaining or staying permanently in the house until long after the giving of the mortgage to the plaintiff. It was an unfin- ished and unoccupied house. In view of the undisputed evidence and of the peculiar language of the findings of fact, we are constrained to hold that an actual, visible occupation of the premises by the re- spondent was neither proved or found, and had the fact been so found by the judge it would have been error for which the judg- ment would have been reversed. The pro- tection which the Registry Law gives to those taking titles or security upon land up- on the faith of the records should not be destroyed or lost, except upon clear evidence showing a want of good faith in the party claiming their protection, and a clear equity in him who seeks to establish a right in hos- tility to him. Slight circumstances or mere conjecture should not suffice to overthrow the title of one whose deed is first 'on record. The statute makes void a conveyance not recorded only as against a subsequent pur- chaser in good faith and for a valuable con- sideration. 1 Rev. St. p. 756, § 1. Actual no- tice of a prior unrecorded conveyance, or of any title, legal or equitable, to the premises, or knowledge and notice of any facts which should put a prudent man upon inquiry, im- peaches the good faith of the subsequent purchaser. There should be proof of actual notice of prior title, or prior equities, or circumstances tending to prove such prior rights, which affect the conscience of the subsequent pur- chaser. Actual notice of itself impeaches the subsequent conveyance. Proof of cir- cumstances short of actual notice which should put a prudent man upon inquiry, authorizes the court or jury to infer and find actual notice. The cbaraeter of the posses- sion which is sufficient to put a person upon inquiry, and which will be equivalent to ac- tual notice of rights or equities in persons other than those who have a title upon rec- FET EQ.JUK. — 5 ord, is very well established by an unbroken current of authority. The possession and occupation must be actual, open and visible; it must not be equivocal, occasional or for a special or temporary purpose; neither must it be consistent with the title of the apparent owner by the record. In Mover v. Hinman, 13 N. Y. 180, the plaintiff was in actual possession of farming lands, under a contract of purchase, and that circumstance was held notice to all per- sons who had subsequently become interest- ed in the premises, of all the plaintiff's rights under his contract. De Ruyter v. St. Peter's Church, 2 Barb. Ch. 555, was a case of actual possession and use of the premises, and such possession was held constructive notice of the rights of the occupant. Gou- vei-neur v. Lynch, 2 Paige, 300, was like Moyer v. Hinman, supra. Chief Justice Parsons, in Norcross v. Witlgery, 2 Mass. 508, says: "This notice may be express, or it may be implied from the first purchaser being in the open and exclusive possession of the estate under his deed." The same doctrine is held in Colby v. Kenniston, 4 N. H. 262, and both cases are cited with ap- proval by the chancellor in Tuttle v. Jackson „ 6 Wend. 213. In Bank v. Flagg, 3 Barb. Ch. 316, it was held that the actual possession, of the premises by the tenant of a purchasei was constructive notice to subsequent mort- gagees of the equitable rights of such pur- chaser. I have met with no case in which any thing short of actual, visible, and as is said in some cases, notorious possession of premises, has been held constructive notice of title in a claimant. See Chesterman v. Gardner, 5 Johns. Ch. 29; Grimstone v. Car- ter, 3 Paige, 421; Cook v. Travis, 20 N. X. 400; Webster v. Van Steenbergh, 46 Barb.. 212. All the cases agree that notice will Dot be imputed to a purchaser except where it is a reasonable and just inference from the- visible facts. Neither will the principles of constructive notice apply to unimproved, lands, nor to cases where the possession is. ambiguous or liable to be misunderstood. Patten v. Moore, 32 N. H. 3S2. It should not apply within the same principle to an uninhabited and unfinished dwelling-house; there must be a possession actual and dis- tinct, and manifested by such acts of owner- ship as would naturally be observed and known by others. The using of lands for pasturage or for cutting of timber is not such an occupancy as will charge a purchaser or incumbrancer with notice. Coleman v. Barklew, 27 N. .T. Law, 357; McMechan v. Griffing, 3 Pick. II!); Holmes v. Stout, 10 N. J. Eq. 419. See also Fassett v. Smith, 23 N. Y. 252. It cannot be said, either upon the cautious findings of the learned judge or upon the evidence, that the respondent was the open, actual occupant of the houses, either by him- self or by tenants, or that there were any open, visible acts of ownership, by the re- 66 DOCTRINES OP EQUITY. spondent, of the mortgaged premises, which the public or third persons would be likely to notice, or which would suggest an inquiry into his claim, or which would evince bad faith or gross neglect should a party dealing in respect to the premises neglect to make inquiry. The judgment should be reversed and a new trial granted. To obviate an objection suggested by the learned counsel for the appellant, and which may be made upon a second trial, although not made before, it is proper to state that Volkening was a proper party defendant, and his rights can properly be determined in this action. Whether his equities are prior and superior to the rights of the plain- tiff under his mortgage, or junior and sub- ordinate thereto, must necessarily be deter- mined in the judgment for a foreclosure of the plaintiff's mortgage. Bank v. Flagg, su- pra. Volkening is not contesting the title of the mortgagor, but simply asserts a right under him prior in point of time to the mort* gage. The question of priority between the two is necessarily involved in the action, and proper to be determined in it. CHURCH, C. J., and RAPALLO and MILL- ER, JJ., concur. ANDREWS and EARL, JX, concur in result, on the ground that the evidence does not warrant a finding of ac- tual and exclusive occupation by Volkening prior to or at the' time plaintiff's mortgage was executed. FOLGER, J., dissents. Judgment reversed. DOCTRINES OF EQUITY. 67 DBA SON et al. v. TAYLOR. (53 Miss. 697.) Supreme Court of Mississippi. Oct., 1876. Appeal from chancery court, Lincoln coun- ty; Thomas Y. Berry, Chancellor. Bill in equity by Bentonville Taylor against J. B. Deason, M. W. Hoskins, and G. W. Hoskins, her husband, Ellen McClen- don and A. D. McClendon, her husband, to recover the balance of the purchase money of certain land, and to subject land to the payment of the same. The bill showed that on February 16, 1872, the complainant sold and conveyed the land in question to J. B. Deaso'n; the deed, which was duly recorded on February 19, 1872, re- citing a consideration of "the sum of $700, to be paid to the party of the first part on or before the first day of July, 1872, by the party of the second part." For the purchase money Deason gave his note, of even date with the deed, as follows: "On or before the first day of July next, I promise to pay Bentonville Taylor, or bearer, the sum of $700, for town lots conveyed by him to me this day. This sum is to be paid in Missis- sippi state certificates of indebtedness at par." After maturity of the note, Deason sold and conveyed the lots to the defendant M. W. Hoskins, and the latter and her hus- band sold and conveyed the same to the defendant Ellen McClendon. When Deason sold and conveyed the lots to the defendant Hoskins, he informed her agent that he had paid Taylor all the purchase money. The defendants demurred to the bill, on the ground that the complainant had no vendor's lien, it appearing on the face of the bill that the consideration for the sale of the lands was not money or United States currency; and because the recital in the deed was not notice to the defendants Hos- kins and McClendon of the complainant's equity. The demurrer was overruled, and an an- swer filed, and upon final hearing a decree was rendered for the complainant for the balance of the purchase money due him, and foreclosing his vendor's lien on the land. The defendants appeal. Sessions & Cassedy, for appellants. Chris- man & Thompson, for appellee. Bentonville Taylor, pro se. CHALMERS, J. We are content with the finding of the chancellor on the facts. If any injustice was done in fixing the amount due, it was to the appellee, and not to the appellants. The fact that the note was dis- chargeable in Mississippi certificates of in- debtedness (known as Alcorn money) did not deprive it of the protection of the vendor's equitable lien. Harvey v. Kelly, 41 Miss. 490. In the face of the deed which Taylor exe- cuted to Deason was this recital: "The par- ty of the first part (the vendor), for and In consideration of the sum of $700, to be paid on or before the first day of July, 1872, by the party of the second part" (the vendee), &c. For this sum of $700, Deason, the ven- dee, executed his note to Taylor, due 1st of July, 1872. The deed was recorded at once, and Deason took possession of the premises. Without having completed payment in full of the note, Deason sold the premises in 1874 to Hoskins, who subsequently sold to Mrs. McClendon. Both Hoskins and Mrs. McClendon deny actual knowledge, at and before their purchases, that any thing re- mained due to Taylor. Did the law give them constructive notice of Taylor's rights? Nothing is better set- tled than that the purchaser of real estate is bound to take notice of all recitals in the chain of title through which his own title is derived. Not only is he bound by every- thing stated in the several conveyances con- stituting that chain, but he is bound fully to investigate and explore everything to which his attention is thereby directed. Where, therefore, he is informed by any of the preceding conveyances, upon which his own deed rests, that the land has been sold on a credit, he is bound to' inform himself as to whether the purchase money has been paid since the execution of the deed. Wise- man v. Hutchinson, 20 Ind. 40; Croskey v. Chapman, 26 Ind. 333; Johnston v. Gwath- mey, 4 Litt. (Ky.) 317. It is argued, however, that this principle only applies before the maturity of the notes, as shown by the recitals of the deed, and that it will not apply where, as in the case at bar, subsequent purchasers have bought after the notes were past due. It is said that, in such case, the subsequent purchas- ers may rely upon a presumption that the original debt has been paid. We know of no principle which would justify a reliance upon such a presumption, and it is expressly negatived by the cases of Honore v. Bake- well, 6 B. Mon. 67, and Thornton v. Knox, Id. 74. They may rely upon such presump- tion after sufficient time has elapsed to bar the notes, although, in fact, they may have been renewed. Avent v. McCorkle, 45 Miss. 221. It appears In the case at bar that the sub- sequent purchasers knew that Deason had bought the realty on a credit, because they asked him at the time of their purchase if he had paid all the money due Taylor. It was their own folly if they relied upon his assurances, instead of applying for informa- tion to Taylor, who lived in an adjoining county, and Is shown by the bill to be a practising lawyer, well known in Brook- haven, where the lots were situated and all the defendants resided. Decree affirmed. 68 DOCTRINES OP EQUITY. IRVINE et al. v. GRADY. (19 S. W. 1028, 85 Tex. 120.) Supreme Court of Texas. June 3, 1892. Appeal from district court, Taylor coun- ty; T. H. Conner, Judge. Action by P. H. Grady against Sara B. Irvine and W. E. Rayner for the amount of a promissory note, and to foreclose a mortgage on cattle. Judgment for plain- tiff, and defendants appeal. Reversed. Sayles & Sayles, M. A. Spoonts, and K. K. Leggett, for appellants. John Bow- yer, for appellee. GAINES, J. This is an appeal from a judgment rendered in favor of P. H. Grauy against Sam B. Irvine and W. E. Rayner in a suit by the former to recover of the latter the amount of a promissory note made by Irvine as principal, and Rayner as surety, and to foreclose a mortgage upon cattle executed by Irvine to secure its pay- ment. The note was given for a part of the purchase money of a half interest in a stock of cattle sold by Grady to Irvine. The defense was that the note was pro- cured by fraud, in this: That at and be- fore the time of the sale of the cattle Grady represented to Irvine that there were 3,000 head of cattle in the stock, which were running at large upon the range; that Irvine was ignorant of the number, and relied upon the representa- tion of Grady, and was induced thereby to make the purchase; and that, in point of fact, there were less than 2,000 head of cattle in the stock sold. Upon the trial one Moore testified that, a short time be- fore the sale, Irvine agreed to give him $100 to make the trade with Grady; that he saw Grady, who stated his price, but also stated that he did not know how many cattle there were, and would not "guaranty" that there were 3,000, and that he (witness) therefore abandoned the negotiation, but told Irvine what Grady had said. Irvine testified that before he made the purchase Moore came to him, and told him he thought he could make the trade for him; that he told him he would give him $50 to do so; but that he heard nothing more about the matter from Moore, and supposed that he had dropped the attempt to buy. He express- ly denied in his testimony that Moore told him that Gradysaid that he did not know the number of cattle, and that he would not "guaranty" any number. Grady also testified that he made the statement to Moore. The testimony of these witnesses as to what Grady said to Moore was ob- jected to by defendants, upon the ground that the knowledge of Moore could not be imputed to Irvine under the peculiar cir- cumstances of the case. The bill of excep- tions does not show that at the time the testimony was admitted the plaintiff offered to prove that the statement of Grady to Moore was communicated by the latter to Irvine. But, since it appears from the statement of facts that Moore subsequently testified that he told Irvine what Grady had said to him, it follows that, if there was error in the court's rul- ing, it was cured by the subsequent con- necting testimony. There being evidence tending to show that Grady's remarks were communicated to Moore, they were properly admitted, although Irvine denied in his testimony thatsuch communication had been made. Therefore the question whether, under the peculiar facts of the case, the knowledge of Moore ought to be imputed to Irvine, is not raised by the as- signment of error, upon the admission of the testimony. It is, however, presented by an assignment of error upon the charge of the court. The instruction complained of is as follows: "The material issue in this case being whether or not the appel- lant Irvine had actual knowledge that Grady did not claim to know the number of cattle there were in the stock at or be- fore the time the sale was made, and that his representation as to numbers was a mere matter of opinion, with no superior means of information, the court erred in its general charge in imputing to Irvine information acquired by his agent in another transaction, which was never completed, or any benefit therefrom ever acquired, by Irvine, and which knowledge or information so acquired by said agent was never communicated to Irvine." Whether the legal propo- sition involved in this charge be correct or not is a question we have found it difficult to determine. As a general rule, it is universally recognized that notice to the agent is notice to the principal. Upon the proposition that knowledge which comes to an agent during the course of his employment, while effecting or assisting in the consummation of a transaction for his principal, is imputed to his principal in any suit in which that transaction may be involved, there is no conflict of author- ity. But whether the principal will be affected with notice of a fact which has come to the knowledge of his agent in the course of some other business, previous to his employment by his principal, is a question upon which the authorities are not agreed. That question, however, does not concern us here. The peculiarity of the present case is that, while Moore acquired his knowledge during the course of his employment as Irvine's agent, his agency was concluded before the negotia- tion was undertaken which resulted in the sale of the cattle. After his agency was abandoned and his connection with the business had ceased, the negotiation was resumed through another channel, and conducted to a consummation without any assistance or participation whatever on his part. A difficulty we have encoun- tered in the attempt to determine whether the rule of imputed knowledge should ap- ply in such a case grows out of the fact that the authorities are not in accord as to the principle upon which the doctrine rests. By some It is held that the rule rests upon the principle of the legal identity of the principal and agent. Boursot v. Sav- age, L. R. 2 Eq. 134. By others it is placed upon the ground that, when a principal has consummated a transaction in whole or in part through an agent.it is contrary to equity and good conscience that he should be permitted to avail himself of the benefits of his agent's participation with- out becoming responsible as well for his agent's knowledge as for his agent's acts DOCTRINES OF EQUITY. 69 Le Neve v. Le Neve, 2 White & T. Lead. Cas. Eq. (4th Amer. Ed.) 109, and note, 179. The doctrine of the identity of the prin- cipal and agent, as applied to the mere question of imputed notice, seems technic- al and arbitrary, and, if broadly applied, would extend the rule so as to embrace cases in which its operation would be manifestly unjust. The latter.inour opin- ion, is the more reasonable and equitable foundation of the rule, and gives it a more salutary operation. Such being, in our opinion, the pruper ground upon which the rule should be placed, we think the knowledge of Moore should not be imput- ed to Irvine. Moore did not consummate the transaction as finally concluded, nor, in effecting it, did Irvine in any manner avail himself of Moore's assistance, or re- ceive the benefit of any act done by him. Another reason that is sometimes given for the doctrine that notice to the agent is notice to the principal is that it is the duty of the agent to communicate his knowledge to the principal, and he is therefore "irresistibly presumed" to have so communicated it. Bonrsot v. Savage, supra. This would seem rather a deduc- tion from the doctrine that it is inequita- ble for the principal to avail himself of tlje agent's acts without being held to know what the agent knows, rather than an independent foundation for theruleof con- structive notice. But, however that may be, our ruling upon the question before us should be the same. If Moore had agreed upon a sale with Grady, then he should have communicated to Irvine what Grady told him before the agreen-ent was carried iutoeffect. But when he saw that he could not succeed in what he had undertaken to accomplish, and that nothing was to come of his effort, the contract between him and Irvine ceased. The transaction remained as if nothing had been done, and he was not bound to communicate to Irvine what had occurred between him and Grady. We conclude, therefore, the court erred in giving the instruction under consideration. The sale from Grady to Irvine took place in December, 1886; and the price for Grady's half interest, includ- ing, also, an interest in some horses and other property used in connection with the ranch, and worth about $500, was $11,000. The plaintiff offered to prove by one Lynn that in March or April, 1886, he (wit- ness) bought a half interest in the stock upon a credit for the sum of $11,500. The testimony was objected to by defendants, but was admitted by the court. We think the court erred in its ruling. The testi- mony was irrelevant, and was calculated to mislead the jury, to the prejudice of appellants. The issues were: (1) Did the plaintiff represent that there were 3,000 head of cattle in the stock, and, if so, was that representation false; and (2) was Irvine induced to buy by that repre- sentation, and did he rely upon it when he concluded the transaction? Testimony as to what some third person agreed to pay for a half interest in the cattle, some three months after Irvine bought, wasnot relevant to either of these issues. The value of the cattle at the time of the sale maybe a circumstance tending to throw light upon the transaction, but the testi- mony under consideration was nut com- petent to prove that value. The court did not err in giving the spe- cial charge complained of in appellants' first and second assignments of error. Neither was there error in giving the para- graph in the general charge which is com- plained of in the eleventh assignment. We are also of the opinion that the court did not err in refusing to give charge No. 1, asked by appellants. The propositions of law involved in the charge are correct, but the same instructions were substan- tially given in the general charge. In the j general charge, however, the jury were j told that if, at the time of the consumma- ! tion of the sale, Irvine was informed that ] Grady did not know the number of cattle, and would not warrant any number, and that Irvine completed the trade with a knowledge of that fact, tbey should find for plaintiff. We think this was correct. If such express statement was made to him by Grady at the time the sale was concluded, we do not see how he was misled. There was testimony to show that such a statement was made by Grady when the hill of sale was executed, while there was testimony to showthecontrary. In view of another trial, however, we will say that, if the jury should find ..latGrady told Moore he did not know the number of the cattle, and would not warrant any number, and that Moore communicated this fact to Irvine, this should not neces- sarily preclude Irvine's defense; -and they still might find for defendants, provided theyshou'd believe that, in the subsequsnt negotiations, Grady did not represent that there were 3,000 head of cattle, and did fraudulently induce Irvine to believe that he knew that there were in fact that num- ber. For the errors pointed out the judg- ment is reversed, and the cause remanded. 70 DOCTRINES OF EQUITY. PRINGLE v. DUNN et aL (37 Wis. 449.) Supreme Court of Wisconsin. Jan. Term, 1875. Appeal from circuit court, Milwaukee coun- ty. Action by one Pringle against Andrew Dunn and wife and • others to foreclose a mortgage given to the La Crosse & Mil- waukee Railroad Company to secure a bond of said company for $5,000, payable Jan- uary 1, 1864, said mortgage bearing date April 11, 1854, and alleged to have been re- corded on such date, and afterwards assigned to plaintiff, as a bona fide purchaser for value. There was no record of the assign- ment. The court found that the witnesses to the mortgage did not subscribe it at the time of its execution, but after it had been recorded; that, after such subscription, it was not again recorded; that the plaintiff was the bona fide holder of the bond and mortgage; that the defendants other than Andrew Dunn and wife had no actual knowl- edge of the mortgage, and the recording of the mortgage before it was subscribed was not constructive notice; and dismissed the complaint. Plaintiff appeals. Modified. Mariner, Smith & Ordway, for appellant Guy C. Prentiss, J. P. C. Cottrill, and John W. Cary, for respondents. COLE, J. Before approaching the legal questions involved in this case, it is neces- sary to determine a question of fact; and that is, does the evidence show that the mortgage sought to be foreclosed was prop- erly attested when first left at the office of the register, so as to entitle it to record? There is considerable testimony in the case which tends strongly to prove that the mort- gage had no witnesses when it was record- ed. And the court found as a fact that the mortgage was not subscribed by the wit- nesses Baker and McFarlane at the time of its execution, and before it was tran- scribed upon the records and entered in the general index, but was subscribed by these witnesses after it was recorded, and that it was not again recorded. This finding af- firms one important fact, which is much contested by the defendants, which is the genuineness of the signature of the witness A. J. McFarlane to the instrument. An at- tempt is made to prove, and it is argued that the evidence shows, that McFarlane never signed the mortgage as a witness, and that his signature thereto is a forgery. On this point we will only make the re- mark that we are satisfied from the evi- dence, and especially by an inspection of the writings themselves, of the authenticity of the signature. Whether the mortgage was subscribed by the witnesses at the time of its execution and before it was left at the office for registry is a question of more doubt upon the evidence. The testimony is quite strong and positive that the mortgage had no subscribing witnesses when it was re- corded. But this testimony is contradicted; and, considering the circumstances attend- ing the execution and delivery of the mort- gage, we think the probabilities favor the inference that the instrument was witnessed when it was left for record. According to this view, there was a mistake in transcrib- ing the mortgage upon the record by omit- ting the names of the witnesses. The weight of the evidence, to our minds, supports this inference or conclusion. It is to be observed that the mortgage is perfect and fair on its face, showing two witnesses. A strong pre- sumption fairly arises from the instrument itself that it was witnessed at the time of its execution. This presumption is not over- come nor repelled by the testimony offered to show that it was not witnessed at that time. In respect to the degree or quantity of evidence necessary to justify a finding that the subscribing witnesses signed the instrument after it was executed and re- corded, the case would seem to come within the rule laid down in Kercheval v. Doty, 3* Wis. 478, where it is said: "The prop- osition being to set aside or invalidate a written contract by evidence of a far less certain and reliable character than the writ- ing itself, the greatest clearness and certainty of proof should be required. It is like the cases where the object is to correct or re- form a deed or other instrument on the ground of mistake, or to set aside or rescind it on the same ground; where the rule is that the fact must be established by dem- and satisfactory evidence." The testimony offered to show that the mortgage was not witnessed when executed and before it was recorded falls short of this rule. The fact is not established by clear and conclusive proof that it was not witnessed when ex- ecuted. It would serve no useful purpose to go into a detailed discussion of the evi- dence upon this point, and we shall not do so. It is sufficient to say that, giving to the testimony offered to show that the mort- gage was not witnessed before it was re- ceived for record all the weight to which it is entitled, it fails to establish that fact In a clear, satisfactory manner. Assuming, then, that the mortgage was witnessed when it was left at the office of the register to be recorded, the further im- portant inquiry arises as to what effect must be given to the record as constructive no- tice to subsequent bona fide purchasers for value. This record was in this state. The entry of the mortgage was made in the gen- eral index book, but the full record of the instrument had no subscribing witnesses; and therefore the question is, would such a record operate as constructive notice to subsequent purchasers for value, independent of any actual notice? It is claimed by the counsel for the plaintiff that the record does and should so operate, notwithstanding the DOCTRINES OF EQUITY. 71 mistake In the registration or recording of the instrument in extenso. This presents a question of no little difficulty, which must be solved by the application of general prin- ciples of law to the provisions of our stat- ute. It is a familiar rule that an instrument must be properly executed and acknowledged so as to entitle it to record, in order to make the registry thereof operate as con- structive notice to a subsequent purchaser. Says Mr. Justice Story: "The doctrine as to the registration of deeds being construc- tive notice to all subsequent purchasers is not to be understood of all deeds and con- veyances which may be de facto registered, but of such only as are authorized or re- quired by law to be registered, and are duly registered in compliance with law. If they are not authorized or required to be regis- tered, or the registry itself is not in com- pliance with the law, the act of registration is treated as a mere nullity; and then the subsequent purchaser is affected only by such actual notice as would amount to a fraud." 1 Eq. Jur. § 404. See, also Ely v. Wilcox, 20 Wis. 528; Fallass v. Pierce, 30 Wis. 444; Lessee of Heister v. Portner, 2 Bin. 40; Shove v. Larsen, 22 Wis. 142, and cases cited on page 146. Under our statute, among other requisites, two witnesses are essential to a conveyance, to entitle it to record. The statute requires every register to keep a general index, each page of which shall be divided into eight columns, with heads to the respective columns as pre- scribed; and the duty is imposed upon the register to make correct entries in said in- dex of every instrument received by him for record, under the respective and appro- priate heads, and immediately to enter in the appropriate column, and in the order of time in which it was received, the day and hour of reception; and it is declared that the instrument "shall be considered as re- corded at the time so noted." Rev. St. 1858, c. 13, §§ 142, 143. In Shove v. Larsen, supra, the effect of this index containing correct entries of matters required to be made there- in was considered, and it was held that by force of the statute it operated as construc- tive notice to a subsequent purchaser. In that case the index contained an accurate description of the land mortgaged, but in transcribing the mortgage at large upon the records a mistake was made in the descrip- tion; and it was claimed in behalf of the subsequent purchaser that it was the regis- tration of the instrument at large which alone amounted to constructive notice. But this construction of the statute was not adopted, the court holding that a subsequent purchaser was bound to take notice of the entries in the index, which the law required the regis- ter to make. This result seemed to follow necessarily from the language of the statute, which declared that the instrument should be considered as recorded at the time noted. Time might elapse before the instrument was transcribed at large on the record, or it might be lost, and not transcribed at all, leaving the index the only record of its con- tents. And the manifest intention of the statute seemed to be to make the index no- tice of all proper entries from its date, and also of the instrument itself until it was registered in full. Tho further consequence would seem necessarily to result from this view of the statute that the registration of the conveyance in extenso relates back to the registration in the index, and from thence there is constructive notice of the contents of the instrument. The doctrine of Shove v. Larsen was approved in Hay v. Hill, 24 Wis. 235j but the court refused to make the entry in the index in that case operate as constructive notice, because upon its very face it bore conclusive evidence that it was not made at its date; in other words, the rectitude and integrity of the index were successfully impeached by the index itself. See, also, Insurance Co. v. Scales, 27 Wis. 640. Where there is nothing upon the face of the index to impeach or throw suspicion upon its accuracy, there it would affect a subsequent purchaser with notice of those- facts which the law required to appear there- in. Doubtless, a still further consequence fol- lows from this construction of the statute, namely, that where, by some mistake, there is a discrepancy between the proper index entries and the instrument as registered, there each supplies the defects of the other in the constructive notice thereby given; that is, it appears to be the intention of the stat- ute to charge the subsequent purchaser con- structively with such knowledge as the prop- er index entries afford, as well as with notice of those facts derived from the regis- tration itself. He is presumed to have ex- amined the whole record, and is affected with notice of what it contains. But when the instrument, as registered in full, appears defective in some material and essential parts, which are not supplied by the index entries, what effect, then, must be given the record as constructive notice? This is real- ly the difficult question in this case. From the entries in the index it would not appear whether the mortgage was witnessed or not. The presumption from the mere entries them- selves would be that it was witnessed and acknowledged, so as to entitle it to record; but when the mortgage, as registered in full, was examined, it would be found that it had no witnesses, and had no business on the records. As the record itself is only constructive notice of its contents, it is dif- ficult to perceive how it can go beyond the facts appearing upon it, and charge a pur- chaser constructively with knowledge of a fact not in the record. One of the counsel for the defendants states the argument on this point as follows: He 72 DOCTRINES OF EQUITY. insists and claims that the entries in the index books, so far as they indicated that the mortgage had been filed for record, in- dicated also that the mortgage was so ex- ecuted as to entitle these entries of it to be made; but that, when the full record was looked at for all the particulars of the mortgage, and perhaps for the express pur- pose of verifying the entries in the index, it is found that the apparent assertion by the index entries that the mortgage was properly executed was wholly untrue, and that the mortgage in fact was no incum- brance. The fact, as truly shown to exist by the full record, overcomes and destroys the false assertion as to the fact in the index. And, it appearing by the instrument registered that it was not entitled to record, both the registration and index itself cease to affect the purchaser with constructive no- tice. It is not readily perceived wherein this ar- gument as to the effect of our various pro- visions upon the subject of registration is unsound. The question mainly depends up- on the construction of our own statutes. So far as we are aware, this is the first time the point has been presented in this court for adjudication. We have derived but little aid from the decisions in other states, for the reason that few of them have similar statutory provisions. We have been referred by the counsel for the plaintiff to two cases in Michigan,— Brown v. McCormick, 28 Mich. 215, and Starkweather v. Martin, Id. 472. In Brown v. McCormick the effect of the reg- istry, as notice to subsequent purchasers, was made to turn upon the curative act of 1SG1, mentioned in the opinion. In Stark- weather v. Martin the question was, how far the absence, on the registry of a deed, of any mark or device indicating a seal, or of any statement of the register that the orig- inal was sealed, affected the validity of the record entry as evidence of title. The rec- ord entry of the deed was made more than forty years before the cause was decided, by the proper officer, and in the appro- priate place for the registry of deeds, under the law permitting the registry of only seal- ed instruments; and the instrument was in the form of a warranty deed, purporting to be acknowledged and dated at a time when it was the common and lawful course to seal conveyances, and contrary to official duty to take the acknowledgment unless the conveyance was sealed, and where the con- clusion, attestation clause, and certificate of Acknowledgment of the instrument all spoke of it as under seal. The court said that these facts and incidents, taken together, afforded a very strong presumption that the original was sealed. The doctrine of this case does not seem to have ^ very strong bearing upon the ques- tion under consideration. It may be said that it was contrary to the duty of the reg- ister to record the mortgage unless it was properly acknowledged and witnessed, and that a presumption arises that he would not have done so. But in answer to this it may also be said that the law made it the duty of the register to record the mortgage unless it was properly acknowledged and witness- ed, and that a presumption arises that he would not have done so. But in answer to this it may also be said that the law made it the duty of the register to record, or cause to be recorded correctly, all instruments au- thorized by law to be recorded. Section 140, c. 13, Rev. St. 1858. And the presumption that he performed his duty in recording the mortgage correctly is as strong as the pre- sumption that he would not have recorded it unless it was entitled to registry. In Shove v. Larsen, a number of cases are referred to which hold that a mistake in re- cording a deed, or recording it out of its order, renders the registration ineffectual as notice to subsequent incumbrancers and pur- chasers. The doctrine of those cases would seem to be applicable to the case before us. The registration and index entries being in- complete, because showing that the mort- gage had no subscribing witnesses, construc- tive notice could not be presumed of such a record; for the principle "that the registry is notice of the tenor and effect of the instru- ment recorded only as it appears upon that record" fully applies. Shepherd v. Burkhal- ter, 13 Ga. 443. See, in addition to the cases cited in Shove v. Larsen, Brown v. Kirkman, 1 Ohio St. 116; Stevens v. Hampton, 46 Mo. 404; Bishop v. Schneider, Id. 472; Terrell v. Andrew Co., 44 Mo. 309; Frost v. Beekman, 1 Johns. Ch. 2SS. The question, then, arises whether the evi- dence shows that any of the defendants were affected with actual notice of the mortgage. This question, we think, must be answered in the affirmative, so far as the defendants Thomas Maloy and Stanislaus Bartosz are concerned. In the deposition taken on his own behalf, but read as a part of the plaintiff's case, Thomas Maloy distinctly admits that he had heard, when he purchased his lots, that there was a defective railroad mortgage upon them, but that he did not look for it, because his abstract did not show it. It is claimed by one of the counsel for the defendants that this related to the Aiken mortgage, and not to the one upon which this action is brought It seems to us, however, that this is a total- ly inadmissible construction of the testi- mony. He most certainly refers to the mort- gage in suit. And what he had heard about there being a defective railroad mortgage upon the property was sufficient to put him upon inquiry. Parker v. Kane, 4 Wis. 1. "What is sufficient to put a purchaser upon an inquiry is good notice; that is, where a man has sufficient information to lead him to a fact, he shall be deemed conusant of it." DOCTRINES OF EQUITY. 73 Sugd. Vend. (9th London Ed.) p. 335. "In re- gard to the inquiry required of a party, it should be such as a prudent and careful man would exercise in his own business of equal importance. Accordingly, where the mortga- gee is informed that there are charges affect- ing the estate, and is cognizant of two only, he cannot claim to be a purchaser without notice of other charges, because he believes that the two, which satisfy the word "char- ges," are all the charges upon it. He is bound to inquire whether there are any oth- ers. The rule with respect to the consequen- ces of a purchaser abstaining from making inquiries does not depend exclusively upon a fraudulent motive. A man may abstain from mere heedlessness or stupidity, and be none the less responsible for the consequences; but, if he make reasonable inquiry, and is deterred by a false answer, he is excusable, if it be of a character to delude a prudent man." 1 Story, Eq. Jur. § 400b; Jackson v. Van Valkenburgh, 8 Cow. 260. Independent- ly of the record, Maloy had notice of the ex- istence of the mortgage, or had a knowledge of such facts as to call for further inquiry. He cannot, therefore, be protected as an in- nocent purchaser for value. The defendant Bartosz must be charged with notice of the mortgage by the recitals in the deed from Tenney and wife to his im- mediate grantor. He was present when that deed was executed and delivered to his uncle. He testifies that he did not know whether anything was said about the railroad mort- gage at that time or not; that he did not un- derstand English very well. The purchase was really made by his uncle for him. And, whether he fully understood the conversa- tion at the time about incumbrances, he must be chargeable with notice of what ap- pears in his chain of title. This clause was in the deed to his uncle; "Said premises are free and clear from all incumbrances except a mortgage to the La Crosse Railroad Co., which I am to save said Bartosz harmless from." The general rule upon this subject is "that, where a purchaser cannot make out a title but by a deed which leads him to an- other fact, he will be presumed to have knowledge of that fact." The following au- thorities are very clear and decisive upon that point: Fitzhugh v. Barnard, 12 Mich. 105; Case v. Erwin, 18 Mich. 434; Baker v. Mather, 25 Mich. 51; Insurance Co. v. Hal- sey, 8 N. Y. 271; Frost v. Beekman, 1 Johns. Ch. 298; Gibert v. Peteler, 38 N. Y. 165; Acer v. "Westcott, 46 N. Y. 384; Coles v. Sims, 5 De Gex, M. & G. 1. The clause in the deed referred to the mortgage as an existing in- cumbrance, and he cannot now, in good faith, claim that it is not a lien upon his property. The counsel for the plaintiff claims that the defendant McLindon had actual knowl- edge of the existence of the mortgage. It is true, he testified that when he purchased he knew by report that there was a railroad mortgage upon the property, but he says that the report stated that the mortgage was void. Were he not protected by another prin- cipal, he could not certainly be regarded as a bona fide purchaser. But he purchased from S. S. Johnson, or claims through Johnson, in whom the title stood free from any taint. For the rule is well settled that a purchaser affected with notice may protect himself by purchasing of another who is a bona fide purchaser for a valuable consideration. For a similar reason, if a person who has notice sells to another who has no notice, and is a bona fide purchaser for a valuable considera- tion, the latter may protect his title, al- though it was affected with the equity aris- ing from notice in the hands of the person from whom he derived it. Mr. Justice Story says this doctrine, in both of its branches, has been settled for nearly a century and a half in England. 1 Eq. Jur. § 410. He states an exception to the rule, which was recog- nized and enforced in Ely v. Wilcox, 26 Wis. 91, where the estate became revested in the original fraudulent grantee, when the orig- inal equity was held to reattach to it. There is no pretense that McLindon comes within the exception; and, as a bona fide purchase of an estate for a valuable consideration purges away the equity from the estate in the hands of all persons who derive title under it, he is protected. It is said that it does not appear that Johnson's title was de- rived from the common source. As we un- derstand the bill of exceptions, an abstract was offered in evidence to show title from Bunn, by various intermediate conveyances, to the defendant, which was ruled out on the plaintiff's objection. But perhaps it is a better answer to the objection to say that the plaintiff has made the defendants parties under the general allegation that they claim some interest in or title to the mortgaged premises, which was subject to the mort- gage. This allegation implies that this in- terest was not adverse, but was derived from Dunn, though subsequent in date, and inferior in right, to the plaintiff's mortgage. It was further insisted that the evidence showed that the defendant Mary Maloy had actual notice of the mortgage. We do not think this position is sustained by the tes- timony. It is attempted to charge her with the same actual knowledge her husband had, because he aided her when she made her pur- chase of Martin Maloy. It does not appear that anything was said at this time about the rail- road mortgage, or that she ever had any notice of it. It does not appear, even, that he was acting as her agent in any legal sense; and, besides, if he were, his knowledge, acquired at another time, when not engaged in her business, ought not to be imputed to her. Notice, to bind the principal, should be brought home to the agent while engaged in the business or negotiation of the prin- cipal, and when it would be a breach of trust in the former not to communicate the knowl- edge to the latter. 1 Story. Eq. Jur. § 408, 74 DOCTRINES OF EQUITY. and cases cited in note 1. The evidence fails to bring her within that rule. A number of other questions were discuss- ed upon the argument; but we believe these observations dispose of all the more impor- tant ones. The judgment of the circuit court as to th& defendants Thomas Maloy and Stanislaus Bartosz must be reversed, and the cause re- manded for further proceedings in accord- ance with this decision. It is so ordered. DOCTKINES OF EQUITY. 75 HOUSTON v. TIMMERMAN. (21 Pac. 1037, 17 Or. 499.) Supreme Court of Oregon. May 3, 1889. Appeal from circuit court, Linn county. Hewitt & Bryant and Tilman Ford, for appellant. /. K. Weatlierford and 2). li. N. Blackburn, for respondent. LORD, J. This was a suit to partition cer- tain lands described herein. The defendant denied that the respondent had any interest in said lands, and alleged that she was the owner in fee-simple, and entitled to the pos- session of the whole of said premises. The plaintiff, in reply, denied this, and alleged affirmatively that some time in July, 1884, she commenced a suit against A. J. Houston for a divorce and alimony, and for an equal undivided one-third of the real property then owned by said Houston, and that he was the owner in fee of said real property, which was duly described therein. That the sum- mons in said divorce suit was served on , 1884, and that prior to that time and prior to the 26th day of September, 1884, the defendant Timmerman had notice that the complaint for divorce and one-third of said real property had been filed by the plaintiff against her husband. That on the 5th day of February, 1886, a decree was entered, granting a divorce in favor of the plaintiff, and adjudging her to be the owner of the un- divided one-third of said real property, etc. The court below, after a trial of said cause, rendered a decree therein, granting the prayer of plaintiff for partition, except as to the 160 acres of land mentioned therein, and partition was ordered and made on June 26, 1888, and confirmed by the court. The de- fendant Timmerman derived her title to the premises in dispute in this wise: On the 15th day of March, 1880, the plaintiff's hus- band, A. J. Houston, for value, made and delivered his promissory note to the defend- ant Timmerman for the sum of $3,400, with interest at the rate of 10 per cent, per an- num from date; that, the said A. J. Hous- ton failing to pay said note, the defendant Timmerman commenced suit on the 26th day of September, 1884, and caused service of summons to be made upon him on that day, and that on October 27, 1884, the de- fendant Timmerman recovered judgment against the said A. J. Houston for the sum of $5,463.87, which, on the same day, was duly docketed in the judgment lien docket, and thereupon became a lien upon all the real property mentioned in the complaint in this suit. It further appears that on March 19, 1883. said A. J. Houston made and de- livered his promissory note to J. T. Williams for $1,000, with interest from date at the rate of 10 per cent, per annum, payable six months after date, and to secure the pay- ment of the sameexecuted amortgage, which was duly recorded, upon the 160 acres of land set out in the complaint. The said Houston failing to pay said note, the mortgage was foreclosed against the said Houston and the plaintiff herein. The defendant Timmer- man, however, answered, setting up her judgment, and asked, if the property be sold to foreclose said mortgage, that the over- plus, if any, should be applied in payment of her judgment, and a decree was accordingly so entered, etc.; that execution was issued upon said decree, and said 160 acres was sold to the defendant Timmerman for $2,500; that thereafter, on May 13, 1885, execution was issued upon said judgment, and the re- mainder of the premises described herein was sold to the defendant Timmerman, and said sale confirmed, and deeds were duly ex- ecuted by the sheriff to said defendant. It will be noticed that the suit of the de- fendant Timmerman to recover the amount due on the note against A. J. Houston, who was then the husband of the plaintiff herein, was commenced after the suit of the plaintiff for divorce against her husband, and that a judgment was recovered and docketed before a decree in the divorce suit was ren- dered, and in which one-third of the real es- tate then owned by the husband was decreed the plaintiff. It is true, there was no direct proof of the date of the service of the sum- mons in the divorce suit; but, as this will not affect the result reached, it is immaterial. The contention is that the defendant Tim- merman was a purchaser pendente lite. There is, however, a preliminary question to- be first disposed of, namely, that the appeal was not taken within six months as allowed by law. The answer to this is that the ob- jection relates to the interlocutory or first de- cree, and not to the final decree, and that, as our own Code does not authorize an appeal from interlocutory judgments or decrees, but only from such as are final, and, the appeal from the final decree being within six months, there was a right of appeal, and the objection, therefore, is unavailing. An examination of the statutes of the two states from which the authorities were read, to the effect that an appeal might be taken before a final judgment or decree was entered shows that appeals in those states may be taken from interlocutory judgments or de- crees, which, not being the case under our Code, they fail on application. See Freem. Co-tenancy, §§ 519, 527. But to return. Among the ordinances or rules adopted by Lord Chancellor Bacon "for the better and more regular administration of justice" was one which provided that, where a person "comes in pendente lite, and while the suit is in full prosecution, and without any color of allowance, or privity of the court there regularly, the decree bindeth." Chancellor Kent said that a "Us pendens duly prose- cuted and not conclusive is notice to a pur- chaser so as to affect and bind his interest by the decree." Strictly speaking, however, the doctrine of lis pendens is not founded upon notice, but upon reasons of public policy, founded upon necessity. "It affects him," said Lord Chancellor Cuanwokth, "not be- 76 DOCTRINES OF EQUITY. cause it amounts to notice, but because the law does not allow litigant parties to give to others, pending the litigation, rights to the property in dispute, so as to prejudice the opposite party. * * * The necessities of mankind require that the decision of the court shall be binding, not only on the liti- gant parties, but also on those who derive title under them by alienation made pending the suit, whether such alienees had or had not notice pending proceedings. If this were not so, there could be no certainty that litigation would ever come to an end." Bel- lamy v. Sabine, 1 De Gex & J. 566. The main purpose of the rule is to keep the sub- ject-matter of the litigation within the power of the court until the judgment or decree shall be entered; otherwise, by successive alienations, its judgment or decree could be rendered abortive, and thus make it impossi- ble for the court to execute its judgments or decree. Hence the general proposition that one who purchases of either party to the suit the subject-matter of the litigation, after the court has acquired jurisdiction, is bound by the judgmentor decree, whether hepurchased for a valuable consideration or not, and with- out any express or implied notice in point of fact, is sustained by many authorities, and disputed by none. Eyster v. Gaff, 91 U. S. 521; Grant v. Bennett, 96 111. 513; Randall v. Lower, 98 Ind. 261; Daniels v. Henderson, 49 CaJ. 242; Blanchard v. Ware, 43 Iowa, 530; Carr v. Lewis, 15 Mo. App. 551; Currie v. Fowler, 5 J. J. Marsh. 145; Hiern v. Mill, 13 Ves. 120; 1 Story, Eq. Jur. § 405. The doctrine of lis pendens was introduced in analogy to the rule at common law in a real action "where if the defendant aliens after pendency of the writ, the judgment in the action will overreach such alienation." Sor- rell v. Carpenter, 2 P. Wms. 482. And this may account for the leaning in some of the courts to restrict the application of the rule of lis pendens to actions or suits affecting title to real property. McLaurine v. Mon- roe, 30 Mo. 469; Winston v. Westfeldt, 22 Ala. 760; Baldwin v. Love, 2 J. J. Marsh. 489; Murray v. Lylburn, 2 Johns. Oh. 441. But it is hardly considered well settled that it may not with equal propriety be applied to the sales of chattels. Two things, however, seem indispensable to give it effect: (1) That the litigation must be about some specific thing, which must necessarily be affected by the termination of the suit; and (2) that the particular property involved in the suit "must be so pointed out by the proceeding as to warn the whole world that they intermed- dle at their peril." Freem. Judgm. §§ 196, 197. Now, the divorce suit of the plain- tiff was not brought specifically to recover the one-third of the real estate of her hus- band, as was decreed in the divorce proceed- ing. Thelandwas not the subject-matter of the litigation, and the subject of the suit was not to recover title that belonged to the plaintiff. It was incidental and collateral to the divorce proceeding. The court has no jurisdiction to affect the title of the husband to his lands, or decree that one-third of them shall be set apart for her in her own right and title, independent of a decree for divorce. Nor has the plaintiff any title on which to base a suit to recover any portion of the same, except as it comes by force of the statute upon a decree for divorce. A proceeding in divorce is partly in personam and partly in rem, and, in so far as it is to affect the mar- riage status, it is to change a thing independent of the parties, and is a proceed- ing not against the parties in personam, but against their status in rem. 5 Amer. & Eng. Cyclop. Law, "Divorce," 751. The matter upon which the jurisdiction acts is the sta- tus. The marriage is the thing which the suit is brought to dissolve. It is the subject of the litigation; but, as incidental to it, the court may grant temporary alimony pendente lite, or permanent alimony, when a decree for divorce is rendered. And the general rule is that bills for alimony do not bind the property of the defendant with lis pendens. 1 .Story, Eq. Jur. § 196; Brightman v. Bright- man, 1 R. I. 112; Isler v. Brown, 66 N. C. 556; Almond v. Almond, 4 Rand. (Va.) 662. But the court cannot affect the title of the real property of the defendant in a divorce proceeding until the point is reached that a decree of divorce is to be rendered. Tempo- rary alimony may be granted pendente lite, but the title of the real estate of the defend- ant remains intact, and cannot be affected during the pendency of the proceeding, but only when the proceeding for a divorce has terminated, and a decree rendered that the marriage is dissolved, and then only by force of the statute. Our statute provides: "Whenever a mar- riage shall be declared void or dissolved the party at whose prayer such decree shall be made shall in all cases be entitled to the un- divided one-third part in his or her undivided right in fee of the whoie of the real estate owned by the other at the time of such decree; and it * * * shall be the duty of the court to enter a decree in accordance with this provision." Code Or. § 499. It is " whenever a marriage shall be declared dissolved" that the statute oper- ates, not before, or pendente lite; and the court then becomes authorized, and it is its "duty," "to enter a decree" for the undivided one-third part in fee of the whole of the real estate "owned by the defendant at the time of such decree" for a divorce. It must be manifest, then, that the primary object of the suit is to affect the marriage relation, — its status; that it is the specilic matter in con- troversy to be affected ; and that it is only when the status is changed by a decree of di- vorce that the statute operates to divest title "owned" by the defendants, and that it then becomes the duty of the court to enter a de- cree in accordance with its provisions. Nor do the cases cited by counsel sustain his con- tention. In Tolerton v. Williard, 30 Ohio St. 586, the suit was of "double aspect," as said DOCTRINES OF EQUITY. IT by the court, and was brought to protect her equitable right in property which was the subject of dispute. This property was bought with the wife's money, and she sought a res- toration of her rights. The court says: "It is evident that the court in coming to its con- clusion did take these equities into consider- ation, so that the decree may fairly be con- sidered an equitable one in her favor." And again: "In a proceeding like the one under consideration where the wife claims rights in her husband's property other than those aris- ing from the marital relation, and insists up- on them in connection with her claim for ali- mony, the court is fully authorized to pass upon them." In Daniel v. Hodges, 87 N. C. 97, the proceeding was for alimony, and the only property which the husband owned was a lot that the wife sought to have sub- jected to her claim, and was in actual pos- session of it by order of the court when her husband, pending the litigation, conveyed it to another, and the court held, under the ex- ceptional circumstances of the case, that the doctrine of lis pendens applied. There the proceeding was to subject the specific thing to her claim, which the husband attempted to defeat by conveying away the property, and the court, while admitting the general doctrine that a lis pendens was not applicable in such cases, said: "We are of the opinion the petition for alimony under the particular circumstances of the case constituted such a lis pendens as affected the purchaser with notice, independent of the actual notice had, and rendered the deeds void." But this has no-relevancy to the case at bar. There she sought to subject the property to her claim for alimony, and the suit was directed specif- ically against it, and she was put in actual possession by order of the court, and then it was only "under the peculiar circumstances of the case" that the court thought the purchaser from the husband pending the liti- gation was affected with the rule of lis pen- dens. Here there was no alienation of the property, which was only incidentally in- volved, or any charge of any act on the part of the defendant Houston to defeat any right whatever which might accrue to the plaintiff, if the marriage should be dissolved. If the defendant Houston had conveyed away the property to another with the object of defeat- ing her right, upon a decree for divorce, to any interest in his lands, such purchaser may be affected with the rule of lis pendens in such case; but that is not the question here, and which it will be time enough to decide when properly presented for our considera- tion. The debt which the defendant Hous- ton owed the defendant Timmerman was contracted long before the suit for divorce was commenced, or the cause or ground of the divorce existed, and doubtless the credit was given on the faitli of the property, a part of which included the property in dispute, then owned by Houston. There is no pre- tense of any fraud or collusion, or that the debt is not an honest obligation which Hous- ton ought to have paid long before the di- vorce proceeding was instituted. Although the commencement of the divorce suit might result in a decree which would affect the property of the defendant, .the property was not the subject specifically of the litiga- tion, and by reason thereof was not with- drawn from such burdens as might be legally imposed upon it for just claims upon judg- ments recovered and docketed against its owner, prior to divesting him of his title by force of the statute under the decree. The defendant Timmerman had the legal right to commence her action to recover the money due on the note of Houston, and the fact that the wife of Houston had instituted proceed- ings for a divorce did not affect that right, but when judgment was recovered thereon, and docketed, by force of law, the lands then owned by him in that county, including the land in dispute, became subject to the lien of such judgment; and, as the facts show that this was before any decree was rendered in the divorce whereby title to such lauds could be divested, it follows that whoever took title ■ from him subsequently, either by contract or by operation of law, took said title cum onere, or subject to the lien of such judgment. It results, as a purchaser of said lands at an ex- ecution sale upon such judgment, the defend- ant Timmerman was not affected by or sub- ject to the rule of lis pendens, and her deed thereby rendered invalid. It is true, in the divorce suit the property was described in the complaint and decree, which, since the decision in Bamford v. Bamford, 4 Or. 30, has been deemed essential to reach the prop- erty of the guilty party, but it is apprehended that neither allegation or proof concerning the lands is necessary, but that it is enough and a sufficient compliance with the latter clause of section 499, Code Or., to say in ef- fect that the party obtaining the divorce is hereby entitled to one-third of the real prop- erty owned by the other, whatever it may be. In this view, if any question arises as to what property was so owned by him, it can be determine d by appropriate proceedings for that purpose between the parties interested, much better than in a divorce suit, in which it is neither proper nor convenient that third parties, in order to protect their rights, should he compelled to intervene and become parties to a controversy between husband and wife in a divorce proceeding. Barrett v. Failing, 6 Sawy. 475, 3 Fed. Rep. 471. So that, how- ever we look at the facts of this record, our conclusion is that the decree of the lower court must be reversed, and it is so ordered. 78 DOCTRINES OF EQUITY. ROSEMAN et al. v. MILLER. (84 111. 397.) Supreme Court of Illinois. Sept. Term, 1876. Appeal from circuit court, Grundy county; Josiah McRoberts, Judge. Mr. Charles W. Needham, for appellants. Mr. S. W. Harris, for appellee. SCHOLFIELD, J. The present appeal is prosecuted to reverse a decree of the court be- low allowing the complainant to redeem from a sheriff's sale, and setting aside certain deeds, and enjoining the prosecution of a suit in ejectment. The only question made is whether the evi- dence in the record is sufficient to sustain the decree. At the June term, 1869, of the superior court of Chicago, one Lake obtained a judgment against the complainant for $1,735.45, and costs of suit. Execution was thereupon is- sued to the sheriff of Grundy county, and by him levied upon the E. % of the S. E. H, and the E. y 2 of the S. W. % , of section 16, town- ship 33, range 7, in that county. On the 19th day of February, 1870, the lands were struck off and sold by the sheriff, en masse, to the defendant Roseman, for $10, and, there being no redemption from the sale, the sheriff ex- ecuted and delivered to him a deed therefor on the 24th day of May, 1871. On the 26th day of October, 1871, Roseman conveyed, by quitclaim deed, an equal undivided half of the land to the defendant Beach. The two tracts of land, as is apparent by reference to the description, do not adjoin each other, there being another 80-acre tract between them. The evidence shows that there is a house, barn, orchard, etc., on each ■ tract, and they constitute two wholly separate and independent farms. They were worth, in the aggregate, at the time of the sale, a sum varying, in the opinions of different wit- nesses, from $6,000 to something over $8,000; but they were incumbered by a mortgage, the balance on which was $1,889.86. The policy of selling en masse, as was here done, separate and wholly independent tracts of land, neither of which has any apparent tendency to augment the value of the other, when taken together, is liable to produce great injustice; and, notwithstanding they may have been previously offered separately without obtaining bidders, where the amount bid for them en masse is merely nominal, the officer should ordinarily postpone the sale, and readvertise. Ten dollars, when com- pared with the value of the property to be sold, even after making due allowance for the depreciation in value in consequence of the mortgage lien, was purely a nominal bid, and no one making it could reasonably an- ticipate that he was, therefore, to become the ■owner of the property. In cases of such gross inadequacy between the value of the property and the amount bid, as was observed in Hamilton v. Quimby, 46 111. 96, the court will seize upon any circumstances of unfairness towards the debtor to afford him relief. The defendant Beach, in our opinion, has shown no equity in his favor which places his title upon a better footing than that of the defendant Roseman. Although he may have been a purchaser without notice, yet, if he took the deed as a volunteer, or has not paid the purchase money, he is not an innocent purchaser for value, and cannot be protected. It was incumbent on him to prove that he was a purchaser for value, and had paid the purchase money, and this, too, independently of the recitals in the deed; and, not having done so, there is no presumption to aid him. Brown v. Welch, 18 111. 343; Hamilton v. Quimby, supra. The case made by the evidence for the com- plainant is that he was induced to believe, and did believe, that the sale to Roseman was not consummated, and would be canceled on his paying the amount due on the judgment. This is, in substance, the evidence of his father, who was acting as his agent in the matter. Subsequent to the sale, this witness says he paid the sheriff on the judgment $444, and in conversation with the sheriff he was informed that Roseman had paid nothing on his purchase; that the sale amounted to nothing, and that he would cancel it upon full payment of the execution. He is contra- dicted, in some respects, by the evidence of the sheriff, but we think he is borne out by other circumstances. If he had not supposed the sale informal, and of no validity, why not, out of the $444, appropriate enough to re- deem from it? This would have been most natural. The judgment was bearing but 6 per cent, interest, but, if there was a sale, the amount of the bid was bearing 10 per cent Nothing could be gained by leaving this amount to stand, and appropriating all the payments on the balance of the judgment. He says he had paid the sheriff his costs ac- crued prior to the sale, and the sheriff also received $14 out of this payment of $444, on account of his costs. The sheriff, neither in this nor in subsequent accounting on the re- ceipt of money on the judgment, before the execution of the deed to Roseman, took any account of the bid of Roseman; and although he gave Roseman a certificate of purchase, it does not appear that any return of the sale was indorsed on the execution or venditioni exponas; for this witness swears that he had the clerk of the court whence they were is- sued to examine, and he reported no return could be found. Although complainant has fully paid the amount of the judgment on which the sale was made, he has never re- ceived any credit on account of Roseman's purchase. The witness is positive that he paid the sheriff, in all, $49, for costs, which the sheriff assured him covered the costs of advertising, sale of property, and return of execution. If the sale was bona fide, and the money paid at the time, It was the duly of the sheriff to have rendered an account of DOCTRINES OF EQUITY. 79 it. His return should have shown the fact, and that no return is introduced to support him we regard as greatly weakening his evi- dence. Roseman was a constable, and, prior to the sale, had acted as bailiff to the court, and in one instance as deputy sheriff, and shortly subsequent to the sale he was regularly ap- pointed as the deputy of the sheriff. His as- sociation with the sheriff was such as to tend very strongly to show that, if he did not ac- tually occupy, at the time of the sale, a posi- tion which, under the law, rendered him in- eligible to purchase at all, he must have known of the conduct of the sheriff in this matter, and, knowing, he is affected by it. When Roseman bid, we cannot regard, from the mere nominal amount of his bid, that he was in good faith expecting and intending to become the purchaser of the land. Before he took a deed, he was requested to call at com- plainant's office, at a subsequent day, for his money. He did not then notify the complain- ant that he claimed the property, but by his silence gave him to believe that he would ac- cept the money. There is, moreover, some evidence tending to show that his motives were rather to avail of an unconscionable ad- vantage to extort money than to insist upon a bona fide legal right in obtaining the deed. In what we have said we have followed the view supported by the evidence of the com- plainant, because, after mature consideration of all the evidence, we are unable to say the court below erred in accepting that view; and we have not deemed it advisable to lengthen our opinion by quoting the evidence in full. Our conclusion is, the decree below works no injustice. It gives to Roseman all to which he is, in good conscience, entitled; and it does not appear that Beach has been de- prived thereby of money he has paid in good faith. The copy of the execution in the record is without a seal. On this ground alone the sale might have been declared a nullity, and no redemption been necessary. But we have chosen to place our affirmance upon other grounds, thinking the omission of the seal may have been through carelessness of the copying clerk, and not because there was none in fact. The decree is affirmed. Decree affirmed. 80 DOCTRINES OP EQUITY. PEEK v. PEEK. (No. 12,315.) (19 Pac. 227^ 77 Cal. 106.) Supreme Court of California. Sept. 22. 1888. Commissioners' decision. In bank. Ap- peal from superior court, San Bernardino county; Henry M. Willis, Judge. Ejectment by Lee Peek, a minor, by Jerry McNew, bis guardian, against Nettie A. Peek, for land in San Bernardino county. Defendant filed a cross-complaint, asking a conveyance of the legal title to the land. Judgment for plaintiff, and defendant ap- pealed. Rowell & Rowell, Harris & Allen, and Wells, Van Dyke & Lee, for appellant. H. C. Rolfe, for respondent. HAYNE, C. Ejectment, with a cross- complaint by defendant praying for a con- veyance of the legal title. The facts are as follows: One L. R. Peek orally promised the defendant that if she would marry him, he would, on or before the marriage, convey to her the property in controversy. She re- lied upon this promise, and married him "for no other reason or consideration." The conveyance was not made. He put it off by excuses and protestations, and on the morning of the marriage, without the knowledge of defendant, conveyed the property to his son by a former marriage, who was then a boy about 10 years old. The marriage with defendant did not prove a happy one, and after a year's residence upon the property Peek deserted the de- fendant, and the son, Lee Peek, brought the present action to recover possession of the property. The court below gave judg- ment for the plaintiff, and the defendant appeals. The foundation of the defendant's claim being the promise of L. R. Peek, the first question to be considered is whether such promise was of any validity. It is clear that it was within the statute of frauds. But it is contended that there was such part per- formance and fraud as would induce a court of equity to give relief, notwithstanding the statute. We think that if the actual fraud of L. R. Peek be left out of view, there was no such part performance as would take the case out of the statute. There may undoubt- edly be cases of a part performance of oral antenuptial agreements sufficient to warrant their enforcement in equity. See Neale v. Neale, 9 Wall. 1. But it seems to be gen- erally agreed that the marriage alone does not amount to such part performance. See Ath. Mar. Sett. 90; Browne, St. Frauds (4th Ed.) § 459; Henry v. Henry, 27 Ohio St. 121. With reference to this subject, Story says: "The subsequent marriage is not deemed a part performance, taking the case out of the statute, contrary to the rule which prevails in other cases of contract. In this respect it is always treated as a peculiar case, standing on its own grounds." 2 Eq. Jur. § 768. Nor does the fact that the defendant resided with her husband upon the property make any difference. The reason assigned for holding possession to be part performance is that, unless validity be given to the agree- ment, the vendee would be a trespasser. But it is manifest that this reason would not ap- ply where the vendor was the husband and the vendee the wife, living with him upon the property. The possession which is re- ferred to by the cases which hold it to be sufficient part performance is a possession exclusive of the vendor. Browne, St. Frauds (4th Ed.) § 474. But the fact that the mar- riage was brought about by the actual fraud of L. R. Peek seems to us to make a differ- ence. There can be little doubt upon the recoru that there was actual fraud on his part. He denies that he made any promise to convey the property in controversy. But the court finds that he did make it, and, tak- ing this to be the fact, we think that the defendant's account as to the time of the promise, and of the reason she married him without the conveyance, must be accepted as the true one. According to her testimony, the promise was repeated up to the time of the marriage, and she was induced to have the ceremony performed before the convey- ance was executed by means of excuses and protestations, which must have been made for the purpose of deceiving her. On the day before the marriage, he pretended that he was going to have the deed executed at once. He said to the defendant: "The of- ficers are in town that are required to draw up the papers. Come to-night, and I will have the place deeded to you, and the §15,- 000 put in your name. He left me in the hotel, and in a few minutes he came and told me that Mr. Frank McKenny was out of town, and it could not be attended to that evening." The next day "he said he would have the deeds drawn, and he went up and said that they were all busy at the court- house, and he couldn't have it done at that time; and he called on me again with the same story, that the gentlemen at the court- house were busy, and that he could not have the deeds fixed, and that I could rest content- ed." He, however, succeeded in inducing the defendant to marry him that evening by pro- testing that the papers should be executed as soon as practicable. After the marriage he kept up for a short time the pretense that he was going to fulfill his promise, but never did so. It seems clear that he never intend- ed to have the deed executed. The story that he could not have it done because the officers at the court-house were busy is ridiculous. On the very day that he was making this excuse he got a deed executed conveying the property to his son. And the fact that he induced the defendant to mar- ry him by promising to convey the property to her, when at that very time he was con- veying it to somebody else, seems conclusive as to his fraudulent intent. We think, there- fore, that the conclusion of the court below, that the deed was not made "with any DOCTRINES OF EQUITY. 81 fraudulent intent whatever," is not sustain- ed by the facts. This fraud on the part of L. R. Peek, by which he induced the defend- ant to irretrievably change her condition, seems to us to be ground for relief in eq- uity. It has been laid down that if the agreement was intended to be reduced to writing, but was prevented from being so by the fraudulent contrivance of the party to be bound by it, equity will compel its specific performance. 2 Story, Eq. Jur. §■ 768; Ath. Mar. Sett. 85. And the recent case of Green v. Green, 34 Kan. 740, 10 Pac. 156, is ex- actly in point. In that case a widow, own- ing 160 acres of land, orally promised a man that if he would marry her, she would de- vote the proceeds of the land to their joint support. Relying upon this promise, he mar- ried her, but subsequently ascertained that on the eve of the marriage she had convey- ed the property to her children by former marriage, "in consideration of love and af- fection." The court held that he could main- tain an action to have the deed set aside on the ground of fraud. Compare, also, Petty v. Petty, 4 B. Mon. 215. We do not say that the mere fraudulent omission to have an agreement reduced to writing would of itself be ground for specif- ically enforcing the agreement. But where the fraudulent contrivance induces an ir- retrievable change of position, equity will enforce the agreement; and the marriage brought about by the fraudulent contrivance is a change of position, within the meaning of the rule. In Glass v. Hulbert, 102 Mass. 24, in reasoning, upon somewhat different facts, to the conclusion that, in order to be ground for the enforcement of the oral con- tract, the fraudulent contrivance must have induced some irretrievable change of posi- tion, the court said: "The cases most fre- quently referred to are those arising out of agreements for marriage settlements. In such cases, the marriage, although not re- garded as a part performance of the agree- ment for a marriage settlement, is such an irretrievable change of situation that, if pro- cured by artifice, upon the faith that the set- tlement had been made, or the assurance that it would be executed, the other party is held to make good the agreement, and not permitted to defeat it by pleading the stat- ute." This, we think, is a correct statement of the law. It is argued, however, that the plaintiff knew nothing of the fraud, and therefore is not affected by it. But it is very clear that a mere volunteer, however innocent, cannot retain the fruits of the fraud, and we think that with reference to at least a portion of the property the plaintiff was a mere volun- teer. There are two grounds upon which it is urged that he was a purchaser for valua- ble consideration. In the first place, it is said that his father was his guardian, and as such owed the plaintiff a balance of $148, and that this sum was part of the considera- tion of the deed. But there was no consent FET.EQ JUR.— 6 of the ward to such an application of the sum due him. His testimony is as follows: "I never paid my papa any money for the deed that he showed me. I do not know anything about how much money was men- tioned in the deed as being the consideration for it. I never knew anything about that. Nothing of that kind passed between us. No property or money or anything. I did not have any property at that time to give him. If I had any, I didn't know it." So that, even if the ward could have consent- ed to such an appropriation of his funds without the sanction of the probate court, there was no such consent. Nor was there any sanction of the probate court. It may be that upon a proper settlement of the guardian's accounts a much larger sum will be found to be due from him. He cannot get rid of liability to his ward in that way. In the next place, it is said that L. R. Peek promised his first wife upon her deathbed that the son should have the property. But it is clear that such promise was a mere moral, and not a valuable, consideration. It did not prevent the plaintiff from being a volunteer. See, generally, Lloyd v. Fulton, 91 U. S. 484, 485. Finally, it is argued that, the first wife furnished half of the money with which the property was purchased, and that a trust resulted to her in consequence.. This was the view taken by the trial court- But, conceding that a trust did result, it did not affect the whole property, but at most only a portion corresponding to the propor- tion of the price which she furnished; and the portion which it did affect was in no sense a consideration for the deed which is involved here. Upon the theory that a trust resulted to the first wife, the plaintiff must claim as her successor in interest. It does not appear that she left a valid will in his favor, and if not he could succeed to a por- tion only of her interest. Furthermore, it might possibly become a question as to> whether the defendant took with notice of the son's equitable interest, and as to how she would be affected thereby. These latter questions have not been argued, and we think they should be left open upon the re- trial. It is deserving of serious considera- tion whether L. R. Peek, who was a party to the contract which the defendant relies upon, should not have been joined as a party to the cross-suit. But the objection as to his non- joinder as a defendant to the cross-complaint was not taken by demurrer, and is not ar- gued in the respondent's brief, and for these reasons we express no opinion concerning it. We therefore advise that the judgment and order denying a new trial be reversed, and the cause remanded for a new trial. We concur: BELCHER, C. C; FOOTE, C. PER CURIAM. For the reasons given in the foregoing opinion the judgment and or- der are reversed, and the cause remanded for a new trial. 52 DOCTIUNES OF EQUITY. MUIR v. SCHENCK. (3 Hill, 228.) Supreme Court of New York. July, 1842. A bond and mortgage were given by de- fendant to the plaintiff in the sum of $1,500, to be paid in five installments. When three installments had been paid to the plaintiff, he assigned the bond to D. as collateral se- curity. Afterwards the plaintiff assigned the, mortgage and the bond to A., who gave notice to defendant of the assignment, and defendant promised to pay him the money thereon, and did pay him the fourth installment, at one time, and later he paid the balance. After the payment of the fourth installment, and be- fore the payment of the balance, D. gave de- fendant notice of the assignment of the bond to him, and he himself claimed the balance. The lower court held that the last payment 1 to A. was good, notwithstanding D.'s no- tice. By the Court, COWEN, J. The question is, whether the defendants were right in pre- ferring Austin, and making the last payment to him instead of Doty. Doty had the first assignment from the obligee, and, as between him and Austin, was entitled to the money. In a conflict of equitable claims, the rule is the same at law as in equity, qui prior est tempore, potior est jure. There was no need of notice to Austin for the purpose of secure ing the preference as against him; and Aus- tin might hava been compelled at the election of Doty to pay over to him the last install- ment received from the defendants. But before that installment was paid, he chose to fix the defendants by giving notice of his right to them, and forbidding the payment of any more to Austin. The payments were correctly made to the latter, till notice. The payment afterwards, was in the defendants' own wrong. The notice, when it came, af- forded them a complete protection, and had the farther effect to render what was before an inchoate right in Doty, perfect from the beginning. As Austin had never any right to recei ve, the defendants had no w no right to pay. No one would doubt that the first as- signment divested the right of the obligee, though the legal interest remained in him. Could he transfer to Austin a greater right than his own? His legal interest was not as- signable; and he had parted with all his equi- table right. Does it not follow that nothing remained for Austin? Tiie decision at the circuit, I admit, derives some degree of countenance from the re- marks made by Chancellor Kent in Murray v. Lylburn, (2 John. Ch. Rep. 441, 443.) I allude to the view there taken of Red/earn v. Ferrier, (1 Bow's Pari. Cas. 50,) which the learned Chancellor supposed should per- haps be received as a qualification of the rule laid down by Lord Thurlow, in Davies v. Austen, (1 Ves. Jun. 249,) who said : "A pur- chaser of a chose in action must always abide by the case of a person from whom he buys; that I take to be an universal rule." True, his lordship was speaking of the case of the assignor, as it stood between him and the debtor; yet the same rule has been often ap- plied to a case as between him and one of his previous assignees. Nothing is better set- tled, for instance, than that the previous as- signment of a chose in action will prevent its passing to assignees by a general assign- ment under the bankrupt or insolvent acts; an assignment carrying even the legal right, and this too, without notice either to the debtor or the subsequent assignees. Ordi- narily, any notice to subsequent conventional assignees must be out of the question; for the first assignee cannot know who they will be. Notice to the debtor might, I admit, afford them a better chance; for then there would be one of whom they might enquire, and of whom they naturally would enquire. This mi^ht prevent fraud; and, to require it, would therefore perhaps be very proper. It is required by the law of Scotland, as ap- pears by Red/earn v. Ferrier, which whs de- cided upon the Scotch law. By that law there must be what is called an intimation to the debtor, before the assignment is per- fect and secures a complete preference even as against a subsequent assignee. In sug- J gesting, however, that such is perhaps the law of England or of this state, Chancellor Kent admitted that he was doing what was not necessary to the decision of the case un- der his consideration, which turned on a point entirely different, viz. a lis pendens ', operating as constructive notice. In Living- ston v. Dean, (2 John. Ch. Rep. 479,) there was actual notice. But neither Redfeam\. Ferrier, nor the two cases decided by Chan- I cellor Kent, related to a previous express as- j signment. There was scarcely the semblance of such an assignment, but only a trust to be inferred by the court of chancery from cir- cumstances — a sort of implied trust — a crea- ture peculiar to that court. The prior right claimed, was spoken of as a latent equity. As between express assignments, I take the law to be correctly laid down by Parker, C. J. in Wood v. Partridge, (11 Mass. Rep. 488, 491, 2.) He said: "Between assignor and assignee the contract is comnlete without any notice to the debtor;" and he considered the notice as intended to protect the debtor alone. Story, J. in his learned work on the Conflict of Laws, (p. 328 to 330,) mentions the difference between the Scotch law and our own, admitting the necessity of intima- tion in the former. He says, that according to our law, an assignment operates, per se, as an equitable transfer of the debt, and he concedes that notice is necessary to protect the debtor; adding: "But an arrest or attach- ment of the debt in his hands by any creditor of the assignor, will not entitle such creditor to a priority of right, if the debtor receive notice of the assignment pendente lite, and in time to avail himself of it in discharge of the suit against him." That has been held in several cases. {Bholen v. Cleveland, 5 Mason, 174, 176, Fed. Cus. No. l,38r; I or will in all human probability be small,— that is, where it is not absolutely necessary that they should be small; but it is so near to a necessity, having regard to the probabili- ties of the case, that the court will presume it to be so. Then the question is whether in that class of cases, the same rule applies? Now, upon this there is no decision. There are a great many dicta upon the question, and a great many dicta on each side. I do not think it is necessary to express a final opinion in this case, but I do say this: that the court is not bound by the dicta on either side, and the case is open to discussion. It is within the principle, if principle it be, of a larger sum before a penalty for nonpayment of a smaller sum; but, at the same time, it is also within another class of cases to which I am now go- ing to call attention. The class of cases to which I refer is that in which the damages for the breach of each stipulation are unascertainable, or not readily ascertainable, but the stipulations may be of greater or less importance, or they may be of equal importance. There are dicta there which seem to say that if they vary much in importance the principle of which I have been speaking applies, but there is no decision. On the contrary, all the reported cases are decisions the other way; although the stipulations have varied in importance, the sum has always been treated as liquidated damages. I now come to the last class of cases. There is a class of cases relating to deposits. Where a deposit is to be forfeited for the breach of a number of stipulations, some of which may be for the payment of money on a given day, in all those cases the judges have held that this rule does not apply, and that the bargain of the parties is to be carried out. I think that exhausts the substance of the cases. DOCTlilNES OF EQUITY. 87 If, therefore, we apply these rules to the present case, the result will be this: that ac- cording to my construction of the contract there is no ascertainable, definite sum of a less amount than the sum named payable within it, as a single condition, and conse- quently the decisions on that point do not apply; nor is it (because the words are "sub- stantial breach") a case in which one or more of the stipulations can be treated as trifling, or of trifling importance; therefore, those dicta to which I have referred do not apply. It is a case in which the stipulations vary in importance, but as the breach must be sub- stantial, and as the amount of damages would therefore be substantial, also, I think that the decisions apply which say that in those cases the sum stipulated is liquidated damages. Lastly, as I said before, those rules do not apply to deposits. I will now go very shortly through the cases to show that they do really amount to what I say. The first case is Astley v. Weldon, 2 Bos. & P. 346, 350. I need not state the facts of the case. In that case a larger sum was mentioned as penalty or dam- ages for the nonpayment of the smaller, one of the sums being a payment of £1. lis. 6d. a week, and the sum for damages £200. The decision was that the sum could not be treat- ed as liquidated damages, but as penalty. The ground of the decision is put by Lord Eldon, who was then lord chief justice of the common pleas, in these words: "What was urged in the course of the argument has ever appeared to me to be the clearest principle, viz. that where a doubt is stated whether the sum inserted be intended as a penalty or not, if a certain damage less than that sum is made payable upon the face of the same in- strument in case the act intended to be pro- hibited be done, that sum shall be construed to be a penalty." Now "certain damage" is used there by Lord Eldon, having regard to English law, that by English law the non- payment of the sum at a given day as a gen- eral rule was merely the amount to be paid. There were certain cases under commercial law where it also included interest, but that was all. Therefore it is certain damage, be- . cause that is the English law, and the prin- ciple is that if a certain damage occurs that sum is made payable on the face of it. That he states to be the principle. It is a very lim- ited principle. Then he goes on to another doctrine, which, as he was familiar with equity law, he does not state as equity. He says (2 Bos. & P. 353): "A principle has been said to have been stated in several cases, the adoption of which one cannot but lament, namely, that if the sum would be very enor- mous and excessive, considered as liquidated damages, it shall be taken to be a penalty, though agreed to be paid in the form of con- tract." Then he goes on to say: "With re- spect to the case of Hardy v. Martin, 1 Brown, ch. 419, note, I do not understand why one brandy merchant, who purchases the lease and good will of a shop from another, may not make it a matter of agreement that if the vendor trade in brandy within a certain distance he shall pay £600; and why the party violating such agreement should not be bound to pay the sum agreed for, though, if such agreement be entered into in the form of a bond with a penalty, it may perhaps make a difference." He does not forget the statute of William III. Then he goes into the case itself, and shows that the breach might be £1. lis. 6d. a week, but of course would make the defendant liable for £200. That is the whole substance of the judgment of Lord Eldon. He perfectly well knew that what- ever had been the doctrine of equity at one time, it was not then the doctrine of equity to give relief on the ground that agreements were oppressive where the parties were of full age, and at arm's length. It is very likely, and I believe it is true historically, that the doctrine of equity did arise from a general notion that these acts were oppres- sive. At all events, long before his time it had been well settled in equity that equity did relieve from forfeiture for nonpayment of money, and I think I may say, in modern times, from nothing else. There were old cases extending to relief from all sorts of things. The nonpayment of money might be the nonpayment of £1 on a given day, as relief against a penalty, or it might be a for- feiture for a condition broken in the case of a mortgage, or it might be the nonpayment of money in the case of purchase, or it might be the nonpayment of money in the case of rent with a proviso for re-entry. Now we come to the next judgment in the same case, which is the first instance of a dictum of a different character. Mr. Justice Heath says this: "It is very difficult to lay down any general principle in cases of this kind, but I think there is one which may be safely stated. Where articles contain cove- nants for the performance of several things, and then one large sum is stated at the end to be paid upon breach of performance, that must be considered as a penalty." That can- not be right, because it would include cove- nants for the performance of several things of equal value. I am not at all certain that Mr. Justice Heath intended to lay down any such general proposition. Then he goes to the rule: "It is a well-known rule in equity that if a mortgage covenant be to pay £5 per cent, and if the interest be paid on certain days, then to be reduced to £4 per cent, the court of chancery will not relieve if the early day be suffered to pass without pay- ment; but if the covenant be to pay £4 per cent., and if the party do not pay at a certain time, it shall be raised to £5 per cent., then the court of chancery will relieve." It was settled so early as that; I am sorry it was so settled, because anything more irrational than the doctrine I think can hardly be stated. It entirely depended on form, and not on substance. Then Mr. Justice Rooke says: "The determination of the court in construing DOCTRINES OF EQUITY. this instrument must be guided by the In- tention of the parties. Now, it appears very clearly, from the stipulation that small sums of money should be paid in certain cases, that the parties considered the larger sum as u penalty." He confines his judgment there- fore, to the same point as Lord Eldon, and *<> does Mr. Justice Chambre, the remaining judge. "There is one case in which the sum agreed for must always be considered as a penalty; and that is where the payment of ■a smaller sum is secured by a larger." Then he goes on to say you cannot sever the cove- nants, and so forth. I have gone into that case rather minutely because it is, I may say, the foundation of the subsequent cases on the subject. The next case, which is one of the greatest im- portance, is the case of Kemble v. Farren, 6 Bing. 141, which has always been treated as a leading authority on the subject. I will not give a very positive opinion as to what the whole of that judgment means. I say so because very eminent judges have takeu very different views of the judgment, and therefore I suppose it is more ambiguous than it appears to me to be. But one thing is clear, — that Chief Justice Tindal, in giving the opinion of the full court, put an end, if I may say so, to any such doctrine as was shadowed forth by Mr. Justice Heath in the case I have just cited. He says (0 Bing. 148) this: "And, if the clause had been lim- ited to breaches which were of an uncertain nature and amount, we should have thought it would have had the effect of ascertaining the damages upon any such breach at £1,000. For we see nothing illegal or unreasonable in the parties, by their mutual agreement, settling the amount of damages, uncertain in their nature, at any sum upon which they may agree. In many cases such an agree- ment fixes that which is almost impossible to be accurately ascertained; and in all cases it saves the expense and difficulty of bring- i ing witnesses to that point." Now, that is conclusive on the general doctrine; that is, it was the opinion of the full court of com- mon pleas that, if the claims were limited to breaches of uncertain nature and amount, the sum mentioned would not be treated as a penalty. Then he goes on to say: "If, therefore, on the one hand, the plaintiff had neglected to make a single payment of £3. 0s. 8d. a day, or, on the other hand, the defendant had refused to conform to any usual regulation of the theater, however mi- nute or unimportant, it must have been con- tended that the clause in question in either case would have given the stipulated dam- ages of £1,000. But that a veiy large sum should become immediately payable in con- sequence of the nonpayment of a very small sum, and that the former should not be con- sidered as a penalty, appears to be a con- tradiction in terms, the case being precisely that in which courts of equity have always relieved, and against which courts of law have, in modern times, endeavoured to re- lieve, by directing juries to assess the real damages sustained by the breach of the agreement." Now, those latter words only apply to the case mentioned of a smaller sum not being paid, and an agreement to pay a larger on the nonpayment; they do not apply to the question of minute breaches of regulations; and then there are some words which I need not read. It appears to me to bring the case, simply as regards the judgment, to the same result entirely as in the previous case, and no more. He says, "Here" (that is, in Astley v. Weldon, 2 Bos. & P. 346), "there was a distinct agreement that the sum stipu- lated should be liquidated and ascertained damages. There were clauses in the agree- ment, some sounding in uncertain damages, others relating to certain pecuniary pay- ments. The action was brought for the breach of a clause of an uncertain nature; and yet it was held by the court that for this very reason it would be absurd for the court to construe the sum inserted in the agreement as liquidated damages, and it was held to be a penal sum only. As this case appears to us to be decided on a clear and intelligible principle, and to apply to that under consideration, we think it right to adhere to it, and this makes it unneces- sary to consider the subsequent cases, which do not in any way break in upon it." It appears to me that, rightly read, Kem- ble v. Farren, 6 Bing. 141, does not go be- yond Astley v. Weldon, 2 Bos. & P. 346. I say so with some hesitation, because I know there has been a difference between eminent judges as to whether or not the sentence I read about the breach of minute regulations was not intended to apply to the whole of the judgment, and to say this: that, where it is manifest that the damages must be minute, the same consideration applies as when the damages are ascertained at a cer- tain sum. The authorities are so numerous that I am afraid to go through them at any length, but I must call attention to two cases which are rather important. In the first place, there is Reynolds v. Bridge, 6 El. & Bl. 528, where Lord Chief Justice Coleridge says (El. & Bl. 540): "In Astley v. Weldon, Lord El- don distinctly laid down that the mere mag- nitude of the sum named could not prevent it from being liquidated damages. Another rule has been suggested: that, where the sum is to be paid for the breach of an agree- ment comprehending more than one stipula- tion, it shall not be taken for liquidated damages. That is certainly found in some cases; but it cannot be said to be law now." That is very emphatic, and is entirely con- trary to Mr. Justice Heath's dictum, if ho intended it to be read as it stands. Then he refers to the case of Atkyns v. Kinnier, 4 Exch. 776, which is an important case, in which Lord Wensleydale commented on DOCTRINES OF EQUITY, 89 Kemble v. Farren, 6 Bing. 141, and then he goes on to say: "The principle seems to be that if you find a covenant, the breach of which will occasion a damage, not uncer- tain, but such as is capable of being ascer- tained, as where there is a particular sum to be paid, which is much less than the sum named as payable upon the breach, there it is neld that the last-named sum is specified by way of penalty, because a court of equity would limit the amount to be actually paid. Then comes the case where there are sev- eral provisions, the breach of some of which will produce an ascertainable damage, but the breach of others an uncertain damage. In that case (though we do not require to determine it now), inasmuch as there is one provision in respect of which the sum named cannot be taken as liquidated damages, it cannot be so taken for any provision, for, if it could, the contract would mean liquidated damages in one case, and not in another. If you look in the judgment of Chief Justice Tindal and Mr. Baron Parke, they seem rather to contemplate the case where all the provisions are of one kind. Mr. Baron Parke says: 'If there be a contract consist- ing of one or more stipulations, the breach of which' (meaning, I think, of each of which) 'cannot be measured; then the par- ties must be taken to have meant that the sum agreed on was to be liquidated damages, not a penalty. On this principle, if there were no more in the covenant than what I have read, this would be clearly a case of liquidated damages.' " There is a dictum of Lord Chief Justice Coleridge in Magee v. Lavell, L. R. 9 C. P. 107, 111. He says: "The general principle of law appears to me to be where a contract con- tains a variety of stipulations of different de- grees of importance, and one large sum is stated at the end to be paid on breach of performance of any of them, that must be considered as a penalty." That is a dictum which is not supported by any decision, and it appears to me to be quite irreconcilable with principle. It is exactly opposed to what Lord Chief Justice Tindal says in Kemble v. Far- ,ren, 6 Bing. 141. The mere fact of the stipula- tions varying in importance cannot show that the parties did not fix a sum, where the dam- age is not ascertainable, but I am bound to say that though that is my opinion, and that I should have thought it was quite clear, I find that in the case of In re Newman, 4 Ch. Div. 724, 731,— a decision of the court of ap- peal,— that dictum is approved of. In the first place, Lord Justice James says: "The au- thority of Kemble v. Farren cannot be con- sidered as having been in any degree nibbled ^.way by those cases before Lord Wensleydale which have been referred to, and which, it is said, show that the principle of Kemble v. Farren is to be confined to a case in which, amongst other stipulations, there was one stipulation for the payment of a sum of money. That was not the ratio decidendi of Kemble v. Farren, in which it was laid down in broad terms that, wherever there is a sum mentioned at the end of a contract as dam- ages for the nonperformance of any of a great number of stipulations, there it must be treated as a penalty." With the greatest re- spect to Lord Justice James, it appears to me that the very contrary was laid down in express terms. There is some mistake about it; that is all I can say. Then he refers to the decision of Mr. Justice Heath in Astley v. Weldon, 2 Bos. & P. 346, which was over- ruled, and which was obviously, in my opin- ion, wrong. As regards Magee v. Lovell, L. E. 9 C. P. 107, I have this observation to make: It was only a dictum during the argu- ment by Lord Chief Justice Coleridge. I dis- trust dicta in all cases, and especially dicta during argument. I must say, however, that in Re Newman, 4 Ch. Div. 724, Lord Justice Bramwell intimated his agreement with it, al- though, as I have already said, there is not only no decision to be found laying down such a doctrine, but it is really opposed to several judgments, including the two I have cited. Lord Justice Bramwell himself refers to two cases (Galsworthy v. Strutt, 1 Exch. 659, and Atkyns v. Kinnier, 4 "Exch. 776) which are decisions in favor of liquidated damages where there was more than one stip- ulation, so that we have not only dicta op- posed to dicta, but we have decisions opposed to decisions. As I said before, although I wish to leave the question open where there are several stipulations, and one or more is or are of such a character that the damages must be small, I do not wish for a moment to abstain from stating my opinion that there is no such doctrine where there are several stipulations, though they may not be of equal importance, or where there are several stipu- lations irrespective of importance, which is the doctrine laid down by Mr. Justice Heath, and apparently approved of by Lord Justice James. There is neither authority nor prin- ciple for any such doctrine, and I cannot see that it is established by any case which is binding on this court. I am not one of those who think that a long course of judicial de- oision can be set aside by any other court. As regards the doctrine of Astley v. Weldon, I think it is technically binding. There Is not only the decision of the court of appeal, but there is also the decision of the court of ex- chequer. But, independently of that, if I find a long course of decisions by inferior courts, acquiesced in, which have become part of the settled law, I do not think it is the province of the appeal court, after a long course of time, to interfere, because most con- tracts have been regulated by those decisions; but, where that is not the case, where the dicta are as they are in this case, not only contradictory, but those dicta which are in favor of the appellant are modern, as com- pared with the older dicta, then I think it is 90 DOCTRINES OF EQUITY. not right to say that the law is settled by the superior courts. There is another considera- tion which always has weight with me: When the law is settled, it gets into the text- books, which are a very considerable guid- ance to practitioners. In the last edition of Mr. Mayne's valuable book on Damages (3d Ed. p. 128), he cites the dicta of Mr. Justice Heath, and he says, "This, however, must be limited to cases where it is apparent that the parties could not have intended the entire sum to be the ascertained damages of any breach." So that he treats the law as settled just the other way. I do not cite that as an authority, I only cite it to show that the law is not treated in the text-books as being settled, notwith- standing the dicta either of Mr. Justice Heath or of Mr. Justice Chambre, as approved by Lord Justice James. I think it necessary to say so much because I have always thought, and still think, that it is of the utmost importance, as regards contracts between adults — persons not under disability, and at arm's length, that the courts of law should maintain the performance of the contracts according to the intention of the parties; that they should not overrule any clearly expressed intention on the ground that judges know the business of the people bet- ter than the people know it themselves. I am perfectly well aware that there are ex- ceptions, but they are exceptions of a legisla- tive character. One notable exception m old times was the usury law, now repealed, to prevent people- bargaining as to the rate of interest they would pay for the loan of money. There have been many other laws in modern times,, such as the factory acts and the mines regu- lation acts, and so on, but they are all statutes. Judges have no right to say that people shall not perform their contracts which they have entered into deliberately, and put a different meaning on the contracts from that which the parties intend. In this case we have a very striking illustration. The contract in question was most carefully prepared. The plaintiff is or was a solicitor; the defendant had the assistance of a solicitor, and, I am told, also of counsel, but whether counsel, presided at the final framing of the docu- ment, I am by no means certain, there being contradictory statements on that point. But it was a most deliberate and carefully-drawn instrument, and one which I think ought to be construed according to the plain meaning of the words. I am glad to find that I do not feel myself compelled to decide contrary to what is the plain meaning of the terms by any of the decisions. In my opinion, the decision of Mr. Justice- Fry is right, and ought to be affirmed. GROUNDS FOR EQUITABLE RELIEF. 91 PATTON et al. v. CAMPBELL. (70 111. 72.) Supreme Court of Illinois. Sept. Term, 1873. Bentley, Swett & Quigg, for appellants. fWaite & Clarke, for appellee. CRAIG, J. This was a bill in chancery, filed in the superior court of Cook county, by George W. Campbell, as assignee in bank- ruptcy of the late firm of Durham & Wood, against William Patton and others, to re- cover the value of certain goods which had been replevied by Patton & Co. from Dur- ham & Wood. It appears from the record that on or about the 20th of October, 1870, Patton & Co., of New York, sold Durham & Wood, of Chi- cago, a bill of goods, amounting to $1,600, on a credit of four months. About the first of November, after the sale, Durham & Wood failed, and Patton & Co. commenced an ac- tion of replevin to recover the goods they had sold. A replevin bond in the penal sum of $1,000, in the usual form, was filed with the papers in the action, and $800 or $900 worth of the goods were replevied. In the fire of October 8th and 9th, 1871, the papers in the case, including the bond, were destroyed. Subsequently the action was dis- missed. The defendants answered the bill, to which replication was filed, the cause was heard on the proofs taken, and decree rendered in favor of complainants for $850. The defendants bring the cause to this court, and seek to reverse the decree on two grounds: First. For the reason a court of chancery has no jurisdiction, the remedy of complain- ants being complete at law. Second. The purchase of goods from Pat- ton & Co., by Durham & Wood, was fraudu- lent, and Patton & Co., upon discovery of the fraud, had the right to rescind the sale and replevy the property. The questions will be considered In the order in which they are raised. The bill in this case is filed to recover upon an instrument under seal, which had been destroyed. The jurisdiction of a court of equity aris- ing from accident is a very old head, in equity, and probably coeval with its exist- ence. But it is not every case of accident which will justify the interposition of a court of equity. The jurisdiction will be maintained only when a court of law can not .grant suitable relief; and where the party has a conscientious title to relief. 1 Story, Eq. Jur., § 79. In case, however, of lost instruments under eeal, equity takes jurisdiction, on the ground that, until a recent period, it was the settled doctrine that there was no remedy on a lost bond in a court of common law, because there could be no profert of the instrument, with- out which the declaration would be defect- ive. The jurisdiction having been assumed and exercised on this ground, it is still re- tained and upheld. 1 Story, Eq. Jur., § 81; Walmsley v. Child, 1 Vesey, Sen., 341; Fisher v. Sievres, 65 111. 99. Under the allegations in the bill in this cause, we think it is well settled that a court of equity had jurisdiction. The remaining question in the case is, were the goods purchased under such circum- stances as gave the appellants the right of rescission on the ground of fraud, or was there such a fraud practised that the title to the property did not pass to Durham & Wood? The evidence shows that Hart, who was a traveling agent for appellants, called on Dur- ham & Wood, in Chicago, to sell them goods. They examined his samples and told him thej r wanted to make a large order, and wanted to buy on four months' time. Hart told them, Patton & Co. hardly ever vary from three months' time. Durham remarked, he had bought and could buy of A. T. Stewart & Co., of New York, on four months' time. On this statement, Hart sold the goods on four months' time. It turned out, on investigation, that Dur- ham & Wood had only bought two bills of goods of Stewart & Co., and they were sold on thirty days' credit. While it is true the statement made by Durham, that he had bought and could buy goods of Stewart & Co. on four months' time, was false, yet, it does not appear that this statement induced Hart to sell the goods ; it only had the effect to cause him to give one month longer credit on the goods than he otherwise would, which did not, in this case, in anywise affect the rights of ap- pellants, for the reason that the failure oc- curred and the goods were replevied within less than two months after the sale. It appears, from the evidence, that Hart made no objection to sell the goods on three months' time; he neither asked nor required any representations from Durham, as to the standing or responsibility of the firm, to in- duce him to sell the goods on a credit of three months. At the time the goods were purchased, it does not appear that Durham & Wood were in failing circumstances, in- solvent, or in any manner pressed by their creditors; for aught that appears they were at that time solvent, and responsible for all their contracts. Neither does it appear that they made any false representations in regard to what they were worth, what property they owned, or the amount of debts they had contracted. It is not shown that the goods were bought with the intent not to pay for them, or with a view to make an assignment. We understand the rule to be, that if a party, knowing himself to be insolvent, or in failing circumstances, by means of fraudu- lent pretenses or representations, purchases goods with the intention not to pay for them, 92 GROUNDS FOR EQUITABLE RELIEF. but with the design ^o cheat the vendor out of his goods, such facts would warrant the vendor in rescinding the contract for fraud, and would justify him in recovering posses- sion of the property by replevin, where the goods had not in good faith passed into the hands of third parties. Henshaw v. Bryant, 4 Scam. 97. But the case under consideration does not come within this rule. There is no evidence in this record to show that the goods were bought with any impure or wrong motives. It is true that, some two months after the purchase of the goods, the parties went into bankruptcy, but this was involuntary, and does not, of itself, show the condition of the firm at the time the goods were bought. Upon a careful examination of the whole record, we are satisfied the decree of the court below was correct, and it will be af- firmed. GROUNDS FOR EQUITABLE RELIEF. 93 JACOBS v. MORANGE. (47 N. Y. i)7.) Court of Appeals of New York. Dec, 1871. Appeal from judgment of the New York common pleas, affirming judgment for plain- tiff. Samuel Hand, for appellant. M. A. Kur- shedt, for respondent PECKHAM, J. The defendant in this suit is a lawyer. The plaintiff some years since brought an action against the defendant in the marine court, in the city of New York. The defendant recovered a verdict in that suit, of $86 against the plaintiff. Without taking the case to the general term of that court, the plaintiff carried it for review to the court of common pleas of that city, and after argument there that court reversed the judgment, with costs. The defendant paid these costs voluntarily without the entry of any judgment. Within a year thereafter the court of appeals decided that the court of common pleas had no jurisdiction of a case from the marine court, until it had been first heard and decided by the general term of that court The common pleas had previously held the other way, viz., that it had jurisdiction in such case. Some nine years after this reversal in the common pleas the defendant issued an execution in the marine court, and then the plaintiff in- stituted this suit in equity to stay his pro- ceedings, and a judgment is obtained for a perpetual stay on the ground that the judg- ment in the marine court was erroneous, and that both parties in the review in the common pleas had acted under a mutual mis- take of law. This presents the question, can a court of equity grant relief in a case of this charac- ter upon the sole ground of a mistake of law? There is no circumstance of any description that adds anything to this ground of relief. Ignorantia legis neminem excusat and kin- dred maxims are old in the law. If they are true, this judgment is erroneous. In early times the jurisdiction of the court of chancery in the hands of chancellors un- skilled in the law was almost without limit; but for very many years that court has been guided by rules and precedents, by the sci- ence of the law as much as courts of com- mon law. Their jurisdiction and modes of relief are well settled. The statutes and laws of the land are as much the law there as in any other court 1 Story Eq., § 19; Id., . §§ 17, 18. The whole basis for this relief is founded upon the fact that an inferior court made an erroneous decision upon a question of law; that the plaintiff was misled thereby and suffered this loss. This is the best position the plaintiff can take. This must be the "surprise" sometimes spoken of in the books. Jeremy Eq. Jur. 366. What a flood of litigation would such a rule open? If this can be regarded as the "surprise" that requires or justifies equita- ble relief, how broad is the principle, how extensive its ramifications? Almost every case reversed by this court would form a basis for such "surprise," especially where courts of last resort reverse or modify their own decisions. How many cases are lost at the trial or upon review by the ignorance of counsel in failing to perceive the point, or in failing to present it properly for review. How easy to get up cases, in the ordinary affairs of life, of a misunderstanding of the law. Thus the same principle would extend to courts of equity for errors committed or assumed to be committed there. Under such a system of jurisprudence it would be diffi- cult to reach the end of a lawsuit. In this case the statute of this state pro- vided a mode of review of judgments ren- dered in the marine court. The time and Hie manner were prescribed. This statute was well known to these parties, or should have been but for their negligence. Yet the plaintiff, with the statute before him, passed for the sole purpose of enabling the party aggrieved to review a judgment in the ma- rine court, comes to a court of equity for relief against his ignorance of the manner of obtaining such review. We are referred to no principle or author- ity to sustain such an action, and I think none can be found. On this point Chancellor Kent observed: "A subsequent decision of a higher court in a different case, giving a different exposition of a point of law from the one declared and known when a settlement between parties takes place, cannot have a retrospective ef- fect and overturn such settlement. Every man is to be charged at his peril with a knowledge of the law." Lyon v. Richmond, 2 Johns. Ch. 51, 60. Though the decree in that case was re- versed by the court of errors (14 Johns. 501), it was entirely upon other grounds. In Storrs v. Barker, 6 Johns. Ch. 166; 10 Am. Dec. 316, where ignorance of the law was set up as a ground of defense, the court affirmed the rule that ignorance of the law with a knowledge of the facts was no ground of defense. See 1 Story Eq., § 120, to the same effect. Suppose the plaintiff had misunderstood the statute as to the time of appeal, could a court of equity extend the time prescribed by the statute? Many such cases have oc- curred from a misapprehension of the law as to when a judgment is perfected. Courts of law could grant no relief, and I am not aware that any lawyer has supposed that a court of equity had any more power to ex- tend the statute. In Champlin v. Lay tin, 18 Wend. 407; 31 Am. Dec. 382, in the court of errors on appeal from chancery, Bronson, J., review- ed the authorities in a sound opinion, show- ing as he claimed that there was really no 94 GROUNDS FOR EQUITABLE RELIEF. authority against the rule that ignorance of the law simply was no ground for relief. The opinion of Paige, Senator, the other way, does not seem to me to be well ground- ed. He was of opinion that the judgment in that case could be affirmed upon other grounds. But the principle laid down by him denies relief to the plaintiff in this case. He recognized a difference between igno- rance of the law and a mistake of the law. Adopting the language of Johnson, J., in Lawrence v. Beaubien, 2 Bailey, 623; 23 Am. Dec. 155, who says: "The former is pas- sive, and does not presume the reason. The latter presumes to know when it does not, and supplies palpable evidence of Its ex- istence." He would grant relief in the for- mer not in the latter. The difficulty of proving the one or the other seems to constitute all the difference in the cases. Without any special review of authorities on this question which we have particularly examined, it is enough to say that it is con- ceded that no case has been found warrant- ing the interference of a court of equity up- on facts like these, and no sound principle will authorize it The decree must be reversed, without costs. All concur. GROUNDS FOR EQUITABLE RELIEF. 95 IlIEGEL v. AMERICAN LIFE INS. CO. (25 Atl. 1070, 153 Pa. St. 134.) Supreme Court of Pennsylvania. Feb. 13, 1893. Appeal from court of common plena, Philadelphia county; Thayer, Judge. Bill by E.Theresa Riegel, administratrix of Jacob Riegel, deceased, against the American Life Insurance Company, asking the reinstatement of a surrendered policy. Decree sustaining a demurrer to the bill, anu dismissing it, from which plaintiff ap- peals. Reversed. William W. Porter nnd Frederick J. Gei- ger, for appellant. H. Hazelhurst, for ap- pellee. STERRETT, J. When this cause was here two years ago, on appeal from decree sus- taining the general demurrer, and dis- missing the bill, an amendment, for the purpose of clea.'Iy expressing what at most was only implied, was moved, and allowed at bar, by adding to the fifth par- agraph of the bill these words: "Both of the parties acting in respect to the trans- action on the basis that the said Leisen- ring was then alive." That defect in the bill, however, did not appear to be the ground on which the demurrer was sus- tained in the court below. The plaintiff's equity, grounded on averments of fact contained in the bill, and admitted by the pleading, was then fully considered, and emphatically sustained, in a clear and con- vincing opinion by our Brother Williams, reported in 140 Pa. St. 201, and 21 Atl. Rep. 392. The decree was accordingly reversed, and record remitted, with direction that the defendant plead or answer, etc. After full consideration of the facts and circum- stances, the opinion referred to concluded thus: "Dpon these facts, if the attention of the learned judge had not been diverted from them, we feel sure he would have reached the same conclusion that we have reached,— that it would be grossly inequi- table to hold the plaintiff to a bargain made under the influence of n mistake of fact like that before us. This mistake the demurrer admits. If there had been any circumstance which the defendant could have set up to show that a correction of this mistake at this time would lie in- equitable, it should have been s- own to the court by answer. If such circumstan- ces do exist, they may yet be presented, as the case goes back to enable the defend- ant to take defenseupon the merits." The defendant company, having been declared insolvent, was duly dissolved, on appli- cation of the attorney general, more than a year before the answer was filed by Mr. Ritchie, the then president of the Real-Es- tate Title Insurance Company, which, in the interim, appears to have been appoint- ed receiver of the defunct company. No plea or answer was ever filed by any offi- cer of said company, nor by any one, on its behalf, who had any knowledge, other- wise than by information obtained from others, of the facts averred in the bill. Mr. Ritchie and his company were entire si rangers to the transaction, and neither of thern appears to have had any knowl- edge of the facts upon which plaintiff's equity is grounded ; and of course it was impossible for him, as president of the receiver company, to answer otherwise than upon information and belief. In the jurat to his answer he swears the allega- tions thereof are true "so far as they are therein stated as of his own knowledge," etc. ; but the answer contains not a single allegation that purports to be "as of his own knowledge." The special evidential efficacy of a re- sponsive answer in equity is due to the fact that the plaintiff, by calling on the de- fendant to answer the allegations of the bill, appeals to his conscience, accredits him, and pro hac makes him his own wit- ness. The plaintiff in this case never called upon Mr. Ritchie, or any other stranger to the transactions alleged in the bill, to make answer thereto. The officers of the insurance company, who werecognizantof those transactions, were the proper persons to deny, if they could of their own knowledge, the averments of the bill, and thus make the answer respon- sive. The answer of Mr. Ritchie in this case is in no sense a responsive answer. It is merely pleading; and, as such, put in issue the facts in dispute, without more. Eaton's Appeal, 60 Pa. St. 490; Burke"s Appeal, 99 Pa. St. .'161; Socher's Appeal, 104 Pa. St. 609; Coleman v. Ross, 40 Pa. St. 1S5; Story, Eq. Jur. §§ 1528,1529; 3 Greenl. Ev.§§ 2S7-2S9; Daniell.Ch. Pr. 846. In note to the latter it is said that an answer which alleges as facts what the defend- ant could not personally know, though re- sponsive to the bill, simply puts plaintiff upon proof of his own allegations. So, too, in 3Greenl. Ev. § 287, it is said that, if the fact asserted by the defendant is such that it is not and cannot be within his own knowledge, but is in truth only an expres- sion of his strong conviction of its exist- ence, oris what he deems an infallible de- duction from facts which were known to him, his answer is not responsive, in the sense of being evidence in his own fa vor. The nature of his testimony cannot be changed by the positiveuess of his asser- tion. The answer of au infant by his guardian ad litem, though it be responsive to the bill, and sworn to by the guardian, is not evidence in his favor. But whether the answer be regarded as responsive or not, the proofs were quite sufficient to warrant the learned master in finding, as he did, the truth of every material averment in the bill. His find- ings of fact are in strict accord wth the uncontradicted testimony, and his con- clusions of law are so manifestly correct that his report should have been unhesi- tatingly approved, and decree made in accordance therewith. No testimony, either written or oral, was introduced by or on behalf of the defendant. All the material facts on which plaintiff's equity is grounded were as clearly and conclu- sively established as if they had been ad- mitted by answer, or by demurrer to the bill; so that practically we have now be- fore us substantially the same questions that were fully considered and determined when the cas.e was here before. In that appeal the fourth and fifth specifications 90 GROUNDS FOR EQUITABLE RELIEF. ol errors are quotations from the opinion of the learned president of the court he- low dismissing the bill, wherein, speaking of the new contract, he says: "(4) It was not a contract induced by a mistake about facts, but a contract made in view of doubtful facts, and because of the doubtful facts. (5) It was in the nature of a compromise, founded upon the doubts which existed, not upon any mis- take of the facts." In this appeal the third specification, quoted from the opin- ion of same learned judge, again dismiss- ing the bill, is that "the new contract was not a contract induced by mutual mistake about the facts, but a contract made in view of doubtful facts, and be- cause of the doubtful facts." The second specification in this is in effect the same as the fifth in theformer appeal. These prop- ositions go to the very heart of the plain- tiff's case. They substantially involve the only cardinal questions that are or aver have been in it, and about which there is the slightest room for doubt. They are the very questions that were considered and decided by this court when the case was here before. That clearly appears in the opinion, wherein, after re- citing the facts averred in the bill, it is said: "The case presented on these facts was that of a contract entered into under the influence of a mutual mistake, and a claim for relief from such contract. The mistake was in relation to the fact of Leisenricg's death. Both parties evident- ly supposed and acted on the supposition that he was alive, and that theannual pre- miums upon his life, which had become burdensome to Mrs. Riegel, must be con- tinued indefinitely until his death should take place. As it had become difficult for her to pay these premiums, the only way in which she could be relieved from them was to surrender her policy, and accept a paid-up policy for such smaller sum as the premiums already paid would purchase. Rather than take the risk of losing the entire amount of the policy, by ber inabil- ity to keep up the annual payments, she surrendered her policy for $6,000, and ac- cepted in lieu of it a paid-up policy for $2,500. This was the contract she made while in ignorance of Leisenring's death. At the time she made it she was already relieved from the burdensome premiums, and the entire amount of the policy was honestly due her from the company. What was the effect of the mistake upon her? Simply to take from her the differ- ence between the two policies, and give her absolutely nothing for it. She sur- rendered a policy for $6,000, on which the liability of thecompany was already fixed, and received one for $ 2,500, to secure relief from a burden already removed. The company parted with nothing. She se- cured nothing. The whole transaction was a mistake, and, if the decree of the court stands, the result will be to take $3,500 from Mrs. Riegel and give it to the insurance company. These facts seem to us to present a clear and a strong case for equitable relief, so strong, indeed, that a mere statement of them is the only ar- gument necessary for its support. The duty of a chancellor to relieve in cases of mutual mistake is so well settled that no citation of authorities can be needed. » * * rp ne ] earne( j j UC ]ge who heard this casein the court below, and who is thor- oughly familiar with the principle to which we have referred, seems to have been misled in regard to the facts set up in the bill. He treats the arrangement made between Mrs. Riegel and the com- pany on the 20th of March as a compro- mise of a claim against the company for the alleged death of Leisenring, which Mrs. Riegel was unable to establish, he- cause unable to show the death. As the fact of the death, and the consequent lia- bility of the company on the policy, were uncertain, it was a case for the applica- tion of the doctrine that the adjustment of a doubtful claim constituted a valid consideration for the surrender of the pol- icy and the acceptance of the new one, and upon this theory the decree was en- tered. But it nowhere appears that Mrs. Riegel made any claim on the company, or supposed that she had any. She was asking relief from future payments of pre- miums on a policy on which she supposed future payments would have to he made, and, to get this relief, she was willing to sacrifice more than one half of the sum insured. The company was willing, in consideration of the large reduction of its liability, to give her a policy for what her payments would purchase, and relieve her in future. This is an exchange often made, and adjusted by well-settled rules. It was a compromise of nothing. We do not doubt the correctness of the rule applied by the learned judge in cases to which it is fairly applicable, but this is not one of them. The plaintiff distinctly avers that she did not know of the death of Leisen- ring until some 10 days after the exchange of policies was effected, and that 'both par- ties to the transaction were acting, in re- spect thereto, on the basis that Leisen- ring was alive.' She distinctly avers that ■the object of the arrangement was to se- cure relief for herself from the iudefinite payment of premiums that had become burdensome to her; that the new policy was accepted for that reason, and the old one surrendered, at a time when, had she known the fact, she was entitled to de- mand the entire sum upon which she had so long and so steadily paid the burden- some premiums." Little, if anything, can be profitably added to what is so clearly and forcibly said in the foregoing quotations in sup- port of our former decree. The error in- to which the learned judge of the common pleas appears to have unintentionally fallen in the outset, and to which lie seems to cling so pertinaciously, is not so much in regard to the well-settled princi- ples of equity, upon which relief is granted in cases of mutual ignorance or misiake of material facts, as in the construction which he put upon the undisputed acts and declarations of the parties to thiscon- tention, and the circumstances connected therewith. Sufficient reference to those principles is made in our former opinion, but it may not be amiss to revert to some of them. The general rule is that an act. done or a contract made uuder a mistake of a material fact is voidable anil relieva- ble in equity. The fact must of course be GROUNDS FOR EQUITABLE RELIEF. 97 material to the act or contract; for, though there may be an accidental mis- take or ignorance of the fact. yet. if the actor contract is not materially affected by it, relief will not be granted. Thus, A. buys from B. an estate to which thelatter is supposed to have an unquestionable ti- tle. It turns out, upon due investigation of the facts unknown at the time to both parties, that B. has no title; as, if there be a nearer heir than B., who was sup- posed to be dead, but is in fact living. In such a case equity would relieve the pur- chaser and rescind the contract. But sup- pose A. buys' from B. an estate the loca- tion of which was well known to each of them, and they mutually believed it con- tained 20 acres, when in fact it contained only 19% acres, and the difference would not have varied the purchase in the view of either party; in such a case the mis- take would not beground for rescission of the contract. 1 Story, Eq.Jur. §§ 140, 141. It makes no difference in application of the principle that the subject-matter of the contract be known to both parties to he liable to a contingency which may de- stroy it immediately; for, if the contin- gency has, unknown to the parties, al- ready happened, the contract will be avoided, as founded on a mutual mistake of a ma tter constituting the basis of the contract. 1 Story, Eq. Jur. §5 143a, 1436. The principle is illustrated by familiar examples, employed by text writers, thus: A. agrees to buy a certain horse from B. It turns out that the horse is dead at the time of the bargain, though neither party was then aware of the fact. The agree- ment is void. A. agrees to buy a house belonging to B. The house was previous- ly destroyed by fire, but tlie parties dealt in ignorance of that fact. The contract, not being for sale of the land on which the house stood, was not enforceable. So, too, A., being entitled to an estate for the life of B., agreed to sell it to C. B. was dead, but both parties were ignorant of the fact. The agreement was avoided. For similar reasons, a life insurance can- not be revived by payment of a premium within the time allowed for that purpose by the original contract, but after the life had dropped, unknown to both insurer and assured, although it was in existence when the premium became due, and al- though the insurer has waived proof of the party's health, which, by the terms of the renewal, it might have required. The waiver applies to the proof of health, not to thefactof his heingalive. P rite hard v. Society, 3 C. B. (N. S.) 622. Mr. Pollock, in his excellent treatise on the Principles of Contract, (page M^Jstates the general principle thus: "An agreement is void if it relates to a subject-matter (whether a material subject of ownership, or a par- ticular title or right) contemplated by the parties as existing, but which in fact did not exist." This is followed by an inter- esting discussion of the subject, with nu- merous illustrations of the principles in- volved. See Cochrane v. Willis, 1 Ch. App. 58; Allen v. Hammond, 11 Pet. 71 ; Hitch- cock v. Giddings, 4 Price, 135; Hore v. Becher, 12 Sim. 4f>5; Couturier v. Hastie, 5 H.L.Cas.673. In many of thecases promi- nence is given to failure of consideration, FET.EQ JUR. — 7 resulting from mutual mistake or igno- rance of material facts, but entire failure of consideration is not an essential ingredient in any case. It cannot be doubted that in exchanging the old for the new policy both parties acted on the basis that Leiseniing was then alive. Their every act in the trans- action was predicated of that as an as- sumed fact. The new policy, like the old one, was a risk on a life assumed to be then in being. The difference between them was that the one earned with it an obligation on the part of theholdertopay annual premiums during the life of Leis- enring; the other exempted her from that obligation. She purchased thatexemption by surrendering seven twelfths of the orig- inal insurance, or $3,500. If the exchange was not made on the assumption by both parties thatLeisenring was then alive, the company stultified itself by issuing a paid- up policy on the life of one who was then in his grave; and the plaintiff was guilty of the supreme folly of paying $3,500 for exemption from a liability which, by the previous death of Leisenring, had ipso facto ceased. In other words, at the time the txebange of policies was made, the plaintiff had a perfectly valid claim upon the defendant for the full amount of the insurance, $0,000, and surrendered $3,500' of that to secure exemption from a lia- bility that had ceased to exist; but she and the company were both at that time ignorant of the fact that the life on which the original risk was taken had previous- ly dropped. The supposed element of doubt as to whether Leiseniing was then dead or not never entered into the con- templation of either party; nor did it form any part of the consideration for ex- change of policies. The positive and un- contradicted proof by the actuary of the company was that the amount of the- paid-up policy was ascertained and fixed, according to the established rules of the- company, at the very sum that would: have been required if Leisenring had been personally present in the office when the- terms of exchange were settled. The cen- tral fact underlying the transaction, ami 1 to which every circumstance connected therewith clearly points, was the assump- tion by both parties that Leisenring was then in full life. When last theretofore- heard from he was alive, and the pre- sumption was that he continued to live. In the absence of any knowledge to the- contrary, it was quite natural and rea- sonable that the parties, in making the exchange, should act upon that presump- tion, and assume, as they evidently did. that he wns still alive. Of course they could not know positively that he was then alive, any more than any one cai» certainly know that a friend from whom he is far separated by distance is now liv- ing. In view of the undisputed facts as to the acts of both parties, and everything connected with the transaction, it would be wholly unreasonable and unwarrant- ed to hold that the parties treated upon the basis that the fact which was the sub- ject of their agreement was doubtful, or that the contract was made "in view of doubtful facts, and because of the doubt- ful facts." In the light of the proofs upon 98 GROUNDS FOR EQUITABLE RELIEF. which the findings of the master are based, and of all the circumstances, the acts of the parties are not susceptible of any such construction as has been put upon them by the learned judge of the common pleas In short, the facts established by the un- contradicted proofs, and found by the master, are essentially the same as those admitted by the demurrer, and upon which our former decree was based. Cer- tainly they are not less favorable to the plaintiff now than then. It therefore ap- pears to us that a proper consideration of the orderly administration of justice should have resulted in a decree in accord- ance with the views expressed in our for- mer opinion. This proceeding is not grounded upon a previous rescission of the agreement un- der which the exchange of policies was made, but is for the purpose of enforcing a rescission by decree of this court, etc. It is therefore adjudged that the decree of the court of common pleas be reversed and set aside, and exceptions to master's report dismissed ; and it is now adjudged and decreed that the contract under which said exchange of insurance policies was made be rescinded; that the paid-up poli- cy for $2,500 be surrendered and canceled ; and that the original policy of insurance be reinstated, as of date of its surrender; and it' is further adjudged and decreed that the defendant company pay to the plaintiff the sum of $(5,000, with interest from October 4, 1SS9, and also all thecosts of this proceeding. PAXSON.C. J. I dissent, and would af- firm the decree, upon the clear and able opinion of the learned judge bslow. MITCHELL, J. I concur with the chief justice in his dissent. GROUNDS FOE EQUITABLE RELIEF. 99 GRYMES v. SANDERS et al. (93 U. S. 55.) Supreme Court of the United States. Oct. Term, 1876. Appeal from the circuit court of the United States for the eastern district of Virginia. Conway Robinson and Mr. Leigh Robinson, for appellant. Edwin L. Stanton and George M. Dallas, for appellees. Mr. Justice SWAYNE. The appellant was the defendant in the court below. The rec- ord discloses no ground for any imputation against him. It was not claimed in the dis- cussion at the bar, nor is it insisted in the printed arguments submitted by the counsel for the appellees, that there was on his part any misrepresentation, intentional or other- wise, or any indirection whatsoever. Nor has it been alleged that there was any inten- tional misrepresentation or purpose to de- ceive on the part of others. The case rests entirely upon the ground of mistake. The question presented for our de- termination is whether that mistake was of such a character, and attended with such cir- cumstances, as entitle the appellees to the relief sought by their bill and decreed to them by the court below. Peyton Grymes, the appellant, owned two tracts of land in Orange county, Va., lying about twenty-five miles from Orange court- house. The larger tract wa3 regarded as val- uable, on account of the gold supposed to be upon it. The two tracts were separated by intervening gold-bearing lands, which the appellant had sold to others. Catlett applied to him for authority to sell the two tracts, which the appellant still owned. It was given by parol; and the appellant agreed to give, as Gatlett's compensation, all he could get for the property above $20,000. Catlett •offered to sell to Lanagan. Lanagan was unable to spare the time to visit the proper- ty, but proposed to send Howel Fisher to examine it This was assented to; and Cat- lett thereupon wrote to Peyton Grymes, Jr., the son of the appellant, to have a convey- ance ready for Fisher and himself at the •court-house upon their arrival. The convey- ance was provided accordingly, and Peyton Grymes, Jr., drove them to the lands. They arrived after dark, and stayed all night at a house on the gold-bearing tract. Fisher in- sisted that he must be back at the court- house in time to take a designated train east the ensuing day. This involved the necessity of an early start the next morning. It was arranged that Peyton Grymes, Jr., should have Peyton Hume, who lived near at hand, meet Fisher on the premises in the morning and show them to him, while Grymes got his team ready for their return to the court-house. Hume met Fisher accord- ingly, and showed him a place where there had been washing for surface-gold, and then took him to an abandoned shaft, which he supposed was on the premises. There Fisher examined the quartz and other debris lying about. But a very few minutes had elapsed when Grymes announced that his team was ready. The party immediately started back to the court-house. Arriving too late for the train, they drove to the house of the appel- lant: and Fisher remained there until one o'clock that night. While Fisher was there, considerable conversation occurred between him and the appellant in relation to the prop- erty; but it does not appear tlJat any thing was said material to either party in this controversy. Fisher proceeded to Philadel- phia, and reported favorably to Lanagan, and subsequently, at his request, to Repplier, who became a party to the negotiation. He represented to both of them that the aban- doned shaft was upon the premises. Cat- lett went to Philadelphia, and there he sold the property to the appellees for $25,000. Fisher was sent to the court-house to inves- tigate the title. He employed Mr. Williams, a legal gentleman living there, to assist him. A deed was prepared by Mr. Williams, and executed by the appellant on the 21st of March, 1866. On the 7th of April ensuing, the appellees paid over $12,500 of the pur- chase-money, and gave their bond to the ap- pellant for the same amount, payable six months from date, with interest. The deed was placed in the hands of a depositary, to be held as an escrow until the bond should be paid. Catlett, under a power of attorney, received the first installment, paid over to the appellant $10,000, and retained the residue on account of the compensation to which he was entitled under the contract betwe n them. The vendees requested Hume to hold possession of the property for them until they should make some other arrangement. He occupied the premises until the following July, when, with their consent, he transfer- red the possession to Gordon. In that month, Lanagan and Repplier came to see the property. Hume was there washing for gold. He began to do -so with the permission of the appellant before the sale, and had con- tinued the work without intermission. The appellees desired to be shown the boundary- lines. Hume said he did not know where they were, and referred them to Johnson. Johnson came. The appellees desired to be taken to the shaft which had been shown to Fisher. Johnson said it was not on the premises. Hume thought it was. Johnson was positive; and he was right. The appel- lees seemed surprised, but said little on the subject. They proceeded to examine the premises within the lines, and, before taking their departure, employed Gordon to explore the property for gold. Subsequently this ar- rangement was abandoned, and they paid him for the time and money he had expend- ed in getting ready for the work. In Sept m- ber, they sent Bowman as their agent to make the exploration. On his way, he stop- ped at the court-house, and told the appel- 100 GROUNDS FOR EQUITABLE RELIEF. lant that the shaft shown to Fisher as on the land was not on it The appellant replied instantly, "that there was no shaft on the land he had sold to Repplier and Lanagan, and that he had never represented to any one that there was a shaft on the land, and that he had never authorized any one, to make such a representation, nor did he know or have reason to believe that any such rep- resentation had, in fact, been made by any one." It does not appear that his attention had before been called to the subject, or that he was before advised that any mistake as to the shaft had occurred. Bowman spent some days upon the land, and made a num- ber of cuts, all of which were shallow. The deepest was only fifteen feet in depth. It was made under the direction of Embry and Johnson, two experienced miners living in the neighborhood. It reached a vein of quartz, but penetrated only a little way into it. They thought the prospect very encour- aging, and urged that the cut should be made deeper. Bowman declined to do anything more, and left the premises. No further explora- tion was ever made. Johnson says, "I know the land well, and Know there has been gold found upon it, and a great deal of gold, too,— that is to say, surface-gold, — but it has never been worked for vein-gold. The gold that I refer to was found by the defendant, Grymes, and those that worked under him." He con- sidered Bowman's examination "imperfect and insufficient." He had had "twenty-three years' experience in mining for gold." Embry's testimony is to the same effect, both as to the surface-gold and the charac- ter of the examination made by Bowman. The premises lie between the Melville and the Greenwood Mines. Before the war, a bucket of ore, of from three to four gallons, taken from the latter mine, yielded $2,400 of gold. This, however, was exceptional. In the spring of 1869 a vein was struck, from forty to fifty feet below the surface, yielding .$500 to the ton. Work was stopped by the influx of water. It was to be resumed as soon as an engine, which was ordered, should arrive. Ore at that depth, yielding from eight to ten dollars a ton, will pay a profit. Embry says he is well acquainted with the courses of the veins in the Melville and the Greenwood Mines, and that "the Greenwood veins do pass through the land in contro- versy, and some of the Melville veins do also." Speaking of Bowman and his last cut, he says: — "At the place I showed him where to cut he struck a vein, but just cut into the top of it; he did not go down through it, or across it. From the appearance of the vein, I was very certain that he would find gold ore, if he would cut across it and go deep into it, and I told him so at the time; but be said that they had sent for him to return home, and he couldn't stay longer to make the examination, and went off, leaving the cut as it was; and the exploration to this day has never been renewed. I am still sat- isfied, that, whenever a proper examination is made, gold, and a great deal of it, will be found in that vein; for it is the same vein which passes through the Greenwood Mine, which was struck last spring, and yielded $500 to the ton. His examination in other respects, as well as this, was imperfect and insufficient. I don't think he did any thing like making a proper exploration for gold. I don't think he had more than three or four hands, and they were not engaged more than eight or ten days at the utmost." In September, 1866, Repplier instructed Catlett to advise the appellant, that, by rea- son of the mistake as to the shaft, the appel- lees demanded the return of the purchase- money which had been paid. In the spring of 1867, Lanagan, upon the same ground, made the same demand in person. The ap- pellant replied, that he had parted with the money. He promised to reflect on the sub- ject, and address Lanagan by letter. He did write accordingly, but the appellees have not produced the letter. This bill was filed on the 21st of March, 1868. A mistake as to a matter of fact, to war- rant relief in equity, must be material, and the fact must be such that it animated and controlled the conduct of the party. It must go to the essence of the object in view, and not be merely incidental. The court must be satisfied, that but for the mistake the complainant would not have assumed the obligation from which he seeks to be re- lieved. Kerr on Mistake and Fraud, 40S; Trigg v. Read, 5 Humph. 529; Jennings v. Broughton, 17 Beav. 241; Thompson v. Jack- son, 3 Rand. 507; Harrod's Heirs v. Cowan, Hardin, 553; Hill v. Bush, 19 Barb. (Ark.) 522; Juzan v. Toulmin, 9 Ala. 662. Does the case in hand come within this category? When Fisher made his examination at the shaft, it had been abandoned. This was pri- ma facie proof that it was of no account. It does not appear that he thought of having an analysis made of any of the debris about it, nor that the debris indicated in any wise the presence of gold. He requested Hume to send him specimens from the shafts on the contiguous tracts, and it was done. No such request was made touching the shaft in question, and none were sent. It Is nei- ther alleged nor proved that there was a purpose at any time, on the part of the ap- pellees, to work the shaft The quartz found was certainly not more encouraging than that taken from the last cut made by Bow- man under the advice of Embry and John- son. This cut he refused to deepen, and abandoned. When Lanagan and Repplier were told by Johnson that the shaft was not on the premises, they said nothing about abandoning the contract, and nothing which GROUNDS FOR EQUITABLE RELIEF, 101 manifested that they attached any particular consequence to the matter, and certainly nothing which indicated that they regarded the shaft as vital to the value of the prop- erty. They proceeded with their examina- tion of the premises as if the discovery had not been made. On his way to Philadelphia, after this visit, Lanagan saw and talked sev- eral times with Williams, who had prepared the deed. Williams says, "I cannot recollect all that was said in those conversations, hut I do know that nothing was said about the shaft, and that he said nothing to produce the impression that he was dissatisfied or disappointed in any respect with the proper- ty after the examination that he had made of it." Lanagan's conversation with House- worth was to the same effect. The subsequent conduct of the appellees shows that the mistake had no effect upon their minds for a considerable period after its discovery, and then it seems to have been rather a pretext than a cause. Mistake, to be available in equity, must not have arisen from negligence, where the means of knowledge were easily accessible. The party complaining must have exercised at least the degree of diligence "which may be fairly expected from a reasonable person." Kerr on Fraud and Mistake, 407. Fisher, the agent of the appellees, who had the deed prepared, was within a few hours' travel of the land when the deed was exe- cuted. He knew the grantor had sold contig- uous lands upon which veins of gold had been found, and that the course and direction of those veins were important to the premises in question. He could easily have taken measures to see and verify the boundary- lines on the ground. He did nothing of the kind. The appellees paid their money with- out even inquiring of any one professing to know where the lines were. The courses and distances specified in the deed show that a surveyor had been employed. Why was he not called upon? The appellants sat quietly in the dark, until the mistake was developed by the light of subsequent events. Full knowledge was within their reach all the time, from the beginning of the negotiation until the transaction was closed. It was their own fault that they did not avail them- selves of it. In Shirley v. Davis, 6 Ves. 678, the complainant, being desirous to become a freeholder in Essex, bought a house which he supposed to be in that county. It proved to be in Kent. He was compelled in equity to complete the purchase. The mistake there, as here, was the result of the want of proper diligence. See also Seton v. Slade, 7 Ves. 269; 2 Kent's Com. 485; 1 Story's Eq., sects. 146, 147; Attwood v. Small, 6 01. & Fin. 338; Jennings v. Broughton, 17 Beav. 234; Campbell v. Ingilby, 1 De G. & J. 405; Gar- rett v. Burleson, 25 Tex. 44; Warner v. Dan- iels et al., 1 Woodb. & M. 91; Ferson v. San- ger, id. 139; Lamb v. Harris, 8 Ga. 546; Trigg v. Read, 5 Humph. 529; Haywood v. Cope, 25 Beav. 143. Where a party desires to rescind upon the ground of mistake or fraud, he must, upon the discovery of the facts, at once announce his purpose, and adhere to it. If he be si- lent, and continue to treat the property as his own, he will be held to have waived the objection, and will be conclusively bound by the contract, as if the mistake or fraud had not occurred. He is not permitted to play fast and loose. Delay and vacillation are fatal to the right which had before subsist- ed. These remarks are peculiarly applicable to speculative property like that here in question, which is liable to large and con- stant fluctuations in value. Thomas v. Bar- tow, 48 N. Y. 200; Flint v. Woodin, 9 Hare, 622; Jennings v. Broughton, 5 De G., M. & G. 139; Lloyd v. Brewster, 4 Paige, 537; Saratoga & S. R. R. Co. v. Row, 24 Wend. 74; Minturn v. Main, 3 Seld. 220; 7 Rob. Prac, c. 25, sect. 2, p. 432; Campbell v. Fleming, 1 Ad. & El. 41; Sugd. Vend. (14th ed.) 335; Diman v. Providence, W. & B. R. R. Co., 5 R. I. 130. A court of equity is always reluctant to re- scind, unless the parties can be put back in statu quo. If this cannot be done, it will give such relief only where the clearest and strongest equity imperatively demands it. Here the appellant received the money paid on the contract in entire good faith. He parted with it before he was aware of the claim of the appellees, and cannot conven- iently restore it. The imperfect and abortive exploration made by Bowman has injured the credit of the property. Times have since changed. There is less demand for such property, and it has fallen largely in mnrket value. Under the circumstances, the loss ought not to be borne by the appellant. Hunt v. Silk, 5 East, 452; Minturn v. Main, 3 Seld. 227; Okill v. Whittaker, 2 Phill. 340; Brisbane v. Dacres, 5 Taunt. 144; Andrew v. Hancock, 1 Brod. & B. 37; Skyring v. Greenwood, 4 Barn. & C. 289; Jennings v. Broughton, 5 De G., M. & G. 139. The parties, in dealing with the property in question, stood upon a footing of equality. They judged and acted respectively for them- selves. The contract was deliberately enter- ed into on both sides. The appellant guaran- teed the title, and nothing more. The appel- lees assumed the payment of the purchase- money. They assumed no other liability. There was neither obligation nor liability on either side, beyond what was expressly stip- ulated. If the property had proved unex- pectedly to be of inestimable value, the ap- pellant could have no further or other claim. If entirely worthless, the appellees assumed the risk, and must take the consequences. Segur v. Tingley, 11 Conn. 142; Haywood v. Cope, 25 Beav. 140; Jennings v. Broughton, 17 id. 234; Attwood v. Small, 6 CI. & Fin. 497; Marvin v. Bennett, 8 Paige, 321; Thorn- 102 GROUNDS FOR EQUITABLE RELIEF. as v. Bartow, 48 N. Y. 198; Hunter v. Goudy, 1 Ham. 451; Hall v. Thompson, 1 Sm. & M. 481. The bill, we have shown, cannot be main- tained. In our examination of the case, we have assumed that those who are alleged to have spoken to the agent of the appellees upon the subject of the shaft, before the sale, had the requisite authority from the appellant. Considering this to be as claimed by the appellees, our views are as we have express- ed them. We have not, therefore, found it necessary to consider the question of such authority; and hence have said nothing upon that subject, and nothing as to the aspect the case would present if that question were resolved in the negative. Decree reversed, and case remanded with directions to dismiss the bill. GROUNDS FOR EQUITABLE RELIEF. 103 PARK BROS. & CO., Limited, v. BLOD- GETT & CLAPP CO. (29 Atl. 133, 64 Conn. 28.) Supreme Court of Errors of Connecticut. Feb 8. 1894. Appeal from court of common pleas, Hart- ford county; Taintor, Judge. Action by Park Bros. & Co., Limited, against the Blodgett & Clapp Company for damages for breach of contract. Judgment for defendant. Plaintiff appeals. Affirmed. Albert H. Walker, for appellant. Edward S. "White, for appellee. TORRANCE, J. This is an action brought to recover damages for the breach of a writ- ten contract, dated December 14, 1888. The contract is set out in full in the amended complaint. It is in the form of a written proposal, addressed by the plaintiff to the defendant, and is accepted by the defend- ant in writing upon the face of the con- tract. Such parts of the contract as appear to be material are here given: "We propose to supply you with fifteen net tons of tool steel, of good and suitable quality, to be furnished prior to January 1, 1890, at" prices set forth in the contract for the qualities of steel named therein. "Deliveries to be made f. o. b. Pittsburgh, and New York freight al- lowed to Hartford. To be specified for as your wants may require." The contract was made at Hartford, by the plaintiff through its agent A. H. Church, and by the defendant through its agent J. B. Clapp. After filing a demurrer and an answer, which may now be laid out of the case, the defendant filed an "answer, with demand for reformation of contract," in the first paragraph of which it admitted the execu- tion of said written contract. The second, third, and fourth paragraphs of the answer are as follows: "The defendant avers that on or about December , 1888, it was agreed by and between the plaintiff and de- fendant, the plaintiff acting by its said agent, A. H. Church, that the plaintiff should supply the defendant prior to January 1, 1890, with such an amount of tool steel, not exceeding fifteen tons, as the defendant's wants during that time might require, and of the kinds and upon the terms stated in said contract, and that the defendant would purchase the same of the plaintiff on said terms. (3) That by the mistake of the plaintiff and defendant, or the fraud of the plaintiff, said written contract did not em- body the actual agreement made as afore- said by the parties. (4) That the defendant accepted the proposal made to it by the plaintiff, and contained in said written con- tract, relying upon the representations of the plaintiff's said agent, then made to It, that by accepting the same the defendant would only be bound for the purchase of such an amount of tool steel of the kinds named therein as its wants prior to Janu- ary 1, 1890, might require, and the de- fendant then believed that such proposal embodied the terms of the actual agreement made as aforesaid by and between the plain- tiff and defendant." The fifth and last paragraph of the answer is not now mate- rial. The answer claimed, by way of equi- table relief, a reformation of the written contract. In reply the plaintiff denied the three paragraphs above quoted; denied spe- cifically that the written contract did not embody the actual agreement made by the parties; and denied the existence of any joint mistake or fraud. Thereupon the court below, sitting as a court of equity, heard the parties upon the issues thus formed, found them in favor of the defendant, and adjudged that the written contract be re- formed to correspond with the contract as set out in paragraph 2 of the answer. At a subsequent term of the court, final judg- ment in the suit was rendered in favor of the defendant. The present appeal is based upon what occurred during the trial with reference to the reformation of the con- tract. Upon that hearing the agent of the defendant was a witness, on behalf of the defendant, and was . jked to state "what conversation occurred between him and A. H. Church in making the contract of De- cember 14, 1888, at and before the execution thereof, and relevant thereto." The plain- tiff "objected to the reception of any parol testimony, on the ground that the same was inadmissible to vary or contradict the terms of a written instrument, or to show any oth- er or different contract than that specified in the instrument, or to show anything rele- vant to the defendant's prayer for its refor- mation." The court overruled the objection, and admitted the testimony, and upon such testimony found and adjudged as hereinbe- fore stated. The case thus presents a single question, - -whether the evidence objected to was ad- missible under the circumstances; and this depends upon the further question, which will be first considered, whether the mis- take was one which, under the circumstan- ces disclosed by the record, a court of equity will correct The finding of the court be- low is as follows: "The actual agreement between the defendant and the plaintiff was that the plaintiff should supply the defend- ant, prior to January 1, 1890, with such an amount of tool steel, not exceeding fifteen tons, as the defendant's wants during that time might require, and of the kinds and upon the terms stated in said contract, and that the defendant would purchase the same of the plaintiff on said terms. But by the mutual mistake of said Church and said Clapp, acting for the plaintiff and defendant respectively, concerning the legal construc- tion of the written contract of December 14, 1888, that contract failed to express the actual agreement of the parties; and that said Church and said Clapp both intended to 104 GROUNDS FOR EQUITABLE RELIEF. have the said written contract express the actual agreement made by them, and at the time of its execution believed that it did." No fraud is properly charged, and certainly none is found, and whatever claim to relief the defendant may have must rest wholly on the ground of mistake. The plaintiff claims that the mistake in question is one of law, and is of such a nature that it cannot be corrected in a court of equity. That a court ■of equity, under certain circumstances, may reform a wiitten instrument founded on a mistake of fact is not disputed; but the plaintiff strenuously insists that it cannot, ■or will not, reform an instrument founded upon a mistake like the one here in question, which is alleged to be a mistake of law. The distinction between mistakes of law and mis- takes of fact is certainly recognized in the text-books and decisions, and to a certain extent is a valid distinction; but it is not practically so important as it is often rep- resented to be. Upon this point Mr. Mark- by, in his "Elements of Law" (sections 288 .and 209), well says: "There is also a pecu- liar class of cases in which courts of equity •have endeavored to undo what has been done under the influence of error and to re- store parties to their former position. The courts deal with such cases in a very free manner, and I doubt whether it is possible to bring their action under any fixed rules. But here again, as far as I can judge by what I find in the text-books and in the cases referred to, the distinction between errors of law and errors of fact, though very em- phatically announced, has had very little practical effect upon the decisions of the courts. The distinction is not ignored, and it may have had some influence, but it is always mixed up with other considerations, which not unfrequently outweigh it. The distinction between errors of law and errors of fact is therefore probably of much less importance than is commonly supposed. There is some satisfaction in this, because the grounds upon which the distinction is made have never been clearly stated." The distinction in question can therefore afford little or no aid in determining the question under consideration. Under certain circum- stances a court of equity will, and under others it will not, reform a writing founder! ■on a mistake of fact; under certain circum- stances it will, and under others it will not, reform an instrument founded upon a mis- take of law. It is no longer true, if it ever was, that a mistake of law is no ground for relief in any case, as will be seen by the cases hereinafter cited. Whether, then, the mistake now in question be regarded as one of law or one of fact is not of muoh con- sequence; the more important question is whether it is such a mistake as a court of equity will correct; and this perhaps can only, or at least can best, be determined by seeing whether it falls within any of the well-recognized classes of cases in which euch relief is furnished. At the same time the fundamental equitable principle which was specially applied in the case of North- rop v. Graves, 19 Conn. 548, may also, per- haps, afford some aid in coming to a right conclusion. Stated briefly and generally, and without any attempt at strict accuracy, that principle is that in legal transactions no one shall be allowed to enrich himself unjustly at the expense of another through or by reason of an innocent mistake of law or fact, entertained without negligence by the loser, or by both. If we apply this prin- ciple to the present case, we may see that, by means of a mutual mistake in reducing the oral agreement to writing, the plaintiff, with- out either party intending it, gained a de- cided advantage over the defendant, to which it is in no way justly entitled, or at least ought not to be entitled, in a court of equity. The written agreement certainly fails to express the real agreement of the parties in a material point; it fails to do so by rea- son of a mutual mistake, made, as we must assume, innocently, and without any such negligence on the part of the defendant as would debar him from the aid of a court of equity. The rights of no third parties have intervened. The instrument, if corrected, will place both parties just where they in- tended to place themselves in their relations to each other; and, if not corrected, it gives the plaintiff an inequitable advantage over the defendant. It is said that if, by mistake, words are inserted in a written contract which the parties did not intend to insert, or omitted which they did not intend to omit, this is a mistake of fact which a court of equity will correct in a proper case. Sibert v. McAvoy, 15 111. 106. If, then, the oral agreement in the case at bar had been for the sale and purchase of 5 tons of steel, and, in reducing the contract to writing, the par- ties had, by an unnoticed mistake, inserted "15 tons" instead of "5 tons," this would have been a mistake of fact entitling the de- fendant to the aid of a court of equity. In the case at bar the parties actually agreed upon what may, for brevity, be called a con- ditional purchase and sale, and upon that only. In reducing the contract to writing, they, by an innocent mistake, omitted words which would have expressed the true agree- ment, and used words which express an agreement differing materially from the only one they made. There is perhaps a distinc- tion between the supposed case and the actu- al case, but it is quite shadowy. They dif- fer not at all in their unjust consequences. In both, by an innocent mistake mutually entertained, the vendor obtains an uncon- scionable advantage over the vendee, a re- sult which was not intended by either. There exists no good, substantial reason, as it seems to us, why relief should be given in the one case and refused in the other, other things being equal. It is hardly nec- essary to say that, in cases like the one at bar, courts of equity ought to move with GROUNDS FOR EQUITABLE RELILF. 105 great caution. Before an instrument is re- formed, under such circumstances, the proof of the mistake, and that it really gives an un- just advantage to one party over the other, ought to be of the most convincing character. "Of course the presumption in favor of the written over the spoken agreement Is almost resistless; and the court has wearied Itself in declaring that such prayers (for relief of this kind) must he supported by overwhelm- ing evidence, or be denied." Palmer v. In- surance Co., 54 Conn. 501, 9 Atl. 248. We are not concerned here, .however, with the amount or sufficiency of the proofs upon which the court below acted, nor with the sufficiency of the pleadings; we must, upon this record, assume that the pleadings are sufficient, and that the proofs came fully up to the highest standard requirements in such oases. Upon principle, then, we think a court of equity may correct a mistake of law in a case like the one at bar, and we also think the very great weight of modern authority is in favor of that conclusion. The case •clearly falls within that class of cases where there is an antecedent agreement, and, in re- ducing it to writing, the instrument executed, by reason of the common mistake of the par- ties as to the legal effect of the words used, fails, as to one or more material points, to express their actual agreement. It is per- haps not essential in all cases that there should be an antecedent agreement, as ap- pears to be held in Benson v. Markoe, 37 Minn. 30, 33 N. W. 38; hut we have no oc- casion to consider that question in the case at bar. The authorities in favor of the con- clusion that a court of equity in such, cases will correct a mistake, even if it be one of law, are very numerous, and the citation of a few of the more important must suffice. In Hunt v. Rousmanier's Adm'rs, 1 Pet. 1, decided in 1828, it is said: "Where an in- strument is drawn and executed which pro- fesses, or is intended, to carry into execu- tion an agreement, whether in writing or by parol, previously entered into, but which by mistake of the draftsman, either as to fact or law, does not fulfill, or which violates, the manifest intention of the parties to the agreement, equity will correct the mistake so as to produce a conformity of the instru- ment to the agreement'* It was said in the argument before us that this was a mere obiter dictum, but that is hardly correct. It is true the case was held not to fall within the principle, bui the principle was said to "be "incontrovertible" (page 13), and was ap- plied to the extent at least of determining that the case then before the court did not come within it. In Snell v. Insurance Co., 98 U. S. 85, the court applied the principle so clearly stated in the case last cited, and re- formed a policy of insurance, though the mistake was clearly one as to the legal ef- fect of the language of the policy. In nu- merous other decisions of that court the •same principle has been- cautiously but re- peatedly applied, but it is not necessary to cite them. On the general question, wheth- er a court of equity will relieve against a mistake as to the legal effect of the language of a writing, the case of Griswold v. Hazard, 141 U. S. 260, 11 Sup. Ct. 972, 999, is a strong case, though perhaps hardly an authority upon the precise question in this case. Can- edy v. Marcy, 13 Gray, 373, was a case where the oral contract was for the sale of two-thirds of certain premises, but the deed, by mistake of the scrivener, conveyed the en- tire premises. The words used were ones intended to be used in one sense, the error being that all concerned supposed those words would carry out the oral agreement. This was clearly a mistake "concerning the legal construction of the written contract," but the court, by Chief Justice Shaw, said: "We are of the opinion that courts of equi- ty in such cases are not limited to affording relief only in cases of mistake of fact, and that a mistake in the legal effect of a de- scription in a deed, or in the use of technical language, may be relieved against upon prop- er proof." In Goode v. Riley, 153 Mass. 585, 28 N. E. 228, decided in 1891, the court says: "The only question argued is raised by the defendant's exception to the refusal of a rul- ing that, if both parties intended that the description should be written as it was writ- ten, the plaintiff was not entitled to a refor- mation. It would be a sufficient answer that the contrary is settled in this common- wealth," — citing a number of cases. In Ken- nard v. George, 44 N. H. 440, the parties, by mistake as to its legal effect, supposed a mortgage deed to be valid when it was not. The court relieved against the mistake, and said: "It seems to us to be a clear case of mutual mistake, where the instrument given and received was not in fact what all the parties to it supposed it was and intended it should be; and in such a case equity will interfere and reform the deed, and make it what the parties at the time of its execu- tion intended to make it; and in this re- spect it makes no difference whether the defect in the instrument be in a statutory or common-law requisite, or whether the par- ties failed to make the instrument in the form they intended, or misapprehended its legal effect." In Eastman v. Association, 65 N. H. 176, 18 Atl. 745, decided in 1889, the mistake was as to the legal effect of an in- surance certificate, but the court granted re- lief by way of reformation. The court says: "Both parties intended to make the benefit payable to Gigar's administrator. That it was not made payable to him was due to their mutual misapprehension of the legal effect of the language used in the certificate. * * * Equity requires an amendment of the writing that will make the contract what the parties supposed it was, and intended it should be, although their mistake is one of law, and not of fact." In Trusdell v. Lehman, 47 N. J. Eq. 218, 20 Atl. 391, the marginal note is as follows: "Where it clearly appears that I a deed drawn professedly to carry out the 106 GROUNDS TOR EQUITABLE RELIEF. agreement of the parties, previously entered into, is executed under the misapprehension that it really embodies the agreement, where- as, by mistake of the draughtsman either as to fact or law, it fails to fulfill that purpose, equity will correct the mistake by reforming the instrument in accordance with the con- tract." In a general way, the same rule is recognized and applied with more or less strictness in the following cases: Clayton v. Freet, 10 Ohio St. 544; Bush v. Hicks, 60 N. Y. 298; Andrews v. Andrews, 81 Me. 337, 17 Atl. 100; May v. Adams, 58 Vt. 74, 3 Atl. 187; Griffith v. Townley, 69 Mo. 13; Benson v. Markoe, 37 Minn. 30, 33 N. W. 38; Gump's Appeal, 65 Pa. St. 476; Cooper v. Phibbs, L. R. 2 H. L. 170. See, also, 2 Pom. Eq. Jur. § 845, and Bisp. Eq. §§ 184-191. And, whatever the law may be elsewhere, this is certainly the law of our own state. Cham- berlain v. Thompson. 10 Conn. 243; Stedwell v. Anderson, 21 Conn. 144; Woodbury Sav- ings Bank v. Charter Oak Ins. Co., 31 Conn. 518; Palmer v. Insurance Co., 54 Conn. 488, 9 Atl. 24S; and Haussman v. Burn- ham, 59 Conn. 117, 22 Atl. 1005. Indeed, since the time of Northrop v. Graves, supra, it is difficult to see how our law could have been otherwise. We conclude then that by our own law, and by the decided weight of authority elsewhere, the defendant was en- titled to the relief sought. If this is so, then clearly he was entitled to the parol evidence which the plaintiff objected to; for in no other way, ordinarily, can the mistake be shown. "In such cases parol evidence is admissible to show that the party is entitled to the relief sought." Wheaton v. Wheaton, 9 Conn. 96. "It is settled, at least in equity, that this particular kind of evidence, that Is to say, of mutual mistake as to the meaning of words used, is admissible for the negative purpose we have mentioned. And this prin- ciple is entirely consistent with the rule that you cannot set up prior or contemporaneous oral dealings to modify or override what you knew was the effect of your writing." Goode v. Riley, 153 Mass. 585, 28 Atl. 228; Reyn. Theory Ev. § 69; 1 Greenl. Ev. (15th Ed.) 5 269a; Steph. Dig. Ev. § 90. The view we have taken of this'case ren- ders it unnecessary to notice at any length the cases cited by counsel for the plaintiff in his able argument before us. Upon his brief, he cites five from Illinois, two fror* Indiana, and one from Arkansas. After at examination of them, we can only say that most of them seem to support the claims of the plaintiff. If so, we think they are op- posed to the very decided weight of authori- ty, and do not state the law as it is held in this state. Before closing, however, we ought to no- tice the case of Wheaton v. Wheaton, supra, upon which the plaintiff's counsel seems to place great reliance. The case is a some- what peculiar one. Even in that case, how- ever, the court seems to recognize the princi- ple governing the class of cases within which we decide the case at bar falls, for it says: "It is not alleged that the writings were not so drawn as to effectuate the intention of the parties, through the mistake of the scriv. ener. On the contrary it is alleged that the scrivener was not even informed what the agreement between the parties was." From the statement of the case in the record and in the opinion, It clearly appears that the mistake was not mutual; indeed, it does not even appear that at the time when the note was executed the other party even knew that there was any mistake at all on the part of anybody. Upon the facts stated, the plaintiff in this case did not bring it within the class of cases we have been considering. The case was correctly decided, not on the ground that the mistake was one of law, but on the ground that the mistake of law was one which, under the circumstances al- leged, a court of equity would not correct. The court, however, in the opinion, seems to- base its decision upon the distinction be- tween mistakes of law and mistakes of fact; holding in general and unqualified terms, as was once quite customary, that the latter could be corrected and the former could not. The court probably did not mean to lay the law down in this broad and unqualified way; but if it did, it is sufficient to say that it is not a correct statement of our law, at least since the decision of Northrop v. Graves, supra. On the whole, this case of Wheaton v. Wheaton can hardly be regarded as sup- porting the plaintiff's contention. There is no error apparent upon the record. In tnia- opinion the other judges concurred. GROUNDS FOR EQUITABLE RELIEF. 107 PERKINS v. PARTRIDGE et al. (80 N. J. Eq. 82.) Court of Chancery of New Jersey. Oct. Term 1878. BUI for relief. On final hearing, on plead- ings and proofs. B. A. Vail, for complainant. S. M. Dick- inson, for defendants. THE CHANCELLOR. The complainant seeks to set aside a conveyance made by him to Charles P. Partridge, on the 1st of August, 1875, whereby he conveyed in fee to the latter his house and lot in Woodbridge township, in the county of Middlesex, for the consideration (including the price of cer- tain household furniture sold with the prop- erty) of $10,000, subject, however, to a mort- gage of $3,000 thereon. For the balance, $7,- 000, of the purchase-money, after deducting the amount of the mortgage, he agreed to receive, and did receive accordingly, a mort- gage of that amount then held by the defend- ant, Charles Partridge, father of the gran- tee, on nineteen hundred and twenty acres of wild land in Brown's tract, in Herkimer county, New York. The ground of the com- plainant's complaint is that he was induced to accept the last-mentioned mortgage through 'false and fraudulent representations in ref- erence thereto made by the defendants. JThese representations, according to the bill, 'were, that the property was a good and "safe security for the money the payment of " which the mortgage purported to secure; and ~~ that the mortgaged land was sold by Charles 'Partridge to the mortgagor at the rate of $25 an acre. The bill alleges that, in fact, the mortgagor (who was also the obligor in the bond therein mentioned, and the pay- ment of which it was made to secure) was a man of no pecuniary responsibility; and that the mortgaged premises were not sold by Charles Partridge for any such sum of money as the defendants represented, and were worth only about $2,000. That the complainant was defrauded by the representations of the defendants, is clear from the evidence. His property was brought to the notice of Charles F. Part- ridge by Frederick Reed, a real estate agent, to whom Partridge had applied with a view to obtaining an exchange of some Brooklyn property of his for country property. Reed had the complainant's property also in hand to find a purchaser for it. He mentioned to each of the parties the property of the oth- er, with a view to exchange. The com- plainant was not satisfied to exchange at the price at which the Brooklyn property was held. This was communicated by the agent to Partridge, who then said he had made up his mind to retain his Brooklyn property and get a country place in some other way. He then said that "his father (the defend- ant, Charles Partridge,) had a mortgage of $7y000 on land in Herkimer county which was good, which he would put in in ex- change; that his father would let him have it to use, but not for a cent less than the face of it; and that he would have to pay his father for it." After the contract was signed, and on the day when the deed was delivered and before the papers were ex- changed, the complainant and Charles F. Partridge and his father being then at the lawyer's office to exchange the papers, Reed, who was there also, sought and obtained a private interview with Charles Partridge, the father (who seems to have interested himself in getting the contract drawn and signed), and then said to him that the com- plainant, as he, Reed, had learned, knew nothing about the $7,000 mortgage, had had no time to search the title or investigate the matter at all, and would have to rely en- tirely on what he, Partridge, said about it. Partridge then said that it was a perfectly good, first-class mortgage; that the parties were good, and that the interest had always been paid promptly; and that he had sold the land for $25 an acre, and would not sell any more of the tract for less than $30 an acre. Reed thereupon informed the com- plainant of the purport of the conversation, and the deed was then delivered and the mortgage accepted. The complainant testi- fies that Charles Partridge came to see his property before the contract was entered in- to, and then mentioned the mortgage to him, saying that it was a good mortgage, and that he had sold the land on which it was for $25 an acre. The complainant testifies that Charles F. Partridge told him, both before- and after the conveyance had been made, that he would have to pay his father $7,000 for the mortgage; that $6,999 would not buy it. The complainant's wife corroborates him in this statement as to one occasion, she having been present when Charles F. Partridge said substantially the same thing to him. The fact appears to be that Charles Partridge not only did not sell the mortgaged premises for $25 an acre, but did not sell them at all. He swears, indeed, that he sold them to the mortgagor, Thomas H. Phillips, and the deed to the latter probably (it has not been laid before me) expresses a consideration in accordance with the repre- sentations, but it is evident that there was no bona fide sale at all. Charles Partridge, indeed, swears that Phillips paid something, besides giving the mortgage, as considera- tion, but admits that it was only from $10- to $25, and though he further says that Phil- lips agreed to pay $15 or $20 an acre, Phil- lips swears that he gave no consideration ex- cept the mortgage. It seems extremely probable that the conveyance to Phillips was made merely in order to obtain a mortgage from an apparent purchaser. Charles Part- ridge testifies that he made an exchange of the property with certain persons whom he designates as Charles F. Bouton and De- 108 GEOUNDS FOE EQUITABLE BELIEF. Witt H. Phillips (though, the conveyance to Thomas H. Phillips had then been made), and that he gave Thomas H. Phillips a con- sideration for conveying directly to them. It appears that he gave him about $50 for his trouble in the matter. Thomas H. Phillips says that he thinks the conveyance to Bou- ton and Phillips was made on the same day on which the property was conveyed to him. The deed to Bouton and Phillips has never been put on record, and neither of the de- fendants can give any trustworthy account of either of those persons. The statement made by the defendants, of the manner in which the son accounted to the father for the value of the mortgage, is unsatisfactory. Again, there is evidence of fraudulent de- sign in the endorsements of interest made by Charles Partridge on the bond. Six months' interest is endorsed thereon as hav- ing been received in September (the word, however, is written over the word "March"), 1874, from Thomas H. Phillips, and the same amount from him on the 7th of April, 1875, while the evidence is that Thomas H. Phil- lips conveyed away the property on the same clay on which it was conveyed to him, March 6, 1S74, and he swears that he never paid Charles Partridge, or any one else, any in- terest on the mortgage. It is worthy of re- mark, in this connection, that Charles Part- ridge says, in his testimony, that he received this interest of Bouton and Phillips, and that the Phillips of that firm was not Thomas H. Phillips. No interest has been paid on the mortgage since it was assigned to the complainant. The mortgaged premises appear to have been valued, in 1866, at $2 an acre, and their value consisted, principally, in the bark of the hemlock trees growing on them. The right to this bark was reserved by the gran- tors, in the deed to Partridge, and the bark has since been taken away by them. The land, therefore, appears to be of little, if any, value. Nor are the representations which were made by the defendants to in- duce the complainant to accept the mort- gage, to be regarded as mere "dealing talk" —simplex commendatio. They were substan- tial, important representations as to exist- ing facts, materially affecting the character and value of the mortgage. That the mort- gaged premises had been sold, by the mort- gagee, to the mortgagor for about $50,000; that the property was first-rate property; that the land was good and the timber valu- able; that the land would be more valuable after it was cleared; that the mortgage was a good mortgage— aU these are false allega- tions as to the existence of material facts. By means of these false and fraudulent representations, made, it is evident, for the purpose of inducing the complainant to ac- cept the mortgage as $7,000 of the purchase- money of his property, the defendants were enabled to obtain the conveyance of that property. The complainant made no investi- gation as to the character of the mortgage, or the value of the mortgaged premises, be- cause of his confidence in those representa- tions, and it appears that the defendants were anxious and in haste to close up the transaction and obtain a deed for his prop- erty. The complainant has been guilty of no laches to debar him from relief. It appears, from the testimony, that, by the agreement, Charles F. Partridge was to have the inter- est whdch would become due on the mort- gage on the 6th of September, 1875. The principal of the mortgage was not due until March 6, 1877. The bill was filed on the 16th of December, 1875. The complainant, before filing the bill, and after he found that he could collect no interest on the mortgage, re- quested Charles F. Partridge to reconvey the Woodbridge property to him, offering to re- assign to him the mortgage, but Partridge refused. The complainant is entitled to relief. The deed should be set aside and a recon- veyance to the complainant ordered on the complainant's re-assigning the bond and mortgage to the defendant, Charles F. Part- ridge. He, according to the testimony of his father, purchased it of him, and has paid him therefor in full. Charles F. Partridge must account, also, for the use and occupa- tion of the house and lot conveyed to him by the complainant, and for the value of the household furniture. The defendants will be decreed to pay costs. GROUNDS FOR EQUITA15LE RELIEF. 109 STIMSON v. HELPS et al. (10 Pae. Rep. 290, 9 Colo. 33.) Supreme Court of Colorado. Feb. 26, 1S86. Appeal from county court, Boulder county. The complaint sots out that on the sixth day of October, 1881, William Stimson leased to the defendants in error the S. W. % of sec- tion 21, in township 1, range 70 west, in said county, for the period of four years and six months, for the purpose of mining for coal, under the conditions of said lease; that they had no knowledge of the location of the boundary lines of said tract at the time of the leasing, and that they so informed Stim- son, the defendant in the case; that they re- quested Stimson to go with them and show them the boundary lines; that the defendant, pretending to know the lines bounding said laud, and their exact locality, went then and there with plaintiffs, and showed and pointed out to them what he said was the leased land, and the boundary lines thereof, es- pecially the north and south lines thereof; that plaintiffs not then knowing the lines bounding said land, nor the exact location thereof, and relying upon what the defendant then and there pointed out to them as the leased land, and the lines thereof, then and there proceeded to work on the land pointed out, and sank shafts for mining coal thereon, and made sundry improvements thereon, — made buildings, laid tracks, etc.; that all the said work was done and labor performed and improvements made on the land pointed out by defendant to plaintiffs as the leased land, and that plaintiffs, relying upon the statements of defendant as aforesaid, and not knowing otherwise, believed they were performing the work, and making all the im- provements on the land they had so leased, which they did by direction of the defend- ant; that while they were working on the said land Stimson was frequently present, and told the plaintiffs they were on his land, and received royalty from ore taken there- from; that about April 10, 1882, they were notified to quit mining on said ground by the Marshall Coal Mining Company; that the land belonged to said company; that none of the said improvements were put on said leased land; and that they were compelled to quit work and mining thereon; that the improvements made by them were worth $2,- 000; that Stimson falsely represented to them other and different lines than the true boundaries of said premises, and showed and pointed out to them other and different lands than the lands leased them, and thereby de- ceived them, and damaged them, in the sum of $2,000. Issue joined, and trial to the court. Motion by defendant's counsel for judgment on the pleadings, and evidence overruled. Judgment for the plaintiffs in the sum of $2,000, and costs. Wright & Griffin, for appellant. G. Berk- ley, for appellees. ELBERT, J. The law holds a contracting party liable as for fraud on his express rep- resentations concerning facts material to the treaty, the truth of which he assumes to know, and the truth of which is not known to the other contracting party, where the representations were false, and the other party, relying upon them, has been misled to his injury. Upon such representations so made the contracting party to whom they are made has a right to rely, nor is there any duty of investigation cast upon him. In such a case the law holds a party bound to know the truth of his representations. Big- elow, Fraud, 57, 60, 63, 67, 68, 87; Kerr, Fraud & M. 54 et seq.; 3 Wait, Act. & Def. 436. This is the law of this case, and, on the evidence, warranted the judgment of the court below. The objection was made below, and is re : newed here, that the complaint does not state sufficient facts to constitute a cause of ac- tion. Two points are made: (1) That the complaint does not allege that the defendant knew the representations to be false; (2> that it does not allege intent to defraud. It is not necessary, in order to constitute a fraud, that the party who "makes a false representation should know it to be false. He who makes a representation as of his own knowledge, not knowing whether it be true or false, and it is in fact untrue, is guilty of fraud as much as if he knew it to be untrue. In such a case he acts to his own knowledge falsely, and the law imputes a fraudulent intent. Kerr, Fraud & M. 54 et seq., and cases cited; Bigelow, Fraud, 63, 84, 453; 3 Wait, Act. & Def. 438 et seq.; 2 Estee, Pr. 394 et seq. "Fraud" is a term which the law applies to certain facts, and where, upon the facts, the law adjudges fraud, it is not essential that the complaint should, in terms, allege it. It is sufficient if the facts stated amount to a case of fraud. Kerr, Fraud & M. 366 et seq., and cases cited; 2 Estee, PI. 423. The complaint in this case states a substantial cause of ac- tion, and is fully supported by the evidence. The action of the county court in refusing to allow the appellant to appeal to the dis- trict court after he had given notice of an ap- peal to this court, and time had been given in which to perfect it, cannot be assigned as error on this record. If it was an error, it was error not before, but after, the final judgment from which this appeal is taken. The judgment of the court below is af- firmed. [Note from 10 Pac. Rep. 292.] A contract secured by false and fraudulent representations cannot be enforced. Mills v. Collins, 67 Iowa, 164, 25 N. W. Rep. 109. A court of equity will decree a rescission of a contract obtained by the fraudulent represen- tations or conduct of one of the parties thereto, on the complaint of the other, when it satis- factorily appears that the party seeking the rescission has been misled in regard to a ma- 110 GROUNDS FOE EQUITABLE RELIEF. terial matter by such representation or conduct, to his injury or prejudice. But when the facts are known to both parties, and each acts on his own judgment, the court will not rescind the contract because it may or does turn out that they, or either of them, were mistaken as to the legal effect of the facts, or the rights or ob- ligations of the parties thereunder, and particu- larly when such mistake can in no way injuri- ously affect the right of the party complaining under the contract, or prevent him from obtain- ing and receiving all the benefit contemplated by it, and to which he is entitled under it. See- ley v. Reed, 25 Fed. Rep. 301. When, by false representations or misrep- resentations, a fraud has been committed, and by it the complainant has been injured, the gen- eral principles of equity jurisprudence afford a remedy. Singer Manuf'g Co. v. Yarger, 12 Fed. Rep. 4S7. See Chandler v. Childs, 42 Mich. 128, 3 N. W. Rep. 297; Cavender v. Roberson, 33 Kan. 626, 7 Pac. Rep. 152. "When no damage, present or prospective, can result from a fraud practiced, or false repre- sentations or misrepresentation made, a court of equity will not entertain a petition for relief. Dunn v. Remington, 9 Neb. 82, 2 N. W. Rep. 230. A person is not at liberty to .make positive assertions .about facts material to a transaction unless he knows them to be true; and if a statement so made is in fact false, the as- sertor cannot relieve himself from the imputa- tion of fraud by. pleading ignorance, but must respond in damages to any one who has sus- tained loss by acting in reasonable reliance upon such assertion. Lynch v. Mercantile Trust Co., 18 Fed. Rep. 480. Equity will not relieve a,gainst a misrepre- sentation, unless it be of some material matter constituting some motive to the contract, some- thing in regard to which reliance is placed by one party on the other, and by which he was actually misled, and not merely a matter of opinion, open to the inquiry and examination of both parties. Buckner v. Street, 15 Fed. Rep. 365. False representations may be a ground for relief, though the person making them believes them true, if the person to whom they were made relied upon them, and was induced there- by to enter into the contract. Seeberger v. Ho- bert, 55 Iowa, 756, 8 N. W. Rep. 4S2. Fraudulent representations or misrepresenta- tions are not ground for relief, where they are immaterial, even though they be relied upon. Hall v. Johnson, 41 Mich. 286, 2 N. W. Rep. 55. See, to same effect, Lynch v. Mercantile Trust Co., 18 Fed. Rep. 486; Seeberger v. Ho- bert, 55 Iowa, 750, 8 N. W. Rep. 482. In fraudulent representation or misrepresenta- tion the injured parties may obtain relief, even though they did not suppose every statement made to them literally true. Heineman v. Stei- ger, 54 Mich. 232, 19 N. W. Rep. 965. Where the vendor honestly expresses an in- correct opinion as to the amount, quality, and value of the goods he disposes of in a sale of his business and good-will thereof, and the purchaser sees or knows the property, or has an opportunity to know it, no action for false rep- resentations will lie. Collins v. Jackson, 54 Mich. 186, 19 N. W. Rep. 947. Mere "dealing talk" in the sale of goods, un- less accompanied by some artifice to deceive the purchaser or throw him off his guard, or some concealment of intrinsic defects not easily detected by ordinary care and diligence, does not amount to misrepresentation. Reynolds v. Palmer, 21 Fed. Rep. 433. False statements made at the time of the sale by the vendor of chattels, with the fraud- ulent intent to induce the purchaser to accept an inferior article as a superior one, or to give an exorbitant and unjust price therefor, will render such purchase voidable; but such false statement must be of some matter affecting the character, quantity, quality, value, or title of such chattel. Bank v. Yocum, 11 Neb. 328, 9 N. W. Rep. 84. A statement recklessly made, without knowl- edge of its truth, is a false statement knowing- ly made, within the settled rule. Cooper v. Schlesinger, 111 U. S. 148, 4 Sup. Ct. Rep. 360.' Whether or not omission to communicate known facts will amount to fraudulent repre- sentation depends upon the circumstances of the particular case, and the relations of the parties. Britton v. Brewster, 2 Fed. Rep. 160. Where a vendor conceals a material fact, which is substantially the consideration of the contract, and which is peculiarly within his knowledge, it is fraudulent misrepresentation. Dowling v. Lawrence, 58 Wis. 282, 10 N. W. Rep. 552. Evidence of fraudulent representations must be clear and convincing. Wickham v. More- house, 16 Fed. Rep. 324. Where a man sells a business, and the con- tract of sale contained a clause including all right to business done by certain agents, evi- dence that the seller was willing to engage in the same business with such agents is not proof of fraud in making the contract. Taylor v. Saurman, 110 Pa. St. 3, 1 Atl. Rep. 40. It was recently held by the supreme court of Indiana, in the case of Cook v. Churchman, 104 Ind. 141, 3 N. E. Rep. 759, that where money is obtained under a contract, any fraudulent representations employed by a party thereto as a means of inducing the loan to be made, if otherwise proper, are not to be excluded be- cause of the statute of frauds; also that where parol representations are made regarding the credit and ability of a third person, with the in- tent that such third person shall obtain money or credit thereon, the statute of fraud applies, and no action thereon can be maintained, al- though the party making the representations may have entered into a conspiracy with such person with the expectation of obtaining some incidental benefit for himself. GROUNDS FOR EQUITABLE RELIEF. Ill HARIiIS v. TYSON. (24 Pa. St. 347.) i Supreme Court of Pennsylvania. May 21, 1855. Error to court of common pleas, Chester county. Mr. Bell, for plaintiff in error. Hickman & Lewis, for defendant in error. BLACK, J. This action depends on the defendant's right to dig and take away chrome from the land of the plaintiff. The defendant claims that right under the plain- tiff's deed, giving and granting it in due form. But the plaintiff asserts that the deed is fraudulent and void, because (1) the de- fendant suppressed the truth; (2) he sug- gested a falsehood; (3) he paid a totally inadequate consideration; and (4) he got the deed by means of threats, which amounted to duress. 1. A person who knows that there is a mine on the land of another may neverthe- less buy it. The ignorance of the vendor is not of itself fraud on the part of the pur- chaser. A purchaser is not bound by our laws to make the man he buys from as wise as himself. The mere fact, therefore, that Tyson knew there was sand chrome on Harris' land, and that Harris himself was ignorant of it, even if that were ex- clusively established, would not be ground for impugning the validity of the deed. But it is not by any means clear that one party had much advantage over the other in this respect. They both knew very well that chrome could be got there, which one wanted and the other had no use for. But the whole extent of it in quantity was probably not known to either of them for some time after the deed. When it was discovered that sand chrome was as valuable as the same min- eral found in the rock, and that large quan- tities of the former could be got in certain parts of the fast land as well as by the streams, it was natural enough that the plaintiff should repent, and the defendant rejoice, over the contract; but this did not touch its validity. Every man must bear the loss of a bad bargain legally and hon- estly made. If not, he could not enjoy in safety the fruits of a good one. Besides, we do not feel sure that the contract has made the plaintiff any poorer, for it is not improbable that he would never have dis- covered the value of the mineral deposit on his land if he had not granted to the de- fendant the privilege of digging. 2. If the defendant, during the negotiation for the purchase, willfully made any mis- statement concerning a material fact, and then misled the plaintiff, and induced him to sell it at a lower price than he otherwise would, then the contract was a cheat, and i Irrelevant parts of opinion omitted. the deed is void utterly. But, in all cases where the evidence brings the parties face to face, the language and conduct of the defendant seem to have been unexception- able. An offer was made and rejected to prove that Tyson had made certain state- ments in the neighborhood which were cal- culated to produce the impression that all the chrome in that region was not very val- uable. It was even proposed to be shown that he had spoken in depreciating terms of sand chrome on a tract adjoining Harris'. It would at least have been useless, and it might have had a pernicious influence on the minds of the jury, to have admitted such evidence. To invalidate a solemn deed by showing that misrepresentations were used to obtain it, there must be very clear proof that the falsehood was told directly or indirectly to the grantor. It was not to be supposed that he was influenced by a statement neither made to himself nor com- municated to him. If the vendee's conduct in all his transactions with the vendor was honest and fair, he is not answerable in this action for what he may not have said else- where to other persons. 3. Mere inadequacy of price is not suffi- cient to . set aside a deed. It is sometimes regarded as a suspicious circumstance, when coupled with other strong evidence of fraud. Here it would hardly be entitled to that much consideration. The sale of this priv- ilege at a low price is explained by so many reasons that it is not necessary to account for it by supposing there was any foul play. But it is enough to say that the plaintiff had a right to sell at what price he pleased, or keep his property. Having chosen to do the former, he cannot undo it by changing his own mind. 4. The allegation of duress is founded on these facts: Before the date of the deed now in question, Harris made a written con- tract with Tyson to sell him his land out and out; but he refused to make the con- veyance, and Tyson declared that he would bring an action on the covenant. The dif- ficulty was then settled by the cancellation of the agreement, and the execution of the deed granting the mineral right The court received this evidence, and most properly instructed the jury that duress to invalidate the deed must be of the person. For the plaintiff it was insisted that the deed might be avoided merely by proving a threat to sue the grantor for a good cause of action. There is not only no judicial decision in favor of this opinion, but I think it is new, even as an argument at the bar. This is the whole body of the case. There is nothing else of leading importance in it. Yet the judgment is brought here on no less than thirty-nine exceptions. Judgment affirmed. 112 GROUNDS FOR EQUITABLE RELIEF. MATTHEWS v. CROCKETT'S ADM'R et al. (82 Va. 394.) Supreme Court of Appeals of Virginia. Sept. 16, 1886. Appeal from circuit court, Wythe county, in the cause of J. Stuart Crockett, as admin- istrator c. t, a. of Elizabeth E. Crockett, de- ceased, and as committee of Henry E. Crock- ett, a lunatic, etc., as plaintiff, against C. E. Mayer and Maria B., his wife, William Gib- boney, ' Alex. F. Matthews, and others, de- fends nts. The case, so far as it is necessary to be stated in order to a correct understanding of the matter in controversy, is this: The said Elizabeth E. Crockett, under the terms of the will of her father, the late Henry Er- skene, was entitled for her life to the inter- est on a certain coupon mortgage bond of the White Sulphur Springs Company. This bond is described in the record as "Bond No. 2," and was for the sum of $21,848.66. In 1869, being indebted to one William Gibboney, of Wythe county, in the sum of $2,210.92, she delivered to the latter two coupons cut from the said bond, each being for the sum of $1,310.92, and due October 15, 1861, and Oc- tober 15, 1862, respectively, to be by him col- lected', and the proceeds, as far as necessary, to be applied to the payment of his debt, and the balance, if any, to be paid over to her. This arrangement was evidenced by a writ- ten contract, dated June 28, 1869, and desig- nated in the record as "the Gibboney Con- tract." In January, 1877, Elizabeth E. Crockett de- parted this life, leaving three children sur- viving her, who, under the will of Henry Erskene, thereupon became entitled to the said bond. These children were the appel- lees, J. Stuart Crockett, Henry E. Crockett, and Maria B., the wife of C. E. Mayer. The first, J. Stuart Crockett, qualified as the ad- ministrator with the will annexed of his mother, and afterwards as committee of his brother, Henry E. Crockett, who had be- come non compos mentis. On the 13th of January, 1880, the said J. Stuart Crockett, as administrator and com- mittee as aforesaid, assigned to the appel- lant, Alex. F. Matthews, of Lewisburg, W. Va., the coupons above mentioned, subject to the rights of Gibboney, and so much of the interest of Henry E. Crockett as had not been previously assigned in the bond afore- said. The consideration for this assignment was the sum of $3,500 in cash. In the progress of the cause in the lower court, Matthews, as a defendant, filed an an- swer asserting a claim to the bond and cou- pons by virtue of the assignment, and pray- ing that his answer be treated, if necessary, as a cross bill, which was ordered accord- ingly. To this cross bill J. Stuart Crockett, in his own right and as administrator and commit- tee as aforesaid, filed an answer, which he prayed to be also treated as a cross bill, charging that at the time of the assignment, the defendant, Matthews, was counsel to collect the claims thereby assigned; that he took advantage of his position as counsel to defraud the complainant; that he with- held from him material information as to the value of the securities, and by conceal- ment and misrepresentations obtained the assignment for a grossly inadequate con- sideration. And the prayer of the cross bill was that the assignment be canceled. Matthews answered, denying that he was the complainant's counsel, as charged in the cross bill. He averred that the complainant proposed to him to buy the securities, and that he bought the same for a fair consid- eration. He denied the charges of fraud, concealment, and misrepresentation, and he denied generally the allegations of the cross bill. Testimony was taken, and, the cause com- ing on to be heard, a decree was rendered declaring the assignment, so far as the cou- pons were concerned, to be null and void; and thereupon Matthews appealed. J. W. Caldwell, for appellant. J. A. Wal- ker and D. S. Pierce, for appellees. LEWIS, P. (after stating the facts as above) delivered the opinion of the court. We are of opinion that the decree is erro- neous. A careful examination of the record leaves no room for doubt that the evidence, so far from overcoming, sustains the answer of the appellant in every essential particu- lar. It is unnecessary, therefore, to decide whether an attorney may lawfully purchase from his client, pendente lite, the subject- matter of his employment (as to which, see Rogers v. Marshall, 3 McCrary, 76, 13 Fed. 59; 2 White & T. Lead. Cas. Eq. pt. 2, p. 1216 et seq.); for no such question properly arises in the present case. The appellee Crockett claims that he em- ployed the appellant as his counsel to col- lect the bond and coupons in question in the suit of Gay, etc., v. White Sulphur Springs Co., etc., pending in the district court of the United States for the district of West Vir- ginia, and that he so employed him in the fall of 1877. But this is not only denied by the appellant in his answer and in his depo- sition, but is disproved by the letters of the appellee himself, many of which are filed with the record. Thus, in a letter written from Wytheville, dated January 16, 1878, after referring to certain other matters, he inquires of the appellant, whether he would "like to purchase a balance on three of the White Sulphur coupons (1861, '62, and '63)," and says, "They are held here by Mr. Gib- boney and Robert Crockett in payment of some debts due by my mother's estate," and then he proceeds to give other information respecting them, which would have been wholly unnecessary if the appellant had been previously employed as counsel to collect GROUNDS FOR EQUITABLE RELIEF. liar- thorn. And in a letter to the appellant, dated rhe 24th of the same month, he says, "I will arrange with Mr. Gibboney to get you to collect the bonds," meaning the coupons. It also appears that in April, 1878, in re- spouse to a letter of the appellee, the appel- lant wrote, expressing his willingness to act as counsel in several matters for the former, including the collection of the Gibboney coupons. At the same time he drew up a written agreement, stipulating for the meas- ure of compensation for his services, which be transmitted to the appellee to be ex- ecuted. But the latter, instead of executing and returning the agreement, copied it, tak- ing care, however, to omit so much as relat- ed to the coupons; and this modified paper, with his signature attached, he inclosed to the appellant. Yet he files with his deposi- tion, as evidence in the cause, the original draft of the agreement, signed by himself,— when, it does not appear, — but which never became a perfect instrument. It also appears that he at one time depos- ited with the appellant "the Gibboney con- tract" as collateral security; that is, he pledged as collateral the interest of the es- tate of his testatrix in the coupons in ques- tion after satisfying the Gibboney debt. Subsequently, their affairs, in respect to which the collateral was pledged, having been satisfactorily arranged, he wrote the appellant, saying, "I am now entitled to the Gibboney contract given you as collateral;" thus showing that the appellant held the contract, not as counsel, for the collection of the coupons mentioned therein, but as collateral. This letter was dated December 18, 1S79, less than one month' prior to the assignment in question, and it is not pre- tended that the appellant was employed to collect the coupons after the date of that letter. Moreover, the answer avers that prior to and until the assignment of the claims in question they "were represented as attorney and counsel solely and exclusively by the late Hon. Samuel Price," a distinguished member of the West Virginia bar; and the evidence tends to show, if it does not con- clusively show, that such was the fact. In addition to these facts, there are other circumstances disclosed by the record tend- ing to the same conclusion, namely, that the appellant was not at any time the counsel of the appellee in relation to the subject-mat- ter of the assignment in question. The appellee, however, contends that no matter whether the relation of counsel and client existed between the parties or not, the assignment is void, because obtained by fraud. But here again the charge is not sustained by the proofs. As to the price for which the sale was made, it is sufficient to say that an executed contract will not be set aside for mere in- adequacy of consideration. It is only in those cases where the inadequacy of price is FET KfJ.JUH — 8 so gross as to lead to the irresistible infer- ence of fraud that a sale made without im- position, between parties standing on equal- ground, will be rescinded by a court of eq- uity. "And the inequality amounting to fraud must be so strong and manifest as to shock the conscience and confound the judg- ment of any man of common sense." Chan- cellor Kent in Osgood v. Franklin, 2 Johns. Ch. 1. 23. "Where a legal capacity is shown to ex- ist, that the party had sufficient understand- ing to clearly comprehend the nature of the business, that he consented freely to the spe- cial matter about which he was engaged, and no fraud or undue influence is shown to have been used to bring about the result, the' validity of the disposition cannot be im- peached, however unreasonable or imprudent or unaccountable it may seem to others. It is not the propriety or impropriety of the disposition, but the capacity to make it, and the fact that it was freely made with the full assent of the grantor, that must control the judgment of the court." Greer v. Greers, 9 Grat. 330. See, also, Eyre v. Potter, 15 How. 42; Dunn v. Chambers, 4 Barb. 376; Crebs v. Jones, 79 Va. 381. In the light of these principles and the evi- dence in the case, the question as to alleged inadequacy of consideration may be laid out of view. Nor can the decree be sustain- ed on the ground of actual fraud. In At- lantic Delaine Co. v. James, 94 U. S. 207,. the court say: "Canceling an executed con- tract is an exertion of the most extraordina- ry power of a court of equity. The power" ought not to be exercised except in a clear - case, and never for an alleged fraud, un- less the fraud be made clearly to appear." So, in Hord v. Colbert, 28 Grat. 49, it is< said that "the party alleging fraud must- clearly and distinctly prove it. If the fraud! is not strictly and clearly proved as it is; alleged, although the party against whomi relief is sought may not have been perfectly clear in his dealings, no relief can be had."* See, also, Gregory v. Peoples, 80 Va. 355. These principles are now so firmly estab- lished in our jurisprudence as that they may be said to be axiomatic; and they are de- cisive of the present case. No question as ic a devastavit and a fraudulent participation.- therein is made in the pleadings or other- wise; and not only does the evidence iaiE to establish the fraud alleged, but it does- not warrant even a suspicion against the good faith and integrity of the appellant in the whole course of his dealing in relation to- the matters in controversy. Nothing was- concealed or misrepresented; all was fair and open. The record shows that the appel- lee had the means of knowing, and proba- bly did know, as much in relation to the- value of the securities in question as the- appellant did; and it shows, moreover, that the sale was deliberately made, without aur undue influence being used by the appel- 114 GROUNDS EOR EQUITABLE RELIEF. lant or by any other person. The order of the federal court capitalizing the interest on the coupons, to which reference is made in the cross bill, was not entered until long after the assignment to the appellant, and there is nothing to show that such an order had been asked for, or even contemplated, before the assignment was made. In short, the evidence disproves the charge of fraud, and the circuit court, instead of canceling, ought to have upheld the assign- ment, and decreed accordingly. The decree will therefore be reversed, and a decree entered here in conformity with this opinion. Decree reversed. GROUNDS EOR EQUITABLE RELIEF. 115 YATJGER v. SKINNER et al. (14 N. J. Eq. 389.) Chancery Court of New Jersey. May Term, 1862. Mr. Vanatta, for plaintiff. Mr. Chandler, for defendant. GREEN, Ch. The bill charges that, on the eighteenth of February, 1859, the com- plainant entered into a written agreement with Abraham Skinner, one of the defend- ants, by which Skinner covenanted to con- vey to the complainant a farm of one hun- dred and thirty-five acres, in the county of Morris, for the consideration of six thou- sand seven hundred and fifty dollars, the title deed and possession of the premises to be delivered, and the consideration to be paid or secured on the first of April then next. On the fourth of April, in pursuance of the contract, the deed and possession of the premises was delivered to the com- plainant, who thereupon paid to the grantor one thousand dollars in cash and notes, and gave his bond for five thousand seven hundred and fifty dollars (the balance of the consideration), secured by mortgage up- on the said premises. Subsequent to the agreement the complainant sold the farm upon which he then resided, and moved up- on the farm purchased of Skinner, and has since made valuable permanent improve- ments thereon. On the seventh of April, 1860, a petition was filed in this court by Henry K. Skin- ner, a son of the grantor, praying that a commission of lunacy issue, in which peti- tion, verified by the oath of the petitioner, it is alleged that the said Abraham Skin- ner then was, and for two years past and upwards had been, so far deprived of his reason and understanding that he was ren- dered altogether unfit and unable to govern and care for himself or to manage his af- fairs. A commission of lunacy thereupon is- sued, by virtue of which an inquisition was taken, on the eighteenth of April, 1860, whereby it was found that the said Abra- ham Skinner was at the time of taking the said inquisition a lunatic and of unsound mind, and did not enjoy lucid intervals, so that he was not capable of the government of himself or of his estate or property, and that he had been in the same state of lunacy for the space of one year then last past and upwards. The inquisition did not find whether the said Abraham Skinner had alienated any lands or tenements after he became lunatic nor expressly whether he was or was not of unsound mind when he so conveyed to the complainant. The in- quisition was subsequently confirmed, and Henry K. Skinner appointed the guardian of the lunatic whose lunacy still continues. The bill charges that the contract for the purchase of the said farm was made by the complainant in good faith, without any knowledge or suspicion of insanity in the grantor; that after the execution of the con- tract, and after the complainant had sold the farm where he previously resided, and had taken possession of the farm purchased of Skinner, but before the delivery of the deed, he heard reports questioning his capacity to make a deed, but was induced, as well by the advice of others as by the opinion of the son and agent of Skinner, to complete the contract and take the title; and that at the time of the execution of the papers the said Abraham Skinner appeared to be, and in the opinion of the complainant was, of sound mind, and in every respect competent to transact business. The bond and mortgage given by the com- plainant for the farm having become due, the complainant has been called upon ■ Tor payment, which he is ready and willing to make, provided his title is good, and the premises assured to him in pursuance of the terms and effect of his deed; but he insists that he ought not to be required to pay the purchase money if the deed is voidable by reason of the grantor being of unsound mind at the time of making the same. He fur- ther alleges that he is now able, if the valid- ity of the deed were judicially called in question, to prove that the purchase was made upon his part in perfect good faith, and for a full and fair price, and ftiat the grantor had sufficient capacity at the time of making the contract and the deed to make the same; or if he was not, that the complainant was entirely ignorant of his in- capacity. But as the validity of the title may be hereafter called in question when the witnesses are dead, or the facts lost , from memory, the complainant is advised that he cannot safely pay the purchase mon- ey for the said farm until it be judicially ascertained and determined that the pur- chase was made by the complainant in good faith for a fair price, and without knowing that the grantor was a lunatic, and that the complainant's deed should be confirmed and declared valid against the grantor and his heirs. The bill prays either that it may be declared and decreed that the deed was made for a full and fair consideration, and in good faith on the part of the complainant, and that the said deed is valid and binding upon the grantor and his heirs forever, the complainant thereupon proffering himself ready to pay the balance of the purchase money; or if the court should be of opinion that for any cause the deed is not valid, and ought not to be confirmed, that it may now be avoided, the bond and mortgage of the complainant given for the consideration mon- ey directed to be cancelled, the money ad- vanced on the purchase to be repaid with in- terest, and the complainant paid the value of the permanent improvements made upon the farm since the purchase, and that in the meantime the defendants may be restrained 116 GROUNDS FOR EQUITABLE RELIEF. "ronj prosecuting at law or in equity for the recovery of the amount due upon the said bond and mortgage. The answer of Henry K. Skinner, the guardian of the lunatic, admits all the ma- terial charges and allegations of the bill touching the sale and conveyance of the said farm and the payment and security of the consideration. It does not deny the ca- pacity of the grantor, but on the contrary, insists that at the time" of the conveyance there was no reason to question the sanity or capacity of the grantor; that his insanity was not developed until the autumn of 1859, some months after the execution of the deed. It denies that the complainant had any just ground for fear or apprehension touching the validity of his title, or that, upon the statements contained in the bill, there was any sufficient reason for the in- stitution of this suit. Evidence has been taken, and the cause is brought on for final hearing upon the plead- ings and proofs. The complainant's bill of complaint is in the nature of a bill quia timet, filed by the purchaser against the vendor of real estate for the better protection of his title. The contract for the purchase was made on the eighteenth of February, 1S59. The convey- ance was made on the fourth of April fol- lowing. A commission of lunacy was after- wards Ifesued out of this court, and by an inquisition, taken on the eighteenth of April, I860, the vendor was found to be a lunatic, and to have been in the same state of lunacy for the space of one year then last past and upwards. At the time of the conveyance, the com- plainant gave a mortgage upon the premises for five thousand seven hundred and fifty dollars of the purchase money. The mort- gage debt is now past due, and payment has been demanded. The complainant proffers himself ready to pay the purchase money, but alleges that his title is imperilled by the inquisition and decree of this court, and asks either that his title shall be declared valid, or that it shall be set aside, the bond and mortgage of the complainant given for the purchase money ordered to be given up to be cancelled, and the parties restored to ihe condition in which they were before the purchase. That the complainant's title is clouded, and its security imperilled, by the proceed- ings and decree of this court, cannot be questioned. The date of the conveyance is overreached by the inquisition of lunacy. If it be said that the terms of the inquisition, "a year and upwards," do not necessarily cover the date of the conveya nee, which was a year and fourteen days prior to the date of the inquisition, still the language is broad enough for that purpose, and may operate as prejudicially to the complainant's rights as though the inquisition in unequivocal terms overreached the date of the conveyance. Ta- ken in connection with the proceedings in the cause, with the facts stated in the peti- tion, and with the omission of the usual clause of the inquisition, that the lunatic, had or had not aliened any of his lands dur- ing his lUDacy, the inquisition must preju- dice the security of the complainant's title, to what extent it is not material to decide. Upon a bill filed on behalf of his heirs to avoid the title on the ground of lunacy an issue would be awarded. Upon that issue the inquisition is competent evidence. It would throw the burthen of proof upon the purchaser. No statute of limitations runs against the lunatic. A bill to set aside the title on the ground of the lunacy of the ven- dor may be filed ten, twenty, or even thirty years after the date of the conveyance, when the witnesses may be dead or the recollec- tion of facts have partially or totally per- ished. In the recent case of Price v. Ber- rington the conveyance was made in 1809. A commission of lunacy issued against the vendor in 1837, and he was found by the in- quisition to have been a lunatic without a lucid interval from the year 1796. In 1836, a bill was filed in the court of chancery to set aside the conveyance. In 1840, an issue was directed to try the lunacy. In 1848, the issue was tried, and lunacy found by the jury, and in 1849 the deed of 1809 was de- clared void as against the grantor and his representatives. And although this decree was subsequently reversed upon appeal, the case affords a striking illustration of the ex- tent to which questions touching the lunacy of a grantor may cloud and imperil a title. 7 Hare, 394, 3 Macn. & G. 4S6. It was objected, upon the argument, that the inquisition was not competent evidence against third persons. But the rule is well settled, both at law and in equity, that an inquisition of lunacy, though not conclusive, is competent evidence in proof of the lunacy against persons claiming title under the al- leged lunatic. Sergeson v. Sealey, 2 Atk. 412; Frank v. Mainwaring, 2 Beav. 115; Hall v. Warren, 9 Ves. 609; Phil. & Amos, Ev. 545; Covenhoven's Case, 1 N. J. Eq. 27; Whitenack v. Stryker, 2 N. J. Eq. 28; Den v. Clark, 10 N. J. Law, 217; Hart v. Deamer, G Wend. 497. It is upon this ground that a court of equi^ ty will in its discretion permit a purchaser, whose conveyance is overreached by the in- quisition, to traverse the finding of the jury upon his agreeing to be bound by the final decision upon the traverse. Buller's N. P. 216; In re Christie, 5 Paige, 242; Coven- hoven's Case, 1 N. J. Eq. 27. The frame of this bill is unusual, and so far as I am aware without a precedent. This fact alone constitutes no objection to the relief sought, if it can be supported upon principle. If a bill were filed by or on behalf of the lunatic, to avoid the conveyance on the ground of lunacy, and the lunacy were es- HOUND* Ton EQUITABLE RELIEF. 117 tablished, the court, on setting aside the conveyance, would release the purchaser from the payment of the purchase money. On the other hand, where a vendor is found a lunatic from a date subsequent to the time of the contract to purchase, but prior to the execution of the conveyance, the purchaser may enforce the completion of the contract by a bill for specific performance. Owen v. Davies, 1 Ves. Sr. 82; Hall v. War- ren, 9 Ves. 605; Pegge v. Skynner, 1 Cox, Oh. 23. And where the vendor is by an inquisition found lunatic from a date prior to the con- tract of purchase, the other party may file a bill for specific performance, and obtain an issue to inquire whether the defendant was a lunatic, or whether the contract was exe- cuted during a lucid interval; and if the is- sue be found in his favor, he may have a decree for specific performance. So he may ask in the alternative to have the contract either performed or discharged. Frost v. Beavan, 17 Jur. 369, 19 Engf Law & Eq. 25; Pry, Spec. Perf. 73. Nor will a court of equity, on the applica- tion of the lunatic, or those claiming under him, set aside a contract overreached by an inquisition of lunacy, if the purchase be fair, for a full consideration, and without notice of the lunacy to the purchaser, especially where the parties cannot be fully reinstated in the condition in which they were prior to the purchase. Sergeson v. Sealey, 2 Atk. 412; Niell v. Morley, 9 Ves. 478; Price v. Berrington, 3 Macn. & G. 486. These cases show the ground upon which courts of equity proceed in dealing with contracts overreached by inquisitions of lu- nacy, and sustain the principles of the pres- ent bill. The complainant is entitled, if he have acted in good faith, either to have the contract confirmed, and his title declared valid, or to have it declared null and void, and to be released from the obligation of his contract. He ought not to be compelled to fulfil the contract on his part while his title is clouded and its validity imperilled by the proceedings of this court. The evidence fully sustains the allega- tions of the complainant's bill, that at the date of the conveyance, on the fourth of April, 1859, the defendant was not lunatic, but was of sound mind, and fully capable of the government of himself and of the man- agement of his affairs and business. There is, indeed, no conflict in the evidence upon this point aside from the inquisition itself and the affidavit of the petitioner, upon which the inquisition was issued. The tes- timony of the family of the lunatic, of his physicians, and of his neighbors and ac- quaintances, clearly proves that at the date of the conveyance, and for some time there- after, during a period clearly overreached by the inquisition of lunacy, the defendant was fully capable of transacting business. This fact is fully corroborated by the an- swer, and by the testimony of the son of the defendant, upon whose testimony the inqui- sition issued, and who is now the guardian of the lunatic. He asserts that the aver- ment in the petition, that the lunacy of his father commenced two years prior to that date, was unintentionally and erroneously made, and that in point of fact his lunacy was not clearly developed nor his incapacity for business manifested until the autumn succeeding the date of the commission. Un- der these circumstances, an issue to inquire as to the lunacy is unnecessary. Nor do I deem the existence of the lunacy at the date of the conveyance, on the fourth of April, a controlling circumstance in the cause. The proof is clear that the execu- tory contract to purchase, made on the nine- teenth of February, 1859, was made by the complainant in good faith, and for a full and fair price, when the lunacy of the defendant was neither known nor suspected; that the contract was executed on the fourth of April, in like good faith on the part of the complainant, without the knowledge or be- lief of the existence of incapacity on the part of the defendant. Under these circum- stances, upon the strength of the authorities already cited and the clear dictates of jus- tice, the contract would be upheld and en- forced, even though the incapacity of the grantor at the date of the conveyance should be established. The decree will be made without the al- lowance of costs to either party as against the other. 118 GROUNDS FOR EQUITABLE RELIEF. TATE v. WILLIAMSON. (2 Cat. App. 55.) Court of Appeals in Chancery. Dee. 17, 1866. This was an appeal by the defendant, Robert Williamson, from a decree of Vice Chancellor Wood, setting aside a sale, on the ground that the purchaser stood in a fiduciary relation to the vendor, and did not make a full disclosure to him of all material facts within his knowledge relating to the value of the property. The facts of the case fully appear in the report of the case before the vice chancellor (L. R. 1 Eq. 528) and the judgment of the lord chancellor. Mr. W. M. James, Q. C, and Mr. Little, in support of the decree. Attorney General (Sir J. Rolt), and Mr. Bristowe, for the ap- pellant. Solicitors for the plaintiff: Messrs. N. C. & C. Milne. Solicitors for the appellant: Messrs. Clowes & Hickley. LORD CHELMSFORD, L. C. In this case the vice chancellor has made a decree that an agreement for the sale by the intestate, William Clowes Tate, to the defendant, Rob- ert Williamson, of the undivided moiety of an estate called the "Whitfield Estate," in the county of Stafford, consisting of mes- suages, lands, and coal mines, ought to be set aside, upon the ground of the defendant not having communicated to the intestate all the information which he had acquired with reference to the value of the property, and, in particular, of his not having communicat- ed an estimate of the value of the mines which was obtained by the defendant pend- ing the agreement. The question raised by the appeal is whether any such relation existed between the defendant and the intestate as to render it the duty of the defendant to make the communication. The jurisdiction exercised by courts of equity over the dealings of persons standing in certain fiduciary relations has always been regarded as one of a most salutary descrip- tion. The principles applicable to the more familiar relations of this character have been long settled by many well-known decisions, but the courts have always been careful not to fetter this useful jurisdiction by defining the exact limits of its exercise. Wherever two persons stand in such a relation that, while it continues, confidence is necessarily reposed by one, and the influence which nat- urally grows out of that confidence is pos- sessed by the other, and this confidence is abused, or the influence is exerted to obtain an advantage at the expense of the confid- ing party, the person so availing himself of his position will not be permitted to retain the advantage, although the transaction could not have been impeached if no such confidential relation had existed. Did, then, the defendant, R. Williamson, when he put himself in communication with the intestate, clothe himself with a char- acter which brought him within the range of the principle? In considering this question, it will be nec- essary to bear in mind the situation of both the parties at the time when the agreement for the sale of the property was entered into. The intestate, when he was quite an infant, had become possessed of the property in question independently of his father. He contracted habits of extravagance at the uni- versity, and in consequence of some dis- pleasure which he had occasioned to his father on the subject of his debts, the fa- ther's doors were closed against him. He was thus thrown upon the world at an early age without any one to control him, and with scarcely a friend to counsel him, and towards the close of his life he became addicted to drinking and died prematurely at the age of twenty-four. The defendant is the nephew of ,Mr. Hugh Henshaw Williamson, the great uncle by marriage of the intestate, who had been the trustee and manager of the property, and the receiver of the rents, which latter duty the defendant had for some short time been deputed to perform for him. It does not appear that the defendant by his employment acquired any particular in- formation respecting the property, but as he states in his answer that he had "pre- viously" (to his first interview with the in- testate) "some idea of endeavoring to be the purchaser of the estate, in case the same should come into the market," it is reason- able to suppose that he was not altogether ignorant of its character, and must have formed some idea of its value. I think no stress caE be laid upon the cir- cumstance of Mr. H. H. Williamson having been the trustee of the property. The trus- teeship, as to the intestate's moiety, had come to an end upon his attaining his ma- jority, in July, 1857. The accounts had been settled, and Mr. Williamson, in surrendering his trust, had behaved generously to the in- testate. Though he continued after this pe- riod to receive the rents and manage the property, yet there appears to have been nothing in the office which he undertook after his trusteeship expired which would have prevented his dealing with the intes- tate upon the same terms as a mere stran- ger. Much less could the mere receipt of the rents for his uncle have placed Robert Williamson in a different position from that of any ordinary purchaser. But a new and peculiar relation arose out of the circum- stances which afterwards occurred. In the year 1859 the debts which the intestate owed at the university were causing him consid- erable embarrassment. He had been pressed by Mr. Holloway, acting for his Oxford cred- itors, for payment of an amount of £1,000. He was unable, in consequence of the unfor- UKOU.NDS FOR EQUITABLE RELIEF. 119 tunate quarrel with his father, to apply to him for advice, and, having .before expe- rienced the kindness of Mr. H. H. William- son, he turned to him again in his difficul- ties. The letter by which the intestate made his situation known to Mr. Williamson is not forthcoming. The defendant, in his an- swer, says that he was informed by Mr. H. H. Williamson that it stated he was again involved, and either asked for assistance, or for advice as to the mode of procuring assistance. I should have been glad if we could have seen the terms of this letter, as it might have explained the exact nature of the office which Mr. Williamson was asked to undertake. In the answer to this letter, dated the 30th of July, 1859, which is s'et out in the bill, in paragraph 52, Mr. Wil- liamson invited the intestate to his house, and desired him to bring with him "a cor- rect account of his debts, omitting nothing, and he would see what could be done." The intestate did not accept the invitation, and nothing more was heard of the matter until about the 26th of August following, when Mr. H. H. Williamson received a list of the intestate's debts due to Oxford cred- itors, amounting, as already mentioned, to £1,000. The defendant, in his answer, says "that the list was given to him by Mr. H. H. Williamson, and that he, after perusing the same, remarked that the charges were excessive, and that the bills might probably be settled for half the amount; that Mr. H. H. Williamson thereupon requested him to see the intestate, and ascertain upon what terms he could be relieved from his debts, and, if this could be done for £500 or a little more, he authorized the defendant to advance the intestate that amount on fur- ther security of the property." The defend- ant accordingly wrote to the intestate on the 26th of August, 1859, the letter, which is set out in paragraph 58 of the bill, in which he states that his uncle is not suffi- ciently well to attend to business; that the list of debts owing forms a very heavy amount, which Mr. Holloway expects to have paid immediately; and adds, "I will meet you in the course of a few days in London, upon having a couple of days' notice, and, after hearing your views on the subject, will talk over the matter, and see in what way it fan be arranged." The counsel for the defendant say that his office was merely to see whether a compromise of the debts could be effected, and that, at the time of the purchase, his mission was at an end. One can hardly believe that his advice and assistance could have been understood to be of this limited character. He knew that Mr. Holloway was pressing for immediate payment to the Oxford creditors, and that if he refused to reduce the amount the whole must be paid. It does not appeal- that, if Mr. Holloway had insisted on a payment in full, Mr. H. H. Williamson would not have been disposed to advance a larger sum than that which he had mentioned, as the prop- erty would have been an ample security for any amount required to cover the whole of the debts. And the defendant must have been perfectly aware that the intestate's property in Staffordshire was the only fund out of which the debts could be discharged. The account of the defendant's interview with the intestate we have from the answer alone. He states that he offered to negotiate with the intestate's creditors for an abate- ment of their claims, telling him "that he was authorized by his uncle to advance £500 or more if required" (I suppose he must have added "upon the security of the property"), "but that the intestate positively refused to allow him to ask for any deduction from his debts, saying that any such application would injure his character." The answer then pro- ceeds: "But he at the same time stated that he was desirous to sell his share of the Whit- field estate." Mr. Bristowe, for the defend- ant, said the instant the intestate refused to allow any attempt to compromise his debts, the defendant's office of adviser came to an end, and from that moment the parties, to use the familiar expression, were dealing "at arms' length." I cannot accept this view of the defendant's position. I think that his visit to London was not solely for the compromise, but generally for the arrangement of the in- testate's debts; that he came with authority which involved a dealing with the property of the intestate, as he was to advance his uncle's money on the security of this property. And it may be observed that he had his attention particularly directed to the mode of satisfying the debts by a mortgage. He knew, too, that if the payment of the debts in full was in- sisted upon, and his uncle refused to advance a larger sum than "£500 or a little more," a sufficient amount to discharge all the debts could easily be raised upon the security of the property, which was subject only to a mort- gage for £1,000. It seems to me that the de- fendant had placed himself in a position which rendered it incumbent upon him to give the best advice to the intestate how to relieve himself from his debts, and no one can doubt that if his judgment had been unbiased that he would have recommended a mortgage, and not a sale. But it appears, from the defend- ant's own statement, that he had a reason for not giving his advice. As already stated, he had previously thought of purchasing the estate in case it should come into the market for sale, "an event," he says, "he thought was not unlikely to happen." I asked the defend- ant's counsel what he understood by these words, and was answered that the defendant's expectation was founded upon the inconven- ient nature of property consisting of an undi- vided moiety. This may have first led the defendant to expect that he might have an opportunity of purchasing the property at no distant period, but his belief in the proba- bility of a sale must have been considerably strengthened at the time of his interview with 120 GROUNDS FOR EQUITABLE RELIEF. the Intestate, from the knowledge he had of his embarrassments. Whether the conversa- tion between the defendant and the intestate turned so abruptly from the intestate's refusal to compromise his debts, to the expression of his desire to sell his share of the Whitfield estate, as represented by the defendant or not, it is quite clear to my mind that the confi- dential relation between the parties had not terminated when the negotiation for the pur- chase of the property by the defendant com- menced, and that he did. not then, or at any time afterwards, stand in the situation of an ordinary purchaser. This being so, the defendant, pending the agreement, was bound to communicate all the information he acquired which it was material for the intestate to know in order to enable him to judge of the value of his property. It was admitted that the valuation of Mr. Oope was in the hands of the defendant at the time he wrote his letter of the 10th September, 1859. The defendant is charged with making un- true representations in that letter. If he had done so, it would of course strengthen the case against him, but I find nothing in the letter which amounts to a misrepresentation, nor anything more than a disparagement of the property, not uncommon with a purchaser when he desires to stimulate the owner of the property to close with his offer. Having stated my opinion with regard to the duty cast upon the defendant to communi- cate Cope's valuation to the mtestate, it seems unnecessary to pursue the case further. The fair dealing, in other respects, of the defend- ant during the negotiation, and before the agreement was signed, becomes almost irrel- evant. The refusal of the solicitors to pro- ceed with the agreement unless the young man had some legal assistance, the recommen- dation of the defendant that the intestate should apply to his father for advice, the op- portunity afforded him pending the negotia- tion of consulting any friends who were ■capable of advising him, the reference to Mr. Payne whether merely for the purpose of completing the agreement, or to afford the in- testate an opportunity of obtaining his opinion as to the value, all these considerations are of no consequence, when once it is established that there was a concealment of a material fact, which the defendant was bound to dis- close. Nor, after this, is it of any importance to ascertain the real value of the property. Even if the defendant could have shewn that the price which he gave was a fair one, this would not alter the case against him. The plaintiff, who seeks to set aside the sale, would have a right to say, "You had the .means of forming a judgment of the value of the property in your possession, you were bound, by your duty to the person with whom you were dealing, to afford him the same op- portunity which you had obtained of determin- ing the sufficiency of the price which you offered; you have failed in that duty, and the sale cannot stand." But, in truth, there are strong grounds for thinking that the price agreed to be paid by the defendant is quite inadequate to the value of the property. There is no occasion to weigh the opposite opinion of the engineers and survejors, and to form a conclusion from them. It is sufficient to take the valuation of the mines by Cope, amounting to £20,000, and the valuation of the surface by the defendant's own witnesses, ranging from £10,000 to £11,290, and making every allowance for a reduction of the value of the intestate's share, in consequence of its being an undivided moiety, it will appear that the value, by the defendant's own shew- ing, must have been at the least £14,000. For this property the defendant agreed to pay £7,000 apparently about half the value, and that not at once, but £1,500 was to be ad- vanced to the intestate, which was to bear interest till the day for the completion of the purchase, which advance must have been in- tended to enable the intestate to pay off his debts immediately; £2,000 was to be paid on the 25th March, 1860, and the residue by year- ly instalments in the four following years. It appears to me, upon a careful review of the whole case, that it would be contrary to the principles upon which equity proceeds, in judging of the dealings of persons in a fiduci- ary relation, to allow the purchase by the de- fendant, Robert Williamson, to stand. I am satisfied that the defendant had placed himself in such a relation of confidence, by his undertaking the office of arranging the in- testate's debts by means of a mortgage of his property, as prevented him from becoming a purchaser of that property without the fullest communication of all material information which he had obtained as to its value; that this openness and fair dealing were the more necessary when he was negotiating with an extravagant and necessitous young man, de- prived at the time of all other advice, eager to raise money, and apparently careless in what manner it was obtained; and the de- fendant having, by concealment of a valua- tion which he had privately obtained, "pro cured a considerable advantage in the price which the seller was induced to take, and which even the defendant's witnesses prove to be grossly inadequate, he cannot be per- mitted so to turn the confidence reposed in him to his own profit, and the sale ought to be set aside. Decree affirmed. Petition of appeal dismissed, with costs. GROUNDS FOR EQUITABLE RELIEF. 121 ROSS v. CONWAY et al. (No. 13,341.) (28 Pac. 785, 92 Cal. 632.) Supreme Court of California. Jan. 6, 1892. Department 2. Appeal from superior •court, Sonoma county; S. K. Dougherty, Judge. Suit by James E. Ross against John M. •Conway et al. to annul, on the ground of undue influence, a trust-deed made by his mother, Elizabeth G. Ross, lor the benefit oi defendants. Plaintiff had judg- ment, and defendants appeal. Affirmed. George D. Collins and George A. John- son, (D. M. Delwas, of counsel,) for ap- pellants. John A. Wright, for respondent. HARRISON, J. The plaintiff, as thesole heir of his mother, Elizabeth G. Ross, brought this action to cancel and annul two certain deeds of trust conveying cer- tain real estate in Santa Rosa, executed by his mother, August 11, 1888, and Au- gust 18, 1888, respectively, alleging that at the time of their execution his mother was weak in body, and that her mind was impaired, and that the defendant Con- way, who was the pastor of the Roman Catholic church of Santa Rosa, of which she had been for many years a member, and who was also her spiritual adviser, had thereby acquired great influence over her, and, taking advantage of such in- fluence and of her mental weakness, had caused her to execute the said deeds of trust for the benefit of himself and of the church of which he was the pastor. The defendants denied these allegations, and the cause was tried by the court, a jury having been called in as advisory to the ■court upon certain issues. The verdict of the jury and the findings of the court were in support of the allegations of the complaint, and judgment was rendered in favor of the plaintiff. A motion for a new trial having been made and denied, an appeal has been taken from both the judg- ment and the order denying a new trial. The two deeds of trust aresubstantially the same, the last one having been executed merely for the purpose of correcting an erroneous description in the first. Under the trust created by the deeds the trus- tees are directed to sell one of the parcels •of land "as soon as practicable," and out •of the proceeds thereof apply $8,000 in the improvement of The other parcel, and pay the remainder of the proceeds to the de- fendant Con way. Out of the income to be derived from the parcel to beimproved, $75 per month was to be paid to the plain- tiff, and the remainder monthly "to the pastor of the Roman Catholic church in Santa Rosa, to be disbursed by him in such manner as he may deem charitable. " Other provisions contingent upon the death or change in circumstances of the plaintiff are unnecessary to be repeated here. The issues before the court were, in •substance, whether Mrs. Ross was, at the respective datPs on which the deeds •of trust were executed, of weak mind, or able to comprehend the provisions of the instruments; and whether the defendant •Conway used the influence which he had .acquired over her, by virtue of being her spiritual adviser, for the purpose of pro- curing her to make such disposition of her property. Upon these issues there was much conflicting evidence before the court, both in the testimony of the witnesses who were examined, as well as in the cir- cumstances under which the instruments were executed, aud the purposes held by Mrs. Ross with reference to her son and to the church. Upon the evidence before it the court found in favor of the plain- tiff. This finding was in accordance with the verdict of the jury, and upon a mo- tion for a new trial, in which the evidence was again brought before the court for consideration, it adhered to its former conclusion. Under these circumstances we cannot disregard its finding. Inas- much, however, as counsel have elabo- rately argued the facts, we have examined the record, and are of the opinion that the evidence fully justifies the findings of the court. The court finds that at the dates of the execution of the deeds of trust Mrs. Ross was of weak mind, and in a dying condi- tion, and that she died on the 20th of Au- gust; that, the defendant Conway was, and had for a long time previously been, the pastor of the Roman Catholic church at Santa Rosa, and the spiritual adviser of Mrs. Ross; that a confidence was re- posed in him by her, and that there ex- isted on his part an influence and appar- ent authority over her arising out of his relation to her as her spiritual adviser, and that lie took an unfair advantage of this influence, and used this confidence and authority for the purpose of procur- ing her to execute the two deeds of trust. The court also finds that Mrs. Ross had in December, 1887, executed a will of all her estate, with the exception of some minor legacies, in favor of the plaintiff herein, and that the provision in the deeds of trust for the defendants, other than the defendant Conway, were without i iiy consideration from them, but were n»i*de solely through the influence of Conway. The rule is inflexible that no one who holds a confidential relation towards another shall cake advantage of that re- lation in favor of himself, or deal with the other upon terms of his own making; that in every such transaction between persons standing in that relation the law will presume that he who held an influence over the other exercised it unduly to his own advantage; or, in the words of Lord Langdai.e in Casborne v. Barsham, 2 Beav. 78, the inequality between the trans- acting parties is so great "that, without proof of the exercise of power beyond that which may be inferred from the nat- ure of the transaction itself, this court will impute an exercise of undue influ- ence;" that the transaction will not be upheld unless it shall be shown that such other had independent advice, and that his act was not only the result of his own volition, but that he both understood the act he was doing and comprehended its result and effect. This rule finds its application with peculiar force in a case where the effect of the transaction is to divert an estate from those who, fc-y the ties of nature, would be its natural >ecip- ients, to the person through whose -nflu- 122 GROUNDS FOR EQUITABLE RELIEF. ence the diversion is made, whether such diversion be for his own personal advan- tage, or for the advantage of some inter- est of which he is the representative. It has been more frequently applied to trans- actions between attorney and client or guardian and ward than to any other relation between the parties, but the rule itself has its source in principles which underlie and govern all confidential rela- tions, and is to be applied to all transac- tions arising out of any relation in which the principle is applicable. It is termed by Lord Eldon "that great rule of the court that he who bargains in any matter of advantage with a person placing con- fidence in him is bound to show that a reasonable use has been made of that con- fidence." Gibson v. Jeyes, 6 Ves. 278. It was said by Sir Samuel Romilly in his argument in Huguenin v. Baseley, 14 Ves. 300, that " the relief stands upon a general principle applying to all the variety ot relations in which dominion may be exer- cised by one person over another," — a principle which was afterwards affirmed by Lord Cottbnham in Dent v. Bennett, 4 Mylne & C. 277, saying that he had re- ceived so much pleasure from hearing V uttered in that argument that the recol- lection of it had not been diminished by the lapse of more than 30 years. That the influence which the spiritual adviser of one who is about to die has over such person is one of the most pow- erful that can be exercised upon the hu- man mind, especially if such mind is im paired by physical weakness, is so conso- nant with human experience as to need no more than its statement; and in any transaction between them, wherein the adviser receives any advantage, a court of equity will not enter into an investiga- tion of the extent to which such influence has been exercised. Any dealing between them, under such circumstances, will be set aside as contrary to all principles of equity, whether the benefit accrue to the adviser, or to some other recipient who, through such influence, may have been made the beneficiary of the transaction. These principles have been so invariably announced whenever the question has arisen that a mere reference to the author- ities will suffice. Norton v. Relly, 2 Eden, 286; Huguenin v. Baseley, 14 Ves. 273; Thompson v. Heffernan, 4 Dru. & War. 291; Dent v. Bennett, 4 Mylne & 0. 269; In re Welsh, 1 Kedf. Sur. 246; Richmond's Appeal, 59 Conn. 226, 22 Atl. Hep. 82; Ford v Hennessy,70Mo.580; Pironiv. Corrigan, 47 N. J. Eq. 135, 20 Atl. Rep. 218; Connor v. Stanley, 72 Cal. 556, 14 Pac. Rep. 306 ; 1 Bigolow, Fraud, 352; Story, Eq. Jur. § 311. The finding of the court that Mrs. Ross did not have any independent advice upon the subject of making the deeds of trust is fully sustained by the evidence. It ap- pears from the record that the attorney who prepared the instruments was intro- duced to her by Conway, and that the on- ly persons with whom she had any inter- view, or from whom she could receive any advice respecting the same, were this at- torney and the defendant Conway. On the 9th of August she bad expressed to- Conway a desire to make a testamentary disposition of her property, and, upon his suggestion that Mr. Collins was a suita- ble person, she requested that he would- send him to her at the hospital where she was lying. He thereupon sought Collins,, and, telling him the wish of Mrs. Ross, accompanied him to the hospital. On their way he told Collins of the mode in which she proposed to dispose of her- property, and, after their arrival, re- mained in the room with them while she- was giving directions about the will, go- ing out, however, occasionally, for short intervals to visit other people in the hos- pital, and leaving the building before the will was formally executed. Two days later he visited Collins at his office, and, after hearing the will read, he made to- Collins a suggestion of some changes, and whether a deed of trust would not be preferable to a will. An appointment was then made between him and Collins- to meet that afternoon in the room of Mrs. Ross at the hospital. After their arrival at the hospital, Conway made a sugges- tion to her that she execute a deed of trust instead of a will, and also other sug- gestions in reference to her disposition of the property. Only himself and Collins, were in the room duringthis consultation^ he, however, leaving it temporarily a few times during the period over which the interview extended, but remaining un- til Collins had received all the directions- that she gave. Assuming that, by virtus of his relation to her, he had acquired an influence over her, it must be held that in the transaction under investigation there was an undue exercise of such influence; that by not insisting that she should have independent advice, and by continu- ing to remain in her presence during the- interview with the only other person whom he permitted to see her, he exer- cised an influence over her actions which, though unseen and inaudible, was none- the less effective in its results. "The ques- tion is," said Lord Ei.eon in Huguenin v. Baseley, 14 Ves. 300, "not whether she- knew what she vvae doing, had done, or proposed to do, but how the intention was produced; win ther all that care and providence was placed round her, as against those who advised her, which from their situation and relation with re- spect to her they were bound to exert on her behalf." While the contract of purchase made between the defendant Conway and the trustees under the in- struments sought to be annulled was ir- relevant to any material issue before the court, and would have been properly ex- cluded from evidence, we are unable to see that its admission could in any way have been prejudicial to the rights of the- appellants. The judgment and order de-^ nyiug a new trial are affirmed. We concur: LAND, J. DE HAVEN, J.; McFAR- Hearing in bank denied. GROUNDS FOR EQUITABLE RELIEF. 123 HOYT v. GODFREY. (88 N. Y. 669.) Court of Appeals of New York. April 11, 1882. Appeal from an order of the general term affirming an order of the special term, where a motion to vacate an order of arrest was denied. In this ease a fraudulent disposition by de- fendant of his property, for the purpose of de- frauding his creditors, was alleged by the complainant. The further facts are stated in the opinion of the court. Samuel O. Mount, for appellant. William E. Tullis, for respondent. TRACY, J. The next and most serious ground relied upon is that the defendant, in contemplation of his assignment, canceled an Indebtedness of $5,806.60 due from his brother Henry. That this cancellation was made is not denied, and the question here is whether it was so made without consideration and with fraudulent intent. The indebtedness had ex- isted since the defendant purchased Henry's interest in the business, during which time the brother had been in the defendant's em- ploy at a salary of $3,000 per year as travel- ing salesman. Nothing had been paid on this indebtedness, and the brother was insolvent. The cancellation was made by a single entry made in the books to the £redit of the brother. When questioned about it in the proceedings supplementary to execution, it is said in the moving papers that the only explanation the defendant gave of it was that Henry was poor and had six children. Assuming that the defendant intended to cancel this indebted- ness for the reason claimed by the plaintiff, does it follow that such act amounts to a disposition of his property with intent to de- fraud his creditors? To constitute such a dis- position of property three things must con- cur; first, the thing disposed of must be of value, out of which the creditor could have realized all or a portion of his claim; second, it must be transferred, or disposed of by the debtor; and third, this must be done with In- tent to defraud. Does a debt, payment of no part of which can be enforced by reason of the insolvency of the debtor, constitute prop- erty within the purview of this statute? We doubt it. Shultz v. Hoagland, 85 N. Y. 464. Does such an entry in the books of account amount to a transfer or disposition of the debt? We think not. If made without con- sideration it does not amount to a satisfaction of the debt. The assignee could sue and re- cover judgment for it as if such entry had not been made. But however this may be, if the debtor believed the debt to be worth- less, it could hardly be said that he canceled it with intent to defraud his creditors. That the debt was in fact of no value, and that the defendant so regarded it is apparent from the evidence in the case. He canceled it on the eve of making a general assign- ment for the benefit of his creditors, when he must have known that the books would pass into the hands of the assignee and be open to the inspection of his creditors when its fraudulent character, if it was in fact fraudulent, would be discovered. No false or fictitious entries were made to account for or explain the entry in question. If the defendant believed that this account was of value, and his intent was to cheat and de- fraud his creditors of the amount due him from his brother Henry, it is difficult to un- derstand why he should not have attempted to allay suspicion and prevent investigation by making false entries of credits which would appear, on their face at least, to be honest and fair. The absence of such en- tries, together with the acknowledged worth- lessness of the debt, and the relationship ex- isting between the debtor and creditor, we think sufficiently explain this entry; at least, standing alone, it is not sufficient to sustain the charge that the defendant disposed or his property with intent to defraud his credit- ors. It would at most amount to but con- structive guilt, but the constructive guilt of a debtor who is innocent in fact is not sufficient ground of imprisonment. Actual intent to defraud should be clearly established. Spies v. Joel, 1 Duer, 669; Caldwell's Case, 13 Abb. Pr. 415; Birchell v. Strause, 28 Barb. 296; Krauth v. Vial, 10 Abb. Pr. 139; Pacific Mut. Ins. Co. v. Machado, 16 Abb. Pr. 454. Orders of general and special terms re- versed and motion to vacate order of arrest granted. 124 GROUNDS FOR EQUITABLE RELIEF. CHANDLER et al. v. HOLLINGSWORTH et al. (3 Del. Oh. 99.) Court of Chancery of Delaware. Sept. Term, 1867. E. G. Bradford and Mr. Higgins, for com- plainants. Mr. McCaulley, for defendants. BATES, Ch. The case presented for relief is this: William Chandler, three days before his marriage with the complainant Elizabeth Chandler, while under an engagement of mar- riage with her, made a voluntary conveyance of all his estate, real and personal, thereby, if it be allowed to operate, defeating the right of dower which otherwise would have accrued from the marriage, and also with- drawing from his own control the means he then had, whereby provision mght be made for his intended wife and the issue of the marriage, either through a will or by law in case of his dying intestate. This conveyance was made without notice to her, and, as we must take it, without her knowledge derived in any way whatever before the marriage. Yet no misrepresentation as to his means ap- pears; nor any positive deception as to what was done beyond simple nondisclosure. Nor are we to consider it as an element in the case that Mrs. Chandler, before the engagement, knew that Chandler had held this property or that she had formed any expectations with regard to it. We may now take the legal question pre- sented by such a case. Will a court of equity relieve against a voluntary conveyance by the husband of all his estate, made pending an engagement; or, as the English cases term it, pending a treaty of marriage made without any disclosure to the intended wife or knowl- edge on her part, though without any express misrepresentation or deception practiced by the husband? This is the general question; but it is to be considered in two forms: (1) Will equity relieve, at least so far as to save to the wife her dower in the real estate, even though the conveyance must stand as it affects the personal estate and also the real estate, except as this may be subject to dow- er? (2) Will equity go further, and set aside the deed wholly, thereby admitting to take ef- fect the same consequences which would have followed if no such deed had been ex- ecuted, so that, as Chandler in fact died in- testate, the whole property shall descend or be distributed as in ordinary cases of intes- tacy? Either form of relief will give Mrs. Chand- ler her dower. On the latter depends her claim to a share of the personal estate, and the claim on behalf of the infant complainant as heir at law and distributee. 1. Let us consider the first question. The English court of chancery has from the ear- liest times protected the marital rights of the husband against a fraudulent settlement by the wife pending a treaty of marriage. It is considered that he becomes a purchaser of the wife's property, in consideration of the charge he assumes of her maintenance and the payment of her debts; that this is a right upon which fraud may be committed, and which ought to be protected. Lord Thurlow, in Countess of Strathmore v. Bowes, 1 Ves. Jr. 27. This view has commanded universal consent from the beginning. But until a re- cent date the doubt has been as to what cir- cumstances should be held to render the set- tlement fraudulent,— whether there must have been some misrepresentation or decep- tion practiced upon the husband, such as amounts to actual fraud, or whether mere nondisclosure was sufficient as a fraud in law to invalidate the settlement; especially, whether mere nondisclosure should be fatal where the husband was at the time of the marriage ignorant as well of his wife's hav- ing held the property as of its having been disposed of away from him. The first full examination of this subject was in Countess of Strathmore v. Bowes (de- cided in 1789) supra. That was a bill filed by Bowes, the husband, to set aside a settle- ment made before marriage by his wife, the Countess of Strathmore. There was also a cross bill filed by the wife to set aside a deed revoking the settlement, on the ground of duress by the husband in obtaining it from her. First, upon an issue directed to inquire whether the deed of revocation was obtained by the duress, and, a verdict so finding, that deed was set aside. 2 Brown. Ch. 345. Then the cause came to be heard upon the bill to set aside the settlement, before Justice BuIt ler, sitting for the lord chancellor. He de- creed in favor of Lady Strathmore. Upon a rehearing before Lord Chancellor Thurlow, the decree was affirmed; and, finally, it was affirmed again on appeal to the house of lords. The argument before Justice Buller and his opinion are reported in 2 Cox, Oh. 28. The rehearing before the lord chancellor, with his opinion, are reported both in Cox, Ch. and in 1 Ves. Jr. 22. Upon the rehearing the arguments are best reported in Ves. Jr., but the opinion of Lord Thurlow, in Cox, Ch. As a decision the case is of no importance upon the question before us, since the settlement made by Lady Strathmore was not a fraud upon the marital rights of her husband under any— the most liberal— construction of fraud. It was made before she knew Bowes, her future husband, even pending a treaty of mar- riage with another man, and with his con- sent; and her marriage to Bowes was itself obtained by a gross fraud on his part. But the case is valuable as containing a full re- view of all the prior decisions. Justice Bul- ler considered that the decisions had gone only so far as to relieve the husband In cases of some actual fraud practiced upon him, and he so lays down the rule. The re- sult, he says, is "that, if the wife is guilty of any fraud, and holds out to the husband- that GROUNDS FOR EQUITABLE RELIEF. 125 there is nothing to interfere with his rights, then any deed executed by her in prejudice of such representation shall be void." Bare concealment he held not to be sufficient. 2 Cox, Ch. 30. Lord Thurlow, though it did not affect the result of that case, seems to have held to the more liberal construction of frauds, which includes concealment as well as positive misrepresentation. In his opinion (1 Ves. Jr. 28) he says: "If a woman, during the course of a treaty of marriage with her, makes, without notice to the intended hus- band, a conveyance of any part of her prop- erty, I should set it aside, though good prima facie, because affected with that fraud." It is true, according to Justice Buller's view, that the early decisions were upon cases of actual misrepresentation or deception, but it is also true that the distinct question whether bare concealment was itself fraud had never before been raised; and therefore the cases prior to that of Strathmore v. Bowes are to be considered rather as presenting examples of fraud as they occurred in fact, than as de- ciding in what fraud on marital rights must consist so as to limit the construction of it Lord Thurlow must so have regarded them in laying down his view of fraud in terms more comprehensive than Justice Buller had done, embracing in his definition mere concealment, which Justice Buller had expressly excluded. The later decisions in England and America have sanctioned the view of Lord Thurlow. The first of these is Goddard v. Snow, 1 Russ. 485, decided by Lord Gifford, master of the rolls, in 1826. In that case, the wife, ten months before her marriage, settled to her separate use for her life, and subject to her appointment after her death, two sums of money, £900 in all, being not the whole of her estate. Her intended husband was ignorant both of her possession of the funds and of the settlement made of them, and so continued until after her death, when he filed his bill to set aside the settlement as one made in fraud of his marital rights. No actual misrepresentation was alleged, nor deception other than was implied in the concealment. Here the precise question was presented whether bare concealment was in itself a fraud. In the argument and deci- sion of this case, Countess of Strathmore v. Bowes was fully reviewed, and the opinions of Justice Buller and Lord Thurlow consid- ered. Concealment alone was held to be a fraud, and the settlement was set aside. Next is a case in which the subject is con- sidered by Lord Brougham, though the deci- sion went upon other grounds. St. George v. Wake, 1 Mylne & K. 610. Lord Brough- am raises the question, and upon a review of the cases says that in none, except God- dard v. Snow, had there been a positive de- cision avoiding a settlement by the wife on the mere ground of want of knowledge by the husband. "Yet," he proceeds to say, "it is certain that all the cases in which the subject is approached treat the principle as one of undoubted acceptance in this court; and it must be held to be the rule of the court, to be gathered from a uniform cur- rent of dicta, though resting upon a very slender foundation of actual decision touch- ing the simple point." This was in 1833. In England v. Downs (1840) 2 Beav. 522, in which the question concerned the validity of a settlement made by a widow upon chil- dren of a former marriage before a second marriage, the master of the rolls, Lord Lang- dale, considered it not sufficiently proved that the settlement was made pending a treaty of marriage; or, if so, that it was concealed up to the time of the marriage; and on these grounds he sustained the set- tlement. But he states the law quite fully on the point before us, and clearly in ac- cordance with Goddard v. Snow, that mere concealment is sufficient to avoid an ante- nuptial settlement by the wife. He adds a qualification, not necessary to be here con- sidered, viz. that the concealment is evi- dence of fraud, rather than fraud per se, and therefore is open to explanation; so that cases may occur in which noncommuni- cation would not be held fraudulent. Next is Taylor v. Pugh (1842) 1 Hare, 608. In this case, a settlement made before mar- riage, to the exclusion of the husband, was sustained on the special ground that the husband had previously seduced the wo- man, thus putting her in a situation in which she must submit to a marriage with- out being able to stipulate for a settlement out of her own property. In his opinion, the vice chancellor, Sir James Wigram, no- tices, with strong disapproval, the argument, that to avoid such an antenuptial settlement by a wife, without the intended husband's knowledge, actual fraud or deception must be proved; and he cites as the true rule a state- ment from 2 Ropers, Husb. & Wife, 162, that "deception will be inferred if, after the com- mencement of the treaty for marriage, the wife should attempt to make any disposi- tion of her property without her intended husband's knowledge or concurrence." It is true that the cases cited subsequent to that of Goddard v. Snow give only the dicta of judges in support of the rule of that case; but they show at least a concurrent judicial opinion, from that case down, in favor of the rule which holds mere con- cealment to be at least evidence of fraud. The real doubt has been whether the con- cealment should, in all cases, per se avoid the settlement, or whether a settlement not disclosed to the husband might, neverthe- less, be sustained upon such equitable con- siderations as the meritorious character of the objects provided for, such as children of a former marriage (Hunt v. Matthews, 1 Vern. 408; King v. Cotton, 2 P. Wms. 675); so the poverty of the husband and his in- ability to make any settlement upon his wife (King v. Cotton, supra; St. George v. Wake, 1 Mylne & K. 610); so the fact that 126 GROUNDS FOR EQUITABLE RELIEF. the settlement is of part only of the wife's property, which was the ground in De Man- neville v. Crompton, 1 Veas. & B. 354. The only equitable consideration relied up- on in the pending case was that Mrs. Chand- ler, as we must assume, had no knowledge that William Chandler had held the prop- erty in controversy; and hence the expecta- tion of it could not have been an induce- ment to the marriage. But this circum- stance is certainly immaterial. The true ground of relief is not the disappointment of an expectation, but fraud upon a legal right; that is, the right to a marriage with- out any secret alteration of the circum- stances of the parties as they stood at the time of the engagement. The husband's ignorance of the property settled, though urged in Goddard v. Snow and Taylor v. Pugh as a ground for sustaining the settle- ment, was expressly overruled and was dis- approved in England v. Downs. In the lat- ter case Lord Langdale says: "If both the property and the mode of its conveyance pending the marriage treaty were concealed from the intended husband, as was the case in Goddard v. Snow, there is still a fraud practiced on the husband. The nonacquisi- tion of property of which he had no notice is no disappointment; but still his legal right to property actually existing is defeat- ed, and the vesting and continuance of a separate power in his wife over property which ought to have been his, and which is, without his consent, made independent of his control, is a surprise upon him, and might, if previously known, have induced him to abstain from the marriage." In Tay- lor v. Pugh the same consideration was re- jected by the vice chancellor; and he rea- soned with great force that no equitable •considerations arising out of the circum- stances of the particular case, such as those before referred to, shall excuse a conceal- ment from the husband, or sustain a settle- ment made without his knowledge. In this country the ignorance of the hus- band of a settlement by the wife pending a treaty of marriage has of itself been uni- formly held fatal to the settlement, though no actual misrepresentation or deceit might appear. The cases are collected in 1 White & T. Lead. Cas. Bq. 317. See, especially, Lin- ker v. Smith, 4 Wash. C. C. 224, Fed. Cas. No. 8,373; Tucker v. Andrews, 13 Me. 124; Logan v. Simmons, 3 Ired. Eq. 487; Spencer v. Spencer, 3 Jones, Eq. 404, 409; Poston v. Gillespie, 5 Jones, Eq. 258; Ramsay v. Joyce, 1 McMul. Eq. 236 (in which latter case an issue was directed to the single question whether the husband had knowledge of the settlement); and Manes v. Durant, 2 Rich. Eq. 404. In North and South Carolina the whole subject of fraud on marital rights has been examined in a series of cases con- temporaneous with the later English deci- sions, and without reference to them, but reaching the same conclusion, viz. that no antenuptial settlement by the wife can be valid if made without the husband's knowl- edge; it matters not how meritorious may be the objects provided for by the wife, or what may be the circumstances of the hus- band. He is considered as having rights springing out of the treaty of marriage, not to be controlled by any equitable considera- tions between the wife and third person. And in North Carolina the result reached by frequent investigations of the subject has been to establish a rule requiring, in order to sustain a settlement by the wife, not only that the husband have general knowledge of her intention to make one, or that she has done so, but requiring his consent to the very act or instrument by which the settle- ment is made. Spencer v. Spencer, 3 Jones, Eq. 409; Poston v. Gillespie, 5 Jones, Eq. 262. We see, then, both in England and in this country, since the decision of Countess of Strathmore v. Bowes, and the cases prior to it, the course of judicial opinion has tended more and more to strengthen the protection of marital rights against settlements made to their prejudice (1) by enlarging the ground of invalidity. This originally was only actual fraud, evidenced by positive mis- representation or deceit, but now it includes also constructive fraud, such as arises from mere nondisclosure; and (2) by excluding all the exceptions founded on equitable consid- erations in the particular case, which were originally allowed to support such settle- ment; thus making in all cases the hus- band's knowledge, at least, and in some courts his positive assent, essential to the validity of a conveyance or settlement made after an engagement to marry. Now, wishing to lay down a rule only for the case presented, it is enough to say that this court will protect a husband against a voluntary conveyance or settlement by the wife of all her estate, to the exclusion of her husband, made pending an engagement of marriage, without his knowledge, prior to the marriage, even in the absence of express misrepresentation or deceit, and whether the husband knew of the existence of the property or not. The concealment of what it is the right of the husband to know, and what it is the duty of the wife to disclose, is itself fraud in law. It is a doctrine of equity, not so fully developed at the date of Strathmore v. Bowes as now, that the concealment, to the prejudice of another party with whom one is dealing, of facts which, if known to him, might affect his decision, and which there is an obligation arising out of the transaction to disclose, is a fraud. It is so treated in equity without respect to the motive of the party in the concealment, being what is term- ed a "constructive fraud." But whether a conveyance or settlement made under the cir- cumstances I have stated is always void, or whether it may be sustained upon sucn equi- table considerations as were admitted in the GROUNDS FOR EQUITABLE RELIEF. 127 «arlier English cases, and in St. George v. Wade, 1 Mylne & K. 610, such as the reason- ableness of its provisions as being made tor children of a former marriage, or its embra- cing only a part of the wife's estate, or such as the husband's inability to make a settle- ment upon the wife, I leave as questions open in this state until they arise judicially. We now reach a question which was dis- cussed with much earnestness and ability on both sides: Will equity extend to the wife the like protection against an antenuptial conveyance by her husband which we have seen it affords to the husband against her? After a patient examination of the argu- ment and authorities, I find no just ground of discrimination against the wife. First, dower is a right of property, and, as such, a proper subject of protection; indeed, a right above all other rights of property favored. Again, dower is a marital right, as well as is the husband's interest in the wife's prop- erty. Protection, maintenance, and dower are the rights inuring to her from the marriage; and, though her dower is inchoate only until the husband's death, it is none the less, in his lifetime, a legal right, vested and in- defeasible, except by her own act. This is so far recognized that a release of it by the wife is held a sufficient consideration to support a postnuptial settlement upon her, and to make it available, if bona fide, against the husband's creditors. Ath. Mar. Sett. (27 Law Lib.) 162; Bullard v. Briggs, 7 Pick. 533. Again, the wife is a purchaser of her marital rights, as much so as is the husband. She takes them for a consideration, rendered by her in the marriage, — a consideration not, indeed, the same in kind as that rendered by the hus- band for his marital rights, but, considering all the consequences involved in marriage, what the wife surrenders is in value or meas- ure more, certainly not less, than what she receives. She surrenders her person, her services, her self-control, her means of self- support; and, as to property, far more than the interest she acquires. However, it should be said that whether the wife's dower, as well as the husband's interest in her estate, is to be protected against fraud, depends not at all upon such considerations as the compara- tive value of the consideration rendered by each, or the value of their respective rights, but solely upon the fact that there exists a marital right, which, in common with all legal rights, is a proper subject of legal pro- tection, whether it be itself of more or less value, or whether it spring from a larger or less consideration rendered. If there could be any ground, in addition to the mere ex- istence of a right defrauded, to evoke a swifter interposition for one sex rather than the other, it would be the consideration that the wife, being of the weaker sex, the more needs legal protection. It was argued by the defendant's counsel that in England dower is not protected as a marital right against a conveyance by the husband before the marriage, even though made on the eve of marriage and expressly to exclude the wife, that under the English de- cisions, the husband and wife, in this respect, stand on a different footing. There is no decision upon the precise question, but the weight of opinion is in favor of the position taken. Prior to the statute of uses, estates were largely held in trust; and it was, from the beginning, considered that dower did not attach to a use, even when it was one reserved to the husband under a conveyance made by himself. Whether a conveyance with a use reserved to himself by the husband, made on the eve of marriage, and with the express purpose of barring dower, was, at that period, held to be effectual, does not appear by any decided case. The case Ex parte Bell, 1 Glyn & J. 282, cited in 1 Roper, Husb. & Wife (32 Law Lib.) 354n, that a voluntary settlement made by the husband, though set aside as fraudulent against creditors, prevents his wife's right of dower, cannot be taken as a decision upon the question, since it does not appear whether the settlement was made pending a marriage treaty. The dicta on this point are conflicting. Lord Chief Baron Gilbert is reported to have said that such a conveyance would be fraudulent as to the wife. 4 Cruise, Dig. 416; 1 Roper, Husb. & Wife (32 Law Lib.) 354n. In 1 Crusie, 411, and in 4 Cruise, 416, it is laid down that a secret conveyance by the husband, in trust before marriage, to defeat dower, is void; and the whole doctrine as to antenuptial set- tlements by the wife is expressly applied to conveyances by the husband made under like circumstances. On the other hand, Lord Hardwicke, in Swannock v. Lyford, Co. Litt. 208a, note 1, also reported fully in Park, Dow- er, 382, treats it as admitted "that if a man, before marriage, conveys his estate privately, without the knowledge of his wife, to trustees in trust for himself and his heirs in fee, that will prevent dower." Upon this authority, Park, Dower, 236, so lays down the rule. So, also, does 1 Washb. Real Prop. 161. After the statute of uses, which converted all uses into legal estates, and so admitted dower to attach to them, another mode of avoiding the inconveniences of dower was resorted to !)y the practice of settling jointures in lieu of dower. By a statute of Henry VIII., which was passed to remedy the inconvenient effect of the statute of uses as to dower, the hus- band was authorized- to settle upon his in- tended wife, before the marriage, a jointure, which, if reasonable, was held effectual as an equivalent for dower, and barred it, even though made without the wife's privity, the courts of equity reserving the power to re- lieve the wife against a jointure unfair or merely illusory. Such, after much contro- versy was the construction finally given to this statute in Earl of Buckingham v. Drury, 3 Brown, Pari. Cas. 492, cited in 1 Roper, Husb. & Wife, 477. The effect was that dower, under the English system, became a 128 GROUNDS EOR EQUITABLE RELIEF. precarious, and, in the case of large estates, an infrequent mode of provision for the wife; and hence its value as a marital right, and the importance of protecting it, was the less ap- preciated. Marriage was not presumed to have been contracted in expectation of it, unless upon representations to the wife that she would become entitled to it. This may ac- count for what otherwise must appear as an unjust discrimination made by the English courts of equity in withholding from the wife such protection as is given to the husband against secret antenuptial settlements. Such a reason is suggested in the note to 1 Roper, Husb. & Wife, 354. But in this country, clearly the same reasons do not apply. Her dower is the only provision made by law for the wife out of the husband's real estate. Practically it is a most important resource, and the only form of provision out of real estate enjoyed by her, except under wills. It does, in fact, to a large extent, enter into the wife's expectations in contracting mar- riage, and properly so. It, therefore, ought to receive all the protection accorded to any marital right. To refuse it would, in this country, where jointures are unknown, ren- der the right of dower precarious, if not wholly illusory. In none of the American cases has this subject been thoroughly examined; but so far as they have gone they treat the wife's marital rights and their claim to protection as being on the same footing with those of the husband. In Swaine v. Perine, 5 Johns. Ch. 482, a conveyance was made by a hus- band before marriage, with a view to defeat the wife's dower. The deed was to his daughter, was kept concealed for many years, and possession did not go with it. After the husband's death the widow filed her bill for dower, and it was decreed to her; the deed being adjudged fraudulent as against her. It is true, that in a previous suit, the deed had been held void as against a mortgagee claiming under a mortgage sub- sequent in date to the deed; but the widow was admitted to her dower not at all in con- sequence of the decree previously made, that the deed was void as against the mort- gagee. It was expressly declared to be fraudulent as against her also; and she would have been relieved quite as certainly, had there been no previous controversy be- tween the husband's representatives and an- other party touching the deed. It is also true that this was treated by the chancellor as a case of fraud in fact. It is, then, an authority for the relief of the wife against an antenuptial conveyance by the husband, fraudulent in fact; but whether she should be relieved against a conveyance on the ground of mere nondisclosure is a question not decided in Swaine v. Perine. To the same extent precisely is the ruling of Petty v. Petty, 4 B. Mon. 215. In that case a settlement by the husband, on the eve of marriage, of all his property, upon his children by a former marriage, was declared void so far as it affected the wife's dow- er in the real estate. It was a case of fraud in fact, very gross in its circumstances, be- ing in violation of express representations made to the wife before marriage, in order to induce her consent. This case, like Swaine v. Perine, decides nothing as to the effect of mere concealment. It is, however, in one of its features, a valuable recognition of the meritorious character of dower as a marital right, and of its claim to legal pro- tection; for the wife was relieved upon a bill filed in her husband's lifetime, while her dower was inchoate only, the deed being ad- judged void, lest it should, through delay, become an impediment to her right of dow- er in the event of her surviving the husband. Now, although, in Swaine v. Perine and Petty v. Petty, relief was given against fraud in fact, yet in weighing the effect of these decisions upon the case before us this is to be considered. They recognize the wife's dower to be a marital right, and as such a proper subject of protection in equity against a fraudulent antenuptial convey- ance, placing it upon an equal footing in this respect with the husband's marital rights. Then, with respect to the sort of fraud against which she should be relieved; whether it must be only what is termed fraud "in fact," or whether she should be protected against "constructive fraud," such as bare concealment, the same rule must ap- ply in her favor which we have already seen has become settled for the husband's protection, viz. that constructive, as well as actual, fraud will invalidate an antenuptial conveyance. Two cases, at least, have carried the pro- tection of the wife thus far. One is Cran- som v. Cransom, 4 Mich. 230. A husband, two weeks before his marriage, made a vol- untary conveyance of his lands to his sons, with the design to exclude his intended wife. There was no misrepresentation to the wife; no positive deception. It was a case of mere concealment. The deed was held void on two distinct grounds, viz. the absence of a sufficient delivery, and also that, "being executed secretly, for the pur- pose of cutting off the wife's dower, it was a fraud in law upon her rights accrued di- rectly from the marriage." The other case of this class is Smith v. Smith, 6 N. J. Eq. 515. A husband, on the day of the mar- riage, but before it, without the wife's knowledge, settled property upon himself and a daughter by a former marriage, with intent to defeat dower. Actual misrepresen- tation was alleged by the bill, but denied by the answer. No proof to that effect ap- pears, and the decision does not rest upon any such feature; but the chancellor as- sumes the broad ground that "a voluntary conveyance by a man on the eve of mar- riage, unknown to the intended wife, and made for the purpose of defeating the in- GROUNDS FOR EQUITABLE RELIEF. 12» terest which she would acquire by the mar- riage in his estate, is fraudulent as against her. I see no sound distinction," he adds, "between this case and the like conveyance by a woman under the like circumstances." In 1 Scrib. Dower, 561, there are cited, to the same point, Littleton v. Littleton, 1 Dev. & B. 327, and Rowland v. Rowland, 2 Sneed, 543; but these cases I have not seen. Scribner refers to the American decisions as "not being entirely uniform"; and in 1 Washb. Real Prop. 175, it is said that "the cases are singularly conflicting." On ex- amination of the cases, I find no conflict whatever as to the power of a court of equi- ty to relieve the wife. It is only in courts of law, where a legal seisin is essential to dower, that the claim to it against the hus- band'.s conveyance prior to marriage has been denied; as in Baker v. Chase, 6 Hill, 4S2. The other case cited in Washburn as against the doctrine of Swaine v. Perine is Jenny v. Jenny, 24 Vt. 324. I have exam- ined this case, and think it not relevant to the question, though, not having it by me, I cannot state its circumstances. The rule to be derived from the equity decisions is that the wife's dower will be protected against a voluntary conveyance of the husband, made pending a marriage engagement, under pre- cisely the same circumstances in which the husband is relieved against an antenuptial settlement by the wife. I am therefore of opinion that Mrs. Chand- ler is entitled to dower out of the real es- tate described in the deed of trust, notwith- standing the execution of the deed before her marriage, together with one-third of the rents and profits accrued since her hus- band's death. It appears from the answer that part of the real estate — a lot in Wil- mington — has been sold by the trustees for .f400, its value. Assuming, as it is proper to do, that the purchaser was a bona fide pur- chaser, without notice, the court will not follow this lot into his hands; but the widow is nevertheless entitled, as against the defendants, to an assignment of such a share of the remaining real estate as she would have taken if the lot had remained in their hands; and therefore, in assigning the dower, although it will be assigned only out of the remaining real estate, yet in esti- mating her share of that, the whole real es- tate, including the lot sold, will be consid- ered. 2. It now remains to consider briefly the claim of the complainants to relief beyond the allowance of dower to the widow. The prayer is that the trust deed be declared wholly void, so that the real estate may de- scend under the intestate law, and the per- sonal estate be distributed precisely as if no deed had been executed. This relief the court cannot decree. A court of equity will not interfere to set aside a voluntary conveyance, because the conveyance disappoints hopes or expecta- fet.eq J ur. — 9 tions, however just and reasonable; not even because it violates obligations, if they are only natural or moral ones. Courts of equity, as well as of law, protect only legal rights, and enforce legal obligations; legal, I mean, as distinguished from such as are merely natural or moral. For example, a promise, however solemnly made and bind- ing in morals, if without a consideration, is not enforced in equity any more than at law; nor is the obligation of a parent to provide for children after his death. So ai conveyance will be set aside on the ground of fraud only when it is in fraud of some legal right, and one existing at the time it is made. Now, in this case, we may waive the fact that, as to the infant complainant, he was not in esse at the execution of the trust deed. It is a consideration decisive of the whole of this branch of the case that, even had William Chandler not conveyed his es- tate, his marriage would have vested no rights in it, nor hare restricted his absolute control of it beyond the wife's dower in the real estate. He could, after marriage, have effectually disposed of his whole personal estate and of the inheritance of his real es- tate by just such a trust deed as this. It follows that his control of the property could not be less absolute before the mar- riage than after it; for, otherwise, an en- gagement to marry would be of more force- than marriage itself. Besides, as any dis- posal of property before marriage, which he could as freely have made after marriage, defeated no right, but removed only a bare chance that the complainants might succeed to it if Chandler should continue to hold it and die intestate, the loss of such a chance cannot be treated as the disappointment of a just and reasonable expectation in mar- riage, nor as so altering the circumstances of the husband as to have influenced the decision of the intended wife. Again, it is- clear that this deed would have stood against any attempt by Chandler to dis- pose of the personal estate and the inher- itance of the real estate by another deed or' by will. That he made no such attempt,, but died intestate, so that, as it happened, these complainants would have succeeded to the whole property but for this deed,, cannot affect the deed. A conveyance can be set aside only for causes affecting it when it is made, as for fraud then com- mitted, or for the protection of rights then existing. Its validity cannot be held in sus- pense, to be determined by future contin- gencies. This would subject titles to a dis- tressing uncertainty. But it was argued for the complainants that the deed, being fraudulent in respect to> dower, is, therefore, wholly void, passing no> title whatever; so that the heir at law may- succeed to the real estate, and the dis- tributees to the personal estate, as a conse- quence of the fraud on the right of dower, though they themselves might have no equi- 130 GROUNDS FOR EQUITABLE BELIEF. ty to set the deed aside. Such would be the effect if the deed were illegal; as where it violates the provisions of a statute which avoids the deed itself. It is then a nullity, and stands in the way of no claim which otherwise would be valid. And so, where a conveyance is tainted with fraud in fact, in which the parties claiming under it are im- plicated, such a conveyance is wholly void; for no effect whatever can be given to an instrument actually fraudulent; and there- fore it is that, although a conveyance which is merely voluntary, and not fraudulent in fact, is Invalid only against existing credit- ors, and not against subsequent creditors. Yet, if the conveyance is tainted with actual fraud, it is void altogether, and subsequent creditors are let in. But such is not the ef- fect of constructive fraud. The object of the doctrine of constructive fraud is to pro- tect some right or interest which, in equity, ought to be preserved, against the effect of a conveyance which is in other respects valid; and therefore equity does not avoid the deed altogether, but saves against it the rights or interests which are to be protected. A deed containing some provisions or hav- ing some operation forbidden by statute or public policy, or contrary, as in this case, to some equity, is held invalid only so far as the statute or policy or equity requires, up- on the principle "ut res magis valeat quam pereat." Bredon's Case, 1 Coke, 76; Shep. Touch. 68; Doe v. Pitcher, 6 Taunt. 359; Darling v. Rogers, 22 Wend. 483. Thus a voluntary conveyance, if not fraudulent in fact, passes the title to the grantor, but sub- ject to the rights of existing creditors, which are preserved by raising an implied trust in the grantor. See 1 Story, Eq. Jur. § 371. So in this case the trust deed is effectual between the parties, but equity preserves the right of dower against the real estate in the hands of the grantees. Precisely as at law, dower follows real es- tate conveyed by the husband after the marriage, though the conveyance is other- wise good. It does not seem accurate to say that a deed is void for constructive fraud. The deed is valid; title under it passes, but subject in equity to those rights which are affected by the fraud. Decree for complainant, Mrs. Chandler, in accordance with the foregoing opinion. PEOPEBXY IN EQUITY— TRUSTS. 131 STILL et nx. v. RUBY et al. (35 Pa. St. 373.) Supreme Court of Pennsylvania. Jan. Term, 1860. Error to district court, Philadelphia coun- ty. Scire facias by Mary Ruby, John Ruck- stool, and Eliza A. Ruckstool against Charles Still and Sarah K., his wife, on a mortgage given by the defendants to the female plain- tiffs of the Heart & Hand Female Beneficial Society of Philadelphia.. The following affidavit of defence was filed by one of the defendants: "Charles Still, one of the above-named defendants, and on behalf of his codefendant, being duly sworn, &c, saith: That they have a just and legal defence to the whole of plaintiffs' claim in the above case, the nature and character of which is as follows: That the said Eliza a. Ruckstool, one of the above-named plain- tiffs, before and at the time of the com- mencement of this suit, and at the time of the execution of the mortgage on which said suit is brought, was and still is married to one John Ruckstool, then and yet her hus- band, who is still living, to wit, at Phila- delphia aforesaid, in the county aforesaid; and this deponent for himself and his co- defendant further says, that they have not, nor has either of them, any knowledge of John Ruckstool joined as a party plaintiff in this suit, except as the reputed husband of the said Eliza A. Ruckstool; his name does not appear in the mortgage on which this suit is brought. Nor have this deponent and his codefendant, or has either of them, at any time, had any transactions of busi- ness or otherwise vith him. All of which the deponent expects to be able to prove on the trial of the case." Judgment was rendered for want of a suf- ficient affidavit of defence. J. M. Arundel, for plaintiff in error. Mr. Brinkle and B. A. Mitchell, for defendant in error. WOODWARD, J. The affidavit disclosed no defence whatever. Mrs. Ruckstool, as appeared on the face of the mortgage, was only trustee for the Heart & Hand Female Beneficial Society, in whom the beneficial interest of the mortgage was vested. Femes covert, like infants, lunatics, and others non sui juris, may be trustees, subject, of course, to their legal incapacity to deal with the estate vested in them: Hill, Trustees, 49. The incapacity of Mrs. Ruckstool to sue in her own name was obviated by her husband joining with her. The mortgagors must pay the money as they agreed to do. The judgment is affirmed. 132 PROPERTY IN EQUITY— TRUSTS. DANSER v. WARWICK. (33 N. J. Eq. 133.) Court of Chancery of New Jersey. Oct. Term, 1880. George C. Beekman, for complainant. Joel Parker, for defendant. VAN FLEET, V. C. The complainant is the widow of David C. Danser. She seeks to have a parol trust established and en- forced against the defendant. She alleges that her husband, some months before his death, assigned the bond and mortgage In controversy to the defendant, upon a parol trust or understanding that he would forth- with, or by a short day, transfer them to her. The transfer to the defendant was intended to be merely a step in vesting her with title. The assignment to the defendant bears date February 1, 1875, and Danser died on the 13th day of the following September. The bond and mortgage were in Danser's posses- sion at the time of his death, and have since then been constantly in the possession of the complainant. The defendant has never ask- ed for them, nor attempted to get posses- sion of them. A month or six weeks prior to Danser's death, the defendant directed an assignment to be drawn to the complainant, stating to the person to whom he gave the direction that he must draw it for Danser, -uho would pay him. He, at the same time, said it was right that the old lady— referring to the complainant — should have the bond and mortgage. Danser, at this time, was prostrated by the disease which shortly aft- erwards caused his death. The defendant did not remain to execute the assignment, but said he would return soon and do so. He did not return that day. He was sub- sequently informed, on two or three different occasions, while Danser was living, that the assignment had been drawn and was ready for execution. On each occasion he said he had forgotten or neglected to execute it, but would call soon and do so. He never ful- filled his promise. Two or three weeks after Danser's death, he called for the assignment Danser had made to him, and which he had left when he gave direction for the draft of the one to the complainant, and stated that he meant to do what was right about the matter, but he would not execute the assign meut to the complainant until things were fixed up; Danser owed him. He took both papers, and has never executed the assign- ment to the complainant. This narrative comprises only those facts which are not disputed by either party. The defendant denies that the mortgage was transferred to him subject to a trust, but says, on the . contrary, that the assign- ment was made to satisfy a promissory note he held against Danser, upon which there was due $2,000 of principal and a year and six or seven months' interest. His explana- tion of the preparation, by his direction, of an assignment to the complainant, is this: He says, some time after the execution of the assignment to him, he ascertained that the person who made the mortgage had no title on record for the mortgaged premises; that he went at once to Danser, and told him he had swindled him, and that if he did not take the mortgage back he would make him. He says that Danser replied that the mortgagor's title was all right, but if he was dissatisfied he would pay him his debt, or give him another security, and he could then reassign the mortgage. He further says that it was ultimately arranged that Danser should have two mortgages, which were then liens on his lands, canceled, and execute a mortgage thereon to him, and he was then to assign the mortgage in controversy to the complainant. He says it was after this scheme had been agreed upon that he order- ed the assignment to the complainant to be drawn. These statements present the question of fact to be decided. The counsel of the de fendant, however, insists that, as a matter of law, the bill in this case must be dismiss- ed, regardless of what the evidence demon- strates the truth to be in respect to the trust alleged, his contention being that the trust set up by the complainant is one which can- not be established except by written evi- dence. The trust, it will be observed, affects personal property, and not lands. The ?ub ject of it is a debt. That part of the statute of frauds which enacts that all declarations and creations of trust shall be manifested by writing, and signed by the party creati.'i!;- the same, or else shall be void and of no effect, applies only to trusts of lands, and has no application to trusts of personal prop- erty. A valid trust of personalty may be created verbally, and proved by parol evi- dence. A trust of personal property, almost precisely like the one under consideration, and which had been created by mere spokon words, and was supported by only parol evidence, was upheld by Chancellor William- son in Hooper v. Holmes, 11 N. J. Eq. 122; also Kimball v. Morton, 5 N. J. Eq. 2G; Sayre v. Fredericks, 10 N. J. Eq. 205; Eaton v. Cook, 25 N. J. Eq. 55; 2 Story, Eq. Jur. §972; 1 Perry, Trusts, § 86. A valid trust of a mortgage debt may be created by parol; for, though a trust thus created cannot em- brace the land held in pledge, yet it is good as to the debt, and will entitle the cestui que trust to sufficient of the proceeds of sale, when the land is converted into money, to pay the debt. Sayre v. Fredericks, supra ; Benbow v. Townsoud, 1 Mylne & K. 500; Childs v. Jordan, 100 Mass. 321. It must be held, then, that the trust al- leged in this case is valid, and if it has been sufficiently proved, the complainant is entitled to have it established and enforced. The question then is, has it been proved? „\ high degree of evidence should be required. PEOPEBTY IN EQUITY— TEUSTS. 133 Before the court ingrafts a trust upon a written instrument, absolute on its face, it should require the most cogent proof. Such proof, I think, has been furnished in this case. The undisputed facts make a strong ease against the defendant. He attempts to explain and moderate the force of the one having the greatest weight. I refer, of course, to the fact that he had an assignment drawn to the complainant, and that when he gave the order he said it was right that she should have the bond and mortgage. His attempted explanation has, however, resulted in a series of contradictions which utterly destroy his testimony. By his answer, which is under oath, he says that after he sent his assignment to Ocean county for record, he was informed that the mortgagor had no title on record fir the mortgaged premises, and that he went at once to see Danser, and that an arrange- ment was then made by which Danser was either to pay his debt or substitute another security, and he was then to reassign the mortgage. His assignment was not lodged for record until October 23, 1875. Danser had then been dead more than a month, so that the arrangement, at the time stated, was unquestionably a fabrication. When the defendant came to testify, he swore that, be- .fore he lodged his assignment for record, he had heard, from one George P. Conover, that the mortgagor had no title, and he went at ■once to see Danser. But it is perfectly clear, from the evidence, that Conover could not have given this information until long after Danser' s death; for he did not have it him- self. Conover obtained his information from the mortgages, and the mortgagor swears that he first obtained it from a search marie in December, 187C. The defendant was sub- sequently recalled and re-examined, against the complainant's objection, and without an order for that purpose, and then swore that one Edward P. Jacobus first informed him that the mortgagor had no title, and that this information was given to him very soon after the assignment was made to him. But, upon the examination of Jacobus, it was shown that the search from which he obtain- ed his information was not made until after Danser had been dead more than a month. So it is perfectly clear that the information which the defendant says led to his inter- view with Danser did not come to him u'ntil after Danser was dead, and the conclusion is therefore unavoidable that no such inter- view as he describes took place. The ter- giversation of the defendant upon this point renders his testimony unworthy of credit. I find it impossible to believe him. It must also be remarked that the defend- ant's conduct in relation to the custody of the bond and mortgage, as portrayed by himself, shows very clearly that he did not believe they were his property. He says the bond and mortgage were delivered to him, with the assignment, on the day of the date of the assignment, and that he took them to a hotel, in which he and Danser were jointly interested, and which was un- der the management of Danser, and threw them in a desk in the bar-room. He retain- ed the assignment. He gave them no further care or attention, but carried the assignment to his house, and placed it in his safe. He does not know when or how Danser got pos- session of the bond and mortgage. So far as appears, he has never tried to find out. Dan- ser did not live in the hotel, but occupied a dwelling in the village where the hotel was located. The defendant says, that while Danser was sick, on the occasion of his last visit to him, Danser told the complainant to get the bond and mortgage and give them to him, but that she refused to do so, and, to repeat his own words, "she was just as cross to me as she could be." He did not ask Danser why he had taken them from the desk, nor did he insist upon their be- ing at once surrendered. He never asked for them after Danser's death, nor did he make any attempt to obtain possession of them. Every phase of his conduct evinces a consciousness that he had no right to them, and that any attempt to take them from the possession of the complainant would be met by a resistance which he knew was grounded in right and truth. The evi- dence, in my opinion, fully establishes the trust alleged. The defendant also insists that the trust upon which the complainant's action is founded should not be enforced, because it was concocted to cheat and defraud Dan- ser's creditors. It is enough to say of this contention that no such defence is present- ed by the answer, and that the complain- ant's right to a decree cannot be defeated by a defence she has had no opportunity to meet and disprove. There must be a decree establishing the trust, and requiring the defendant to ex- ecute it The defendant must pay costs. 134 PROPERTY IN EQUITY— TRUSTS. LAMBE v. EAMES. (6 Ch. App. 597.) i Court of Appeal in Chancery. March 10, 1871. John Lambe, by his will, gave his freehold house in Cockspur street, and all his estate, to his widow, "to be at her disposal in any way she might think best for the benefit of herself and family." The testator died in 1851, leaving the widow and children. One of his sons had an illegitimate son, Henry Lambe, bom in the lifetime of the testator, but after the date of his will. The widow died in 1865, having by her will devised the freehold house in Cockspur street to trustees, upon trust for one of her daugh- ters, Elizabeth Eames, but charged with an annuity for Henry Lambe. Henry Lambe filed the bill in this suit to obtain payment of the annuity, which was disputed by Elizabeth Eames, on the ground that the widow had only a power of disposi- tion amongst the family, and that Henry Lambe, being illegitimate, could not take un- der that power. The vice-chancellor, Malins, decided that the devise to the widow was absolute, and that she had therefore power to devise to the plaintiff as reported. L. R. 10 Eq. 267. The defendant Elizabeth Eames appealed. Mr. Bristowe, Q. C, and Mr. W. Barber, for appellant. Mr. Heath, for defendant. Mr. Cotton, Q. C, and Mr. Warner, for plaintiff. JAMES, L. J. In this case my opinion is that the decision of the vice-chancellor is perfectly right. If this will had to be con- strued irrespective of any authority, the con- struction would, in my opinion, not be open to any reasonable doubt. It is the will of a man who was in business as a shopkeeper, and was when he made his will in the prime of life, with a wife and young children, and it is to this effect: [His lordship then read the will.] Now the ques- tion is whether those words create any trust affecting the property; and in hearing case after case cited, I could not help feeling that the officious kindness of the court of chancery in interposing trusts where in many cases the father of the family never meant to create trusts, must have been a very cruel kindness indeed. I am satisfied that the testator in this case would have been shocked to think that any person calling himself a next friend could file a bill in this court, and, under pre- tence of benefiting the children, have taken the administration of the estate from the wife. I am satisfied that no such trust was intended, and that it would be a violation of the clearest and plainest wishes of the testator if we decided otherwise. The testator intended his wife to remain head of the family, and to do what was best for the family. If he had said, "I give the i Irrelevant parts omitted. residue of my property to my three sons, each to take his share, to be at his disposition as he should think best, for the benefit of him and his family," in such a case it would be clear that the testator did not mean to tie the prop- erty up, but to give a share to each son, be- lieving that he would do the best for his fam- ily. But It is said that we are bound by author- ity. The cases cited may, however, be dis- tinguished. In this will there is, in the first place, an absolute gift, and we have to be satisfied that this gift is afterwards cut down. It was also argued that in some cases, as in Crockett v. Crockett, 2 Phil. Ch. 553, the court has decided there was some interest in the children, but did not declare what it was, leaving the matter to be dealt with after the death of the tenant for life. It is possible that in this case there may he some obligation on the widow to do something for the benefit of the children; but assuming that there is such an obligation, it cannot be extended to mean a trust for the widow for her life, and after her death for the children in such shares as she may think fit to direct. That would be to enlarge the will in a way for which there is no foundation; but unless the will has that meaning, what trust is there? I cannot agree that she is to take what she likes, and that what she has not spent is to go at her death for the benefit of her chil- dren. In Crockett v. Crockett, 2 Phil. Ch. 553, it was only decided that the children had some interest; and if the widow fairly satis- fied that obligation, and gave them some in- terest, nothing more could be required. Then this case was said to be like Godfrey v. Godfrey, 2 N. R. 16, 11 Wkly. R. 554. But there the vice-chancellor decided that there was an interest, though he did not define what that interest was. [His lordship then read and commented on the judgment in God- frey v. Godfrey, and said that the ratio deci- dendi in that case was that there was a trust] But it is impossible in this case to say that there was a trust. The testator clear- ly intended her to deal with the property as she pleased, and contemplated that she might risk it in his trade. The other cases cited are merely illustra- tions of the same kind, and do not enable the court to escape from the difficulty of having to decide upon the meaning of the word "fam- ily." It seems to me impossible to put any restriction upon the meaning of that word, or to exclude any person who, in ordinary par- lance, would be considered within the mean- ing. The word might include sons-in-law, or daughters-in-law, and many others. It is equally uncertain what the property is, be- cause, if she could spend any part for her own private purposes, then there might be noth- ing left for the trust. It is impossible to execute such a trust in this court, and if the case stood alone, I should say that no sufficient trust was declared by PROPERTY IN EQUITY— TRUSTS. 135 the will. But If there be any such obligation, I think it has been fairly discharged by the way in which she has made her will; giv- ing part for the benefit of one member of the family, and part to a natural son, wbom she might reasonably think it her duty to benefit. It appears to me, that the decision of the vice-chancellor is right, and that the appeal must be dismissed. 186 PROPERTY IN EQUITY— TRUSTS. RICHARDS v. DELBRIDGB. (L. R. 18 Eq. 11.) Chancery Division. April 16, 1874. Demurrer. The bill filed by Edward Ben- netto Richards, an infant, by his next friend, stated: That John Delbridge, deceased, was possessed of a mill, with the plant, machin- ery, and stock-in-trade thereto belonging, in which he carried on the business of a bone manure merchant, and which was held un- der a lease dated the 24th of June, 1S63. That on the 7th of March, 1873, John Del- bridge indorsed upon the lease and signed the following memorandum: "7th March, 1873. This deed and all thereto belonging I give to Edward Bennetto Richards from this time forth with all the stock-in-trade. John Delbridge." That the plaintiff was the person named in the> memorandum, and the grandson of John Delbridge, and had then for some time assisted him in the business. That John Delbridge, shortly after signing the memorandum^ delivered the lease on his behalf to Elizabeth Ann Richards, the plain- tiff's mother, who was still in possession thereof. That John Delbridge died in April, 1873, having executed several testamentary instruments which did not refer specifically to the said mill and premises, but he gave his furniture and effects, after his wife's death, to be divided among his family. That the testator's widow, Elizabeth Richards, took out administration to his estate, with the testamentary papers annexed. The bill, which was filed against the defendants Elizabeth Delbridge, Elizabeth Ann Richards, and the testator's two sons, who claimed under the said testamentary instruments, prayed a dec- laration that the indorsement upon the lease by John Delbridge and the delivery of the lease to Elizabeth Ann Richards created a valid trust in favor of the plaintiff of the lease and of the estate and interest of John Delbridge in the property therein comprised, and in the good will of the business carried on there, and in the implements and stock- in-trade belonging to the business. The de- fendants demurred to the bill for want of equity. Fry, Q. C, and Mr. Phear, in support of the demurrer. W. R. Fisher (Mr. Southgate, 140 PROPERTY IN EQUITY— TliUSTS. purely remedial and ancillary. It provided for a commission to examine into the abuses of charities already existing, and to correct such abuses. An appeal lay to the lord chancellor. The statute was silent as to the creation or inhibition of any new charity, and it neither increased nor diminished the pre-existing jurisdiction in equity touching the subject. The object of the statute was to create a cheaper and a speedier remedy for existing abuses. The Morpeth Corpora- tion, Duke, Char. Uses, 242. In the course of time, the new remedy fell into entire dis- use, and the control of the chancellor became again practically sole and exclusive. The power of the king, as parens patriae, acting through the chancellor, and the powers of the latter independently of the king, are sub- jects that need not here be considered. Fontain v. Ravenel, 17 How. 379; 2 Story, Eq. Jur. § 1190. The learning developed in the three cases mentioned shows clearly that the law as to such uses, and the jurisdiction of the chan- cellor, and the extent to which it was ex. ercised, before and after the enactment of the statute, were just the same. It is, therefore, quite immaterial in the present case whether the statute was or was not a part of the law of Maryland. The controversy must be determined upon thb general principles of jurisprudence, and the presence or absence of the statute cannot affect the result. Two objections were urged upon our at- tention in the argument at bar: (1) That there is no specification of the foundlings to be provided for, and that there- fore the devise is void for uncertainty. In this connection, it was suggested by one of the learned counsel for the plaintiffs in error that a hospital for foundlings tends to evil, and ought not to be supported. (2) That the devise is void because it creates a perpetuity. The statute of Elizabeth, before referred to, names 21 distinct charities. They are: (1) For relief of aged, impotent, and poor people. (2) For maintenance of sick and maimed soldiers. (3) Schools of learning. (4) Free schools. (5) Scholars iu universi- ties. (6) Houses of correction. (7) For re- pair of bridges; (8) of ports and havens; (9) of causeways; (10) of churches; (11) or sea banks; (12) of highways. (13) For edu- cation and preferment of orphans. (14) For marriage of poor maids. (15) For support and help of young tradesmen; (16) of handi- craftsmen; (17) of persons decayed. (IS) For redemption or relief of prisoners or cap- tives. (19) For ease and aid of poor inhabit- ants concerning payment of fifteens. (20) Setting out of soldiers; (21) and other taxes. Upon examining the early English statutes and the early decisions of the courts of law and equity, Mr. Justice Baldwin found 46 specifications of pious and charitable uses rec- ognized as within the protection of the law, in which were embraced all that were enu- merated in the statute of Elizabeth. Magill v. Brown, supra. It is deemed unnecessary to extend the enumeration beyond those al- ready named. A charitable use, where neither law nor pub- lic policy forbids, may be applied to almost any thing that tends to promote the well-doing and well-being of social man. Perry, Trusts, § 687. In the Girard Will Case, the leading counsel for the will thus defined charity: "Whatever is given for the love of God, or the love of your neighbor, in the catholic and universal sense,— given from these motives and to these ends, free from the stain or taint of every consideration that is personal, private, or self- ish." Mr. Binney's Argument (page 41). The objection of uncertainty In this case as to the particular foundlings to be received is without force. The endowment of hospitals for the afflicted and destitute of particular classes, or without any specification of class, is one of the commonest forms of such uses. The hospital being incorporated, nothing be- yond its designation as the donee is necessary. Who shall be received, with all other details of management, may well be committed to those to whom its administration is intrusted. This point is so clear, that discussion or the citation of authorities is unnecessary. Cases illustrating the subject in this view are large- ly referred to in Perry, Trusts, § 699, and in the note to section 1164, Story, Eq. Jur. See, also, Id. §§ 1164, 1190, and notes. Hospitals for foundlings existed in the Roman empire. They increased when Chris- tianity triumphed. They exist in all coun- tries of Europe, and they exist in this coun- try. There are no beneficiaries more needing protection, care, and kindness, none more blameless, and there are none who have stronger claims than these waifs, helpless and abandoned upon the sea of life. A perpetuity is a limitation of property which renders it inalienable beyond the period allowed by law. That period / is a life or lives in being, and 21 years more, with a fraction of a year added for the term of gestation, in cases of posthumous birth. In this case the devise was in fee to two trustees, and to the survivor of them. They were directed to convey the premises to an eleemosynary corporation for foundlings, whenever congress should create one which the trustees approved. If the will had been so drawn as itself to work the devolution of the title upon the happening of the event named, the clause would have been an ex- ecutory devise. If the same thing had been provided for in a deed inter vivos, a springing use would have been involved; and such use would have been executed by the transfer of the legal title, whenever that occurred. The testator chose to reach the end in view by the intervention of trustees, and directing them to convey at the proper time. This pro- vision in the will was, therefore, a conditional PROPERTY IN EQUITY— TRUSTS. 141 limitation of the estate vested in the trustees, and nothing more. Their conveyance was made necessary to pass the title. The duty with which they were charged was an execu- tory trust. Amb. 552. The same rules gen- erally apply to legal and to equitable estates. They are alike descendible, devisable, and alienable. Croxall v. Shererd, 5 Wall. 268. When such uses are consummated, and no longer in fieri, the law of perpetuity has no application. Franklin v. Armfield, 2 Sneed, 305; Dartmouth College v. Woodward, 4 Wheat. 518; Perrin v. Carey, 24 How. 465. It is intended that what is given shall be per- petually devoted to the purpose of the giver. In the case last named, the will expressly forbade for ever the sale of any part of the devised property. This court held the inhibi- tion valid. Of course, the legislature, or a court of equity, under proper circumsiauceo, could authorize or require a sale to be made. Stanley v. Colt, 5 Wall. 119. There may be such an interval of time pos- sible between the gift and the consummation of the use as will be fatal to the former. The rule of perpetuity applies as well to trust as to legal estates. The objection is as effectual in one case as in the other. If the fatal pe- riod may elapse before what is to be done can be done, the consequence is the same as if such must, inevitably be the result. Possi- bility and certainty have the same effect. Such is the law upon the subject. A devise to a corporation to be created by the legislature is good as an executory de- vise. A distinction is taken between a devise in praesenti to one incapable, and a devise in futuro to an artificial being, to be created and enabled to take. Ang. & A. Corp. § 184; Porter's Case, 1 Coke, 24; Attorney General v. Bowyer, 3 Ves. 714; Inglis v. Trustees of bailors' Snug Harbor, 3 Pet. 99; Sanderson v. White, 18 Pick. 328. At common law, lands may be granted to pious uses before there is a grantee compe- tent to take. In the meantime the fee will lie in abeyance. It will vest when the grantee exists. Town of Pawlet v. Clark, 9 Cranch, 292. See, also, Beatty v. Kurtz, 2 Pet. 566, and Vincennes University v. Indiana, 14 How. 268. Charitable uses are favorites with courts of equity. The construction of all instruments where they are concerned is liberal in their behalf. Mills' v. Farmer, 19 Ves. 487; Magill v. Brown, supra; Perry, Trusts, § 709. Even the stern rule against perpetuities is relaxed for their benefit. "But a gift may be made to a charity not in esse at the time,— to come into existence at some uncertain time in the future,— provided there is no gift of the property in the first instance, or perpetuity in a prior taker." Perry, Trusts, § 736. Archbishop Seeker, by his will, gave £1,000 to trustees for the purpose of establishing a bishop in the British possessions in America. Mansfield, of counsel, insisted that "there being no bishop in America, or the least like- lihood of there ever being one," the legacy was void, and must fall into the residue. Lord Chancellor Thurlow said, "The money must remain in court till it shall be seen whether any such appointment shall take place." Attorney General v. Bishop of Ches- ter, 1 Brown, Ch. 444. A testator devised his real estate to trustees, in trust, with the rents and profits to pur- chase ground in Cambridge, proper for a col- lege, and to build all such structures as should be necessary for that purpose (the col- lege to be called "Downing College"), and to obtain a royal charter for founding such col- lege and incorporating it by that name, in the University of Cambridge. The trustees were to hold the premises devised to them "intrust for the said collegiate body and their suc- cessors for ever." The devise was held to be valid. Attorney General v. Lady Down- ing, 2 Amb. 550. A sum of money was bequeathed to erect a blue-coat school and establish a blind asy- lum, with direction that land should not be purchased, and the expression of an expec- tation that lands would be given for the charities. In answer to the suggestion at the bar that the application of the fund might be indefinitely postponed, it was said, on the other side, that the court would fix a time within which the gift must take ef- fect; and 2 Ves. 547, and 3 Atk. 806, were cited in support of the proposition. The vice chancellor said the cases of Down- ing College and the Attorney-General v. Bishop of Chester seemed to be authorities against the objection, but that the point did not arise in the case before him. It was ob- viated by a codicil to the will, which appears to have been overlooked by the counsel on both sides. Henshaw v. Atkinson, 3 Madd. 307. See, also, Philpott v. St. George's Hos- pital, 6 H. L. Cas. 359. In this case, as in the one we are considering, the trustee was required to approve the designated charity before paying over the money. A testator left a sum of money to build and endow a future church. The question was raised, but not decided, whether the court would hold the fund for an indefinite time. The lord chancellor said: "A gift to a charitable purpose, if lawful, is good, al- though no object may be in existence at the time. This was expressly decided in Attor- ney General v. Bishop of Chester, where the gift was for establishing a bishop in his maj- esty's dominions in America," etc. Sinnett v. Herbert, 7 Ch. App. 237. A testatrix, by her will, directed, among other things, that when and as soon as land should be given for the purpose, as therein- after mentioned, almshouses should be built in three specified places. She further di- rected that the surplus remaining after build- ing the almshouses should be appropriated for making allowances to the inmates. It was held that the fund was well given, >br 142 PROPERTY IN EQUITY— TRUSTS. that the gift to charity was not conditional and contingent, but that there was an abso- lute immediate gift to charity, the mode of execution only being made dependent on fu- ture events. Chamberlayne v. Brockett, 1872, 1873, 8 Ch. App. p. 206. The bearing of this authority upon the case in hand needs no remark. See, also, Mclntire Poor School v. Zanesville Canal & Manuf'g Co., 9 Ohio, 203, and Miller v. Chittenden, 2 Iowa, 315, 4 Iowa, 252. These were controversies relat- ing to real estate. The same point as here was involved. Both gifts were sustained. The judgments are learned and able. The last of this series of cases to which we shall refer is an adjudication by this court. The testator gave the residue of his estate, embracing a large amount of real property, to the chancellor of the state of New York, the mayor and recorder of the city of New York, and others, designating them only by their official titles, and to their respective successors in office for ever, in trust to establish and maintain an asylum for aged, decrepit, and worn-out sailors, the asylum to be called "The Sailors' Snug Har- bor." If the trustees so designated could not execute the will, they were to procure from the legislature an act of incorporation, giving them the requisite authority. Such an act was passed, and the institution was established. The heir at law sued for the property. This court held that the official designations were descrlptlo personarum, and that the trustees took personally. See Bac. Abr. "Grant," C; Owen v. Bean, Duke, Char. Uses, 486; Wellbeloved v. Jones, 1 Sim. & S. 40. Nothing was said as to the capaci- ty of the successors to take. A special act of incorporation was deemed necessary. There being no particular estate to support the final disposition, the latter was held to be an executory devise. This court decid- ed that the gift was valid. That upon the creation of the corporation the title to the property became vested in it, or that the naked legal title was held by the heir at law in trust for the corporation. The points of analogy between that case and this are obvious. There, as here, a future corporation was necessary to give the devise effect. There, as here, there was a possibility that such a corporation might nev- er be created. In both cases the corporation was created, and the intention of the testa- tor was carried into full effect. It is a car- diual rule in the law of wills that courts shall do this whenever it can be done. Here we find no impediment in the way. The gift was immediate and absolute, and it is clear beyond doubt that the testator meant that no part of the property so given should ever go to his heirs at law, or be applied to any other object than that to which he had devoted it by the devise here in question. There are numerous other authorities to the same effect with those last cited. The latter are abundantly sufficient to dispose of this case. It is therefore unnecessary to ex- tend this opinion by pursuing the subject further. Judgment affirmed. PROPERTY IN EQUITY— TRUSTS. 143 HOLLAND et al. v. ALCOCK et aL (16 N. E. 305, 108 N. Y. 312.) Courf of Appeals of New York. February 7, 1888. Appeal from general term, supreme court, Second department. Action by Mary Holland, Ellen Bagley, Catherine Alcock, Ann Bagley, Thomas Bag- ley, and Mary Hanley, heirs at law and next of kin of Thomas Gunning, deceased, against Henry Alcock, impleaded with Frederick Smyth, as executors and trustees under the will of Thomas Gunning, to declare void the residuary clause in such will because of the indefinite designation of the beneficiaries therein. Judgment at special term for plain- tiffs, and at general term for defendants. Plaintiffs appeal. E. H. Benn, for appellants. I. Newton Williams and David McClure, for respond- ents. RAPALLO, J. The third clause of the tes- tator's will is in the following words: "All the rest, residue, and remainder of my es- tate I give and bequeath to my said execu- tors, to be applied by them for the purpose of having prayers offered in a Roman Cath- olic Church, to be by them selected, for the repose of my soul, and the souls of my fam- ily, and also the souls of all others who may be in purgatory." The validity of this clause is the question now presented for ad- judication. The action is brought by five nieces and a nephew of the testator, who claim to be his next of kin and heirs at law, and, as such, entitled to his residuary estate in case the disposition thereof attempted to be made by the third clause of the will is adjudged to be invalid. The estate consists wholly of personal property, and amounted at the time of the testator's death, in 1882, to about the sum of $28,000. By the second clause of his will the testator devised and bequeathed all his estate, real and personal, to his executors, in trust for the uses and purposes set forth in the will, which were to pay certain legacies, amounting in the aggre- gate to about $16,500, and to apply the resi- due as directed in the third clause, before recited. That clause must therefore be re- garded as creating, or attempting to create, a trust of personal property for the purpose specified. The plaintiffs claim that the trust thus attempted to be created is void; that as to the residuary estate the testator died in- testate; and that distribution thereof should be made among the next of kin, etc. The defendant Alcock, one of the executors, de- murred to the complaint. At special term the demurrer was overruled, and the plain- tiffs had judgment. On appeal to the gen- eral term the judgment was reversed, and judgment was rendered in favor of the de- fendant Alcock, thus affirming the validity of the third clause of the will. The plain- tiffs now appeal. Some of the points involved in the case now before us were passed upon in the late case of Gilman v. McArdle, 99 N. Y. 451, 2 N. E. 464. In that case the deceased had in her life-time placed in the hands of the defendant a sum of money, on his promise to apply it to certain purposes during the life-time of the deceased and of her hus- band, and after the death of both of them to pay their funeral expenses, etc., and to expend what should remain in procuring Ro- man Catholic masses to be said for the re- pose of their souls. This court declined to decide whether a valid trust had been cre- ated in respect to the surplus, there being no ascertained or ascertainable beneficiary who could' enforce it; and the majority of the court expressly reserved its opinion up- on that question, disposing of the case up- on the ground that a valid contract inter vivos, to be performed after the death of the promisee, had been established, that there was nothing illegal in the purpose for which the expenditure was contracted to be made, and that there was no want of defi- niteness in the duty assumed by the prom- isor; and we held that as there had been no breach of the contract, but the promisor was ready and willing to perform, he was entitled, as against the legal representatives of the promisee, to retain the consideration. The point upon which the majority of the court in the case last cited reserved its deci- sion is now again presented. There is no contract inter vivos, but the will expressly bequeaths the fund in question to the exec- utors, in trust for the purposes therein spec- ified; one of which is to apply the residuary estate to the purpose of having prayers of- fered in a Roman Catholic Church for the repose of the souls of the testator, of his family, and of all others who may be in purgatory. It is claimed that this disposi- tion contains all the elements of a valid trust of personal property, that there are definite and competent trustees, that the purpose of the trust is lawful, and that it is sufficiently definite to be capable of being enforced by a court of equity, as the court could decree the payment of the fund to a Roman Catholic Church or Churches for the purpose directed by the will. But, if all this should be conceded, there is still one important element lacking. There is no beneficiary in existence, or to come into ex- istence, who is interested In, or can demand the execution of, the trust. No defined oi ascertainable living person has, or ever can have, any temporal interest in its perform- ance; nor is any incorporate church desig- nated so as to entitle it to claim any portion of the fund. The absence of a defined ben- eficiary is, as a general rule, a fatal objec- tion to any attempt to create a valid trust. It is said by Wright, J., in L,evy v. Levy, 33 144 PROPERTY IN EQUITY - — TRUSTS. N. Y. 107, that, "If there is a single postu- late of the common law established by an unbroken line of decision, it is that a trust without a certain beneficiary, who can claim its enforcement, is void, whether good or bad, wise or unwise." It is only in regard to the class of trusts known as "charitable" that a different rule has ever prevailed in equity in England, and still prevails in some of our sister states. Whether the English doctrine of charitable uses and trusts prevails in this state will be consid- ered hereafter. In all other cases the rule as stated by Judge Wright is universally recognized, both in law and in equity. It is claimed that the trust now under re- view is not void according to the general rules of law for want of a defined beneficiary, be- cause the trust is for the purpose of having prayers ottered in a Roman Catholic Church to be selected by the executors. It is con- tended that this is in effect a gift to such Roman Catholic Church as the executors shall select, inasmuch as the money to be expended for the masses would, according to the usage, be payable to the church or churches where they were to be solemnized, and therefore, as soon as the selection is made, the desig- nated church or churches will be the bene- ficiary or beneficiaries, and entitled to the payment; that the trust is therefore, in sub- stance, to pay the fund to such Roman Catho- lic Church or Churches as the executors may select; and that a duly-incorporated church, capable of receiving the bequest, must be deemed to have been intended. Passing the criticisms to which the assumptions contained in this proposition are subject, and consider- ing the trust as if it had been in form to pay over the fund to such Roman Catholic Church as the executors might select, to defray the expense of offering prayers for the dead, the ob- jection of indefiniteness in the beneficiary would not be removed. The ease of Power v. Cassidy, 79 N. Y. 602, is relied upon by the re- spondents as supporting their claim. In that case the bequest was of a fund to the execu- tors in trust, to be divided by them among such Roman Catholic charities, institutions, schools, or charities in the city of New York as a majority of the executors should decide, and in such proportions as they might think proper. The opinion of the court by Miller, J., holds that giving full force and effect to the rule that the object of the trust must be certain and well defined; that the benefici- aries must be either named, or capable of be- ing ascertained, within th,e rules of law ap- plicable to such cases; and that the trusts must be of such a nature that a court of equity can direct their execution, and making no exception in favor of charitable uses, — the bequest should be upheld, as coming within the general rule; that the clause designates a certain class of objects of the testator's bounty, to which he might have made a valid direct bequest, and that by conferring power upon his executors to designate the organiza tions which should be entitled to participate, and the proportion which each should take, he did not impair the legality of the pro- vision, so long as the organizations referred to had an existence recognized by law, and were capable of taking and could be ascertained; that the evidence showed that at the time of the execution of the will, and of the testator's death, there were in the city of New York incorporated institutions of the class referred to in the will, and that a portion of these had been designated by a majority of the execu- tors; that none but incorporated institutions could lawfully have been selected, and that, even if the executors had failed to make a selection or apportionment, the court would have had power to decree the execution or the trust, there being no difficulty in deter- mining what institutions came within the class described by the testator. It must be observed that in the case cited the benefici- aries were confined to Roman Catholic insti- tutions of a certain class in the city of New York. These were necessarily limited in num- ber. By 1 Rev. St. p. 734, § 97, it is provided that a trust power does not cease to be im- perative when the grantee has the right to select any, and exclude others, of the persons designated as the objects of the trust; bi- section 99, that, when the terms of the pow- er import that the estate or fund is to be distributed between the persons designated in such manner or proportions as the trus- tee of the power may think proper, the trustee may allot the whole to any one or more of such persons, in exclusion of the others; by section 100, that if the trustee of a power, with the right of selection, shall die leaving the power unexecuted, its execution shall be decreed in equity for the benefit equally of all the persons designated as ob- jects of the trust; and by section 101, that where a power in trust is created by will, and the testator has omitted to designate bv whom the power is to be exercised, its execu- tion shall devolve on the court of chancery. Regarding these provisions as declarations of general rules applicable to all trust powers, and governing trusts of personal as well as real property, the decision in Power v. Cas- sidy in no manner infringes upon the rule that the designation of a beneficiary, entitled to enforce its execution, is essential to the validity of a trust; and the only point as to which the correctness of that decision is open to any doubt is whether, in fact, the benefi- ciaries in that case were sufficiently defined and capable of ascertainment to enable a court of equity to enforce the trust in their behalf. The view taken in respect to that point was certainly very liberal; but the court has in subsequent cases repeatedly an- nounced that the decision was not to be ex- tended, and it is evident that, without a ma- terial extension, it cannot be made to cover the present case. Here, if the church or PROPERTY IN EQUITY— TRUSTS. 145 churches from among which the selection is to be made are to be regarded as the benefi- ciaries, they are not limited, as in Power v. Cassidy, to a Roman Catholic Church or Churches in the city of New York, but in- clude all the Roman Catholic Churches in the world. No one church, or the churches of any particular locality, can claim the benefit of the bequest. In this respect the case at bar is analogous to that of Prichard v. Thompson, 95 N. Y. 76, where the bequest was of a sum of money to the executors, to be distributed by them "among such incor- porated societies organized under the laws of the state of New York or the state of Mary- land, having lawful authority to receive and hold funds upon permanent trusts for charit- able or educational uses," as the executors, or the survivors of them, might select, and in such sums as they might determine. Th's bequest was held void because of the indefi- niteness of the designation of the benefi- ciaries. The opinion was written by the same learned judge who delivered the opin- ion in Power v. Cassidy, and by him distin- guished from that case on the ground that in Power v. Cassidy the class of beneficiaries was specially designated and confined to the limits of a single city, and to a single reli- gious denomination, so that each one could readily be ascertained, and each had an in- herent right to apply to the court to sustain and enforce the trust; while in the case at bar every charitable and educational institu- tion within two states was included. This case (Prichard v. Thompson) also establishes that the power to the executors to select the beneficiary or beneficiaries does not obviate the objection of the omission of the testator to designate them in the will, unless the per- sons or corporations from among whom the selection is to be made are so defined and lim- ited that a court of equity would have power to enforce the execution of the trust, or, in default of a selection by the trustee, to decree an equal distribution among all the benefi- ciaries. This discussion has proceeded in answer to the claim that the church or churches where the masses were to be sol- emnised were the intended objects of the tes- tator's bounty, and the beneficiaries of the trust; but the correctness of that position is by no means conceded. It is, however, not necessary to discuss it. If the bequest had been of a sum of money to an incorporated Roman Catholic Church or Churches, duly designated by the testator, and authorized by law to receive such bequests, for the purpose of the solemnization of masses, a different question would arise. But such is not this case. The bequest is to the executors in trust, to be by them applied for the purpose of having prayers offered in any Roman Cath- olic Church they may select. It has been argued that the absence of a beneficiary entitled to enforce the trust is not fatal to its existence where the trustee is competent and willing to execute it, and the fet.kq juk. — 10 purpose is lawful and definite; that it is only where the trustee resists the enforcement of the trust that the question of the existence of a beneficiary entitled to enforce it arises. I have not found any case In which this ques- tion has been adjudicated, or the point has been made, and it does not seem to be pre- sented on this appeal. The case now before us arises on a demurrer by the defendant Al- cock, one of the executors, to the complaint, on the ground that it shows no right in the plaintiffs. The complaint alleges that the defendant Alcock, together with Frederick Smyth, were named as executors in the will; that the defendant Alcock did not qualify, and has never acted, as executor or as trus- tee of the alleged trust sought to be created by the third clause, nor participated in any form in carrying out the same; but that his co-executor, Frederick Smyth, has taken pos- session of the whole estate, as such executor and trustee. Smyth is not a party to this appeal. It comes up on the demurrer of Al- cock alone, and there is nothing in the com- plaint to show that he is willing to execute the trust; but, on the contrary, it shows that he has in no manner acted, or qualified him- self to act, therein. But, aside from these considerations, I do not think that the validi- ty or invalidity of the trust can depend upon the will of the trustee. If the trust is valid, he can be compelled to execute it; if invalid, he stands, as to personal property undisposed of by the will, as trustee for the next of kin, and the equitable interest is vested in them immediately on the death of the testator, sub- ject only to the payment of his debts and the expenses of administration. When a trust is attempted to be created without any benefi- ciary entitled to demand its enforcement, the trustee would, if the trust property were in his possession, have the power to hold it to his ovvn use without accountability to any one, and contrary to the intention of the donor, but for the principle that in such a case a resulting trust attaches in favor of whoever would, but for the alleged trust, be equitably entitled to the property. This eq- uitable title cannot on any sound principle be made to depend upon the exercise by the trus- tee of an election whether he will or will not execute the alleged trust. In such a case there is no trust, in the sense in which the term is used in jurisprudence. There is sim- ply an honorary and imperfect obligation to carry out the wishes of the donor, which the alleged trustee cannot be compelled to per- form, and which he has no right to perform contrary to the wishes of those legally or eq- uitably entitled to the property, or who have succeeded to the title of the original donor. The existence of a valid trust capable of en- forcement is consequently essential to enable one claiming to hold as trustee to withhold the property from the legal representatives of the alleged donor. A merely nominal trust, in the performance of which no ascer- tainable person has any interest, and which 146 PROPERTY IN EQUITY— TRUSTS. is to be performed or not as the person to whom the money is given thinks fit, has nev- er been held to be sufficient for that purpose. It is contended, however, that charitable uses and trusts are not subject to the gen- eral rales of law upon this subject, and that the bequest now under consideration is of that class. The distinguishing features of this class of trusts, as administered in Eng- land from an early period, were that they might be established through trustees, who might consist either of individuals or a cor- poration; and, in the case of individual trustees, they might hold in indefinite suc- cession, and be self-perpetuating, and the funds might be devoted in perpetuity to the charitable purposes indicated by the donor; while private trusts were not permitted to continue longer than a life or lives in being and 21 years and a fraction afterwards. The persons to be benefited might consist of a class, though the individual members of the class might be uncertain. The scheme of the charity might be wanting in sufficient definiteness or details to admit of its practical administration, and, in such cases, a court of equity would order a reference to a master in chancery to devise a scheme for its ad- ministration, which should as nearly as pos- sible conform to the intentions of the found- er of the charity; and thus was called into operation what was known as the "cy-prgs doctrine." These charitable trusts were re- garded as matters of public concern, and were enforceable by the attorney general, although, in many cases, the court would compel their performance without his inter- vention, at the instance of a town or parish, or of its inhabitants, or of an individual of the class intended to be benefited, such as one of the poor or maimed, etc. In a com- paratively recent case argued in this court, many instances of ancient charities were cit- ed which had been enforced by the court of chancery in England, such as Cooke's Char- ity, decided A. D. 1552, whereby the testator ordered the purchase of lands, and the erec- tion of a free grammar school; Bond's Char- ity, decided A. D. 1553, in which the testa- tor's will, dated in 1506, directed that there should be established a Bede house at Bab- lock, and there should be built a chapel, and therein one mass to be said on Sunday, and therein to be ten poor men, and a woman to dress their meat and drink, — the priest to be a brother of Trinity guild and Corpus Christi guild, etc.; Howell's Charity, decided in 1557, whereby the testator directed his ex- ecutors to provide a rent of 400 ducats year- ly forever, to be appropriated each year to promote the marriage of four orphan maid- ens, honest, and of good fame. This trust appears to have been enforced in chancery upon a bill filed by certain orphan maidens in behalf of themselves and others. We were also referred to numerous other char- ities for the support of the poor, for erec- tion of almshouses, hospitals, maintaining school-masters, keeping churches in repair, and other similar purposes. In the case of Bond's Charity, cited above, a license was granted by King Henry VII., in 1508, to the testator's son and others to grant lands to support a priest to sing mass, and twelve poor men and one woman to say prayers and obsequies for the king, the brothers and sis- ters of the guild, and for their souls, and especially for the soul of the testator, Thom- as Bond, in the then newly-erected chapel at Bablock. It appears that religious or pious uses were, when the Roman Catholic religion prevailed in England, recognized as charities. In 1434, Henry Barton devised to the rector of St. Mary's, and the church-war- dens, and their successors, certain lands, at a perpetual rent, payable to the guild of Corpus Christi, etc., so that said rector of St. Mary's and his successors, or their par- ish priests, when they should say prayers in the pulpit of the church, should pray for the souls of Richard Barton, the testator's father, of Dionesia, his mother, and for the souls of their children, and all the faithful de- ceased, and, in case they should neglect to do so for two days after the proper time, that the master and wardens of said guilds, etc., should levy a distress upon said lands for 12 pence by way of penalty, and retain such distress until such prayers should be said. This property appears to have been after- wards seized by the crown, under the stat- utes of chauntries (1 Edw. VI.), and granted by Edward VI. to one Stapleton; but the rector, etc., of St. Mary's having re-entered, it was made to appear in a litigation between them and the successors in interest of Staple- ton that no prayer for souls had been made, nor had the rents of the premises been de- voted to any manner of superstitious use within the space of six years and more next before the first year of the reign of King Edward VI., since which time the rents and profits had been employed by the parson and church-wardens of the parish in good uses and purposes. The case was tried in the 22d and 23d Eliz., and the parish was allow- ed to retain the land for general charitable purposes. The purposes for which charities were es- tablished in England were so numerous and varied, and the learning contained in the books on that subject is so vast, that it would be futile to attempt to go into it in detail, or to do more than briefly refer to their history, so far as is necessary to de- termine whether the English doctrine of charitable uses and trusts, as distinguished from private trusts governed by the general rules of law, still has any place in the juris- prudence of this state. The statute of 1 Edw. VI., A. D. 1547, known as the "Statute of Chauntries," recited that a great part of superstition aud errors in Christian re- ligion had been brought into the minds of men by reason of their ignorance of their true and perfect salvation through the death PROPERTY IN EQUITY— TRUSTS. 147 of Jesus Christ, and by devising vain opin- ions of purgatory, and masses to be done for those who are departed, which doctrine is maintained by nothing more than by the abuse of trentalles, chauntries, and other provisions for the continuance of such blind- ness and ignorance; that the amendment of the same, and converting them to good and godly uses, such as the erection of gram- mar schools, the education of youth, and bet- ter provision for the poor, cannot in the pres- ent parliament conveniently be done, nor be committed to any person than to the king, who by the advice of his most prudent coun- cil can and will most wisely alter and dis- pose of the same. It then recites the act of 37 Hen. VIII. for the dissolution of colleges, chauntries, etc., and enacts that all colleges, free chapels, and chauntries not in the actual possession of the late or present king, (with ■certain specified exceptions,) and all their lands and revenues, are declared to be in the actual seizure and possession of the present king, without office found; and that all sums of money, etc., which by any conveyance, will, devise, etc., have been given or appointed in perpetuity towards the maintenance of priests, anniversaries, or obits, be vested in the king. Certain colleges, free chapels, and chauntries, such as those within the universities of Ox- ford and Cambridge, and others specified in the statute, were exempted from its provi- sions; but the king was empowered to alter the chauntries in the universities. In this man- ner property which had been devoted by the donor to uses which had come to be regarded as superstitions were, through the king, put to charitable uses which were deemed lawful; and this policy was carried out by many de- crees of the court of chancery. The statute of 39 Eliz., A. D. 1597, authorized persons owning estates in fee-simple during 20 years next ensuing the passage of the act, by deed enrolled in the high court of chancery, to found hospitals, houses of correction, alms- houses, etc., to have continuance for ever, and place therein a head and members, and such number of poor as they pleased; and such institutions were declared to be corporations, with perpetual succession. It will be observ- ed that this was but a temporary act, which gave power only for 20 years next ensuing its passage, to found the chauntries mentioned. This statute also contained a provision enti- tled "An act to reform deceits and breaches of trust touching lands given to charitable uses," which recited that divers institutions had been founded, some by the queen and her progeni- tors, and some by other godly and well-dis- posed people, for the charitable relief of poor, aged, and impotent people, maimed soldiers, schools of learning, orphans, and for other good, charitable, and lawful purposes and in- tents, and that lands and goods given for such purposes had been unlawfully converted to the lucre and gain of some few greedy and covetous persons; and then proceeds to pro- vide for the issue of commissions out of chan- cery to inquire into those wrongs; and decree the observance of the trusts according to the intent of the founders thereof. This statute was followed by that of 43 Eliz. c. 4, "To re- dress the misemployment of lands, goods, and stocks of money heretofore given to charitable uses." This act is known as the "Statute of Charitable Uses," and was at one time, to- gether with that of 39 Eliz., regarded as the foundation of the law of charitable uses, and of the jurisdiction of chancery in cases of charities. But the reports of the record com- mission established in 1819 have disclosed that the jurisdiction had been exercised, and char- ity laws administered, by the courts of chan- cery from a much earlier period. The act, however, throws light upon what were at the time considered and recognized as charitable uses, for they are enumerated in the pream- ble as follows, viz.: The relief of the poor, the maintenance of the sick and maimed sol- diers and mariners, schools of learning, free schools, and schools in universities; the re- pair of bridges, ports, havens, causeways, churches, sea-banks, and highways; the educa- tion and preferment of orphans; the mainte- nance of houses of correction; the marriage of poor maidens; the aid of young tradesmen, handicraftsmen, and persons decayed; the re- lief or redemption of prisoners or captives; the aid of poor persons in the payment of taxes. The act then provides for the issuing of commissions by the lord chancellor of Eng- land or the chancellor of the duchy of Lan- caster, and the redress of breaches of trust, as in the statute 39 Eliz. In this enumera- tion of charitable uses there is none which would cover the present case; and indeed, under the statute of chauntries and other stat- utes prohibiting superstitious uses, it would not have been recognized in England as valid as a charity or otherwise. But assuming, as perhaps we ought to assume, that before gifts for the support of priests, chauntries, etc., came to be regarded as superstitious uses, they were within the principles of charity, and that they became illegal only by virtue of the statutes against superstitious uses; in this state, where all religious beliefs, doctrines, and forms of worship are free, so long as the pub- lic peace is not disturbed, the trust in ques- tion cannot be impeached on the ground that the use to which the fund was attempted to be devoted was a superstitious use. The ef- ficacy of prayers for the dead is one of the doctrines of the Roman Catholic Church, of which the testator was a member; and those professing that belief are entitled in law to the same respect and protection in their re- ligious observances thereof as those of any other denomination. These observances can- not be condemned by any court, as matter of law, as superstitious, and the English statutes against superstitious uses can have no effect here. Amend. Const. TJ. S. art. 1; Const. N. Y. art. 1, § 3. If, in other respects, the be- quest was by the law of England valid as a "charitable" use, and the English doctrine of 148 PBOPEETT IN EQUITY— TRUSTS. charitable uses prevails in this state, the ob- jections to its validity on the ground of in- definiteness of the trust, perpetuity, and the absence of an ascertainable beneficiary can be overcome; otherwise, they must prevail, at least so far as relates to the absence of a ben- eficiary, which is sufficient to dispose of the case without refer* nee to the other points. We will therefore treat the bequest as a char- itable use. The principal cases in this state in which the doctrine of charitable uses has been dis- cussed are Williams v. Williams, 8 N. Y. 527; Owens v. Missionary Soc., 14 N. Y. 380; Beekman v. Bonsor, 23 N. Y. 298; Downing v. Marshall, Id. 366; Levy v. Levy, 33 N. Y. 97; Rose v. Rose (1863) 4 Abb. Dec. 108; Bascom v. Albertson, 34 N. Y. 584; Burrill v. Boardman, 43 N. Y. 254. These cases were argued by counsel of eminent ability, and in the arguments and opinions display a depth of learning and thorough- ness of research which render it useless to attempt a discussion of the question here as an original question, or to do more than summarize the main points upon which the arguments turned, and ascertain how the case stands upon those authorities. So late- ly as the case of Burrill v. Boardman, 43 N. Y. 254, the question was argued as still an open one; and that case was decided on the ground that the trust was valid without re- sorting to the doctrine of charitable uses. Comstock, J., in a note to the eleventh edi- tion of Kent's Commentaries (volume 4, p. 305, note 2), states that the essential requi- sites of a valid trust are (1) a sufficient ex- pression of an intention to create a trust; (2) a beneficiary who is ascertained, or ca- pable of being ascertained; that the appoint- ment or non-appointment of a trustee of the legal estate is not material; that if the trust or beneficial purpose be well declared, and if the beneficiary is a definite person or corporation capable of taking, the law itself will fasten the trust upon him who has the legal estate, whether the grantor, testator, heir, or next of kin, as the case may be; and that, outside of the domain of char- itable uses, no definiteness of purpose will sustain a trust if there be no ascertained beneficiary who has a right to enforce it. .And in delivering the opinion of this court in Beekman v. Bonsor, 23 N. Y. 310, the same learned judge says that the joint au- thority of the cases of Williams v. Wil- liams, 8 N. Y. 527, and Owens v. Missionary Soc, 14 N. Y. 398, establishes the proposi- tions (1) that a gift to charity is maintain- able in this state if made to a competent trustee, and if so defined that it can be exe- cuted, as made by the donor, by a judicial decree, although it may be void, according to general rules of law, for want of an as- certained beneficiary; (2) that in other re- spects the rules of law applicable to char- itable uses are within those which apper- tain to trusts in general; (3) that the cy-pres power which constitutes the peculiar feature of the English system, and is exercised in determining gifts to charity where the do- nor has failed to define them, and in fram- ing schemes of approximation near to or from the donor's true design, is unsuited to our institutions, and has no existence in the jurisprudence of this state on this subject. But he declined to re-examine these cases, as he concludes that the law of charities could not be invoked in the case then under consideration. The same learned judge, however, in the subsequent case of Bascom v. Albertson, 34 N. Y. 584, in which he act- ed as counsel, reviewed at length the ques- tion whether the English law of charitable uses prevailed to any extent whatever in this state. His argument was preserved in print, and was used in Burrill v. Boardman, 43 N. Y. 254, and in that argument, refer- ring to what he had said in his opinion in Beekman v. Bonsor as to the proposition that a gift to charities, if well defined, and made to a competent trustee, was main- tainable in this state, although it might be void, according to general rules of law, for want of an ascertained beneficiary, and to the similar remark in his opinion in Down- ing v. Marshall, 23 N. Y. 382, characterizes, his own remarks in those two cases as a most inconsiderate repetition, as a dictum, of a proposition laid down by another judge; calling attention to the fact that the repe- tition was a mere dictum, because in the two cases in which it was made the trusts were held void. The ease of Williams v. Williams, 8 N. Y. 524, is the leading case in the court of last resort of this state in support of the doc- trine that the English law of charitable uses is in force in this state, and it fully supports the proposition that it is. In that case the testator after making a bequest to an incorporated church, bequeathed the sum of $6,000 to Zophar B. Oakley and other in- dividual trustees, with power to perpetuate their successors, as a perpetual fund for the education of the children of the poor who should be educated in the academy of the village of Huntington, with directions to ac- cumulate the fund up to a certain point, and apply the income in perpetuity to the education of the children whose parents' names were not upon the tax-lists. The opinion was delivered by Denio, J., and con- curred in by four of the other judges, three judges dissenting. The opinion held that this bequest, by the general rules of law, would be defective and void, as a convey- ance in trust for the want of a cestui que trust in whom the equitable title could vest, and could be sustained only by force of that peculiar system of law known in England under the name of the "Law of Charitable Uses;" that the objection that the bequest assumed to create a perpetuity would also be fatal if the Revised Statutes applied to gifts for charitable purposes. But the learned PROPERTY IN EQUITY— TRUSTS. 149 judge held that according to the laws of England as understood at the time of the American Revolution, and as it still existed, devises and bequests for the support of charity or religion, though defective for want of such a grantee or donee as the rules of law required in other cases, would, when not within the purview of the mortmain act, be supported in the court of chancery; that the law of charitable uses did not originate in, and was not created by, the statute 43 Bliz. c. 4, but had been known and recog- nized and enforced before that statute, and was ingrafted upon the common law, and consequently was not abrogated by the re- peal in this state of the statute 43 Eliz. in 178S (Laws 1788, c. 46, § 37) ; that the provi- sions of the Revised Statutes did not affect property given in perpetuity for religious or charitable purposes; and that consequently the bequest to Zophar B. Oakley and others, in trust for the children of the poor, was valid. In Owens v. Missionary Soc, 14 N. Y. 380, the testator bequeathed the residue of his estate to the "Methodist General Missionary Society," an unincorporated association ex- isting when the will was made, and when it took effect, in 1834, but which, subsequent to the testator's death, became incorporated. In a suit between the incorporated society and the next of kin of the testator, the be- quest was held void, and that the next of kin were entitled to the residue. Opinions were delivered by Selden, 3., and Denio, J. Judges A. S. Johnson, T. A. Johnson, Hub- bard, and Wright concurred in the opinion of Selden, J., which held that the bequest was not valid as one made to the associa- tion for its own benefit, because of its inca- pacity to take; nor could it be sustained as a charitable or religious use, as it was not accompanied by any trust as to the applica- tion of the fund. Also that, where there was no trustee competent to take, our court of chancery had no jurisdiction to uphold a trust for a charitable or religious purpose; and it distinguished the case from Williams v. Williams on the ground that there the be- quest was to trustees competent to take. Al- though the tenor of the opinion is against following the example of the English chan- cellors in applying a peculiar and partial system of rules to the support of charitable gifts, Judge Selden disavows the intention of denying the power of courts of equity in this state to enforce the execution of trusts created for public and charitable purposes in cases where the fund is given to a trustee competent to take, and where the charitable use is so far defined as to be capable of be- ing specifically executed by the authority of the court, even although no. certain benefi- ciary other than the public at large may be designated. Denio, J., while reaffirming the decision in Williams v. Williams, placed his vote upon the ground that the trust was not one which could be executed by the court as a charitable use, the purposes of the so- ciety being "to diffuse more generally the blessings of education, civilization, and Christianity throughout the United States and elsewhere;" that although trusts in fa- vor of education and religion had always been considered charitable uses, and were recognized as such in the statute of Eliza- beth, the advancement of civilization gener- ally was not classed among charities, and the whole fund might be disposed of for pur- poses promotive of universal civilization, which still would not be charitable objects in the understanding^ of the law. Six of the judges were of opinion that the charity was not sufficiently defined by the terms of the will, and that the judgment in favor of the next of kin should be affirmed on that ground. The next case in order is Beekman v. Bon- sor, 23 N. Y. 298. In that case the amount to be given to the charitable purpose, as well as the manner in which the fund was to be applied, was left to the discretion of the executors. They renounced, and it was held that the trust was incapable of execu- tion, that the cy-pres power, as exercised in England in cases of charity, had no exist- ence in this state, and that the next of kin were entitled to the fund. Numerous points were discussed in the opinion, which was by Comstock, J., and he there made the dictum, which he afterwards recalled, that a gift of charity which would be void, by the general rules of law, for the want of an ascertained beneficiary, will be upheld by the courts of this state if the thing given was certain, if there was a competent trustee to administer the fund as directed, and if the charity itself was precise and definite. Downing v. Marshall, 23 N. Y. 366, held that a devise and bequest to an unincorpo- rated missionary society was void, on the same grounds as in the case of Owens v. Missionary Soc, supra. Up to this time the doctrine of the case of Williams v. Williams as to the validity of trusts for charities, even in the absence of a definite beneficiary, had been acquiesced in. But in Levy v. Levy, 33 N. Y. 97, it was vigorously assailed by Wright, J., who dis- cussed the question anew whether the Eng- lish doctrines of trust for charitable uses were law in this state. That learned judge expressed a decided opinion that they were not (page 105 et seq.); that that peculiar system of jurisprudence proceeded in disre- gard of rules deemed elementary and funda- mental in other limitations of property, in upholding indefinite charitable gifts, by the exercise of chancery powers and the royal prerogative; that it was not the exercise of the ordinary jurisdiction of chancery over trusts, but a jurisdiction extended and strengthened by the prerogative of the crown and the statute of 43 Eliz. over pub- lic and indefinite uses defined in that statute as "charities;" that even in England it had 150 PKOPERTY IN EQUITY— TRUSTS. been deemed necessary to restrain and regu- late by act of parliament the creation of these indefinite charitable trusts, by the stat- utes of mortmain and other restrictions, and it cannot be supposed that the system was deliberately retained in this state freed from all legislative restriction. He calls attention to the fact that in 1788 the legislature of this state repealed the statute of 43 Eliz., the statute against superstitious uses, and the mortmain acts. That at that time it was supposed that the law for the enforce- ment of charitable trusts had its origin only in the statute of Elizabeth; and argues that the legislature of 1788, in thus sweeping away all the great and distinctive land- marks of the English system, must have in- tended that the effect of the repeal should be to abrogate the entire system of indefi- nite trusts, which were understood to be supported by that statute alone; and that the whole course of legislation in this state indicates a policy not to introduce any sys- tem of public charities except through the medium of corporate bodies. That in 1784 the general law for the incorporation of re- ligious societies had been enacted, and that before, and contemporaneously with, the re- peal of the statute of Elizabeth and the stat- utes of mortmain, special acts incorporating such societies were passed, and other acts have been passed creating or authorizing corporations for various religious and chari- table purposes, in all of which are to be found limitations upon the amount of prop- erty to be held by such societies; thus in- dicating a policy to confine within certain limits the accumulation of property perpetu- ally appropriated, even to charitable and re- ligious objects. That the absolute repeal of the statute of Elizabeth and of the mort- main acts was wholly inconsistent with the policy thus indicated, unless it was intended to abrogate the whole law of charitable uses as understood and enforced in England. The opinion then refers to the course of leg- islation in this state following the repeal of the English statutes authorizing corporations for charitable, religious, literary, scientific, and benevolent purposes, and in all cases limiting the amount of property to be en- joyed by them. This legislation is claimed to disclose a policy differing from the Brit- ish system, and absolutely inconsistent with the supposition that uses for public or in- definite objects, and of unlimited duration, can be created and sustained without legis- lative sanction. Since the case of Williams v. Williams, decided 35 years ago, there has been no adjudged case in this court which supports a charitable gift on the principles enunciated by Judge Denio in pronouncing that decision. Of course, this observation applies only to the indefinite charity which the case included, and not to the gift in favor of a religious corporation. After the decision of that case the struggle in this court for the overthrow of charitable uses began in the case of Owens v. Mission- ary Soc, 14 N. Y. 380. The opponents of such trusts had for their justification the repeal in 1788 in this state of all the British statutes which upheld such trusts in Eng- land, and the substitution of a charity sys- tem maintained by our statute laws in the form of corporate charters containing, by legislative enactment, power to receive, hold, and administer charitable gifts of every va- riety known in the practice of civilized com- munities and our statute of uses and trusts, defining the trusts which may lawfully be created. This statute has been held binding on the courts, although, of course, it ceases to operate when the legislature charters a corporation for a charitable purpose, with power to take and hold property in perpe- tuity for such purpose. Prom the case of Owens v. Missionary Soc, 14 N. Y. 380, through the cases of Downing v. Marshall, 23 N. Y. 366; Levy v. Levy, 33 N. Y. 97; Bascom v. Albertson, 34 N. Y. 584; Burrill v. Boardman, 43 N. Y. 254; and Holmes v. Mead, 52 N. Y. 332 (decided in 1873) —the struggle was continued, and the announce- ment definitely made, in the latest of those cases, that the controversy was closed by the adoption of the principles enunciated in the said last-mentioned case. In Williams v. Williams, Judge Denio, whose great learn- ing and ability are universally acknowl- edged, maintained, as the basis of his con- clusion in favor of charitable trusts as the law of this state, that they came to us by inheritance from our British ancestors, and as part of our common law. That particular postulate being finally overthrown, and the British statutes having been repealed at the very origin of our state government, we should be a civilized state without provision for charity if we had not enacted other laws for ourselves. But charity, as a great in- terest of civilization and Christianity, has suffered no loss or diminu + ion in the change which has been made. The law has been simplified, and that is all. Instead of the huge and complex system of England, for many generations the fruitful source of liti- gation, we have substituted a policy which offers the widest field for enlightened benev- olence. The proof of this is in the great number of charitable institutions scattered throughout the state. It is not certain that any political state or society in the world of- fers a better system of law for the encour- agement of property limitations in favor of religion and learning, for the relief of the poor, the care of the insane, of the sick and the maimed, and the relief of the destitute, than our system of creating organized bodies by the legislative power, and endowing them with the legal capacity to hold property which a private person or a private corpora- tion has to receive and hold transfers of property. Under this system, many doubt- ful and obscure questions disappear, and give place to the more simple inquiry wheth- PROPERTY IN EQUITY— TRUSTS. 151 er tlie grantor or devisor of a fund designed for charity is competent to give; and wheth- er the organized body is endowed by law with capacity to receive, and to hold and administer, the gift. In Williams v. Wil- liams, supra, in maintaining a gift for pious uses to an incorporated religious society, Judge Denio assigned the reasons which have been universally approved since that time; and they are summed up by saying that charitable limitations of property in favor of corporations competent, by statute law, to hold them, are valid or invalid on the same grounds as other limitations of property between natural persons, and are referable to the general system of law which governs in the ordinary transactions of man- kind. From his reasoning In the other branch of the case before him, it appears that he had not reached the conclusion es- tablished in the later cases, namely, that with us charity is found in our corporation laws, general and special, which have been extended so as to embrace the purposes here- tofore known and recognized as charitable, and which are continually extending and improving, so as to meet the new wants which society in its progress may develop. As the result of the foregoing views, the judgment of the supreme court at general term should be reversed, and that of the special term affirmed. All concur, except EARL, J., not voting. Judgment accordingly. 152 PROPERTY IN EQUITY— TRUSTS. EASTERBROOKS et al. v. TILLINGHAST. (5 Gray 17.) Supreme Judicial Court of Massachusetts. Oct. Term, 1855. Bill by Anne Easterbrooks and others, heirs at law of Elery Wood, against Thomas Tillinghast, to obtain a release of a home- stead held by the said Wood upon the fol- lowing trusts: "That said trustee and trus- tees shall use and improve the same, or lease the same from time to time to good and trusty tenants, in such manner as will best secure the income and profits thereof; and that said trustee and trustees shall not sell my farm, but out of the income thereof shall keep the walls and buildings in good repair, and after deducting the expenses and a reasonable compensation for their serv* ices, shall annually, or oftener if necessary, appropriate and apply all the income and profits of said estate to the support of the gospel, and the maintenance and support of a pastor or elder in the Six-Principle Bap- tist Church in said Swanzey, which was un- der the pastoral care of Elder Philip Slade, late of said Swanzey, at the time of his de- cease, and which shall continue in the faith and practice of the six principles of the doc- trine of Christ, as recorded in the sixth chapter of Hebrews, first and second verses, and their successors in said church, as long as they or their successors shall maintain the visibility of a church in said faith and order, and uniting in fellowship and com- munion with those who hold and practice said principles, and no others. And I hereby direct that said income and profits of said estate shall be applied by said trustee and trustees as aforesaid to the maintenance and support of such pastor or elder as shall from time to time be appointed by a majority of said church, and shall be approved of by said trustee and trustees; and in case of any disagreement between said church and trus- tees in relation to the appointment and ap- proval of a pastor, a pastor shall be ap- proved of by the Rhode Island and Massa- chusetts General Conference of the old Six- Principle Baptist denomination; and when- ever said trustee or his successor shall die or depart from said faith and practice, an- other trustee or trustees shall be appointed by said general conference, and said trustee or trustees so appointed shall have the same power and trust over said estate as said Thomas Tillinghast; and on the death or de- parture from said faith and practice of such trustee, other trustee or trustees shall from time to time be appointed by said general conference, with same power and trusts over said estate; and, in case of the failure of such appointment, my will is that a suitable trustee shall be appointed by the supreme ju- dicial court of the commonwealth of Massa- chusetts, or any other court in said common- wealth, having at the time jurisdiction over trustees and property holden in trust, so that said trust shall continue forever. And I do hereby empower said trustees to do all acts, and legally to make and execute all instru- ments and contracts, in writing and other- wise, which shall be necessary for full and perfect execution of said trusts. And I hereby give, bequeath and devise to said church, and to their successors in said church, forever, the right and privilege to hold their meetings and communions in my dwelling-house as heretofore, with use of my chairs in said house, or so long as said house will accommodate said church." It was alleged that in March, 1853, there were but two members of the Six-Principle Baptist Church in Swanzey; that they met with defendant trustee, and voted to call a meeting of the church, and that on the day of such meeting, although notice was given thereof, but two persons were present, when they voted, as the number of members were so small, to dissolve, which vote was duly entered on the records of the church; that defendant fraudulently induced two women, neither of whom had attended any meetings of the church for over 20 years, and did not attend the meeting called at the time of the dissolution, to meet, when the formality of admitting another member was gone through with; and that defendant, though duly in- formed of the proceedings by which the church had been dissolved, refused to re- lease the homestead farm to plaintiffs, ac- cording to the prayer of the bill. The de- fendant demurred to the bill. Demurrer overruled. T. D. Eliot (E. Ames with him), for plain- tiffs. C. B. Farnsworth, for defendant. METCALP, J. The devise of Elery AVood to the defendant was in special trust that he and his successors in the trust should appropriate and apply the income and profits of the devised property to the sup- port of the gospel, and the maintenance of a pastor or elder in a church in Swanzey, of a certain faith and practice, as long as they (the members of said church), or their suc- cessors, should maintain the visibility of a church in such faith and order. And the plaintiffs have alleged in their bill that the visibility of said church has not been main- tained; that, therefore, the devised property cannot be rightfully held any longer by the defendant; but that it has, by the statutes of the commonwealth, descended to them as the heirs at law of the devisor; and they pray, among other things, that the defend- ant may be decreed to release the property to them. The facts on which the plaintiffs rely in support of their allegation that the visibility of said church has not been main- tained are set forth in the bill, and they are admitted by the defendant, for present pur- poses and effects, by his demurrer to the bill. The first question in the case is whether the Six-Principle Baptist Church, in Swan- PROPERTY- IN EQUITY— TRUSTS. 153 zey, for whose benefit Wood's devise was made, has ceased to maintain its visibility, or, in language more commonly used, ceased to be a visible church. If it has, then the second question is, whether the plaintiffs, as Wood's heirs at law, are now entitled to the devised property, which is still in the de- fendant's possession. 1. The bill avers that on the 31st day of March, 1853, there were only two members of said church; that they, on that day, at a meeting called by public notice, voted and resolved that they would not any longer en- deavor to maintain the appearance of a vis- ible church; that they declared the same dissolved and extinct; and that the said vote and resolve were entered on the rec- ords of said church. This seems to the court to have been a dissolution of the church, so that it thenceforth ceased to be a visible church in any sense, legal or ecclesiastical. Of course, the. attempt afterwards made to admit members was futile. If any of these alleged facts could have been safely denied or successfully admitted and avoided, the defendant should have filed an answer to the bill, and not have de- murred to it. 2. The devise to the defendant of the prop- erty in question was doubtless a devise in fee (Cleveland v. Hallett, 6 Cush. 407); and having been made to him as trustee, and for a specific purpose only, he holds the proper- ty, since the failure of the trust by the ex- tinction of the cestui que trust, not for his own benefit, but for the devisor's heirs at law, as a resulting trust, and is answerable to them for it (Hill, Trustees [2d Am. Ed.] 157, 184, 185). The precise mode of relief to which the law entitles the heirs may be a subject for consideration hereaftor. Demurrer overruled. 154 PROPERTY IN EQUITY— TBUSTS. DYER v. DYER. 2 Cox, Ch. 92. Court of Chancery. Nov. 27, 1788. In 1737 certain copyhold premises holden of the manor of Heytesbury, in the county of Wilts, were granted by the lord, accord- ing to the custom of that manor, to Simon Dyer (the plaintiff's father), and Mary, his wife, and the defendant William (his other sod), to take in succession for their lives, and to the longest liver of them. The pur- chase money was paid by Simon Dyer, the father. He survived his wife, and lived un- til 1785, and then died, having made his will, and thereby devised all his interest in these copyhold premises (amongst others) to the plaintiff, his younger son. The present bill stated these circumstances, and insisted that the whole purchase money being paid by the father, although, by the form of the grant, the wife and the defendant had the legal interest in the premises for their lives in succession, yet in a court of equity they' were but trustees for the father, and the bill therefore prayed that the plaintiff, as devisee of the father, might be quieted in the pos- session of the premises during the life of the defendant. The defendant insisted that the insertion of his name in the grant operated as an ad- vancement to him from his father to the ex- tent of the legal interest thereby given to him. And this was the whole question in the cause. This case was very fully argued by Mr. Solicitor General and Ainge for plain- tiff, and by Burton & Morris, for defend- ant. The following cases were cited, and very particularly commented on: Smith v. Baker, 1 Atk. 3S5; Taylor v. Taylor, Id. 38G; Mumma v. Mumma, 2 Vern. 19; Howe v. Howe, 1 Vern. 415; Anon., 1 Freem. Ch. 123; Benger v. Drew, 1 P. Wms. 781; Dickinson v. Shaw, before the lords commissioners in 1770; Bedwell v. Froome, before Sir T. Sewell, on the 10th May, 177S; Row v. Bow- den before Sir L. Kenyon, siting for the lord chancellor; Crisp v. Pratt, Cro. Car. 549; Scroope v. Scroope, 1 Ch. Cas. 27; Elliot v. Elliot, 2 Ch. Cas. 231; Ebrand v. Dancer, Id. 26; Kinydon v. Bridges, 2 Vern. 67; Back v. Andrew, Id. 120; Rundle v. Rundle, Id. 264; Lamplugh v. Lamplugh, 1 P. Wms. Ill; StilemaD v. Ashdown, 2 Atk. 480; Pole v. Pole, 1 * es. Sr. 76. LORD CHIEF BARON, after directing the cause to stand over for a few days, delivered the judgment f the court. The question between the parties in this cause '» whether the defendant is to be considered as a trustee for his father in re- spect of his succession to the legal interest of the copyhold premises in question, and whether the plaintiff, as representative of the father, is now entitled to the benefit of that trust. I intimated my opinion of the question on the hearing of the cause, and I then indeed entertained very little doubt upon the rule of a court of equity, as ap- plied to this subject; but as so many cases have been cited, some of which are not in print, we thought it convenient to take an opportunity of looking more fully into them,, in order that the ground of our decision may be put in as clesr a light as possible, espe cially in a case in which so great a differ- ence of opinion seems to have prevailed at. the bar. And I have met with a case in ad- dition to those cited, which is that of Rum- boll v. Rumboll, 2 Eden, 15, on the 20th April, 1761. The clear result of all the cases,, without a single exception, is that the trust of a legal estate, whether freehold, copyhold, or leasehold; whether taken in the names, of the purchasers and others jointly, or in the name of others without that of the pur- chaser; whether in one name or several; whether jointly or successive,— results to the man who advances the purchase money. This is a general proposition, supported by all the cases, and there is nothing to con- tradict it; and it goes on a strict analogy to the rule of the common law that, where a feoffment is made without consideration, the use results to the feoffer. It is the estab- lished doctrine of a court of equity that this resulting trust may be rebutted by circum- stances in evidence. The cases go one step further, and prove the circumstance of one or more of the nominees, being a child or chil- dren of the purchaser, is to operate by re- butting the resulting trust; and it has been determined in so many cases that the nom- inee, being a child, shall have such operation as a circumstance of evidence, that we- should be disturbing landmarks if we suf- fered either of these propositions to be called in question, namely, that such circumstance shall rebut the resulting trust, and that it shall do so as a circumstance of evidence. I think it would have been a more simple doctrine if the children had been considered as purchasers for a valuable consideration. Natural love and affection raised a use at common law. Surely, then, it will rebut a trust resulting to the father. This way of considering it would have shut out all the- circumstances of evidence which have found their way into many of the cases, and would have prevented some very nice distinctions, and not very easy to be understood. Con- sidering it as a circumstance of evidence, there must be, of course, evidence admitted on the other side. Thus it was resolved into- a question of intent, which was getting into a very wide sea, without very certain guides. In the most simple case of all, which is that of a father purchasing in the name of his son, it is said that this shews the father in- tended an advancement, and therefore the resulting trust is rebutted; but then a cir- cumstance is added to this, namely, that the son happened to be provided for. Then the question is, did the father intend to ad- vance a son already provided for? Lord Not- PROPERTY IN EQUITY— TRUSTS, 155 tingham could not get over this, and he ruled that in such a case the resulting trust was not rebutted; and in. Pole v. Pole, 1 Ves. Sr. 76, Lord Hardwicke thought so too; and yet the rule in a court of equity as rec- ognized in other cases is that the father is the only judge as to the question of a son's provision. That distinction, therefore, of the son being provided for or not, is not very solidly taken or uniformly adhered to. It is then said that a purchase in the name of a son is a prima facie advancement, and, indeed, it seems difficult to put it in any way. In some of the cases some circumstan- ces have appeared which go pretty much against that presumption, as where the father has entered and kept possession, and taken the rents; or where he has surrendered or devised the estate; or where the son has given receipts in the name of the father. The answer given is that the father took the rents as guardian of his son. Now, would the court sustain a bill by the son against the father for these rents ? I should think it pretty difficult to succeed in such a bill. As to the surrender and devise, it is answered that these are subsequent acts; whereas the intention of the father in taking the pur- chase in the son's name must be proved by concomitant acts; yet these are pretty strong acts of ownership, and assert the right, and coincide with the possession and enjoyment. As to the son's giving receipts in the name of the father, it is said that, the son being under age, he could not give re- ceipts in any other manner; but I own this reasoning does not satisfy me. In the more complicated cases, where the life of the son is one of the lives to take in succession, other distinctions are taken. If the custom of the manor be that the first taker might surren- der the whole lease, that shall make the other lessees trustees for him; but this cus- tom operates on the legal estate, not on the equitable interest; and therefore this is not a very solid argument. When the les- sees are to take successive, it is said that, as the father cannot take the whole in his own name, but must insert other names in the lease, then the children shall be trustees for the father; and to be sure, if the cir- cumstance of a child being the nominee is not decisive the other way, there is a great deal of weight in this observation. There may be many prudential reasons for putting in the life of a child in preference to that of any other person; and if in that case it is to be collected from circumstances wheth- er an advancement was meant, it will be difficult to find such as will support that idea. To be sure, taking the estate in the name of the child, which the father might have taken in his own, affords a strong ar- gument of such an intent; but where the estate must necessarily be taken to him in succession, the inference is very different. These are the difficulties which occur from considering the purchase in the son's name as a circumstance of evidence only. Now, if it were once laid down that the son was to be taken as a purchaser for a valuable consideration, all these matter of presump- tion would be avoided. It must be admitted that the case of Dick- inson v. Shaw is a case very strong to sup- port the present plaintiff's claim. That came on in chancery, on 22d May, 1770. "A copy- hold was granted to three lives to take in succession, the father, son, and daughter. The father paid the fine. There was no custom stated. The question was whether the daughter and her husband were trustees during the life of the son, who survived the father. At the time of the purchase the son was nine and the daughter seven years old. It appeared that the father had leased the premises from three years to three years to the extent of nine years. On this case Lords Commissioners Smythe and Aston were of opinion that, as the father had paid the purchase money, the children were trus- tees for him." To the note I have of this case it is added that this determination was contrary to the general opinion of the bar, and also to a case of Taylor v. Alston, in this court. In Dickinson v. Shaw there was some little evidence to assist the idea of its being a trust, namely, that of the leases made by the father. If that made an in- gredient in the determination, then that case is not quite in point to the present; but I rather think that the meaning of the court was that the burthen of proof laid on the child; and that the cases which went the other way were only those in which the estate was entirely purchased in the name of the children. If so, they certainly were not quite correct in that idea, for there had been cases in which the estates had been taken in the names of the father and son. I have been favoured with a note of Rum- boll v. Rumboll, before Lord Keeper Henley on the 20th April, 1761, where a copyhold was taken for three lives in succession, the father and two sons. The father paid the fine, and the custom was that the first taker might dispose of the whole estate (and his lordship then stated that case fully). Now, this case does not amount to more than an opinion of Lord Keeper Henley, but he agreed with me in considering a child as a purchaser for good consideration of an estate bought by the father in his name, though a trust would result as against a stranger. It has been supposed that the case of Taylor v. Alston in this court denied the authority of Dickinson v. Shaw. That cause was heard before Lord Chief Baron Smythei, myself, and Mr. Baron Burland, and was the case of an uncle purchasing in the names of himself and a nephew anil niece. It was decided in favour of the neph- ew and niece, not on any general idea of their taking as relations, but on the result of much parol evidence, which was admit- ted on both sides, and the equity on the 156 PROPERTY IN EQUITY— TRUSTS. side of the nominees was thought to pre- ponderate. Lord Kenyon was in that cause, and his argument went solely on the weight of the parol evidence. Indeed, as far as the circumstance of the custom of the first tak- er's right to surrender, it was a strong case in favour of a trust. However, the court determined the other way on the parol evi- dence. That case, therefore, is not material. Another case has been mentioned, which is not in print, and which was thought to be materially applicable to this (Bedwell v. Proome, before Sir T. Sewell) ; but that was materially distinguishable from the present. As far as the general doctrine went, it went against the opinion of the lords commis- sioners. His honour there held that the copy- holds were part of the testator's personal estate, for that was not a purchase in the name of the daughter. She was not to have the legal estate. It was only a contract to add the daughter's life in a new lease to be granted to the father himself. There could be no question about her being a trustee, for it was as a freehold in him for his daughter's life. But in the course of the argument his honour stated the common principles as applied to the present case, and ended by saying that, as between father and child, the natural presumption was that a provision was meant The anonymous case in 1 Freem. Ch. 123, corresponds very much with the doctrine laid down by Sir T. Sewell, and it observes that an advance- ment to a child is considered as done for valuable consideration, not only against the father, but against creditors. Kingdon v. Bridges, 2 Vern. 67, is a strong case to this point,— that is, the valuable nature of the consideration arising on a provision made for a wife or for a child; for there the ques- tion arose as against creditors. I do not find that there are in print more than three eases which respect copyholds where the grant is to take successive,— Run- die v. Bundle, 2 Vern. 264, which was a case perfectly clear; Benger v. Drew, 1 P. Wms. 781, where the purchase was made partly with the wife's money; and Smith v. Baker, 1 Atk. 385, where the general doctrine as applied to strangers was recognized; but the case turned on the question whether the in- terest was well devised. Therefore, as far as respects this particular case, Dickinson v. Shaw is the only case quite in point; and then the question is whether that case is to be abided by. With great reverence to the memory of those two judges who decided it, we think that case cannot be followed; that it has not stood the test of time, or the opinion of learned men; and Lord Kenyon has certainly intimated his opinion agamst it. On examination of its principles, they seem to rest on too narrow a foundation, namely, that the inference of a provision biing Intended did not arise, because the purchase could not have been taken wholly in the name of the purchaser. This, we think, is not sufficient to turn the presump- tion against the child. If it is meant to be a trust, the purchaser must shew that intention by a declaration of trust; and we do not think it right to doubt whether an estate in succession is to be considered as an advancement, when a moiety of an es- tate in possession certainly would be so. If we were to enter into all the reasons that might possibly influence the mind of the purchaser, many might perhaps occur in every case upon which it might be argued that an advancement was not intended. And I own it is not a very prudent conduct of a man just married to tie up his property for one child, and preclude himself from providing for the rest of his family. But this applies equally in case of a purchase in the name of the child only, yet that case is admitted to be an advancement; indeed, if anything, the latter case is rather the strongest, for there it must be confided to one child only. We think, therefore, that these reasons partake of too great a degree of refinement, and should not prevail against a rule of property which is so well estab- lished as to become a landmark, and which, whether right or wrong, should be carried throughout This bill must therefore be dismissed; but after stating that the only case in point on the subject is against our present opinion, it certainly will be proper to dismiss it with- out costs. PROPERTY IN EQUITY— TRUSTS. 157 In re O'HARA. (95 N. Y. 403.) Court of Appeals of New York. 1884. Appeal from surrogate court, Kings coun- ty. The facts of the case are stated in the opinion of the court Geo. H. Starr and Samuel D. Morris, for appellants. William N. Dykman, for re- spondents. FINCH, J. The testatrix gave to three persons, who were her lawyer, her doctor and her priest, absolutely, but as joint ten- ants, the bulk of her estate. Practically she disinherited her relatives in favor of strangers, who had no claim upon her bounty, except such as originated in their professional characters, and the confidence and friendship thus engendered. For this reason probate of the will was resisted. While the testatrix was shown to have been superstitious, whimsical, blindly devoted to her church and its ecclesiastics, habitually under the influence of stimulants, and seri- ously dependent upon the advice of those who became her residuary legatees, it is yet certain that there was no want of tes- tamentary capacity. But although the at- tack failed upon that ground, the charge of undue influence was somewhat supported by the evidence relating to her character and surroundings, which made possible and tended to render probable the exist- ence of an outside power capable of mould- ing her wishes to its own. The exigency demanded of the proponents some ade- quate and reasonable explanation of a diversion of the estate to strangers hold- ing the power and influence derived from confidential relations, consistent with the free action and untrammeled exercise of the testamentary intention. The explana- tion came. A letter of instruction, address- ed to the residuary legatees, contemporane- ous with the will, and dictating the pur- pose as well as explaining the reason of the absolute legacy, was produced upon the hearing. These written instructions demon- strated that the residuary clause was not intended by the testatrix to pass to the legatees any beneficial interest. The abso- lute devise, on its face difficult of explana- tion except upon a theory of undue in- fluence, thereby lost its suspicious character and put the legatees in more of a disinter- ested attitude. It appeared that the testa- trix did not at all desire or intend to be- stow her estate upon those to whom she gave it; that her real intention was to de- vote it to certain charitable purposes; that these, she was advised, could not effectively be accomplished by her will, except through an absolute devise to individuals, in whose honorable action she could confide; and. therefore, and for that reason, and to ef- fect that ulterior purpose, she gave her es- tate in form to the professional friends, not meaning any beneficial legacy to them or for their use. With this development of the defense the attack took on a new phase. The heirs at law and next of kin began an action in equity to set aside and annul the residuary devise and bequest, or to estab- lish a trust, which, failing as to the intend- ed beneficiaries, should result to those who would otherwise have taken by descent or distribution. Both cases are now before us, and it is convenient to consider them to- gether, since our conclusion in one may tend seriously to affect the result in the other. The proof is uncontradicted that the testa- trix made the residuary devise and bequest in its absolute and unconditional form in reliance upon a promise of the legatees to apply the fund faithfully and honorably to the charitable uses dictated in the letter of instructions. It does not disprove this statement to assert that no express promise to that effect was made, or that it was the pledge of Judge McCue alone. One of the legatees, Father McGuire, is dead, and the title is in the two survivors, and it is with them only that we need to deal. The trial judge did, indeed, find as a fact that Dr. Dudley did not know until after testatrix's death that the unattested letter of instruc- tions existed, but he certainly did know be- fore the will was made the character of the intended disposition; that he was se- lected as one of the executors; that the relatives by blood were to take but a trifle, and that the bulk of the estate was to be applied to charitable puiposes by the ex- ecutors; and with this knowledge he ac- cepted the proposed trust. The trial judge further finds that Judge McCue "made no promise to obtain the bequest or devise and practiced no fraud." This finding is as- sailed, but unsuccessfully so far as it frees the legatees from a charge of actual fraud. In that respect we agree that there was no evil or selfish intention on their part. But the finding that Judge McCue "made no promise to obtain the bequest or devise" cannot be sustained. If anything is render- ed certain by the evidence it is that the testatrix made the absolute devise and be quest upon the suggestion of a necessity therefor by Judge McCue, and upon the un- derstanding that he and his associates would faithfully and honorably carry out her expressed intentions. If we say that McCue made no such promise, that he came under no such honorable obligation, then we must say that the testatrix was misled into a false belief, upon which, as true, she un- mistakably acted. For it is not possible to doubt that if the legatees had said— we will not promise; we will do as we please: we will not be even honorably bound not to- 158 PROPERTY IN EQUITY— TRUSTS. take this money for ourselves— the absolute bequest would never have been made. It matters little that McCue did not make in words a formal and express promise. Everything that he said and everything that he did was full of that interpretation. When the testatrix was told that the legal effect of the will was such that the lega- tees could divert the fund to their own use, which was a statement of their power, she was told also that she would only have their honor and conscience on which to rely, and answered that she could trust them; which was an assertion of their duty. Where in such case the legatee, even by silent acquiescence, encourages the testa- trix to make a bequest to him to be by him applied for the benefit of others, it has all the force and effect of an express promise. Wallgrave v. Tebbs, 2 Kay & J. 321; Schultz's Appeal, 80 Pa. St. 405. If he does not mean to act in accord with the de- clared expectation which underlies and in- duces the devise, he is bound to say so, for his silent acquiescence is otherwise a fraud. Russell v. Jackson, 10 Hare, 204. So far then as McCue is concerned he stands in the attitude of having procured and induced the testatrix to make a devise or bequest to himself and his associates, by asserting its necessity and promising faith- fully to carry out the charitable purposes for which it was made, and whether his as- sociates knew or promised, or did not, makes no difference where the devise is to them as joint tenants, and all must get their rights through the result accomplished by one. Rowbotham v. Dunnett, 8 Ch. Div. 430; Hooker v. Oxford, 33 Mich. 453; Rus- sell v. Jackson, 10 Hare, 206. If, therefore, in her letter of instructions, the testatrix had named some certain and definite bene- ficiary, capable of taking the provision in- tended, the law would fasten upon the lega- tee a trust for such beneficiary and enforce it, if needed, on the ground of fraud. Eq- uity acts in such case not because of a trust declared by the testator, but because of the fraud of the legatee. For him not to carry out the promise by which alone he procured the devise and bequest, is to per- petrate a fraud upon the devisor which equity will not endure. The authorities on this point are numerous. Thynn v. Thynn, 1 Vern. 296; Oldham v. Litchford, 2 Freem. 284; Reech v. Kennegal, 1 Ves. Sr. 124; Fodmore v. Gunning, 5 Sim. 485; Muckle- ston v. Brown, 6 Ves. 52; Hoge v. Hoge, 1 Watts, 163; McKee v. Jones, 6 Pa. St. 425; Dowd v. Tucker, 41 Conn. 197; Hooker v. Oxford, 33 Mich. 454; Williams v. Vreeland, 32 N. J. Bq. 135. The circumstances in these cases were varied and sometimes pe- culiar, but all of them either recognize or enforce the general doctrine. It has been twice applied in our own state. Brown v. Lynch, 1 Paige, 147; Williams v. Fitch, 18 N. Y. 546. In the last of these cases the making of a bequest to the plaintiff was pre- vented by an agreement of the father, who was next of kin, to hold in trust for the plaintiff; and the English cases were cited with approval and the trust enforced. All along the line of discussion it was steadily claimed that a plain and unambiguous de- vise in a will could not be modified or cut down by extrinsic matter lying in parol, or unattested papers, and that the statute of frauds and that of wills excluded the evi- dence; and all along the line it was steadily answered that the devise was untouched, that it was not at all modified, that the property passed under it, but the law dealt with the holder for his fraud, and out of the facts raised a trust, ex maleficio, in- stead of resting upon one as created by the testator. The character of the fraud which justifies the equitable interference is well described in Glass v. Hulbert, 102 Mass. 40. It was said to consist "in the attempt to take advantage of that which has been done in performance or upon the faith of the agreement while repudiating its obligation under cover of the statute." Yet that is not the position of the defend- ants here. By their answer they deny any promise, whatever, made by them; any trust accompanying the request; any agree- ment to hold for the benefit of others; and insist that the property is theirs "for their own use and disposal." Yet this is evidently intended merely as an assertion of what they insist is their legal position, and is not meant as a re- pudiation of their promise or its honorable obligation, and no beneficiary claiming any such violation of duty, or even as threaten- ed or intended, is before us. But it may happen, as it does happen here, that all of the charitable uses en- joined are for the benefit of those incapa- ble of taking, or of a character in direct violation of the law of the state. What then becomes the duty of a court of equity? A fraud remains, except that it takes on graver proportions, and becomes more cer- tain and inevitable. The agreement which induced the absolute device, and the fraud of a beneficial holding secured by a con- trary promise, still confront us. And what is worse, it does not need that the abso- lute legatees repudiate their promise, for if ever so honorably willing to perform it, they cannot do so without setting at defiance and secretly evading the law and general policy of the state. The alternative is plain, and offers no chance of escape. If the legatees repudiate their obligations, that is a fraud upon the dead woman, who acted upon the faith of their promise. If they are willing to perform they cannot perform, except by a fraud upon the law to which they and the testatrix are equally parties. In such a case the fraud remains and ex- PROPERTY IN EQUITY— TRUSTS. 159 ists, identical in its character as to the tes- tatrix, but an injury to the heir at law and next of kin instead of an identified and ca- pable beneficiary. And it becomes not only a fraud against them, but a fraud upon the law, since it is a declared and admitted ef- fort to accomplish by a secret trust what could not on the face of the will be done at all. If, on the ground of fraud, equity, as it has often done, and will always do, fas- tens a trust ex maleficio upon the fraudu- lent legatee or devisee for the protection of a named and definite beneficiary, no reason can be given why it should not do the same thing when the fraud attempted assumes a more serious character, because aimed at an evasion of the law, and seeking the shelter of unauthorized purposes. In such event, if equity withholds its power, one of two things is accomplished; either the legatee holds the estate beneficially, which is a fraud upon the testatrix and the intended objects of her bounty, or the fund is devoted to unauthor- ized purposes, in fraud of the law, and of the heirs and next of kin. If a trust ex maleficio may be fastened upon the prop- erty in the hands of the fraudulent legatee in the one case, why not also in the other? If in the one the fraud grows out of a re- fusal to perform, which would be the volun- tary act of the legatee repudiating his prom- ise, and so an actual fraud; in the other it grows out of the impossibility of perform- ance, except in defiance of the public law, which is legally a fraud. In neither event can the legatee honestly hold. In both, ei- ther fraud triumphs, or equity defeats it through the operation of a trust, and pro- tects those justly entitled. And so are the cases. In Jones v. Badley, L. R. 3 Eq. Cas. 635, the suit was by the co-heiresses and next of kin to make the defendants trustees for them, on the' ground that a devise made to them of a residue absolute on its face was, in fact, for charitable purposes in vio- lation of the mortmain act, and made on the faith of an agreement by the legatees that they would make such application. One of them was the confidential medical adviser of the testatrix; the devise to the two was in joint tenancy; no purposed or intentional dishonesty was charged against them; in- stead of wholly repudiating their duty, they alleged in their answer a design to carry out the charitable purposes; and yet the court did not hesitate on the ground of fraud to fasten a trust upon the property in their hands for the benefit of the heir and next of kin. Wallgrave v. Tebbs, 2 Kay & J. 31.3, 321, and Russell v. Jackson, 10 Hare, 207, were cited with approval. The latter case was a bill filed by the next of kin, alleging that the absolute devise of a residue was upon a secret trust either for charitable or illegal purposes. The court so held as to the proceeds of the freehold and leasehold estates, and because the dispositions "could not by law take effect," declared the dev- isees trustees for the heir and next of kin. In Muckleston v. Brown, 6 Ves. 63, 65, Lord Eldon intimated that where the devisees took under an agreement to hold upon such trusts as the testator should declare, but he omitted to declare any, there would be a trust to the heir which equity would decree; and added, as to a case of evasion of the statute, the pointed inquiry: "Is the court to feel for individuals, and not to feel for the whole of its own system, and compel a discovery of frauds that go to the root of its whole system?" In Schultz's Appeal, 80 Pa. St. 405, the plaintiff failed solely for want of proof of an agreement by the legatee inducing the devise; and the same difficulty existed in Rowbotham v. Dunnett, 8 Ch. Div. 430; and as to three of the four tenants in common in Tee v. Ferris, 2 Kay & J. 367; but all confirm the general doctrine asserted. It is needed now that we consider the char- acter of the charitable uses upon which these legatees agreed to hold the residuary estate. The testatrix began her letter of instructions by saying: "I am desirous of accomplishing certain purposes, some of which at least can- not be legally carried out by express provi- sions of my will; and, therefore, in order more certainly to effect my purposes I have constituted you such residuary devisees and legatees." The first purpose indicated is to "set apart" the income of $20,000 to the ecclesiastical education of poor young men for the Roman Catholic priesthood. She di- rected that this provision be made "a per- manent one" and that the legatees make such arrangements that after their death the income should continue so to be appro- priated. This purpose contemplated and re- quired that the principal of the fund should be held inalienable and without an absolute power of disposition during the three lives of the legatees ahd for an indefinite period beyond. During this period the legal title to both the real and personal property would remain in the trustees and they pay over the income, and after the death of two the survivor was directed in some undefined manner to provide for the continuance of such income in the future. The plan vio- lated the statute against perpetuities botli as to real and personal estate, and the active trust was unlimited in its duration. Schet- tler v. Smith, 41 N. Y. 334; Adams v. Perry, 43 N. Y. 497; Garvey v. McDevitt, 72 N. Y. 561. What the respondent replies is that "the legatees may hand over the designated sum to an incorporated college" engaged in educating that class of young men. But the testatrix neither authorized nor contemplat- ed any such thing. She chose her trustees for three lives, and no other was to be sub- stituted till the death of the third, and then there might be another will, with an abso- lute bequest of the $20,000 to three other trustees, all honorable men, acting under a 160 PROPERTY IN EQUITY— TRUSTS. letter of Instructions, and so the process go on In evasion and defiance of the law. If, indeed, the testatrix intended a gift to a college corporation, that could have been done by her will. She could have made the devise or bequest without the risk of de- pending on some one's honor that the fund would not be diverted to private use, so that, in so far as this devise or bequest was represented to require an absolute devise or bequest to individuals, she was either mis- led or deceived, or else did not intend a gift to a college corporation. The legatees, therefore, cannot perform their promise as they made it and as the testatrix understood it without violating the law of the state against perpetuities. The letter of instruction then proceeds: "I desire $3,000 set apart, the income where- of shall be applied to the purchase of shoes for poor children attending the parochial schools of St. Paul's R. C. Church, Brook- lyn." This provision offends in the same way with the first as to the duration of the trust with also the difficulty that the bene- ficiaries are indeterminate. Levy v. Levy, 33 N. T. 99. Again the respondent answers, both as to this clause and the one following which requires -'$3,000 set apart for the St. Vincent de Paul Society connected with St. Paul's Church," that the church is incor- porated, "and will receive $6,000 with a re- quest from the residuary legatees to use one-half the income to purchase shoes for poor children attending the parochial school." The request would bind nobody. What the testatrix directed was not a gift to the church, but an application by her own chos- en trustees of income to the two specified purposes. And if she intended the disposi- tion now suggested, once more it is true that she could have given $6,000 to the church corporation with a request as to the supply of shoes quite as well as*- her legatees can do it, and there was no need of the absolute devise and bequest represented to exist. Then follow these provisions, viz.: "The sum of $3,000 for the benefit of the Home of the Good Shepherd, and the sum of $5,000 for the Little Sisters of the Poor, both in Brooklyn." It is said that these two so- cieties are incorporated, but they may not be entitled to the principal, if the trustees refuse it, for the latter are authorized to "limit the use of said bequests to the income thereof." And again the observation recurs that a bequest to these corporations could easily have been made in the will if that had been understood to be the real intention. Finally the letter prescribes that any resi- due of the fund remaining should be applied "in aid" of the charities and purposes named in the will or in the letter, "or in any other charity which you or a majority of you may prefer." The respondent says that just such a provision as this in the body of a will has been upheld. Power v. Cassidy, 79 N. Y. 602. That is not true. On the contrary this court has very recently declined to carry the doctrine of that case beyond its own essen- tial limits, and is not likely to agree that a devise may become the mere equivalent of a general power of attorney. Prichard v. Thompson, 95 N. Y. 76. All through this letter the duty of the legatees is denominated a "trust," the gifts provided are sometimes called "bequests," and at its close, after charging the legatees to impose upon her beneficiaries "as far as you can" the "obligation" of '"the offering of the holy sacrifice of the mass" in her own behalf and that of certain named relatives, she expresses her own sense of the force and character of her letter in the concluding sentence, "I desire to give to these instruc- tions all the force and solemnity of a last will and testament." This letter of instructions clearly and un- mistakably shows the real nature of the transaction. The writer leaves almost noth- ing to the discretion of the trustees. She se- lects out her own objects of charity in the main, describes them in detail, fixes the amounts to be given and impresses upon her directions the "solemnity of a last will and testament." It is not at all the case of a devise to one absolutely to be expended at his discretion, but a definite and distinct trust having in view specific purposes and contemplating their precise performance. If we construed this document to mean such dispositions as are now asserted, we should be driven to the inevitable inference that every one of them could have been easily, and safely, and perfectly made in the will itself, and that when told to the con- trary by Judge McCue the testatrix was told what was utterly untrue, and what a jury might easily believe was known to be un- true, and so that the testatrix was led, by deception and fraud, to incur the danger and peril of an absolute devise and bequest— a conclusion which would destroy the will as the product of fraud. We do not believe that. Justice to two honorable men, of char- acter and standing, forbids any such theory. Nothing about the case calls upon, us for a conclusion so harsh and needless. On the contrary, we think Judge McCue told the truth to the testatrix, and that truth was that she could not tie up her estate in the hands of individuals perpetually, they dis- tributing only the income, without violating the law of the state, and that she must either give up the purpose or depend for its accomplishment upon an absolute devise ac- companied by a secret trust. We have thus an important question squarely presented. If equity will not touch this devise by putting a trust for the heirs at law and next of kin upon the fund in the hands of these legatees, the road to an evasion of our statutes, and to the tempta- tions of necessity or greed, will be left wide PKOPERTY IN EQUITY— TRUSTS, 101 open. While In such cases it has been well said that the court should act with caution and only upon the clearest proof of the fraud (Collins v. Hope, 20 Ohio, 501), yet when, as here, the facts are proved beyond reasonable question, we ought not to hesi- tate. The testatrix did intend an absolute devise to these legatees on the face of the will; but she did not intend that they should have the resultant beneficial interest, and re- lied upon their promise to carry its fruits elsewhere. They do not refuse to perform. Although they deny the promise, it is quite possible that they mean to keep it. We are not authorized to say or suspect that they will not, but if they do, they must inevitably carry out a planned and purposed evasion of our statutes against perpetuities. It is said, however, and that brings us to the decisive point in the case; that the Eng- lish authorities turned upon the fact that be- cause of the statutes of mortmain the lands devised upon an honorable promise by the absolute devisee x to dispense them in charity, could not by any process or in any mode be carried to that destination without violating the law, while in this case the charity is not prohibited, but only certain modes of its operation. Let us test this suggestion. The statutes of mortmain were numerous, and followed each other in a succession as rapid as the devices and evasions of the ec- clesiastics which they were framed to over- throw, until by the Act 9 Geo. II. c. 36, it was ordained that no lands or tenements, or money to be laid out thereon, should be giv- en for or charged with any charitable uses whatsoever, unless by deed intended, exe- cuted in the presence of two witnesses and maue at least one year before the death of the party and registered in a prescribed man- ner. While under this statute a devise of land was forbidden to charitable uses, it could be so devoted by a deed inter vivos, and in each of the cases we have cited, the absolute devisee, acting as owner, could by indenture have transferred to charity the land he had taken as devisee. But that did not serve to ward off a trust ex maleficio in any single instance. The result was plainly apparent that the property of the testator, by the artifice of an absolute devise coupled with a secret agreement, had been carried to a charity in defiance of the public law and in fraud of the mortmain acts. These acts did not, therefore, absolutely and totally for- bid gifts of land to charitable uses. They put their prohibition not on the gift, but on the manner of it. They forbade it by will or devise. It is a similar prohibition upon the manner of gifts or transfers which our law imposes. While it is true, as was said at special term in the very able opinion con- tained in the record, that our statute does not forbid charitable devises and bequests, it does forbid expressly and imperatively a certain manner of making them. Gifts or FET.EQ.JUK. — II transfers made in that manner are prohibited and made void. The principal legatee in this case knew it, and it was distinctly plan- ned between him and the testatrix that her understood and declared purpose, which could not be lawfully carried out by a devise on the face of the will, should be effected by an absolute devise coupled with his hon- orable obligation to hold and appropriate the property to forbidden uses. An evasion of the law was the very occasion and object of the absolute devise. Without that it could not have been suggested without a fraud upon the testatrix, for if there was no need of it, if no statute was to be avoided or flanked, the very suggestion of an absolute devise was fraudulent The question here is the character of the legatees' agreement and precisely that and nothing else must serve as a test. They agreed for three lives, under the pretense of ownership, to dole out the income of this fund to indeterminate persons of their selec- tion; at the end of three lives in some man- ner to continue that process, making it per- manent; and to dispense a possible surplus to any charities they might choose. That precise agreement, the one which they made, on the faith of which the testatrix acted,, they must honorably and explicitly carry out or else they have defrauded her; and if they do carry it out as they agreed and as. she understood it, they tie the property up> for three lives and an uncertain period be- yond, and so violate and defy the law. We are not ready to concede that our stat- ute against perpetuities is any the less sacred than the English acts of mortmain, or may be evaded with impunity. It may possibly be that the evils of such evasion. are greater in the one case than in the other,, but that will not justify us in shutting our eyes to the process, or holding that equity stands helpless in presence of the fraud. The learned presiding judge at the general term, while affirming this judgment formal- ly that it might more swiftly come to our bar, sent with it a very wise and prudent caution. He said: "It seems clear to us that the law ought not to encourage arrange- ments for the disposition of property by tes- tators, such as this case discloses." In Wall- grave v. Tebbs, supra, the vice-chancellor said that "the duty of a devisee under the circumstances stated was to throw up the property." Any devise or bequest of this character is dangerous and indefensible. It exposes testators to the suggestion of unnec- essary difficulties as inducements to the arti- fice of an absolute devise concealing an il- legal trust. It exposes the devisee to temp- tation and even when he acts honestly, to severe and unrelenting criticism. It sub- serves no good or useful purpose. If we sustain it we admit that any statute may be thus evaded, and that equity cannot re- dress the wrong. 162 PROPERTY IN EQUITY— TRUSTS. We are not satisfied that the will was made through undue influence and therefore affirm the judgment of the general term which affirmed the decree of the surrogate, with costs. But in the equity action we reverse the judgment of the general term and of the special term, with costs of both parties on the appeal to this court, payable out of the fund, and order a new trial. All concur as to the first appeal. All con- cur as to the second, except RAPALLO, J., not voting. Judgments accordingly. PROPERTY IN EQUITY— TRUSTS. 163 KING v. TALBOT. (40 N. Y. 76.) i Court of Appeals of New York. 1869. This was an action for an accounting against the defendants, as the surviving ex- ecutors of the will of the father of the plain- tiffs. By the will the executors were di- rected to invest $15,000 for each of the plain- tiffs, and the executors made these invest- ments in certain railroad bonds and stock", and in some bank stock. The value of these securities having depreciated, the invest- ment was repudiated by the plaintiffs, and this aetion brought. The further facts ap- pear in the opinion of the court. Stephen P. Nash, for appellants. George M. Titus, for respondents. WOODRUFF, J. It is conceded that in England the rule Is, and has long been set- tled, that a trustee, holding funds to invest for the benefit of his cestui que trust, is bound to make such investment in the pub- lie debt, for the safety whereof the faith of their government is pledged; or in loans, for which real estate is pledged as security. And that although the terms of the trust commit the investment, in general terms, to the discretion of the trustee, that discretion is controlled by the above rule, and is to be exercised within the very narrow limits, which it prescribes. As a purely arbitrary rule, resting upon any special policy of that country, or on any peculiarity in its condition, it has no appli- cation to this country. It is not of the com- mon law. It had no applicability to the con- dition of this country, while a colony of Great Britain, and cannot be said to have been incorporated in our law. So far, and so far only, as it can be said to rest upon fundamental principles of equity, commending themselves to the conscience, and suited to the condition of our affairs, so far it is true, that it has appropriate ap- plication and force, as a guide to the admin- istration of a trust here, as well as in Eng- land. I do not therefore deem it material to in- quire through the multitude of English cases, and the abundant texts of the law- writers, into the origin of the rule in Eng- land, or the date of its early promulgation. Nor in this particular case do I deem it nec- essary to determine whether it should, by precise analogy, be deemed to prohibit here investments in any other public debt than that of the state of New York. Neither, in my judgment, are we at lib- erty, in the decision of this case, to pro- pound any new rule of conduct, by which to judge of the liability of trustees, now sub- jected to examination. Under trusts here- tofore created, the managers thereof per- i Irrelevant parts omitted. formed their duty with the aid of rules for the exercise of their discretion, which were the utterance of equity and good conscience, intelligible to their understanding, and available for their information; otherwise, trusts heretofore existing have been traps and pitfalls to catch the faithful, prudent and diligent trustee, without the power to avoid them. But it is not true that there is no under- lying principle or rule of conduct in the ad- ministration of a trust, which calls for obe- dience. Whether it has been declared by the courts or not, whether it has been en- acted in statutes or not, whether it is in familiar recognition in the affairs of life, there appertains to the relation of trustee and cestui que trust, a duty to be faithful, to be diligent, to be prudent in an adminis- tration intrusted to the former, in confi- dence in his fidelity, diligence and prudence. To this general statement of the duty of trustees, there is no want of promulgation or sanction, nor want of sources of informa- tion for their guidance. In the whole his- tory of trusts, in decisions of courts for a century in England, in all the utterances of the courts of this and the other states of this country, and not less in the conscious good sense of all intelligent minds, its recog- nition is uniform. The real inquiry therefore is, in my judg- ment, in the case before us, and in all like cases: Has the administration of the trust, created by the will of Charles W. King, for the benefit of the plaintiff, been governed by fidelity, diligence and prudence? If it has, the defendants are not liable for losses which nevertheless have happened. This however aids but little in the exam- ination of the defendants' conduct, unless the terms of definition are made more pre- cise. What are fidelity, diligence and dis- cretion? and what is the measure thereof, which trustees are bound to possess and ex- ercise? It is hardly necessary to say that fidelity imports sincere and single intention to ad- minister the trust for the best interest of the parties beneficially interested, and according to the duty which the trust imposes. And this is but a paraphrase of "good faith." The meaning and measure of the required prudence and diligence has been repeatedly discussed, and with a difference of opinion. In extreme rigor, it has sometimes been said that they must be such and as great as that possessed and exercised by the court of chancery itself. And again, it has been said that they are to be such as the trustee exercises in the conduct of his own affairs, of like nature, and between these is the dec- laration that they are to be the highest pru- dence and vigilance, or they will not exon- erate. My own judgment, after an examination of the subject, and bearing in mind the na- ture of the office, its importance and the 164 PBOPEKTY IN EQUITY— TRUSTS. considerations which alone induce men c-f suitable experience, capacity and responsi- bility to accept its usually thankless burden, is that the just and true rule is that the trustee is bound to employ such diligence and such prudence in the care and manage- ment as in general prudent men of discre- tion and intelligence in such matters employ in their own like affairs. This necessarily excludes all speculation, all investments for an uncertain and doubt- ful rise in the market, and of course every thing that does not take into view the na- ture and object of the trust, and the conse- quences of a mistake in the selection of the investment to be made. It therefore does not follow that because prudent men may, and often do, conduct their own affairs with the hope of growing rich, and therein take the hazard of adven- tures which they deem hopeful, trustees may do the same; the preservation of the fund and the procurement of a just income therefrom are primary objects of the crea- tion of the trust itself, and are to be pri- marily regarded. If it be said that trustees are selected by the testator or donor of the trust, from his own knowledge of their capacity, and with- out any expectation that they will do more than, in good faith, exercise the discretion and judgment they possess, the answer is: First, the rule properly assumes the capac- ity of trustees to exercise the prudence and diligence of prudent men in general; and second, it imposes the duty to observe and know or learn what such prudence dictates in the matter in hand. And once more the terms of the trust, and its particular object and purpose, are in no case to be lost sight of in its administration. Lewin, in his treatise on the law of Trusts, etc., (page 332), states, as the result of the several cases, and as the true rule, that "a trustee is bound to exert precisely the same care and solicitude in behalf of his cestui que trust as he would do for himself; but greater measure than this a court of equity will not exact." In general this is true; but if it imports that if he do what men of ordi- nary prudence would not do, in their own affairs, of a like nature, he will be excused, on showing that he dealt with his own prop- erty with like want of discretion, it cannot be sustained as a safe or just rule toward ces- tuis que trust; nor is it required by reason- able indulgence to the trustee; it would be laying the duty to be prudent out of view entirely, and I cannot think the writer in- tended it should be so understood. The Massachusetts cases (Harvard College v. Amory, 9 Pick. 446; Lovell v. Minot, 20 Pick. 116) cited by the counsel for the de- fendants, are in better conformity with the rule as I have stated it. To apply these general views to the case before us, and with the deductions which necessarily flow from their recognition: The testator gave to each of his children $15,000, the interest on the same, so far as required, to be applied to their maintenance and edu- cation, and the principal, with any accumu- lations thereon, to be paid to them severally on their majority; appointed the defendant, Talbot, and his partner, Mr. Olyphant, ex- ecutors, "intrusting to their discretion the settlement of my affairs and the investment of my estate for the benefit of my heirs." If I am correct in my views of the duty of trustees, this last clause neither added to, nor in any wise affected the duty or respon- sibility of these executors; without it they were clothed with discretion; with it their discretion was to be exercised with all the care and prudence belonging to their trust relation to the beneficiaries. Such is the distinct doctrine of the cases very largely cited by the counsel for the parties, and is, I think, the necessary conclusion from the just rule of duty I have stated. What then was the office of the trustees, as indicated by the terms and nature of the trust? If its literal reading be followed, it directed that "$15,000" in money be placed at "interest." The nature of the trust, ac- cording to the manifest intent of the testa- tor, required that in order to the mainte- nance and support of infant children, whose need, in that regard, would be constant and unremitting, that interest should flow in with regularity and without exposure to the uncertainties or fluctuations of adventures of any kind. And then the fund should con- tinue, with any excess of such interest ac- cumulated for their benefit, so as to be deliv- ered at the expiration of their minority. Palpably then the first and obvious duty was to place that $15,000 in a state of se- curity; second, to see to it that it was pro- ductive of interest; and third, so to keep the fund that it should always be subject to future recall for the benefit of the cestui que trust. I do not attach controlling importance to the word "interest" used by the testator, but I do regard it as some guide to the trustees, as an expression of the testator, that he did not contemplate any adventure with the fund, with a view to profits as such. But apart from the inference from the use of that word, I think it should be said, that whenever money is held upon a trust of this description, it is not according to its nature, nor within any just idea of prudence to place the principal of the fund in a condition in which it is necessarily exposed to the hazard of loss or gain, according to the success or failure of the enterprise in which it is em- barked, and in which by the very terms of the investment, the principal is not to be returned at all. It is not denied that the employment of the fund, as capital in trade, would be a clear departure from the duty of trustees. If it cannot be so employed under the man- agement of a copartnership, I see no reason PROPERTY IN EQUITY— TRUSTS. 165 for saying that the incorporation of the part- ners tends, in any degree, to justify it. The moment the fund is invested in hank, or insurance, or railroad stock, it has left the control of the trustees; its safety and the hazard, or risk of loss, is no longer de- pendent upon their skill, care or discretion in its custody or management, and the terms of the investment do not contemplate that it ever will be returned to the trustees. If it be said that at any time the trustees may sell the stock (which is but another name for their interest in the property and business of the corporation), and so re-pos- sess themselves of the original capital, I reply that is necessarily contingent and un- certain; and so the fund has been volunta- rily placed in a condition of uncertainty, de- pendent upon two contingencies: First, the practicability of making the business profit- able; and, second, the judgment, skill and fidelity of those who have the management of it for that purpose. If it be said that men of the highest pru- dence do in fact invest their funds in such stocks, becoming subscribers and contribu- tors thereto in the very formation thereof, and before the business is developed, and in the exercise of their judgment on the probability of its safety and productiveness, the answer is, so do just such men, looking to the hope of profitable returns, invest money in trade and adventures of various kinds. In their private affairs they do, and they lawfully may put their principal funds at hazard; in the affairs of a trust they may not. The very nature of their relation to it forbids it. If it be said that this reasoning assumes that it is certainly practicable so to keep the fund that it shall be productive, and yet safe against any contingency of loss; whereas in fact if loaned upon bond and mortgage, or upon securities of any description, losses from insolvency and depreciation may and often do happen, notwithstanding due and proper care and caution is observed in their selection. Not at all. It assumes and in- sists that the trustees shall not place the fund where its safety and due return to their hands will depend upon the success of the business in which it is adventured, or the skill and honesty of other parties intrusted with its conduct; and it is in the selection of the securities for its safety and actual re- turn that there is scope for discretion and prudence, which if exercised in good faith, constitute due performance of the duty of the trustees. My conclusion is therefore that the defend- ants were not at liberty to invest the fund bequeathed to the plaintiff in stock of the Delaware and Hudson Canal Company; of the New York and Harlem Railroad Com- pany; of the New York and New Haven Railroad Company; of the Bank of Com- merce; or of the Saratoga and Washington Railroad Company; and that the plaintiff was not bound to accept these stocks as and for his legacy, or the investment thereof. In regard to the bonds of the Hudson River Railroad Company and of the Dela- ware and Hudson Canal Company, it ap- pears by schedule B, given in evidence, that the former were mortgage bonds; but what was the extent or sufficiency of the security afforded by such mortgage, or what prop- erty was embraced in it does not appear, nor does it appear whether there was any security whatever for the payment of the canal company's bond. It is not necessary for the decision of this case; and I am not prepared to say that an investment in the bonds of a railroad or other corporation, the payment whereof is secured by a mortgage upon real estate, is not suitable and proper under any circum- stances. If the real estate is ample to insure the payment of the bonds, I do not at present perceive that it is necessarily to be regarded as inferior to the bond of an individual se- cured by mortgage; it would of course be open to all the inquiries which prudence would suggest if the bond and mortgage were that of an individual. The nature, the location and the sufficiency of the se- curity and the terms of the mortgage, and its availability for the protection and ulti- mate realization of the fund, must of course enter into the consideration. But it is not necessary to pursue that sub- ject. The plaintiff in his complaint rejects the entire investment. The court below held that it was equitable that the plaintiff should be held to receive the whole or none of the stocks and bonds, and to that ruling neither the plaintiff nor the defendant have excepted; and therefore the question wheth- er the judgment below was correct in that respect is not before us. It is proper however to say that I do not clearly apprehend the propriety of that rul- ing, unless it be on the ground that the plaintiff in his complaint did so elect. The rule is perfectly well settled that a cestui que trust is at liberty to elect to ap- prove an unauthorized investment and en- joy its profits, or to reject it at his option; and I perceive no reason for saying that where the trustee has divided the fund into parts and made separate investments, the cestui que trust is not at liberty, on equita- ble as well as legal grounds, to approve and adopt such as he thinks it for his interest to approve. The money invested is his money; and in respect to each and every dollar, it seems to me he has an unqualified right to follow it, and claim the fruits of its investment, and that the trustee cannot deny it. The fact that the trustee has made other investments of other parts of the fund, which the cestui que trust is not bound to approve, and disaffirms, cannot, I think, affect the power. For example, suppose in the present case the cestui que trust, on de- 166 PROPERTY IN EQUITY— TRUSTS. livery to him of all the securities and bonds in which his legacy had appeared invested, had declared: Although these investments are improperly made, not In accordance with the intent of the testator, nor in the due per- formance of your duty, I waive all objection on that account, except as to the stock of the Saratoga and Washington Railroad Com- pany. That I reject and return to you. Is it doubtful that his position must be sus- tained? The result is, that the main features of the judgment herein must be affirmed. ********* PROPERTY IN EQUITY— TRUSTS. 167 In re BARKER'S TRUSTS. (1 Ch. Div. 43.) Chancery Division. Nov. 6, 1875. This was a petition under the trustee act, 1850, and the bankruptcy act, 1869, asking for the removal of the sole trustee of a will (who had also a beneficial interest under it), on the ground that he had been adjudicated bankrupt, and for the appointment of a new trustee in his place, and for a vesting or- der. Part of the property subject to the trusts of the will consisted of bonds transferable by delivery with coupons. The trusts were to receive the income, and pay It to one of the petitioners during life. Mr. Chitty. Q. C, and Mr. Bush, in support of petition. Chapman Barber, for trustee. Solicitors: Tatham, Procter & Co.; Walter, Moojen & Co. Mr. Chester, for other par- ties. JESSBL, M. R. In my view, It Is the duty of the court to remove a bankrupt trustee who has trust money to receive or deal with, so that he can misappropriate it. There may, be exceptions, under special circumstances, to that general rule; and it may also be that, where a trustee has no money to receive, he ought not to be removed merely because he has become bankrupt; but I consider the gen- eral rule to be as I have stated. -The reason is obvious. A necessitous man is more likely to be tempted to misappropriate trust funds than one who is wealthy; and besides, a man who has not shewn prudence in managing his own affairs is not likely to be successful in managing those of other people. However, if special circumstances are re- quired for the removal of a bankrupt trustee, I should in the present case find them in the nature of the trust property. Part of the property consists of bonds with coupons, which could very easily be made away with. The trustee must be removed, and I make an or- der accordingly. 168 PKOPEUTY IN EQUITY— MOBTGAGES, LIENS, ETC. CHICK et al. v. WILLETTS. (2 Kan. 384.) Supreme Court of Kansas. Jan. Term, 1864. Error from district court, Shawnee county. Nathan P. Case, for plaintiffs in error. J. & D. Brockway, for defendant in error. OROZIER, C. J. Two questions are pre- sented by the record: First, which law, the twentieth section of the Code, or the sec- ond section of the "amendatory act," pre- scribes the limitation; and, second, when an action upon a promissory note, secured by a •mortgage on real estate, is barred by the statute of limitations, has the mortgagee any remedy upon the mortgage? These are the facts: On the sixth day of April, 1S58, at Kansas City, in the state of Missouri, the defendant executed to the plaintiffs his promissory note, payable one day after date. Afterwards, and on the 12th day of August of that year, the defendant, to se- cure the payment of the note, executed, in this state, a mortgage upon some lots in To- peka, which mortgage contained a stipula- tion that if default was made in the pay- ment of the note for two years from the date of the mortgage, that instrument might be foreclosed, etc. On August 13, 1863, a suit was instituted upon the note and mortgage, and the facts, as above stated, being admit- ted, judgment was rendered for the defend- ant. To reverse that judgment this proceed- ing is instituted. The note haviDg been made in Missouri, would, under the act of February 10, 1859, have been barred in two years from the passage of that act, if there were nothing else to be considered. By a stipulation in the mortgage, the time of payment was de- ferred two years from August 12, 1858. The mortgage having been made in this state, was the arrangement, with reference to our statute of limitations, a Kansas or Missouri contract? Although no change was made upon the face of the note, yet the clause of the mortgage referred to was ef- fective to change its terms as if written across its face. The time of its payment, with reference to the land, was extended two years. Its payment, as against the land, could not be enforced before that time; nor would the limitation laws begin to run .against it until the expiration of that time. These changes in the original contract were effected by the paper which was executed in this state. The contract evidenced by the mortgage is essentially different from that set out in the note, and must control it. Therefore, the contract, as it stood, after the making of the mortgage, was a Kansas contract, and would not be barred in two years. The statutes of limitation of this state are wholly unlike the English statute, and dif- fer materially from the limitation laws of those states which have adhered to the com- mon law forms of action and modes of procedure. Those statutes apply, in terms, to the forms of the action at law and contain no provisions concerning an equitable pro- ceeding. If a party had concurrent reme- dies, one at law, the other in equity, courts of equity applied the limitation prescribed for the action at law. But in all other cases they were said to act merely in analogy to the statutes, and not in obedience to them. In this state, the case is entirely different. The distinction between actions at law and suits in equity is abolished; and the stat- utes of limitation apply equally to both class- es of cases. They were made to apply to the subject matter, and not to the form of the ac- tion. In England and the states referred to, a limitation different from that prescribed for simple contracts in writing, was pre- scribed for specialties. Here, "an action up- on a specialty, or any agreement, contract or promise in writing," must be brought within three years; and it matters not what the relief demanded may be, whether such as could formerly be obtained only in a court of law, or such as might have been afforded by a court of equity exclusively. Mortgages here differ essentially from mortgages at common law, and in the states referred to. At common law, a mort- gage was a conveyance with a defeasance, and gave the mortgagee a present right of possession. Upon it, even before the condi- tions were broken, he might enter peaceably or bring ejectment. If the condition was broken, the conveyance became absolute. If the money was paid when due, the estate reverted to the mortgagor; if not so paid, the estate was gone from him forever. After a time, the law of mortgage was so modified that the legal title was not considered as having passed until the condition was bro- ken. At a later day, another still more im- portant innovation was made. While it was considered that, upon the condition broken, the mortgagee became invested with the le- gal title, and was entitled to possession, yet, in that condition of things, his title was subject to a defeasance. The rents and prof- its operated as cancellation, pro tanto, of his conveyance; and when they reached a sum sufficient to reimburse his original in- vestment, with such use as the law allowed, the legal title reverted to the mortgagor, and he would be entitled to the possession; and he had a right to facilitate this operatiou by payment of the money, and upon appli- cation to a court of equity, his title would be disencumbered of the cloud the mortgage cast upon it. This right of the mortgagor was called "the equity of redemption," and, considering the then prevalent theory of mortgages, the phrase was peculiarly appro- priate and expressive. The title had passed, but he had a right to redeem; and it is among the highest glories of equitable juris- prudence, that at so early a day the means of enforcing this right were supplied. Some PROPERTY IN EQUITY— MORTGAGES, LIENS, ETC. 169 of the states still adhere to the common law- view, more or less modified by the real na- ture of the transaction; but in most of them, practically, all that remains of the old theory is their nomenclature. In this state, a clean sweep has been made by statute. The com- mon law attributes of mortgages have been wholly set aside; the ancient theories have been demolished; and if we could consign to oblivion the terms and phrases — without meaning except in reference to those theories —with which our reflections are still embar- rassed, the legal profession on the bench and at the bar would more readily understand and fully realize the new condition of things. The statute gives the mortgagor the right to the possession, even after the money is due, and confines the remedy of the mortgagee to an ordinary action and sale of the mortgaged premises; thus negativing any idea of title in the mortgagee. It is a mere security, al- though in the form of a conditional convey- ance; creating a lien upon the property, but vesting no estate whatever, either before or after condition broken. It gives no right of possession, and does not limit the mortga- gor's right to control it— except that the se- curity shall not be impaired. He may sell delivered, and knew exactly what he was getting for his payment. But that is not true, for two reasons. The draft was dated October 4, and paid the next day. Four days earlier Brooks had written "I will collect the $28,000 note," and under date of October 2, Brooks had added to the order which he sent Marvin for the latter's share of stock and bonds, the statement "Potter is to furnish note and Ontario stock." Marvin had a right, therefore, to assume that he was paying his money for something more bought than was delivered, and directing the bank to pay, ex- pressly reserved his right as against other parties to demand the balance of his pur- chase. It seems to us, therefore, beyond reasonable question that Brooks was the agent of Marvin to purchase for him of Pot- ter the one-half of the Ward interest, what- ever that in fact might prove to be beyond what was certainly known; that the agent was to pay for such half precisely what he himself paid for the remaining half but not to exceed $25,000; that the agent was In- trusted with the money of the principal to be used in effecting such purchase; and that whether he so applied the whole of it, and what the securities bought really were, the ' agent accurately knew and could readily ex- EQUITABLE REMEDIES. 177 plain, while the principal could not Know, ex- cept as the result of investigation and in- quiry. We think such a case justifies a re- sort to equity and a decree for an accounting. The basis and extent of the equitable juris- diction over matters of account appears to have been seldom considered in our courts, but often discussed in the English authorities. We have been referred to many of these, but they seem to us not harmonious, and occasion- ally difficult to reconcile. Phillips v. Phil- lips, 9 Hare, 471; Dinwiddie v. Bailey, 6 Ves. 139; Mackenzie v. Johnston, 4 Madd. 374; King v. Eossett, 2 Younge & J. 33; Massey v. Banner, 4 Madd. 416; Padwick v. Hurst, 18 Beav. 575; Navulshaw v. Brownrigg, 2 De Gex, M. & G. 441; Makepiece v. Rogers, 11 Jur. (X. S.) 314; Barry v. Stevens, 31 Beav. 2-jS; Foley v. Hill, 2 H. L. Oas. 28; Mo-xon v. Bright, 4 Ch. App. 292. The best considered review of the authorities puts the equitable jurisdiction upon three grounds, viz.: The complicated character of the ac- counts ; the need of a discovery. ,, a nd the existence of a fiduciary or trust relation. 1 Story, Eq. Jur. § 459, and note 5. The ne- cessity for a resort to equity for the first two reasons is now very slight, if it can be said to exist at all, since a court of law can send to a referee a long account, too complicated for the handling of a jury, and furnishes by an examination of the adverse party before trial, and the production and deposit of books and papers, almost as complete a means of discovery as could be furnished by a court of equity. But the jurisdiction of the lat- ter court over trusts and those fiduciary re- lations which partake of that character re- mains, and in such cases the right to an ac- counting seems well established. But the ex- istence of a bare agency is not sufficient. If it was, it would draw into equity every case of bailment, in which an account existed. In Moxon v. Bright, supra, it was said that there are "numerous eases showing that where the relation of principal and agent had imposed a trust upon the agent, the court would enter- fet.eq.jur. — 12 | tain a bill for an accounting, and the only ' difficulty was in determining what constitut- I ed this species of trust." In Foley v. Hill, supra, the question arose over that sort of re- lation which exists as between a banker and his depositor, and it was held to be merely that of debtor and creditor. The court add- ed, however, that as between principal and factor the equitable jurisdiction attached, be- cause the latter partook of the character of a trustee, and that "so it is with regard to an agent dealing with any property * * * and though he is not a trustee according to the strict technical meaning of the word, he is quasi a trustee for that particular transac- tion," and, therefore, equity has jurisdiction. Something to the same general purport was said in this court. Marston v. Gould, 69 N. Y. 225. An accounting is always proper in cases of partnership, yet where the parties were not partners, but the relation existing was that of a quasi partnership, and the posi- tion of the party sued involved "the same trust, duties and obligations," the right to an accounting was declared. To the same effect are other authorities. 1 Story, Eq. Jur. § 463; Shepard v. Brown, 4 Giffard, 208; Hem- ings v. Pugh, Id. 456. In this case Brooks stood relatively to Marvin as his agent to purchase for him one-half of the Ward inter- est, and when intrusted with Marvin's money to be so applied, at a price to be by him de- termined, and to cover the whole of an un- known interest, he stood in a fiduciary rela- tion, and became a quasi trustee of the money in his hands and of the property purchased, and Marvin has the right to call him to ac- count in equity. The court therefore erred in dismissing the complaint, and in refusing to make the findings which would have shown the agency and that no accounting had been had. The judgment should be reversed, the ref- erence discharged and a new trial granted, with costs to abide the event. . All concur. Judgment reversed. 178 EQUITABLE REMEDIES. NORTON et al. v. COONS. (6 N. Y. 33.) i Court of Appeals of New York. 1851. This action was brought by R. & A. Nor- ton against Joseph H. Coons to compel con- tribution from him as co-surety upon the following note: "$1,000. One year after date we jointly and severally promise to pay to the order of Olive Bldridge $1,000, for value received. Troy, March 31, 1841, with interest. Schryver & Aikin. R. & A. Norton. Jo- seph H. Coons." Schryver & Aikin were the principal debt- ors and the parties to this action were sure- ties. The plaintiffs had been compelled by suit to pay the amount of the note, with costs. N. Hill, Jr., for appellant. G. Stow, for respondents. GRAY, J. It Is not denied that, as be- tween principal and surety, when the char- acter in which they are obligated does not appear on the face of the instrument, parol -evidence is admissible to show which is principal and which surety. Nor is it de- nied that one who is about to become a surety upon a note already executed by the principal and other sureties may regulate the terms of his suretyship to suit himself. He may contract to be co-surety with others who have executed the instrument, or to be, as between him and them, surety alone, not co-surety with them, and thus exempt himself from liability to contribute. Harris v. Warner, 13 Wend. 400. The defendant assumes that the proof offered by him and rejected, would establish an agreement be- tween him and one of the principals, by which he was not to be co-surety with the plaintiffs, but surety for them, and, there- fore, not liable in this action to reimburse to the plaintiffs any portion of the amount paid by them. The note itself affords no evidence of this agreement. The question, therefore, is whether it is competent to es- tablish it by parol. The doctrine of con- tribution was first established and enforced in equity. It rested upon and resulted from the maxim, that "equality is equity." This principle has been so long established that persons becoming bound as sureties for a principal debtor are regarded as acting un- der a contract implied from the settled rules which regulate their liability to each other. Craythorne v. Swinburne, 14 Ves. 169. As between the makers of the note and the payee, their rights and liabilities are regu- lated by the terms of the contract as ex- pressed; as between the sureties the con- tract is implied from their signatures to the note, so that the whole contract as ex- pressed and implied is, in short, an agree- i Irrelevant parts omitted. ment by the several obligors to pay the note at maturity, and if, upon default of its being paid, either of the sureties pay it, the others shall contribute, each his equal proportion of the amount paid, less the share of the one who has paid the whole. In the one case the parties have defined their liabilities in express terms; in the other the law has defined them, and in terms equally express, and thus settled as between the sureties the legal effect of sub- scribing their names to the note. They are each chargeable with knowledge of the le- gal liability incurred as between themselves by the execution of the note, and should, therefore, be regarded as standing in the same relation to each other, and bound by the same rules they would be if the legal effect of their contract had been fully writ- ten above their signatures. We are referred to the case of Cray- thorne v. Swinburne, 14 Ves. 169, as au- thority for receiving parol evidence of the terms upon which the defendant signed the note. That was a case in which the instru- ment then under consideration very clearly regulated the terms of the suretyship, but parol evidence was offered and received. It was, however, evidence of extrinsic facts, and was, as remarked by Lord Eldon in that case, in support and not in contradic- tion of the written instrument. No doubt is entertained that parol evidence of collateral facts is admissible to rebut the presump- tion arising from the face of the instru- ment, that all are principals and equally bound to contribute. Harris v. Brooks, 21 Pick. 195. The defendant's proposition goes further. After proving for whose benefit the note was made and who receiv- ed the funds, and thus establishing the re- lation of principal and surety, he proposes to show that he was not co-surety, not by extrinsic facts, but by a parol agreement varying the operation of his contract as de- fined by law and subscribed to by him, and thus, in effect, made his written agreement. Within my means of research, I have not been able to find a case going that length, and I apprehend none exists. The law in this case having defined the rights and ob- ligations of the sureties as between them- selves, their signatures establish their as- sent to it, and the contract is thus made as clear and certain as if the whole had been written. It is the highest and best evidence of their agreement, and the reason of the rule that excludes parol evidence from be- ing received to vary the operation of a con- tract, wholly written by the parties, ap- plies with all its force to this case. The mischiefs and frauds to be guarded against in the one 'case are as great as those in the other. Although the facts in this case are not analogous to those in the case of Thompson v. Ketcham, 8 Johns. 1S9. yet the principle which should govern this is stated there by Kent, C. J., as a principle EQUITABLE BEMEDIES. 179 of general application, and that is, where the operation of a contract is clearly settled by a general principle of law, it ts to be taken to be the true sense of the contract- ing parties, and it is against the general rule to vary the operation of a writing by parol. See Hall v. Newcomb, 7 Hill, 416. It will not be denied that the operation of the contract in this case was clearly settled by a principle of law. The defendant, by subscribing his assent to it, has so far made it his written contract as to be prohibited from overthrowing it by a parol agreement made at the same time. The judgment of the supreme court should be affirmed. RUGGLES, C. J., and JBWETT and Jlc- COUN, JX, concurred, as did GARDINER, J., in a separate opinion. FOOT, J., dis- sented. PAIGE, J., gave no opinion, and MULLETT, J., was not present at the argu- ment. Judgment affirmed. ISO EQUITABLE REMEDIES. WHITE v. MILLER. (47 Ind. 385.) original note. The judgment is affirmed, with costs. EQUITABLE REMEDIES. 183 AETNA LIFE INS. CO. OF HARTFORD v. TOWN OF MIDDLEPORT. SAME v. TOWN OF BELMONT. SAME v. TOWN OF MILFORD. (8 Sup. Ct. 625, 124 U. S. 534.) Supreme Court of the United States. Feb. 6, 1888. Appeal from the Circuit Court of the United States for the Northern District of Illinois. This was an appeal from a decree of the circuit court of the United States for the Northern district of Illinois, dismissing on de- murrer the bill of the Aetna Life Insurance Company, the present appellant. The sub- stance of the bill is that the complainant is the owner of 15 bonds, of $1,000 each, issued by the township of Middleport, in the state of Illinois, dated February 20, 1871, and de- livered to the Chicago, Danville & Vincennes Railroad Company. These bonds were pay- able to bearer, and were bought of the rail- road company by the complainant, who paid value for them. The bill recited that this railroad company was incorporated in 1865 under the laws of the state of Illinois, with power to construct a railroad from a point in Lawrence county, by way of Danville, to the city of Chicago; that an act of the legis- lature of that state, passed March 7, 1867, au- thorized cities, towns, or townships, lying within certain limits, to appropriate moneys and levy a tax to aid the construction of said road; and "that said act authorized all incor- porated towns and cities, and towns acting under township organization, lying wholly or in part within 20 miles of the east line of the state of Illinois, and also between the city of Chicago and the southern boundary of Law- rence county, In said state, to appropriate such sums of money as they should deem proper to the said Chicago, Danville & Vin- cennes Railroad Company, to aid it in the construction of its road, to be paid as soon as the track of said road should be laid and constructed through such cities, towns, or townships: provided, however, that a proposi- tion to make such appropriation should first be submitted to a vote of the legal voters of such cities, towns, or townships at a regular, annual, or special meeting, of which at least ten days' previous notice should be given; and also provided that a vote should be taken on such proposition, by ballot, at the usual place of election, and that a majority of the votes cast should be in favor of the proposition. And your orator further avers that said act authorized and required the authorities of such cities, towns, and townships to levy and col- lect such taxes, and to make such other pro- visions as might be necessary and proper for the prompt payment of such appropriations so made." It is then alleged that on the eighth day of June, 1867, after due publication of notice according to law, a meeting of the legal voters of said town of Middle- port was held, at which they 'cast their votes by ballot upon the proposition to levy and collect a tax of $15,000 upon the taxable prop- erty of the inhabitants of the town to aid in the construction of said railroad, provided Watseka, a city in the county of Iroquois, sit- uated in or near the south line of said town, should be made a point in said road; that it appeared, on counting the votes, that 323 were in favor of and 68 were against such tax, and that thereupon the proposition was duly de- clared carried, the proceedings relating to the meeting and vote duly attested by the town clerk and the moderator of the meeting, and by said clerk duly recorded in the town rec- ords. The bill further averred that the rail- road company accepted this vote and appro- priation of the township, and, relying upon such vote and the good faith of said town, ac- cepted the condition of the appropriation, and constructed and completed its track through said town; that on the tenth day of Febru- ary, 1871, the board of town auditors adopted a resolution of which the following is a copy: "Whereas the township of Middleport did, on the eighth day of June, 1867, vote aid to the | Chicago, Danville & Vincennes Railroad Com- pany to the amount of fifteen thousand dol- lars, and it appearing that said township is unable to pay such amount in money, therefore resolved by the board of auditors of said township that bonds issue to said Chicago, Danville & Vincennes Railroad Company to the amount of fifteen thousand dollars, to- gether with a sufficient amount to cover the discount necessary on said bonds in negoti- ating the same, to-wit, one thousand five hun- dred dollars; said bonds to be dated Febru- ary 20, A. D. 1871, and to bear interest at the rate of ten per cent, from date per annum." In pursuance of this resolution, it was al- leged that on the twenty-fourth day of March, 1S71, the supervisor and town clerk of Mid- dleport executed the 15 bonds which are the subject of this suit; that "the said bonds were numbered one to fifteen, inclusive, and were delivered to the said railroad company, upon the fulfillment of the conditions of said vote, in payment of ninety cents on the dollar of the appropriation made to said company by said vote; both parties believing that said bonds were fully authorized by law, and were legal, valid, and binding on said town, and also believing them to be legal evidences of the debt in favor of said company incurred by said town in voting said appropriation." It was then alleged that on or about the twenty-sixth day of June, 1876, the town of Middleport, which up to that time had paid the interest upon the bonds, filed a bill in equity in the circuit court for the county of Iroquois against the complainant corporation as the holder of said bonds, and certain other persons, "alleging, in substance, the making and issuing of said bonds, as herein stated, that the same were delivered to your orator, and that your orator was the holder thereof, and that the same were made and issued with- out authority of law, and were invalid, and praying the court so to decree, and to enjoin 184 EQUITABLE REMEDIES. your orator from collecting the same, and for other relief, as by the record in the cause, upon reference thereto, will fully appear." It was averred that the circuit court dismissed the bill, but that upon appeal to the supreme court of Illinois the decree dismissing it was reversed,— that court holding that these bonds were void, as issued without authority of law; and the case was remanded to said circuit court for further proceedings, whereupon it passed a decree, in conformity with the opinion of said supreme court, adjudging the bonds void, and enjoined their collection. The bill then charged that said supreme court, while holding the bonds to be void, did not deny, but impliedly admitted, the validity of the appropriation by the town, and insisted that by the issue and delivery of said bonds to the railroad company, and their sale by that com- pany to the present complainant, it was there- by subrogated to the rights of action which that company would have on the contract evi- denced by the vote of the town, and the ac- ceptance and fulfillment of the contract by the railroad company. It was also alleged that no part of the principal sum named in the bonds, or any part of said appropriation, had ever been paid, but that, on the con- trary, the town of Middleport denied all lia- bility therefor; that ever since the purchase of said bonds the complainant had continued to hold, and then held, the same, and had been and then was the holder of all rights which the railroad company or its assigns had against said town by reason of the premises. A decree was then prayed for that the town of Middleport should pay to complainant the amount found due, and should without delay levy and collect all taxes necessary for such payment; also, that the court would enforce the rights of complainant by writs of manda- mus, and such otner and further orders and decrees according to the course of equity as should be necessary and proper; and also prayed that W. H. Leyford, in whose hands as receiver the Chicago, Danville & Vin- cennes Railroad Company had been placed by the court, it being insolvent, might be made a party defendant thereto. To this bill the defendant demurred, and assigned the following as causes for demurrer: First. That said bill does not contain any matter of equity whereon this court can ground any decree or give complainant any relief as against this respondent. Second. Bill shows it is exhibited against respondent and the Chicago, Danville & Vincennes Railroad Company and William Leyford, its receiver, as respondents thereto, and the facts set forth therein show the same relief cannot be granted against all of said respondents, and fails to state facts showing respondents jointly liable, but stated facts which show this respondent, if liable at all, is not jointly liable or in any manner connect- ed with the others, and the bill is multifarious. Third. Fails to show any written agreement on which suit Is brought that would bind re- spondent, and fails to state facts showing a cause of action exists against respondent that arose within five years last past before bring- ing suit. Fourth. Fails to show any written agree- ment on which suit is brought binding on re- spondent on which has arisen a cause of ac- tion within the last ten years prior to bring- ing this suit. Fifth. Fails to set forth facts showing an excuse for the great delay in bringing suit which is shown on face of bill, and equity will not relieve against laches. Sixth. Bill contains many blanks of dates and names and nothing on face of bill from which facts can be obtained to fill same. The court below sustained the demurrer, and dismissed the bill, from which judgment complainant appealed. O. J. Bailey, Jas. H. Sedgwick, and Francis Fellowes, for appellant. Robert Doyle, for appellee. Mr. Justice MILLER, after stating the case as above, delivered the opinion of the court. In the argument of the demurrer before the circuit court, several objections to the bill were taken. The defendant In error, however, relies here upon three principal grounds of defense: First, it denies the right of subrogation, upon which rests the whole case of the complainant; second, it relies upon the statute of limitations of five years; and, third, it asserts that the former decree in the state court is a bar to the action here. The circuit, court held that the statute of limitations was a bar to the present suit, and dismissed the bill on that ground. But we regard the primary question, whether the complainant is entitled to be substituted to the rights of the railroad com- pany after buying the bonds of the town- ship, a much more important question, and are unanimously of opinion that the transac- tion does not authorize such subrogation. The bonds in question in this suit were deliv- ered by the agents of the town of Middle- port to the railroad company, and by that company sold in open market as negotiable instruments to the complainant in this ac- tion. There was no indorsement, nor is there any allegation in the bill that there was any express agreement that the sale of these bonds carried with them any obligation which the company might have had to en- force the appropriation voted by the towii: Notwithstanding the averment in the bill that the intent of complainant in purchasing said bonds, and paying its money therefor, was to acquire such rights of subrogation, it cannot be received as any sufficient al- legation that there was a valid contract to that effect. On the contrary, the bill fairly presents the idea that by reason of the facts of the sale the complainant was in equity subrogated to said rights, and entitled to en- force the same against the town of Middle- EQUITABLE REMEDIES. 185 port. The argument of the learned counsel in the case is based entirely upon the right of the complainant to be subrogated to the rights of the railroad company by virtue of the principles of equity and justice. He does not set up any claim of an. express con- tract for such subrogation. He says: "The equity alleged in the plaintiff's bill is, as I have said, the equity of subrogation. Be- fore proceeding to call the attention of the ■court to the facts from which this equity- arises, it may be useful to advert to the in- stances in which the right of subrogation ex- ists, and to the principles on which it'rests." He founds his argument entirely upon the proposition that when the complainant pur- chased these bonds he thereby paid the debt of the town of Middleport to the railroad company, as voted by it, and that, because it paid this money to that company on bonds which are void, it should be subrogated to the right of the company against the town. The authorities on which he relies are all <;ases in which the party subrogated has actually paid a debt of one party due to another, and claims the right to any secu- rity which the payee in that transaction had against the original debtor. But there is no payment in the case before us of any debt ■of the town. The purpose of the purchase as well as the sale of these bonds, and what the parties supposed they had effected by it, was not the payment of that debt, but the sale and transfer of a debt of the town from one party to another, which debt was evi- denced by the bonds that were thus trans- ferred. Neither party had any idea of ex- tinguishing by this transaction the debt of the town. It was very clear that it was ■a debt yet to be paid, and the discount and interest on the bonds was the consideration which induced the complainant to buy them. The language of this court in Otis v. Cul- lum, 92 U. S. 447, is very apt, and expresses precisely what was done in this case. In that case Otis & Co. were the purchasers of bonds of the city of Topeka from the First National Bank of that place. These bonds were afterwards held by this court to be void for want of authority, just as in the case before us. A suit was brought against the bank, which had failed and was in the hands of a receiver, to recover back the money paid to it for the bonds. After refer- ring to the decision of Lambert v. Heath, 15 Mees. & W. 486, this court said: "Here, also, the plaintiffs in error got exactly what they intended to buy, and did buy. They took no guaranty. They are seeking to recover, as it were, upon one, while none exists. They are not clothed with the rights which such a stipulation would have given them. Not having taken it, they cannot have the bene- fit of it. The bank cannot be charged with a liability which it did not assume. Such se- curities throng the channels of commerce, which they are made to seek, and where they find their market. They pass from hand to hand like bank-notes. The seller is liable ex delicto for bad faith; and ex con- tractu there is an implied warranty on his part that they belong to him, and that they are not forgeries. While there is no express stipulation, there is no liability beyond this. If the buyer desires special protection, he must take a guaranty. He can dictate its terms, and refuse to buy unless it be given. If not taken, he cannot occupy the vantage ground upon which it would have placed him." Page 449. Nor can this case be sustained upon the principle laid down in this court in Louis- iana v. Wood, 102 TJ. S. 294. That was a case in which the city of Louisiana, having a right by its charter to borrow money, had issued bonds and placed them on the market for that purpose. These bonds were nego- tiated by the agents of the city, aud the money received for their sale went directly into its treasury. It was afterwards held that they were invalid for want of being registered. Afterwards the parties who had bought these bonds brought suit against the city for the sum they had paid, on the ground that the city had received their mon- ey without any consideration, and was bound ex aequo et bono to pay it back. The court said: "The only contract actually entered into is the one the law implies from what was done, to wit, that the city would, on de- mand, return the money paid to it by mis- take, and, as the money was got under a form of obligation which was apparently good, that interest should be paid at the le- gal rate from the time the obligation was denied." In the present case there was no borrow- ing of money. There was nothing which pretended to take that form. No money of the complainants ever went into the treasury of the town of Middleport; that municipal- ity never received any money in that trans- action. It did not sell the bonds, either to complainant or anybody else. It simply de- livered bonds, which it had no authority to issue, to the railroad company, and that corporation accepted them in satisfaction of the donation by way of taxation which had been voted in aid of the construction of its road. The whole transaction of the execu- tion and delivery of these bonds was utterly void, because there was no authority in the town to borrow money or to execute bonds for the payment of the sum voted to the railroad company. They conferred no right upon anybody, and of course the transaction by which they were passed by that company to complainant could create no obligation, le- gal or implied, on the part of the town to pay that sum to any holder of these bonds. City of Litchfield v. Ballou, 114 U. S. 190, 5 Sup. Ot. 820, sustains this view of the sub- ject. That town had issued bonds for the purpose of aiding in the construction of a system of water-works. In that case, as in Louisiana v. Wood, the bonds were so far 186 EQUITABLE REMEDIES. in excess of the authority of the town to create a debt that they were held by this court to be void, in the case of Buchanan v. Litchfield, 102 U. S. 278. After this decision, Ballou, another holder of the bonds, brought a suit in equity upon the ground that, though the bonds were void, the town was liable to him for the money which he had paid in their purchase. This court held that there was no equity in the bill, on the ground that, if the plaintiff had any right of action against the city for money had and received, it was an action at law, and equity had no jurisdiction. It was also attempted, in that case, to establish the proposition that, the money of the plaintiffs having been used in the construction of the water-works, there was an equitable lien in favor of the plain- tiffs on those works for the sum advanced. This was also denied by the court. One of the principles lying at the founda- tion of subrogation in equity, in addition to the one already stated, that the person seek- ing this subrogation must have paid the debt, is that he must have done this under some necessity, to save himself from loss which might arise or accrue to him by the enforcement of the debt in the hands of the original creditor; that, being forced under such circumstances to pay off the debt of a creditor who had some superior lien or right to his own, he could, for that reason, be sub- rogated to such rights as the creditor, whose debt he had paid, had against the original debtor. As we have already said, the plain- tiff in this case paid no debt. It bought cer- tain bonds of the railroad company at such discount as was agreed upon between the parties, and took them for the money agreed to be paid therefor. But, even if the case here could be supposed to come within the rule which requires the payment of a debt in order that a party may be subrogated to the rights of a person to whom the debt was paid, the payment in this case was a volun- tary interference of the Aetna Company in the transaction. It had no claim against the town of Middleport. It had no interest at hazard which required it to pay this debt. If it had stood off, and let the railroad com- pany and the town work out their own re- lations to each other, it could have suffered no harm and no loss. There was no obliga- tion on account of which, or reason why, the complainant should have connected itself in any way with this transaction, or have paid this money, except the ordinary desire to make a profit in the purchase of bonds. The fact that the bonds were void, whatever right it may have given against the rail- road company, gave it no right to proceed upon another contract and another obliga- tion of the town to the railroad company. These propositions are very clearly stated in a useful monograph on the Law of Subroga- tion, by Henry N. Sheldon, and are well es- tablished by the authorities which he cites. The doctrine of subrogation is derived from the civil law, and "it is said to be a legal Ac- tion, by force of which an obligation extin- guished by a payment made by a third per- son is treated as still subsisting for the bene- fit of this third person, so that by means of it one creditor is substituted to the rights, remedies, and securities of another. * * * It takes place for the benefit of a person who, being himself a creditor, pays another creditor whose debt is preferred to his by reason of privileges or mortgages, being obliged to make the payment, either as standing in the situation of a surety, or that he may remove a prior incumbrance from the property on which he relies to secure his payment. Subrogation, as a matter of right, independently of agreement, takes place only for the benefit of insurers; or of one who, being himself a creditor, has satisfied the lien of a prior creditor; or for the benefit of a purchaser who has extinguished an in- cumbrance upon the estate which he has pur- chased; or of a co-obligor or surety who has paid the debt which ought, in whole or in part, to have been met by another." Sheld. Subr. §§ 2, 3. In section 240 it is said: "The doctrine of subrogation is not applied for the mere stranger or volunteer who has paid the debt of another without any assignment or agreement for subrogation, without being under any legal obligation to make the pay- ment, and without being compelled to do so for the preservation of any rights or prop- erty of his own." This is sustained by a reference to the cases of Shinn v. Budd, 14 N. J. Bq. 234; Sandford v. McLean, 3 Paige, 117; Hoover v. Epler, 52 Pa. St. 522. In Gadsden v. Brown, Speer, Eq. 37, 41, Chancellor Johnson says: "The doctrine of subrogation is a pure, unmixed equity, hav- ing its foundation in the principles of natu- ral justice, and from its very nature never could have been intended for the relief of those who were in any condition in which they were at liberty to elect whether they would or would not be bound; and, so far as I have been able to learn its history, it has never been so applied. If one with a perfect knowledge of the facts will part with his money, or bind himself by his con- tract in a sufficient consideration, any rule of law which would restore him his money or absolve him from his contract would sub- vert the rules of social order. It has been directed in its application exclusively to the relief of those that were already bound, who could not but choose to abide the penalty." This is perhaps as clear a statement of the doctrine on this subject as is to be found anywhere. Chancellor Walworth, in the case of Sand- ford v. McLean, 3 Paigd, 122, said: "It is only in cases where the person advancing money to pay the debt of a third party stands in the situation of a surety, or is compelled to pay it to protect his own rights, that a court of equity substitutes him in the place of the creditor, as a matter of EQUITABLE REMEDIES. 187 course, without any agreement to that effect. In other cases the demand of a creditor, which is paid with the money of a third per- son, and without any agreement that the se- curity shall be assigned or kept on foot for the benefit of such third person, is abso- lutely extinguished." In Railroad Co. v. Dow, 120 U. S. 287, 7 Sup. Ct. 482, this court said: "The right of subrogation is not founded on contract. It is a creation of equity; is enforced solely for the purpose of accomplishing the ends of substantial justice, and is independent of any contractual relations between the par- ties." In the case of Shinn v. Budd, 14 N. J. Eq. 234, the New Jersey chancellor said (pages 236, 237): "Subrogation as a matter of right, as it exists in the civil law, from which the term has been borrowed and adopted in our own, is never applied in aid of a mere volunteer. Legal substitu- tion into the rights of a creditor, for the benefit of a third person, takes place only for his benefit who, being himself a cred- itor, satisfies the lien of a prior creditor, or for the benefit of a purchaser who extin- guishes the incumbrances upon his estate, or of a co-obligor or surety who discharges the debt, or of an heir who pays the debts •of the succession. Code Nap. bk. 3, tit. 3, art. 1251; Civil Code La. art. 2157; 1 Poth. Obi. pt. 3, c. 1, art. 6, § 2. 'We are ignorant,' say the supreme court of Louisiana, 'of any law which gives to the party who furnishes money for the payment of a debt the rights of the creditor who is thus paid. The legal claim alone belongs, not to all who pay a debt, but only to him who, being bound for it, discharges it.' Nolte & Co. v. Their Cred- itors, 9 Mart. (La.) 602; Curtis v. Kitchen, 8 Mart. (La.) 706; Cox v. Baldwin, 1 Miller, (La.) 147. The principle of legal substitution. as adopted and applied In our system of equity, has, it is believed, been rigidly re- strained within these limits." The cases here referred to as having been decided in the supreme court of Louisiana are especially applicable, as the Code of that state is in the main founded on the civil law from which this right of subrogation has been adopted by the chancery courts of this country. The latest case upon this subject is one from the appellate court of the state of Illinois — Suppiger v. Garrels, 20 Bradw. 625,— the sub- stance of which is thus stated in the sylla- bus: "Subrogation in equity is confined to the relation of principal and surety and guarantors; to cases where a person, to pro- tect his own junior lien, is compelled to re- move one which is superior; and to cases of insurance. * * * Any one who is under no legal obligation or liability to pay the debt is a stranger, and, if he pays the debt, a mere volunteer." No case to the contrary has been shown by the researches of plain- tiff in error, nor have we been able to find anything contravening these principles in our own investigation of the subject. They are conclusive against the claim of the com- plainant here, who in this instance is a mere volunteer, who paid nobody's debt, who bought negotiable bonds in open mar- ket without anybody's indorsement, and as a matter of business. The complainant company has therefore no right to the sub- rogation which it sets up in the present ac- tion. Without considering the other questions, which is unnecessary, the decree of the cir- cuit court is affirmed. These principles require, also, the affirm- ance of the decrees in the cases of the same appellant against the town of Belmont, (No. 1,135,) and the town of Milford, (No. 1,136;) and so it Is ordered. 188 EQUITABLE REMEDIES. GUSDORF et al. v. IKELHEIMER et al. (75 Ala. 148.) Supreme Court of Alabama. Dec. Term, 1883. Appeal from city court, Selma county; John Haralson, Judge. Win. O. Ward, for annellants. White & White, contra. BRICKELL, 0. J. The appellants, Gus- dorf & Co., were judgment creditors of Solo- mon Lehman, and caused an execution issu- ing upon their judgment to be levied upon personal property of value sufficient to satis- fy it. At the time of the judgment and levy, they had also choses in action transferred to them by the judgment debtor, as collateral security for their debt The appellees were general creditors of Lehman, and, on the day succeeding the levy of the execution, they caused an attachment to issue, which was levied upon the same personal property on which the execution was levied. The at- tachment suit was duly and successfully prosecuted to judgment in favor of the ap- pellees. The personal property was, or the proceeds of sales were, more than sufficient to satisfy the execution of Gusdorf & Co., and were by the sheriff applied to its satis- faction. Before this application of the pro- ceeds of sales was made, Gusdorf & Co. had made collection of the collaterals to the amount, as alleged in the original bill, of seven hundred and forty-three 41 /ioo dollars, which yet remains in their hands; and the purpose of the original bill is to compel them to apply that sum in satisfaction of their execution, exonerating the proceeds of the sales of the property, to that extent, from liability to the execution, for the benefit of the appellees, and the satisfaction of their junior lien. This, of course, involves a de- cree compelling them to pay that sum to the appellees. The equities of the appellees and of Gusdorf & Co., upon this state of facts, we first propose to consider. The general principle, upon which the eq- uity of the bill is founded, is that if one creditor has a lien upon, or interest in, or the security of two funds for a debt, and another creditor of the same debtor has a lien upon, or interest in, or the security of one only of the funds for another debt, the latter has the right, in equity and good con- science, to compel the former first to resort for satisfaction to the fund on which he alone has the lien, interest, or security, if that course is necessary for the satisfaction of both debts, whenever it will not trench upon his rights, or operate to his prejudice. 1 Story, Eq. Jur. § 633; Nelson v. Dunn, 15 Ala. 501; Chapman v. Hamilton, 19 Ala. 121. "The nature of the property which constitutes the double fund does not affect the operation of the principle; and it ap- plies whenever a paramount creditor holds collateral security, or can resort collaterally to the real or personal property for the sat- isfaction of the debt." 2 White & T. Lead. Cas. Eq. pt. 1, p. 262. In De Peyster v. Hildreth, 2 Barb. Ch. 109, a creditor had a judgment which was a lien upon real es- tate, and upon which execution had issued, and was levied upon personal property suffi- cient for the payment of the judgment; and it was held he was bound to exhaust the levy, in exoneration of the real estate for the relief of mortgagees taking a mortgage subsequently to the judgment. And in In- galls v. Morgan, 10 N. Y. 178, a judgment creditor having a lien on real estate which was sold by the debtor, and notes for the purchase-money taken and transferred to the creditor, it was held he was bound to collect and apply the notes in satisfaction of the judgment. Without losing all re- course upon the lands in the hands of a sub- sequent purchaser, he could not surrender the notes to the debtor from whom he re- ceived them. The court said: "The facts present a case where the creditor has a lien upon two funds for the security of his debt, and another party has an interest in one only of these funds, without any right , to resort to the other. In such a case, equity will compel the creditor to take his satisfac- tion out of the fund upon which he alone has an interest, so that both parties may, if possible, escape without injury. There are' numerous cases to be found in the books in which a court of equity has intervened and applied this doctrine, without inquiry or dis- tinction whether the property constituting the two funds or securities was of the same nature; whether the one was real, and the other personal; or, if both were personal, whether the one was visible, tangible, capa- ble of actual possession, and the other a chose resting in action. The distinction can only be made, when a necessity for it may be shown to exist, to prevent the operation of the principle from working to the preju- dice of the paramount creditor. Goss v. Lester, 1 Wis. 51. The whole foundation of the principle, it is said, is the natural equity and benevolence which requires every one to exercise his rights, so far as he can without inconvenience to himself, in a way that will avoid causing loss to others. 1 Story, Eq. Jur. § 633. An attachment Is a statutory process; and its purpose is that the jurisdiction of the court in the ulterior proceedings may be the more effectual, and that security for the judgment obtained may be afforded to the plaintiff. From the day it is made, the levy creates a lien, taking precedence of all sub- sequent alienations, or of subsequent in- cumbrances, made or created by the debt- or, and of subsequent liens acquired by other creditors by the operation of law, or of legal process. The lien, it is true, is, primarily, incipient, inchoate, and condition- al, operating only on the particular property which is the subject of the levy, and will be defeated if judgment is not obtained, upon EQUITABLE REMEDIES. 189 which process can Issue for the subjection of the property to sale. And it is, of conse- quence, as is insisted by counsel, less strin- gent, frailer, and more uncertain than the lien of an execution. Phillips v. Ash, 63 Ala. 414. But that the lien is of statutory derivation, and the mode of its enforcement is prescribed by statute, is not of itself an objection to compelling a creditor having prior liens so to use them, that the attach- ing creditor, after he has obtained judg- ment, shall not be defeated. Eeal estate is by statute subjected to the satisfaction of legal process, and liens of judgments or ex- ecutions operating upon it are derived whol- ly from statutes declaring them. A court of equity, in this country, does not more often exercise its jurisdiction to marshal assets, and in the exercise of the jurisdiction com- pelling creditors or others to exhaust funds or securities to which they alone can resort, than in the exoneration of lands for the ben- efit of creditors having liens upon them by judgment, or by execution derived from statute. The existence of the jurisdiction, and the propriety of its exercise, have not been questioned. A mechanic's lien is the creature of statute, and yet, in the applica- tion of this doctrine, it has been regarded as standing upon equal ground with a mort- gage, affecting to the same extent legal and equitable rights. Hamilton v. Schwehr, 34 Md. 108; Kenny v. Gage, 33 Vt. 302. Wheth- er the court would intervene to marshal as- sets, and to apply this doctrine, at the in- stance of an attaching creditor, before he had by judgment perfected the lien of the attachment; or whether, in such case, inter- vention would not be limited to a preserva- tion of things and of the rights of the par- ties in statu quo, if it could be done without injustice to the prior creditor, is not a ques- tion now arising. The appellees had per- fected their lien by judgment before exhibit- ing the bill. The prior creditors had notice of the levy of the attachment, and, so far as they could without inconvenience to them- selves, or without trenching upon the rights of others, were bound in good conscience so to employ their prior lien upon the prop- erty levied upon, and the collaterals they had received as security for their debt, as not to disappoint and defeat the levy in the event it was perfected by judgment. The collaterals, the choses in action trans- ferred to Gusdorf & Co., were intended by the debtor, and were by them received, as a source or fund from which the debt re- duced to judgment should be paid. It is true that, by taking the collaterals, the right to proceed by execution on the judgment was not intended to be delayed or post- poned, and the creditor had the right to re- tain the collaterals, while pursuing legal remedies upon the judgment, and, if neces- sary to his full security and satisfaction, would not have been interfered with, or compelled to resort to the one in prefer- | ence to the other. But having realized, by collection from the collaterals, the sum now in controversy, before satisfaction was ob- tained •through the medium of the execution, that sum was by operation of law imme- diately applied to the satisfaction of his debt, extinguishing it pro tanto. A payment to him by the debtor of a like sum, at that instant of time, would not have been for tnat purpose more effectual. The source or fund from which moneys are derived often directs and controls their appropriation And when a creditor receives moneys, de- rived from sources or funds which have been devoted to particular purposes, he is without right to appropriate them to other uses. Field v. Holland, 1 Am. Lead. Cas. 341; Schiffer v. Feagin, 51 Ala. 335; Webster v. Singley, 53 Ala. 20S. But it is said that after the levy of the execution and the transfer of the collaterals there was an agreement between the debtor and the creditor that there should be no appropriation of the moneys derived from the collaterals, until it was ascertained that the proceeds of the sale of the property lev- ied on by execution were not sufficient to pay the debt. If any such agreement was made, it was subsequent to the levy of the attachment at the suit of the appellees, and after debtor and creditor had notice or knowledge of it. The levy created a lien,, which could not be impaired by the subse- quent acts or agreements of the debtor; and the creditor, having notice of it, was dis- abled from entering into any agreement by which the equitable obligation to exhaust the moneys arising from the collaterals, be- fore resorting to the proceeds of the sales of the property levied upon and sold under exe- cution, would be relieved for the benefit of the debtor, and by which he could regain the collaterals, or acquire the moneys real- ized from them, discharged from both debts. All that it is needful to say now in refer- ence to the subsequent garnishments at the suit of Hellman & Herman and Kiefer & Brothers is that there was not a debt owing from Gusdorf & Co., the garnishees, to Leh- man, the debtor in attachment. A garnish- ment is a species of attachment, and like it is strictly a statutory remedy. It lies only for the subjection of debts or demands upon winch the defendant in attachment can in his own name and right recover at law in an action of debt, or of indebitatus assumpsit. There was no debt due or owing by Gusdorf & Co. to Lehman, when the garnishment was served, nor could a debt arise from the- transaction and relations existing between them, unless the money realized from the collaterals had exceeded the debt to the se- curity of which they were appropriated. The money it is intended by the garnish- ments to reach is not due or owing to Leh- man; it forms a payment; it is not a debt; it' is an extinguishment pro tanto of the debt due to Gusdorf & Co. Of the char- 190 EQUITABLE REMEDIES. acter of payment It was not deprived be- cause Gusdorf & Co. did not make an appli- cation of it, retaining It in their hands, sep- arate from the moneys received from the sheriff. The law, in view of the source from which it was derived, applied it in payment of the debt the collaterals from which it was realized were intended to secure. This ap- plication, without infringing upon the equi- ties of the appellees, of which they had no- tice, Gusdorf & Co. could not avoid or re- fuse, converting themselves into debtors of Lehman. In addition, the rights and equities of the junior attaching creditors were subordinate to the rights and equities the appellees, as prior attaching creditors, had acquired by their superior diligence. In courts of equity, as in courts of law, after-acquired rights by the employment of legal remedies yield pre- cedence to clear rights acquired through like remedies. Herbert v. Mechanics' Build- ing & Loan Ass'n, 17 N. J. Eq. 497. Upon the whole case, it seems clear that Gusdorf & Co. had double security for the payment of their judgment, while the appellees had a claim upon but one species of the property, constituting their security. From the fund upon which the appellees had no claim or lien, Gusdorf & Co. had in their possession a sum of money which it was their duty to apply in satisfaction of their judgment. If the application had been made, as it could have been without injury or inconvenience, a corresponding sum the appellees would have realized from the sales of the property upon which they had a lien, junior to that of Gusdorf & Co. Upon plain principles of equity and justice, they should be compelled to yield up the money derived from the col- lection of the collaterals, that it may be ap- plied to the satisfaction of the judgment of the appellees. Otherwise, through mere wantonness or caprice, or from mere indif- ference or favoritism, they would be permit- ted to work injury to another, of whose rights they had notice, and to whom they at least owed good faith. When a sheriff, having collected money under legal process, Is In doubt as to its proper appropriation, he may give notice to all parties in interest, make a statement of the facts, and apply to the court from which the process issued, and to which it is return- able, for its advice and direction. Hender- son v. Richardson, 5 Ala. 349. The parties interested in the distribution of the money, or either of them, may also apply to the court for its direction to the sheriff, and for the determination of their respective rights. Turner v. Lawrence, 11 Ala. 427. In either case, the application is summary, addressed to the inherent power of the court to control its own process, preventing its misuse or abuse, and protecting its officers against the conflicting claims of suitors. The power has therefore been exercised only when it was necessary to determine between rival claimants the priorities of legal liens, de- rived from legal process. In its exercise the court has not assumed jurisdiction of mat- ters of purely equitable cognizance, nor has it undertaken to marshal assets, adjusting the equitable rights of rival claimants. Wil- liams v. Rogers, 5 Johns. 163; Bruton v. Cannon, Harp. (S. C.) 389. The power the court exercises is of the same nature and character with that which is exercised in setting aside, upon motion, sales of land made under its process. It is not incon- sistent with, nor in deprivation of, the juris- diction of a court of equity to interfere and grant fuller and more complete relief than can be obtained in a court of law. Ray v. Womble, 56 Ala. 32; Lockett v. Hurt, 57 Ala. 198. The marshaling of assets is peculiarly of equitable cognizance, and it is in the ex- ercise of this jurisdiction the court applies its own doctrine, that a creditor having Ihe security of two funds shall not so exercise his rights as to disappoint another creditor, who has the security of only one of them,— a doctrine it often enforces through subro- gation, which it alone can decree. In the present case, the jurisdiction of the court is undoubted. We find no error in the rec- ord, and the decree of the city court must be affirmed. EQUITABLE REMEDIES. 191 LABADIE et al. v. HEWITT. (85 111. 341.) Supreme Court of Illinois, June Term, 1877. Appeal from circuit court, St. Clair county, William H. Snyder, Judge. Bill by William C. Hewitt against James F. Labadie and others for partition. The de- fendants demur. Decree for complainant, and defendants appeal. Affirmed. Mr. T. J. Richardson, for the appellants. Mr. John B. Bowman and Mr. R. A. Ilalbert, for the appellee. WALKER, J. It has been repeatedly held that when the general assembly gives a new remedy, by petition, under the statute, it in no wise affects the jurisdiction of the court of chancery; that the new remedy is cumula- tive; that the court of chancery may proceed under its original jurisdiction as though the cumulative remedy had not been given, unless limited or restricted by statute. The court of chancery has entertained and exercised jurisdiction in cases of partition from quite an ancient period. Courts of law were also invested with jurisdiction to adjudge and make partition, even before it became a source of equitable relief. After chancery as- sumed jurisdiction, the courts of law contin- ued to make partition, without any change in their mode of procedure. But the practice in the British courts of law was inconvenient and cumbersome, and our general assembly, to remedy the evil, gave a petition in lieu of the old writ of partition, and prescribed the practice thereunder. But it has never been supposed that in doing so they designed to take away the jurisdiction from the courts of chancery, or intended thereby in any de- gree to alter or amend the practice in that court. Hence bills have, since the partition act, been filed in chancery whenever the facts of the case have required such proceedings, and in doing so we are aware of no practice that requires the proceeding to conform to the practice of the partition act; in fact, the decisions of this court recognize the chancery practice as governing such proceedings. Chick- ering v. Failes, 29 111. 304; Kester v. Stark, 19 111. 328; Gregory v. Cover, Id. 608; Walk- er v. Laflin, 26 111. 472. The act of 1861 (Sess. Laws, p. 181), fully recognizes chan- cery proceedings as not being governed by the partition act, but being unable to avail of its provisions. An examination of the bill in this case clearly shows that it was intended as a bill in chancery for partition. Its frame clearly shows that to have been the primary object, and it must be considered as governed by chancery practice. That practice, in our courts, has never required such bills to be verified by oath; hence this objection was not well taken. Had the proceeding been under the statute, it would have been different, as the statute requirts the oath. In other respects, the bill seems to be good in substance. There is no force in the objection that the bill was multifarious. We fail to see in what it can be claimed to be so; but, even If it was, that objection could only be raised by demurrer, specifying it as a ground of ob- jection. If not so raised, the objection is con- sidered as waived; and it cannot be raised on trial or after decree rendered, though, if raised by answer, the court may or not, as it chooses, on the hearing, allow the objection. 1 Daniel, Ch. Prac. (1st Lond. Ed.) p. 451. Hence, even if the bill was multifarious, the objection comes too late. It is next urged that the court erred by allowing Monchevant to pay for necessary re- pairs, to prevent waste and loss to the ten- ants in common. It is urged that he should have set up his claim by cross bill, or at least by answer praying relief, which would be treated as a cross bill. It is not denied that when such repairs to an estate owned in common are necessary and properly made, they become a charge against the other ten- ants in common; and when one of them files a bill for partition, and in it admits the charge as correct and equitable, and asks that it may be satisfied out of the proceeds of the sale before partition is made of the money, and the other defendants demur, and thus admit the justice of the claim, no rea- son is perceived why the court, in adjusting the equities of the parties, should not decree its payment. Had the other defendants ob- jected to its allowance, then he might have been required to file a cross bill. But that is by no means certain in this proceeding, as, when the court acquires jurisdiction to make partition, it will do complete justice amongst all the parties in interest. Henrich- sen v. Hodgen, 67 HI. 179. There was no objection that the bill did not pray the appointment of commissioners, as they were duly appointed, and examined the premises, and reported that they could not be divided without manifest injury to the parties in interest; and the act of 1S61 au- thorized the court to sell the premises, and divide the money among the tenants in com- mon. It is urged with much apparent earnestness that it was error to decree of the proceeds of the sale the payment of a sufficient sum to the administrator of the deceased, from whom the lands descended, to pay the debts allowed against him, which were proved up, and allowed against the estate. The 1ea:iuts in common held these lands charged with the debts of the estate, and when the property could not be partitioned, and the estate had to be sold for the purpose, no objection is perceived to making such an order. It would not be just to the purchaser to have the mon- ey paid to the heirs, and leave the premises liable to be again sold to pay the debts. It works no injury to the hairs, and deprives 192 EQUITABLE KEMEDIES. them of no right, and the premises will, no doubt, bring more to them than if they were sold subject to the debts against the estate. This is ■ not a sale for the payment of such debts, but it is a sale that partition may be made in money, as it could not be done in land; and it is only equitable to deduct a sufficient sum from the proceeds of the sale to free; it from the lien of the debts. Had the land been susceptible of division. then the object of the bill would have been accomplished, a nd it would have been beyond the power of the court to have ordered the sale for the payment of the debts, but leav- ing the administrator to proceed to obtain an order from the county court for a sale. The entire record considered, we fail to per- ceive any error for which the decree should be reversed, and it is affirmed. Decree affirmed. EQUITABLE REMEDIES. 193 PAGE v. MARTIN. (20 Atl. 46, 46 N. J. Eq. 585.) Court of Errors and Appeals of New Jersey. June 21, 1890. Appeal from court of chancery; Bird, VK-e-Chancellor. The following is the agreement referred to in the opinion. " Stanley, N. J., July 30, '84. In consideration of his keeping the line fence dividing my land from that of the property now occupied by S. R. Bissell, also exclusive right of way over a strip of land, adjoining said Bissell's line fence, one hundred feet wide, from the river to said woodland, for the term of five years from August 1, 1884, with the privilege of live years' additional on the same terms. It is further agreed that the said Page shall have the option to purchase the de- sired tract and the right of way strip, at any time during the continuance of this lease, for the sum of one hundred and fifty (150) dollars per acre, or any portion of the tract in the same ratio of value, say one-half the tract for one-half the sum stated. "In case of the sale or mortgage of the farm by me, this tract is to be excepted. The said Page is permitted to erect a boat- house, and make such other improvements as he may deem advisable. "He is also permitted to inclose it by a wire barb or other suitable fence to be kept in repair at his sole expense. " [Signed] Ezha G. Tolman. "Witness: Geo. Shbpahd Page. "James McGttine." Thos. N. MeC>irter,ioT appollant. Theo- dore Runyou, for respondent. GARRISON, J., (after stating the facts as above.) This bill was for the specific per- formam-eof an agreementto convey lands. The attitude of courts of equity upon ap- plications of this character may be sum- marized in tv\ o propositions: First, that the relief invoked is not a matter exdebito jnstitise, but rests in the sound discretion of the court; and, second, that where a contract is certain in all its parts, and for a fair consideration, and where the party seeking its enforcement is not himself in default, it is as much a matter of course for courts of equity to decree the perform- ance of the contract as it is for courts of law to give damages for the breach of it. That relief rests, not upon what the court must do, but rather upon what, in yiew of all the circumstances, it ought to do, is a distinction which is of little or no practical moment. In every case of this character the court is chiefly concerned with the equities of the parties before it. In the present case the party seeking the enforce- ment of specific performance grounds his right upon a written contract made with the owner of the lands, under the sup- posed protection of which he entered into possession of the premises, and laid out a large sum of money in their permanentim- provement. Resistance comes, not from the owner, but from one who, with full notice of the above facts, purchased the lands, and is based solely upon the alleged incapacity of the owner to make a valid FET.EQ.JUR. — 13 contract. The dismissal of the complain- ant's bill, under these circumstances, does not inure to the benefit of him whose in- capacity furnished the sole ground for the action of the court. In the absence of fraud, its effect is simply to transfer the improvements from him who innocently made them to a speculative volunteer. The defense, being a purely legal one, must be clearly made out by him who sets it up. The decree in the court of chancery dismissed the bill, with the results above indicated. This appeal questions whether such a disposition of the case does com- plete justice between the parties. The facts necessary to an understanding of the original transaction are briefly these: One Ezra Tolman, who was the owner of two acres of rough land adjoining his other property, entered into a written agreement in respect to said lands with Page, a neighboring proprietor. After the delivery of this writing, Page inclosed the tract with wire fencing, and, with the ap- proval of the owner, expended nearly $ 700 in the construction of a boat-house, and in otherwise fitting the premises for a pleasure park and picnic ground. This was in the spring of 1884, In December of the year following, Tolman was, upon an inquisition of lunacy, determined to be of unsound mind ; and in 1887 his guardian obtained an order for the sale of his lands, and, among them, the lands in the posses- sion of Page under the said agreement were offered for sale. Previous to the sale of these lands, Page notified the guardian that, in the exercise of the option con- tained in his agreement with Tolman, he desired to take title to the said lands, anil tendered himself ready to make payment therefor according to the terms agreed upon. At the sale, Martin, who is the sole defendant in this suit, became the pur- chaser at precisely the same price which. Page had agreed to give. Before the bid- ding began, Martin was notified by Page- of his said agreement, and of the other- facts above stated. A deed for the lands; was delivered by the guardian to Martin;, but without general covenants of title. Page then tendered to Martin the full sum which Page was to pay, and which Martin had paid, and upon his refusal to convey filed his bill in the court of chan- cery. The evidence as to Tolman's general in- capacity to transact business in 1884 was-, so slight that we must assume what in- deed was evident from the conclusions of the vice-chancellor, who heard the case,, that the main ground for declaring void his contract with Page is its supposed in- adequacy of consideration. The inade- quacy which thus becomes the controlling feature of the case, will upon examination be found to attach solely to the leasehold interest and easements which Page was to enjoy prior to the exercise by him of his option to purchase; and even upon these points all inadequacy vanishes in view of the large sum of money immediately ex- pended by the lessee upon the lands of his lessor. Where a tenant, with power to purchase, expends- in one year, on the per- manent improvement of the land, double its entire purchase price, it is a refinement 194 EQUITABLE REMEDIES. Of technicality to say that all of his rights shall be lost because he was not, by the terms of his lease, compelled to make these improvements. The jurisdiction now ex- ercised concerns itself solely with that ■which conduces to justice. Moreover, the terms of the lease are before us only as ev- idence of mental incapacity on the one hand, or of mala fides on the other. For all other purposes, that portion of the contract is excluded and passed. The in- sistment is not that the agreement was unfair or disadvantageous as understood and performed between the parties to it, but that it is evidence of inability to con- tract, because advantage might have been taken of some of its provisions by a per- son less scrupulous than the complainant. The agreement in question actually result- ed in changing a piece of land, valueless to its owner, into improved property, so that in any event the owner became assured of receiving the full value of his land; for, if the purchase fell through, he still had the land permanently improved beyond even the purchase price. So that, if we are to judge of Tolman's business capacity by the only transaction fully before us, it in- dicates at least average shrewdness and foresight. As to mala fides on the part of Page, the contract is singularly at variance to such a notion. It being admitted that he was not compelled to put the improvements upon the land, the fact that he did so is the strong- est possible proof of good faith upon his part. If we look to the part of the agreement which concerns the purchase of 'the land by Page, it bears the same evidence of entire fairness. The price agreed upon was $150 an acre, which, ac- cording to the testimony, was all that it was worth. Moreover, with what force can this price for the bare soil be criti- cized by one who himself gave precisely the same price for the same land after $ 700 had been expended in its improvement? It will not, I think, be contended that a decree which cedes these improvements without consideration to a mere volunteer with notice is compelled by the equities of the case, or that it does complete jus- tice to the parties to this dispute. Icannot avoid the impression that the agreement has been viewed too rigidly as a lease, and too little as a contract of sale, in which latter aspect we are now solely con- cerned with it. The criticism of the court below, and much of the argument of coun- sel, cease to be significant; when the con- tract is regarded in this latter light. Thus viewed, it is a contract of sale, plain and fair in all its parts, whereby the owner agrees to sell for a full price land valueless, or even an expense, to him, and by which the vendee is given a period of option, dur- ing which time he is to save the owner harmless, and bear himself all of the ex- pense of care and improvement. If there is anything harsh or suspicious in such a transaction, I utterly fail to perceive it. If Page's object had been to aca uire the land for an inadequate price, — and, unless this was a possible result of his contract, the case against him falls to the ground,— he must have known that to a man of Tol- man's habits a cash sum much smaller than the purchase price, to say nothing of the improvements, would have been the surest means of accomplishing his object. The result reached in this court is that Page had a contract fair in all its parts ; that Tolman's incapacity to make such a contract is notshown; that Page, in bona fide reliance upon this contract, improved the property, and was entitled to a deed upon tender of the purchase money ; that Martin purchased with notice of the facts out of which complainant's rights grew ; and that complete justice will be done to the parties to this suit by a decree that Martin deed the property to Page upon payment of the price paid by him for said lands, without interest. Upon the argument, it was insisted that the contract set out in the bill could not be enforced because it lacked mutuality of obligation. In so far as this contention rests in matter of law, the proposition is that a contract to convey, which at its inception contemplated an option in the vendee, cannot be enforced by him after an affirmative exercise of the option, because, prior to its exercise, he was under no obli- gation to purchase. In support of this contention the case of Hawralty v. War- ren, 18 N. J. Eq. 124, is cited. That case was, it is true, almost identical with the one now before us ; but, so far from sup- porting the proposition for which it is cited, it is diametrically opposed to such an insistment. The language of Chancel- lor Zabkiskie in that case is as follows: "It is now well settled that an optional agreement to convey without any cove- nantor obligation to convey, and without any mutuality of remedy, will be enforced, in equity, if it is made upon proper consid- eration, or forms part of a lease or other contrnct hetween the parties that may be the true consideration for it." This case was afterwards cited by Chancellor Run von in Scott v. Shiner, 27 N. J. Eq.^7, ns an authority for the doctrine that a stipulation that a party shall have an op- tion of purchase is equivalent to a con- ditional-agreement to convey. The complainant's case must be deemed to be before us for consideration upon its merits. Let the record be remitted in order that a decree may be entered in accordance with the views herein expressed. Reversed unanimously. EQUITABLE KEMEDIES. 195 JONES v. NEWHALL. (115 Mass. 244.) Supreme Judicial Court of Massachusetts. Suffolk. June 20, 1874. Bill by Leonard S. Jones against Benjamin B. Newhall to enforce specific performance of a contract for the purchase of all the in- terest of complainant in the Worthington Land Associates, and all the right and inter- est of Jones in any property belonging to the Dorchester Land Association, the share of said Jones consisting of 14 shares of stock of said land association, together with two certain mortgages. Decree for plaintiff. Case reported to the full court. Bill dis- missed. R. D. Smith & A. E. Jones, for plaintiff. A. C. Clark, for defendant. WELLS, J. Jurisdiction in equity is con- ferred upon this court by Gen. St. c. 113, § 2, to hear and determine "suits for the spe- cific performance of written contracts by and against either party to the contract, and his heirs, devisees, executors, administra- tors and assigns." The power extends alike to written contracts of all descriptions, but its exercise is restricted by the proviso, "when the parties have not a plain, ade- quate and complete remedy at the common law." This proviso has always been so con- strued and applied as to make it a test, in each particular case, by which to determine whether jurisdiction in equity shall be en- tertained. If the only relief to which the plaintiff would be entitled in equity is the same in measure and kind as that which he might obtain in a suit at law, he can have no standing upon the equity side of the court, unless his remedy at law is doubtful, circuitous, or complicated by. multiplicity of parties having different interests. Charles River Bridge v. Warren Bridge, 6 Pick. 376, 396; Sears v. Boston, 16 Pick. 357; Wilson v. Leishman, 12 Mete. (Mass.) 316, 321; Bil- liard v. Allen, 4 Cush. 532, 535; Pratt v. Pond, 5 Allen, 59; Glass v. Hulbert, 102 Mass. 21, 27; Ward v. Peck, 114 Mass. 121. In contracts for the sale of personal prop- erty jurisdiction in equity is rarely enter- tained, although the only remedy at law may be the recovery of damages, the meas- ure of which is the difference between the market value of the property at the time of the breach and the price as fixed by the contract. The reason is that, in regard to most articles of personal property, the com- modity and its market value are supposed to be substantially equivalent, each to the other, so that they may be readily inter- changed. The seller may convert his re- jected goods into money; the purchaser, with his money, may obtain similar goods; each presumably at the market price; and the difference between that and the contract price, recoverable at law, will be full indem- nity. Jones v. Boston Mill Corp., 4 Pick. 507, 511; Adderley v. Dixon, 1 Sim. & S. 607; Harnett v. Yielding, 2 Schoales & L. 549, 553; Adams, Eq. 83; Fry, Spec. Perf. §§ 12, 29. It is otherwise with fixed property like real estate. Compensation in damages, measured by the difference in price as ascer- tained by the market value and by the con- tract, has never been regarded in equity as such adequate indemnity for nonfulfillment of a contract for the sale or purchase of land as to justify the refusal of relief in equity. When that is the extent of the right to recover at law, a bill in equity is maintainable, even in favor of the vendor, to enforce fulfillment of the contract, and payment of the full amount of the price agreed on. Old Colony Railroad v. Evans, 6 Gray, 25. Although the general subject is within the chancery jurisdiction of the court, yet in- adequacy of the damages recoverable at law is essential to the right to invoke its action as a court of chancery in any particular case. The rule is the same whether applied to the contracts for the sale of real or of personal estate. The difference in the application arises from the difference in the character of the subject-matter- of the contracts in re- spect to the question whether damages at law will afford full and adequate indemnity to the party seeking relief. If the character of the property be such that the loss of the contract will not be fairly compensated in damages based upon an estimate of its mar- ket value, relief may be had in equity, whether it relates to real or to personal es- tate. Adderley v. Dixon, 1 Sim. & S. 607; Duncuft v. Albrecht, 12 Sim. 189, 199; Clark v. Flint, 22 Pick. 231; Story, Eq. Jur. § 717; Adams, Eq. 83; Fry, Spec. Perf. §§ 11, 23, 30, 37. The property in question in this case ap pears to be of such a character. It is not material, therefore, whether the interest of the plaintiff is in the nature of realty or of personalty. But the relief he seeks is not such as to require the aid of a court of equity. At the time this bill was filed the only obligation on the part of the defendant to be enforced either at law or in equity was his express promise to pay a definite sum of money as an installment towards the purchase of certain property from the plain- tiff. That promise is supported by the exec- utory agreement of the plaintiff to convey the property, contained in the same instru- ment, as its consideration; but in respect of performance the several promises of the de- fendant are separable from the entirety of the contract, and each one may be enforced by itself as an assumpsit. The plaintiff is not obliged to sue in damages upon his con- tract as for a general breach. He may re- cover at law the full amount of the install- 196 EQUITABLE REMEDIES. ment due. In equity he can have no decree beyond that. He cannot come into equity to obtain precisely what he can have at law. Howe v. Nickerson, 14 Allen, 400, 406; Jacobs v. Peterborough & S. R. Co., 8 Oush. 223; Gill v. Bicknell, 2 Cush. 355; Russell v. Clark, 7 Cranch, 69. The plaintiff has no occasion for any order of the court in regard to performance by him- self. At most, all that is necessary for him to do in order to recover his judgment at law, is to offer a conveyance of a portion of his interest corresponding to the amount of the installment due. We do not regard the fact, stated in the report, that the defendant "also refused to pay an assessment then due, or about to be- come due," for which he was bound by the contract to provide, and hold the plaintiff harmless; because that is immaterial upon demurrer, there being no allegation in the bill in reference to it. And besides, there would be sufficient remedy at law for such a breach, if it were sufficiently alleged and proved. If the plaintiff will be compelled to bring several actions for his full remedy at law, it is because he has a contract payable in installments; that is, he may have several causes of action. But he may sue them sev- erally, or he may join them all in one suit, when all shall have fallen due, at his own election. He is not driven into equity to escape the necessity of many suits at law. It is true, as the plaintiff insists, that a different rule exists in the English courts of chancery, and that in numerous cases, not unlike the present, relief in equity has there been granted by decree for payment of a sum of money due by contract, although equally recoverable at law. The maxim, which, as we apply it, makes the want of adequate remedy at law essential to the right to have relief in equity in each case, has always been attached to chancery juris- diction. But in the English courts it has been rather by way of indicating the nature and origin of the jurisdiction, and defining the class of rights or subjects to which it attaches, than as a constant limit upon its exercise. Courts of chancery were created to supply defects in proceedings at common law. Story, Eq. Jur. §§ 49, 54. Their juris- diction grew out of the exigencies of the earlier periods in the judicial history of the country, and was from time to time enlarged to meet those exigencies. Its limits, having become defined and fixed by usage, have not contracted as the jurisdiction of the com- mon-law courts was extended. It has. al- ways been held that jurisdiction once ac- quired in chancery, over any subject or class of rights, is not taken away by any subse- quent enlargement of the powers of the courts of common law, nor by reason of any new modes of remedy that may be afforded by those courts. Story, Eq. Jur. § G4i; Snell, Eq. 335; Slim v. Croucher, 1 De Gex, F. & J. 518. Hence arose a wide range of concurrent jurisdiction, within which chancery proceed- ed to administer appropriate remedies, with- out regard to the question whether a like remedy could be had in the courts of law. Colt v. Woollaston, 2 P. AVms. 154; Green v. Barrett, 1 Sim. 45; Blain v. Agar, 2 Sim. 289; Cridland v. De Mauley, 1 De Gex & S. 459; Evans v. Bicknell, 6 Ves. 174; Bur- rowes v. Lock, 10 Ves. 470. One of its max- ims was that there must be mutuality of right to avail of that jurisdiction. Accord- ingly, if the contract or cause of complaint was such that one of the parties might re- quire the peculiar relief which chancery alone could afford, it was frequently held that the principle of mutuality required that jurisdiction should be equally maintained in favor of the other party, who sought and could have no other relief than recovery of the same amount of money due or measure of damages as would have been awarded by judgment in the court of law. Hall v. War- ren, 9 Ves. 605; Walker v. Eastern Coun- ties Ry. Co., 6 Hare, 594; Kenney v. Wex- ham, 6 Madd. 355. In contracts respecting land there is an additional consideration for maintaining ju- risdiction in equity in favor of the vendor as well as the vendee, which is doubtless, much more influential with the English courts than it can be here; and that is the doctrine of equitable conversion. It is re- ferred to as a reason for the exercise of ju- risdiction at the suit of the vendor, in Cave v. Cave, 2 Eden, 139; Eastern Counties Ry. Co. v. Hawkes, 5 H. L. Cas. 331; Fry, Spec. Perf. § 23. In Massachusetts, instead of a distinct and independent court of chancery, with a juris- diction derived from and defined and fixed by long usage, we have certain chancery powers conferred upon the court of common law, whose jurisdiction and modes of rem- edy as a court of law had already become ex- tended much beyond those of English courts of common law, partly by statutes and part- ly by its own adaptation of its remedies to the necessities which arose from the absence of the court of chancery. This difference in the relations of the two jurisdictions would alone give occasion for different rules gov- erning their exercise. Black v. Black, 4 Pick. 234, 238; Tirrell v. Merrill, 17 Mass. 117, 121;. Baker v. Biddle, Baldw. 394, Fed. Cas. No. 764. The successive statutes by which the eq- uity powers of this court have been confer- red or enlarged have always affixed to their exercise the condition that "the parties have not a plain, adequate, and complete remedy at the common law." This has been con- strued as referring "to remedies at law as they exist under our statutes and accord- ing to our course of practice." Pratt v. Pond. EQUITABLE REMEDIES. 197 5 Allen, 59. It has also been repeatedly held that, in reference to the range of jurisdic- tion conferred, the several statutes were to be construed strictly. Black v. Black, and Charles River Bridge v. Warren Bridge, ubi supra. No reason or necessity remains for the maintenance of concurrent jurisdiction, except for the sake of a more perfect rem- edy in equity when the plaintiff shall estab- lish his right to it. And such we understand to be the purport and intent of our stat- utes upon the subject. Milkman v. Ord- way, 106 Mass. 232; Angell v. Stone, 110 -Mass. 54. A similar restriction upon the equity juris- diction of the federal courts is so construed with great strictness. Oelricks v. Spain, 15 Wall. 211, 228; Grand Chute v. Winegar, Id. 373; Phoenix Mut. Life Ins. Co. v. Bailey, 13 Wall. 616; Parker v. Winnipiseogee Lake Cotton & Woollen Co., 2 Black, 545; Baker v. Biddle, Baldw. 394, Fed. Cas. No. 764. See, also, Woodman v. Freeman, 25 Me. 531; Piscataquis F. & M. Ins. Co. v. Hill, 60 Me. 178. Even in courts of general chancery powers and of independent organization, while the power to entertain bills relating to all mat- ters which in their nature are within their concurrent jurisdiction is maintained, yet the usual course of practice is to remit par- ties to their remedy at law, provided that be plain and adequate, unless for some rea- son of peculiar advantage which equity is supposed to possess, or some other cause influencing the discretion of the court. Kerr, Fraud & M. 45; Bisp. Eq. § 200; also, Id. § 37; Snell, Eq. 334; Clifford v. Brooke, 13 Ves. 131; Whitmore v. Mackeson, 16 Beav. 126; Hammond v. Messenger, 9 Sim. 327; Hoare v. Bremridge, L. R. 14 Eq. 522, 8 Ch. App. 22. The doctrine of Colt v. Woollaston, 2 P. Wms. 154, and Gvoen v. Barrett, 1 Sim. 45, thougn not expressly overruled, has been questioned (Thompson v. Barclay, 9 Law J. Ch. 215, 219), and does not seem to govern the usual practice of the courts. See cases above cited, and Newham v. May, 13 Price, 749. But, independently of statute restrictions, the objection that the plaintiff may have a sufficient remedy or defense at law in the particular case is a matter of equitable dis- cretion, rather than of jurisdictional right; and is therefore not always available on demurrer. Colt v. Nettervill, 2 P. Wms. 304; Ramshire v. Bolton, L. R. 8 Eq. 294; Hill v. Lane, L. R. 11 Eq. 215; Barry v. Croskey, 2 Johns. & H. 1. According to the practice in this common- wealth, on the other hand, under the stat- utes relating to the exercise of jurisdiction in equity, a bill is demurrable, not only if it show that the plaintiff has a remedy at law, equally sufficient and available, but also if it fail to show that he is without such remedy. Pool v. Lloyd, 5 Mete. (Mass.) 525, 529; Woodman v. Saltonstall, 7 Cush. 1S1; Pratt v. Pond, 5 Allen, 59; Clark v. Jones, Id. 379; Metcalf v. Cady, 8 Allen, 587; Mill River Loan Fund Ass'n v. Claflin, 9 Allen, 101; Com. v. Smithi 10 Allen, 448; Bassett v. Brown, 100 Mass. 355, 105 Mass. 551, 560. The demurrer, therefore, must be sustain- ed, and the bill dismissed. 198 EQUITABLE REMEDIES. LINDSAY v. GLASS. (21 N. B. 897, 119 Ind. 301.) Supreme Court of Indiana. June 6, 1889. Appeal from circuit court, Bartholomew county; Nelson R. Keyes, Judge. Action by Eliza Glass against James Keyes, to recover certain sums of money. Judgment for plaintiff, and defendant ap- peals. G. W. Cooper and C. B. Cooper, for ap- pellant. F. T. Hord, M. D. Emig, and R. W. Harrison, for appellee. MITOHELL, J. Eliza Glass brought this action against James Lindsay, to recover cer- tain sums of money derived from her deceased husband's estate, which she charges that the defendant received and appropriated to his own use. There is no controversy but that the defendant received $2,060 of the plaintiff's money from various sources, but he denies her right to recover, because he says that in the month of November, 1884, the plaintiff being very old, feeble, and to- tally blind, and without a home, agreed with the defendant, who is her brother, to give him all her property in consideration of his agreement to furnish her a good home, and support and take care of her during the re- mainder of her natural life. He asserts that, in compliance with his agreement, he kept the plaintiff from the date above mentioned until in the month of February, 1887, at which time she left his house, and has not since returned, although he has been all the time and still is ready and willing to perform his part of the contract. There was a verdict and judgment for the plaintiff below for $1,502.12, and the sole question here relates to the propriety of the ruling of the court in overruling the defendant's motion for a new trial. It is well to observe that contracts made by persons in the helplessness of misfortune and distress, or under the infirmity and de- crepitude of old age, through which a claim is asserted to their property in consideration of an unexecuted promise of support and maintenance, are peculiar in their character and incidents. One who is aged and infirm, without a home, and in a state of dependence upon another, to whom property is conveyed or transferred in consideration of an agree- ment for support, is scarcely in a situation to exercise the care for his own interest and protection that usually characterizes the con- duct of persons in making ordinary contracts. Such contracts, involving continuing care and personal service, and requiring for their proper execution that the parties concerned should occupy towards each other relations of confidence and esteem, cannot be specific- ally enforced while they remain executory. Ikerd v. Beavers, 106 Ind. 483, 7 N. E. Rep. 326. To compel one to accept the alternative of receiving support under an improvident contract or to become a subject of charity might often result in great oppression. Such contracts belong to a class, the specific en- forcement of which courts of chancery do not undertake. Parties who enter into such agreements must rely upon a continuance of the confidence and esteem which induced the arrangement in the beginning, or take their chances to recover damages if the contract is repudiated. For the protection of persons who thus dispose of their property, courts are inclined to treat the transfer or convey- ance, so long as the contract for support re- mains executory, as having been made upon the condition subsequent that the promise to furnish care and maintenance shall be fully and fairly performed. Richter v. Richter, HI Ind. 456, 12 N. E. Rep. 698; Bogie v. Bogie, 41 Wis. 209; Rowell v. Jewett, 69 Me. 293; Eastman v. Batchelder, 36 N. H. 141; Bethlehem v. Annis, 40 N. H. 34; Wilder v. Whittemore, 15 Mass. 262; Thayer v. Richards, 19 Pick. 398. Until the con- tract is fully performed on both sides, it is liable to be rescinded, and the property re- claimed, leaving the parties to their remedies, respectively, for what may have been fur- nished under the contract. In the present case the plaintiff persistently denied that she ever made any contract with the appellant by which he became entitled to her property in consideration of a promise to support her. Besides, if there was a contract such as the appellant claims, there was evidence which tended to show that he was not fairly carry- ing it out, and that the plaintiff was left in the family of a stranger, where she was re- ceiving care at the defendant's expense, un- til her sisters took her in charge. The find- ing of the jury was therefore fully justified upon either hypothesis. A transfer of prop- erty in consideration of an agreement to fur- nish the grantor a home, with care and sup- port, imposes a personal obligation upon the grantee or transferee which he cannot evade without the consent of the other party con- cerned. One who accepts the property of a sister or parent, and agrees in consideration thereof to furnish a home, with suitable maintenance and support, does not perform his contract fairly, and according to its spir- it, by simply furnishing shelter and subsist- ence. A home is something in addition to a roof over one's head, with food and drink supplied by strangers. The appellant complains because certain letters received by him, requesting that he come and assist the plaintiff in settling some business transactions, were excluded from the jury. The letters were irrelevant to any matter in issue. So, also, were certain ques- tions relating to the treatment received by the plaintiff from her sisters before she came to live with the appellant. There was no er- ror in permitting the plaintiff to prove that the appellant said he wanted to sell her land because he needed the money. We find no instructions in the record. Hence there is no question before us as to the proper rate of interest to be charged in such a case. We must presume that the EQUITABLE EEMEDIES. 199 court instructed the jury properly upon the -subject of interest. Upon the view of the case most favorable to the appellant, he was entitled to nothing more than to be reim- bursed for the actual value of the support and maintenance furnished, and for expenses in- curred in and about the plaintiff's business. So far as we can discover, this was the rule applied. The judgment is affirmed, with costs. 200 EQUITABLE REMEDIES. MADDISON v. ALDERSON. (L. R. 8 App. Cas. 467.) i House of Lords. June 4, 1883. Rigby, Q. 0., and W. D. Rawlins, for appellant. Davey, Q. C, and Gainsford Bruce, for respondent. SELBORNE, L. C. My lords, the appel- lant in this case lived for many years, as housekeeper, in the service of Thomas Alder- son, who died on the 16th of December, 1877. She originally entered his service in 1845, and, having become his housekeeper some years before 1860, continued to serve him in that capacity down to the time of his death. He was, when he died, the owner in fee simple of a freehold e&tato of Moulton, in Yorkshire, called the "Manor House Farm," in extent about ninety-two acres, and in value about £137 per annum, which had been devised to him by the will of an uncle, who died in 1863. It is certain that he in- tended to leave the appellant (subject to a small annuity) a life interest in this estate, for he had a will prepared for that purpose in 1872, which he signed in 1874, and which only failed for want of due attestation. The appellant having possessed herself of the title deeds, the heir-at-law, to whom the estate descended, brought the present ac- tion to recover them; and she, by her state- ment of defence and counter-claim, insisted that she was entitled to the same benefit which she would have taken under the will, if duly executed, by virtue of a parol agree- ment alleged to have been made with her by her master for sufficient consideration, and to have been on her part performed. I do not think it necessary to read the aver- ments contained in the 3rd, 4th and 5th paragraphs of her pleading, because, so far as the facts are concerned, they musx now be taken from the verdict of the jury, to- gether with the judge's notes of the evi- dence at the trial, if (as seems to have been assumed in both the courts below) that evi- dence, as well as the verdict, may be re- garded. Whether that assumption was cor- rect or not is in my view immaterial, be- cause in either view my own conclusion would be the same. The question which (at the instance of th» appellant's counsel, and without objection from the respondent) was left by Mr. Just- ice Stephen to the jury was "whether the defendant was induced to serve Thomas Al- Qerson as his housekeeper without wages for many years, and to give up other prospects of establishment in life, by a promise made by him to her to make a will leaving her a life estate in Moulton Manor farm if and when it became his property." That ques- tion the jury answered in the affirmative. The evidence on which the verdict proceed- ed was that of the appellant herself, with- i Irrelevant parts omitted. out any corroboration other than the unat- tested will, which made no mention of any such inducement. I abstain from stating her evidence in detail, because, in the condensed form in which it appears upon the judge's notes, it certainly does not go beyond (if, indeed, it is sufficient to justify) the verdict. The material parts of it were to this effect: That the appellant, having been long (as already stated) in Thomas Alderson's serv- ice, contemplated leaving him, and had some idea of being married, in May, 1860, and so informed him. She had ten years before "be- gun to leave wages in his hand." The ar- rear went on from that time, owing to his straitened circumstances; and in May, 1860, £23. 7s. 6d. remained due to her. He told her of his expectations from his uncle, and that his uncle wished her to stay with him as long as he lived, and wished him to "make her all right" by leaving her the Moulton Manor farm, which he promised to do if she lived with him. "And so, therefore," she said, "I took his advice, and I remained on by his promises." In another place: "I did not leave because he advised me not." She did not afterwards "press him" for wages; but, after his death she brought an action against his administrator for them, which was dropped (as I understand) before or at the time when the present action was com- menced. When he signed his will, he read it over to her, and asked whether it was right, and "whether she was satisfied." The case thus presented was manifestly one of conduct on the part of the appellant (affecting her arrangements in life and pecu- niary interests) induced by promises of her master to leave her a life estate in the Moul- ton Manor farm by will, rather than one of definite contract, for mutual considerations, made between herself and him at any particu- lar time. There was certainly no contract on her part which she would have broken by vol- untarily leaving his service at any time during his life; and I see no evidence of any agree- ment by her to serve without, or to release her claim to, wages. If there was a contract on his part, it was conditional upon, and in con- sideration of, a series of acts to be done by her, which she was at liberty to do or not to do, as she thought fit; and which, if done, would extend over the whole remainder of his life. If he had dismissed her, I do not see how she could have brought any action at law, or obtained any relief in equity. It was admitted in the argument at the bar, that the appellant had endeavored to bring her case within the supposed authori- ty of Loffus v. Maw, 3 GifE. 592, decided by Vice Chancellor Stuart (uiirter circumstan- ces not dissimilar) on the doctrine of repre- sentation, for which purpose the vice chan- cellor relied upon some expressions used by Lord Cottenham in Hammersley v. De Biel, 12 Clark & F. 45, at page 62, note, and con- sidered himself at liberty to disregard the reasons assigned by Lord Cranworth and EQUITABLE REJIED1ES. 201 Lord Brougham for the later decision of this house in Jorden v. Money, 5 H. L. Cas. 185. Mr. Justice Stephen and the court of ap- peal (rightly, in my opinion) took a differ- ent view. I have always understood it to have been decided in Jorden v. Money, 5 H. L. Cas. 185, that the ddctrine of estoppel by representation is applicable only to rep- resentations as to some state of facts al- leged to be at the time actually in existence, and not to promises de futuro, which, if binding at all, must be binding as contracts, —a distinction which is illustrated by such cases as Prole v. Soady, 2 Giff. 1, and Pig- gott v. Stratton, 1 De Gex., F. & J. 33. Ham- mersley v. De Biel, 12 Clark & F. 45, was a case of contract for valuable considera- tion, duly signed, so as to fulfill the require- ments of the statute of frauds, in the view both of Lords Langdale and Cottenham in chancery, and of Lord Campbell in the house of lords. 12 Clark & F. 63, 64, note, and 87; 3 Beav. 474-476. Those decisions are con- sistent with each other. HammerSley v. De Biel, 12 Clark & F. 45, does not justify, and Jorden v. Money, 5 H. L. Cas. 185, is irrecon- cilable with, the reasons stated by the vice chancellor for his judgment in Loffus v. Maw, 3 Giff. 592. Mr. Justice Stephen and the court of ap- peal arrived at the conclusion that a con- tract was proved in this case (notwithstand- ing the character of the evidence and the form of the verdict), on which, but for the statute of frauds, the appellant might have been entitled to relief; but they differed on the question of part performance, Mr. Justice Stephen thinking that there was part per- formance sufficient to take the case out of the statute of frauds, the court of appeal thinking otherwise. This makes it necessary for your lordships now to examine the doc- trine of equity as to part performance of parol contracts. The cases upon this subject (which are very numerous) have all, or nearly all, arisen under those words of the 4th section of the statute of frauds which provide that "no ac- tion shall be brought to charge any person upon any contract or sale of lands, tenements, or hereditaments, or any interest in or con- cerning them unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be char- ged therewith, or some other person there- unto by him lawfully authorized." It has been recently decided by the court of appeal in Britain v. Rossiter, 11 Q. B. Div. 123, that the equity of part performance does not ex- tend, and ought not to be extended, to con- tracts concerning any other subject-matter than land,— an opinion which seems to differ from that of Lord Cottenham (see Ham- mersley v. De Biel, 12 Clark & F. 64, note, and Lassence v. Tierney, 1 Macn. & G. 572, that equity has been stated by high authority to rest upon the principle of fraud: "Courts of equity will not permit the statute to be made an instrument of fraud." By this it cannot be meant that equity will relieve against a public statute of general policy in cases admitted to fall within it; and I agree with an observation made by Lord Justice Cotton in Britain v. Rossiter, 11 Q. B. Div. 130, that this summary way of stating the principle (however true it may be when prop- erly understood) is not an adequate explana- tion, either of the precise grounds, or of the established limits of the equitable doctrine of part performance. It has been determined at law (and in this respect there can be no difference between law and equity) that the 4th section of the statute of frauds does not avoid parol- con- tracts, but only bars the legal remedies by which they might otherwise have been en- forced. Crosby v. Wadsworth, 6 Bast, 602, 611; Leroux v. Brown, 12 C. B. 824; Britain v. Rossiter, 11 Q. B. Div. 123. Crosby v. Wads- worth, 6 East, 602, 611, was an action of tres- pass brought by the purchaser against the vendor of a growing crop. The contract was by parol, and it was held to be concerning an interest in land, within the 4th section of the statute. "But," said Lord EllenboBough, "the statute does not expressly and immedi- ately vacate such contracts, if made by parol; it only precludes the bringing of actions to en- force them by charging the contracting party, or his representatives, on the ground of such contract, and of some supposed breach there- of, which description of action does not prop- erly apply to the one now brought, viz. a mere general action of trespass, complaining of an injury to the possession of the plaintiff, however acquired, by contract or otherwise. But although the contract for this interest in or concerning land may not be in itself wholly void under the statute, merely on account of its being by parol (so that, if the same had been executed, the parties could have treated it as a nullity), yet, being executory, and as for the nonperformance of it no action could have been, by the provisions of the 4th sec- tion, maintained, we think it might be dis- charged before anything was done under it which could amount to a part execution of it." From the law thus stated the equitable consequences of the part performance of a parol contract concerning land seem to me naturally to result. In a suit founded on such part performance, the defendant is real- ly "charged" upon the equities resulting from the acts done in execution of the contract, and not (within the meaning of the statute) upon the contract itself. If such equities were excluded, injustice of a kind which the statute cannot be thought to have had in con- templation would follow. Let the case be supposed of a parol contract to sell land, com- pletely performed on both sides, as to every- thing except conveyance, the whole purchase- money paid; the purchaser put into posses- sion; expenditure by him (say in costly build- 202 EQUITABLE REMEDIES. ings) upon the property; leases granted by him to tenants. The contract is not a nullity; there is nothing in the statute to estop any court which may have to exercise jurisdic- tion in the matter from inquiring into and taking notice of the truth of the facts. All the acts done must be referred to the actual contract, which is the measure and test of their legal and equitable character and con- sequences. If, therefore, in such a case a con- veyance were refused, and an action of eject- ment brought by the vendor or his heir against the purchaser, nothing could be done towards ascertaining and adjusting the equitable rights and liabilities of the parties, without taking the contract into account. The matter has advanced beyond the stage of contract; and the equities which arise out of the stage which it has reached cannot be administered unless the contract is regarded. The choice is between undoing what has been done (which is not always possible, or, if possible, just) and completing what has been left un- done. The line may not always be capable of being so clearly drawn as in the case which I have supposed; but it is not arbitrary or unreasonable to hold that when the statute says that no action is to be brought to charge any person upon a contract concerning land, it has in view the simple case in which he is charged upon the contract only, and not that in which there are equities resulting from res gestae subsequent to and arising out of the contract. So long as the connection of those res gestae with the alleged contract does not depend upon mere parol testimony, but is reasonably to be inferred from the res gestae themselves, justice seems to require some such limitation of the scope of the stat- ute, which might otherwise interpose an ob- stacle even to the rectification of material errors, however clearly proved, in an ex- ecuted conveyance founded upon an unsigned agreement. It is not in England only that such a doc- trine prevails; a similar (perhaps even a larger) equity is also recognized in other countries, whose eqitable jurisprudence is derived from the same original sources as our own. By the law of Scotland, "written contracts, in strict technical language, are those of which authentic written evidence is required, not merely in proof, but in solem- nity; as obligations relative to land; or obliga- tions agreed to be reduced to writing; or those required by statute to be in writing." To constitute any such contract, there must be a "fina-1 engagement"; and as a corollary to that rule a "locus penitentiae" is given; i. e. "a power of resiling from an incomplete engagement, from an unaccepted offer, from a mutual contract to which all have not as- sented, from an obligation to which writing Is requisite, and has not yet been adhibited in an authentic shape." Bnt to this, "rei inter- ventus raises a personal exception, which ex- cludes the plea of locus penitentiae. It is in- ferred from any proceedings, not unimpor- tant, on the part of the obligee, known to and permitted by the obligor to take place on the faith of the contract, as if it were perfect; provided they are unequivocally referable to the contract, and productive of alteration of circumstances, loss, or inconvenience, though not irretrievable." Bell, Princ. §§ 18, 25, 26. This must, I think, have been the principle on which the house of lords proceeded in 1701, when it reversed the decree of Lord Somers in Lester v. Foxcroft, Colles, Pari. Cas. 108. Lord Redesdale, in Clinan v. Cooke, 1 Schoales & L. 22, and Bond v. Hopkins, Id. 433, referred to that case as if it had been the earliest decision on the subject. But there were, in fact, two prior cases before Lord Guilford,— Hollis v. Edwards, 1 Vern. 159, and Butcher v. Stapely, Id. 363,— decided in 1683 and 1685, within the first ten years after the enactment of the statute of frauds, in the earlier of which the lord keeper had refused, and in the latter had granted, relief. Butcher v. Stapely, 1 Vern. 363, was a strong case upon its •circumstances; for the relief was there granted to a purchaser in possession of land under an unsigned agreement, against a subsequent purchaser (with notice) of the same land from the vendor, the defendant having paid his purchase-money under a signed agree- ment, and having obtained a conveyance of the legal estate. Lord Gnilford "declared that, in- asmuch as possession was delivered accord- ing to the agreement, he took the bargain to be executed." Among later cases I may refer to Pengall v. Ross, 2 Eq. Cas. Abr. 46, decided by Lord Cowper in 1709; Lockey v. Lockey, Finch, Prec. 519, by Lord Macclesfield, in 1719; and Potter v. Potter, 1 Ves. Sr. 441, by Strange, master of the rolls, in 1750. "There must be something," said Lord Cowper (2 Eq. Cas. Abr. 46), "more than a bare payment of money on the one part to induce the court to decree a specific performance on the other part either by putting it out of the party's power to undo the thing, or where it would be a prejudice to the party performing his part, as beginning to build, or letting the other into possession, etc., in such case, where the agreement hath proceeded so far on one part, the statute never intended to restrain this court from decreeing a performance of the other." Lord Macclesfield said (Finch Prec. 519) that an unwritten agreement, "if executed on one part, had been always look- ed upon so far conclusive as to induce the court to decree an execution on the other part, not to destroy or avoid the agreement so far as it was already carried into execution." Sir John Strange, 1 Ves. Sr. 441, said: "If con- fessed or in part carried into execution, it will be binding on the parties, and carried into further execution, as such, in equity." The doctrine, however, so established, has been confined by judges of the greatest au- thority within limits intended to prevent a recurrence of the mischief which the statute was passed to suppress. The present case, EQUITABLE REMEDIES. 203 resting entirely upon the parol evidence of one of the parties to the transaction, after the death of the other, forcibly illustrates the wisdom of the rule, which requires some evidentia rei to connect the alleged part per- formance with the alleged agreement. There is not otherwise enough in the situation in which the parties are found to raise ques- tions which may not be solved without re- course to equity. It is not enough that an act done should be a condition of, or good consideration for, a contract, unless it is, as between the parties, such a part execution as to change their relative positions as to the subject-matter of the contract. Lord Hardwicke in Gunter v. Halsey, 2 Amb. 586, said: "As to the acts done in perform- ance, they must be such as could be done with no other view or design than to perform the agreement" ("the terms of which," he added, "must be certainly proved"). He thought it indeed consistent with that rule to treat the payment of purchase-money, in whole or in part, as a sufficient part performance. Lacon v. Mertins, 3 Atk. 1; Owen v. Davies (1747) 1 Ves. Sr. 83. This Lord Cowper, in Pengall v. Ross, 2 Eq. Cas. Abr. 46, and Lord Maccles- field in Seagood v. Meale (A. D. 1721) Pinch, Prec. 561, had refused to do. On that point later authorities have overruled Lord Hard- wicke's opinion; and it may be taken as now settled that part payment of purchase-money is not enough; and judges of high authority have said the same even of payment in full. Clinan v. Cooke, 1 Schoales & L. 40; Hughes v. Morris, 2 De Gex, M. & G. 356; Britain v. Rossiter, 11 Q. B. Div. 123. Some of the rea- sons which have been given for that con- clusion are not satisfactory, the best ex- planation of it seems to be that the payment of money is an equivocal act, not (in itself) until the connection is established by parol testimony, indicative of a contract concerning land. I am not aware of any case in which the whole purchase-money has been paid with- out delivery of possession, nor is such a case at all likely to happen. All the authorities show that the acts relied upon as part per- formance must be unequivocally, and in their own nature, referable to some such agree- ment as that alleged. Cooth v. Jackson, 6 Ves. 38; Frame v. Dawson, 14 Ves. 386; Morphett v. Jones, 1 Swanst. 181. "The acknowledged possession," said Sir T. Plumer in Morphett v. Jones, 1 Swanst. 181, "of a stranger in the land of another is not explicable, except on the supposition of an agreement, and has there- fore constantly been received as evidence of an antecedent contract, and as sufficient to authorize an inquiry into the terms, the court regarding what has been done as a conse- quence of contract or tenure." "It is in general," said Sir James Wigram (Dale v. Hamilton, 5 Hare, 381), of the es- sence of such an act that the court shall, by reason of the act itself, without knowing whether there was an agreement or not, find the parties unequivocally in a position dif- ferent from that which according to their legal rights they would be in if there were no contract. * * * But an act which, though in truth done in pursuance of a con- tract, admits of explanation without suppos- ing a contract, is not in general admitted to constitute an act of part performance taking the case out of the statute of frauds; as, for example, the payment of a sum of money al- leged to be purchase-money. The fraud, in a moral point of view, may be as great in the cne case as in the other, but in the latter cases the court does not in general give relief." See, also, Britain v. Rossiter, 11 Q. B. Div., at page 130, per Lord Justice Cot- ton. The acts of part performance, exempli- fied in the long series of decided cases in which parol contracts concerning land have been enforced, have been (almost, if not quite, universally) relative to the possession, use or tenure of the land. The law of equitable mortgage by deposit of title deeds depends upon the same principles. Examples of circumstances which have- been held insufficient for this purpose are found in (1) tjlerk v. Wright, 1 Atk. 13, and Whaley v. Bagnel, 1 Brown, Pari. Cas. 345, where acts preparatory to the completion of a contract were held not to be part perform- ance; (2) Wills v. Stradling, 3 Ves. 381, where the mere holding over by a tenant (unless qualified by the payment of a dif- ferent rent) was held not to be enough "even to call for an answer"; (3) Lamas v. Bayly, 2 Vern. 627, where the plaintiff, being en- gaged in a treaty for the purchase of land, desisted in order that the defendant might buy it, on an agreement that he should have part of it when so bought at a proportionate price; but his "desisting from the prosecu- tion of his purchase" was held to be no part performance; and (4) O'Reilly v. Thompson, 2 Cox. Ch. 271, where the agreement alleged was that upon the plaintiff obtaining from a third party a release of a right to a lease claimed by him, the defendant would grant to the plaintiff a lease of the same premises on certain terms. The plaintiff did obtain a release from the party in question of the right claimed by him for valuable considera- tion; but nevertheless, a plea of the statute of frauds was allowed, Chief Baron Eyre say- ing: "These circumstances are not a suffi- cient part performance, but they are a con- dition annexed and necessary to be fulfilled by the plaintiff to entitle him to call for an execution of the contract;" Meaning, as I presume, that they were a condition preced- ent to the contract, as distinguished from acts done after a concluded contract and in part performance of it. The law deducible from these authorities is, in my opinion, fatal to the appellant's case. Her mere continuance in Thomas Al- derson's service, though without any actual payment of wages, was not such an act as to be in itself evidence of a new contract, much less of a contract concerning her master's 204 EQUITABLE REMEDIES. land. It was explicable, without supposing ^.ny such new contract, as easily as the con- tinuance of a tenant in possession after the expiration of a lease. The relinquishment of any chance which she might have had of marriage was of no greater force than the relinquishment of the treaty for purchase in Lamas v. Bayly, 2 Vern. 627. The alleged acts of part performance preceded and there- fore could not be evidence of any contract on her part. Their performance was (as in O'Reilly v. Thompson, 2 Cox, Ch. 27) a con- dition precedent, without the fulfillment of which the promise which the jury found to have been made by Thomas Alderson could not on his part become a binding contract. Two cases, on which I think it well to add some remarks, were cited by the learned counsel for the appellant, as favourable to their argument: Walker v. Walker, 2 Atk. 4)8, and Parker v. Smith, 1 Colly. 608. In Walker v. Walker, 2 Atk. 98, Lord Hardsvicke did not execute any parol con- tract on the ground of part performance, or otherwise; all that he did was to relieve the defendant from a liability which the plaintiff's conduct had made it inequitable to enforce. There had been a parol agree- ment between A. and B. that A. would sur- render a copyhold, belonging to him to C, charged with annuities in favour of B., if B. would surrender another copyhold of his own to C. A. surrendered his copyhold according- ly, charged with the annuities, and died. B. did not surrender; but he sought, nevertheless, by his bill, to enforce payment of the an- nuities against C. Lord Hardwicke dismissed the bill, saying that "he was not clear" that the agreement might not have been es- tablished by cross bill, upon the principle of part performance. To such a dictum not even the authority of so great a judge can give much weight. It does not appear how, If there had been a binding agreement, C, who was no party to it, could have claimed specific performance. The true equity was that which was actually administered, viz. to re- lieve A.'s copyhold, in the hands of C, from the charge which B. unconscientiously sought to enforce. Of the other case— Parker v. Smith, 1 Colly. 608— before Vice Chancellor Knight Bruce, I think it enough to say that it was dealt with in an extraordinary manner, and is difficult to reconcile with Cooth v. Jackson, 6 Ves. 38. The acts to which the court gave the effect of part performance were done be- fore any definite terms of agreement had been even by parol, concluded between the parties. It might well have been held that there was an agreement duly signed, accord- ing to the statute of frauds, on the 30 th of November, 1842; but the supposed acts of part performance wore done before that time; and, until then, everything, as to the terms of the intended new lease, remained unsettled. I cannot, therefore, regard Parker v. Smith, 1 Colly. 608, as a satisfactory authority. I am sorry for the appellant's disappoint- ment, through the ignorance of her late mas- ter as to the attestation requisite for a valid testamentary act. But the law cannot be strained for the purpose of relieving her from the consequences of that misfortune. It would, in my opinion, be much strained, and the equitable doctrine of part perform- ance of parol contracts would be extended far beyond those salutary limits within which it has hitherto been confined, if your lordships were to reverse the order of the court of appeal. I should have been glad if that court had dealt differently with the costs, as she has lost, not only the estate in- tended for her, but also her wages; but costs were within their discretion; and their decree cannot be altered in that respect, be- ing otherwise correct. This house has also to exercise a discretion as to the costs of this appeal; and I humbly venture to recommend to your lordships that it should be dismissed without costs. * *• » * • • • * EQUITABLE REMEDIES. 205 HENDRICKSON v. HINCKLEY. (17 How. 443.) Supreme Court of the United States. Dec. Term, 1854. The facts are stated in the opinion of the court. Mr. Hart, for appellant. Mr. Mills, contra. CURTIS, J., delivered the opinion of the court. The complainant filed his bill in the cir- cuit court of the United States for the district of Ohio, and, that court having ordered the bill to be dismissed, on a demurrer, for want of equity, the complainant appealed. The object of the bill is to obtain relief against a judgment at law, founded on three promissory notes, signed by the complainant, and one Campbell, since deceased. A court of equity does not interfere with judgments at law, unless the complainant has an equitable defence, of which he could not avail himself at law, because it did not amount to a legal defence, or had a good de- fence at law, which he was prevented from availing himself of by fraud or accident, unmixed with negligence of himself or his agents. Marine Ins. Co. v. Hodgson, 7 Cranch, 333; Creath v. Sims, 5 How. 192; Walker v. Robbins, 14 How. 584. The application of this rule to the case stated in the bill leaves the complainant no equity whatever. The contract under which these notes were taken was made in December, 1841. One of the notes is dated in December, 1841, and the others in January, 1842. In April, 1848, suit was brought on the notes. In October, 1850, the trial was had and judgment re- covered. The reasons alleged by the bill for enjoining the judgment are: 1. That the consideration of the notes was the sale of certain property, and the com- plainant and Campbell were defrauded in that sale. But this alleged fraud was plead- ed, in the action at law, as a defence to the notes, and the jury found against the de- fendants. Moreover, upwards of six yea^s elapsed after the sale, and before the suit was brought; and the vendees, who do not pretend to have been ignorant of the alleged fraud during any considerable part of that period of time, did not offer to rescind the contract, nor did they, at any time, either return or offer to return the property sold. 2. The bill alleges certain promises to have been made by an agent of the defendant, con- cerning the time and mode of payment of the notes when they were given. These prom- ises could not be availed of in any court, aa a defence to the notes; for, to allow them such effect, would be to alter written con- tracts by parol evidence, which cannot be done in equity any more that at law, in the absence of fraud or mistake. Sprigg v. Bank of Mount Pleasant, 14 Pet. 201. But whatever substance there was In this defence, it was set up, at law, and upon this also, the verdict was against the defend- ants; and the same is true of the alleged partial failure of consideration. 3. The next ground is, that on the trial at law, letters from the joint defendant, Camp- boll, containing admissions adverse to the defence, were read in evidence to the jury; and the bill avers that Campbell was not truly informed concerning the subjects on which he wrote, and that, until the letters were produced at the trial, the complainant was not aware of their existence, and so was surprised. To this there are two answers, either of which is sufficient. The first is that the com- plainant and Campbell, being jointly interest- ed in the purchase and ownership of the property for which these notes were given, and the joint defendants in the action at law, and there being no allegation of any col- lusion between Campbell and the plaintiff in that action, the complainant cannot be al- lowed to allege this surprise. If he did not know what admissions Campbell had made, he might, and with the use of due diligence, would have known them; and he must be treated, in equity as well as at law, as if he had himself made the admissions. Another answer is, that if there was sur- prise at the trial, a motion for delay, as is practiced in some circuits, or a motion for a new trial, according to the practice in others, afforded a complete remedy at law. 4. The complainant asserts that he has claims against the defendant, and he prays that, inasmuch as the defendant resides out of the jurisdiction of the court, these claims may be set off against the judgment recover- ed at law by the decree of the court upon this bill. But upon this subject the bill states, speaking of the action at law: "Your orator frequently conferred with L. D. Campbell, one of his attorneys, in reference to the said cause, and frequently spoke to him of . the claims which your orator and said Andrew Campbell had against the said Hinckley, as hereinafter specifically set forth; but the said Campbell, attorney, regarded the defence pleaded as so amply sufficient as that neither he nor your orator ever thought it necessary to exhibit said demands against said Hinckley as matter of defence, could it even have been done consistently with the defence made as aforesaid." He purposely omitted to set off these al- leged claims in the action at law, and now asks a court of equity to try these unliqui- dated claims and ascertain their amount, and enable him to have the same advantage which he has once waived, when it was directly presented to him in the regular course of legal proceedings. Courts of equity do not assist those whose condition is attributable only to want of due diligence, nor lend their aid to parties, who, having had a plain, ade- quate, and complete remedy at law, have purposely omitted to avail themselves of it. It is suggested that courts of equity have 206 EQUITABLE KEMEDIES. an original jurisdiction in cases of set-off, and that this jurisdiction is not taken away by the statutes of set-off, which have given the right at law. This may be admitted, though it has been found exceedingly difficult to determine what was the original jurisdic- tion in equity over this subject. 2 Story, Eq. 656, 664. But whatever may have been its exact limits, there can be no doubt that a party sued at law has his election to set off his claim, or resort to his separate action. And if he deliberately elects the last, he cannot come into a court of equity and ask to be allowed to make a different determination, and to be restored to the right which he has once voluntarily waived. Barker v. Elkins, 1 Johns. Ch. 465; Greene v. Darling, 5 Mason, 201, Fed. Cas. No. 5,765. Similar considerations are fatal to the plain- tiff's claim for relief, on the ground that the defendant resides out of the state, and that therefore he should have the aid of a court of equity, to subject the judgment at law to the payment of the complainant's claim. When the complainant elected not to file these claims in set-off in the action at law, he knew that defendant, who was the plaintiff in that action, resided out of the state. If that fact was deemed by the complainant in- sufficient to induce him to avail himself of his complete legal remedy, it can hardly be supposed that it can induce a court of equity to interpose to create one for him. The ques- tion is not merely whether he now has a legal remedy, but whether he has had one and waived it. And as this clearly appears, equity will not interfere. The decree of the court below is affirmed. EQUITABLE REMEDIES. 20? WM. ROGERS MANTJF'G CO. v. ROGERS. (20 Atl. 467, 58 Conn. 356.) Supreme Court of Errors of Connecticut. Feb. 17, 1890. Appeal from superior court, Hartford county; Fen.x, Judge. This was a suit to enjoin the violation of a contract between Frank W. Rogers and the Win. Rogers Manufacturing Com- pany and the Rogers Cutlery Company as follows: "(1) That said companies will employ said Rogers in the business to he done by said companies, according to the stipulations of said agreement, for the pe- riod of twenty-five years therein named, il said Rogers shall so long live and dis- charge the duties devolved upon him by said Watrous as general agent and man- ager of the business to be done in common by said companies, under the directions and to the satisfaction of said general agent and manager; it being understood that such duties may include traveling for said companies, whenever, in the Judg- ment of said general agent, the interest o) the business will be thereby promote^ (2) The said companies agree to pay said Rogers for such services so to be rendered, at the rate of $1,000 per year for the first five years of such services, and thereafter the same. or such larger salary as maybe agreed upon by said Rogers and the di- rectors of said companies, said salary to be in full during said term of all services to be rendered by said Rogers, whether as an employe or an officer of said companies, unless otherwise agreed. (3) The said Rogers, in consideration of the foregoing, agrees that he will remain with and serve said companies under the direction of said Watrous, as general agent and manager, including such duties as traveling for said companies, as said general agent may de- volve upon him, including also any duties as secretary or other officer of either or both of said companies, as said companies may desire to have him perform at the salary hereinbefore named for the first five years and at such other or further or dif- ferent compensation thereafter during the remainder of the twenty-five years as he, the said Rogers, and the said companies may agree upon. (4) The said Rogers during said term stipulates and agrees that he will not be engaged or allow his name to be employed in any manner in any other hardware, cutlery, flatware, or hollow-ware business either as manufact- urer or seller, but will give, while he shall be so employed by said companies, his en- tire time and services to the interests of said common business, diminished only by sickness, and such reasonable absence for vacations or otherwise as may be agreed upon between him and said general agent." The complaint was held insufficient, and the plaintiffs appealed. F. Chamberlin and E. S. White, for ap- pellants. C. E. Ingeraoll and F. L. Rnn- gerford, for appellee. ANDREWS, C.J. Contracts for personal service are matters for courts of law, and equity will not undertake a specific per- formance. 2 Kent, Comm. 258, note b; Hamblin v.Dinneford, 2 Edw.Ch.529; San- quirico v.Benedetti,] Barb. 315; Haight v. Badgeley, 15 Barb. 499; De Rivafinoli v. Corsetti', 4 Paige, 264. A specific perform- ance in such cases is said to be impossible because obedience to the decree cannot be compelled by the ordinary processes of the court. Contracts for personal acts have been regarded as the most familiar illus- trations of this doctrine, since the court cannot in any direct manner compel the party to render the service. The courts in this country and in England formerly held that they could not negatively enforce the specific performance of such contracts by means of an injunction restraining their violation. 3 Wait, Act.& Def. 754; Marble Co. v. Ripley, 10 Wall. 340; Burton v. Mar- shall, 4 Gill, 487; De Pol v. Sohlke, 7 Rob. (N. Y.)280; Kemble v. Kean, 6 Sim. 333; Baldwin v. Society, 9 Sim. 393; Fothergill v. Rowland, L. R.17Eq.l32. The courts in both countries have, however, receded somewhat from the latter conclusion, and it is now held that where a contract stipu- lates for special, unique, or extraordinary personal services or acts, or where the serv- ices to be rendered are purely intellectual, or are peculiar and individual in their character, the court will grant an injunc- tion in aid of a specific performance. But where the services are material or mechan- ical, or are not peculiar or individual, the party will be left to his action for dam- ages. The reason seems to be that serv- ices of the former class are of such a nat- ure as to preclude the possibility of giv- ing the injured party adequate compensa- tion in damages, while the loss of serv- ices of the latter class can be adequately compensated by an action for damages. 2 Story, Fq. Jur. § 958a ; 3 Wait, Act. & Def. 754; 3Pom.Eq. Jur. §1343; California Bank v.Fresno Canal, etc., Co., 53 Cal.201 ; Singer Se wing-Machine Co. v. Union Button Hole Co., 1 Holmes, 253, Lumley v. Wagner, 1 De Gex, M. & G. 604; Railroad Co. v. Wy- thes, 5 De Gex, M. & G. 880; Montague v. Flockton, L. R. 16 Eq. 189. The contract between the defendant and the plaintiffs is made a part of the complaint. The serv- ices which the defendant was to perform for the plaintiffs are not specified therein, otherwise than that they were to be such asshould bedevolved upon him by the gen- eral manager; "it being understood that such duties may include traveling for said companies whenever, in the judgment of said general agent, the interests of the business will be thereby promoted ; " and also "including such duties as traveling for said companies as said general agent may devolve upon him, including also any duties as secretary or other officer of either or both of said companies as said compa- nies may desire to have him perform." These services, while they may not be m v terial and mechanical, are certainly not purely intellectual, nor are they special, or unique, or extraordinary; nor are they so peculiar or individual that they could not be performed by any person of ordinary intelligence and fair learning. If this was all there was in the contract it would be almost too plain for argument that the plaintiffs should not have an injunction. The plaintiffs, however, insist that the negative part of the contract, by which 208 EQUITABLE REMEDIES. the defendant stipulated and agreed that he would not be engaged In or allow his name to be employed in any manner in any other hardware, cutlery, flatware or hollow-ware business, either as a manu- facturer or seller, fully entitles them to an injunction against its violation. They aver in the complaint, on information and belief, that the defendant is planning with certain of their competitors to engage with them in business, with the intent and purpose of allowing hisname to beused or employed in connection with such business as a stamp on the ware manufactured; and they say such use would do them great and irreparable injury. If the plain- tiffs owned the name of the defendant as a trade-mark, they could have no difficulty in protecting their ownership; but they make no such claim, and all arguments or analogies drawn from the law of trade- marks may be laid wholly out of the case. There is no averment in the complaint that the plaintiffs are entitled to use, or that in fact they do use,, the name of the defendant as a stamp on the goods of their own manufacture, nor any averment that such use, if it exists, is of any value to them. So far as the court is informed, the defendant's name on such goods as the Dlaintiffs manufacture is of no more value than the names of Smith or Stiles or John Doe. There is nothing from which the court can see that the use of the defend- ant's name by the plaintiffs is of any value to them, or that its use as a stamp by their competitors would do them any in- jury other than such as might grow out of a lawful business rivalry. If by reason of extraneous facts the nameof the defend- ant does have some special and peculiar value as a stamp on their goods, or its use as a stamp on goods manufactured by their rivals would do them some special injury, such facts ought to have been set out so that the court might pass upon them. In the absence of any allegation of such facts we must assume that none exist. The plaintiffs also aver that the defendant in- tends to make known to their rivals the knowledge of their business, of their cus- tomers, etc., which he has obtained while in their employ. But here they have not shown facts which bring the case within any rule that would require an employe to be enjoined from disclosing business secrets which he has learned in the course of his employment, and which he has con- tracted not to divulfie. Peabody v. Nor- folk, 98 Mass 452. There is no error in the ■ judgment of the superiorcourt. Theother judges concurred. EQUITABLE REMEDIES. 209 DTJNCOMBE v. FELT. (45 N, W. 1004, 81 Mich. 332.) Supreme Court of Michigan. June 6, 1890. Appeal from circuit court, Van Buren county, ; u chancery; Geurge M. Buck, Judge. F- J. At well, for appellant. Sp&fford lryon and .4. J. Mills, for complainant. LONG, J. The hill was filed inthiscanse for an injunction to restrain the defendant from cutting and removing any of the timber or trees standing or growing upon the premises described in the bill, and from committing or permitting; any waste of said premises. The bill alleges that com- plainant is the owner in fee of the prem- ises, containing about 160 acres subject to a life-estate in the defendant. That the complainant derived his title through a sheriff's deed, upon an execution sale to satisfy a judgment against Seth. H. Felt. That said Seth H. Felt derived his title through a deed made and executed to hint by the defendant, Horatio O. Felt, and his wife. That at about the time of convey- ance of said premises to Seth H. Felt he made, executed, and delivered a lease in writing to Horatio O. Felt and wife. This lease is set out in full in the record. The bill also alleges that said Horatio O. Felt is in actual possession and occupancy of the premises under and by virtue of said lease, and that his wife is now deceased. That upon about nine acres of said prem- ises is growing and standing a large amount of valuable oak and other timber, fit for sawing and lumbering purposes, and that said timber constitutes a large portion of the value of said premises. The bill then states: "Your orator further shows that the said Horatio O. Felt has caused to be cut, and is causing to be cut, and is cutting, lumbering, and removing from said premises, a large portion of said timber and trees r.rowing thereon, and threatens to continue so to do, and has already cut about five acres of said timber. Your orator further shows that thereby the said Horatio O. Felt is committing waste upon said premises and irreparable injury thereto, and materially lessening the value thereof. Your orator further shows that if the said Horatio O. Felt is permitted to continue to cut down said timber and lumber, and commit waste upon said premises, as aforesaid, and is not restrained froni so doing by an order and injunction of this honorable court, the value thereof will be depreciated to the amount of at least five hundred dollars. And your orator further shows that said cutting and removing of said timber and said lumber upon said premises by said Felt has been and is being done without the authority or consent of your orator, and against his wishes and direction there- on, and without any authority or right in said Felt so to do. All of which act- ings and doings of the said Horatio O. Felt, who is made defendant herein, are contrary to equity and good conscience, and tend to the manifest wrong, injury, and oppression of your orator. " The lease setoutin thebill of complaint wasexecuted FET EQ JUE. — 14 before thecomplainant derived his title un- der the sheriff's deed, and contains the fol- lowing clause. "To have and to hold the said demised premises, with the appurte- nances, unto the said parties of the second part, their executors, administrators, and assigns, for and during and until the full end and term of their natural lives, so long as either of them shall live, yielding and pay- ing therefor, during the continuance of the lease, unto the said party of the first part, nothing; this lease being given in consid- eration of the second parties having con- veyed the premises herein described to the first party, and under no consideration whatever are the second parties to be re- moved from the possession of the said premises except as they shall voluntarily surrender their rights under this lease. And it is expressly understood that the second parties are to have as full and com- plete control of said premises, while they or eitherof them shall live, as though such conveyance had not been made. " A gen- eral demurrer was filed, and on the hear- ing in the court below was overruled, and decree entered i'orcomplainant making the injunction perpetual. Defendant appeals. The claim of counsel for the complainant is that on the premises there are only about nine acres of growing timber; that this timber is needed for the use of the farm, and its destruction makes a case of actionable waste, to be restrained by in- junction. The rights of the parties must be determined by the construction given to these clauses in the lease above quoted- The title to the premises was in defend- ant, Horatio O. Felt. When he and his wife deeded the same, they took back this lease, by the terms of which they were to have and to hold the premises "for and during and until the full end and term of their natural lives, so long as either of them shall live, yielding and pay- j n g * * * nothing." The considera- tion was the conveyance of the prem- ises to Seth H. Felt. It is further provided in the lease that the lessees are not to be removed from the premises on any consid- eration whatever, except as they might voluntarily surrender their rights under the lease. Then follows the clause which it is claimed gives the defendant the right to take the timber in question. "And it is expressly understood that the second parties are to have as full and complete control of said premises, while they or either of them shall live, as though, sucb conveyance had not been made." The complainant acquired all the rights in the premises under his purchase at the ex- ecution sale that Seth H. Felt had, but with notice of all the conditions in this lease. It is therefore contended by coun- sel that the lease gave defendant the same interest or property in the estate ashe had before he and his wife conveyed the lands to Seth H. Felt, and that he can deal with it in all respects as though he was the owner, the only limitation being that of duration of the estate, and that the clauses in the lease above set out in effect are equivalent in meaning with the old clause in leases without impeachment for waste. Counsel for defendant insists that the doctrine laid down in Stevens v. Rose, 6D 210 EQUITABLE REMEDIES. Mich. 200, 37 N. W. Rpp. 205, fully sustains his claim that the defendant has the right to remove this timber, and do all other acts that he could have done as owner in fee, and that the defendant's estate is not impeachable for waste. His claim is not sustained by that case. It was there held that the words "to have and to hold", and to use and control as the lessee thinks proper for his benefit during his natural life, " clearly import a lease without im- peachment for waste, and that the defend- ant had the right to do all those acts which such a tenant may exercise, but that the words were not to be treated as importing a license to destroy or injure the estate, but to do all 'reasonable acts consistent with the preservation of the es- tate which otherwise might in law be waste. In the present ease it is conceded that there are only 9 acres of timber on the whole 160-aere tract, that the defend- ant has already cut about 5 acres, and threatens to cut and carry away the re- mainder. I have never understood the rule of the common law to be so broad as contended for by counsel for defendant. The clause "without impeachment for waste" never was extended to allow the very destruction of the estate itself, but only to excuse permissive waste. 10 Bac. Abr. p. 408, tit. "Waste." In Packington v. Packington, decided in 1744, and cited by Bacon, (reported 3 Atk. 215,) the plain- tiff alleged that the defendant, Sir H. Packington, had cut down a great number of trees, and had threatened to cut down and destroy them all. Lord Hakdwicke granted an injunction to res^-niii the waste. The lease in the case was made without impeachment of waste. Mr. Greenleaf in his Cruise on Keal Property, (volume 1, p. 129,) lays down the rule thus: "The clause without impeachment of waste, is, however, so far restrained in equity that it does not enable a tenant for life to commit malicious waste so as to de- stroy theestate, which is called 'equitable waste,' for in that case the court of chan- cery will not only stop him by injunction, but will also order him to repair if possi- ble the damage he has done. " In 10 Bac. Abr. tit. " Waste," p. 469, it is said: "So, where a lease was made by a bishop for twenty-one years without impeachment of waste, of land that had many trees upon it, and the tenant cut down none of the trees till about half a year before the ex- piration of his term, and then began to fell the trees, the court granted an injunc- tion; for, though he might have felled trees every year from the beginning of his term, and then they would have been growing up again gradually, yet it is un- reasonable that he should let them grow till towards the end of his term, and then sweep them all away; for, though he had power to commit waste, yet this court will model the exercise of that power;" citing Abraham v. Bubb, Freem. Ch. 53. At the common law no prohibition against waste lay against the lessee for . life or years deriving his interest from the act of the party. The remedy was con- fined to those tenants who derived their interest from the act of the law, but the timber cut was, at common law, the prop- erty of the owner of the inheritance, and the words in the lease " without impeach- ment of waste" had the effect of transfer- ring to the lessee the property of the tim- ber. Bowles' Case, 11 Coke, 79 ; Co. Litt. 220a. The modern remedy in chancery by injunction is broader than at law, and eq- uity will interpose in many cases, and stay waste where there is no remedy at law. Chancery will interpose when the tenant affects the inheritance in an unreasonable and unconscientious manner, even though the lease begranted without impeachment of waste. 4 Kent, Comm. (13th, Ed. J 78; Perrot v. Perrot.S I Atk. 94; Aston v. Aston, 1 Ves. Sr. 264; Vane v. Barnard, 2 Vera. 73S; Kane v. Vanderburgh, 1 Johns. Ch. 11. In the case of Kane v. Vanderburgh, su- pra, it was said: "Chancery goes greater lengths than the courts of law in staying waste. It is a wholesome jurisdiction, to be liberally exercised in the prevention of irreparable injury, and depends on much latitude of discretion in the court. " In this state an action on the case for waste is authorized by chapter 271, How. St. This has superseded the common-law remedy, and relieves the tenant from the penal consequences of waste under the stat- ute of Gloucester, as the owner now recov- ers no more than the actual damages which the premises have sustained, while that statute gave by way of penalty the forfeit- ure of the place wasted, and treble dam- ages, and this harsh rule was adopted by many of the American states by the early statutes. Thisstatutegivinga rightof ac- tion in courts of law for waste does not, however, deprive the court of chancery of jurisdiction in proceedings to restrain threatened waste. There can be no doubt that the defend- ant in the present case has much of the character of a tenant in fee, but he cannot destroy the inheritance. He may taken the timber for his own use, and do all those acts which a prudent tenant in fee would do. Hecannot pull down the build- ings or destroy them, or cut and destroy fruit trees, or those planted for ornament and shelter; neither can he be permitted to entirely strip the land of all timber, and convertitintolumber.andsellit away from the inheritance. It is not claimed that the timber is being used for betterments on the premises, butitisadmitted thatthelife- tenantissellingitforhis own gain and prof- it. The demurrer was properly overruled. The decree of the court below will be af- firmed, with costs. The other justices concurred. EQUITABLE REMEDIES. 211 GRIFFITH v. HILLIARD. (25 Atl. 427, 64 Vt. 643.) Supreme Court of Vermont, General Term. Nov. 5. 1892. Appeal from chancery court, Rutland county; Taft, Chancellor. Action by Silas L. Griffith against John H. Hiiliard. From a decree sustaining a demurrer to plaintiff's bill for an injunc- tion and dismissing the bill pro forma,, orator appeals. Reversed and modified. J. C. Baker, for orator. H. A, Barman, for defendant. START. J. The defendant, John H. Hii- liard, by the demurrer contained in his answer, claims that a court of equity has no jurisdiction of the matters alleged in the bill. The bill alleges, among other things, that the orator is the owner of the land in question; that its substantial value is made up of the wood and timber growing thereon; that some of the de- fendants, under a license from the defend- ant, Hiiliard, have entered upon the land, are engaged in cuttinganrt drawing timber therefrom, and threaten to continue to do so. For the purpose of determining the question now before the court, these al- legations must be taken as true. To per- mit this wood and timber to be cut in the manner the defendants are doing, and threatening to do, under a license from defendant, Hiiliard, is to permit a destruc- tion of the orator's estate as it has been held and enjoyed. The power of a court of equity to interpose by injunction to prevent irreparable injury and the de- struction of estates is well established, and this power has been construed to embrace trespasses of the character complained of in the orator's bill. Where trespass to property consists of a single act, and it is temporary in its nature and effect, so that the legal remedy of an action at law for damages is adequate, equity will not in- terfere; but if, as in this case, repeated acts are done or threatened, although each of such acts, taken by itself, may not be destructive to the estate, or inflict ir- reparable injury, and the legal remedy may, therefore, be adequate for each sin- gle act if it stood alone, the entire wrong may be prevented or stopped by injunc- tion. Smith v.Rock, 59 Vt. 232.9 Atl. Rep. 551; Langdon v. Templeton, 61 Vt. 119, 17 Atl. Rep. 839; Erhardt v. Boaro, 113 U. S. 539, 5 Sup. Ct. Rep. 5T.5; Iron Co. v. Rey- mert, 45 N. Y. 703; Fewer Co. v. Tibbetts, 31 Conn. 165; Irwin v. Dixion, 9 How. 28; Livingston v. Livingston, 6 Johns. Oh. (Law Ed.) 496; High, Inj. 724-727; Shipley v. Ritter, 7 Md. 408; Scudder v. Trenton Delaware Falls Co., 1 N.J. Eq.694; 1 Pom. Eq. Jur. § 245; 3 Pom. Eq. Jur. § 1357; Murphy v. Lincoln, 63 Vt. 278, 22 Atl. Rep. 418. In the case of Murphy v. Lincoln, supra, the bill charged the committing of several ti-e.-^passes by the defendants by drawing- wood and logs across the orator's land. The defendants claimed a right of way. The court found the issue of fact in favor of the orator, and held that a court of equity had jurisdiction to enjoin the com- mission of a series of trespasses, although the legal remedy be adequate for each sin- gle act if it stood alone. It is said by J udge Story in his work on Equity Juris- prudence, (volume 2, §§ 928, 929:) "If the trespass be fugitive and temporary, and adequate compensation can he obtained in an action at law, there is no ground to justify the interposition of courts of equity. Formerly, indeed, courts of eq- uity were extremely reluctant to interpose at all, even in regard to cases of repeated trespasses; but now there is not the slightest hesitation if the acts done or threatened to be done to the property would be ruinous or irreparable, or would impair the just enjoyment of the property in the future. In short, it is now granted in all cases of timber, coals, ores, and quarries, where the party is a mere tres- passer, or where he exceeds the limited right with which he is clothed, upon the ground that the acts are, or may be, an irreparable damage to the particular spe- cies of property." In Iron Co. v.Reymert, supra, it is said that mines, quarries, and timber are protected bs T injunction, upon the ground that injuries to and depreda- tions upon them are, or may cause, an irreparable damage, and also with a view to prevent a multiplicity of actions for damages, which might accrue from continuous violations of the rights of the owners; and that it is not necessary that the right should be first established in an action at law. In Erhardt v. Boaro, su- pra, Mr. Justice Field says: "It is now a common practice in cases where irre- mediable mischief is being done or threat- ened, going to the destruction of thp sub- stance of the estate, such as the extract- ing of ores from a mine, or the cutting down of timber, or the removal of coal, to issue an injunction, though the title to the premises be in litigation. The author- ity of the court is exercised in such cases, through its preventive writ, to preserve the property from destruction pendiug legal proceedings for the determination of the title." When it appears that the title is in dis- pute, the court may, in its discretion, is- sue a temporary injunction, and continue it in force for such time as may be neces- sary to enable the orator to establish his title in a court of law, and may make the injunction perpetual when the orator has thus established his title; or the court may proceed and determine which party has the better title; or it may dismiss the bill, and leave the orator to his legal rem- edy. Bacon v. Jones, 4 Mylne & C. 433; Duke of Beaufort v. Morris, 6 Hare, 340; Campbell v. Scott, 11 Sim. 31; Kerr, Inj. 209; Ingraham v. Bunnell, 5 Mete. (Mass.) IIS; Rooney v. Soule, 45 Vt. 303; Wing v. Hall, 44 Vt. 118; Lyon v. McLaughlin, 32 Vt. 4 23 • Hastings v. Perry, 20 Vt. 278; Barnes v. Dow, 59 Vt. 530, 10 Atl. Rep. 258; Barry v. Harris, 49 Vt. 392. In Bacon v. Jones, supra. Lord Cottenham "says: "The jurisdiction of this court is founded upon legal right. The plaintiffeominginto court on the assumption that he has the legal right, and the court granting its as- sistance on that ground. When a party applies for the aid of a court, the applica- tion for an injunction is made either dur- ing the progress of the suit or at the hear- 212 EQUITABLE REMEDIES. ing; and in both cases, I apprehend, great latitude and discretion are allowed to the court in dealing with the application. When the application is for an interlocu- tory injunction, several courses are open. The court may at once grant the injunc- tion aimpliciter, without more,— a course which, though perfectly competent to the court, is not very likelyio be taken where the defendant raises a question as to the valid- ity of the plaintiff's title; or it may follow the more usual, and, as I apprehend, more wholesome, practice in such a case, of either granting an injunction, and at the same timedirectingtheplaintiff to proceed to establish his title at law, and suspend- ing the grant of the injunction until the result or the legal investigation has been ascertained, the defendant, in the mean time, keeping an account. Which of these several courses ought to be taken must depend entirely upon the discretion of the court, according to the case. When the cause comes to a hearing, the court has also a large latitude left to it; and I am far from saying that a case may not arise in which, even at that stage, the court will he of opinion that the injunction may properly be granted without having re- course to a trial at la w. The conduct and dealings of the parties, the frame of the pleadings, the nature of the patent right and of the evidence by which it is estab- lished, these and other circumstances may combine toproducesucha result, although this is certainly not very likely to happen, and I am uot aware of any case in which it has happened. Nevertheless it is a course unquestionably competent to the court, provided a case be presented which satisfies the mind of the judge that such a course, if adopted, will do justice between the parties. Again, the court may at the hearing do that which is the more ordi- nary course, — it may retain the bill giving the plaintiff the opportunity of first estab- lishing his right at law. There still remains a third course, the propriety of which must also depend upon the circum- stances of the case, — that of dismissing the bill at once." Although Bacon v. Jones was a case relative to a patent right, the re- marks of the lord chancellor are applicable to any case in which the orator's title is in dispute. The case of the Duke of Beau- fort v. Morris, supra, was a bill for an in- junction to protect the orator's coal mines from injury from the water flowing into them from the defendant's colliery; and it was ordered that the bill be retained for 12 months, with liberty to the orator to bring such actions as he might be advised were necessary, and that the injunction is- sued in the cause be continued for such time. We think the granting of the temporary Injunction in this case was a proper exer- cise of the discretionary power which the court possesses. The orator, by his bill, makes out a strong case forequitable con- sideration. The sole value of the prem- ises in question is in the wood and timber growing thereon. The orator has here- tofore held and occupied them for the pur- pose of manufacturing lumber and char- coal from such timber and wood. He has expended large sums of money in the erec- tion of mills and coal kilns, in building roads, and in procuring teams and work- men for the prosecution of said business, and has made contracts for the sale of said manufactured products. The defend- ants are engaged in cutting and removing that which constitutes the chief value of the estate, and threaten to continue to da so. These acts, if continued, will work a destruction of the estate, and render it of no value for the purpose for whicli it has beeu held and enjoyed. The case is one peculiarly within the province of a court of equity, through its preventive writ, to interpose and stop the mischief complained of, and preserve the property from de- struction. The defendant, John H. Hil- liard, having, before any evidence has been taken or hearing had, put in issue the ora- tor's title, insisted that this issue be tried in a court of law, the case is one in which the court may properly, in its dis- cretion, require the orator to establish his title in such court before proceeding fur- ther with the cause, and such will be the order of this court. The pro forma decree of the court of chancery is reversed; tbf demurrer contained in the answer of the defendant, John H. Hilliard, is overruled ; the orator's bill is adjudged sufficient, ami defendant's (Hilliard's) answer is ordered brought forward, from which it appears that the orator's title to the premises is in controversy; therefore the cause is re- manded to the court of chancery, with di- rection to that court to retain the cause, and continue in force the injunction for such time as, in the opinion of said court, may be necessary to enable the orator to bring and prosecute to final judgment such action or actions as may be necessary to establish his title in a court of law; and, in default of the orator so establish- ing his title within the time aforesaid, the orator's bill to be dismissed, as against the defendant, John H. Hilliard, with costs. But if the orator shall, within the time aforesaid, by a final judgment in his favor in a court of law, establish his title to the premises as against the defendant, John H. Hilliard, then the court will enter a decree making perpetual the temporary injunction, and make such order in rela- tion to costs as to the court shall seem meet. TAFT, J., did not sit. EQUITABLE REMEDIES. 213 CARLISLE et al. v. COOPER. COOPER v. CARLISLE et al. (21 N. J. Eq. 576.) Co art of Errors and Appeals of New Jersey. Nov. Term, 1870. Mr. Pitney, for appellants Carlisle and others. Mr. Vanatta and Mr. Shipman, for respondent Cooper. DEPUE, J. The counsel of the defend- ant, as a preliminary matter, submitted to the court the question, whether the court of chancery has jurisdiction to try the question of nuisance or no nuisance, involved in this cause. Upon the abstract question whether a court of equity has jurisdiction over nuisances, whether they come within the class of pub- lic or of private nuisances, very little need be said. Whatever contention there is at the bar, or disagreement among judicial minds, as to the principles on which that jurisdiction should be administered, there is no room for controversy that such jurisdic- tion pertains to courts of equity. It is a settled principle that courts of equity have concurrent jurisdiction with courts of law in cases of private nuisances; the interfer- ence of the former in any particular case being justified, on the ground of restraining irreparable mischief, or of suppressing inter- minable litigation, or of preventing multi- plicity of suits. Ang. Water Courses, § 444; 2 Story, Eq. Jur. § 925; Society for Estab- lishing Useful Manufactures v. Morris Ca- nal & Banking Co., 1 N. J. Eq. 157; Scudder v. Trenton Del. Falls Co., Id. 694; Burnham v. Kempton, 44 N. H. 79. The doctrine of the English courts is that the jurisdiction of courts of equity over nuisances, not being an original jurisdiction for the purpose of trying a question of nui- sance, but being merely a jurisdiction in aid of the legal right for the purpose of pre- serving and protecting property from injury pending the trial of the right, or. of giving effect to such legal right when it has been established in the appropriate tribunal, the court will not, as a general rule, entertain jurisdiction to finally dispose of the case, where the right has not been previously es- tablished and is in any doubt, and the de- fendant disputes the right of the complain- ant or denies the fact of its violation. Un- der such circumstances the court will, ordi- narily, do nothing more than preserve the property in its present condition, if that be necessary, until the question of right can be settled at law. Semple v. London & B. R. Co., 1 Eng. Ry. Cas. 120; Blakemore v.- Glamorganshire Canal Navigation, 1 Mylne 6 K. 154; Broadbent v. Imperial Gas Co., 7 De Gex, M. & G. 436; Same Case on ap- peal, 7 H. L. Cas. 600; Elmhirst v. Spencer, 2 Macn. & G. 45; Kerr, Inj. 332, 340; 2 Story, Eq. Jur. § 925b; Ang. Water Courses, § 452. It is said in the ninth edition of Story on Equity Jurisprudence that in the American courts the rule of the English law requiring the complainant's legal rights to be first es- tablished in a court of law before a court of equity will give relief, has, in general, not been enforced in its strictness. 2 Story, Eq. Jur. § 925d. In our own state it has been somewhat relaxed. The mere denial of the complainant's right by the defendant in his answer will not oust the court of its juris- diction by injunction. Shields v. Arndt, 4 N. J. Eq. 235; Holsman v. Boiling Spring Bleaching Co., 14 N. J. Eq. 335. So, also, when the complainant has for a long time been in the undisputed possession of the property or enjoyment of the right with re- spect to which he complains, and the acts of the defendant which constitute the in- jury to such property or the invasion of such right have been done recently before the filing of the bill, the court of chancery has entertained jurisdiction to decide and dispose of the entire litigation. The lan- guage of Chancellor Pennington on this sub- ject in Shields v. Arndt has been very gen- erally approved, and the principle he states has been adopted by the courts of this state. He says: "It was not so much against the general jurisdiction of the court that the ob- jection is raised, as to its exercise when the defendant, as in this case, denies the com- plainant's right. It is the province of this court, as the defendant's counsel insist, not to try this right, that belonging alone to a court of law, but to quiet the possession whenever that right has been ascertained and settled. If it be intended to say that a defendant setting up this right by his an- swer thereby at once ousts this court of ju- risdiction, I cannot assent to it, for it would put an end very much to the exercise of an important branch of the powers of the court. * * * If it be intended to go no further than that it is a question which should be sent to law in cases of doubt, and often should, before injunction, be first there es- tablished by trial and judgment, then I agree to the proposition. A long enjoyment by a party of a right will entitle him to restrain a private nuisance, even though the defend- ant may deny the right, and the court will exercise its discretion whether to order a trial at law or not, always inclining to put the case to a jury if there 'be reasonable doubt." The decree in that case was against com- plainant, on the ground that he had not estab- lished by the proofs in the cause his right to the stream in question as an ancient water course. On appeal to the senate, sitting as a court of appeal, the decree was reversed by a vote of eleven to seven, and a perpetual injunction was decreed. Minutes of the Court of Errors and Appeals, June 19, 1S44. In Shields v. Arndt the complainant had been in the enjoyment of the flow of water upon his land without interruption, until just before the bill was filed. In the other cases 214 EQUITABLE EEMEDIES. in which chancery has -granted relief on final decree by injunction the complainant was either in the full enjoyment of the right, which was protected from threatened inva- sion when the bill was filed, or his right originally was not disputed, and its continued existence was clearly established at the hear- ing, and the act of the defendant which in- terrupted the enjoyment of it had been done within a recent period before the bill was filed. Robeson v. Pittenger, 2 N. J. Eq. 57; Brakely v. Sharp, 10 N. J. Eq. 206; Earl v. DeHart, 12 N. J. Eq. 280; Holsman v. Boil- ing Spring Bleaching Co., 14 N. J. Eq. 335; Delaware & R. Canal Co. v. Camden & A. R. Co., 16 N. J. Eq. 321; Same Case on appeal, 18 N. J. Eq. 546; Morris Canal & Banking Co. v. Central R. Co., 16 N. .T. Eq. 419. In Holsman v. Boiling Spring Bleaching Co. the bill was filed to enjoin the defendants from polluting a stream, which flowed in its accustomed channel through the lands of the complainant. The defendants were incorpo- rated in the year 1859 for the purpose of car- rying on the business of bleaching and finish- ing cotton and woolen goods, and soon after became the owners of a tract of land, pond, and mill premises above the lands of the com- plainants, and erected thereon a large mill and works, which were put in operation in the summer of 1860. The bill charged that in the fall of 1860, in consequence of large quan- tities of chemical matter and other impurities discharged from the defendants' works into the stream, the water was filled with offen- sive matter, discolored and polluted, and ren- dered unfit for domestic purposes, producing offensive odors, which infected the air of the neighborhood, and penetrated the dwellings, so that the complainants were compelled to refrain from all use of the water for family or other purposes; by reason whereof they were unable to use or enjoy their said prop- erty as they had been accustomed and of right ought to do, or to sell the same at a fair price. The bill was filed on the 5th day of February, 1861. The defendants, in their answer, did not deny the erection of their works, or the discharge of chemicals and oth- er matter therefrom into the stream, but in- sisted that the nuisances of which the com- plainants complained were not occasioned thereby, but by other causes. They further alleged that the lands and mill site used and occupied by them had been used and occu- pied as a mill site for more than twenty years, and that the business of fulling and dying had been there carried on for more than that period of time, and that they had thereby acquired a prescriptive right to use said stream for manufacturing purposes, al- though the same might taint and discolor the water. The cause was brought to a hearing on the pleadings and evidence, and the chan- cellor decreed a perpetual injunction. That the water in the stream upon the complain- ants' land had, since the erection of the de- fendants' works, become discolored, polluted, and unfit for domestic or ornamental pur- poses, and that the complainants' premises had thereby been rendered uncomfortable, in- convenient, and undesirable, for the purposes for which they were designed and used, were not denied by the answer, and were fully established by the evidence. The chancellor decided that where a complainant seeks pro- tection in the enjoyment of a natural water course upon his land, the right will ordinarily be regarded as clear, and that the mere fact that the defendant denies the right by his answer or sets up title in himself by adverse user will not entitle tim to an issue before the allowance of an injunction. With respect to the defendants' claim of a prescriptive right to pollute the waters along the com- plainants' lands, he examined the evidence, and found that although the mill site occu- pied by the defendants may have been used for the purpose of dying for the period of twenty years, there was no evidence in the cause that the materials discharged into the stream anterior to the erection of the defend- ants' works were such in character or quan- tity as to pollute the waters in front of the complainants' lands, and that consequently there was no proof whatever of any adverse user in the defendants, or those under whom they claimed. In this aspect of the evidence touching the adverse right set up by the de- fendants, this case, like those which preceded it, is an illustration of the practice of the courts of equity in this state to take complete cognizance of matters of nuisance, where the complainant has previously been in the undis- puted enjoyment of a right, and the bill is filed promptly upon the commission of the act of interference with such right, and the evidence does not raise any serious question as to the fact of the existence of the com- plainants' right when the bill is filed. That it was not intended to assert the power of the court of chancery to ultimately dispose of questions of nuisance, without regard to the state of the evidence bearing on the question as to the existence of the complainants' right, and the situation of the parties previous to the filing of the bill, is shown by the remarks of the chancellor in his opinion as to the ne- cessity that the party's right should be clear to entitle him to the remedy by injunction in cases of private nuisance, as well as by the opinion of the same chancellor in the case of New Jersey Zinc Co. \ . New Jersey Frank- Unite Co., 13 N. J. Eq. 322, in which he ex- presses his repugnance to deciding a ques- tion of right in real property, where the de- fendant was in possession, and a real contro- versy arose as to the superiority of the titles of the respective parties; a repugnance which was only overcome by the fact that no mo- tion had been made to dissolve the prelimi- nary injunction, and that both parties were desirous that the question of the rights of the parties should be decided. The same doc- trine has repeatedly been enunciated by the courts of this state as the controlling priu EQUITABLE REMEDIES. 215 ciple by which the court of chancery is guided in exercising its undoubted jurisdiction over the subject of private nuisances. Scudder v. Trenton Del. Falls Co., 1 N. J. Eq. 694; South- ard v. Morris Canal & Banking Co., Id. 519; Shreve v. Voorhees, 3 N. J. Eq. 25; Outcalt v. Disborough, Id. 214; Hulme v. Shreve, 4 N. J. Eq. 116; Shreve v. Black, Id. 177; Cornelius v. Post, 9 N. J. Eq. 196; Wolcott v. Meltck, 11 N. J. Eq. 204; Haight v. Morris Aqueduct, 4 Wash. C. C. 601, Fed. Cas. No. 5,902. The principle supported by these cases was not impaired by the decision of this court in Morris & E. R. Co. v. Prudden, 20 N. J. Eq. 530. In that case the appeal was from an order of the chancellor for a preliminary injunction, on depositions taken under a rule to show cause. The premises on which the defendants were about to lay then- track were within the limits of an old turnpike, which had been vacated under legislative authority to enable the defendants to use a part of the same for their purposes, on the faith of which they acquired the title to the fee, and for twenty years had occupied it for a single track, and other purposes connected with their business. The right of the complainant for the protection of which the bill was filed was not at all cleai, and the injury on which he based his claim to equitable relief was slight, and the injunction stopped an impor- tant public work. As already observed, the jurisdiction of courts of equity over the sub- ject-matter of nuisances is not an original jurisdiction. It does not arise from the fact that a nuisance exists, but results from the circumstance that the equitable power of the court is necessary to protect the party from an injury, for which no adequate redress can be obtained by an action at law, or its in- terference Is necessary to suppress intermin- able litigation for the recovery of damages for an actionable wrong. As a condition to the exercise of that power, it is essential that the right shall be clearly established, or that it should previously have been determined by the action of the ordinary tribunals for the adjudication of the rights of the parties; and the injury must be such in its nature or extent as to call for the interposition of a court of equity. In the case now under consideration the defendant had been in the use of his dam, as it was at the time of the filing of the bill, since 1853, unmolested by the complainants or their ancestor, until 1861, when the first of the actions at law was brought. It is therefore insisted by the defendant's coun- sel, that the suit is prosecuted not for relief in aid of a legal right, but for establishing a legal right, the appropriate tribunal for the determination of which is a court of law. But the decisive answer to this position of counsel lies in the fact that the right of the complainants at the time of the filing of the bill, and the invasion of those rights by the defendant, are admitted by the answer. The bill alleges the seisin of the farm in question by the complainants, and that the same bounds on Black river, which from time im- memorial had been used and accustomed to flow and run by and along the said farm in its natural and accustomed channel, free and clear of all obstructions whatever; and that prior to 1846 the flow of the said river along the complainants' said farm was not in any wise affected by the defendant's dam, or the pondage thereof. The charge is that the defendant, in October or November, 1846, increased the height of his dam and its ap- pendages, the exact amount of such increase being unknown to the complainants, and that since that time the farm of the com- plainants has been overflowed by water backed upon it by the defendant's dam. The bill was filed on the 17th of September, 1866. The answer was filed on the 28th of Novem- ber, 1866. In it the seisin of the complain- ants of the farm was admitted. It was also admitted that the efficient height of the dam was increased in 1846, and that thereby the backwater on the complainants' farm was increased. The insistment was that the in- crease in the height of the dam in 1846 was only nine inches, and that on the 23d of No- vember, 1866 (two months after the filing of the bill), the defendant had reduced his dam nine inches, whereby its efficient height was made what it was before 1846. Upon this branch of the case the defendant put his defence on the ground that, having complied with the object of the bill, there was no rea- son for continuing the litigation. Furthermore, at the time of the filing of the bill two suits at law, brought by Eliza Carlisle, one of the complainants, and who was in possession, were pending against the defendant, to recover damages for injuries sustained by reason of the overflow of these lands by the raising of the dam in 1846. One of these suits was brought in 1S61, the other in 1866. These causes having been taken down for trial to the Morris circuit, at the term of January, 1867, the defendant relinquished his plea to one of the courts of the declaration in each case, in which such injury was complained of, and confessed the cause of action, and submitted to pay sub- stantial damages. Judgments were accord- ingly entered for the plaintiff in those suits on the 6th of June, 1867, transcripts whereof were made exhibits in this cause. The extent to which the complainants were entitled to have the defendant's dam re- duced in order to effect an entire abatement of the nuisance could not be settled by an ordinary action at law for overflowing the complainants' land. The facts necessary to fix the proper measure of such relief could only be ascertained by the verdict of a jury upon an issue specially framed for that pur- pose. The complainants' right to such relief as is sought by the, bill being admitted by the answer, and also having been established 210 EQUITABLE KEMEDIES. in the suit at law, the sole question of fact in controversy was whether the defendant had effected an abatement of the admitted nuisance by lowering his dam to its level before the increase of 184G. The inquiry necessary to decide that controversy may be made in the court of chancery; at least there is nothing in the subject-matter of that investigation, that by established rules of equity procedure would entitle the party to au issue as of course. Even in the case of an heir at law, who is entitled to an issue as a matter of course when the controversy is as to the factum of a will, if he does not dispute the will, but merely denies that cer- tain portions of the land passed by the words of description, a court of equity has full jurisdiction to determine the question thus raised without granting an issue, or may grant such issue, at its discretion. Ricketts v. Turquand, 1 H. L. Cas. 472. A court of equity has jurisdiction to ascertain and de- termine the rights of parties under a res- ervation, in a grant of a water privilege, of so much water "as is necessary for the use of a forge and two blacksmith's bel- lows," without requiring the right to be set- tled at law. Olmstead v. Loomis, 9 N. Y. 423. In Broadbent v. Imperial Gas Co., which was before Vice Chancellor Wood (2 Jur. [N. S.] 1132), and afterwards before Lord Chancellor Cranworth (3 Jur. [N. S.] 221, 7 De Gex, M. & G. 436), and subsequently be- fore the house of lords (5 Jur. [N. S.] 1319, 7 H. L. Cas. 600), the complaint was that the complainant, who was a market garden- er, was injured by a nuisance arising from the manufacture of gas by the defendants on the premises adjoining his garden. The complainant, in 1854, brought his action at law to recover damages for such nuisance. The cause came on for trial before Lord Chief Justice Jervis, and by consent was re- ferred to Sergeant Channel to settle the amount of damage (if any) which had been occasioned, with power to order what, if anything, should be done between the par- ties. In January, 1856, the arbitrator re- ported the amount of damages, for which judgment was entered, but he failed to make iiny report as to what should be done by the defendants to obviate the injury to the plaintiff. In May, 1857, a bill was filed by Broadbent to enjoin the company from con- tinuing the nuisance. The vice chancellor decreed a perpetual injunction^ This de- cree was affirmed on appeal by Lord Chan- cellor Cranworth, and was sustained on ap- peal by the house of lords. It appeared in evidence that after the submission in 1854, and before the date of the award, altera- tions had been made in the works, which, it was insisted, made the award as to the state of things in 1854 no longer conclusive as to the state of things in 1856; and the objec- tion was taken that no relief could be ob- tained by injunction until the fact whether, under the existing condition of the defend ants' works a nuisance was created, was ascertained by the verdict of a jury. The objection was overruled. In moving the judgment of affirmance, Lord Chancellor Campbell says: "It is said that a new trial was necessary here, because there had been some alterations. That there had been some alterations after the submission is proved. I consider that that is a point upon which it is for an equity judge to form his opin- ion. If there has once been a trial at law, and the plaintiff's right has been established at law, I think it is for the equity judge to determine, when the application is made for the injunction, whether the nuisance con- tinues or whether it has been abated; and if he is of opinion that it has not been abated, but that it still continues, then it is his duty to grant an injunction. It seems to me very strange to contend that because a party who commits a nuisance chooses to make some alteration, even although he may do it bona fide, it is to be laid down as a rule that there must be another trial, and that toties quoties as often as the parties shall make any alteration there must still be another trial. I think the vice chancellor did well in investigating whether the nui- sance continued, and that it was quite un- necessary for him to order a second trial in order to try a fact which had been already investigated and established." Lord Kings- down, in expressing his concurrence, is equal- ly explicit. His language is: "I perfectly admit that if it could have been shown upon the application for the injunction that alterations had been made which had had the effect of removing the evil which the plaintiff had complained of in the action, he would, of course, not have obtained any in- junction. But I am not at all prepared to admit that the court was bound to ascertain that fact by directing the trial of an action at law. It remained for the party who re- sisted that application to show that those alterations had been made which were ef- fectual for the purpose; and if the court, upon the evidence, had reasonable doubt up- on that subject, it might, for the informa- tion of its conscience, have directed a trial; but it was equally competent to do it, and in my opinion it was its duty, if it saw, upon the examination of that evidence, that the evil had not been diminished, to act upon that conviction, and to grant the injunction which it actually did grant." The case, from the opinions in which these extracts have been taken, is the same as that now before the court, except that this case is strengthened by the fact that the nui- sance complained of is admitted by the an- swer, and the alterations which are claimed to have removed it were made after the bill was filed. It was further urged upon the argument with much earnestness that although it might be competent for the court to de- EQUITABLE REMEDIES. 217 termine the question in controversy, yet that, under the circumstances of this case, an issue should have been allowed for the determination of the disputed facts by the verdict of a jury. The power of courts of equity to order the trial of an issue of fact which the court is itself competent to try, ought to be sparing- ly exercised, and a practice of sending or- dinary matters to the decision of a jury, ought not to be established. Where the truth of facts can be satisfactorily ascer- tained by the court without the aid of a jury, it is its duty to decide as to the facts, and not subject the parties to the expense and delay of a trial at law. But in cases where the evidence is so contradictory as to leave the decision of a question of fact in serious doubt, and superior advantages of testing the credit of witnesses by viva voce examina- tion in open court, and of applying the facts and circumstances proved in the cause to the decision of disputed points, may be obtain- ed by means of a trial before a jury, it is proper that an issue should be awarded. Trenton Banking Co. v. Woodruff, 2 N. J. Eq. 118; Miller v. Wack, 1 N. J. Eq. 205; Bassett v. Johnson, 3 N. J. Eq. 417; Hildreth v. Schillenger, 10 N. J. Eq. 196; Lucas v. King, Id. 277; Fisler v. Porch, Id. 243; Black v. Lamb, 12 N. J. Eq. 108; same case nomine; Black v. Shreve, 13 N. J. Eq. 455; 2 Daniell, Ch. Prac. 1086, 1285; Short v. Lee, 2 Jac. & W. 465; Dexter v. Providence Aq- ueduct Co., 1 Story, 387, Fed. Cas. No. 3,864; Dale v. Roosevelt, 6 Johns. Ch. 255; Ham- mond v. Fuller, 1 Paige, 197; Apthorpe v. ■Uomstock, 2 Paige, 482; Townsend v. Graves, 3 Paige, 453. The granting or refusing an issue is a matter of discretion, and no application was made to the chancellor for an issue. The case of Carlisle v. Cooper, 18 N. J. Eq. 241, in which the question of jurisdiction was raised, was not between these parties. The subject matter of the controversy there, was the dam complained of in this case, but the ■complainant in that cause was John D. G-. Carlisle, and the application to the chancel- lor was not an application for a feigned Issue. In the answer in this case, the defend- ant, after stating the abatement of his dam nine inches, submits and insists "that if the complainant shall insist that the de- fendant has not reduced his dam to the height it was prior to the year 1846, and Insists upon trying that question in this 'honorable court, that this honorable court is not the appropriate tribunal in which to try and decide that question." A replication was filed, and the parties proceeded to take their evidence. A court of equity is an ap- propriate tribunal to decide that question. The case was submitted to the chancellor for decision on its merits, without objection to the mode of trial. The submission of it to him without applying for an issue, concludes the parties from objection now to the mode of trial. Belknap v. Trimble, 3 Paige, 577. The position was also taken that the com- plainants had lost their right to relief by long delay. Mere delay in applying to the court is frequently a ground for denying a preliminary injunction, and is also a rea- son for courts of equity refusing to take cognizance of a case where there is a rem- edy at law. But where the legal right is settled, and the more efficacious remedy of a court of equity is necessary to complete relief, delay is ho ground for a denial of its aid, unless it is coupled with such acquies- cence as deprives the party of all right to equitable relief. A person may so encourage another in the erection of a nuisance, as not only to be deprived of the right of equitable relief, but also to give the adverse party an equity to restrain him from recovering damages at law for such nuisance. Williams v. Earl of Jersey, 1 Craig & P. 91. So a par- ty who knowingly, though passively, encour- ages another to expend money under an er- roneous opinion of his rights, will not be permitted to assert his title, and thereby de- feat the just expectation upon which such expenditure was made. Dann v. Spurrier, 7 Ves. 231; Rochdale Canal Co. v. King, 2 Sim (N. S.) 78; Same Case, on final hearing, 21 Eng. Law & Eq. 178; Ramsden v. Dyson, L. R. 1 H. L. 140; Dawes v. Marshall, 10 C. B. (N. S.) 697; Wendell v. Van Rensselaer, 1 Johns. Ch. 354; Ross v. Elizabeth-Town & S. R. Co., 2 N. J. Eq. 422; Hulme V. Shreve, 4 N. J. Eq. 116; Morris & E. R. Co. v. Prudden,- 20 N. J. Eq. 531; Raritan Wa- ter-Power Co. v. Veghte, 21 N. J. Eq. 463. The defendant's case is not within either of these principles. He did not make his ex- penditure in erecting his dam, and Increasing the capacity of his mill, either upon the en- couragement of the complainants' ancestor, or under an impression that he had the right to cast the water back to the extent it was held by his dam. He knew that by so do- ing he would interfere with the complain- ants' farm. He claims that he obtained that privilege from the complainants' ancestor, under a verbal agreement that he was to be permitted to flow as much of his lands as he, the defendant, saw fit, if he paid him there- for at the same rate as the defendant paid one Horton for lands on the opposite side of the stream. Upon such alleged agreement the defendant sought his remedy, after the actions at law were brought, by a bill for its specific performance, and was denied re- lief. Carlisle v. Cooper, 18 N. J. Eq. 241. The adjudication and decision of that ques- tion in that case concludes the rights of these parties. The damages paid by the defendant in the two suits at law amounted to $500. The in- jury done to the farm of the complainants by the backwater, rendered a part of their land comparatively useless, and the evidence shows that a nuisance was created on it deleterious to health, and that the enjoy- 218 EQUITABLE REMEDIES. ment of the premises was thereby impaired. For such injuries an action at law furnishes no adequate remedy, and the party enjoined is entitled to the protection of a court of equity by abatement of the nuisance. Hols- man v. Boiling Spring Bleaching Co., 14 N. J. Eq. 335; 2 Story, Eq. Jur. § 926. As the facts were when the bill was filed, the nature and extent of the injury sustain- ed by the complainants were such as to entitle them to relief in a court of equity, and it would be an extraordinary proposi- tion that a defendant, after the institution of the suit for such relief, should be enabled to defeat complete redress by a partial abate- ment of the nuisance, thus mitigating but not removing the evil, upon an insistment that the effects of such portion of the nui- sance as still remained were not of sufficient consequence to entitle the complainant to ask that perfect relief which he was en- titled to when he sought his remedy. The prayer of the bill is that the exact amount of the increase in the height of the dam in 1846 may be ascertained, and that the defendant may be ordered and decreed to abate said dam, and reduce it to its orig- inal height, as it was prior to the year 1846, and remove the obstructions caused there- by to the flow of the river; or that the same may be abated and reduced in height un- der the directions of the court. The com- plainants are entitled to the relief prayed for. The appeal upon the merits raises the ques- tion whether the relief which was granted by the chancellor, is such as is warranted by the evidence. The exact import of the decree is that the defendant is entitled to maintain his dam at the height of the present stonework and the mudsill thereon and the sheathing, with the right to place on the mudsill, for the whole length thereof, movable gates of plank of the width of seven inches, reaching a line nine inches above the said mudsill, and no higher; and that by means of these contrivances the defendant shall be entitled to use the water of said river, subject to the obligation in times of freshets or high water, to so raise the said gates as that the surface of the water shall not be raised above a line drawn twelve and a quarter inches above the top of the mudsill. The dam was built originally in 1827. It then consisted of a stone wall with a sill upon it, and was about thirty-six feet long. In 1828 or 1829, the superstructure was in- creased by the addition of posts twelve inches long, with a cap piece on the top nine inches wide. The space between the cap piece and the sill, at each end, was boarded up tight. The rest of the space was occupied by gates nine or ten inches wide, leaving a space be- tween the top of these gates and the under- side of the cap, through which the water flowed under the cap piece. In 1846 it is ad- mitted that the structure of the dam was raised, and in 1S.7>2 changes were made which increased its power of retaining and throwing back the water. In 1866, when the bill was filed, the superstructure consisted of a sill nine inches in height, on which were set posts twenty-one inches high, on which was placed a cap piece nine inches in height, and the space between the sill and cap piece was closed by solid planking at each end, and movable gates in the intermediate space, thus making the efficient height of the superstruc- ture above the stone wall thirty-nine inches. It was reduced nine inches in 1866, leaving its present height thirty inches, and the decree of the chancellor directs a further reduction of twelve inches, reducing the height of the superstructure above the stone wall to eighteen inches, which consists of the height of the sill of nine inches, and the height of the sheathing and gates upon it of nine inches ad- ditional. The effect of these operations will be to reduce the height of the dam, including the stone wall, sheathing, sill, and gates, to- about what was originally in 1828, including the stone wall, sill, and gates, which then made up the dam, but without taking into ac- count the fact that the solid planking between the cap piece and the sill at each end, joined close up to the cap piece. The principle of law stated by the chan- cellor, that the extent of the right acquired by adverse user is not determined by the height of the structure, but is commensurate with the actual enjoyment of the easement, as evidenced by the extent to which the land of the owner of the servient tenement was ha- bitually or usually flowed during the period of prescription, rests upon sound reasoning, and is supported by authority. Ang. Water Courses, §§ 224, 379; Burnham v. Kempton, 44 N. H. 78. The introduction into the rule requiring continuity of enjoyment to acquire- a prescriptive right of the qualification of habitual use, as applied to the effect of the structure, is the only qualification that is per- missible where the easement is such that its enjoyment is profitable only from a continuous use, as an easement to overflow lands. That the decree of flowage upon the lands of another fixes the extent of the right, is shown by a variety of cases. The owner of the easement is not bound to use the water in the same manner, or to apply it to the same- mill. He may make alterations or improve- ments at his pleasure, provided no prejudice thereby arises to the owner of the servient tenement, in the increase of the burden upon his land. Luttrel's Case, 4 Coke, S7; Saunders v. Newman, 1 Barn. & Aid. 258. So it is not necessary that the dam should have been maintained for the whole period upon the same spot, if the extent of flowage is at all times the same. Davis v. Brigham, 29 Me. 391; Stackpole v. Curtis, 32 Me. 383. A change in the mode of use, or the purpose for which it is used, or an increase in capacity of the machinery which is propelled by the water, will not effect the right, if the quantity used is not increased, and the change is not EQUITABLE REMEDIES. 219 to the prejudice of others. Ang. Water Courses, §§ 228-230; Hale v. Oldroyd, 14 Mees. & W. 789; Baxendale v. McMurray, 2 Ch. App. 790; Casler v. Shipman, 35 N. Y. 533; Whittier v. Cocheco Co., 9 N. H. 455; Washb. Easem. p. 279, § 38; Hulme v. Shreve, 4 N. J. Eq. 116. This rule is clearly stated by Chancellor Green in the Holsman Case, thus: "Where an action is brought for overflowing the plain- tiff's lands by backwater from the defend- ant's mill dam, it establishes no title by ad- verse enjoyment to prove that the defend- ant's mill has been in existence over twenty years, or that the dam has been in existence for that period. The question Is not how high the dam is, but how high the water has been held, whether it has been held for twenty years so high as to affect the land of the plaintiff as injuriously as it did at the time the action was brought." As a general rule the height of the dam when in good repair and condition, including such parts and appendages as make its ef- ficient height in its ordinary action and opera- tion, fixes the extent of the right to flow, without regard to fluctuations in the flow- age which are due to accidental causes, such as a want of the usual repairs, or the varia- tion in the quantity of water in the stream in times of low water or drought, or in the pondage of the dam by its being drawn down by use. Washb. Easem. p. 105, § 54; Cowell v. Thayer, 5 Mete. (Mass.) 253; Jackson v. Harrington, 2 Allen, 242; Wood v. Kelley, 30 Me. 47. But an user, to be adverse, must be under a claim of right, with such circum- stances of notoriety as that the person against whom the right is exercised may be made aware of the fact, so as to enable him to re- sist the acquisition of such right before the period of prescription has elapsed. Cobb v. Davenport, 32 N. J. Law, 369. Occasional use of flash boards for short periods, when little or no injury may be done, as an exception to the general rule not to keep them on, does not amount to the open, uninterrupted, and notorious adverse use necessary to establish a prescriptive right. Pierce v. Travers, 97 Mass. 306. If used for the full period of twen- ty years, only during times of low water, a prescriptive right will not be acquired there- by to keep the water up to the height of such boards during the whole year. Marcly v. Schults, 29 N. Y. 346. There may be such continuity of use of flash boards as that they, In effect, are part of the permanent structure, and by such user a right to flow by means of a permanent dam, to the height of such boards may be acquired. Whether the user has been such as to establish the right, is a question of fact for the jury. Noyes v. Sillman, 24 Conn. 15. In the dam of 1828 there were two gates, each fourteen feet long, and the solid plank- ing between the mudsill and the cap piece occupied four feet at each end. The dif- ference between the superstructure of the dam of 1828, in its effect in flowing the lands of the complainants, and that ordered by the chancellor in his decree, is quite in- considerable. But with respect to the con- dition of the superstructure of the dam, and the mode of its use between 1828 and 1846, and from 1846 to 1853, there is a great con- trariety in the evidence. The conflict re- lates to the use of boards to close up the space between the tops of the gates and the cap piece, thus making the top of the cap piece the line of the tumble; to the washing away of the superstructure of 1828, and its being replaced by a structure of a different construction; to the use of gates of variable widths, and at times of nothing more than boards upon the sill, kept in place by pegs and starts. With this conflict in the evidence the case was submitted to the chancellor on its merits. The evidence touching the extent of the prescriptive right to flow the lands of the complainants by means of the permanent structure of the dam and movable gates, and also to the use of flash boards, is re- viewed by the chancellor. His conclusion is, that there is not suffi- cient proof of an use of the flash boards in such a definite manner, or at certain fixed times or occasions, as to establish a quali- fied right to use them, when they operate to raise the water to any extent on the land of the complainants, and that the right to maintain the permanent structure of the dam, and to raise the water upon the com- plainants' lands by the use of the gates, Is such as I have mentioned as the substance of the decree. It is not proposed to examine the evi- dence in detail; a portion of it has been referred to by the chancellor in his opinion. It is sufficient to say that his conclusions on all these points are supported by direct testimony, and are consistent with the col- lateral facts proved, and in my judgment are sustained by the weight of the evidence in the cause. Objection was made to that portion of the decree which provided for the raising of the gates in times of freshets and high wa- ter. As the prescriptive right to the use or flow of water originates from its accustom- ed use, the right may be qualified as to times, seasons, and mode of enjoyment, by the character of the use from which the right has originated. Ang. Water Courses, §§ 222, 224, 382; Bolivar Manuf'g Co. v. Neponset Manuf'g Co., 16 Pick. 241; Marcly v. Schults, 29 N. Y. 346; Burnham v. Kemp- ton, 44 N. H. 78. Prescriptions may be up- on condition in restraint of the mode in which the prescriptive right is to be en- joyed, or may have annexed to them a duty to be performed for the benefit of the per- son against whom the prescription exists. Kenchin v. Knight, 1 Wils. 253, 1 W. Bl. 49; Brook v. Willet, 2 H. Bl. 224; Gray's Case, 5 Coke, 79; Lovelace v. Reynolds, Cro. Eliz. 220 EQUITABLE REMEDIES. 546, 563; Colton v. Smith, Cowp. 47; Pad- dock v. Forrester, 3 Man. & G. 903. In the lease to Thompson for the year 1829, the defendant inserted a covenant re- quiring the tenant to hoist the gates in time of high water, if need be, so that no damage should he done. Similar covenants are con- tained in subsequent leases, and the evi- dence is that it was the uniform practice of the tenants, in the use of the dam and its appendages, to control the height of the water in the pond in times of high water by raising the gates, and permitting it to flow off. Like the use of flash boards, only in times of low water, this mode of user qualifies the right which the defendant ac- quired from user, and the portion of the decree which regulates the management of the gates is necessary to restrain the flow- age of the complainants' lands to what it was accustomed to be during the time of prescription. In Robinson v. Lord Byron the injunction was to restrain the defendant from using dams, weirs, shuttles, flood gates, or other erections, otherwise than he had done be- fore the 4th of April, 1785, so as to prevent the water flowing to the complainants' mill in such regular quantities as it had ordi- narily done before the said 4th of April. 1 Brown, Ch. 588. A decree of a like nature was made by Lord Eldon in Lane v. New- digate, 10 Ves. 192. The decree, by its reference to the cap piece as fixing the extreme height to which the water may be raised by the use of the gates when shut, is probably more specific in its directions than is usual; but it re- moves all uncertainty in the adjudication of the court as to the extent of the rights of the respective parties. The complaint that the exercise of the defendant's right to the water is thereby made impracticable is without foundation. That it might be more conveniently exercised if his right was en- larged, is no reason why it should be en- larged by the sacrifice of the rights of the complainants without compensation. The objection that the decree fixes the form and construction of the dam perpetually, seems to me to be of greater force. The expres- sion in the decree on which this objection is founded was probably used through in- advertence. Let the decree be amended by declaring the defendant's rights as therein in substance declared, and directing the abatement of so much of the present dam as the chancellor has declared to be unlaw- ful. The appeal of the complainants is based on the allegation that the stonework of the dam was raised by the defendant in 1846. The chancellor decides that it was not, and he is supported in this by the clear weight of the evidence. With the exception of the formal modi- fication above mentioned the decree is af- firmed in all respects. Both parties having appealed, and neither party succeeding on the appeal, the affirmance is without costs to either in this court. The decree was affirmed. EQUITABLE KEMEDIES. 221 BOSTON DIATITE CO. v. FLORENCE MANTJF'G CO. et al. (114 Mass. 69.) Supreme Judicial Court of Massachusetts. Nov., 1873. T. W. Clarke, for plaintiff. D. W. Bond, for defendants. GRAY, C. J. The jurisdiction of a court of chancery does not extend to cases of libel or slander, or of false representations as to the character or quality of the plaintiff's property, or as to his title thereto, which involve no breach of trust or of contract. Huggonson's Case, 2 Atk. 469, 488; Gee v. Pritchard, 2 Swanst 402, 413; Seeley v. Fish- er, 11 Sim. 581, 583; Fleming v. Newton, 1 H. L. Cas. 363, 371, 376; Emperor of Austria v. Day, 3 De Gex, F. & J. 217, 238-241; O'Mulkern v. Ward, L. R. 13 Eq. 619. The opinions of Vice Chancellor Malins in Spring- head Spinning Co. v. Riley, L. R. 6 Eq. 551, in Dixon v. Holden, L. R. 7 Eq. 488, and in Rollins v. Hinks, L. R. 13 Eq. 355, appear to us to be so inconsistent with these authori- ties, and with well-settled principles, that it ■would be superfluous to consider whether, upon the facts before him, his decisions can be supported. The jurisdiction to restrain the use of a name or a trade-mark, or the publication of letters, rests upon the ground of the plain- tiff's property in his name, trade-mark or let- ters, and of the defendant's unlawful use thereof. Routh v. Webster, 10 Beav. 561; Leather-Cloth Co. v. American Leather-Cloth Co., 4 De Gex, J. & S. 137, and 11 H. L. Cas. 523; Maxwell v. Hogg, 2 Ch. App. 307, 310, 313; Gee v. Pritchard, 2 Swanst. 402. The present bill alleges no trust or con- tract between the parties, and no use by the defendants of the plaintiff's name; but only that the defendants made false and fraudu- lent representations, oral and written, that the articles manufactured by the plaintiff were infringements of letters patent of the defendant corporation, and that the plaintiff had been sued by the defendant corporation therefor, and that the defendants further threatened divers persons with suits for selling the plaintiff's goods, upon the false and fraudulent pretence that they infringed upon the patent of the defendant corporation. If the plaintiff has any remedy, it is by ac- tion at law. Barley v. Walford, 9 Q. B. 197; Wren v. Weild, L. R. 4 Q. B. 730. Demurrer sustained, and bill dismissed. 222 EQUITABLE REMEDIES. DAVIS et al. v. BROWNE. (2 Del. Ch. 188.) Court of Chancery of Delaware. Feb. Term, 1859. Bill for the removal of a testamentary ex- ecutor and trustee, and for other relief. The defendant was appointed executor and trus- tee by the will of Samuel B. Davis, deceased, and held a large estate, real and personal, as executor and in trust for the children of the testator. Among the acts of the de- fendant alleged in the bill as ground for his removal were the sale of a specific legacy of stock bequeathed to one of the testa- tor's sons; neglect to pay interest on a debt which was a lien upon part of the real es- tate held by him; unnecessary sale of the family plate at a sacrifice; that he was speculating in the securities of the estate; and that he threatened to sell unimproved land of the estate which would probably increase in value if it should be held for the cestuis que trustent. The prayer of the bill was that the defendant be removed as trus- tee, and be enjoined from further interfer- ence with the estate, and particularly from selling the trust property; that a receiver be appointed; and that the defendant be re- quired to account. The complainants moved before answer for a temporary Injunction and removal of the defendant. Mr. Hood, for complainants. D. M. Bates, for defendant HARRINGTON, Ch. The ultimate object of this bill is to bring the executor and trustee of Samuel B. Davis, deceased, to an account of his trusteeship, and to prevent his so administering the trust as to defeat the will of the testator and injure the dev- isees and legatees. The object of the present motion is for Im- mediate action, before answer, by injunction and temporary removal of the trustee. I think the case made by the bill sufficient to ground the application. It charges not merely such maladministration of the trust that it would be sufficient to rest upon the responsibility of the trustee and his sure- ties, but it is alleged that acts are threat- ened which might be irremediable. I observe that the bill is defective in char- ging the defendant only as executor, in which character he is responsible to another tribunal. He should be charged as trustee. Mr. Hood, upon leave granted, amended the bill, according to the chancellor's sug- gestion; and the orders moved for were then granted. REFORMATION, CANCELLATION, AND QUIETING TITLE. 223 TOWN OF VENICE v. AVOODIiUFF. (62 N. Y. 402.) Court of Appeals of New York. 1875. Appeal from supreme court, general term. This was an action to secure the cancella- tion of certain bonds issued by the supervisor and railroad commissioners of the plaintiff town, and to restrain the defendants, who were the holders of those bonds, from trans- ferring them. There was a finding of fact by a referee, the material part of which ap- pears in the opinion. EAPALLO, J. The referee has found that all of the bonds, which the plaintiff seeks by this action to have delivered up and can- celed, were made and issued without the requisite consent of two-thirds of the tax payers of the town. That fact, according to the decisions of this court, rendered the bonds void, even in the hands of bona fide holders. Starin v. Town of Genoa, 23 N. Y. 439; People v. Mead, 24 N. Y. 114, 36 N. Y. 224. It was further held in these cases that the burden of proving the requisite consent of the tax payers rested upon the party seeking to enforce payment of the bonds, and that the affidavit directed by the act under which the bonds purported to be issued, to be filed with the consent, was not evidence of the requisite consent. It is therefore settled by the adjudications of this court that no re- covery can be had in an action upon these bonds, without affirmative extrinsic proof of the requisite consent. The fact being found that such consent was not given, it is clear that a perfect defense to the bonds exists, should an action be brought upon them in any court of this state, either by the present holders of the bonds, or by any person to whom they may be transferred. Upon this state of facts the question arises, whether an equitable action can be main- tained by the town to restrain the holders of the bonds from suing upon or transferring them, and to compel the surrender and can- cellation of the instruments. The cases in which a court of equity exer- cises its jurisdiction to decree the surrender and cancellation of written instruments are, in general, where the instrument has been obtained by fraud, where a defense exists which would be cognizable only in a court of equity, where the instrument is negotiable, and by a transfer the transferee may acquire rights which the present holder does not pos- sess, and where the instrument is a cloud upon the title of the plaintiff to real estate. Under the chancery system, where a bill of discovery was necessary to establish a de- fense, the court having acquired jurisdiction of the case for the purpose of discovery, might proceed and award relief, but this ground of jurisdiction no longer exists. It is true that the jurisdiction of the court of chancery has been asserted to decree the sur- render of every instrument which ought not to be enforced, whether void at law or not, and whether void from matter appearing on its face, or from matter which must be estab- lished by extrinsic proof. Hamilton v. Cum- mings, 1 Johns. Ch. 520-522, 523. But Chan- cellor Kent in the case cited, in asserting this jurisdiction recognizes the necessity of show- ing strong grounds for the exercise of the power, and endeavors to reconcile the appa- rently conflicting English authorities by ad- verting to the general principle that the ex- ercise of the power is to be regulated by sound discretion, as the circumstances of the individual case may dictate, and that a resort to equity, to be sustained, must be expedient either because the instrument is liable to abuse from its negotiable nature; or because the defense not arising on its face may be difficult or uncertain at law; or from some other special circumstances peculiar to the case, and rendering a resort to equity highly proper. And it is now well established that equity will not interpose to decree the cancellation of an instrument, the invalidity of which appears upon its face. Story, Eq. Jur., § 700, a. There must exist some circumstance es- tablishing the necessity of a resort to equity, to prevent an injury which might be irrep- arable, and which equity alone is compe- tent to avert. If the mere fact that a de- fense exists to a written instrument were sufficient to authorize an application to a court of equity to decree its surrender and cancellation, it is obvious that every con- troversy in which the claim of either party was evidenced by a writing could be drawn to the equity side of the court, and tried in the mode provided for the trial of equitable actions, instead of being disposed of in the ordinary manner by a jury. Whether therefore the question be regarded as one of jurisdiction or of practice, it is es- tablished by the later decisions that some special ground for equitable relief must be shown, and that the mere fact that the in- strument ought not to be enforced is insuffi- cient, standing alone, to justify a resort to an equitable action. Grand Chute v. Wine- gar, 15 Wall. 374; Minturn v., Fanners' Loan 6 Trust Co., 3 N. Y. 498; Perrine v. Striker, 7 Paige, 598; Morse v. Hovey, 9 Paige, 197; Field v. Holbrook, 6 Duer, 597; Allerton v. Belden. 49 N. Y. 373; Reed v. Bank of New- burgh, 1 Paige, 215, 218. In the present case in so far as the in- validity of the bonds results from the want of consent of the tax payers, there is no ground whatever shown for resorting to an equitable action. Not only is the want of the consent a perfect defense at law, but the onus of proving the consent is upon the party seeking to enforce the bond; and the court cannot assume that he will be able to establish a fact that does not exist, and of which there is no documentary evidence. If it be said that the town may by delay lose evidence now existing, which, would be avail- REFOKMATION, CANCELLATION, AND QUIETING.. TITLE. able to meet and rebut false testimony, one decisive answer is that the statutes now pro- vide a summary mode of perpetuating testi- mony in all cases, and an action is not neces- sary for that purpose. The case Is analogous to those of Field v. Holbruok, 6 Duer, 597, and Allerton v. Belden, 49 N. Y. 373. It is Urged that the action should be sus- tained for the purpose of preventing a trans- fer of the bonds to a bona fide holder. This court has held that such a transfer could not prejudice the plaintiff, as the defense would be available even against a bona fide holder. Starin v. Town of Genoa, 23 N. Y. 439. But it is said that although such is the rule in this state, a different rule has been adopted in the. courts of the United States, and the bonds might be transferred to a bona fide holder, who might sue in those courts. There would be force in this argu- ment provided it were established in the case that the present holders of the bonds were not bona fide holders. In that case it might be proper for a court of equity to prevent their subjecting the town to liability by a transfer of the bonds. But if they are themselves bona fide holders, there is no justification for interfering with the right of transfer. In contemplation of law the trans- ferees would acquire no greater rights than are possessed by the present holders. The real purpose of the litigation seems to be to prevent a resort to the courts of the United States for the collection of these bonds; and the question is, whether it is the province of a court of equity in a state to interfere for the purpose of preventing a resort to the federal courts for the enforce- ment of obligations on the ground that they may be held in those courts to be valid, while according to the decisions of the state courts the same obligations are held to be void. I apprehend that the power of a court of equity to decree the surrender and can- cellation of instruments has never before been appealed to or exercised for such a purpose. Equity will interfere to control the action of parties and restrain them from transferring negotiable obligations, on the ground that it is against conscience to al- low them to create in their transferee a right or equity which they themselves do not pos- sess. But where the effect of a transfer is not to change in any respect the rights or equities of the parties, I am not prepared to hold that the allegation that the transferee might resort to a tribunal in which a rule of decision prevails, or may prevail, differing from that of the court which is asked to en- join the transfer, is sufficient to justify the interference asked. The wrong sought to be prevented by such a proceeding is not any wrongful act of any party, but a decision of another court. The facts of the case and the abstract rights of the parties are not changed by the transfer. The greatest effect it can have is to enable a transferee to sue in a court to which the present holder could not resort. This, in general,, would not be re- garded as any wrong which a court of equity would restrain. If it is a wrong in this case it must be on the assumption that the federal court will render a decision at vari- ance with the decision of this court. I am of opinion that such an apprehension is not a legitimate ground for the action of a court of equity in restraining a transfer or di- recting the cancellation of the instrument. There is no finding that the present holders are not bona fide holders of the uonds. As the judgment entered upon the report of the referee was in favor of the defendants it could not be disturbed unless facts were found showing that the conclusions of law were erroneous. ~We have held over and over again that the facts showing error in the legal conclusions must be found, and that the appellate court will not search for them in the evidence. In this case the findings are in favor of the bona fides of the defend- ants. As to five of the bonds it is found that they were sold and delivered by the supervisor and railroad commissioner to Hutchinson & Murdock, who paid for them par in cash. This finding is not weakened by the further finding that the money was in the first instance advanced on a pledge of the bonds which was subsequently con- verted into a sale. As to the twenty bonds which were issued direct to the railroad com- pany, the referee finds that the holders pur- chased them without being informed that they had been delivered directly to the com- pany. No fact is found impeaching the bona fides of the holders of any of the bonds, and therefore it does not appear that any transfer of them can be made which will confer upon the tiansferees any greater equities than are possessed by the present holders. The fact that twenty of the bonds were delivered directly to the railroad company in- stead of being sold by the railroad com- missioners, is relied upon as a ground for granting relief as to those bonds. In the case of People v. Mead, 24 N. Y. 124, 125, it seems to be considered that this fact would not constitute a defense, even in the state court, as against a bona fide holder of the bonds. But to entitle the town to aiiirrna- tive equitable relief on that ground, it should have been made to appear that the defend- ants were not bona fide holders; which, as has already been shown, the plaintiff has failed to do. Another ground urged in support of the claim to equitable relief is, that it is neces- sary for the purpose of avoiding a multi- plicity of suits; and the case of New York & N. H. R. Co. v. Schuyler, 17 N. Y. 592, and 34 N. Y. 30, is referred to as an au- thority in point. But that case was essen- tially different from the present. There the defendants all claimed shares in the same corporation, which had authority to Issue only a limited number; shares had been issued in excess of that limit, and some of them REFOKMATION, CANCELLATION, AND QUIETING TITLE. 225 must be rejected. The spurious shares were held to be a cloud upon the title of the hold- ers of the genuine shares, and the corpora- tion was held to be the proper representative of the genuine stockholders to seek the in- terposition, of the court to remove that cloud. Here was a solid ground upon which the plaintiff could found its application for relief. The plaintiff having this standing in court, it was held that all the alleged spurious share- holders were properly joined as defend- ants. But jurisdiction was not entertained on the sole ground that the holders of spu- rious shares were numerous. In the present, case there is no question of any cloud upon the title. The plaintiff seeks to have can- celed certain written instruments purport- ing to be obligations for the payment of money, which are held by various independ- ent owners. If it fails to make out a case which would sustain an action for that pur- pose against any one of them alone, the mere fact that there are several such hold- ers is not of itself sufficient ground for en- tertaining the suit. If the facts were such as would have sustained the action against one person had he been the holder of all the bonds, then the case of the New Haven Rail- road Company would be an authority in favor of the position, that if there were sev- eral holders all might be joined as defend- ants. But it does not support the position, that the mere fact that numerous independ- ent parties hold separate instruments upon which they might bring separate suits is suf- ficient to justify a court of equity in enter- taining an action by the debtor to compel them to litigate their claims in an action in the form which he selects. FET.EQ.JTJK. — 15 Under any circumstances, I am inclined to concur with Judge Talcott, in the opinion that a court of equity would not interfere affirmatively to relieve the plaintiff against these bonds, except upon condition that it surrendered what it had received for them. The relief sought is discretionary with the court; and the plaintiff is not entitled to it as matter of absolute right Actions of this class are in that respect governed by the same rules which apply to actions for specif- ic performance; and relief will never be granted except upon equitable terms, where the case is such as to call for the imposition of terms. Story, Eq. Jur., §§ 692, 693, 696, and cases cited section 742. But the reasons before given I deem sufficient to sustain the conclusion of the referee dismissing the com- plaint. There is great doubt whether the defense of the statute of limitations is available in this case. In respect to the limitation of time it is analogous in principle to an action to remove a cloud upon the title to land; and in such cases I do not understand the rule to be that the statute runs from the time the cloud was first created. See Miner v. Beek- man, 50 N. Y. 338; Hubbell v. Medbury, 53 N. Y. 99; Arnold v. Hudson R. R. Co., 55 N. Y. 661. On the ground that the facts of the case- are insufficient to justify the interposition/ of a court of equity to decree the surrender and cancellation of the bonds, or to restrain/ their transfer, so much of the judgment as is appealed from should be affirmed, with costs. All concur; CHURCH, G. J., not sitting.. Judgment affirmed. 226 REFORMATION, CANCELLATION, AND QUIETING TITLE. DULLS APPEAL. (6 Atl. 540, 113 Pa. St. 510.) Supreme Court of Pennsylvania. Oct. 4, 1886. Appeal from decree of the court of com- mon pleas, Fayette county. Bill for relief quia timet. Bill dismissed. Plaintiff appeals. Edward Campbell, for complainant. A. D. Boyd, for appellee. GREEN, J. The master found as facts in this case that the plaintiff held title to the land in question by deed from the assignee of the former owner; that he subsequently occupied the land, built a house upon it, in which he dwelt from October, 1879, to Au- gust, 1882, and from that time on he was in possession by his tenants. He also found that, when the land was sold as unseated land for taxes, the plaintiff owed 63 cents taxes, but that there was personal property on the premises sufficient to make the tax. This tax title which the defendant bought, and took and held a deed for, was therefore apparently an invalid title. Nevertheless, the defendant had the deed recorded, and, by his answer to the plaintiff's bill, claims title un- der the treasurer's deed in himself, and de- nies the matters of fact which are alleged in the plaintiff's bill as the grounds of the invalidity of the defendant's deed. These are: (1) That, at the time of the tax sale, the plaintiff resided in the borough where the land is situated; (2) that the plaintiff owned a large amount of personal property in said borough; (3) that there was personal property on the lot out of which the tax could have been made; and (4) that the plain- tiff was in possession of the premises from 1879 to the time of filing the bill. All these are matters of fact resting in parol, and the evidence to prove them dies with the wit- nesses who know them. The plaintiff is in possession, and there- fore cannot bring an action of ejectment to recover the land or prove his title. The treasurer's deed is regular on its face, and in accordance with the requirements of the law, so far as can be judged by anything apparent in its language. The master found that the defendant had not asserted his title, except as stated in his answer; but it can- not be doubted that it is there asserted em- phatically and adversely. What, then, is the plaintiff's situation? He is prevented from establishing his title by any proceeding at law, but he is threatened with an adverse paper title placed upon record by the de- fendant, and by him asserted and pleaded in a judicial proceeding. It is beyond all question that the defendant's deed is a cloud, and a serious one, upon the plain- tiff's title. Unless he can remove the cloud by the present proceeding he is without rem- edy. The master held that no relief could be granted, because there was no relation of trust or contract between the parties, and cites Barclay's Appeal, 93 Pa. St. 53, as au- thority. The court below sustained this con- clusion, though without an opinion. A very slig'ht examination of Barclay's Appeal shows that it was not a case in any re- spect like the present, or raising the same questions. There was no claim of adverse title to the plaintiff's land, and the bill was brought to obtain a decree for the removal of certain machinery from the premises of the plaintiff. The remarks quoted from the opinion were made in reference to the facts of that case, and are entirely correct as ex- pressing the general state of the law upon the subject named, But they did not affect to discuss, or even state, the law upon the subject of the equity jurisdiction to remove clouds upon titles, and could not have been so intended without conflicting with repeat- ed decisions of this court. Not a single au- thority was cited, either by the counsel con- cerned or in the opinion of this court, nor was any proposition expressed respecting this kind of equity jurisdiction. Our own cases show that we have adopted and fully recognize the equity jurisdiction to remove clouds upon title as fully and as broadly as it is described in the equity text- books and decisions. Thus in Kennedy v. Kennedy, 43 Pa. St. 417, Mr. Justice Strong said: "And there are very many cases analo- gous to bills of peace, in which a chancellor has interfered to quiet the enjoyment of a right, or to establish it by a decree, or to remove a cloud from the title. Indeed, this is one of the well-recognized branches of equitable jurisdiction, though its extent is not clearly defined." This was said in a case in which there was no relation of trust or contract, and the title was legal only. Relief was denied for want of proof, but not for want of jurisdic- tion. The same remark is true of the case of Stewart's Appeal, 78 Pa. St. 88, in which the late Chief Justice Sharswood sums up a dis- cussion of the subject thus: "The best ex- pression of the rule, as it seems to me, is to be found in an opinion of the supreme court of Massachusetts, in Martin v. Graves, 5 Allen, G61, by Merrick, J.: 'Whenever a deed or other instrument exists which niay be vexatiously or injuriously used against a party, after the evidence to impeach or in- validate it is lost, or which may throw a cloud or suspicion over his title or interest, and he cannot immediately protect or main- tain his right by any course of proceeding at law, a court of equity will afford relief by directing the instrument to be delivered up and canceled, or by making any other de- cree which justice or the rights of the par- ties may require.' " It will be observed that the rule thus stat- ed is without any limitation to cases of trust or contract. In the principal case of Martin v. Graves there was no relation of trust or contract KEFOKMATION, CANCELLATION, AND QUIETING TITLE. 227 between the parties to the suit, and the titles claimed by the respective parties were legal only. The plaintiffs alleged fraud in the de- fendants in procuring the deed sought to be set aside, but the jurisdiction was not put upon the ground of fraud, but on the general ground of cloud upon the plaintiff's title. In 2 Story, Eq. § 700, the writer, after stating the jurisdiction to be undoubted, says: "If an instrument ought not to be used or enforced, it is against conscience for the party holding it to retain it, since he can only retain it for some sinister purpose. * * * If it is a deed purporting to convey lands or other hereditaments, its existence in any uncanceled state necessarily has a tendency to throw a cloud over the title." Ill the first note, a, entitled "Cloud upon Title." the annotator has discussed the whole subject of equitable jurisdiction upon this ground, gathering together and classifying a great number of decisions, English and Ameri- can, illustrating the circumstances in which relief will be given or refused. He says on page 12, (Ed. 1886:) "Assuming, however, that the plaintiff is in a position to ask for relief, he will be entitled to it upon establish- ing the existence of any such facts as the following: (1) An invalid deed or instru- ment relating to the title to land, the in- validity of which does not appear therein, as, e. g., an invalid tax deed or receipt;" citing a number of cases, among which is Russell v. Deshon, 124 Mass. 342. Upon re- ferring to this case it is found to be identi- cal in principle, and almost identical in its facts, with the present case. The defendant bought the plaintiff's land at a tax sale for nonpayment of taxes. The plaintiff alleged that he did not know that the tax was un- paid, but supposed it was paid when he acquired his title. He applied to the de- fendant to release his tax title, but the lat- ter refused to do so, and the plaintiff then filed a bill to remove the cloud on his title and compel a release. It happened that the tax title was invalid because the sale was made more than two years after the war- rant to collect the tax was issued. The bill was demurred to for want of equity, but the court overruled the demurrer, and grant- ed the relief prayed for. On page 344 the court says: "The collector's sale was there- fore void, and his deed conveyed to the de- fendant no valid title. But as the defend- ant has caused the deed to be recorded, and refuses to release to the plaintiff, and claims that he owns the premises, the collector's deed to him creates a cloud on the plaintiff's title. The plaintiff, having continued in pos- session of the premises since he took his deed, in November, 1875, cannot try his title by writ of entry, and can maintain a bill in equity to remove the cloud from his title." In Clouston v. Shearer, 99 Mass. 209, it was held that a person in possession of land, and taking the rents and profits, may main- tain a bill in equity to quiet his title against one who, as to him, is dispossessed and dis- seized, but asserts an adverse title under a mortgage, the validity of which is denied by the plaintiff. The same uoctrine was ap- plied, in the case of a mortgage of personal property, in Shearman v. Fitch, 98 Mass. 59, and the court said in the opinion, sustain- ing the bill: "But where a title to real es- tate is claimed, against which there is no present remedy by action at law, a bill in equity may be maintained to set it aside." In Hayward v. Dimsdale, 17 Ves. Jr. Ill, Lord Chancellor Eldon held that there was jurisdiction in equity to order a deed form- ing a cloud upon the title to be delivered up, though the deed is void at law. In 3 Pom. Eq. Jur. § 1398, it is said: "The jurisdiction to remove clouds from title is well settled; the relief being granted on the principle quia timet,— that is, that the deed or other instrument or proceeding consti- tuting the cloud may be used to injuriously or vexatiously embarrass or affect a plain- tiff's title." In the foot-notes very numerous cases are collected; the substance of them being thus expressed: "When the estate or interest to be protected is equitable, the jurisdiction should be exercised, whether the plaintiff is in or out of possession; but, where the es- tate or interest is legal in its nature, the exercise of the jurisdiction depends upon the adequacy of legal remedies. Thus, for example, a plaintiff out of possession, hold- ing the legal title, will be left to his remedy by ejectment under ordinary circumstances; * * * but when he is in possession, and thus unable to obtain any adequate legal re- lief, he may resort to equity, [citing many cases.] When, on the other hand, a party out of possession has an equitable title, or when he holds the legal title under circum- stances that the law cannot furnish him full and complete relief, his resort to equity to have a cloud removed ought not to be questioned, [quoting numerous decisions.]" The references to authorities may be closed with a single citation from one of our own cases, Eckman v. Eckman, 55 Pa. St. 209, in which we said, (Woodward, C. J.): "Not only are accident, mistake, and fraud recognized grounds of relief, but, if an instrument ought not to be used or enforced, it is against con- science for the party holding it to retain it, since he can only retain it for a sinister pur- pose; and, according to Judge Story, the modern decisions entitle him to relief quia timet. 1 Story, Eq. § 700." In none of the cases have we been able to discover that this kind of relief has been withheld unless there was a relation of trust or contract between the parties. The juris- diction has been asserted and enforced as an independent source or head of jurisdic- tion, not requiring any accompaniment of fraud, accident, mistake, trust, or account, or, indeed, any other basis of equitable in- tervention. Of course, it must be exercised 228 REFORMATION, CANCELLATION, AND QUIETING TITLE. only in plain cases, and with much care, and not at all where the party has an adequate remedy at law. But where there is no ade- quate legal remedy available to the party, and the facts are clearly such that he ought to be relieved, there can be no doubt of his right to relief in equity in the manner in- voked in the present case. We are of opinion that upon the facts found by the master, and upon the testimony taken before him, the plaintiff is entitled to be relieved against the tax deed held and set up by the defendant. We regard the deed as invalid. It is most certainly a serious cloud upon the plaintiff's title. The defendant asserts it, but brings no action upon it. The plaintiff is in possession, and therefore can bring no ejectment. His evidence to prove the invalidity of the defend- ant's deed rests in parol, and may be lost, and the defendant's deed may be used vexa- tiously and injuriously, to his disadvantage. These being the clear facts of the case, the plaintiff is entitled to relief by having the defendant's deed delivered up to be can- celed. Now, to-wit, October 4, 1886, the decree of the court below is reversed, at the cost of the appellee; and it is further ordered, ad- judged, and decreed that the plaintiff's bill be reinstated, and that the defendant do forthwith surrender and deliver up to the plaintiff for cancellation the treasurer's deed held by him, from Levi Bradford, treasurer^ dated the seventh day of September, A. D. 1882, and mentioned in the plaintiff's bill, and that the plaintiff do thereupon pay to the defendant the purchase money, $4.30, paid for the land, and the fees paid for re- cording the same, and interest on both sums from the date of their payment; and, further, that the costs of the case other than the costs of this appeal be paid equally by the- parties. GORDON, J., dissents. ANCILLARY REMEDIES. 229 BASSBTT et al. v. LESLIE et al. (25 N. E. 386, 123 N. Y. 396.) Court of Appeals of New York. Oct. 28, 1890. Appeal from supreme court, general term, first department. Joseph A. Shoudy, for appellants. C. E. Rushmore, for respondents. EARL, J. This is an action of inter- pleader, and the plaintiffs prayed judg- ment that the defendants might be decreed to interplead touching their several claims, and that the plaintiffs might be at liberty to pay the sum admitted by them to be due into court, and that both defendants might be perpetually enjoined from the further prosecution of actions commenced by them against the plaintiffs. As the case is presented by the demurrer to the complaint, we must assume that all the facts alleged therein are true. This, under the old chancery practice, would have been called " a strict bill of interpleader," and to maintain such an action it is neces- sary to allege and show that two or more persons have preferred a claim against the plaintiff; that they claimed the same thing, whether a debt or a duty; that the plaintiff has no beneficial interest in any- thiag claimed ; and that it cannot be de- termined without hazard to himself to which of the two defendants the money or thing belongs. There must also be an offer to bring: the money or thing into court. Railroad Co. v. Clute, 4 Paige, 884; Dorn v. Fox, 61 N. Y. 268; Railroad Co. v. Arthur, 90 N. Y. 234. Such an action al- ways supposes that the plaintiff is a mere stakeholder for one or the other of the de- fendants who claim the stake, and the case must be such that he can pay or de- posit the money or property into court, and be absolutely discharged from all lia- bility to either of the defendants, and thus pass utterly out of the controversy, leav- ing that to proceed between the several claimants; and an action of interpleader cannot be sustained where from the com- plaint itself it appears that one of the claimants is clearly entitled to the debt or thing claimed, to the exclusion of the oth- er. Railroad Co. v. Clute, supra. Upon the facts alleged in this complaint, it is entirely clear that the plaintiffs are in- debted to Alcock & Co. Goods were pur- chased by them of Alcock & Co., and de- livered by the latter in precise conformity with their agreement. It was arranged that Alcock & Co. should procure pay- ment for the goods by means of a draft drawn upon the American Exchange, which was again to be reimbursed by a draft drawn by it upon the plaintiffs. There is no allegation in the complaint that Alcock & Co. took the accepted draft drawn upon the Exchange in payment for their goods, and there can be no presump- tion, from any facts alleged in the com- plaint, that they did. It is therefore clear that the plaintiffs are indebted to Alcock & Co., and that, upon the facts alleged in the complaint, they have no defense to the action brought by them for the price of the goods. It is also clear, from the facts alleged in the complaint, that Frank Les- lie has no claim whatever against the plaintiffs upon the draft held by her. That draft was drawn by the American Exchange upon the plaintiffs for the pur- pose of placing it in funds to meet the draft drawn upon it by Alcock & Co.; and, while it neglected and refused to pay the .draft accepted by it, it had no cause of ac- tion against the plaintiffs upon the draft accepted by them. Its transfer thereof to Mrs. Leslie was a diversion thereof from the purpose for which it was accepted ; and, as she took it, without parting with any value, to apply upon a pre-existing indebtedness of the American Exchange to her, she stands in no better position than it, and can no more compel payment by the plaintiffs of the draft than it could if it had brought an action thereon. There can be no doubt, therefore, that, upon the facts alleged in the complaint, the plain- tiffs have a perfect defense to the action brought against them by Mrs. Leslie. Up- on the facts alleged, there is no contro- versy between Alcock & Co. and Mrs. Les- lie. They claim payment for tha goods sold by them to the plaintiffs. Mrs. Leslie claims payment of the draft drawn by the American Exchange upon the plaintiffs, and accepted by them. Alcock & Co., therefore, have nothing to litigate with her, and have no interest in her contro- versy with the plaintiffs. They are in any event, upon the facts alleged, entitled to payment for the goods purchased of them by the plaintiffs, and no litigation between them aDd her could in any way affect their rights to such payment. If Mrs. Leslie claims precisely what is alleged in the complaint, her claim is good for nothing, and she cannot recover upon the draft against these plaintiffs. If, how- ever, as may be inferred, she in fact claims that she is a bona fide holder of the draft for value, then she can recover thereon against the plaintiffs; and, if they should be compelled to pay her the amount of the draft, they would still be liable to pay Al- cock & Co. the price of the goods. It is true that Alcock & Co. and Mrs. Leslie both claim the same amount of the plain- tiffs, but the one claims it for goods sold, and the other claims itupon a draft; and, if the plaintiffs should pay the money into court, would it be paid to apply upon the price of the goods, or upon the draft? Undoubtedly the plaintiffs are exposed to the hazard of paying the sum claimed of them twice. But that hazard does not spring out of their liability to pay Alcock & Co., but out of the question whether Mrs. Leslie is a bona, fide holder of the draft for value; and whether she is or not is a matter solely between them and her. If the two defendants were both claiming the money due upon the draft, or both claiming the monej due forthe price of the goods, the case would be different. But one defendant claims payment for the goods, and the other claims payment up- on the draft, and payment of the one would be no defense to an action for the other. We may imagine still another state of things. Suppose the plaintiffs claim, and are able to establish, that Alcock & Co. took the acceptance of the American Ex- change in absolute payment for the goods sold to the plaintiffs ; then the only par- 230 ANCILLARY REMEDIES. ties interested in that matter are the plain- tiffs and Alcock & Co. Mrs. Leslie has no concern with it, and she and Alcock & Co. cannot be compelled to engage in a litiga- tion over it. As has been stated, if she is a bona fide holder for value, her claim up- on the draft cannot be defeated by show- ing payment for the goods. If she is not a bona fide holder for value, shecannot re- cover, as the sole purpose of the draft was to put the American Exchange in funds to pay the accepted draft of Alcock & Co., and itcouldnot lawfully transferthis draft to her to apply upon a precedent debt. For all these reasons, therefore, it is en- tirely clear that this is not a casefor inter- pleader, and the judgment below should be affirmed, with costs. All concur, Rugek, C. J., in result. Judgment affirmed. ANCILLARY REMEDIES. 231 MAYS v. ROSE et al. (Freem. Ch. [Miss.] 703.) Superior Court of Mississippi. The bill charges that Frederick C. Rose, one of the defendants, had in his possession a large estate, consisting of town lots, in the city of Jackson, goods, wares, and mer- chandise, choses in action, and money; that he was indebted to several persons in a large amount, and being so indebted, he de- signed to defraud his creditors; that in pur- suance of this design, on the 5th of Novem- ber, 1839, he executed his deed to Benjamin Rose, another of the defendants, and his brother, conveying to him, purporting to be for the sum of nineteen thousand dollars, the lots in the city of Jackson; that he re- tained the possession of said property; and as a means of doing so, and as a cover for the fraud, and to enable the said F. C. Rose to carry on the business, and to have the sole control, management, and beneficial interest in the said property, the said Benjamin Rose, on the 2nd of December, 1839, made a power of attorney to him, giving him a general and unlimited power to transact all his business, and to use, sell, or dispose of the property at his will and pleasure; that, un- der colour of this power of attorney, said Frederick conducted and carried on an ex- tensive business in buying and selling vari- ous articles, and particularly in the pur- chase of cotton; and that all these trans- actions were carried on by the money of said Frederick in reality, though he professed to act as the agent of said Benjamin; that said Benjamin is a young man, recently arrived in the country, scarcely able to speak the English language; that he was very poor, had been acting in the capacity of a clerk for his brother, was dependent for support solely upon his own exertions and the bounty of his brother, and had no means of his own whatever to have enabled him to become the purchaser of property for so large an amount; and that this pretended sale and conveyance of the property was fraudulent, and designed to hinder and defraud the creditors of said Frederick; that by virtue of several executions, in favor of Elihu Shields, Scott & Avery, and the complainant, amounting in all to about the sum of eight or nine thousand dollars, the said houses and lots were levied on and sold by the sheriff of Hinds county, and complainant became the purchaser, and received the deed of the sheriff for the same; that said Fred- erick, as the pretended agent of his brother, retains the possession of said property, and has rented out the same to various individ- uals, and is receiving the rents and profits of the same, and refuses to relinquish said pretended claim, and thereby throws a cloud upon the title of said complainant, and who, by reason of said refusal, is compelled to submit to a loss of the rents and profits which arise from the said houses and lots. The bill prays that a receiver be appointed to collect the rents and profits arising out of the said houses and lots, during the pen- dency of this suit, to hold them subject to the order of the court, upon its decision; to keep said premises in repair, and rent out the same; and also that the title of com- plainant be quieted, and he be put in pos- session of the same, &c. Upon the motion to appoint a receiver, the complainant also produced the affidavits of E. U. Avery and William H. Elam, who cer- tify that in 1839 they were in the employ- ment of said Frederick C. Rose, as clerks in his store; that some time in October, be- tween the fifth and tenth, Benjamin Rose came also into the employment of hisbrotheiv who had accidentally met him as he went on to the north to purchase goods; that Fred- erick had to purchase clothes and pay his expenses to this state; that they had every opportunity of knowing about the circum- stances of said Benjamin, and that he had no means whatever of his own; that he never spoke of any money that he had, nor did they know of any money ever having passed from said Benjamin to said Fred- erick, for said houses and lots; and that they are confident no such sum of money,. as nineteen thousand dollars, could have passed without their knowing it. Notice of the motion to appoint a receiver was also given. Rucks & Yergers, for motion to appoint a receiver. Wm. Thompson and John B. For- ester, contra. BUCKNBR, Ch. An application for the appointment of a receiver is one which is addressed to the sound discretion ,of the court, to be exercised as an auxiliary to the attainment of the ends of justice. It is one of the modes in which the preventive jus- tice of a court of equity is administered.. The great object is to secure the property or thing in controversy, so that it may be- subjected to such order or decree as the court may make in the particular case. It is in- tended equally for the security of both plain- tiff and defendant. The possession of the receiver is not adverse to or in hostility to- the rights of the defendant; that possession, is the possession of the court, held equally for the greater safety of all the parties con- cerned. Verplank v. Caines, 1 Johns. Ch. 58. A reference to the various decisions upon motions for the appointment of re- ceivers, shows that each case has been made- to depend upon its own peculiar features, and throws but little light upon any new case, except so far as they establish the gen- eral principles, which should govern the* court in the exercise of its discretion upon these motions. These principles are: That the plaintiff must show, first, either that he has a clear right to the property itself; or that he has some lien upon it; or that the property constitutes a special fund to which 232 ANCILLARY REMEDIES. he has a right to resort, for the satisfaction of his claim. And, secondly, that the pos- session of the property by the defendant ■was obtained by fraud; or that the prop- erty itself, or the income arising from it, is in danger of loss from the neglect, waste, misconduct or insolvency of the defendant. These are believed to be the general rules governing all applications of this kind. Or- phan Asylum Soc. v. McCartee, 1 Hopk. Ch. 423; Hugonin v. Basely, 13 Ves. 105; Lloyd v. Passingham, 16 Ves. 69. The question here is, does the plaintiff's case come within the application of the principles referred to? The bill charges that the defendant F. C. Rose was seized of certain town lots in the city of Jackson, with a quantity of mer- chandise and other property, and that being largely indebted, and wishing to delay and defraud his creditors, he conveyed to his brother Benjamin Rose, the other defendant, by deed of date the 5th of November, 1839, the whole of said property for the nominal sum of one thousand nine hundred dollars; that, in order to more effectually conceal the fraud intended, said F. C. Rose, a short time thereafter, took from said Benjamin Rose a power of attorney, authorising him to transact all his business, and to use, sell or dispose of said property at the will and pleasure of said F. C. Rose, who, pretend- ing to act under said power of attorney, con- trolled and enjoyed the proceeds of said property, bought and sold various articles in his line as a merchant, and carried on the whole business for his own benefit, without accounting to his brother therefor; that Benjamin Rose was a foreigner, a young man just then come to the country, without property, and dependent mainly upon the bounty and kindness of F. C. Rose for his support; that he was wholly unable to pay, and never did pay, any part of said nomi- nal sum of money; that shortly after the making of said deed, various judgments were obtained against said F. C. Rose, at the instance of pre-existing creditors, upon which judgments executions were issued .and levied upon said town lots, and after- wards regularly sold, at which sale the com- plainant became the purchaser; that there are several tenements on said lots, which Have been rented out in part by said F. C. Rose, and in part occupied by him. The bill prays for an injunction against the de- fendants, as to the receipt of rents, for the appointment of a receiver, and for general relief. I entertain no doubt that a purchaser of real estate at a sheriff's sale may come into this court for the purpose of setting aside a deed of the property which had been made to defraud the judgment creditor. The pur- chaser in such case succeeds to all the rights which the judgment creditor had against such fraudulent deed (Frakes v. Brown, 2 Blackf . 295) ; and the court will extend to him the same remedies and measure of re- lief that would have been afforded to the judgment creditor himself. Upon a creditor's bill to reach the property of his insolvent debtor, nothing is more usual than to appoint a receiver to collect and preserve the property pending the liti- gation. Osborn v. Heyer, Paige, 342. In Bloodgood v. Clark, 4 Paige, 575, Chancellor Walworth says: "In these cases of cred- itors' bills, where the return of execution unsatisfied pre-supposes that the property of the defendant, if any he has, will be misap- plied, it seems to be almost a matter of course to appoint a receiver." I take it to be clear, that the creditors of Rose, under whose judgments the complainant pur- chased, could have come into this court, to set aside the deed in question; and that upon allegations like those in the complain- ant's bill, they would have been entitled to ask for the appointment of a receiver; if so, then from the view I have taken of the au- thorities, the plaintiff's right to do so is equally clear. I think, then, whether we test this application by its analogy to ad- judged cases, or by reference to the general principles to which I have adverted, its claim to success is equally clear. The bill shows the complainant's right to the lots in question, by his purchase at sheriff's sale; that the possession of them by the defend- ant Benjamin Rose was obtained by fraud; and that the rents and profits of the prop- erty are in danger of being lost to the com- plainant, by reason of the fraud, insolvency, or irresponsibility of the defendants; thus embodying all the elements necessary to the success of the motion. It is worthy of remark, that none of these allegations are attempted to be met and de- nied by either answers or affidavits from the defendants, although one of them at least was apprised of the pendency of this motion by special notice. It is said by the defend- ant's counsel, that the motion should not be entertained, because no notice appeared to have been given to Benjamin Rose. It is no doubt the settled practice not to entertain a motion for the appointment of a receiver until the defendant has had notice, if it be practicable to give one; and I should have held this objection as fatal if it were not expressly stated in the bill that the defend- ant F. C. Rose, upon whom notice was served, was the authorised agent of Ben- jamin Rose, managing and controlling the very property over which a receiver is sought to be placed. This notice I think sufficient. Notice to an agent is notice to the principal. The motion for an injunction and for a re- ceiver must be sustained. INDEX. [the numbers refer to pages.] ACCIDENT, as ground for equitable jurisdiction, 91. ACCOUNTING, equity jurisdiction, 175. ADEMPTION, of legacy by subsequent gift, 55. ADEQUATE REMEDY AT LAW, test of jurisdiction, 13. AGENT, notice to, is notice to principal, 68. BONA FIDE PURCHASER, moral consideration not sufficient, 80. payment of value, without notice, 78. CANCELLATION, when jurisdiction exists, 223. CHARITIES, English system as adopted in some of the United States, 139. New York system, 143. CLOUD ON TITLE, removal, principle on which jurisdiction rests, 226. CONSIDERATION, inadequacy, evidence of fraud, 112. to support trust, 136. CONSTRUCTIVE TRUSTS, see "Trusts." CONTRACTS, with lunatics, 115. between persons in fiduciary relation, 118. for personal services, injunction against breach, 207. FET.BQ.JUR. (233) 234 INDEX. [The numbers refer to pages.] CONTRIBUTION, principles on which doctrine rests, 178. as between sureties, 178. CONVERSION, of realty into personalty, 58. words sufficient to work, 58. exists only for purposes of instrument directing it, 61. CRIMES, equity has no jurisdiction over, 3. DAMAGES, liquidated, or penalty, 84. DEED, absolute, as mortgage, 28. EQUALITY, equality is equity, 34. EQUITY, equity will not suffer a right to be without a remedy, 24 equity regards substance rather than form, 28. equity looks on that as done which ought to be done, 30. equity acts in personam, and not in rem, 32. he who seeks, must do, 38. ELECTION, principles on which doctrine depends, 48. what amounts to, 48. ESTOPPEL, equitable estoppel, 41. EXONERATION, rights of surety as against principal, 180. FALSE REPRESENTATIONS, see "Fraud." FIDUCIARY RELATIONS, contracts between persons in fiduciary relations, 118. gifts between persons in fiduciary relations, 121. see, also, "Trusts." FRAUD, he who comes into equity must come with clean hands, 39. false representations as to material facts, 107. knowledge of falsity, 109. INDEX. 235 [The numbers refer to pages.] FRAUD— Continued , wrongful omissions, 111. inadequacy of consideration, 112. contracts with insane persons, 115. contracts between persons in fiduciary relations, 118. gifts between persons in fiduciary relations, 121. conveyances in fraud of creditors, 123. on marital rights, 124. FRAUDS, STATUTE OP, creation of trust, 132. part performance, 200. FRAUDULENT CONVEYANCES, what are, 123. GIFTS, between persons in fiduciary relations, 121. HUSBAND AND WIFE, conveyances in fraud of marital rights, 124. INJUNCTION, against judgment at law, 205. against waste, 209. against breach of contract for personal services, 207. against trespass, 211. against nuisance, 213. for protection of other than property rights, libel, 221. to protect trust estate, 222. INSANITY, contracts with lunatics, 115. INTERPLEADER, what necessary to maintain bill, 229. JUDGMENT, injunction against, 205. JURISDICTION, none over crimes, 3. adequate remedy at law, 13. not divested by enlargement of legal remedy, 15. retaining, to award complete relief, 17. to prevent multiplicity of suits, 20, 23, accident as ground of, 91. 236 INDEX. [The numbers refer to pages.) LIBEL, injunction against publication, 221. LIQUIDATED damages, or penalty, 84. LIS PENDENS, notice to purchaser pendente lite, 75. MARSHALING, when right exists, 188. MAXIMS, equity regards substance rather than form, 28. equity will not suffer a right to be without a remedy, 24. equity looks on that as done which ought to be done, 30. equity acts in personam, and not in rem, .32. equality is equity, 34. he who seeks equity must do equity, 38. he who comes into equity must come with clean hands, 39. equity aids the vigilant, not those who slumber on their rights, 40. where there are equal equities, the first in order of time shall prevail, 82. MISTAKE, of law, no ground for relief, 93. of fact, mutual as to subject matter, 95. unilateral as to subject matter, 99. of expression in reducing contract to writing, 103. MORTGAGE, absolute deed as, 28. nature of, title remains in mortgagor in some states, 168. title in mortgagee in others, 170. MULTIPLICITY OF SUITS, suits by or against numerous persons, 20. reiterated litigation between same individuals, 23. NOTICE, classification, 62. actual and constructive, 62. possession as notice, 64. recitals in title paper, 67. to agent, is notice to principal, 68. record as, 70. lis pendens, 75. NUISANCE, injunction against, 213. INDEX. 237 [The numbers refer to pages.] PARTITION, equity jurisdiction, 191. PART PERFORMANCE, see "Specific Performance." PENALTY, or liquidated damages, rules for determining, 84. PENDENTE LITE, purchaser, after lis pendens filed, 75. POSSESSION, as notice, 64. PRECATORY TRUST, see "Trusts." PRINCIPAL AND AGENT, notice to agent is notice to principal, 68. PRINCIPAL AND SURETY, contribution between sureties, 178. exoneration as against principal, 180. PRIORITIES, unequal equities, priority in time, 82. PROPERTY RIGHTS, injunction limited to protection of, 221. PURCHASER, bona fide, 78, 80. pendente lite, 75, QUIA TIMET, see "Cloud on Title." QUIETING TITLE, see "Cloud on Title." RECEIVERS, principles governing appointment of, 231. RECORD, as notice, 70. REMEDIES, see "Accounting," "Injunction," "Specific Performance," etc. RESULTING TRUSTS, see "Trusts." 238 INDEX. [The numbers refer to pages.] SATISFACTION, of debts by legacies, 53. of legacy by subsequent gift, 55. SPECIFIC PERFORMANCE, of contract to convey land, 193. of contract for sale of personalty, corporate stock, 195. of contracts involving care and personal service, 198. statute of frauds, part performance, 200. SUBROGATION, not matter of right, but of equity, 39. when right exists, 183. TITLE, removing cloud from, 226. TRESPASS, injunction against, 211. TRUSTEE, who may be, 131. duties of, as respects trust property, 163. removal of, 167. TRUSTS, creation of, statute of frauds, 132. precatory trust, 134. consideration to support, 136. remedy of cestui que trust, 138. charitable trusts, English system as adopted in some of the United States, 139. New York system, 143. resulting trust, parting with legal and retaining equitable estate, 152. purchase in name of third person, 154. constructive trusts, fraud as basis of, 157. injunction to protect trust estate, 222. WASTE. injunction against, 209. WILLS, see "Election"; ''Satisfaction." WEST PUBLISHING CO.. POINTERS AND STEEKOTVPKRS. ST. PAUL. MINN. IBiiL®- §« < . "■' .■' :...:■■. • ' '- . ,.. . ■'.'■ ..' .•' ■ :'•■■' '' HSU 5, iwmllimm &.«# ill . ■.■■■■■ ■■..■■..■■■ ■:■ ' Jib ■■■■Hi