ii.fii.if:iji ilfly 'i Miii|ii li ,r!fl 'ii II! JWi'^'lN,,,it,1,iiil)' m^: 1 :Sa -t *l S Ir^-a :ii«:E f/ft m- il!rttrti Kieferv. Rogers. !.'!.'!.'.'!!.'!.'!.'!!'..".!!.' 167 J Brown v. Kay 220 Mulvey v. King 170 ! Osborn v. ^oblc 230 Perkins v. Parfriilgt- 171 ■ l^"ss '^- ^"^'ilson 2C3 Redgrave v. HurJ 173 J" re AValker 1.>:j4 Stimson v. Helps 179 - -"i™ J^jck r. Holmes 2;',7 ^ bteel V. Dixon 2o8 Constructive Fraud. Micboud V. Girod 181 Rothwell T. Dewees 187 Inequitable or Unconscientious Trans- actions — Contracts with Persons Under Mental Disability. AUore v. Jewell 190 Contracts between Persons in Fi- duciary Eelations. Tate V. Williamson 193 PEOPEBTY IN EQUITY. Trusts— Words Necessary to Create. In re Adams 196 Originating from Contract to Sell Land. Haughwout V. Murphy 198 Pursuing Stolen Property. Newton v. Porter 201 Declaration of Trust. Richards v. Delbridge 204 Compensation of Trustee. Perkins' Appeal 206 Besulting Trust — Purchase in Name of Third Person. Dyer v. Dyer. 208 Purchase with Funds of Third Per- son. McDonough v. O'Xicl 211 Cancellation. Peirsoll v. Elliott 241 Town of Venice v. Woodruff ,'.,', 2-14 Eeformation. Welles T. Yates 247 Speoific Performance — In general. Marble Co. v. Ripley 251 Contract Eelating to Land. Tilley V. Thomas o-_(. Bradford v. President, etc., of Union Bank " ot Tenneysee o.-r) Glass V. Hulbert ,, , oJm Purcell V. Miner '.'.'.". .'!."!.'! 272 Contract Eelating to Personal Chat- tels. .Tones v. Nowhall .-,j- Pusey V. Pusey '.'.'.'.'."!!!'.!".! 278 Contract for Personal Services. Lindsay v. Glass 079 Statute of Frauds— Sufficiency of Memorandum. Clason V. Bailey osi Statute of Frauds— Part Perform- ance. Lamb v. Hinman os^-r Maddison v. Aldersou '..'!!."!!.'!.".."." 287 Injunction— Against Judgment at Law. Hendrickson v. Hinckley 292 Injunctions Eelating to Contracts— Per- sonal Services. \Vm. Rogers Manuf 'g Co. v. Rogers . . 294 Whitwood Chemical Co. v. Hardiuan !!!!'. *, 29G TABLE OF CONTENTS. Injunctions Relating to Torts — Nuis- ance. Page Marsan v. French 302 Publication of Libel. Boston Diatite Co. v. Florence Manuf'g Co. 303 Conspiracy. In re Debs 304 Trespass. Griffith V. Hilliard 31G Wilson V. Oity of Mineral Point 318 ANCILLARY REMEDIES. Interpleader. Pago Bassett v. Leslie 319 Receivers. Blondheim v. Moore 321 jNtays V. liosp ?>'22 Owen V. Homan :!"i4 Davis T. Gray 325 Booth V. Clark 327 Wiswall V. Siimpson 334 Fosdick V. Schall 339 Discovery. Dreyfus v. Peruvian Guano Co 344 Mitchell v. Smith 346 CASES REPORTED. PagB Adams, In re (27 Ch. Div. 394) 196 Aetna Life Ins. Oo. of Hartford v. Town of Belmont (8 Sup. Ct. 625, 124 XJ. S. 534) : 221 Aetna Life Ins. Co. of Hartford v. Town of Middleport (8 Sup. Ct. 625, 124 XJ. S. 534) 221 Aetna Life Ins. Co. of Hartford v. Town of MUford (8 Sup. Ct. 625, 124 U. S. 534) 221 Allore V. Jewell (94 U. S. 506) 190 Ames T. Richardson (13 N. W. 137, 29 Minn. 330) 64 Attorney General v. Tudor Ice Co. (104 Mass. 239) 3 Bartle v. Nutt (4 Pet. 184) 109 Bassett v. Leslie (25 N. E. 386, 123 N. Y. 390) 319 Bayler v. Commonwealth (40 Pa. St. 37) . . 217 Berry v. IMutual Tns. Co. (2 Johns. Ch. 603) 104 Blaudy v. Widmore (1 P. Wms. 323) 126 Bleakley's Appeal (66 Pa. St. 187) Ill Blondheim v. Moore (11 Md. 365) 321 Booth V. Clark (17 How. 322) 3:27 Boston Diatite Co. v. Florence Manuf'g Co. (114 Mass. 69) 303 Boyce's Ex'rs v. Grundy (3 Pet. 210) 19 Bradford v. President, etc., of Union Bank of Tennessee (13 How. 57) '. Brown v. Ray (18 N. H. 102) Butt V. Ellett (19 Wall. 544) Casborne v. Scarf e (1 Atk. 603) City of St. Louis v. O'Neil Lumber Co. (21 S. W. 484, 114 Mo. 74) Clason V. Bailey (14 Johns. 484) Clason V. Denton (14 Johns. 484) Clason V. Merrit (14 Johns. 484) Clements v. Tillman (5 S. E. 194, 79 Ga. 451) Cobb V. Cole (46 N. W. 364, 44 Minn. 278) Collins v. Cooley (14 Atl. 574) Commissioners of Freedman's Savings & Trust Co. V. Earle (4 Sup. Ct. 226, 110 U. S. 710) Comstock V. Johnson (46 N. Y. 615) Conrow v. Little (22 N. E. 346, 115 N. Y. 387) Cooper V. Phibbs (L. R. 2 H. L. 149) Cowper V. Cowper (2 P. Wms. 720) Craig V. Leslie (3 Wheat. 5(^-576) Ci-ighton V. Dahmer (13 South. 237, 70 Miss. 602) Darst V. Phillips (41 Ohio St. 514) Davis V. Gray (16 Wall. 203) Debs, In re (15 Sup. Ct. 9O0, 158 U. S. 564) Dering v. Earl of Winchelsea (1 Cox, Ch. 318) Dobbin v. Cordiner (42 N. W. 870, 41 Minn. 165) Dreyfus v. Peruvian Guano Co. (41 Ch. Div. 151) Dunscomb v. Dunscomb's Ex'rs (1 Johns. Ch. 508) Dyer v. Dyer (2 Cox, Ch. 92) Earl of Oxford's Case (1 Ch. R. 1) Ellison V. Moffatt (1 Johns. Ch. 46) Erkens v. Nicolin (40 N. W. 567, 39 Minn. 461) Eylar v. Eylar (60 Tex. 315) SHEP.BQ.JTJB. 2r,9 22D 220 213 90 281 281 281 75 160 165 122 108 137 148 84 66 15 .24 325 304 94 130 344 71 208 26 118 Page Fosdick v. Schall (99 U. S. 235) 339 Foxwell V. Webster (2 Drew. & S. 250).. 34 Galveston, H. & S. A. R. Co. v. Dowe (7 S. W. 368, 70 Tex. 5) 44 Glass V. Hulbert (102 Mass. 24) 264 Graham v. Massey (23 Ch. Div. 743) 77 Griffith V. Hilliard (25 Atl. 427, 64 Vt. 643) 316 Grymes v. Sanders (93 U. S. 55) 161 Harding v. Glyn (1 Atk. 469) 212 Haughwout V. Murphy (22 N. J. Eq. 531) 198 Hawthorne, In re (23 Ch. Div. 743) 77 Hendrickson v. Hinckley (17 How. 443) . . 292 Herbert v. Wren (7 Cranch, 370) 132 Holmes's Appeal (77 Pa. St. 50) 166 Howard v. Harris (1 Vern. 190) 57 Jacobs V. Morange (47 N. Y. 57) 153 Jones V. Newhall (115 Mass. 244) 275 Kensington Vestry. In re (27 Ch. Div. 394) 196 Kief er v. Rogers (19 Minn. 32, Gil. 14) . . . 167 Lamb v. Hinman (8 N. W. 709, 46 Mich. 112) 285 Langdon v. Sherwood (8 Sup. Ct. 429, 124 U. S. 74) 79 Lewis V. Cocks (23 Wall. 466) 17 Lindsay v. Glass (21 N. E. 897, 119 Ind. 101) 279 Lvnoh V. Metropolitan El. R. Co. (29 N. E. 315, 129 N. Y. 274) 30 McDonough v. O'Niel (113 Mass. 92) 211 Maddison v. Alderson (L. R. 8 App. Cas. 467) 287 Magniac v. Thomson (15 How. 281) 85 Marble Co. v. Ripley (10 Wall. 339) 251 Marsan v. French (61 Tex. 173) 302 Massie v. Watts (6 Cranch, 148) 82 Mays V. Rose (Freem. Ch. [Miss.] 703) 322 Michoud V. Girod (4 How. 503) 181 Blitchell V. Smith (1 Pa ice. Ch. 287) 346- iVIoreland v. Atchison (19 Tex. 303) 155 Muir v. Schenck (3 Hill. 228) 106 Mulvey v. King (39 Ohio St. 491) 170 Newton v. Porter (69 N. Y. 133). 201 Osborn v. Noble (46 Miss. 449) 230 Owen V. Homan (4 H. L. Cas. 997) 324 Peirsoll v. Elliott (6 Pet. 95) Perkins' Appeal (108 Pa. St. 314) Perkins v. Partridge (30 N. J. Eq. 82) . Peugh V. Davis (96 U. S. 332) Purcell V. Miner (4 Wall. 513) Pusey V. Pusey (1 Vern. 273) Redgrave v. Hurd (20 Ch. Div. 1) Rees V. City of Watertown (19 Wall. 107) Richards v. Delbridge (L. R. 18 Eq. 11).. Rogers v. Ingham (3 Ch. Div. 351) Rogers Manuf'g Co. v. Rogers (20 Atl. 467, 58 Conn. 35^ Ross V. Wilson (7 Smedes & M. 753) Roth well V. Dewees (2 Black, 013) Ruple V. Bindley (91 Pa. St. 296) Russell V. Failor (1 Ohio St. 327) 241 20(5 171 59 272 27S 173 53 201 157 294 233 187 219 97 152 Sawyer, In re (8 Sup. Ct. 482, 124 U. S. 226 200) (vil) CASES REPORTED. Page Sharon v. Tucker (12 Sup. Ct. 720, 144 U. S. 533) 4T Sheffield Banking Co. v. Clayton ([1892] 1 Ch. 621) 234 Sheffield Waterworks v. Yeomans (L. R. 2 Ch. App. 8) 39 Slosson V. Beadle (7 Johns. 72) 140 Steel V. Dixon (17 Ch. Div. S-'.j) 238 Stimson v. Helps (10 Pac. 290, 9 Colo. 33) 179 Stiuchfield v. Milliken (71 Me. 567) 62 Strong V. Williams (12 Mass. 391) 127 Snblett's Adm'r v. McKinney (19 Tex. 438) 73 Sutton Maiiuf g Co. v. Hutchinson (11 C. C. A. 320, 63 Fed. 496) 98 Tate V. Willi.amson (2 Ch. App. 55) 193 Ten Eyck y. Holmes (3 Sandf . Ch. 428) ... 237 Thornbrough y. Baker (1 Ch. Cas. 283) 215 Tilley y. Thomas (L. R. 3 Ch. App. 61) . . . 254 Town of Venice v. Woodruff (62 N. Y. 462) 244 Tribette v. Illinois Cent. R. Co. (12 South. 32, 70 Miss. 182) 36 Pago Twin-Lick Oil Co. v. Marbury (91 U. S. ^^ 587) 119 Vardon's Trusts, In re (31 Ch. Diy. 275) . . 135 Walker, In re ([18921 1 Ch. 621) 234 Wallis y. Smith (21 Ch. Div. 243) 141 ^A'alter y. Slater (23 Wash. Law Rep. 104) 41 Warren Mills y. New Orleans Seed Co. (4 South. 298, 65 Miss. 391) 52 Watson y. Sutherland (5 Wall. 74) 22 Welles V. Yates (44 N. Y. 52.5) 247 Whitwood Chemical Co. y. Hardman ([ISOl] 2 Ch. 416) 296 Wilcocks y. Wilcocks (2 Vern. ."iSS) 129 Willard v. Tayloe (8 Wall. 557) 112 Wm. Rogers Manuf'g Co. y. Rogers (20 Atl. 467, 58 Conn. 3.5G) 294 Wilson V. City of Mineral Point (39 Wis. 1(30) 318 Wiswall y. Sampson (14 Hoys'. 52) Ki4 t CASES ON EQUITY JURISPRUDENCE SBEP.EQ.JCR. (1)* PBINCIPLES DEPININa AND LIMITING JURISDICTION. ATTORNEY GENERAL v. TUDOR lOE CO. (104 Mass. 239.) Supreme Judicial Court of Massachusetts. 1870. GHAY, J. This court, sitting in equity, does not administer punisliraent or enforce forleitures for transgressions of law; but ils jurisdiction is liiiiited to the protection of civil rights, and to cases in whicli full and adequate relief cannot be had on the com- mon law side of this court or of the other courts of the Commonwealth. The Tudor Ice Company is a private trad- ing corporation. It is not in any sense a trustee for public purposes. This is not a suit by a stocliholder or a creditor. The acts complained of are not shown to have injured or endangered any rights of the public, or of any individual or other corporation; and can- not, upon any legal construction, be held to constitute a nuisance. It is expressly stated, in the report of tlie chief justice, that "it does not appear that any of the creditors of the company are in danger of losing by it, and there is no objection to its proceedings except that they are not authorized by its act of incorporation and are alleged to be against public policy for that reason." No case is therefore made, upon which, according to the principles of equity jurisprudence and the practice of this court, an injunction should be issued upon an information in chancery. lu Attorney Qtneial v. Utica Insurance Co. 2 Johns. Ch. 371, Chancellor Kent, in a very able and elaborate judgment, after a thorough discussion of the question on prin- ciple, and an extensive examination of the earlier authorities, held tliat such an infor- mation could not be maintained to restrain an insurance company from exercising banking povrers in violation of a statute of New York; but that the proper remedy was at law, by in- formation in the nature of a quo warranto; and no appeal appears to have been taken from his decree. An information in the na- ture of a quo warranto was thereupon filed, and sustained by the supreme court of New York, and judgment rendered thereon that the corporation be ousted from the francliise which it had usurped. People v. Utica In- surance Co. 15 Johns. 358. Similar proceed- ings may be had at law in this Common- wealth in a proper case. Ooddardw. Smith- ett, 3 Gray, 116, 122, 123. Attorney General V. Salem, 103 Mass. 138. Boston & Provi- dence Railroad Co. v. Midland Railroad Co. 1 Gray, 340. Gen. Sts. c. 145, §§ 16-24. One early English case of high authority, not cited by Chancellor Kent, nor at the argu- ment of the present case, is so much in point as to be worth quoting in full. Upon a bill in equity, filed bytlie attorney general, at the relation of several freemen of the Weavers' Company, against the officers of that com- pany, setting forth "that the defendants had been guilty of many breaches and violations of their charters, and had oppressed the free- men, &c., and mentioned some particulars; and for a discovery of the rest, and that they might be decreed for the future to observe the charters, and to have an account of the revenue of the corporation which the defend- ants had misspent, &c., was the end of the bill. To whicli the defendants demurred, be- cause as to part of the bill, it was to subject them to prosecutions at law, and to a quo warranto; and as to the other parts, the plaintitfs had remedy by mandamun, infor- mation, or otherwise, and not here. And of the same opinion," the report proceeds, was Lord Cowper, "who said it would usurp too much on the king's bench; and that he never heard of any precedent for such a case as this; and so allowed the demurrer." Attorney General v. Reynolds, 1 Eq. Cas. Ab. (3d ed.) 131. The modern English cases, cilied in sup- portot this information, weieof suits against public bodies or officers exceeding the pow- ers conferred upon them by law, or against corporations vested with the power of emi- nent domain and doing acts which were deemed inconsistent with rights of the public. •Some of them were cases of misapplication of funds raised by taxation and held by muni- cipal corporations or oflicers upon specific public trusts. Such w eve Attorney General v. Norwich, 16 Sim. 225, Attorney General v. Guardians of Poor of Southampton, 17 Sim. 6, and Attorney General v. Andrews, 2 Macn. & Gord. 225. The hypothetical case, in which Lord West- bury, in atockport District Waterworks v. Manchester, 9 Jur.- (N. S.) 266, said that he should "probably not hesitate" to act upon tlie information of the attorney general, was of a suit to restrain the making of a contract between an aqueduct corporation and a city to carry water beyond the limits which the city was authorized by law to supply. The passages cited from Liverpool v. Char- ley Water Works Co. 2 De Gex, Macn. & Gord. 852, 860, and Ware v. Regent's Canal Co. 3 De Gex & Jones, 212, 228, were but dicta that an unauthorized diversion of water or fiowing of land by an aqueduct or canal corporation, without proof of actual or im- minent injury to property, gave no right of suit to an individual, and could only be checked on an application to the court by the attorney general. The case of Attorney General v. Great Northern Railway Co. 4 De Gex & Smale, 75, was a clear case of nuisance, the unlaw- ful obstruction of a public highway by a rail- road. That of Attorney General v. Oxford, Worcester & Woloerhamptoji Railway Co. 2 Weekly Kep. 330, was the case of the open- ing of a railway line in violation of an order which an authorized public board had made upon the ground that it would be unsafe to the public. The single case, in which an information has been sustained in an English court of chancery against a corporation for carrying on a business beyond its corporate powers, is Attorney General v. Great Northern Railway PRINCIPLES DEFINING AND LIMITING JURISDICTION. Co. 1 Drewry & Smale, 154, in which Vice Cliancellor Kindersley in 1860 restrained a railway company from trading in coal in lartre quantities, upon the ground that tliere was danaer that, if allowed to go on, it might get into its hands the coal trade of the whole dis- trict from or through which its railway ran, anil thus acjuire a monopoly injurious totlie public. That case is evidently the founda- tion of tlie dictum of Vice Chancellor Wood, two years later, in Hare v. London & North- western Railway Co. 2 Johns. & Hem. 80, 111. In Attorney General v. Mid Kent Railway Co. L. R. 3 Cli. App. 100, a mandatory injunc- tion was granted upon the inlormation of tlie attorney general to compel a railway com- pany to Construct a bridge over a public road, and wilh as gradual a slope as was required by a special clause in its charter; and the ob- jection that the attorney general mi!»ht have had an equal and complete remedy at law was stated by each of the lords justices as if it re- quired no answer and afforded no ground for refusing to entertain jurisdiction in equity. It is often said, in the English books, tlilt the king or his attorney general, suing in be- lialf of the public, has the election to sue in either of his courts, and may therefore enforce a leaal right in the court of chancery. 1 Dan. Ch. PracL. (3d Am. ed.) 6, 7. Attorney Gen- eral v. Galway, 1 Molloy, 95, 103. However tliat mny be, by our statutes the general equity jurisdiction of this court is liiiiiLed to eases where there is no plain, adequate and complete remedy at law, as well in suits by the Commonwealth as in those brought by private persons. Gen. Sts. o. 113, § 2. Com- monwealth V. Smith, 10 Allen, 448. Clous- ton V. Shearer, 99 Mass. 209, 211, and other cases there cited. The 38th of the former rules in chimcery of tliis court (14 Gray, 3(30) by which the court adopted, as the outlines of its pr.ictice, the practice of the high court of chancery in England, so far as the same was not repugnant to the Constitution and laws of the Commonwealth, nor to those or such other rules as the court mightfroni time to time make, cannot enlarge the jurisdiction of this court as defined by statute, and has been repealed by the new rules recently estab- lished. Ilules of 1870, post, 555. The only cases in which informations in equity in the name of the attorney general have been sustained by this court are of two classes. The one is of public nuisances, which affect or endanger the public safetv or convenience, and require immediate judicial ' interposition, like obstructions of highways or navigable waters. District, Attorney v. Lynn & Boston Railroad Co. 16 Gray, 242. Attorney General v. Camhridge, lb. 247. Atturney General v. Boston Wharf Co. 12 Gray, 553. Rovk v. Granite Bridge Co. 21 Pick. 344, 347. The otlier is of trusts for charitable purposes, where the beneficiaries are so numerous and indefinite that the breach of trust cannot be effectively re- dressed except by suit in behalf of the pub- lic. Parker v. May, 5 Cush. 336. Jack- son V. Phillips, 14 Allen, 539, 579. Attor- ney General v. Garrison, 101 Mass. 223. Gen. Sts. c. 14, § 20. If tliere are any other cases to which this form of remedy is appro- priate, that of a private trading corporation, wliose proceedings are not shown to have in- jured or endangered any public or private rights, and are objected to solely upon the ground that they are not autliorized by its act of incorporation and are therefore against public policy, is not one of them. Information dismissed. PEINCIPLES DEFINING AND LIMITING JURISDICTION.. In re SAAVYER et al. (8 Sup. Ct. 482, 124 U. S. 200.) Supreme Court of the- United States. Jau. 0, ISSS. Petition for writ of liabeas 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 tlie 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 couii- 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 deprired 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 vhe 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 councilmeu 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 saiil city, in full force, relating to the removal from ofl^ce 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, 1SS7, 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 tliis complainant with appropriating the moneys of the said city, and a coii.\- of which is hereto attached and made a part hereof; i 1 To the Honorable Mayor and Council of tlic City of Lincoln: Your petitioners, John SUooily and A. Saunders, respectfully represent to this honorable body, that they are citizens and rosi- der.t taxpayers of the city of Lincoln, and your petitioners would further rppiesent that on the thirteenth day of July, lS of the United States liad 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 iiroceedings 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. X, (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 whore such injunction may be author- ized by any law relating to proceedings in bankruptcy." Rev. St. § 720. The act of March 3, 1SS7, 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, & 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, 14 PKINCIPLES DEFINING AUD LIMITI^'G JUKISDICTION. 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. PRINCri'LES DEFINING AND LIMITING JURISDICTION. 15 CRIGHTON V. DAHMER et al. (13 South. 237, 70 Miss. 602.) Supreme Court of Mississippi. May 1, 1893. Appeal from chancery court, Chickasaw county; Bajiter McFarland, Chancellor. Action by William Crlghton against Henry Dahmor and others to restrain defendants fi'om criminally prosecuting plaintiff. From iin order dissolving the temporary Injunction, plaintiff appeals. Affirmed. W. J. Lacey, for appellant Orr & Stock- €tt, for appellees. COOPER, J. The appellant exhibited his bill in chancery against Henry, Peter, An- drew, and John Dahmer. He avers that John Dahmer is the owner of a certain farm now occupied by complainant, and on the 26th day of November, 1S91, leased tlie same to one Delmont for the term of throe year.s beginning January 1, 1S92, and de- livered possession thereof to Delmont, who entered and occupied and held the same un- til November 14, 1S92, when he assigned the remainder of his term to complainant, and put him in possession of the farm. That complainant continued in tha quiet and peaceable possession of said farm until the day of , 1892, when dur- ing his temporary absence the defendants Andrew and Peter Dahmor forcibly entered upon the premises, and by violence brolie in- to the residence then occupied by him, in which action they were advised and directed by the defendant Henry Dahmer. Thatcom- plaiuant aftei-wards, and In the absence of said trespassing defendants, re-entered and reoccupied, and yet holds possession thereof. That the defendant Henry Dahmer, pretend- ing at first to act as the agent of the defend- ant John Dahmer, and afterwards as the lessee of the premises under the said John, caused complainant to be arrested on a cliarge of trespass, and now threatens to continue to have him arrested from day to day as a trespasser because of his occupancy of said premises and his refusal to deliver possession thereof to said defendant Henry. That his purpose in so doing is to compel (•umplainant to siu-reuder possess'ion of the premises, or to r-spend large sums of money in defense of said criminal prosecutions. That Henry Dahmer, if he has or believes he has any just right to the possession of said premises, could test tlie same by a civil proceeding, but that, knowing that he laa;^ no such right, he uses his pretended lease from the defendant John as a fomidation to vox, harass, and annoy and oppress com- plainant, by resorting to criminal prosecu- tions- aaainst him. That said pretended leas.? easts a cloud upon the title of complainant to his term in the premises, and in eqtuly should be canceled and annulled. The prayer for relief is that said lea'Se claim by Henry shall be canceled, and that an injmi_»tion may issue prohibiting the said defendants, or either of them, from instituting other criminal prosecutions against complainant, or from entering upon the premises with- out due process of law. An injunction W£'S granted as prayed, and the defendants moved to dissolve tlie same upon the face of the bill. This motion was sustained, and the injunction dissolved, from which order the complainant has been granted an appeal to this court by the chancellor, in order that the principles involved may be settled by this court From the statement of the cause it is apparent that the defendants Andrew and Peter Dahmer have or claim no sort of interest in the property in controversy, and there is no averment by wliich it appears tliat the defendant John claims any present right to the possession thereof. As to theso defendants the bill is a pure and simple effort to enjoin the institution and prosecu- tion of criminal prosecutions against com- plainant. The relief sought as against the defendant Henry, is somewhat further sup- ported by the fact that a property right is in dispute between him and the complainant, as to which a court of equity has jurisdic- tion to afford relief. If the complainant may not sustain his right to enjoin the defendant Henry from the prosecution of criminal charges against him, a fortiori may he not find relief in equity by injunction against such prosecutions by the other defendants. A somewhat extended examination of the approved text wTi'ters and of judicial de- cisions has disclosed no suggestion among the writers that the jurisdiction invoked may be exercised by courts of equity, nor have we found a decided case by which it is unheld, other than two cases decided by the judges' of the district courts of the United States, sitting in equity upon the circuit, in which tlie jurisdiction of equity to enjoin crimiujil prosecutions has been pressed to great, and, as we think, imwarrantable. lengths. Tlie cases to which we refer are Bottling Co. v. Welch, 42 Fed. Rep. 561, and Lotteiy Co. v. Fitzpatrick, 3 Woods. 222. i In the first of these cases prosecutions under a state law against unlawful retailing were enjoined up- on the ground that the complainant was en- gaged in interstate commerce, and in the other prosecution under a statutf- of Ijouisi- aua, forbidding the vending of lottei-y tickets on the drawing of a lottery, on the ground that the state by contract with the complainant lind granted to it the right to do the forMfldm act. In neither case was there a pending siiit involving >" property right's, but the bill in each was ex- hibited for the primary and original purpose of enjoining criminal prosecutions in the state court, and necessaril.v Involved the power and jurisdiction of a court of equity to draw to Itself the Investigation of the ' guUt or innocence of the complainant of the offense, which was or would be the question for investigation of the courts of the state iFod. Cas. Xo. S.otl. 16 tEINCIPLES DEPINING AND LIMITING JUBISBICTION. having jurisdiction thereof. We tliink no English case can be found of modern times, and no case in the United States, other than the two above noted, in which a court of equity has enjoined the prosecution of crim- inal proceedings. In Mayor, etc., v. Pilking- ton, 2 Atk. 302, the complainants had exhib- ited their bill in chancery to establish theit sole right of fishery in the river Ouse. While the suit wa.? pending they caused the agent of the defendant to be indicted in the ses- sions at York, where there were judges, for breach of the peace in fishing in their hb- erij-. Ou motion of the defendant, Lord Chancellor Hardwicke made an order re- straining the plaintiff from proceeding at the sessions till the hearing of the cause. In Kerr V. Corporation of Preston, 6 Ch. Div. 467, Jes- sel, M. R., declared that with the exception of Mayor v. Pilkington there was no instance in which a court of equity had interfered in criminal cases, and that in SauU v. Browne, L. R.lOCh. App.64,he had declined to follow that "doubtful decision," and on appeal his decision was affirmed. Where an officer of a court acting under its direction tore down some houses which were the subject of liti- gation, one of the parties to the suit was restrauied from proceeding criminally against him. Turner v. Turner, 2 Eng. Law & Eq. 130. The vice chancellor, Lord Cran- worth, declared the distinction to be an obvious one, for while the court had no juris- diction over an indictment in general, as over a mere civil proceeding, yet, when a C07n-t made an order in a cause over which It had jurisdiction, its execution could not be made the ground of a criminal prosecution by one of the parties, for the officer would be punished by the court if he failed to comply therewith. Mayor, etc., v. Pilkington and Turner v. Turner are the only English cases with which we are acquainted in which the prosecution of criminal proceedings has been rostrnined, and in each the relief was granted by a mere order of the court acting upon parties to a pending suit in which the court was proceeding, and not by injunction under the seal of the court. In SnuU v. Browne, supra, the court refused to make an order restraining one of the parties from at the same time prosecuting a criminal proceeding. As against genei-al criminal prosecutions, relief has uniformly been re- fused. Montague v. Dudman, 2 Ves. Sr. 396; HolderstafCe v. Saunders, 6 Mod. 16; Attor- ney General v. Cleaver, 18 Ves. 211. The supreme court of the United States, In Re Sawyer, 124 U. S. 200, 8 Sup. Ct. Rep. 482, .•eviewed the decision^! in England nn'l Amor- ica, and declared that thei'e was no jurisdic- tion In chancery to enjoin prosecutions for crime, except in cases in which the order i» made to restrain a party to a suit already pending before the court, and to try the same right that Is in issue there. Sawyer, who had been arrested for contempt of the Injunction of a federal court, was discharged, on habeas corpus, upon the ground of an entire want of power In the court to grant the injunction. There are many cases to^^^ be found, proceeding upon an obvious and clear distinction. In which courts of equity | have enjoined acts affecting property rights, | notwithstanding the fact that such acts might also be ground for indictment. Tq^ this class are to be assigned the cases of Emperor of Austria v. Day, 3 Pe Gex, F. & J. 217; Spinning Co. v. Riley, L. R. 6 Eq. 551. In the latter case the chan- cellor said: "The truth, I apprehend, is that the court will interfere to prevent acts amoimting to crime. If they do not stop at / crime, but also go to the destruction or dfciwioration of the value of property." To the same class belong numerous other de- cision-? which rest upon the same principle, which is clear and easily distinguishable from that of enjoining the ordinary criminal pros- ecnfions which affect the property right.* more or less indirectly, and in which no jurisdicHon can be taken in courts of equity, la the cases of Bottling Co. v. Welch, 42 Fed. Rep. 501, and Lottery Co. v. Fitzpat- rick, authorities for the exercise of the juris- diction In the one class were cited as up- holding it In the other, but it is notable that In neither case was a decision cited, either EnglLsh or American, in which the precis" point Involved had been ruled in favor of tlio jurLssdictlon. In Montague v. Dudman, 2 Ves. Sr. 396, Lord Chancellor Hardwicke de- clared he was unable to discover a precedent for the exercise of the power, and said: "I will go by Littleton's rule, that It Is a good argument, an action lies not, because one was never brought. I never knew a bill of this kind, and therefore will not make the precedent." There are a few cases In which the enforcement of void municipal ordi- nances, the execution of which directly af- fected property rights, have been enjoined, and criminal prosecutions before the munic- ipal authorities restrained. City of Atlanta V. Gate City Gashght Co., 71 Ga. 106; Shinlde V. City of Covington, 83 Ky. 420. But, wiQi the exception of Bottling Co. v. Welch and Lottery Co. v. Fitzpatrick, we have found no decisions of any court that a bill in equity may be exhibited for the single puipose of enjoining crimiml prosecutions, and agai'ist these decisions stand the unbroken line of de- cisions of all courts of authority. Judgment affirmed. PUINCIPLES DErj:NING AKD LIMITING JUUISDICTIOX. 17 LEWIS V. COCKS. • (23 Wall. 4GC.) Supreme Court of the United States. Oct, 1S74. Appeal from circuit court, D. Louisiana. In 1SG3 one Anderson brought suit in the pi-ovisional court of New Orleans, which was a court established by prooianisitlon 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, Coclis tiled a bill in equity against Izard, asking that he be compelled to rei'on- vey the property sold under the execution, on tlie groimd that the judgment of the pro- visional court was void, and that sutticient 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 "pi-ucuring title to the property, in that he had represented at the execution sale that he was buying for Cocks, and had thero- liy liept other persons from bidding, and that he now repudiated his fiduciary ro'.arion to I'ocks. Defendant's answer denied the ma- terial allegations of the bill, and alleged that the property had been mortgaged to liewis. and the title had become vested in the latter by foreclosure. Lewis answered to the same ott'oct, and was made defendant in place of Cooks. The further I'atts are stated in the opinion of the court. Mr. P. Phillips, for appellant. Mr. Conway Robinson, contra, i Mr. Justice SWAYXE delivered the opinion of the court. i The question of the validity of the provi- sional coiu-t is not an open one. We have j held it valid tipon more than one occasion j when the question has been before us. The Grapeshot, 9 Wall. 120. I The fraud charged upon Izard is exi)ressly ' denied b.v his answer and is not sustained by the evidence. There is a decided preijouder- i anee against it. ^\'e 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- ■ sci vice 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. Eveiything else must be laid out of view. It must be borne in mind that the complain- ant is not in possession of the property. 1 If the bill alleged only the nullity of the | judgment, under which the premises were SHEP.BQ.JUR.— 3 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 talve 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 before us. A'iewed 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 p'ain 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. -lOS, note b; Id. 420, note a. j The sixteenth section of the judiciary act of 17S0 (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 reUef the legal remedy must be equally effectual with the equitable remedy, as to all the riglits of the complain- ant. Where the remedy at law is not "as practical and etflcient 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 comp'ote" it must be pursued, Boyce v. Grundy, 3 ret. 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 suS sponte to recognize it and give it effect. Hipp V. Babin, 19 How, 2TS: Balvcr v. Bid- die. Baldw. 41(3. Fed. Cas. No. Ttil. 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, 10 How. 27S. Where the complainant had recovered a judgment at law and execution had issued and been levied upon personal property, and t:;e claimant, under a deed of ta'ust, 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. Smitli, 4 How, 20S. In the present case the bill seeks to enforce "a merely legal title," An action of eject- ment is an adequate remedy. 18 PKIXCIPLES DEFINING AND LIMITING JUiUSDICXION, 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 by 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 ha»e not overlooked. It is whether the judg- ment of the provisional court can be pi'O- 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. riilNClPLES DEFINING AND LIMITING JUKISDICTION. 19 BOYCE'S EX'RS >. GRUNDY. (3 Pet. 210.) Supreme Court of the XJuited States. Jan. Term, 1830. Appeal from the circuit court of the United States for the district of West Tennessee. Suit iu equity brought l)y Gruud., to rescind a contract for the purchase, by him, of Boyce, of a tract of land, and to enjoin a judgment at law obtained for the purchase-money. The conti'act was made in July, ISIS, the judg- ment recovered in 1S21, the bill filed in Au- gust, 1S23. The facts appear in the opinion of the com't. Ogden & A\'icklifCe, for appellants. Isaacs & AVhite, contra. JOHNSON, J., delivered the opinion of the court. This is an appeal from the decree of the circuit court of West Tennessee, rendered in a case in wliicli the appellee was complainant. The bill was tiled to obtain the rescission of an agreement entered into on the 3d of July, ISIS, between James Boyee. the appellants' testator and devisor, and the complainant, for the sale of a tract of land lying on the Homo- cliito river, in the state of Mississippi. The grounds set forth in the bill are fraudu- lent misrepresentations. (1) As to the testator's title to the land. (2) As to the locality of the land. (3) As to the liability of the land to inundation. (4) As to the general description of the chaiacter and quality of part of the laud not examined by complainant. We have weighed the allegations of fraud contained in the bill, and are well satistiod that they are material, and such as entitle the complainant to relief, if substantiated. We have also considered the evidence intro- duced by the complainant and compared it with the rebutting testimony Introduced by the appellants, and are of opinion that the tes- timony in support of complainant's allegations is full to the purpose of sustaining his bill, and the credibility of his witnesses fully es- tablislied, wherever it has been necessary; so that in those points in which it has been con- tradicted by the appellants' witnesses, we can- not avoid giving credit to that of the com- Iilainant. The decree below must, therefore, be sus- tained, unless the appellants can prevail upon some legal groimd which will except this case from the general rules on this subject. The first and principal ground taken is. that the court of law was competent to give relief, and that this court should refuse relief, as well on the general principle as attirmed in the judi- ciary act, as because: — 1. That the complainant was not prompt in insisting upon the fraud as soon as discov- ered; and 2. Because he did not avail hiujself of it in a plea to the action at law. This court has been often called upon to consider the 10th section of the judiciary act of 17811, and as often, either expressly or by the course of its decisions, has held that it is merely declaratory, making no alteration what- ever in the rules of equity on the subject of legal remedy. It is not enough that there is a remedy at law; it must be plain and ade- quate, or in other words, as practical and as erticicnt to the ends of justice and its prompt administration, as the remedy in equity. In the case before us. although the defence of fraud might have been resorted to, and ouglit to have been sustained in that particular suit, aud I will add, would have greatly aided the complainant in a bill to rescind, yet it was obviously not an adequate remedy, because it was a partial one. The complainant would still have been left to renew the contest upon a series of suits; and that probably after the death of witnesses. That he was bound to be prompt in communi- cating the fraud when discovered, and con- sistent in his. notice to the opposite party of the use he proposed to make of the discovery, cannot be questioned. But we caunot con- cede to the aijpellants' counsel, that the com- plainant was chargeable with delay or incon- sistency in the particulars. In his bill, he alleges that the fraud did not come to his knowledge until 1S21, and that he forthwith gave notice to James Boyce, that he might resume possession of the premises, and receive the rents and profits, for that he would not comply with the contract; which notice he repeated to the appellants after Boj-ce's death. It has been argued that the testimony es- tablishes an earlier notice, and even a contem- poraneous notice of the facts which the com- plainant alleges were concealed or misrepre- sented. The misrepresentations relied upon are of two classes; those which relate to the land, and those which relate to the title. As to the title, the case furnishes no ground for imputing to the complainant contempora- neous notice of the involved state it was iu. The evidence of the fact of representation on this subject, rests chiefly on the deed and the letters from Port Gibson. From these it clear- ly appears, that so far as relates to the two hundred acres purchased from Ellis, the com- plainant could not, even at the time of sale, have iteen put on inquiries respecting the title. For the deed expressly imports that the wliole land sold was comprised within the grant to Pavis. With regard to the land actually com- prised within the grant to Davis, if the agree- ment to make a present sale of land, for which there is to be made present and successive payments to a large amoimt within four years, does not imply a present title or a present power to sell, it certainly amounts to a repre- sentation that, at the end of four years, the seller would be able to make a clear title. But since, upon the discovery made at Port Gibson, tlie notice given by the complainant was not of an intention to rescind, but of a 20 PltLNCIPLES DEFINING AND LIMITING JLTUISDICTION. claim for a deduction pro rata, and since time is expressly given to the extent of four years to make title to the whole tract, we wiU not affirm that, in the absence of any proof of positive loss from want of title in the interval, if the party had been able to make title when the bill was tiled, and had so answered, and duly set out the title to be tendered, that it would have been a case for relief. But the de- fendants in their answer go into an exposition of the only title they can offer, and that is so involved and imperfect, that a court of equity would not even refer it. If, then, the ap- pellants were now before this court, under a bill for a specilic peiformance, it is clear that they must be turned out of court, being in- competent on their part to fulfil the contract. 'I'he rules of law relating to specific perfoiTU- auce and those applied to the rescission of contiacts, although not identically the same, have a near alHnity to each other. A^ain, if the object of the complainant's bill had been confined to obtaining an injunction until he could receive from defendant a good title to the land, can it be doubted that where the cause of action at law is a covenant in the same deed which stipulates for such a ti- tle, that he would be enjoined until he made a title'.' And if so, how long is this state of sus- pense to be tolerated'.' The title was to be -made in four years; this certainly amounts to a representation that he would be able to make title at that time; but twelve years have now elapsed, and still it is not pretended that a clear legal estate has been acquired. In excuse for this, it is urged that the com- plainaut committed the first fault; that had he been punctual in his payments, Boyce would have been able to procure to be executed to himself, a title that would have enabled him to comply with his agreement. But the state of his title is before us, and a mere tender of money was not sufficient to give him a legal estate. He must still have passed through the delays and casualties incident to a suit in eq- uity, before he could have acquired such an es- tate as would have satisfied the just claims of the complainant. The case, however, furnishes a more conclusive answer to this argument. Th3 two hundred acres not included in Davis's grant, valued at the average which complain- ant would have paid for all the good land ac- tually contained within his purchase, would have satisfied every payment that fell due within the four years. This deduction he in- formed Boyce he wouM insist upon, and there is no evidence in the cause to make it clear that Boyce did not acquiesce in this agree- ment. It is aligned, that of the defects in Boyce's title the court could not be informed; that the complainant did not ask for a specific per- formance, and the defendants were not, there- fore, called upon to set out their title. But by referring to the bill it will be seen that they are e.xpressly called upon to set out their title, and in their answer undertake to do so, and in the ol'ort exhibit a title which he cannot deny is defective, but Instead of setting out a title free from defects, content themselves with showing that the defects are not incjjrable. With regard to the misrepresentations re- lating to the land, the only evidence by which it is attempted to fasten on the com- plainant a want of promptness and consist- ency in availing himself of the discovery when made, is that by which a knowledge at the time of the contract is supposed to be established. Of the witnesses from whom this evidence has been obtained, it is enough to say, that with the exception of Mr. Poin- dexter, it is impossible to avoid putting their testimony out of the case. And Mr. Poindex- ter's testimony, even without his subsequent examination, may, without any forced con- struction, be reconciled with that of the wit- nesses who testify to the representations made by Boj'ce at the time of the sale. It relates exclusively to the subject of inunda- tion, and when the complainant spoke to this witness of the island's overflowing, he accompanied it with the assertion that the overflowing could be prevented by a levee at a small expense. This may well be con- fined to the representations received from Eoyce, and does not necessarily imply a knowledge of its being subject to general in- undation. Nor was the information received from Mr. Poindexter on this subject of such a full and decided character as to amount to a communication of knowledge. It is said that it ought to have put him on inquiry; but he was in possession of Mr. Boyce's posi- tive assurances to the contrary, and had a right to rely upon that assurance without inquiry. The bill alleges the time of coming to his knowledge to have been that of the communication authorizing the party to take possession, and the evidence is not sufficient to prove notice at any previous time. The second ground on this head of the appellants' ar^jument has been ijartly an- swered by the doctrine laid down upon the construction of the judiciary act, on the sub- ject of the remedy at law. And so far as it relies on the adjudication quoted from 3 Mer. 12, 2'2.j, 22G, we think it unsustaiued. The position is, that an injunction to restrain proceeding on a judgment at law, will be re- fused by the court of equity to a party who had a defence at law and neglected to plead it. The doctrine of the case quoted, we con- ceive, has no bearing upon the present. The question there was upon a point of practice, whether a special injunction should issue in- .stead of the common injunction; there was no question about the right to the latter, but the circumstances of the case were such, that the common injunction did not afford full relief to the party. The rule of prac- tice, as laid down by the court, is, that the special injunction goes only in those cases in which, from their nature, the defendant can make no defence; such as judgments on warrants of attorney. This was not such a case, but the party went for an exception in PRINCIPLES DEFINING AND LIMITING JURISDICTION. 21 his favor, grounded upon a state of facts which brought him within the reason of the rule. And it was in fact granted. It has been further argued for the appel- lants, that reducing the agreement to writ- ing precludes a recurrence to all representa- tions; and to establish this doctrine, a pas- sage from Sugdeu has been quoted. It can. not be doubted that, in the language of the author, reducing an agreement to writing is, in most cases, an argument against fraud. But it is very far from a conclusive argu- ment, as is previously shown by the same author on the same page. The doctrine will not be contended for, that a written agree- ment cannot be relieved against on the ground of false suggestions; and yet if the doctrine of this quotation were the rule, in- stead of an incident to it, such would be tiie consequence. There is no attempt made here to vary the written agreement; the relief is sought up- on the ground, that by false suggestions and Immoral concealment, the party seeking re- lief -was entrapped into an agreement in which he would not otherwise have involved himself. This is not denying that the agree- ment in the record was the agreement en- tered into, but insisting that it was vitiated by fraud, which vitiates every thing. It has been further argued that the misrep- resentation, if at all established, was but of a personal character, and susceptible of com- pensation or indemnity, to be assessed by a jury. On this there may be made several re- marlis; and first, that if the facts made out such a case, yet the law, which abhors fraud, does not incline to permit it to purchase in- dulgence, dispensation, or absolution. Secondly, that although, locally, a misrep- resentation may be partial, yet it may be vital in its effects upon the views and inter- ests of the party affected by it. Such was the case of Fulton v. Roosevelt. But lastly, the evidence makes out a case very far removed from one of merely a par- tial character. North, south, east, and west, we find the misrepresentations influencing the estimate of the value of these premises. Indeed, if we are to believe the testimony of Randel M'Garvick— and its clearness, fulness, and fairness speaks its own eulogium— a ease of more general or more vital tiiisrepresen- tation, can seldom occur, or a case of more absolute devotion to misplaced confidence. Not only for the qualities and incidents, but also for the lines, the representations of the seller were implicitly relied on, and certainly to the most important results as to the value of the property. M'Garvick proves that they were carried to a certain fence, which fence excluded a large knob, as it is called in that country, containing a considerable body of untillable and worthless land, and expressly told by Boyce that the fence was his line. Thus explicitly declaring that that body of bad land was not included in the laud sold him, whereas in fact it was included; and in another direction where the land was fine, as if to make up the deficit in quantity to an experienced eye. he represents the land in view as being included within his survey, when in fact it was not all included. And suppose the utmost effect be given to the tes- timony of the appellants, relative to the ac- tual extent to which the island was subject to inimdation, still, it leaves wide ground for the charge of misrepresentation. The testimony is full to establish that, in several years the whole has been overflowed. And the most favorable state of facts will leave from one hundred to one hundred and fifty acres, instead of fifteen or twenty, sub- ject to this casualty in ordinary years. This, although partial in one sense, is total as to the diminution of the value of tlie whole. Compai'ed with the representation proved, it certainly annihilates the very material con- sideration that it admitted of being prevent- ed at a small expense, more especially as the chief injury was to be expected from ttie waters of the Mississippi. In a purchase of nine hundred and fifty acres at twenty dollars an acre, such a dis- crepancy between facts and representations as would add thirty-three and a third, or perhaps fifty per cent, per acre to the cost, is not a case for mere compensation. And, if not a case for mere compensation, there was no controlling necessity to send the cause to a jury. The decree must be affirmed, with costs. 9 Pet 275; 14 Pet 614. 22 rEINCIPLES DEFINING AND LIMITING JURISDICTION. WATSON V. SUTHERLAND. (5 Wall. 74.) JSupreme Court of the United States. Dec, 1866. Appeal from circuit couft of the United States for tlie district of Maryland. Watsou & Co., appellants in the suit, hav- ing issued writs of fieri facias on certain judgments which they had recovered in the circuit covirt for the district of Maryland against Wroth & FuUerton, caused them to be levied on the entire stock in trade of a retail dry goods store in Baltimore, in the possession of one Sutherland, the appellee. Sutherland, claiming the exclusive owner- ship of the property, and insisting that Wroth & Fullerton had no interest whatever in It, filed a bill in equity, to enjoin the further prosecution of these writs of fieri facias, and so to prevent, as he alleged, in-eparable in- jury to himself. The gi'ounds on which the bill of Sutherland charged that the injury would be irreparable, and could not be com- pensated in damages, were these: that he was the bona fide owner of the stock of goods, which were valuable and purchased for the business of the current season, and not all paid for; that his only means of pay- ment were through his sales; that he was a young man, recently engaged on his own account in mej-chandising, and had succeed- ed in establishing a profitable trade, and if his store was closed, or goods taken from him, or their sale even long delayed, he would not only be rendered insolvent, but his credit destroyed, his business wholly broken up, and his prospects in life blasted. The answer set forth that the goods levied on were really the property of Wroth & Ful- lerton, who had been partners in business in Baltimore, and who, suspending payment in March, 1801, greatly in debt to the appel- lants and others, had, on the 27th October, 1802, and under the form of a sale, conveyed the goods to Sutherland, the appellee; that Sutherland was a young man, who came to this country from Ireland a few years ago; that when he came he was wholly without property; that since he came he had been salesman in a retail dry goods store, at a small salary, so low as to have rendered it impossible for him to have saved from his earnings any sum of money sufficient to have made any real purchase of this stock of goods from Wroth & Fullerton, which the answer set up was accordingly a fraudulent transfer made to hinder and defeat creditors. It further stated that the legislature of Maryland had passed acts staying executions from the 10th of May, 1861, until the 1st of November, 1802; that previous to the 1st November, 1862, Wroth & Fullerton had de- termined to pay no part of the judgments rendered against them; and that from the 10th Jlay, 1861, until the 1st November, 1862, judgments, amounting to between $30,000 and $40,000 had been rendered against them; that between the date of the suspension, March, 1861, and the 27th October, 1802, they had sold the greater portion of their goods, and collect-^ a great many of the debts due them, but had paid only a small portion of those which they owed; secreting for their own use the greater portion of the money collected, and with the residue obtaining the goods levied upon. It added that there was no reason to sup- pose that the levy aforesaid, as made by said marshal, would work irreijarable injury to the aiiijellee, even if the goods so levied on were the property of the complainant, as property of the same description, quantity, and quality, could be easily obtained in mar- ket, which would suit the appellee's purpose as well as those levied upon, and that a jury would have ample power, on a trial at com- mon law, in an action against the respond- ents, now appellants, or against the marshal on his official bond, to give a verdict com- mensurate with any damages the said ap- pellee could sustain by the levy and sale of tne gooas aforesaid. On the filing of the bill a temporary in- junction was granted, and when the cause was finally heard, after a general replication filed and proof taken, it was made perpetual. These proofs, as both this court and the one below considered, hardly established, as respected Sutherland, the alleged fraud on creditors. The appeal was from the decree of per- petual injunction. Mason, Campbell & McLaughlin, for de- fendants. Wallis & Alexander, contra. Mr. Justice DAVIS delivered the opinion of the court. There are, in this record, two questions for consideration. Was Sutherland entitled to invoke the interposition of a court of eiiuity? and, if so, did the evidence warrant the court below in perpetuating the injunction? It is contended that the injunction should have been refused, because there was a com- plete remedy at law. If the remedy at law is sufficient, equity cannot give relief, '-but it is not enough that there is a remedy at law; it must be plain and adequate, or in other words, as practical and efficient to the ends of justice, and Its prompt administra- tion, as the remedy in equity."i How could Sutherland be compensated at law, for the injuries he would suffer, should the grievan- ces of which he complains be consummated? If the appellants made the levy, and pros- ecuted it in good faith, without circumstan- ces of aggravation, in the honest belief that Wroth & Fullerton owned the stock of goods (which they swear to in their answer), and it should turn out, in an action at law insti- tuted by Sutherland for the trespass, that the merchandise belonged exclusively to him, it is well settled that the measure of dam- 1 Boyce's Bx'rs v. Grundy, 3 Pet. 210. PRINCIPLES DEFINING AND LIMITING JURISDICTION. ages, If the property were not sold, could not extend beyond the injury done to it, or, if sold, to the value of it, when taken, with in- terest from the time of the taking down to the trial.2 And this is an equal rule, whether the suit is against the marshal or the attaching cred- itors, if the proceedings are fairly conduct- ed, and there has been no abuse of authority. Any haj'sher rule would interfere to previ^ut the assertion of rights liouestly entertained, and which should be judicially investigated and settled. "Legal compensation refei-s solely to the injury done to the property tak- en, and not to any collateral or consequen- tial damages, resulting to the owner, by the trespass."3 Loss of trade, destruction of credit, and failure of business prospects, are collateral or consequential damages, which it is claimed would result from the trespass, but for which compensation cannot be award- ed in a trial at law. Commercial ruin to Sutherland might, tlierefore, be the effect of closing his store and selling his goods, and yet the common law fail to reach tiie mischief. To prevent a consequence like this, a court of equity steps in, arrests the proceedings in limine; brings the parties before it; hears their al- legations and proofs, and decrees, either that the proceedings shall be unrestrained, or else perpetually enjoined. The absence of a plam and adequate remedy at law affords the only test of equity jurisdiction, and the application of this principle to a particular case, must depend altogether upon the char- acter of the case, as disclosed in- the plead- ings. In the case we are considering, it is very clear that the remedy in equity could alone furnish relief, and that the ends of justice required the injunction to lie issued. The remaining question in this case is one of fact. The appellants, in their answers, deny that the property was Sutherland's, but insist 2 Conard v. Pacific Ins. Co., 6 Pet. 272. 2S2. » Pacific Ins. Co. v. Conard, 1 Baldw. 142, Fed. Gas. No. 10,647. tliat it was fraudulently purchased by him of Wroth & FuUerton, and is subject to the payment of their debts. It seems that Wroth & Fulierton had been partners in business in Baltimore, and suspended pay- ment in Mai'Ch, 1S61, in debt to the appel- lants, besides other creditors. Although tlie appellants did not recover judgments agaiust them until after their sale to Sutherland, yet other creditors did, who were delayed in con- sequence of the then existing laws of Mary- land, which provided that executions should be stayed until the 1st of November, 1S62. Taking advantage of this provision of law, the answer charges that Wroth & Fullerton, after their failure, collected a large portion of their assets, but appropriated to the pay- ment of their debts only a small portion thus realized, and used the residue to buy the very goods in question, which Sutherland fraudtilently purchased from them on the 27th of October, 1SG2, in execution of a com- bination and conspiracy with them to hin- der, delay, and defraud their creditors. The answers also deny that the injury to Suther- land would be irreparable, even if the stock were his, and insist that he could be amply compensated by damages at law. After gen- eral replication was filed, proofs were taken, but, as in all contests of this kind, there was a great deal of irrelevant testimony, and very much that had only a remote bearing on the question at issue between the parties. It is unnecessary to discuss the facts of this case, for it woidd serve no useful purpose to do so. ■\^'e are satisfied, from a consideration of the whole evidence, that Wroth &• Fullerton act- ed badly, but that Sutherland was not a pai-ty to any fraud which they contemplated against their creditors, and that he made the purchase in controversy, in good faith, and for an honest purpose. The evidence also shows conclusively, that had not the levy been arrested by injunc- tion, damages would have resulted to Suth- erland, which could not have been repaired at law. The decree of the circuit court Is, there- fore, affirmed. 24 PRIXCirLES DEFINING AND LIMITING JUKISDICTION. DARST V. PHILLIPS. (41 Ohio St. 514.) Supreme Court of Ohio. Jan. Term, 1885. Error to district court, Lucas county. Bill by Phillips and otliers .against one Darst to enjoin tlie enforcement of a judg- ment, and for other relief. Judgment for plaintiffs, and defendant appeals. Affirmed. C. F. France and E. H. Uhoades, 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 satisfi'ed 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 nrp-n nidation a court of common nle.is in this state has general original jurisdiction at law and in equity. An action to enjoin pro- ce^.s Horn a juugment on the giouuu 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 td 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 do 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. Comm. 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 action was upon PiUNClPLES DEFINIXG AND LIMITING JUKISDICTION. 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 i-elief 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 tho fa- ■"or 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 JNIiller 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. 26 PRINCIPLES DEFINING AND LIMITING JUIIISDICTION. EARL OF OXFORD'S CASE. (1 Ch. R. 1.) Michaelmas Term, 13 Jac. 1. Magdalen College, 30 Hen. VIII., seised in fee of the rectory of Christ's Church, and the convent garden, without Aldgate, Ixmdon, containing 7 acres, demised them for 72 years, rendering £40 per ann. for the rectory, and £9 for the garden. And 17 Eliz. (50 years of the said lease being expired), the queen, at the suit of the said college, licensed them to alien, which they dla, and then re- ceived for the rectory £25 per ann., and £15 for the garden. It being her majesty's in- tent that the college should be advanced greatly in profit by having the rectory to them and their successors, discharged of the lease for years, which in present was worth to them but £50 per ann., the utmost rent, the same was accordingly performed by a conveyance to her majesty, and from her majesty to Spinola and the rectory, from Spinola to the college; after which Spinola and the Earl of Oxford, his assignee, and his under-tenants, have built upon the gar- den 130 houses, and therein oestowed £10,- 000, which assignee and his under-tenants have bonds and security given for the en- joyment thereof to the sum of £20,000. Note.— The college is hereby advanced £1,700 more than they should have been if the former lease had continued, which is not yet expired. This conveyance having been in peace 40 years, and thus advanced by the purchasers from a thing of little value to a great and con- siderable one; and it being a general case wherein persons of all degrees and callings have made purchases, they resting secure on its passing through the crown, the greatest protection. The present master of the college having by undue means obtained the possession of one of 130 houses, whereof one Castillion was lessee, who, being secure of his title, both in law and equity, sealed a lease thereof for three years to one Warren, who thereupon brought an ejectment against one John Smith for trial of the title in B. It., wherein a spe- cial verdict was had; and while that de- pended in argument the lease ended, and so no possession could be awarded for the plain- tiff, nor fruit had of his suit. Yet he pro- ceeded to have the opinion of the judges to' know the law (which was a voluntary act of his), to the intent, if the law were with him, he might begin a new suit at law, and spare to proceed in equity; and, if the law were against him, that then he might pro- ceed in chancery. And the judges of that court having delivered their opinions against his title, before any judgment entered upon the roll, the earl and Mr. Wood, for them- selves and their lessees, preferred their bill in chancery, and then judgment ^Aas en- tered "quod querens nil capiat per billam"; to which bill in chancery the defendant put in a plea and demurrer, alleging the convey- ance to be void, by the statute of 13 Eliz., and that they evicted one house, parcel of the premises, by judgment of law; which plea and demurrer were referred by order to Sir John Tindal and Mr. Woolridge, who reported that they thought it fit the cause should proceed to hearing notwithstanding the plea and demurrer; and afterwards, in default of an answer, an attachment was awarded against the defendants, whereupon they were attached, and a cepi corpus re- turned, and by order of the 22d of October (13 Jac. 1) they were committed to the Fleet for their contempts in refusing to answer, aiMl do now stand bound over to answer their contempts, they still refusing to an- swer. And now, this term, it was argued that the defendants thus standing in con- tempt, etc., may be sequestered until an- swer. LORD CHANCELLOR El.LESMERE. 1. The law of God speaks for the plaintiff. Deut. xxviii. 2. And equity and good conscience speaks wholly for him. 3. Nor does the law of the land speak against him. But that and equity ought to join hand in hand in moderating and restrain- ing all extremities and hardships. By the law of God, he that builds a house ought to dwell in it, and he that plants a vineyard ought to gather the grapes thereof; and it was a curse upon the wicked that they should build houses and not dwell in them, and plant vineyards and not gather the grapes thereof. Deut. xxviii, 30. And yet here in this case, such is the con- science of the doctor, the defendant, that he would have the houses, gardens, and or- chards, which he neither built nor planted; but the chancellors have always corrected such corrupt consciences, and caused them to render quid pro quo; for the' common law itself will admit no contract to be good with- out quid pro quo, or land to pass without a valuable consideration; and therefore eq- uity must see that a proportionable satisfac- tion be made in this case. As in the case of Peterson v. Hickman, the husband made a lease of the wife's land, and the lessee, being ignorant of the defeasible title, built upon the land, and was a great charge therein. The husband died, and the wife avoided the lease at law, but was com- pelled in equity to yield a recompense for the building and bettering of the land, for it was so much the more worth unto her; and wheresoever one hath a benefit, the law will compel him to give a recompense, — as If cestui que use sell the laud to one that hath no notice of the use and dieth, by rea- son that he had the benefit of the sale, his executors were ordered to answer the value of the land out of his estate, as appeareth by a judgment roll of 34 Hen. VI. PKINCirLES DEFINING AND LIMITING JUIIISDICTION. And (his lordship) the plaintiff in this case •only desires to be satisfied of the true value •of the new building and planting since the convej-ance, and convenient allowance for the purchase. And eiiuity speaks as the law of God speaks; but you would silence equity. First. Because you have a judgment at law. Sec- ondly. Because that judgment is upon a stat- ute law. To which I answer: First. As a right of law cannot die, no more can equity in chancery die; and therefore, "nullus re- •cedat a cancellaria sine remedio." 4 Edw. IV. c. 11a. Therefore the chancei-y is al- ways open; and, although the term be ad- journed, the chancery is not, for conscience and equity is always ready to render to every one their due. And 9 B. 11a. The chan- cery is only removable at the will of the king and chancellor; and by 27 E. 3, 15, the chancellor must give account to none, but only to the king and parliament. The cause why there is a cliancery is, for that men's actions are so divers and infinite that it is impossible to make any general Jaw which may aptly meet with every par- ticular act, and not fail in some circum- stances. The office of the chancellor is to correct men's consciences for frauds, breach of trusts, wrongs, and oppressions, of what natm-e soever they be, and to soften and mollify the extremity of the .law, which is called "summum jus." And for the judg- ment, etc., law and equity are distinct, both in their courts, their judges, and the rules of justice; and yet they both aim at one and the same end, which is to do right. As jus- tice and mercy differ in their effects and oper- ations, yet both join in the manifestation of God's glory. But in this case upon the mat- ter there is no judgment, but oiily a discou- tinuauce of the suit, which gives no pos- session; and, although to prosecute law and equity together be a vexation, yet voluntarily to attempt the law in a doubtful case, and after to resort to equity, is neither strange nor unreasonable. But take it as a judgment to all intents, then I answer that in this case there is no opposition to the judgment. Neither will the truth or justice of the judgment be examinea in this court, nor any circumstance depend- ing thereupon, but the same is justified and approved; and therefore a judgment is no let to examine it in equity, so as all the truth of the judgment, etc., be [not] examined. No possession is established by the king's writ, after that any judgment is sought to be impeached; for when the plaintiff, by his lessee seeking relief at the common law, is barred, then is his time to seek relief m chancery when the common law is against him. Doct. & Stud. fol. 16. A serjeant is sworn to give counsel according to law,— that is according to the law Of God, the law of reason, and the law of the land,— and upon both the laws of God and reason is grounded that rule, viz. to do as one would be done unto. And therefore, where one is bound in an obligation to pay money, payeth it, and takes no acquittance, by the common law he shall be compelled to pay the money again. But when it appeareth that the plaintiff will recover at law, the Serjeant may advise the defendant to take a subpoena in chancery, notwithstanding his oath. So (1 Hen. VII. c. 14) if he deliver an acquittance without seal, or the money is paid within a short time after the day, or if he lose the acquittance, if judgment be had in any of these cases, the party may resort to equity. 22 E. 4, and 7 Hen. VII. c. 11. Also, after judgment in those cases, if the party have a release, he may have an audita querela, which is a Latin bill in equity, if the other party's conscience be so large as to demand a double satisfaction. So, if the statute be entered by duress or menace, though the party be in execution, yet he may avoid it by duress of imprisonment (15 E. 4; Fitz. Nat. Brev. 104, L. 5, Ed. 4, "Audita Querela." 27); and yet it is a judgment upon record. And so of a judgment by a confes- sion and satisfaction, acknowledged by a let- ter of attorney, which is lost or cannot be produced. And in the case of Harning v. Castor, Slich., 3 Jac. in B. R. on an audita querela, brought per opinionem curiae, if a judgment be given upon an usurious contract, and it is part of the agreement to have a judgment, the defendant may avoid such judgment by an audita querela, or by a scire facias, brought upon the same. So, if a judgment be had against an Infant oy covin, as if an infant be inveigled to be bail for one in any court, at Westminster, he may have an audita querela to avoid the same. Trin., 7 Jac, Jlarkham v. Turner, Yel. 155, and S Hen. VL c. 10. So, if judg- ment be haid by covin or collusion against an executor to defraud the creditors, if it be pleaded in bar. The covin and cnllusion may be averred at law by replii?ation, and the judgment fi'ustrated thereby. 3 Hen. VI. c. 30. And note every outlawry is a judgment, yet the parry may have rerjedy in conscience against him that caused him to be outlawed without just cause. Doctor and Student, lib. 2, c. 21; 21 Hen. VII. c. 7; 9 Hen. VI. c. 20. So, if one neglect to eni-oU his deed of bargain and sale, being his only assurance, as in Jaques and Huntley's Case, in this court, 13 Junii, 1599, and the bargainor brings an ejectione firmse against hiDi, and hath judgment, the bargainee may resort to chancery, and there be relieved, if not for the land, yet for the money paid. And in Morgan and Parry's Case, Pasch., 27 Eliz., a woman had an estate in a house for her life, dispunishable of waste, and yet she was enjoined not to .commit waste in the house, contrary to the case of Bowles, 11 Coke, 79; 1 Rolle, 177. (Qusere, if not because of the prejudice to him in remain- der?) By all which cases it appeareth that when a judgment is obtained by oppression. 28 PlilNCrPLES DEriNING AND LIMITING JUEISDIOTION. wrong, and a hard conscience, the chancel- lor will frustrate and set it aside, not for any error or defect in the judgment, but for the hard conscience of the party; and that in such cases the judges also play the chan- cellors; and that these are not within the statutes 4 Hen. IV. c. 23, which is that after a judgment given in the court of our sover- eign lord, the king, the parties and their heirs shall tie in peace until the judgment be undone by attaint or error. But, secondly, it is objected, that this is a judgment upon a statute law; to which I answer: It has ever been the endeavor of all parliaments to meet with the corrupt consciences of men as much as might be, and to supply the defects of the law therein; and, if this cause were exhibited to the par- liament, it would soon be ordered and deter- mined by equity. And the lord chancellor is, by his place under his majesty, to supply that power until it may be had, in all mat- ters of meum and tuum, between party and party; and the lord chancellor doth not ex- cept to the statute or the law (judgment) upon the statute, but taketh himself bound to obey that statute, according to 8 Edw. IV.; and the judgment thereupon may be just; and the college, in this case, may have a good title in law, and the judgment yet stand- eth in force. It seemeth by the Lord Coke's report in Dr. Bonham's Case, 8 Coke, 118, that stat- utes are not so sacred as that the equity of them may not be examined. For he saith that in many cases the common law hath such a prerogative as that it can control acts of parliament, and adjudge them void; as, if they are against common right or reason, or repugnant or impossible to be performed; and for that he vouches 8 B. 3, 30; 33 E. 3, "Cessavit," 41, 42; Nat. Brev. 209; Plowd. 110; 27 Hen. VI, "Annuity," 41; 21 Eliz. Rot. 303. And yet our books are that the acts and statutes of parliament ought to be reversed by parliament (only), and not other- wise (Bro. tit. "Error," 65, etc.; and 7 Hen. VI. c. 28; 21 E. 4, 46; 29 E. 3, 24); and up- on that reason the lord chancellors, since the device of the action to be brought by Par- sons upon the statute of 2 Edw. VI. have en- joined the sta.y thereof. And the judges themselves do play the chancellors' parts up- on statutes, making construction of them according to equity, varying from the rules and grounds of law, and eillarging them, pro bono publico, against the letter and intent of the makers; whereof our books have many hundreds of cases. 15 Hen. VII., and 14 Hen. VIL c. 14; 42 E. 3, 6, etc. Will you, then, have equity suppressed In all cases wherein a judgment at law or upon a statute Is had? The use of the chancery has been In all ages to examine equity in all cases saving against the king's prerogative, as 35 Hen. VI. c. 27; 11 Hen. IV. c. 16; and Doct. & Stud. lib. 2, cc. 5, 16. Then you must have a special statute to except the chancellor^ for general statutes do extend to the par- ticular usages of all the great courts at Westminster, especially of the chancery, and especially for matters of equity. In chancery, upon a recognizance, a capias may be awarded, and the precedents of that court shall close up the mouths of the judges of the common law, notwithstanding the statute of Mag. Char. c. 29: "Quod nuUus liber homo capiatur aut imprisonetur nisi per legale Judicium parium suorum vel per legem terrae." And so it was adjudged in Clement Parson's Case, 21 Eliz., in the exchequer, which you may see in 8 Coke, 142; and 25 Eliz., in Martin and Bye's Case; and in T Jac, in Com. Banco; Heigham's Case. Godb. 16; and Kilway's Case, vouched to be ad- judged 9 Coke, 29 (vide Doct. & Stud. 306a) ;. and every court at Westminster ought to- take notice of the usages and customs of the rest of the courts at Westminster, which are as a law to those courts, and of which the common law takes notice. 2 Coke, 53, 65, 503, 504; 11 E. 4, 2. The statute of 5 Eliz., of perjury, directeth' how perjury shall be punished, saving the- authority of the star chamber; yet for per- jury committed in chancery, either in an affidavit or an answer, etc., if such perjuiy appear to the chancellor, the party may be punished according to his direction. Also no exchequer man hath privilege against a subpcena, for matters between part.y and party, where the king's interest cometh not in question (20 Eliz., Cutts contra Peter Goodwin et al.), and yet their privilege hath several statutes that give strength thereun- to; but the use and precedents of the chan- cery are not .altered by those laws. And if a statute staple be extended, which by the statute is a judgment of itself, and the exe- cution thereof is directed by the statute, yet it hath been usual in all ages to moderate the hard consciences of the conuzees, and if they have been satisfied with their costs and damages, after the rate of the full value of the land, the land hath been discharged by a decree of equity. Thirdly. The law of the land speaks not against this, for by 9 Edw. IV. c. 15, the chancellor sits in chancery according to an absolute and uncontrollable power, and is to judge according to that which Is alleged and proved; but the judges of the common law are to judge according to a strict and ordinary (or limited) power. As 7 Hen. VII. fo. 10: A. had lands extended to him in ancient demesne upon a statute merchant, B. purchased the lands, and had a recovery by sufferance in the court of ancient demesne, with voucher, and entered, and ousted A. A. brought a subpoena, and it was holden that A. could not falsify the re- covery at law, and therefore he should be restored to the possession by the chancery, for he had not any remedy by the common law. Where note that, notwithstanding a. PHl^'CirLKS DEFINING AND LIMITING JUKISDICTIOX. 29 •double judgment, yet the judges directed them to the chancery. And the statute of 4 ,Hen. IV. c. 23, was never made nor Intended to restrain the power of the chancery in mat- ters of equity, but to restrain the ehaucellor and the judges of the common law only in mat- ters merely determinable by law in legal pro- ceedings, and not in equitable; and that they should be constant and certain in their own judgments, and not play fast and loose. For by 37 Hon. YI. c. 13, and divers other authori- ties, no writ of error or attaint lieth when the suit is by subprena, and the party only seelis to equity for the equity of his cause. And therefore judgments by default, con- fession, etc., and not by verdict, are not within this law, so as to bind the judges on their legal proceedings; as 5 E. 4, 3S. In debt, upon an obligation against A., B., C, and D., judgment by default is had against A. and B. C. demurs, and D. i)leads to issue; and, by the opinion of the judges, a supersedeas was awarded, hao causa couscien- tise, for that the judgment was by default. lu the next place, it is considerable how far the statute of 27 E. 3, c. 1, doth extend to check the power of the chancery in this case. Now. the proper exposition of this statute is from those statutes that were the foundation thereof, and whereupon the stat- ute was built; it being not introductive of new law, but declarative antiqui juris. The precedent statutes which do explain this statute are 31 E. 1, made at Carlisle; 4 Edw. III. c. 6, in confirmation thereof; 25 E. 3, c. 22, and 25 E. 2, c. 1, "Of Provisions of Benefices"; these being in time befoi-e 27 B. 3, and 88 E. 3, which comes after, and recites the statute of 25 E. 3, and this stat- ute of 27 E. 3, and confirms them, with ad- ditions for further remedies, they being all linked together in one chain; which is fur- ther apparent by the recitals in the law, and by the preamble thereof, which doth mani- fest the minds of the lawmakers, and do naturally explain the laws, that they do all extend to ecclesiastical jurisdiction and con- uzance, and not to temporal; and the same is more apjiarent by other subsequent laws in several kings' reigns following. But for the temporal courts, and the support of their judgments, there are only two statutes, viz. Westm. II. c. 5, and 4 Hen, IV. c. 23, which are already answered, A'ide the argu- ment for the authority and jurisdiction of the court of chancery at the end of this vol- ume (1 Ch. Rep.), where these two statutes are explained. 30 rHlNClPLES DEFINOG AND LIMITJNG JUKISDICTION. LYNCH V. METROrOIJTAN EL. RY. CO. et al. (29 N. E. 315, 129 N. Y. 274.) Ccurt of Appeals of New York. Dec. 15, 1S91. Appeal from superior court of New York cit.v, general term. Action by Lawrence Lynch against the Metropolitan Klevated Railway Company anrl others to restrain the maintenance and operation of defendants' roads in front of plaintiff's premises, and for dam- ages. Plaintiff oblained juds'in'Dt, whic-li v.a» affirmed by the general term. De- fendants appeal. Affirmed. Samuel Blythe Rogers anil Julien T. Da- vies, for appellaiits. Charles Gibson Ben- nett, for respondent. GRAY. .T. This action was hronirht to restrain the maintenance and operation of the defendants' roads in front of the plaintiff's premises, and tlie r>rayer for suci) a judgment included also a demand for the amount of loss and damage which might beascertained to have been already sustained l)y tlie plaintiff. The complaint sets out the title and ownership of the plaintiff, and his rights in and to the street in front of his premises; the con- struction of the elevated railroad, and the ' operation of trains over it, and the an- no.yjng results therefrom; the illegal and unauthorized nature of the trespass ujion the plaintifl's premises and easements, and the failure of the defendants to ac- (iihK or tip ninki' ciimiiensM linn f^r ilxiii the injuries sustained, and that they will be constant and continuoss; and, finally, that, to prevent a multiplicity of suits, to pi-ott'ci. ui;ainst irreparable damages, and to afford complete relief, the olaintiff is compelled to seel< the equitable inter- ference of the courc. When the action came on for trial the defendants' counsel moved for a trial of the plaintiff's claim for past damages by jury, and the exrep- tion to the denial of that motion raises the main question presented upon this ap- pe.il. The clause of the constitution upon which the demand for a jury trial was l)ased rendn: "The trial by jur.y, in all cases in which it has heretofore been used, shall nnifun inviolate forever." Tlie ar- gument for the appellants is, in substance, that there were two independent causes of action stated in thecomplaint.of which one was for past damages, which, prior to the constitution of ]84(i, was cognizable solel.v in a court oi law, and that, under the Code, it comes within the equity juris- diction of the court only by reason of the permission to join in one complaint legal and equitable causes of action. By sec- tion !)T0 of the Code of Civil Frocedure, which was a new enactment, it is provid- ed tliat "where a party is entitled by the constitution, or by express provision of law, to a trial by a jury of one or more issues of fact, « • * lie may apply upon notice to the court for an order directing all the questions arising upon that issue to be distinctly and plainly stated for tri- al accordingly," whereupon the court must so oi.ler, etc. If the defendants be- lieved that they liad a constitutional right to a jury trial of some issue of fact in this action, it would ha ve been the natu- ral and orderly way for them to make an. application to the court under this section. The complaint appears to be but one con- secutive narrative of the grounds upoa which the equitable inte'rference oi the court is alleged to be necessary. The pre- tense that there is a separate cause of ac- tion rests only upon the demand of thfr complainant that, if he is entitled to thfr equitable relief of an injunction, the court shall adjudge to him such an amount for the loss sustained by the defendants' acts* as shall be ascertained. Undoubtedly the claim for past damages sustained b.y plaintiff in his property rights from the defendants' acts could have been made the subject of an action at law, but that was not the cause of action which th& plaintiff elected to assert in his complaint, and to bring to trial. What he attempt- ed by instituting his action was to re- strain the continuance of acts, which were constantly injuring, and would, to all ap- pearances, constantly in the future con- tinue to injure, him in ways and in a man- ner wliicii he described in his complaint. That was a form of relief demandalile and cognizable only on the equit.v side of the court. Hence, as upon the face of the complaint the plaintiff alleged a cause of action for equitable relief, if the defend- ants conceived that they ^A'ere entitled to a trial by jur.y of any i«sue of fact in- volved in the statements of the complaint, they might have moved the court under section !)70, and then the question could have been opportunely and properly met. Appellants cite upon this point the decis- ion in Colman v. Dixon, 50 N. Y. 572; but that was made in l!^72, and section 970 was a new provision, and was enacted in 1S77. But, whatever the effect of the omission to take this course of procedure, we need not determine it now, inasmuch as the conclusion we have reached holds the right CO a separate trial by jury, as to the amount of past damages, in such an ac- tion, not to be within tlie purview of the constitutional guaranty. The action was one purely for a coui't of equity, for th? main relief sought was an injunctio! against the defendants, restraining them from maintaining and operating their ele- vated railroad. To the assertion of this ground forthe equitable interference of the court the facts in the complaint were marshaled, and to the necessity for grant- ing that species of relief every allegation of the complaint was framed and calcu- lated to lead. There was but one cause of action stated in this complaint, and that was the claim for relief against the continued trespass upon the complain- ant's properties. The demand for past damages, included in the prayer for judg- ment, does not have the effect to set up an independent cause of action. It is nothing more than a demand that the court, having adjudged the plaintiff enti- tled to the equitable relief prayed for, and having acquired entire jurisdiction of the action, will assess the damages which ap- pear tcwhave lieen sustained down to the trial. It has always been a well-settled and familiar rule that when a court of PRINCIPLES DEFINIXG AND LIMITING JURISDICTION. ol equity gains jurisdiction of a cause hoFore it for one pnrpose it may retain it gener- ally. To do complete jnstice between tlie parties, a court of equity will further re- tain the cause for the purpose of aster- tainins and awarding the apparent dani- ages, as something whicli is incidental to the main relief souglit. While this is done on the ground that the remedy for the damage done is deemed to be incidental to the relief of injunction, tlie principle is in perlect harmony with the theory of the jurisdiction of a court of equity. Its power is invoked, and it interferes to re- strain a trespass which is continuous in its nature, in order to prevent a multi- plicity of suits; and, talking jurisdiction of tlie cause for sucli a purpose, it may retain it to the end, and close up all mat- ters for legal dispute between the partie«i by assessing the loss sustained from the acts^^hichit has restrained. Tlie power and practice of courts of equity were, as it was forcibly remarked by Judge Eart, in tlie case of Madison Avenue Baptist Church, 7H N. Y. sl'. i)o, " when they have once obtained jurisdiction of a case, to administer all the relief which the nature of the case and the facts demand, and to bring sucli relief down to the close of the litigation between the parties." The fact that a money judgment is ordered against the defendant for the plaintifl's loss affords no peculiar ground for attacking equity's jurisdiction. That is frequently tlie case in actions of an unquestioned equitable nature. Quite recently, Judge Finch, in Van Rensselaer v. Van Rens- selaer, 113 N. Y. 207, i;l N. E. Rep. 75, ob- served, with respect to an objection to the jurisdiction of a court of equity that the final relief would lie a personal judg- ment, that it would not in that manner lose its jurisdiction of an action of an eq- uitable cliaracter. The jurisdiction "once a'"quired, " lie said, "it retains to the end, even though it may turn out that ade- quate relief is reached hy a merely person- al judgment. That is not an uncommon occurrence. " Instances are frequent in which a court of equity decrees the pay nient of money as an incident of the grant of equitable relief, and that feiruredoes not suffice to qualify the jurisdiction. But I think we should consider the ques- tion to liave been settled, urion the au thority of several decisions of this court. In tlie case of Williams v. Railroad Co., Ifi N. Y. 97, the opinion was delivered by Judge Samtel Skluen. That was a suit in equity, brought to restrain the defend- ants from using the street witli their rail- way, and to recover damages for past use. The conclusion arrived at, as expressed in the opinion, was that "it follows that the deleiidanls, in ciiii.>trucling llieir load, » * » were guilty of an unwarrantable intrusion and trespass upon plaintiff's property, and that he is entitled to relief. Although he had a remedy at law for the trespass, yet, as the trespass was of a continuous nature, he had a right to come into a court of equity, and to invoke its restraining power, to prevent a multl- I'li. 11 , 11] i-.ui..-~, .iiiti iMii, oi cuur.~e, recover his damages as incidental to this equita- ble relief. There ina.v be doubt as to his right to recover in this suit the damages upon the lots which have been sold, be- cause as to those lots there was no occa- sion to ask any equitable relief, and to permit the damages to be assessed in this suit, in effect, deprives tlie defendants of the right to have them assessed by a jury. But, as this ((uestion has not been raised, itis unnecessary toconsiderit." There are two things to be noted in thatopinion. In the first place, tlio damages already sus- tained were deemed within the powtr of a court of equity to award as an incident of its jurisdiction over the action. This idea is, in fact, emphasized by the sugges- tion as to the lots which had been sold, be- cause it is clear that the court regarded its right to award the damages as a mat- ter conuecteii w ith or dependent uiion i lie ground for granting any equitable relief ; that is to say, as to the property to be protected by the decree of the court against the defendants' acts, the damages caused to it could be assessed by the court; but as to that portion withdrawn by the sale it might be doubtful, becauss not the subject of, or entitled to, the equi- table relief. It is very obvious that the court had in mind the question as to the rightof trial byjur.v. In the second place, it may be noted that the opinion speaks of the Hsse.«smeut of the damages. '1 h s definition of an assessment of the dam- ages seems to me to put the action of the court in line with just what courts of equity have always done in cases over which they have gained jurisdiction , that is to say, they proceed to inquire directly, or by reference, or otherwise, as to the damages sustained, and assess them ac- cordingly. When, later, the same case, entitled as Henderson et al., after a new trial, came up again, (78 N. Y. 423,1 the opinion of the court ■was delivered by Judge Danfou'J'h, who again upheld the plaintiff's riglit to invoke the equitable power of the court, and held that he could, "of course, recover his damages as incidental to this equitable relief;" and he stated it to be "an elementar.y principle" that "when a court assumes jurisdiction in order to prevent a multiplicity of suits it will proceed to give full relief both for the tortious act and the resulting dam- ages." The opinion was carefully writ- ten, and based upon tlie auchcrity of many cases. Recently, again, in the case of Shepard v. Railroad (^o., 117 N. Y. 442, 23 N. E. Rep. 30, it was said ol these actitms that they were necessarily "on the equity side of the court, as the main relief sought was the injunction against the defend- ants," and that in tliem the complainants could "recover the damages they have sus- tained as incidental to the granting of the equitable relief." This view, as stated in that opinion, was expressl.v based upon the Williams and Henderson Cases, and upon the supposed equitable principles governing such actions. The Shepard Case somewhat conspicuously illustrates the powers a court of equit.y may arrogate to itself with the object of completely deter- mining and quieting the (piestions before it when it has once acquired jurisdiction of the action. It follows, in that re- sjiect, a rule long established b.v au- tliority. It is true that in these cases the riglit to deuiand a jury trial as to jjast 32 PRINCIPLES DEFINING AND LIMITING JURISDICTION. •dnmaE:es was not precisply or in tprms stated as the proposition advancer! ; but that, as it seems to me, would be a very narrow evasion of tin- effect of the opin- ions delivered. Thej' did consider tlie nat- ure of such actions, and deliberately de- •clared the power of the court in equity, as an incident of the main relief of injunntion, to assess the damages sustained. Jn Car- penter V. Osborn, 102 iS. Y. 552, 7 N. E. Eep. 823, the court, in an actiun to set aside certain conveyances as fraudulent, granted the eQuitalde relief prayed for, and. in addition, decreed the judgment a lien upon theland for some unpaid install- ments of interest, to the payment of which thedefeudant had obligated himself in M ctrlaii) ayreeiri-Dt. Cuief Judge Ei.'GEK delivered the opinion of this Cf)urt in artlrinance of the judgmenl, and said: "This prini'iple has been applied in many ■cases in awarding .iudgnient for pecuniary -damages, even wlien the party had an adequate remedy at law. if the damages wera connected with a transaction over which the courts had jurisdiction for any purpose; although for the purpose of col- lecting damages merely they would not have liad jurisdiction." In sutiport of tlie principle declared by him, tlie learned judge cited Pom. Eq. Jur. § 181, and vari- ous cases. I think some confusion of thought con- cerning the constitutional guar;inty of a trial l)y jury may arise in a mi.sapprelien- sion as to its proper applicati'ii. That Ijro vision relates to the trial of issues of fact in civil and criminal proceedings in tlie courts, as it was held tiy tlie chancel- lor in the case of Beekman v. Railroad, 3 Paige, th. Where the trial of a civil pro- ceeding presents fcjr determination a ques- tion of fact the right of trial by jury is propel', and can be invoked. But an ac- tion brought to restrain the commission of tresiiasses wliich are continuous in their nature is necessarily in e()uity, and the court interferes to prevent multiplici- ty of suits, and grants e(]uitable relief by way of an injunction. The questitm pre- sented for determination insuch an action is one of law, whetlier, upon the facts to be estaliiiKlied upon the trial, the plaintiff is entitled to such relief. Upon the proofs, showing the nature of the trespasses, and the consequent injury to the complain- ant's property, the court decides the ques- tion of plaintiff's right to an injunction. It does not seem to me that it can be said that any issue of fact as to damage re- mains. That was necessarily decided in the action, and all that remains is to llx its amount; and I do not think the con- stitutional provision was aimed at such a proceeding. As defined by the chancellor in tliecase a'./ove referred to. it seems diffi- cult to rationally give it an application to what is simply an assessment of the dam- ages. I may extract, and may apjiositely quote here, a remark of Judge AN'ouinvs in his opinion in Cogswell v. Railroad Co., 105 N. Y. 310, 11 N. E. Rep. 51S: "We think," he says, "it is a reason- able rule, and one in consonance with the authorities, that where a plain- tiff brings an action for both legal and equitable relief, in respect to the same cause of action the case presented is not one of right triable by jury under the con- stitution." The case was one wherein the plaintiff's complaint demanded judgment for damages and an abatement ol a nui- sance, and also for an injunction against its continuance. The learned judge's opin- ion is upon the question of whether such an action was one for a nuisance, under section 968 of the Code, which must be tried by jury, unless waived or referred, and he held that it differed from Hudson V. (^aryl, 44 N. Y. 553, which was a com- mon-law action, in that equitable relief by way of injunction was asked, and not siinpl.v the relief tjbtainable by writ of nuisance for damages and an alinteraent. His remark upon the right to a jury trijil in eouitablH actions is not out of place, Iio\^ever, here. To carry this discussion backwards, and to a time anterior to de- cisions of this court, we find warrant in the opinions then held by our own and the English chancery courts for holding that a trial by jury was not usual in cases where equity lia(l acquired jurisdiction, and that the court would Fdminister all tlie relief which the facts warranted, in- cluding the assessment and awarding of compensation for injnrv sustained. In Watson V. Hunter. 3 Johns. Cli. 1()9, tiie hill was tiled to enioin the cutting of tim- ber and to restrain the removal of that ■which had already been cut. Cliancellor Ki:\T cuiifiried the relief of injunction to the timber standing, and refused it as to the removal of the cut timber, on tne ground that it would be an application to an "incidental remedy." He said that "the practice of granting injunctions in cases of waste is to prevent or stay the future coininissiou of waste, and the remedy for waste already committed is merely incidental to the jurisdiction in the otiier case, assumed to prevent multiplici- ty of suits, and to save tlie party the ne- cessity of resorting to trover at law." The chancellor's exposition of the priuci- ple upon which equity acts in cases of waste obviousiy is as applicable to cases of trespass. If the action at law in tro- ver was deemed unnecessary for the per- sonal property already converted in tliat case, it seenis unnecessary in such an ac- tion as this, in order to recover the loss sustained from the trespass. The chan- cellor in the Watson Case relied upon the practice followed by the Knglisli chancel- lors. Lord HAUDWiOKR.in Carth v. Cotton, 1 Vcs, Sr. uL's, liad held that the decree tor the waste already committed was an in- cid2nt to the injunction to stay waste. Before that, in Jesus (College v. Bloom, 3 Atk. 262, where th» bill was fi'ed for an ac- count and satisfaction for V\aste in cut- ting trees, and no injunction was praved for. Lord HAwnwiCKE said thatthe bill was improiier, and that an action of trover was tlie renudy. He asserted the rule, hovTever, that where the bill vs-as for an injunction to prevent waste, and for waste already committed, the court, to prevent a double suit, would award an injunction to prevent future waste, and decree an account and satisfaction for what was past. He held that to prevent multiplicity of suits the court will, on bills for injunction, make u '.•ompleto decree, and give the iujuied party a satisfaction rRINCIPLES DEFINING AND LIMITING JURISDICTION, 33 for wliatliod been done, and not oblifre him to brins another action at lnw. In the subsequent cnse f)f Smith v. t'oolie, Id. 3sl. the same lord chancellor declared the same doctrine, as did also Lord Tnuui.ow in Lee v. Alston, 1 Ves. Jr. 7S. I quote a remark of Lord Nottingiiaii in Parles. might not, at tliis day, be sliakeu by doubts. The conclusion which 1 thiidi we must reach is ' that, in this complaint, the cause of action is single, and constitutes a claim for equitable relief, and tliere is not mixed up witii it a cause of action tor legal relief. The facts alleged as a basis for an ai)i)eal to the court to exeit its equitable pjwc r may well have constituted a eh im for legal relief, and might have been set uj) in an action at law; but that con«iderntiou cannot affect nor change the eose in luirsiiit of a common adver.■^aly where each may resort to equity, in ord to be joined in one suit; and it is not enou 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 2o8. Al- though he asserts that this early theory has long lieen abandoned, he fnils utterly to prove it. An examination of the c.ises he cited under s-ction 2r6 et seq. will show this to be true. The opinion of the justice (Harlan) in Osborne V. Railroad Co., 43 Fed. Kep. 824, does support the text of Pomeroy, and cites 1 •J » hrj gh re-l PRINCIPLES DEPmiNG AND LIMITING JURISDICTION. :'.7 Pom. Eq. Jiir. gi, 245. 255, 257 268, 293, and Crews v liurclimn, 1 Black, 852-357 ■\Ve are content with wliat hiis alieiidy been suul MS to the lext of Pomei-ov, iinil iillh'in tliat not one of liis citations sustains liis con- clusion, and tlie languaga of Ilailan, J., in Ihe case cited. Nor dues Ci'ews v. Jjuicli- .ira sustain the hinguuse of Justice 11 irian. Il lielongs to the cla.-s of cases vvheie each jiai'ty niiglit have biouglit liis liill, and all who had a common cause were purniitted to make common contest iii chauceiy witli their adversaries who were uniteil bv a couiuion tic. Tlie decision of tliecase in which Ilai'lau, J., ,<,'ave his support to tlie doclriiie of Pume- rov is not cmpl. lined of, but llie o|iinion is not justitied by any case witli which we have been made acquainted. 'J'lie case was one in tthicli eacli ini>;ht have brought his sepa- rate bill lo quiet Idle, and all concerned were perni.lted to uiiite in one bill ajjainst then coiuuion adversary; and so, it. is bel eved, w.U be found alt the cases on this sul)je t. Certainly, those relied on by Pomeioy are oi this cliaracter. Those cited in the note to sec- tion 26l>, in which heasscrts most broadly the diiClrme we ooiiibat. are Keese v. Citv o. Denver. 10 Colo. 113, 15 Pac. R. p. 8J5; Carlton V. Newman. 77 Me. 408, 1 .\il. Rep. 194; De Forest v. Thompson, 40 Fed. Hep. 375; Osbnrue v. Kailro.id Co., 43 Fed. Rep. 824; Kailmad Co. v. Gibson. 85 Ga. 1,11 S. K. Rep. 442; Schuyler Frau. I Case, 17 N.Y. 5;'2; Siieilield Waterwoiks Case. L. R. 2 Gli. App. 8; and Caseof the Coiu|)iicated Contra, t, D.ack v. Sliieexc, 7 N.J. Kq. 440. 'the case in 4-) Fid. Rep. 824, li.is already been noticed sii] ra. The op nion in the case in 10 Ccdo., 15 I'ac. Rep., quotes the langua:_'e-of Pom £q. Jur. § -09, but the case was one where one or luiue jilaintitTs may sue in equity lor the benelit of all others similarly situated. Cailton V. Newman, 77 Me. 408, i All. Rep. 194. alllrius the jiiiis liction of equity to en- join the colli! tion of an illegal tax for the jiurpose of previ nling the multiplicity of sails where the enliie 1. vy allect.ng all the taxpayers was illegal. It a[)peai!i lo be ex- ceptional, and to rest on peculiar grounds, not applicable to the case before us. The opinion citis Pom. Eq. Jur. § 209. but seems to 1-1 st on the propo^inon that the whole tax was lib gal. The c.ibe in 40 Fed. Rej). 3i'5, was t1i.it of a plaintiff exhibiting a bill to set aside « sale of land, and v.icate deeds made in pursuance of it, against numerous parlies, all of whom cl. dined by separate par- c Is, but under the proceeding ait.icked as voil. A bill might have been exhibited against each one separately, and it- was held to be proper to unite all in one suit. Th.it was clearly right, but Jackson, J., in his opinion, concurred in by Ilailan, ,1., cited Pom. Eq. Jur. §§ 243-2ti9, inclusive, which we have shown to be unsupported by any case of authority. The case in 85 Ga., 11 S. E. Rep., is where a few persons, as rep- resentatives of u 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, J.. R. 2 Cli. App. 8, and 7 N. J. Eq. 440, fuinisli no sort of support to the text of the author, and it is conlideiitly claimed that every case that can be found, if entitled lo any consideration, will be seen to be one rcsiing on simie other principle than' that for which it has been cited iu the connection now under review. And while judges have in various instances cited, and sometimes quoted, Pomeioy, in the lan- guage above cliai acterized as nnsiipnorted. in every instance, we think Ihecase will be found not to call for il, but to be resolvable independ- ently of it upon other grounds of equ. table in- terference; and in our op. nion not one id' ilie learned courts which have cited or quoted Poiueroy in the way mentioned would sus- tain this bill if it was b..dore it fiu' decision. There is d.inger that by frequent rcpetilinns and piling up asseriious, jmlges citing and qiiutiiig text; books, and text writers citing the cases thus rel'errinsj to them, a false d- ■- trine may acquire strength enough to i is- piito Willi the line; but Wc do not tjilii-\e that any aicuinulalioii of dogmatic assertion and citations and qiiolalions can ever est.ib- lish the propos.t.on that a defendant sued lor damages by a dozen dillerent plaiutiirs, who have no community of interest or tie or con- nection bet wem Iheiu ex> ept that each suf- fered by the same act, may bring them all before a court of chancery in one suit, and deny them their rij;hL to prosecute lliiir ac- tions separately at law as begun by tlieiu. It has never been done. There is no juece- denl for it, and, while this is not conclusive against it, it is s gnilicant and suixgestive. Il it is true, as stated by Poiueroy and some quoting him, ihat mere community of inter- est iu matters of law and tact makes it ad- missihle to bring all into one suit in chancery in order to avoid inuliiplicity of suits, ulJ sorts of cases must t)e sulqect to the laiiici- ide; any liuiit.ition would be purely arbitia- ry. It must be of universal applicition, and strange results might flow from its ado|ition. The wrecking of a railroad train might give rise to a hnudred actions for d. image's insti- tuted in a dozen dillerent ciuintics, uniler our law as to venue of suits against :ailroad companies, in some of which executors or administrators or parents and children mi.;lit sue foi the death of a passenger, and in ollieis claims would lie for diveis injuries. If l\iiu- eroy's test be maintained, all of these nu- merous plaintiffs, having a cnuimniiity of interest in the questions of fact and liw, claiming because of the same occurr.nce. de- pending on the very s.inie evidence, and seed- ing the same kind of relief, (damaL'es,) could be brought before a chancery court in one suit to avoid multiplicity of suits. But we foibear. Surely the learned author would shrink from the contemplation of such a spectacle; but his doctrine leads t* it, and makes it possible. The learned counsel for the appellee here felt the difficulty of the possible result of the doctrine contended for. 38 PIUNCIPLES DEFINING AND LIMITING JURISDICTION. and souglit to limit its application to contro- versies about property, excluding those for injuries to be redressed by tlie esiimation 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 wlio 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 sliould 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 tl\is in one class of cases as another; and, as actions against railroad companies are quite num Tons tiiese days, it is of es- pecial concern to prevent multiplicity in this class of cases. Therefore, if tlie doctrine advanced were sound, it would have to be applied wlierever the conditions prescribed ex- isted, — tliat is, wherever many are interested in the same questions of fact and law. That tliis is inadmissible must be apparent. The case of Supervisors v. Deyoe, 77 N. Y. 219, contains a good illustialion of what we have said. In that case tlie suit against numer- ous parties was maintained because it com- bined elements of jurisdiction in each of tlie 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 clian- cery, which decree damages only in a very limited class of oases or under peculiar cir- cumstances or as an incident tosimie otlier re- lief. 1 Pom. Eq. Jur. § 112; 2 Story, Eq. Jur. § 799. Even this learned author, (Pomeroy,) does not say tliat 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 tliat 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 ca'ie 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 thiscase; for if we had only one forum, armnd 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 aie Interested in preventing an obstruction above that shall interfere with the down flow of the water, and may unite to restrain or abate it as a nuisance; but they cannot hence unite in an action for damages, for, as to the injury suffered, there is no community of inter- est. There is no more a common interest tlian though a cariier had at one time care- lessly destroyed projierty belonging to differ- ent persons, or the lives of diJfeient passen- gers," — thus putting the very case we have. The supreme court of Calilornia has cited with approval this very section. We thus confront Pomeioy with an equally inlelli^ient aulhor, 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 tills 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 inlluence which should be counteracted belore further injury results from it, as far as in our power to do it. lieversed, and injunction dis- solved. PRINCIPLES DEFJNING AND LIMITING JUHISDICTION. 39 SHEFFIELD WATERWORKS v. YEO- MANS. (L. R. 2 Ch. App. S.) Court of Appeals in Chancery. Nov. 9, 18C0. The bill in this case was filed against John yeomans and five defendants on behalf of themselves and all other the persons named in any of certain pretended certificates, and stated, that in March, 18G4, a reservoir be- longing to tlie company of proprietors of the Sheflield waterworlvs, the plaintiffs in this case, burst, and occasioned an inundation, whereby many persons lost their lives, and the property of very numerous persons was damaged. That, by the Sheflield Water Works Act, 1S6I, commissioners were ap- pointed who were to inquire into the dam- ages occasioned by the inundation, and any person claiming damages under the act was directed to lodge a statement of his claim at tlie office of the commissioners. Where, on any claim, damages were assented to by the company, or assessed by the commission- ers, the costs of the claimants were to be borne and paid by the company, and the commissioners were to certify accordingly. All such costs were to be payable by the company at the expiration of six mouths after the making of the commissioners' gen- eral certificate, but were, in case of differ- ence, to be taxed and settled on production of a certificate of the commissioners by a mas- ter of a superior court of law at Westminster. If any costs payable und,.'r the act were not paid within twenty-eight days after demand in writing, the certificate of the commis- sioners respecting such costs should have the effect, as against the company, of a judg- ment recovered for the amount of such costs. That the claimants for compensation under the act were 7,315 in number, and many of them were poor and ignorant, and employed improper persons to represent them; and the commissioners, therefore, made a regulation that no certificate should be issued except to the claimant in person. That there was a difference of opinion between the commis- sioners as to whether the powers of the com- missioners had not expired, and 1,500 certifi- cates, which the plaintiffs alleged to be in- valid, were delivered by some of the commis- sioners to the defendant, John Yeomans, the town clerk of Sheffield. That, unless the court interfered, the defendanit, John Yeo- mans, and other persons by his permission, would i)roduce th-?se invalid certificates and have them taxed, whereupon judgment would be issued, and such proceedings would seriously prejudice the plaintiffs, by com- pelling them to defend themselves on very numerous improper taxations, occasioning them very large costs and expenses. That the question whether these certificates were valid or invalid was the same as to all of them, and that the persons named therein were too numerous to be made defendants, but were properly represented by five of them, who were named as defendants. And the bill prayed that the defendant, John Yeomans, might b© restrained from de- livering these certificates except as the court should direct, and that the defendants and all other persons named in any of these cer- tificates might be restrained from having them taxed, or procuring any taxation or judgment against the plaintiffs, and that all these certificates might be delivered up to be cancelled, and, if necessary, that it might be declared that the same were invalid. To this bill the defendants, except Yeo- mans, demurred, and Vice Chancellor Kin- dersley overruled the demurrer.i The five demurring defendants appealed. Mr. Baily, Q. C, and Mr. Rodwell, for the deinurrer, contended that the certificates A^-ere valid, and the rights of the claimants to costs were made absolute by the act. The court of law would be able to decide the questions. In re Wraithby, 11 Jur. (N. S.) 954. Mr. Glasse, Q. C, and Mr. Bagshawe, for the bill, cited 2 Story, Eq. Jur. §§ 853, 854. Mr. Lindley, for defendant Yeomans. Mr. Eaily, in reply. LORD CHELMSFORD, L. C. The vice chancellor appears to have decided this case against the defendants on two grounds: 1 March 7. Vice Chancellor Kindersley said: "There were in this case a number of persons, each alleging that he was entitled, as against the company, to be paid a certain sum to be as- certained in respect of costs. Each claim wa.s founded on the same state of circumstances, and what would be successful in one case would be so in all. Each insisted that he was enti- tled to have out of the custody of the town clerk these documents, in order to adopt the process under the act to recover the costs, — that is, to go to the taxing-master, and get judgment entered up, and issue execution. It was, there- fore, the case of one body against a nvimbcr of separate individuals, each claiming as against the one body a certain right, the right being the same in all, and the same reasons and argu- ments applying to all. Now the question was, whether this was not precisely a case for a bill of peace, quoad the torm and nature of the bill. Where there were a number of peraons claiming as against one, or one person against a number, and where all were claiming alike, that was a case for a bill of peace; and this came within the true object of such a bill. The bill sought to restrain the issuing of the docu- ments penamg the question, and so far the de- murrer could not he sustained. The vice chancellor then said that the other question was, whether the documents ought to be delivered up and cancelled, or whether the parties ouglit to be allowed to have them, anti pursue their legal remedy. That depended on whether these were proper certificates, and that again depended on all the details and facts as to what was done by the commissioners and their clerk, by their direction. The vice chancellor refused, under the cir- cumstances, to decide that question on demur- rer, as it was a question for the hearing, and said that the demurrer must be simply over- ruled, reserving to the defendants the benefits thereof at the bearing, and reserving the ques- tion of costs. 40 PRINCIPLES DEFJXIXG AND LIMITING JURISDICTION. First, that the bill was a bill of peace, and therefore proper in its form and character; secondly, that the point raised by the demur- rer depended upon questions of fact which had to be proved, and that ought therefore to be reserved for the hearing. His honor accordingly overraled the demurrer, reserv- ing to the defendants the benefit of it at the hearing, and reserving till the hearing the costs of the demurrer. Perhaps, strictly speaking, this is not a bill of peace, as the rights of the claimants under the alleged certificates are not identic- al; but it appears to me to be within the principle of bills of this description. The rights of the numerous claimants for costs all depend upjn tl:e same question, — the validity of certificates sealed under the circumstances stated in the bill. Each of the 1,500 persons, if he obtained the certificate from Mr. Yeu- mans, might produce it to a master of one of the superior courts of common law, and ob- tain, as a matter of course, a taxation of the costs. He might then enter up judgment and sue out execution, ancl no application could be made in any of the common-law courts to stop the proceedings, although it may turn out, in the result of this suit, tl;at the cerlificatts are wholly invalid. It is true that, if the certificates have no validity, a motion might be made in the court where judgment was entered up, and from which the execution issued, to set aside that execu- tion, but not until consirleiable expense had been incurred, and possibly after the same course of proceeding to judgment and execu- tion had been taken by many of the claim- ants. It seems to me to be a very fit case, by analogy, at' least, to a bill of peace, for a court of equity to interpose and prevent the unnecessary expense and litigation which would be thus occasioned, and to decide once for all the validity or inval.dity of the cer- tificates upon which the claims of all the parties depend. The remaining question is, whether the question ought to be decided upon demurrer. It was pressed very strongly upon me that this was always considered to be a matter entirely for the discretion of the judge, and that no case could be produced in which, when it had been determined in the court below that the question ought not to be disposed of upon demurrer, tlie appeal court had over- ruled that decision. AVhether any such case can be found or not (and none has been pro- duced), it seems to me that where a judge of great experience and judgment has ar- lived at the conclusion tl at a case ought not to be decided upon demurrer, wh'jther on ac- count of its importance, or by reason of facts and circumstances which he considered uec- esfai-y to be found in order satisfactorily to decide the question raised by the bill, it would not be a proper exercise of the au- thority of an appellate court to overrule this decision, unless, it was satisfied that the whole case was open upon the demurrer. 1 agree, however, with the vice chancellor, that the question of the validity of the cer- tificates for costs is not cai able of a satisfac- tory determination without the proof of facts which are not admitted by the demurrer, and I must decline to anticipate such proof by deciding the case upon the pleadings as they stand; therefore, the vice cliancellor's order appealed from must be affirmed, and the appeal dismissed, with costs. PRINCIPLES DEFINING AND LIMITING JUHI^DICTION. 4J WALTER et al. v. SLATER. (23 AVash. Law Rep. 104.) Court of Appeals of the District of Columbia. Teb. ti, ISOd. Appeal from judgment of spbcial term of supiomo court of District of Columbia, at law, No. 33,920, Bradley, J., in favor of defendant In action of ejectment. Atlirmed. F. H. Mackcy, for appellants. J. J. Dar- lington, for appellee. Mr. Justice MORRIS delivered the opinion of the court. This is a suit in ejectment instituted by the appellants as plaintiffs in the court below against the appellee as defendant, to recover a piece of laud in the city of AA'ashington, desig- nated as lot No. S, in square No. 1,108. Un- der instruction from the court, the jury ren- dered a verdict for the defendant; and to re- \-iew that instruction the present appe;il has been prosecuted. The plaiutiU's in their declaration describe themselves as trustees, and the defendant is also described therein as a trustee. But, as the verdict was directed on the testimony of the plaintiffs, without any proof on the part of the defendant, it does not appear what trust the latter held. The plaintiffs, while suing him as trustee, did not deem it incumbent up- on them to show why tliey did so. The testimony adduced by the plaintiffs, and stated in the bill of exceptions, showed the ti- tle, so far as Uiey were concerned, to stand as follows: .-Vbraham Youug was the original proprie- tor, and received this lot, with other property, in tlie division with the United States. He died intestate, about the year 1800, leaving six children as his heirs at law. Proceedings for the partition of his estate were instituted in tlie high court of chancery of ilaryland, and this lot, among others, was assigned in several- ty to one of his sons, Richard Young, to whom it was confirmed by decree of the comt on Jan- uary lo, LSOt. Richard Young died on July 13, ISGO. having by his last will devised part of Iiis estate to his Wife and the residue to his five children. If he was then the owner of the lot men- tioned iu the declaration, which is denied by the appellee, it was included in the devise of the residue to llie children. In December of 1S8G some of the descend- ants of Richard Young executed conveyances of their supposed interest in tliis and other property to John H. Walter and Bartow L. Walker, who thereby were supposed to have become tenants in common in certain propor- tions with otlier descendants of said Richai-d Young. In October, ISST, Walter, Walker, and cer- tain of the descendants of Richard Young who joined with tliem, filed a bill in equity in the supreme court of tlie District of Columbia against others of the same descendants for a partition of a part of his estate of which tliey claimed to be in possession, and for the ap- pointment of a trustee "with authority to sell the title of the parties to the cause to such par- cels of real estate as were in adverse occupan- cy at public or private sale upon the most ad- vantageous terms for all concerned which could be secured, and with authority to bring suits and effect compromises, subject to the approval of the court." This was the prayer of the biU; and in the body of the bill it was stated that all the real oslate previously there- in described was in the possession ot the par- ties to the cause, excepting cert.iia specilied lots, including the lot claimed in this suit; and tlic.e weie stated to be "in adverse occupancy by tax or other detective titles." Commifsiou- ers were appointed; and these commissiouers made allotiuetits in severalty of the property of which the parties claimed to be in posses- sion as tenants in common. On April 4. ISSS, a decree was passed in the cause ratifying the action of the commissioners, and with re- .eard to the property stated to l.ave been held in adverse pos-^cssion, appointing Johu H.Wal- ter and Union Miller trustees, "with authority to bring such suits as may be necessary to assert the ri.ghts of the parties to this cause in and to said real estate (here the lots are enu- merated); to make such public and private sales and effect such compromises and make such conveyances as may be apiDroved by the court; and for these purposes tlie said trustees are vested with all the title of the parties to this cause in the said real estate." Subsequently, on February IG, ISSO, another bill in equity was tiled in the same court by some of the descendants of Richard Yoiuig ■who had joined in the conveyances to Walter and AA'alker, for the purpose of rescinding the transaction on the ground of fraud; with the result that their contention prevailed, and that a decree was passed on July l',(, 1S02, to the effect' that the conveyances were fraudulent and void as to the complainants, and an ac- counting was ordered. By the same deciee Franklin H. JIackey was substituted iu the place of Ouion Miller, who had aslied to be re- lieved as trustee with John H. T\'alter to cari^y into effect the purposes of the decree of April ■4, ISSS, with reference to the property lield in advei-se possession. Thereupon, on March 6, IS'JIj, Walter and Mackey, as trustees, claim- ing to act under the decree of the court of equity of April 4, ISSS. instituted this suit. At the trial the plaintiffs pioved the facts hereinbefore stated, and also offered evidence tending to show that the defendant was in possession of the property mentioned at the time of the institution of the suit. During the progress of the trial it became necessary tor the plaintiffs to prove the relationship of the descendants of Richard Young; and Lucy T. Davis, a granddaughter of Richard Youug, was called for the purpose. Having testified there- to, she was asked, upon cross-examination, whether Richard Young or his descendants had ever been in possession of the property in 42 PKIKCIPLES DEFINING AND LIMITING JURtSDICTION. suit, or paid taxes on it. or exercised any acts of ownersliiij over it. To this question she an- swered that, in so far as she knew, none of them had ever been in possession, or had ever paid any taxes on the property, or had ever exercised any acts of ownersliip over it. To the question and answer the plaintiffs object- ed, mainly on the ground that the question was not legitimate cross-examination. It was admitted, however, by the court, and this rul- ing is assigned by the plaintitfs as error. Upon the conclusion of the plaintiffs' testi- mony, counsel for defendant, upon the groimd that the equity suits offered in evidence were insufficient to vest title in the plaintiffs, and that upon the evidence plaintiffs were not entitled to recover, moved the court for an in- struction to the jury to return a verdict for the defendant. And this instruction the court gave, and verdict and judgment were ren- dered accordingly. This action of the court is ■also assigned as error, by the plaintiffs, who have prosecuted the present appeal to procure a reversal of the judgment. The principal question in this case is, wheth- er a court of eftuity, for the convenience mere- ly of the parties in interest, has jurisdiction to appoint trustees to institute suits in ejectment on behalf of persons who are fully competent to sue for themselves against persons in ad- verse possession, with authority to sell the in- terest of the parties and to make compromises and conveyances, and for those purposes to vest in the trustees of its own appointment the title of the parties in interest. And this ques- tion we have no hesitation whatever in answer- ing in the negative. It would seem to be an elementary proposi- tion of equity jurisprudence that a court of eq- uity has no power to appoint a trustee to per- foim a trust unless there is a trust in exist- ence to be performed or enforced. The prov- ince of a court of equity is to enforce trusts, not to create them; and it has no power to appoint trustees unless there is a duty to be performed which otherwise would fail of ef- fect. The very definition of a trustee neces- sarily implies this; for he is only a person to whom a trust is committed, and the trust, therefore, cannot be created by the creation of a trustee. Now, we fail to find in this case any trust for which the appointment of a trustee was ei- ther necessary or proper. The equity suit insti- tuted between the parties represented as being interested in the estate devised from Richard Young, and which resulted in the decree of April 4, 18SS, had two purposes,— one, the par- tition of so much of that estate as was in the possession of the parties; and the other, the recoveiy, by suit or compromise, of so much of it as was in adverse possession. The first was legitimate; the second was entirely be- ,vond the jiulsdiction' of a court of equity. Apar-t from the impropriety of a court of equi- ty lending itself to the conduct of suits at law apparently *-exatious,— for it does not appear, as it should have appeared if it were the fact, that the adverse r.ght sought to be attacked or overthrown had not ripened into indefeasi- ble titles, — it is not competent for a court o-f equity to appoint a trustee to institute suits in ejectment, merely because the parties so desire and because, on account of their great number. It is more convenient for them to have a trustee for the purpose. We are not aware that the convenience of parties has ever constituted a ground for the intervention of a court of equity. It was competent for the par- ties to institute such suits themselves in their own names; and if their number was too great for convenience in the prosecution of such suits, which is not apparent, they had a ready means in their own hands for the avoid- ance of the dilhculty. The assistance of a court of equity cannot be invoked for any such purpose. It has no jurisdiction in the prem- ises. The decree of April 4, 18SS, went beyond even. the prayer of the bill in the case. The bill merely sought to have trustees appointed to sell the rights of the parties and to bring suits; the decree assumed not only to appoint trustees, but to vest in these trustees the title of the parties to the cause. But this is a mat- ter of minor importance, inasmuch as, in our opinion, it would have made no difference if the bill had specifically sought to vest the title. Counsel for the appellants have argued this cause as though the question in controverey were, whether it is competent for a court of equity in a suit foi partition to vest title in severalty by its decree, independently of con- veyances by the parties releasing to each oth- er, or of au order in the decree that they should execute such conveyances. We do not undei stand that to be the question. We under- stand the question to be one very different from that,— not whether the court of equity can vest in parties to a suit in partition, who have already a title in common, a title in sev- eralty; but whether for their benefit and con- venience they can wholly divest their title and vest it in strangers as trustees to bring suits and effect compromises for them. The powers of a court of equity may be ample for the one purpose. We hold that they do not exist for the other. The case of Sharon v. Tucker, 144 U. S. 533, 12 Sup. Ct. 720, has been cited to show the ex- tent of the powers of a court of equity in this regard. There, after citation of several au- thorities to show how far courts of equity will go to aid owners of property, it was "said: "Many other authorities to the same purport may be cited. They are only illustrative of the remedies afforded by courts of equity to remove diltlcultics in the way of owners of property using and enjoying it fully, when from causes beyond their control such use and enjoyment are obstructed. The foi-m of relief will always be adapted to the obstacles to be removed. The flexibility of decrees of a court of equity \\-ill enable it to meet every emergency. Here the embarrassments to the complainants in the use and enjoyment of PRINCIPLES DEFINING AND LIMITING JURISDICTION. 43 their property are obvious and insuperable ex- cept by relief through that court." That suit was one instituted by the holder of a possessory title, that had ripened, by force of the statute of limitations, into an indefeasi- ble title, and who was in possession of the property, to establish that title as a matter of record, and to enjoin tlie defendants, who were the owners of what is called the record title, from asserting that title as heirs of the former owner. The decision in that case is a benefi- cent enlargement of a well known and recog- nized jurisdiction of a court of equity to quiet titles. The difference between it and the pres- ent case is obvious. Most assuredly the great and able jurist, who delivered the opinion of the supreme court of the Uuited States in that case, did not intend to intimate by his lan- guage as to the flexibility of the decrees of a court of equity, that that court may do any- thing that it is asked to do for the conven- ience of parties; and the opinion is not open to any such construction. On the contrary, the decision is expressly based upon the ground that tlie complainants in that case could have no relief to remove their embar- rassment except through a court of equity; while in the case of which we are treating there is not the slightest pretence that there was not tlie most complete and adequate rem- edy at law. It is also argued that, under the act of con- gress of May 8, 1876 (10 Stat. 213), whereby courts of equity were empowered to decree sales of real estate for the purpose of parti- tion, when specific partition was impractica- ble or injurious to the Interest of the parties, they were authorized, in addition to the powers therein conferred, to exercise such powers as are or may be conferred by virtue of the gen- eral equity jurisdiction of the court; and that, therefore, in addition to decreeing the specific partition that was decreed by the decree of April 4, 1888, the supreme court of the Dis- trict of Columbia, sitting as a court of equity, was authorized give the additional relief that was therein given. But plainly this con- tention is directly in the face of the statute, not in accordance with it. The provision of the statute is, that, in suits for partition, the court of equity may exercise its general equity jurisdiction, as occasion may require. But what was done here was not within the gen- eral equity jurisdiction of a court of equity, or within the jurisdiction of equity at all. As we have jilready said, and as seems to us to be perfectly clear, there is no jurisdiction in eq- uity for the appointment of trustees, merely to bring suits in ejectment or to negotiate or en- force compromises. We are satisfied that the decree of April 4, 1888, by which it was sought to appoint the plaintiffs in tliis cause as trustees and to vest in them the legal title to the property in con- troversy, was in that regard a nullity, and did not in law vest in them the legal title to such property. And, of course, it follows that, if they had not the legal title in them, they can- not recover in this suit, and that the court Jbe- low was right in so holding. The judgment of the court below is there- fore affinned, with costs. 44 PKLNCIPLES DEFINING AND LIMITING JUIUSDICXION. GALVESTON, H. & S. A. RY. CO. v. DOWB. (7 S. W. 368, 70 Tex. 5.) Supreme Court of Texas. Feb. 3, 1888. Appeal from district court, Jlayerick couuty; D. P. Marr, Judge. P. H. Ward, for appellant. J. A. Ware and West & McGovvu, for appellee. GAINES, J. This suit was brought in the court below by appellant against appel- lee for the purpose of enjoining the latter from collecting a certain .iudgment rendered in the county court of Maverick county, and from bringing separate suits on certain claims against the appellant. The question of the power of the district court to enjoin the judgment of the county court is settled by the opinion in the case between the same parties delivered by the commission- ers and adopted by this court at the pres- ent term. See Railway Co. v. Dowe, C S. W. 7SJ0. In regard to the claims upon which suits are sought to be enjoined, the petition alleges in substance that in the year 1882 certain contractors on the company's road issued to their laborers a large number of written obligations, .known as "Contractors' Time-Checks," which had been indorsed by the paj-ees in blank and assigned by them; and that defendant, Dowe, was the holder of about 30 of these, each for amounts ran- ging from $5 to ?30, and aggregating about the sum of $1,000. It is also alleged, that these claims were assigned solely by the contractors, and that the plaintiff was not a party to them in any sense, and was not liable for their payment, and further that they were barred by the statute of limita- tions, but that defendant had instituted suits upon similar demands against plain- tiff alone in the justice court, and had ob- tained judgment on them, and had threat- ened to bring in the same court one suit for each month upon one of the claims until all were sued on. The averments of the pe- tition show a perfect defense to the claims; that this defense was set up in each of the suits brought in the justice court; and that the appellant moved to consolidate the ac- tions; but that the court refused the mo- tion, and notwithstanding its defenses gave judgment in every instance against it. It also appeared from the petition that in each case, except one, the amount in controversy was less than $20, and hence there was no appeal. In the one case the amount was less than $100, and therefore the judgment of the county court in that suit was final. An exception to appellant's petition was sustained, and its suit dismissed; and this it assigns as error. It is said that the prevention of a multi- plicity of suits is a favorite ground for the interposition of a court of equity; but it appears from an examination of the au- thorities that the application and limits of the doctrine are not well defined. It had its beginning in the bill of peace, a remedy rendered necessary by the principle of the common law that a judgment in an action of ejectment in favor of the defendant was not conclusive and did not estop the plain- tiff from bringing successive suits upon the same cause of action. In order to relieve a defendant from vexatious litigation, after a judgment at law in his favor, the court of chancery permitted him to file his bill, and by its decree to preclude the plaintiff from vexing him with any further suit. The principle has been extended to cases where a great number of parties, having a common- cause of action against one, growing out of the same injury and depending upon the same questions of law and fact; and they have been permitted to join in the same action in order to prevent a multiiDlicity of suits. This rule was applied in this court in Blessing v. City of Galveston, 42 Tex. Gil, and in George v. Dean, 47 Tex. 73. Also, where numerous persons have claims of the same character growing out of the same alleged wrong against one, a bill will lie in Iiis favor against all the claimants to settle all the demands in the same suit. Water-Works v. Yeomans, L. R. 2 Ch. 8. It is also laid down that where one party holds several claims against another, growing out of the same or similar transactions, and de- pending for their determination upon the same question of law and fact, equity will enjoin seijarate suits upon the demands, provided one suit has been tried and deter- mined in favor of the complainant in the bill. 1 High, Inj. § C3 et seq.; 1 Pom. Eq. Jur. § 254 et seq. In West v. Mayor, 10 Paige, 539, a multiplicity of suits were sought to be enjoined, and the bill showed that in a suit upon one of the demands, the judgment had been against the complain- ant in the justice court, and he had ap- pealed. The chancellor dissolved the in- junction and said: "It is time that they complain that in these cases the court decid- ed the law against them, and did not sub- mit the legality of the ordinances to the jury to be decided as a matter of fact, and that they Intend to carry the question as to such legality before a higher tribunal for a de- cision. But neither of those circumstances -can give jurisdiction to this court to inter- fere before the right of the complainants is established by such higher tribunal. If they are successful there, it is not probable that the interference of this court will be necessary." In the very similar case of Railroad Co. v. Mayor, 54 N. Y. 159, an In- junction was sustained as to all suits but one, until the rights of the parties could be determined In the action which was permit- ted to be brought. In Tarbox v. Harten- stein, 4 Baxt. 78, the defendant had been an employe of the complainant, under a yeai-Iy contract, his wages being payable weekly, PIUNCIPLES DEFINJKG AND LIMITING JUKISDICTIOX. 45 anrl had been discharged before the con- tract expired, on the ground that he failed to perform the stipulations on his part. He was paid up to the time of his discharge. He brought suit for his first week's wages accruing thereafter and recovered judgmeht, which was paid. He sued again for the next week's wages, and recovered a judg- ment, from which an appeal was taken. He brought also a third suit, which had not been tried, and announced his purpose to bring a suit for each week's wages as it accrued, as long as by the terms of the con- tract it was to have continued in force. The court lield that it was an entire contract for the year, though the wages were payable by the week, and that the judgment in tlie first suit was conclusive of his rights, and precluded any further recovery, and perpet- ually enjoined him from prosecuting the ac- tions already brought, and from bringing any other. It is to be remarlved, that al- though the judgment in the second action (which was the first in which res adjudicata could have been pleaded) had gone against the complainants, and altliough they had a complete remedy at law against each succes- sive action, yet the court of chancery as- sumed jurisdiction in order to prevent vexa- tious litigation, and restrained the defend- ant from prosecuting any further suits. The decree of the chancellor was affirmed In the supreme court. In the present case the suits already brought have resulted adversely to appel- lant; and if we apply the rule that it must first have a decision in its favor, the judg- ment now appealed from must be affirmed. But we doubt if tliis rule should ever be ap- plied in cases of this particular character. The courts which have adopted it have as we think followed the analogy of the orig- inal bill of peace, without sufficient reason. In the case of a bill of peace the court of chancery interfered, because there had been a trial at law which was not conclusive, and its interposition was necessary in order to prevent vexatious litigation. That court had no power to try title to land, and hence could not entertain a bill of peace until the title had been decided at law in favor of the complainant. The object of the bill was to prevent vexatious litigation, but a judgment at law establishing the title of the complain- ant was the necessary foundation of the procedure. But the case is different where a party claiming a just defense to a multi- tude of demands held by one person against him, and all of the same character, and in- volving precisely the same questions, seeks relief against the vexation, expense, and trouble of defending so many separate ac- tions. When separate suits are brought and threatened, why await the determination of one? It seems to us that the unnecessary expense and vexation necessarily resulting from such a multiplicity of suits should be deemed a sufficient ground for the interposi- tion of the district court under our system, —that being a court of blended jurisdiction. But we need not go so far. We are not called upon to deny the doctrine applied in West v. Mayor, supra. The opinion in that case shows that from the judgment of the justice of the peace the complainants had an appeal to a court whose decision would establish a legal precedent. If it be said that a court of equity will only act after a decision favorable to the complainant in a court of law in which the judges are re- quired to be lawyers, we can see the reason of it. But we do not think this rule should be applied to judgments of the county and justice courts under our system, where the amount in controversy is not such as to permit appeals to "the appellate court." The officers who preside in these tribunals are not required to be learned in the law. Their judgments, not appealed from, are conclusive between the parties as to the sub- ject-matter of the particular suit in which they are rendered; but they cannot be held to affect in any manner any general right. Had it appeared from the plaintilf's petition that one of the suits against it had been brought in the district court, and had there been decided against it, or that from a judg- ment in the county court it had appealed to the court of appeals, and that court Irad affirmed the judgment upon the merits, tlien the presumption would have been great that it had no just defense to the other actions. Acting upon this presumption, a court of equity might well decline to interfere. But no such presumption^ arises from a judgment of the justice or county court in this state, when by reason of the amount in controver- sy there can be no appeal. Therefore, when a case for the interposition of a court of equity, in order to prevent a multiiJlicity of suits, is presented, the action of the court should not be affected by such judgments, whether it be favorable or unfavorable to the complainants. In the case of the Wa- ter-Works V. Yeomans, supra, the English court of cliancery awarded an injunction against a large number of defendants, who each held a separate claim against the com- pany, growing out of the same alleged in- jury, though no right had been established by any suit at law; and we see no reason why the relief should have been refused, if all the claims as in this case had become the property of a single holder. The rule is, that if in the tribunal, which has jurisdic- tion of the demands, there can be a consoli- dation, then it is the duty of the party to resort to this remedy, and equity will not interfere. In such a case there is an ade- quate remedy at law. But in this, though the demands separately are within the juris- diction of the justice court, the aggregate amount exceeds that jurisdiction. Hence they cannot be consolidated. Besides, in order, it would seem, to prevent even a par- tial consolidation and to increase the ex- 46 PlilNClPLES D EFINJNG AND LIMITING JUKISDICTIOK. pense, the defendant had determined to bring a separate suit to each successive term of the court. According to the allegations of the petition (which the demurrer admits to be true) it is a clear case in which the ap- pellee is about to avail himself of his right to bring separate suits in the justice court, in order to vex and harass the appellant by a multiplicity of actions; and in which the appellant has no means of protecting itself against the attempted wrong except by a resort to the writ of injunction. This rem- edy is a relief to appellant, and works no hardship to appellee, who can set up his demands in the action, and thus have the litigation determined in one proceeding. Our system of procedure is essentially equi- table in its nature, and was designed to pre- vent more than one suit growing out of the same subject-matter of litigation; and our decisions from the first have steadily fos- tered this policy. Chevalier v. Rusk, Dall. Dig. 611; Binge v. Smith, Id. 616; Clegg v. Varnell, 18 Tex. 294. ■\Ve conclude, therefore, that the excep- tions to so much of the petition as sought to enjoin the collection of the judgment of the county court should have been sustained, and that the exceptions should have been overruled to so much thereof as sought to enjoin appellee from bringing separate suits upon his demands; and that the court erred in sustaining the entire exceptions and in dissolving in whole the injunction and dis- missing the bill. For the error pointed out, the judgment is reversed, and the cause re- manded. Reversed and remanded. PRINCIPLES DEFJJflXG AND LIMITING JURISDICTION. 47 SHARON et al. t. TUCKER et al. (No. 216.) (12 Sup. Ct. 720. 144 U. S. 533.) Supreme Court of the United States. April 11, 1S02. Appeal from the supreme court of the Dis- trict of Columbia. Bill by F. W. Sharon and F. G. Newlands, trustees, against J. Randolph Tucker and others, to establish title to lands, and for an injunction. The special term entered a decree dismissing the bill, which was affirm- ed by the general term. Plaintiffs appeal. Reversed. Statement by Mr. Justice FIELD: This is a suit in equity to establish, as mat- ter of record, the title of the complainants to certain real property in the city of Wash- ington, constituting a part of square No. 1.51, and to enjoin the defendants from asserting title to the same premises as heirs of the former owner. The facts which give rise to it, briefly stat- ed, are as follows: In 182S, Thomas Tudor Tuclier died, seised of the premises in con- troversy. He had, at one time, held the office of treasurer of the United States, and resided in Washington, but at the time of his death he was a resident of South Caro- lina. The property did not pass under his will, but descended to his heirs at law. It does not appear that after his death any of the heirs took possession of the property, or assumed to exercise any control over it. In 1837 the square was sold for delinquent taxes assessed by the city against "the heirs of Thomas T. Tucker," and was purchased by Joseph Abbott, then a resident of the city. The taxes amounted to $38.70, and the sum bid by the purchaser was $250. In 1840 a tax-deed. In conformity with the sale, was made to Abbott, puiportlng to convey to him a complete title to the square. It is admit- ted that the deed was invalid for want of some of the essential preliminaries in assess- ing the property, and in advertising it for sale. It does not appear, however, that the purchaser had any knowledge of this in- validity. Early in the following year, 1841, he took possession of the square, and in- closed it with a board fence and a ditch with a hedge planted on one side of it. It Avas a substantial inclosure, sufficient to turn stock and keep them away. He was a sta- ble-keeper, and, in connection with this busi- ness, cultivated the ground and raised crops upon it in 1841. From the time he took pos- session until 1854 the square was inclosed, and each season it was cultivated. In 18j4 he leased the square to one Becket for the period of 10 years at a yearly rent of $100. Becket took possession under his leaf:e, and kept the ground substantially inclosed, and he occupied and cultivated it from that time up to 1862. In the fall of that year, soldiers of the United States, returning from the campaign in Virginia, were encamped upon the square-; and, as it appears, they com- mitted such depredations upon the fence, buildings, and crops that the lessee was obliged to abandon its cultivation. Abbott died in April, 1801, and by his will devised the square to his widow. In August. 1863, she sold and conveyed it to one Perry; and he kept a man in charge of the same, who- lived in a small building which Becket had built and occupied during his lease of the premises under Abbott. In 1808 Pesfy sold the entire square to Henry A. Willi*-d for the consideration of $17,000. He divided the square into small lots for buildings for resi- dences, and upon one side of the square, fronting on T street, erected 12 substantial dwelling-houses, which have been since oc- cupied up to the commencement of this suit- In 1872 Willard sold and conveyed a portion of the square, the premises in controversy, to J. M. Latta, trustee, for a valuable con- sideration; and from him the title has pass- ed by regular conveyances to the complain- ants herein. From 1840 to 1863 the square was chiefly valuable for agricultural pur- poses; but since then, and especially of late years, its only value has been for buildings as residences, and has been so regarded by its owners. From 1840 up to the present time the taxes upon the property have been paid by Abbott and his successors in in- terest. None of the heirs of ilr. Tucker, nor any one claiming under the heirs, has paid or offered to pay any taxes assessed on the property; nor since that date, up to the com- mencement of these suits, have any of the defendants therein, or their predecessors in interest, asserted any claim to the propei'ty or interest in it, or attempted in any way to interfere with its possession or control. Soon after the sale to Perry, in 1863, the tax-deed was passed upon by eminent coun- sel in the District, — the late Richard S. Coxe and James M. Carlisle, — and the title by it was pronounced by them to be indisputable. It was only a short time before the institu- tion of this suit that the invalidity of the tax-deed as a source of title M'as ascer- tained. A desire to dispose of the property led the complainants to have an investiga- tion made, and an abstract of title obtained. It was then discovered that they could not obtain any abstract of title which purchas- ers would accept, in consequence of certain defects in the assessment of the taxes, un- der which the sale was made and the deed to Abbott was executed. They were conse- quently embarrassed and defeated in their efforts to dispose of the property. To re- move this embarrassment, this suit was ac- cordingly brought by the complainants to obtain a judicial determination of the validi- ty of their title, and an Injunction against the defendants claiming under the previous owner. There was no substantial disagreement be- tween the parties as to the facts, but the de- fendants insisted and relied solely upon the ground that a court of equity could afford 48 PKINCU'LES DEFINING AND LIMITING JURISDICTION. no relief to the complainants, because they were not at the commencement of the suit in actual possession of the premises. The court below, at special term, sustained this view, and entered a decree dismissing the bill. At general term it affirmed that de- •cree, and to review this last decree the case is brought here by appeal. C. J. Hillyer and J. H. Ralston, for appel- lants. Henry Wise Garnett and Eppa Hun- ton, for appellees. Mr. Justice FIELD, after stating the case, delivered the opinion of the court. The title of the complainants is founded upon the adverse possession of themselves and parties through whom they derive their interests, under claim and color of title, for a period exceeding the statutory time which bars an action for the recovery of land with- in the District of Columbia. The statute of limitation to such cases in force in the Dis- trict is that of 21 Jac. I. c. IG. That statute, passed "for quieting of men's estates and avoiding of suits," among other things, de- clared that no person or persons should at any time thereafter make any entry into any lands, tenements, or hereditaments but with- in 20 years next after his or their right or title shall thereafter have first descended or accrued to the same, and that in default thereof such persons not entering, and their heirs, should be utterly excluded and de- tarred frcjm such entry thereafter to be made, any former law or statute to the con- trary notwithstanding. Twenty years is therefore the period lim- ited for entry upon any lands within this District after the claimant's title has ac- crued. After the lapse of that period, there is no right of entry upon lands against the party in possession, and all actions to en- force any such alleged right are barred. Complete possession, the character of which is hereafter stated, of real property in the District for that period, with a claim of own- ership, operates, therefore, to give the occu- pant title to the premises. No one else, with certain exceptions,— as infants, married wo- men, lunatics, and persons imprisoned or beyond the seas, who may bring their ac- tion within 10 years after the expiration of their disability,— can call his title in ques- tion. He can stand on his adverse Dosses- slon as fully as if he had always held the undisputed title of record. The decisions of the courts have determin- ed the character of the possession which wiU thus bar the right of the former owner to recover real property. It must be an open, visible, continuous, and exclusive pos- session, with a claim of ownership, such as will notify parties seeking information upon the subject that the premises are not held in subordination to any title or claim of others, but adversely to all titles and all claimants. In the present cases the adverse possession of the grantors of the complainants, suffi- cient to bar the right of previous owners, la abundantly established, within the most strict definition of that term. The objection of the defendants to the jurisdiction of a court of equity in this case arises from confounding it with a bill of peace and an ordinary bill quia timet, to neither of which classes does it belong, nor is it governed by the same principles. Bills of peace are of two kinds: First. Those which are brought to establish a right claim- ed by the plaintiff, but controverted by nu- merous parties having distinct interests orig- inating in a common source. A right of fishery asserted ' by one party, and contro- verted by numerous riparian proprietors on the river, is an instance given by Story where such a bill will lie. In such cases a court of equity will interfere and bring all the claimants before it In one proceeding to avoid a multiplicity of suits. A separate action at law, with a single claimant, would determine nothing beyond the respective rights of the parties as against each other, and such a contest with each claimant might lead to interminable litigation. To put at rest the controversy, and determine the ex- tent of the rights of the claimants of distinct interests in a common subject, the bill lies, which is thus essentially one for peace. Sec- ond. Bills of peace of the other kind lie where the right of the plaintiff to real prop- erty has been unsuccessfully assailed in dif- ferent actions, and is liable to further ac- tions of the same character, and are brought to put an end to the controversy. "The equi- ty of the plaintiff in such cases arose," as we said in Holland v. Challen, 110 U. S. 15, 19, 3 Sup. Ct. 495, "from the protracted liti- gation for the possession of the property which the action of ejectment at common law permitted. That action being founded upon a fictitious demise, between fictitious parties, a recovery in one action constituted no bar to another similar action, or to any number of such actions. A change in the date of the alleged demise was sufficient to support a new action. Thus the party in possession, though successful in every in- stance, might be harassed and vexed, if not ruined, by a litigation constantly renewed. To put an end to such litigation, and give repose to the successful party, courts of equity interfered and closed the controversy. To entitle the plaintiff to relief in such cases the concurrence of three particulars was es- sential: He must have been in possession of the property; he must have been dis- turbed in its possession by repeated actions at law; and he must have established his right by successive judgments in his favor. Upon these facts appearing, the court would interpose and grant a perpetual injunction to quiet the possession of the plaintiff against any further litigation from the same source. It was only in this way that ade- quate relief could be afforded against vexa- tious litigation, and the irreparable mischief i'JilNClPLES DEFINING AND LIMITING JUUISDICTION. 49 whioh It entailed. Adams, Bq. 202; Pom. Rq. .Tur. § 24S; Stark v. Starr, 6 Wall. 402; (.'urtis V. Sutter, 15 ('al. 259; Shepley v. RaiiKol.v. 2 ^^'!U•e, 242. Fed. Gas. No. 12,75G; Devonsher v. Nowenliaui. 2 Scboales & L. ldC<.' It is only where bills of peace of this kind — more commonly designated as bills to rouuive a clond on title and quiet the pos- session to real property— are brous'ht that proof of the complaiuanfs actual possession is necessary to maintain the suit. Frost v. Spltley, 121 V. S. r..">2, X,{\. 7 Sup. Ct. 1129. There is no controversy such as here stat- ed in the present ease. The title of the com- plainants is not controverted by the defend- ants, nor is it assailed by any actions for the possession of the piopevty. and this is not a suit to put an end to any litisation of the kind. It is a suit to estaVilish the title of the complainants as matter of record, — that is. by a judicial determination of its validity.— and to enjoin the assertion by the defendants of a title to the same property from the former owners, which has been lost by the adverse possession of the par- ties through whom tlie complainants claim. The title by adverse possession, of course, rests on the recollei-tion of witnesses; and, by a judicial determination of its validity against any claim imder the former ownei-s. record evidence will he substituted in its place. Embarrassments in the use of the property by the present ownere will be tlms removed. Actual possession of the proper- ty by the complainants is not essential to maintain a suit to obtain in this way record evidence of their title, to which tlioy can refer In their efforts to dispose of the prop- erty. The difference between this case and an onlinary bill quia timet is equally marked. A bill quia timet is generally brought to prevent futiu'e litigation as to property by i-emoving existing causes of controversy as to its title. There is no controversy here as to the title of the complainants. The ad- verse possession of the parties through whom they claim was complete, within the most exactin.s judicial definition of the term. It is now well settled that, by adverse pos- session for the period designated by the statute, not only Is the remedy of the former owner gone, but his title has passed to the occupant, so that the latter can iiinintain ejectment for the possession against such former owner, should he intrude upon the premises. In several of the states this doc- trine has become a positive rule by their statutes of limitations, declaring that uniu- terruijted possession for the period desig- nated to bar an action for the recovery of land shall of itself constitute a complete title. Letling^-ell v. Warren, 2 Black, 500; Campbell v. Holt, 115 U. S. 020. 623. 6 Sup. Ct. 209. "As a general dooti'ine." says Angell in his treatise on Limitations, "it has too long teen established to be now in the least de- SnEP.EQ.Jl 1!.— 4 gree controverted that what the law deems a perfect possession, if continued without in- terniption during the whole period which is prescribed by the statute for the enforce- ment of the right of entry, is evidence of a fee. Independently of positive or statute law, the possession supposes an acquies- cence In all persons claiming an adveist in- terest; and upon this acquiescencs is found- ed the presumption of the existence of some substantial reason, (though perhaps not known,) for which the claim of an adverse interest was forborne. Not only every le- gal presumption, but every consideration of public policy, requires that this evidence of right should be taken to be of very strong, If not of conclnsi\e. force." Page 3S4. As the complainants have the legal right to the premises in controversy, and as no parties deriving title from the former own- ers can contest that title with them, there does not seoni to be any just reason why tlie relief piayed should not be granted. .Such relief Is among the remedies often ad- ministered by a court of equity. It is a part of its ordinary jurisdiction to perfect and complete the means by which the right, estate, or interest of parties. — tliat is, their title, — may be proved or secured, or to re- move obstacles which hinder its enjoyment. 1 Pom. E(i. .lur. § 171. The form of the remedy will vary according to the particu- lar circumstances of each case. "It is ab- solutely Impossible," says Pomeroy, in his treatise, "to enumerate all the special kinds of relief which may be grautett. or to place any bounds to the power of the courts In shaping the relief In accordance with the circumstances of particular cases. As the nature and incidents of proprietary rights and interests, and of the circumstances at- tending them, and of the relations arising fi'om them, are practically unlimited, so are the kinds and forms of specific relief appli- cable to these circumstances and relations." , In Blights Heirs v. Banks. 6 Mon. 192, a bill was filed by the complainant to supply the want of certain reconls or conveyances under which he claimed title, said to have been executed and lost. A patent had been issued by the commonwealth of Virginia for a large amount of property, which, by vari- ous Intermediate conveyances, had become vested in the complainant. TTiese convey- ances had not been recorded, and on that ground the complainant alleged that his ti- tle was in jeopardy from creditors and in- nocent purchasers: that with great dithculty any title could be establislied at law. be- cause the conveyances could not be given in evidence without parol proof; and that some of the witnesses were dead, and some of the original conveyances were lost, and could not be found. His prayer was that his title might be renjiered complete as a recorded title by the decree of the chancellor. The fii-st question made in the case by the de- fendant was as to the jurisdiction of the 50 PRINCIPLES DEFlNmG AND LIMIT. MG JURISDICTION. court. It Avivs contended that sucli omissions in completing a defective title were general- ly ihe fault of the grantees, and that equity would not sustain a bill for that purpose. But the court of appeals of Kentucky re- plied that it could not doubt the propriety of the interference of the chancellor in such case. "Equity," said the court, "will fre- quently interfere to remove difficulties in land titles, where a party cannot proceed without difficulty at law, where the con- veyances are lost or in the possession of the opposite party, or where the parties are numerous and the proof hard of access; and in many such cases it will lighten the bur- den, and settle many controversies, and bring them into a small scope. And where the title is purely legal, for such and similar causes to those we have enumerated, equity has carved out a branch of jurisdiction, and a class of bills, termed in the books 'eject- ment bills,' in which not only the title is made clear, but the possession decreed also. No reason is perceived by us why the pi'es- ent case is not within the spirit of these cases. The difficulties in an unrecorded ti- tle, especially if it is derived through a long chain of conveyances, are familiar to our courts in this country. The danger to which the title is exposed from two classes of per- sons, creditors and subsequent purchasers, is often great, and the facilities afforded from a title which can be read in evidence without other proof than the authentication annexed are felt by every one who has to bring his title into court for attack or de- fense; and the present case will furnish a good comment on the propriety of the inter- ference of the chancellor." The court there- fore decreed the relief prayed. On a petition for a rehearing it reviewed its former opin- ion, the main point of which was the juris- diction of the court of equity over the bill, and said: "It is true that bills to make legal titles which are valid against all the world, ex- cept two descriptions of persons, recorded titles, find thus to protect them from credit- ors and innocent purchasers, have not been frequent. But, if such bills cannot be al- lowed under one state of conveyances, it must certainly be said that there is a defect of justice in our country. A court of com- mon law can give no relief in such a case; and, if equity cannot do it, then is the case a hopeless one. If, however, the principles which govern courts of equity are examined, it will be found that there are many circum- stances in this case, independent of defective conveyances, which sustain the jurisdiction." See, also, Coal Co. v. Doran, 142 U. S. 417, 449, 12 Sup. Ct. 239. In Hord v. Baugh, 7 Humph. 576, a bill was filed by the complainant, asking the aid of a court of chancery to set up a deed of bargain and sale, which was lost or destroy- ed before registration; the bargainor having died without executing another. The chan- cellor below dismissed the bill upon the ground that the bargainor, having once con- veyed the land, had parted with all his in- terest therein, and that the court had no- jurisdiction of such a case. But the supreme court of Tennessee thought the chancellor erred, saying: "The loss of the deed is a casu- alty seriously endangering the complainant's- title, as he can maintain no action of eject- ment without it. He then certainly must have a right to ask the aid of a court of chancery in his case, either by having the legal title vested in him as against the bar- gainor and his representatives, or by having the deed set up and established as in all other cases of lost deeds. The complainant may have his decree for either or both of these remedies." In Montgomery v. Kerr, 6 Cold. 199, the same court sustained a bill and established the complainant's title where a deed of the property had been lost. The decree was that the complainant was entitled, by virtue of and under his deed, to hold the premises in fee-simple, and that the defendant had no right, title, or interest therein. In Bohart v. Chamberlain, 99 Mo. 622, 13 S. W. 85, the proof showed that a deed of trust which had been executed by defendant to the plaintiff had been subsequently lost without being recorded. The court, on be- ing satisfied of the correctness of the find- ing of the lower court to this effect, said: "No doubt is entertained that a court of equity would have jurisdiction to afford the relief prayed for in the petition. One of the most common interpositions of equity is in the case of lost deeds and instruments. A court of equity, in case of the loss of an in- strument which affects the title or affords a security, will direct a reconveyance to be made. Citing Stokoe v. Robson, 19 Ves. 3S.j; 1 Stoi-y. Eq. Jur. §§ 81, 84; Lawrence v. Lawrence, 42 N. H. 109; 1 Madd. Ch. Pr. 24; Fonbl. Eq. c. 1, § 3." And the coiu-t added that "under the authorities cited the lower court might have directed a re-execution of the deed of trust; but, as its powers were flexible, it could accomi)lish the same object by a declaratory decree establishing the ex- istence of the deed in question. 2 Pom. Eq. Jur. § 827; Garrett v. Lynch, 45 Ala. 204; 1 Pom. Eq. Jur. §§ 171, 429." Many other authorities to the same pur- port might be cited. They are only illus- trative of the remedies afforded by courts of equity to remove difficulties in the way of owners of property using and enjoying it fully, when, from causes beyond their control, such use and enjoyment are ob- structed. The form of relief will always be adapted to the obstacles to be removed. The flexibility of decrees of a court of eq- uity will enable it to meet every emergency. Here the embarrassments to the complain- ants in the use and enjoyment of their prop- erty are obvious and insuperable except by relief through that court. No existing PKINCIPLES DEPINIMG AND LlMlTiNG J UK SDICTIOK. 51 rights of the defendants will be impaired by granting what Is prayed, and the rights of the complainants will be placed in a condi- tion to be available. The same principle which leads a court of equity, upon proper proof, to establish by its decree the existence of a lost deed, and thus mal^e it a matter of record, must justify it, upon like proof, to declare by its decree the validity of a title resting in the recollection of witnesses, and thus make the evidence of tlie title a matter of record. It is therefore ordered that the decree of the court below be re- versed, and the cause remanded to that (-niu't. with directions to enter a dfciee deciariiiv;- the title of the complainants to tlie prem- ises described in their complaint, by advei se possession of the parties through whom they claim to be complete, and that the defend- ants be enjoined from asserting title to the said premises through tlieir former owner. Each party to pa>- his own costs. 52 PlilNCIPLES DEFiNING AND, LIMITING JURISDICTION. T\'ARREN MILLS v. NEW ORLEANS SEED CO. (4 South. 298, 65 Miss. 391.) Supreme Court of Mississippi. April 23, l&SS. Appeal from cliancery 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 thi-oughout 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 •distributes; and the agents of the Warren Mills use the sacks of the appellee, which are plainly branded with its name, for the purijose of shipping cotton-seed to the AVar- 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, acrainst 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. Loa & JIcKee, for appellant. Miller, Smith & Hirsh, for appellee. AIIXCJLD, 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 pai-ty 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 eifects, 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. Eg. Jur. § 1357. The separate remedy at law for each of such tresijasses 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 iu the court below. THE MAXIMS OF EQUIXY". RBE3 V. OITY OF WATBRTOWN. (19 Wall. 107.) Supreme Court of the United States. 18T3. Mr. Justice HUiJ^T delivered the opinion of the court. This case is free from the ol)jections usual- ly made to a recovery upon municipal bonds. It is beyond doubt tliat the bonds were issued by the authority of an act of the legis- lature of tlie State of Wisconsin, anil in the manner prescribed by the statute. It is not denied that the railroad, in aid of the con- struction of vyhich 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. Tliey are based upon the idea that a refusal to pay an honest debt is justitialiie because it would distress the debtor to pay it. A vol- untary refusal to pay an honest debt is a high offtnue 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 power to impose burdens and raise money is the highest attribute of sovereignty, and is exercised, flist, to raise money for public 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 Superoinors v. Sogers,* 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 jpresent, 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 disuharge the duty enjoined by the peremptory writ which the defendant had refused to perform, and for which refusal be 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 authoiized 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 Slate 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 Supervisor* V. Rogers is, therefore, of no authority in the case before us. The appropriate remedy of the plaintiff was and is a writ of nian- daraus.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 ease it has been thus far unavailing, and the prospect 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. lu Welch V. St. Qenecieve* 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 , theauihority of the case. No counsel ap- ! pearedfor the city (Mr. Reynolds as amicus 1 ciiriw 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 i execution of the order suspended for three- I months to give the corporation an oppor- tunity to select officers and itself to levy and collect the tax, with the reservation of a I longer suspension if it should appear advis- } able. The judge, in delivering the opinion of the court, states tli;it the case is without precedent, and cites in support of its de- cision no other cases than that of Rlggs v. Johnson County,**- and Lansing v. Treas- urer.X The first case cited does not touch the present point. The question in tliiit 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- lt is probable that the case of Supercisors v. Rogers^ 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 V. Johnson County, 6 Wallace, 193. *10 Am. Law Reg. (N. S.) .513, Fed. Cas. No. IT,- 373. **6 Wallace, 166. P Am. Law Reg. (N. S.) 415, Fed. Cas. No. 16,538. §7 Wallace, 175. 54 THE MAXIMS OP EQUITT. and was rightly decided because autliorized by the express statute of tlie 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 tlie circumstances existing In tliis 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 paypieut of the plaintiff's debt without tlie 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 VVatertown to the payment of the plaintiff's judgment; direct the marshid to mal^e 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 tliemselves. This theory has many dilliculties 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 tlie 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 Bnd several debtors with the corporation, nor does their property stand in that relation to the corporation or to the creditor. This is not tlie theory of law, even in regard to tax- ation. The block of buildings we liave 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. Tlie residue of the tax is to be obtained from other sources. Tliere 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 individualorcorporalion, 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 applcable 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 existenc» wlien 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 contract 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 tliat all legal remeJies having failed, the courtof 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. Tlie difficulty arises from to» broad an application of a general princi|ile. The great advantage possessed by the court of chancery is not so much in its enl.irced 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 u City of Quincy, 4 Wallaoe, 535. tCooley, Constitutional Limitations, 385, 287. tCooley, Constitutional Limitations, 2S5. THE MAXIMS or EQUITY. 65 3onscience and moral duty only, unconnpclpfl with legal obligations. Judge Story says.f "There are cases of fraud, of Hccident. and ■of trust which neither courts of law nor of equity presunne to relieve or to mitigate," of which he cites many instances. Lord Tal- bot says:J "There are cases, indeed, in which « court of equity gives remedy where the law gives none, but where a particular remedy is given by law, and that remely bounded and ciicumscribed 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 witliout 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 duly in refusing to raise the amount by taxation, it does not follow that this court may order the amount to be made from Uie 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 suoh 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 Charta, 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 "i| 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 .-taces is brought in form against the inhabitants 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 liave 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 Was',* em States.^ So far as it rests upon the rule 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 compul'^ory taxation to satisfy judgments asrainst a town or city. {5 Tlie general principle of law to which we have adverted is not disturbed by these references. It is applicalde to the crise be- fore us. Whether, in fact, the individual has a defence to the debt, or by way of ex- emption, or is without defence, is not im- portant. To assume tliat 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. Gilman, 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 paymeTit, while those, l)y whose fault the burden has been imposed, may be entirely relieved of responsiliility. . . . To enforce this right ajainst 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 misiht 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 sudicient value for that pur- pose. The difficulty and the embarrassment aris- ing from an apportionment or contribution among those bound to malie 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 tlie citizens to collect the-debt of the city, a court of equity could make the appor- tionment mure conveniently than could a court of law. I tl i^:juity Jurisprudence, % 61. tUcai'di). Stanford, Cases Tempore Talbot, 1T4. * 1 Story's Equity Jurisprudence, S UO. ** Weslervelt v. Gregg, 13 New York, 20'J. Jib. *See the cases co'lected in Cooley'a Constitu tional Limitations, 2iU-'i4d. I Russell V. Men of Devon, 2 Term R. 667. H See Emeric v. Gilman, 10 California, 408, where all the cases are collected. SCooley's Constitutional Limitations, 210. 1 I iBtury's l!,quily Jui'isprudtnue, § 4To and on- vvuids. 56 THE MAXIMS OF EQUITY. We apprehenij, also, that there is some confusion in tlip plaintiff'a proposition, upon which the piesent jurisdiction is cliiimed. 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, tlie regular nmc'dy in a case like the present, and or- dinarily it is adequate and its results are satisfactory. Tlie plaintiff alleges, however, in the present case, tiiat he has issued such a writ on tliree different occasions; that, by means of the aid afforded by the legisla- ture aud by the devices and contrivances set fortli in tlie hill, tlie writs have been fruit- less; that, in fact, tliey 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 proceedinsf. 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 iu Central New York combinations of settlers and tenants disguised as In^Jians, and calling tlieraselves 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 iiardly 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 remelies r( m lined 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 principlp. TUe legal remedy is ade- quate and complete, and time and the law must perfect its execution. Enleitaining the opinion that the plainliff has been unreasonably obstructed in the pur- suit of his legal remedies, we should be quite willing to give him the aid re juesti d if the law permitted it. We cannot, however, tind authority for so doing, and we acquiesce in the conclusion of the court below that the bill must be dismissed. Judgment affiriied. THE AIAXIiLS OF J QUITY. 57 HOWARD V. HARRIS. (1 Vern. 190.) Court of Chancery. Nov. 6, 1683. Mr. Howard settles a jointure on plaintlfC, his lady before marriage, which proving de- fective, and not value according to the mar- riage agreement, he therefore afterward makes her an additional jointure of other lands; and afterward Mr. Howard, in 1673, makes a mortgage to the defendant Harris, for securing £1,000, with interest, in which (amongst others) part of the lands belonging to the additional jointure was comprised; and in the mortgage there is a special clause of re- demption, viz. that if Mr. Howard, or the heirs males of his body, should, in June, 16SG, pay the principal sum of £1,000, and £60 per ann. interest in the meantime, then Mr. How- ard or the heirs males of his body might re- enter; and Mr. Howard covenants that no one but he or the heirs males of his body should be admitted to redeem this mortgage, and likewise covenants to pay the £1,000 on the day of , in the year 1686, and £60 per ann. interest in the meantime, by half- yearly payments from the date of the mort- gage. Mr. Howard dies without issue. The plaintiff being a jointress of part of the mort- gaged lands, and so entitled to redeem the whole, in 1677 exhibits her bill to redeem this mortgage. The defendant, by answer, insists the lands are now become irredeemable. This cause was heard before the Lord Chancellor Nottingham, and now, upon the defendant's petition, came to be reheard before the lord keeper, and was by them both decreed for the plaintiflf. For the plaintiff it was insisted: 1st. That restrictions of redemption in mort- gages have been always discountenanced in this court, and it would be a thing of mis- chievous consequence should they prevail; for then it would become a common practice and a trade among the scriveners so to fetter the m.ortgagors as to make it impracticable for them to redeem according to the precise let- ter of the agreement; and the plaintiff's counsel insisted that there was no more in this case against redemption than there was in eveiy mortgage. It is true, here is an ex- press covenant that none but Mr. Howard, or the heirs males of his body, should redeem; and in every mortgage there is a proviso that, in case the money be not paid by such a day, the mortgagee shall hold the land discharged, and, not only so, but there is likewise an ex- press covenant for further assurance; so that in every mortgage the agreement of the par- ties upon the face of the deed seems to be that a mortgage shall not be redeemable after for- feiture. 2dly. It was argued that it was a maxim here that an estate cannot at one time be a mortgage, and at another time cease to be so, by one and the same deed; and a mort- gage can no more be irredeemable than a dis- tress for a rent charge can be irrepleviable. The law itself will control that express agree- ment of the party; and by the same reason equity will let a man loose from his agree- ment, and will, against his agreement, admit him to redeem a mortgage. 3dly. It is another standing rule that a mortgage cannot be a mortgage of one side cnly.i And here it is plain, Jlr. Harris may make it a mortgage, for he has a covenant for the repayment of his mortgage money. And for precedents was cited the case of Kilving- ton V. Gardiner, who was to redeem at any time in his Ufetime, and Sir Robert Jason's Case (Jason v. Eyres, 2 Gh. Cas. 33). For the defendant it was insisted that this express agreement of the parties ought to be- pursued, and they pretended the same was made upon good consideration, viz. that the defendant Harris had formerly purchased those very lands from Sir Robert Howard, father of the plaintiff's husband, who pretend- ed himself to be seized in fee; but this land was afterwaid evicted, upon pretence that Sir Robert was only tenant for life; and the reason of this special clause of redemption was that, in case Mr. Howard should have is- sue male, the estate might remain in the family; but, if he had none, it should be left to the defendant as something toward a com- pensation for the loss in his purchase, and Mr. Harris was to submit to the loss, and not to question Mr. Howard's title. But, as to this, they had not a word of it in proof, saving only that the defendant had made such a purchase, but not that this was the consider- ation of the agreement; and it likewise ap- peared that Mr. Howard claimed by an an- cient settlement from the Lord Suffolk, and not by any settlement made by his father, Sir Robert. Then it was insisted that this additional jointure was voluntarj', and the plaintiff ought not to take the estate out of the hands of a purchaser. But it was answered he was a purchaser for no more than his mortgage money, and one that comes in by a voluntary conveyance may redeem a mortgage; and if the additional jointure was voluntary, so like- wise was the agreement that none but Mr. Howard or the heirs males of his body, should redeem; and that was subsequent to the ad- ditional jointure. And it is further urged, that the mortgaged estate is a reversion after lives only, and is at present but £7 per ann.; and that Mr. Harris did actually borrow the mortgage-money to lend on this reversion; and it could not be presumed he would have so done, unless it had been in consideration that this mortgage had been made in a spe- cial manner redeemable. But it was an- swered that possibly the defendant might de- 1 Vide Bxton v. Greaves, 1 Vern. 138; com- pletely mutual, Talbot v. Braddill, Id. 183; yet a mortgage is not in all cases, Id. 395. 58 THE MAXIMS OF EQUITY. sign such a catching bargain of this mort- gage; but that was a sort of circumvention, and the worst part of the case. After long debate the lord keeper decreed tlie mortgage should be redeemed, the rather for that the defendant had a covenant for re- payment of his mortgage moneys; but said, if the case had been that a man had borrowed money of his brother, and had agreed to make him a mortgage, and that, if he had no is- sue male, his brother should have the land, sucli an agreement, made out by proof, might well be decreed in equity. But then, for the •defendant, the mortgagee, it was insisted that, this mortgage having been made ten years since, and of a reversion, where £7 per ann. rent was only reserved, that in this case the defendant ought to have interest upon inter- est, otherwise he would be a great loser in this case. But as to that it was answered that the plaintiff's bill to redeem was filed so long since as 1677, and that the defendant had by -answer opposed the redemption; and thei'e- fore, from that time, he had no pretence to :an allowance of interest for his damages. And it was never known in this court that interest upon interest was at any time allowed in any case. But the lord keeper was clear of opinion that as to so much interest as was reseiTCd in the body of the deed, that should be reckoned principal; 2 for, it being ascer- tained by the deed, an action of debt would lie for it, and therefore it was reasonable that there should be damages given for the non- payment of that money. And whereas it was urged that this had never been practiced, and that there was not any such precedent in the court, and that, if this were to be es- tablished for a rule, every scrivener would reserve all his interests half-yearly, from time to time, as long as the money should be con- tinued out upon the security, which would be to change the law and practice in this court, and make all mortgagors pay interest upon interest. But the lord keeper said he was clear in that distinction between debt and damages; and he saw no inconvenience that could ensue; it would serve only to quicken men to pay their just debts; and accordingly decreed that, after a deduction of the yearly rents of the mortgaged premises out of the £G0 a year, payable for the interest, the de- fendant should be allowed interest for the residue of the said £60 a year, for which the defendant might have sued at law and re- covered damages. » See Thornhill v. Evans, 2 Atk. 330. THE MAXIMS OF EQU TY. 59 PETJGH V. DAVIS. (96 U. S. 3'd2.) ■Sapreme Court of the United States. Oct., 1877. Appeal from the supreme court of the Dis- trict of Columbia. This was a suit In equity, brought June 28, 1809, to redeem certain real property in Wash- ington City. The defence cousisted in an al- leged release of the equity of redemption, to establish which, in addition to the testimony of the parties, the defendant relied principal- ly upon the following paijers: "Whereas the undersigned, Samuel A. Peugh, of the city of Washington, in the Dis- trict of Columbia, having heretofore sold and conveyed to Henry S. Davis, of the said city, two certain squares of ground in said city, the same being squares numbered nine hundred and ten (910) and nine hundred and eleven (911) in the said city, the said sale and convey- .ance having been by the said Peugh made with full assurance and promise of a good and in- defeasible title in fee-simple, though the said conveyance contains only a special warranty, the said conveyance to said Davis bearing date on the fourth day of Blarch, A. D. 1857, and being recorded on the seventh day of September. A. D. 1857. "And whereas the title to the said squares so conveyed as aforesaid to said Davis having been now questioned and disputed, the said Peugh doth now, for himself, his heirs, ex- ecutors, and administrators, promise, cove- nant, and agree to and with tlie said Henry S. Davis, his heirs and assigns, in the manner following; that is, that he, the said Samuel A. Peugh, and his heirs shall and will war- rant and forever defend the saia squares of ground and appurtenances as conveyed, as aforesaid, unto the said Henry S. Davis, his heirs and assigns, from and against the claims of all persons whomsoever. "And, further, that the said Peugh, and his Jieirs, executors, and administrators, shall and will pay and refund to said Davis, his heirs or assigns, all and singular the loss, costs, damage, and expenses, including the consid- eration in said deed or conveyance, which or to which the said Davis, his heirs or assigns, shall lose, incur, pay, or be subject to, by rea- son of any claim or litigation against or on account of said squares of ground, or either ^f them. "And for the full and faithful observance and performance of all the covenants and Agreements aforesaid, and for the payment of all the sum or sums of money as therein provided, in the manner prescribed as afore- said, the said Samuel A. Peugh doth hereby l)ind himself, his heirs, executors, and ad- ministrators, and each and every of them, firmly by these presencs. "In testimony whereof, the said Samuel A. Peugh doth hereto so set his hand and seal on this ninth day o^ February, in the ye.ir ol' o.ir Lord 1858. S. A. Peugh. [Seal.] "Signed, sealed, and delivei'ed in the pres- ence of Francis Mohun. Wm. H. Ward." "Washington, D. C, Feb. 9, 18o8. "Received of Henry S. Davis $2,O0j. the same being in full for the purchase of squares Nos. 910 and 911 in the city of Washington. "$2,000. S. A. Peugh." The other facts sufficiently appear in tlie opinion of the court. The decree at special term dismissing the bill was at general term affirmed; and the complainant appealed to this court. Richard T. Merrick and T. T. Crittenden, for appellant. Mr. Justice FIELD delivered the opinion of the court. This is a suit in equity to redeem certain property, consisting of two squares of land in the city of Washington, from an alleged mortgage of the complainant. The facts, out of which it arises, are briefly these: In March, 1857, the complainant, Samuel A. Peugh, bor- rowed from the defendant, Hem-y u. Davis, the sum of $2,000, payable in sixty days, with interest at the rate of three and three- fourths per cent a month, and executed as security for its payment a deed of the two squares. This deed was absolute in form, purporting to be made upon a sale of the prop- erty for the consideration of the $2,000, and contained a special covenant against the acts of the grantor and parties claiming under him. This loan was paid at its maturity, and the deed returned to the grantor. In May following, the complainant borrow- ed another sum from the defendant, amount- ing to $1,500, payable in sixty days, with the same late of interest, and as security for its payment redelivered to him the same deed. Upon this sum the interest was paid up to the 6th of September following. The princi- pal not being paid, the defendant placed the deed on record on the 7th of that month. In January, 1858, a party claiming the squares under a tax title brought two suits in eject- ment for their recovery. The defendant thereupon demanded payment of his loan, as he had previously done, but without success. On the 9th of February following, the com- plainant obtained from the defendant the fur- ther sum of $500, and thereupon executed to him an instrument under seal, which recited that he had previously sold and conveyed to the defendant the squares in question; tliat the sale and conveyance were made with the assurance and promise of a good and inde- feasible title in fee-simple; and that the title was now disputed. It contained a general covenant warranting the title against all par- ties, and a special covenant to pay and re- fund to the defendant the costs and ex- penses, Including the consideration of the 60 THE MAXIMS OF EQUITY. deed, to which he might be subjected by rea- son of any claim or litigation on account of the premises. Accompanying this instrument, and bearing the same date, the complainant gave the defendant a receipt for $2,000, pur- porting to be in full for the purchase of the land. The question presented for determinanon is whether these instruments, taken in con- nection with the testimony of the parties, had the effect of releasing the complainant's equity of redemption. It is insisted by him that the $500 advanced at the time was an additional loan, and that the redelivered deed was security for the $2,000, as it had previously been for the $1,500. It is claim- ed by the defendant that this money was paid for a release of the equity of redemp- tion which the complainant offered to sell for that sum, and at the same time to war- rant the title of the property and indemnify the defendant against loss from the then pending litigation. It is an established docti'ine that a court of equity will treat a deed, absolute in form, as a mortgage, when it is executed as security for a loan of money. That court looks be- yond the terms of the instrument to the real transaction; and when that is shown to be one of security, and not of sale, it Avill give effect to the actual contract of the parties. As the equity, upon which the court acts in such cases, arises from the real character of the transaction, any evidence, written or oral, tending to show this is admissible. The rule which excludes parol testimony to contradict or vary a witten instrument has reference to the language used by the par- ties. That cannot be qualified or varied from its natural import, but must speak for itself. The rule does not forbid an inquiry into the object of the parties in executing and receiving the instrument. Thus, it may be shown that a deed was made to defraud creditors, or to give a preference, or to se- cure a loan, or for anyi other object not ap- parent on its face. The object of parties in such cases will be considered by a court of equity: it constitutes a ground for the ex- ercise of its jurisdiction, which will always be asserted to prevent fraud or oppression, and to promote justice. Hughes v. Edwards, 9 Wheat. 489; Eussell v. Southard, 12 How. 139; Taylor v. Luther, 2 Sumn. 22S, Fed. Gas. No. 13,796; Pierce v. Robinson, 13 Cal. IIG. It is also an established doctrine that an equity of redemption is inseparably connect- ed with a mortgage; that Is to say, so long as the instrument is one of security, the borrower has in a court of equity a right to redeem the property upon payment of the loan. This right cannot be waived or abandoned by any stipulation of the parties made at the time, even if embodied in the mortgage.' This is a doctrine from which a court of equity never deviates. Its main- tenance is deemed essential to the protec- tion of the debtor, who, under pressing ne- cessities, will often submit to ruinous con- ditions, expecting or hoping to be able to repay the loan at its maturity, and thus prevent the conditions from being enforced and the property sacrificed. A subsequent release of the equity of re- demption may undoubtedly be made to the mortgagee. There is nothing in the policy of the law which forbids the transfer to him of the debtor's interest. The transaction will, however, be closely scrutinized, so as to prevent any oppression of the debtor. Especially is this necessary, as was said on one occasion by this court, when the cred- itor has shown himself ready and skilful to take advantage of the necessities of the bor- rower. Eussell V. Southard, supra. With- out citing the authorities, it may be stated as conclusions from them, that a release to the mortgagee will not be inferred from equivocal- circumstances and loose expres- sions. It must appear by a writing import- ing in term.? a transfer of the mortgagor's interest, or such facts must be shown as will operate to estop him from asserting any interest in the premises. The release must also be for an adequate consideration; that is to say, it must be for a consideration which would be deemed reasonable if the transaction were between other parties deal- ing in similar property in its vicinity. Any marked undervaluation of the property in the price paid will vitiate the proceeding. If, now, we apply these views to the ques- tion before us, it will not be difficult of so- lution. It is admitted that the deed of the complainant was executed as security for the loan obtained by him from the defend- ant. It is, therefore, to be treated as a mortgage, as much so as if it contained a condition that the estate should revert to the grantor upon payment of the loan. There is no satisfactory evidence that the equity of redemption was ever released. The tes- timony of the parties is directly in conflict, both being equally positive,— the one, that the advance of $500 in February, 1858, was an additional loan; and the other, that it was made in purchase of the mortgagor's interest in the property. The testimony of the defendant with reference to other mat- ters connected with the loan is, in several essential particulars, successfully contradict- ed. His denial of having received the in- stalments of interest prior to September, 1857, and his hesitation when paid checks for the amounts with his indorsement were produced, show that his recollection cannot always be trusted. Aside from the defective recollection of the creditor, there are several circumstances tending to support the statement of the mortgagor. One of them is that the value of the property at the time of the alleged release was greatly in excess of the amount THE MAXIMS OF EQUITY. 61 previously secured with the additional $500. Several witnesses resident at the time in Washington, dealers in real property, and familiar with that in controversy and sim- ilar property in its vicinity, place its value at treble that amount. Some of them place a still higher estimate upon it. It is not in accordance with the usual course of parties, when no fraud is practised upon them, and they are free in their action, to siu'render their interest in property at a price so man- ifestly inadequate. The tax title existed when the deed was executed, and it was not then considered of any validity. The ex- perienced searcher who examined the rec- ords pronounced it worthless, and so it sub- sequently proved. Another circumstance corroborative of the statement of the mortgagor is, that he re- tained possession of the property after the time of the alleged release, enclosed it, and either cultivated it or let it for cultivation, until the enclosure was destroyed by soldiers at the commencement of the war in ISOl. Subsequently he leased one of the squares, and the tenant erected a building upon it. The defendant did not enter into possession until. ISOS. These acts of the mortgagor justify the conclusion that he never sup- posed that his interest in the property was gone, whatever the mortgagee may have thought. Parties do not usually enclose and cultivate property in which they ' have no interest. The instrument executed on the 9th of February, 1858, and the accompanying re- ceipt, upon which the defendant chiefly re- lies, do not change the original character of the transaction. That instrument contains only a general warranty of the title convey- ed by the original deed, with a special cove- nant to indemnify the grantee against loss from the then pending litigation. It recites that the deed was executed upon a contract of sale contrary to the admitted fact that it was given as security for a loan. The re- ceipt of the $2,000, purporting to be the pur- chase-money for the premises. Is to be con- strued with the instrument, and taken as having reference to the consideration upon whicli the deed had been executed. That being absolute in terms, purporting on its face to be made upon a sale of the property, tlie other papers referring to it were drawn so as to conform with those terms. They are no more conclusive of any actual sale of the mortgagor's interest than the original deed. Tlie absence in the instrument of a formal transfer of that interest leads to the conclusion that no such transfer was in- tended. We are of opinion that the complainant never conveyed his interest in the proi)erty in controversy except as security for the loan, and that his deed is a subsisting se- curity. He has, therefore, a right to re- deem tlie property from the mortgage. In estimating the amount due upon the, loan, interest only at the rate of six per cent per annum will be allowed. The extortionate interest stipulated was forbidden by stat- ute, and would, in a shoi-t period, have de- voured the whole estate. The defendant sliould be charged with a reasonable sum for the use and occupation of the premises from the time he took possession in lS(i.5, and allowed for the taxes paid and other necessary expenses incurred by him. The decree of the supreme court of the district must be reversed, and the cause re- manded for further proceedings, in accord- ance with this opinion; and it is so ordered 62 THE MAXIMS OF EQUITY. STINCHFIELD v. MILLIKEN. (71 Me. 56T.) Supreme Judicial Court of Maine. December, 1880. PETERS, J. The following facts are de- dnciblti from the evidence in this case: The coinplalnant purchased of the defendants, certain stemn-inill machinery, for removal from Hallowell to Danforth, in this State. There was at the time a verbal agreement, that the complainant should build a mill, and put tlie 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 tlie defendants from the heirs of H. E. Prentiss, who held an absolute title thereof as security for tlie complainant's indebtedness to tliem, there being a small balance only unpaid, wliieh the defendants were to pay for him. Tlie de- fendants were to give an agreement, to con- vey to tlie complainant if lie 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 defend ints 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 atjreement of the complainant to build the mill and put the machinery into it. On June 16, 1875, liussell conveyed the mill lot to the defendants. On August 2, 1875, Prentiss conveyed the home tot 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 tlie property to him upon the condition that he would pay to them his notes on one, two, three, and five years, re.spectively, with intei'est. The notes were given for the amount payable for tlie machinery, the sum paid to Prentiss, and for other loans and ad- vances. The complainant went on and erected and completed a mill on tlie 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, 4fj3. 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. IShaw 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 talien as a security for a debt, it is in equity a mortgage. No matter hov? 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 equitv a mortgage." Flagg v. Mann., 2 Suran. 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 was avoided; an equitable mortgage was made. Although different at law, in equity a mortgage is not prevented because the con- veyaiice does not come from the equitable mortgager. It is siiflicient that the debtor has an interest in the pro|ierty 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 mcmey ad- vanced, he has a riglit to redeem. The grantee in such case, acquiring the title by his act, holds it as his mortgagee. Jones on Mort. 2il ed. § 331. Stoddard T. Wliiting, 46 N. Y. 627; Carv 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 mortgai^e, allowing an equi- table mortgager the right to redeem. At law, it has no such 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. TItomaston Hank v. Siimpson, 21 Maine, 195; Whitney v. Bachelder, 32 Maine, 313; Howe V. liussell, 36 Maine, 115; Ricluirdson V. Woodbury, 43 Maine, 206. But since the act of 1874 conferred general chancery pow- ers upon the court, it has full and connlete jurisiiiction in such cases. Rowsll v. Jewelt, 69 Maine, 293-303; Jones, Mort. (2d ed.> § 282. ' Courts of equity generally exercise sucli power. While the grounds upon whicl) 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 adajiting it to the purpose originally intended. Eauity allows reoaration to bo THE MAXIMS OF EQUITY. 65 made by admitting a verbal defeasiince to be proved. The cases wliicli support tliis 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 Hannam v. Barrett, 115 Mass. 256. The complainant seelo to separate the arti- cle,? originally mortgaged as personal prop- erty, and, being allowed the value of them, redeem the balance of tlie estate only. That would not be equitable. The personal be- came a part of the real as oiiginally designt-d 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 paity that there should be two mort- gages instead of one. It is urged that the (leCendants foreclosed the personal mortgage. It could not be done. The personal mort- gajre was extinguislied when attempted to be done. That was but a ruse to get the pos- session which the defendants were entitled to. No s:everance 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 qui'stiun may arise, before the master, wlielher the complainant should iiave a credit of the net proceeds. If the insurance was obtained on I he mortgagees' own account only, they should not be allowed. Cushing v. Thomp- son, 34 Maine. 496; Pierce v. Fannce, hZ Maine, 351. The head nuts in Larrabee v. Lninbert, 32 Maine, 97, is erroneous in that respect. It was allowed in that case by con- sent. Insurance Co. \. H'oo(i6a;'j^, 45 Maine, 447. But where a mortgagee insures the prop- eity by the authorily of the mortgager, and charges him with the expense, then any in- surance recovered shoulii be a'counted for. And if a mortgager covenants to insure, and fails to do so, the mortgagee can himself in- sure at the mortgager's expense. Oneof the defendants testifies that "Stinch- Beld 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 oji 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 a' count, 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 UDon the whole debt. Inasmuch as th& 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 linally terminated. Another reason why complainant should not recover costs is, that when his bill was conimeiicedi the mortgage debt was not due. The uioit- gage could not be redeemed until 1880. The- bill was commenced long before that time. But as the raoitgage is now due, and no- point is taken that the proceeding was pre- malure, it will probably be lor the interest of all the parties that their matters may be adjusted under this bill. For which purjiose a master must be appointed, unless the par- ties can best determine the accounts between themselves. Decree accordingly. APPLETON, C. J., WALTON, DAN- FORTH, VIUGIN, and LIBBEY, JJ., con- curred. <54 THE MAXIMS OF EQUITY. AMES v. RICHARDSON. (13 N. W. Rep. 137, 29 Minn. 330.) tSupreme Court of Minnesota. July 25, 1882. PLxintiffs broiishfc this action, in the district com t for Hennepin county, asfiiinst the West- ern Manufacturers' Mutual Insurance Com- pany, to recover the amount due on a policy of insurance for $2,000, issued to one llobert Co.liran, on a mill and mHcliinery in this state. The mill was destroyed by fire, and the loss under tliis policv was adjusted at $1,317.70 on July 19, 1880. On the same day Cochran assigned all his rights under the policy to plaintiffs, llutli C. Kichardson, ; who had a mortgage upon the mill properly, claiming to be entitled to tliis sum, was sub- stituted as defendant in place of the insur- ance conjpany. The action was submitted to the court, ] rbimg', J., presiding, upon the complaint and answer, the allegations of wliich 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. BEKRy, J. On December 16, 1879, Coch- ran, lieing owner of a piece of land in this slate, insured a mill, niaihinery an. I lixlures tlieiein airainst damage by flie, in the West- ern Manufacturers' JMntiud Insurance Com- pany. J or $2,000. December 18, 1879, he borioweil of defendant $5,200, for which he gave his promissory note on live yeirs, 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 Kichardson that at all times dur- ing its continuance he would keep the build- ings on the premises "unce.isingly insured" for at least .$5,200, payable in case of loss to Richai'dson, to llie auiount Ihen secured by the inorlgage. December 28, 1879, Coch- ran insured the mill, machinery, and fixtures for $1,500 in one company, and for $2,000 in anolh T, and, by indorsement upon each of the two policies issued to him, the loss waa made payable to Richardson, as her in- terest might appear. On July 9, 1830, while the three insurances were in force, the in- sur'd property was, totally destroyed by fire* Refoie this Richardson had no knowledge of the first insurance. The loss was adjusted by Cochran and the three insurance com- panies at $t, 298.03, as tlie true value of tlie property destroyed. The result was that the losses payable to Richardson were scaled from $^1500 (the face of the last two policies) to $2,442.20, and this sum was paid to her and applied on tlie note. The loss under the first insurance was scaled and adjusted at .$1,817.- 70, and that sum agreed to be paid Cochran accordingly. This was done July 19, 1880, and on the same day the certiticate which had been issued to Cochran by the Western Manufacturers' Mutual Insurance Company, in lieu of a policy, was for a valnaMe con- sideration duly assigneil to the plain. ilfs. 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 tliereon something over $3,000. Kicli- 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 V It Is well settled that,, in the absence of an agreement by a mortgagor to insure for the benefit of his mortgagee, the latter lias no right to any advantage whatever from an insurance upon the mortgaged proi)erty ef- fected by the former for his own benelit. 1 Jones, Mortg. § 401; Nii:hol. seem to the court to be conclusive upon this point; and none were referred to, or liave (tome under the view of the court, which sanction the conclusion made in the unquali- fied terms used in the case of Roper v. Had- clilfe. As to tlie idea that the character of the es- tate is afCected by this right of election, whether the right be claimed or not, it ap- pears to be as repugnant to reason, as we think it has been shown to be, to principle and authorities. Before any thing can be made of the proposition, it should be shown that this right of privilege of election is so indissolubly united with the devise, as to constitute a part of it, and that it may be exercised in all cases, and under all circum- stances. This was, indeed, contended for with great ingenuity and abilities by the counsel for the state of Virginia, but it was not proved to the satisfaction of the court. It certainly is not true, that equity will extend this privilege in all cases to the cestui (jne trust. It will be refused if he be an in- fant. In the case of Seeley v. Jago, 1 P. AVms. 389, where money was devised to be laid out In land in fee, to be settled on A. B. and C, and their heirs, equally to be di- vided: On the death A., his infant heir, together with B. and C, filed their bill, claiming to have the money, which was de- creed accordingly as to B. and C; but the share of the infant was ordered to be put out for his benefit, and the reason assigned was, that he was Incapable of maliiug an election, and that such election, if permitted, would, in case of his death, be prejudicial to his hell'. In the case of Foone v. Blount, Cowp. 467, Lord Mansfield, who is compelled to acknowledge the authority of Roper v. Rad- clifEe in parallel cases, combats the reasoning of Chief Justice Parker upon this doctrine of election, with irresistible force. He sug- gests, as the true answer to it, that though in a variety of eases this right exists, yet it was inapplicable to the case of a person who was disabled by law from taking land, and that therefore a court of equity would, in such a case, decree that he should take the property as money. This case of Walker v. Denne, 2 Ves. Jr 170, seems to apply with great force to this part of our subject The testator directed money to be laid out in lands, tenements, and hereditaments, or on long terms, with limita- tions applicable to real estate. The money not having been laid out, the crown, on fail- ure of heirs, claimed the money as land. It was decided that the crown had no equity against the next of kin to have the money laid out in real estate in order to claim it by escheat. It was added that the devisees, on becoming absolutely entitled, have the op- tion given by the will; and a deed of ap- pointment by one of the cestui que trusts, though a fepe covert, was held a sufficient in- dication of her intention that it should con- tinue personal against her heir claiming it as ineffectually disposed of for want of her ex- amination. This case is peculiarly strong, from the circumstance, that the election is embodied in the devise itself; but this was not enough, because the crown had no equity to force an election to be made for the pur- pose of producing arf escheat. Eciiilty would surely proceed contrary to its regular course, and the principles which universally govern it, to allow the right of election where it is desired, and can be law- fully made, and yet refuse to decree the money upon the application of the alien, upon no other reason, but because, by law, he is incapable to hold the land: In short, to consider him in the same situation as if he had made an election, which would have been refused had he asked for a conveyance. The more just and correct rule would seem to be, that where the cestui que trust is in- capable to take or to hold the land beneficial- ly, the right of election does not exist, and consequently, that the property is to be con- sidered as being of that species into which it is directed to be converted. Having made these observations upon tlie principles laid down in the case of Roper -v. RadclifCe, and upon the arguments urged at the bar in support of them, very few words wiU suffice to show that, as an authority, it is inapplicable to this case. 8 The incapacities of a papist under the English statute of 1.1 & 12 Wm. III., c. 4, and of an alien at common law, are extremely dissimilar. The former is incapable to take by purchase, any lands, or profits out of lands; and all estates, terms, and any other interests or profits whatsoever out of lands, to be made, suffered, or done, to, or for the use of such person, or upon any trust for him, or to, or for the benefit, or relief of any such person, are declared by the statute to be utterly void. Thus, it appears that he cannot even take. His incapacity Is not confined to laud, but to any profit, interest, benefit, or relief, in or out of it. He Is not only disabled from tak- ing or having the benefit of any such inter- est, but the will or deed itself, which at- tempts to pass it, is void. In Roper v. Rad- cliffe. It was strongly insisted, that the money given to the papist, which was to be the pro- ceeds of the land, was a profit or interest out of the land. If this be so, (and it is not material in this case to affirm or deny that position,) then the will of John Roper in relation to the be'quest to the two papists, was void under the statute; and if so, the right of the heir at law of the testator, to the residue, as a resulting trust, was incon- testable. The cases above cited have fully established that principle. In that case, too. the rents and profits, till the sale, would have belonged to the papists, if they were capable The ease of Roper v. RadclifEe distinguished from the present case. 70 MAXIMS OF EQUITY. •of taking, which brought the case still more strongly within the statute; and this was much relied on, not only in reasoning upon ;the words, but the policy of the statute. 1 Now, what is the situation of an alien ? .He cannot only take an interest in land, but a freehold interest in the land itself, and may hold it against a!l the world but the king, and even against him until office found, and he is not accountable for the rents and profits previously received." In this case the will being valid, and the alien capable of taking under it, there can be no resulting trust to the heir, and the claim of the state Is founded solely upon a supposed equity, to have the land by escheat as if the alien had, ■or could upon the principles of a court of equity, have elected to take the land instead of the money. The points of difference be- tween the two cases are so stiiking that it would be a waste of time to notice them in detail. It may be further observed, that the case of Roper v. Radcliffe has never, in England, been applied to the case of aliens; that its authority has been submitted to with re- luctance, and is strictly confined in its ap- plication to cases precisely parallel to it. Lord Mansfield in the case of Foone v. Blount, speaks of it with marked disappro- bation; and we know, that had Lord Trevor 10 An alien may take, by purchase, a freehold, or other interest in land, and may hold it against all the world except the king; and even against him until office found; and is not ac- ■Countable for the rents and profits previously received. 11 Vide 3 Wheat. 12. Jackson ex dem. State «f New York v. Clarke, note c. been present, and declared the opinion he had before entertained, the judges would have been equally divided. The case of the Attorney General and Lord Weymouth, Amb. 20, was also pressed upon the court, as strongly supporting that of Roper V. Radcliffe, and as bearing upon the present case. The first of these propositions might be admitted; although it is certain that the mortmain act, upon which that case was decided, is even stronger in its expression than the statute against papists, and the chancellor so considers It; for he says, whether the sui"plus be considered as money or land, it is just the same thing, the statute making void all charges and encumbrances on land, for the benefit of a charity. But if this case were, in all respects, the same as Roper v. Radcliffe, the observations which have been made upon the latter would all apply to it. It may be remarked, however, that in this case, the chancellor avoids expressing any opinion upon the ques- tion, whether the money to arise from the sale of the land, was to be taken as personal- ty or land; and, although he mentions the case of Roper v. Radcliffe, he adds, that he does not depend upon it, as it is immaterial whether the surplus was to be considered as land or money under the mortmain act. Upon the whole we are unanimously of opinion, that the legacy given to Thomas Craig, in the will of Robert Craig, is to be considered as a bequest of personal estate, which he is capable of taking for his own benefit. Certificate accordingly. THE MAXIMS OF EQUITY. 71 DUNSCOMB et al. v. DUNSCOMB'S EX'KS. (1 Johns. Ch. 508.) Court of Chancery of New York. 1815. The bill stated, that the plaintifCs are the ouly surviving children and heirs of Andrew Dunscomb, son of Daniel Dunscomb, deceas- ed. That Daniel Dunscomb, on the 7th of January, 1795, made his will, and devised the one fourth of all his estate, real and per- sonal, to his son Andrew; and If he died be- fore the testator, then his share to go to his children, In equal proportions. The testator gave to his executors power and direction to sell his estate, and divide the proceeds ac- cording to his will. The executors, on the death of the testator, took possession of the estate, real and personal, and sold the real estate, and received the proceeds, and also the rents and profits before the sale. An- drew, at his deatli, left five children, two of whom, Catharine and Andrew B., died. Catharine married one West, who is still liv- ing, and by whom she had one child, since deceased, without issue. Andrew B. died after his sister, under age, and without is- sue. The three surviving children, plaintiffs, claim the share that would have come to their father under the will, of which they alleged there remained due to them 1,731 dol- lars and Si cents, with interest; and they prayed for an account, and that the executors might be decreed to pay the amount, with interest The answer admitted the will, the receipt of the rents, etc., the sale of the real estate on the 31st of January, 1804, that Mrs. West never had actual possession of the real estate before it was sold; but there was no adverse possession, the possession being actually held by the defendants, as codevisees and coten- ants, in common; that Mrs. West died two days before the sale of the real estate; and the other persons at the times mentioned in the bill; that the husband of Mrs. West is still Uvlng, and resided, and still resides, out of the state; that the share of the net pro- ceeds due to Mrs. West, was $1,046.36; that on the 28d of April, 1805, the defendants paid to the guardian of the two infant plaintiffs, $3,500, leaving $685.47, which the defendants have always been, and are still, ready to pay to the plaintiffs, if right and proper; that the plaintiffs are next of kin of Andrew B. Dunscomb, deceased; that the husband and administrator of Mrs. West claimed the $1,- 046.36, being her share, as personal estate; and the defendants denied the claim, as the real estate was not sold at the time of her death; that her husband now claims inter- est on the amount, as tenant by the courtesy, for life, and that the principal ought to be put out on security, for that purpose; that the plaintiffs do not acquiesce in either claim of the husband of Mrs. West, and the defend- ants do not know to whom the money can be paid with safety. The defendants denied that they ought to pay interest, as they had always been ready to pay the principal, when advised or direct- ed by this court how the same ought to be paid; and they claimed to have their costs allowed to them out of the fund in their hands. The cause was submitted to the court on the bill and answer. Mr. Irving, for plaintiffs. Mr. Riggs for defendants. THE CHANCBLLOE. 1. The plaintiffs are entitled, of course, to the sum of $685.47, and the only point, on this part of the case, is, whether they are entitled to interest up- on that sum, which has lain unproductive for many years in the hands of the defend- ants. Why it was not paid to the guardian of the plaintiffs (who was also guardian of Andrew B. Dunscomb, in his lifetime), and to whom the other portion of the moneys belonging to them was paid, does not appear. The executors say it has always been kept in readiness to pay to the persons entitled, when demanded. But this is no sulficient excuse. If they had met with any real doubt or difficulty, as to the person authorized to receive, they could have applied to the court for advice, or brought the money into court. If the money (as we are at liberty to sup- pose) has been mingled with their own mon- eys, it has answered the purpose of credit, and the rule is settled, that executors, and all other trustees, are chargeable with interest, if they have made use of the money them- selves, or have been negligent, either in not paying the money over, or in not investing It, or loaning it, so as to render it productive. Ti'eves v. Towhshend, 1 Brown, Ch. 384; Rocke V. Hart, 11 Ves. 58. The rule is founded in justice and good policy; it pre- vents abuse, and it indemnifies against negli- gence. This was also the rule in the civil law, when the guardian was guilty of negli- gence in suffering the money of the minor to lie idle. "Quod si pecunia mansisset in rationibus pupilli, preestandum quod bona fide percepisset, aut perclpere potuisset: sed foe- nori dare cum potuisset, neglexlsset." Dig. 26. 7, 5i The defendants must, in this case, account for interest on the above principal sum; and as to the time from which interest is to be computed, in such a case of negligence in suffering the money to lie idle, there does not appear to be any absolute rule, and the time must vaiy according to circumstances. It would be laying too heavy a hand upon ex- ecutor's, to charge interest from the moment money was received. In some cases, execu- tors are allowed a year to look out for some due appropriation of the money, and in other cases it would be unreasonable. Here the executors show no pains or effort to dis- charge themselves of the money. I observe that six months was the time allowed, in a like case, by the civil law, to the tutor to invest the funds (Domat, Civ. Law, bk. 2, tit. 72 THE MAXIMS OP EQUITY. "Tutors," c. 3, § 23; Voet, lit). 26, tit. 7, § 9); and if the defendants are cliarged witli in- terest after six months from the time they ..re- ceived it, it ■will not be unreasonable in this case, and I shall accordingly direct it. 2. The husband of Catharine P. West is en- titled, as tenant by the courtesy, to the in- terest of the proceeds of her share of the real estate, which was sold after her death. His right became perfect upon her death, and he was seised in fact, by the seisin and pos- session of the co-devisees, as tenants in com- mon with her, and claiming only their un- divided shares with her under the will. It wUl, therefore, be the duty of the defendants to place the sum of $1,046.36. at interest, on good real Lecurity, or invest it in public stock, and pay the interest thereof to William West, as the same shall from, time to time accrue, during his natural Ufe; and the plaintiffs, and their lawful representatives, will be enti- tled to the principal, upon his death. The case of Sweetapple v. Bindon, 2 Vern. 536, contains the rule applicable to this case, al- lowing the interest of money to be settled upon the tenant by the courtesy, in lieu of the profits of the land. 3. The only remaining point in the case is as to costs. It does not follow, as an inevi- table consequence, that executors must pay costs in all cases where they must pay inter- est; though the general rule is, that they must pay costs when they pay interest, be- cause they ai'e in default. 1 Ves. Jr. 294; 7 Ves. 129; 11 Ves. 61, 582; 18 Ves. 402. If the demand of the plaintiffs had been confin- ed to the sum of $685.47, the defendants ought to have paid costs; but the demand went further, and embraced a larger sum, to which the plaintiffs are not entitled until the death of the tenant by the courtesy. That demand has been successfully resisted, and it was a question properly submitted by the executors to the direction of the court. Un- der the circumstances of the case, I cannot allow costs to either party, as against the other. Decree accordingly. THE MAXIMS OF EQUiTY. 7$ SUBLBTT'S ADM'R v. McKINNEY et al. (19 Tex. 438.) Supreme Coui-t of Texas. Tyler. 1857. Appeal from San Augustine; Archibald W. O. Hicks, Judge. Petition filed on the 2d of September, 1844, as follows: "The petition of Thomas F. Mc- Kinney and Samuel M. Williams, formerly partners, trading under the name and style of McKinney & Williams, against Philip A. Sublett, respectfully represents that the said defendant heretofore, to wit, on the nine- teenth day of April, in the year of our Lord one thousand eight hundred and forty-one, at San Augustine, made his certain draft or order in writing, for the payment of money, commonly called a check, bearing date the day and year last aforesaid, and then and there directed the said draft or order to your petitioners, by the name, style, and firm of Messrs. McKinney & Williams, and thereby then and there requested your petitioners as aforesaid to pay to the order of Gen. Sam. Houston five hundred dollars, and charge the same to account of him, the said defendant. And the said defendant then and there de- livered the said draft or order to the said Gen. Sam. Houston, and the said Sam. Hous- ton, to whose order the payment of the said sum of money therein specified was ordered to be made, after the making of the said draft or order, to wit, on the day and year aforesaid, indorsed the said draft or order in blank on the reverse side thereof, and then and there presented the said draft or order to your petitioners, who paid the said sum of money specified in the said draft or or- der, to the said Sam. Houston's order, ac- cording to the said order or request of the said defendant, whereby the said defendant became indebted and liable to pay to your petitioners the said sum of money specified in said draft or bill, with interest thereon; and being so indebted, the said defendant has hitherto refused to pay the same, or any part thereof, and still refuses so to do, to petitioners* damage one thousand dollars. Pe- titioners therefore pray," etc. A demurrer was sustained to this petition and plaintiffs amended as follows: "And now come the said plaintiffs, and by leave of the court amend their petition herein, and aver that, after the drawing of the said order or bill of exchange (mentioned in their original peti- tion), by said defendant, Philip A. Sublett, and before the commencement of this suit, to-wit, on the 2eth day of November, A. D. 1841, they, petitioners, in compliance with the said request of the said Philip A., in said order or bill of exchange expressed, paid to the said Gen. Sam. Houston the sum of five hundred dollars, and then and there took possession of said order or bill, which was delivered to them by said Houston. Peti- tioners further aver that, at the time they paid said order or bill to said Houston as aforesaid, said Philip A. had no effects or money in their hands, and that they owed said Philip A. nothing, and that they paid the said order or bill upon the credit of the said Philip A., and at his written request." Defendant demurred, which at that time raised the question of limitation, denied all and singular, and afterwards pleaded the stat- ute of limitations of two years. The cause never came to trial until 1855, before which time the draft had been lost, which was alleged. The demurrer was over- ruled. Plaintiff proved the loss of the bill and the admission of the defendant, who had since died, that the draft was drawn by him and accepted, and paid by the plaintiffs with- out funds; and they proved by other evi- dence that it had been paid by McKinney & Williams, the plaintiffs and drawees. The court instructed the jury that, if they found that Sublett drew the draft, and that the plaintiffs paid it without having any funds of said Sublett in their bauds to pay it, tliey should find for the plaintiffs the amount of the draft and eight per cent, interest per annum. Defendants requested the judge to charge the jury that, if they were satisfied that the draft was paid more than two years before the bringing of this suit, they should find for defendant, which instruction was re- fused. Verdict for the plaintiff for $500 prin- cipal, and $524 interest. Judgment. Motion for new trial overruled, etc. O. M. Koberts, for appellant. Henderson & Jones, for appellees. WHEELER, J. The question is whether the action of the accommodation acceptor, who has paid the bill, is "grounded upon any contract in writing," within the statute lim- iting the right of action to four years upon contracts in writing. Hart. Dig. art. 2377. Whatever may be said of the action being up- on the implied contract to indemnify, it is quite certain that, without the request con- tained in the writing, the plaintiff would not have any right of action upon payment of the money. One man cannot make another his debtor, by paying his debt without his request, unless he has come under obliga- tion to some third person to make payment. It, therefore, is not the payment of the money which gives the right of action, but it is founded, in part at least, upon the writing. The doctrine that the plaintiff must sue up- onj the implied contract is, to say the least, quite technical, and it is confined in its ap- plication to courts which recognize the dis- tinctions of forms of action. Our law does not recognize these distinctions. But the plaintiff must sue upon his case, and the writ- ing certainly constitutes a very material and essential part of that case. The mere fact of payment does not raise a promise by im- pUcation. No promise to indemnify is im- plied, except it be upon request; and that re- quest, in this case, is in writing. So the 74 THE MAXIMS OF EQUITY. writing is the foundation of the promise, and, discarding technical niceties, it may be said to be the ground of the action. It gives rise to the promise which, in compliance with the request, springs out of and is grounded upon it. An accommodation acceptor, who has been obliged to pay the bill, though primarily 11a- Tjle to the payee, as between himself and the drawer, is entitled to be regarded In the light of a surety, and has equal claims upon the aid of a court of equity, to enforce his rights against the malier, with any other surety who has paid the debt of his prin- cipal. It is the doctrine of the civil law, and it was the doctrine of the court of chan- cery in England in the time of Lord Hard- wicke, that the surety is entitled, upon pay- ment of the debt of the principal, not only to have the full benefit of all the collateral securities, both of an equitable and legal nature, which the creditor has talien as ad- ditional pledge for his debt, but he is pn- titled to be substituted, as to the very debt "itself, to the creditor, and to have it assigned to him. This was the doctrine of the earlier English cases (Ex parte Crisp, 1 Atk. 133; Morgan v. Seymour, 1 Ch. R. 64; Parsons v. Briddock, 2 Vern. 608), and it does not appear to have been questioned, prior to the cases of Copis v. Meddleton, 1 Turn. & R. 224, and Hodgson v. Shaw, 3 Mylne & R. 183, 8 Ch. R. 338. These latter cases, while they hold the general doctrine that the sure- ty is entitled to every remedy which the creditor has, and to have an assignment of aU the securities in the hands of the cred- itors, yet deny him the right of complete substitution to the rights of the creditor, by having assigned to him the very obligation upon which he was surety, upon his tech- nical idea that the payment by the surety is an extinguishment of the obligation, and the assignment of it would transfer that which, being extinguished, is no longer any ^security. But this narrow, technical view of the case has not received the approbation ■of courts of equity generally in this country. The subject was examined with great learn- ing, research, and ability by the supreme •court of Georgia, in the case of Simpkin v. Mills, 4 Ga. 343, and the doctrine of the two English cases last cited was discarded, as opposed to the great weight of authority, English and American, as unsound in prin- ciple, and unfit to have a place in the en- lightened remedial justice of a court of equi- ty. The principle which supports the right of substitution to the rights and remedies of the creditor, applies equally to his right to have a transfer of the particular obligation or contract, as to any other security. "The rsubstitution of the surety," it is pertinently said, "is not for the creditor as he stands related to the principal after the payment, but as he stood related to him before the payment. He is subrogated to such rights as tlie creditor then had against the prin- cipal, one of which unquestionably was to enforce his bond against the principal." Id. 349. This is certainly the correct deduction from the universally admitted right of sub- stitution; for, if the doctrine were sound that the obligation on which the surety was bound cannot be assigned, because it is extinguished by the payment, it would apply equally to every other security, and destroy the right of substitution altogether. For the payment of the debt operates as com- plete an extinguishment, in equity, of every collateral security as it does of the obliga- tion of the principal security. So it has been uniformly held by this court in the case of mortgages and other securities. Duty v. Gra- ham, 12 Tex. 427. The authorities upon the question of the right of substitution in such a case are col- lected and reviewed with great research and ability by the counsel for the appellee in his printed brief in the case of Grayson v. Smith, which has been furnished the court on the hearing of this case, and it is there also shown that there is a very great weight of authority in support of the doctrine of the surety's right of complete subrogation. In Jordan v. Hudson, 11 Tex. 82, this court held that a surety who has paid the debt of his principal is entitled to be subrogated to all the rights of the creditor whose demand he has paid. The rights to which he is entitled to be thus subrogated are those which the creditor had while the obligation of the con- tract subsisted, not such as he has after the debt has been paid; for, by the payment, the rights of the creditor are extinguished. The doctrine is that the payment entitles the surety to be subrogated to all the rights of the creditor. It was his right to sue upon the contract. The surety, upon payment, is subrogated to this right, and may in like manner maintain his action. The surety was entitled to have the security assigned to him. Equity considers that as done iilready which ought to have been done, and ro, treating the assignment as having been made, maintains the right of the surety to sue upon the contract. The plaintife in this case has brought this action upon the contract. This right of ac- tion accrued upon payment of the debt; and It results, from the view we have taken of the case, that the action was not barred by the statute. The judgment is therefore af- firmed. Judgment affirmed. ROBERTS, J., did not sit in this case. THE MAXIMS OF EQUITY. 75 CLEMENTS v. TILLMAN et al. (5 S. E. 194, 79 Ga. 451.) Supreme Cour>; of Georgia. February 13, 1S8S. Error from superior court, Muscogee coun- ty; Smith, Judge. Suit by Hattie E. Tillman and William L. Tillman, plaintiffs and defendants in error, against John W. Clements, def'^ndant and plaintiff in error, for an account and settle- ment of a legacy due said Hattie E. Till- man under the will of one Jacob A. Clem- ents, John W. Clements being an executor of the same. The following is the official report: Hattie E. Tillman, a legatee under the will of Jacob A. Clements, deceased, with her husband and trustee, William L. Tillman, filed their bill for account and settlement against John W. Clements, executor, and Sa- rah B. Clements, executrix, of said will. The bill contained charges of mismanage- ment of the estate, violations of the provi- sions of said bill, and non-payment by the executors of the interest of complainant as legatee. The defendants answered the bill; but as their answers are not material or nec- essary to an understanding of the errors com- plained of, they are not set forth. The jury returned the following verdict: "We, the jury, find that Sarah B. Clements has no property or effects of the estate of Jacob A. Clements, deceased, in her hands, as execu- trix or otherwise. We, the jury, further find that John W. Clements, as executor of the will of Jacob A. Clements, deceased, has now in his hands the sum of eight hundred and ten dollars principal and five hundred dollars in- terest, belonging to Hattie B. Tillman, as lega- tee under the will of Jacob A. Clements." Upon this verdict the following decree was rendered by the court: "Whereupon, the premises considered, it is ordered, adjudged, and decreed by the court that the complainant do recover the same sum of eight hundred and ten dollars principal and the further sum of five hundred dollars interest to this date, and the further sum of dollars, costs of suit in this behalf laid out and expended, for which said several sums let execution is- sue, to be levied in the first place of the goods and chattels, lands and tenements, of said Jacob A. Clements, deceased, in the hands of John W. Clements, executor of the will of said Jacob A. Clements, if to be found; and if not to be found, then to be levied of the personal goods and chattels, lands and tenements, of said John W. Clem- ents. It is further ordered and decreed by said court that the said John W. Clements do satisfy and pay the aforesaid amounts, principal, interest, and costs, to the said comijlainant, on or befoi-e the first day of January next; and, in default thereof, that he be held and deemed to be in contempt of I he order and decree of this court." Plaintiff in error excepts to the portion of the decree embodied by the last sentence, and says the court erred in rendering a decree to be en- forced by attachment for contempt— "First, because the verdict was a money verdict, and the same could only be enforced by ex- ecution; second, because the verdict of the jury was a money verdict, and could not be enforced by an attachment for contempt, and could only be enforced by executioc third, because the verdict of the jury was a money verdict, and was a debt, and to en- force the decree by an attachment for con- tempt would be to imprison the defendant for debt, which is prohibited by the constitu- tion of the state; fourth, because the decree sought and moved for provides both for the enforcement of it by execution, and an at- tachment for contempt; and the complain- ant should be required to elect whether she would proceed to enforce it by execution or attachment for contempt if the court deter- mined that it could be enforced by attach- ment for contempt." C. J. Thornton, for plaintiff in error. L. P. Garrard, for defendants in error. KIBBEE, J.i Originally, in the absence of statutes providing otherwise, decrees of courts of equity, of whatever kind or nature, operated strictly and exclusively in per- sonam. The only remedy for their enforce- ment was by what is termed "process of contempt," under which the party failing to obey them was arrested and imprisoned until he yielded obedience, or purged the contempt by showing that disobedience was not wilful, but the result of inability not produced by his own fault or contumacy. The writ of assistance to deliver possession, and even the sequestration to compel the performance of a decree, are comparatively of recent origin. Our statutes expressly pro- vide that "all orders and decrees of the court may be enforced by attachment against the person; decrees for money may be enforced by execution against the property." Code, § 3099. "A decree in favor of any party, for a specific sum of money, or for regular in- stallments of money, shall be enforced by execution against property as at law." Code, § 4215. "Every decree or order of a court of equity may be enforced by attachment against the person for contempt; and if a decree be partly for money and partly for the per- formance of a duty, the former may be en- forced by execution, and the latter by attach- ment or other process." Code, § 4216. The clear legislative intent is manifest to en- large and render more efficacious equitable remedies, while preserving the remedies the courts had previously employed in the ab- sence of statutes providing others. Under our statutes, when a party is decreed to per- form a duty, or to do any act other than the 1 Blandford, .T., being disqualified. Judge Kib- bee, of the Oconee circuit, was designated to preside in bis stead. 76 THE MAXIMS OF EQUITY. 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 Mo. 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 perfoi-mance 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- Cay, 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. 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 bf 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 i^-as 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. §§ 70S- 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 aiithorize an alternative order imprison- ing the defendant on failure to pay. Judg- ment reversed. THE MAXIMS OF EQUITY. 77 Ir re HAWTHORNE. GRAHAM V. MASSEY. (23 Oh. DiT. 743.) Chancery Division. May 7, 1883. This action was brought to recover three- fourths of one moiety of the purchase-money of a house at Dresden, sold by Charles Stew- art Hawthorne, the testator in the cause. The defendants were his executors and dev- isees in trust. The house originally belong- ed lo Colonel Hawthorne, a domiciled Irish- man, and his wife, Sarah, jointly. By his will, dated in 1851, he gave all his real and personal estate, which would include his moiety of this house, to trustees in trust to pay the rents, profits, and proceeds thereof to his wife, Sarah, for life, and after her death upon trust for his daughter Mabella. This will was not executed according to Saxon law. Colonel Hawthorne left his wid- ow and a daughter Georgiana him surviving, Mabella having died in his lifetime. The widow died on the 31st of May, 1875, leaving a will executed according to Saxon law, by which she devised all her real and personal property at her residence at Dresden, includ- ing this house, to Charles Stewart Haw- thorne, the testator In 'this cause. In 1875 he sold the house, received part of the pur- chase-money, and the remainder, amounting to 66,000 marks, was secured to him by a mortgage of the house according to Saxon law. He died in 1877. The plaintiffs in this action were the administrator and the wid- ow and children of John Graham, the surviv- ing husband of Georgiana. The statement of claim alleged, in effect, that on the death of Colonel Hawthorne one moiety of the house, subject to his widow's life interest, devolved by Saxon law as to three-fourth parts on Georgiana, and the re- maining one-fourth on Sarah Hawthorne, who was entitled to the other moiety, and that on the death of Georgiana in 1863 John Graham became by Saxon law entitled to her three- fourths of one moiety, and that he died in- testate. The plaintiffs, as his administrator, and next of kin, respectively, claimed three- fourths of one moiety of the purchase-money, with interest, against 'the estate of Chatles Stewart Hawthorne. It was also alleged that on the death of Sarah Hawthorne, Charles Stewart Hawthorne procured himself to be registered in Dresden as the owner of the house, and so became the legal owner, and that by Saxon law he could confer an inde- feasible title on a purchaser, but that a seller under such circumstances became by the law responsible to the person really entitled, if he had acted bona fide, for the purchase- money of which he became a trustee for the person really entitled. The defense denied utterly the claim of the plaintiffs, and alleged that Charles Stewart Hawthorne was sole and legal owner of the entirety of the house for his own use and benefit, and the defend- «ints (paragraph 19) submitted that tlie rights of the parties to this action ought to be deter- mined in the courts of Saxony. Hastings, Q. C, and W. G. Druce, for plain- tiffs. W. Pearson, Q. 0., and Mr. Creed, for defendants. Robinson, Q. C, and Mr. Jol- liffe, for other parties. Mr. Druce in reply. KAY, J. You are asking the court to de- clare that Charles Stewart Hawthorne was a constructive trustee of lands in Dresden of which he had taken possession, and procured himself to be registered as owner. This is no question of contract, but simply one of the right of succession to foreign lands. Mr. Druce. The court will assume jurisdic- tion when the remedy can be given simply by proceedings in personam. KAY, J. An important question of juris- diction arises in this case. [His lordship, after stating the facts as above set forth, con- tinued]: It is obvious that neither Charles Stewart Hawthorne nor the defendants is or are, with reference to this claim, by English law, in any fiduciary relation to the plain- tiffs. They are not bound by contract with them. Nor is the claim in any way based upon a suggestion of fraud. It is a bona fide claim on both sides of title to land, or the proceeds of land, in Saxony. The claim de- pends primarily upon the law of Saxony as to the devolution of land in that country. If maintainable, it can only 'be so upon the ground that by the law of Saxony upon the death of Sarah Hawthorne three-fourths of one moiety of this property descended to Georgiana Hawthorne, under whom the plain- tiffs claim. The next question is whether the plaintiffs, by the law of Saxony, are en- titled to such interest, if any, as did so de- scend to Greorgiana Hawthorne. A third question is whether by Saxon law, Charles Stewart Hawthorne having sold the property, he or his estate after his death is account- able for a share of the purchase money to the plaintiffs. I need not dweU upon the danger of error if the courts of this country were to enter- tain jurisdiction to determine a contested claim of this kind depending upon questions of foreign law. I may, perhaps, illustrate it by one of the arguments used before me. I have a number of opinions, not on oath, by foreign lawyers. One of these states that the time for ascertaining the heir of Colonel Hawthorne in this case was the death of Sarah Hawthorne, because of the devise to trustees during the life of Sarah, which, al- though in an Irish will, would be recognized in Saxony. ' This part of the opinion, it is said, is not answered or noticed by the ex- pert on the other side, and therefore the court must assume that it is admitted to be the law. How is it possible to be judicially satisfied on such evidence? I am not aT<'are of any case where a contested claim depend- ing upon the title to immovables in a foreiga 78 THE MAXIMS OP EQUITY. country, strictly so called, being no part of the British dominions or possessions, has been allowed to be litigated in this country simply because the plaintiff and defendant happened to be here. Lord Mansfield, in Mostyn v. Fabrigos, 1 Cowp. 161, 176, dis- tinguished such a case from those in which actions might be brought here. He said: "So if an action were brought relative to an estate in a foreign country, where the ques- tion was a matter of title only, and not of damages, there might be a solid distinction of locality." The cases cited in the argument were such as the enforcement in England of an equitable mortgage made in England con- cerning Scotch land, where the court gave relief, treating the remedy as in the nature of specific performance, when the court acts in personam. Ex parte Pollard, 1 Mont. & C. 230. There is no doubt of the jurisdiction in such a case and the courts will even foreclose an English mortgage of foreign land (Toller v. Carteret, 2 Vern. 494); the foreclosure de- cree being, as Vice Chancellor Bacon pointed out in Paget v. Ede, L. R. 18 Eq. 118, merely an extinction of the right to redeem, as was said also by Lord Cranworth in Colyer v. Pinch, 5 H. L. Cas. 905, 915. In Norris v. Chambres, 29 Beav. 246, Lord Romilly dis- tinguished the case of a foreign mortgage of foreign land where no relief by foreclosure would be given by the English courts. There is a class of cases in which jurisdiction as to lands in the colonies has been maintained on the ground of fraud, like Lord Cranstown v. Johnston, 3 Ves. 170. It is not pretended that there was any fraud in the present case. Perhaps the decision that goes furthest in the plaintiff's favour is the recent case of In re Ewing, 22 Ch. Div. 456. There a legatee under a Scotch will or trust deed was allowed to maintain an action for administration against the executors who had proved in Eng- land, three of whom were in this country and the others had been served in Scotland,, without objection. The usual administration order was made, though there were no assets in England; but the late master of the rolls and Lord Justice Cotton both pointed out that the plaintiff's claim was undisputed, and the master of the rolls repudiated the notion' that Scotland is a foreign country for the purpose of such a question of jurisdiction According to Enohin v. Wylie, 10 H. L. Cas. 1, if the claim had been contested, and had involved a disputed question of the construc- tion of a Scotch will, it may be doubted if a. decree could properly have been made. But the case is infinitely stronger where the con- tested claim is based upon the right to land where the land is situate, not in Scotland, but in Dresden, where the question whether the plaintiff has any claim or not, must be determined by the law of Saxony as to im- movables, and where the only ground for in stituting proceedings in this country is the fact that the defendants are resident here. All these circumstances concur in this case, and in my opinion the courts of civil judica- ture in England, which sit, as Lord Westbury said in Cookney v. Anderson, 1 De Gex, J. & S. 365, to administer the municipal law of this country, have no authority to determine in such a case as this whether or not the plain- tiff's claim is well founded, and I must there- fore dismiss this action. THE MAXIMS OF EQUITY. 79 LANGDON et al. v. SHEEWOOD. (8 Sup. Ct. 429, 124 U. S. 74.) Supreme Court of the United States. Jan. 9, 1888. In error to the circuit court of the United States for the district of /Nebraska. > This was an action of ejectment, brought by Wiilis M. Sherwood against Anthony J. Langdon and Michael J. Langdon. Judgment was rendered for the plaintiff, and the de- fendants sued out a writ of error. J. M. Woolworth, for plaintiffs in error. John M. Thurston, for defendant In error. MILLER, J. This is a writ of error to the circuit court of the United States for the district of Nebraska. The defendant in eiTor brought in that court a suit in the nature of an action of ejectment to recover several . tracts or parcels of land then in the posses- sion of the plaintiffs in error. The case was first tried before a jm-y, and the verdict aft- erwards set aside. By a written agreement of the parties, it was then submitted to the court without a jury. That court made a general finding in favor of the plaintiff, Sher- wood, and certain special findings, and upon both of these rendered a judgment for him, for all the land claimed in his petition. A bill of exceptions was taken, which related to the introduction of evidence and the find- ings of the court On this bill of exceptions and the special findings of fact, the plaintiffs here assign two principal errors. The first one of these, which aifects all the land embraced in the suit, has reference to the Introduction and effect of a decree in chancery, rendered in the circuit court of the United States for the district of Nebraska, April 9, 1883, in which Sherwood was com- plainant, and the Sauntee Land & Ferry Com- pany was defendant. The plaintiff In the action of ejectment, having given evidence which he asserted showed title to all the land in controversy in the Sauntee Land ■ & Ferry Company, introduced the record of this suit in chancerry to establish a transfer of the title by means of the proceedings in that suit from that company to himself. The bill of cotnplaint set out that this company, while owner of the land, had made a verbal agreement with William A. Gwyer that the latter should take, have, and hold the real estate mentioned, as his own property, and, as consideration for the same, should pay off, settle, and discharge the indebtedness of the company. The decree of the court establish- ed the fact that Sherwood had acquired the interest of Gwyer In the property, whereby he became the equitable owner of it all, and that he was entitled to have a conveyance of the legal title from the Sauntee Land & Ferry Company. The decree then proceeded in rhe following language: "It is further or- dered and decreed that the respondent, the Sauntee Land & Ferry Company, shall, "with- in twenty days after the entry of this de- cree, execute, acknowledge, prove, and re- cord, in the manner provided by law, a good and sufficient deed of conveyance to the complainant of all said real estate, to vest the entire legal title thereof in the respond- ent, and to deliver said deed of convey- ance, so executed, acknowledged, proved,. and recorded, to the complainant. It is fur- ther ordered and decreed that, in case said respondent shall fail, neglect, or refuse to make, execute, acknowledge, prove, record, and deliver to the complainant such deed of conveyance within the time herelnbefor& fixed, then and In that case, this decree shall stand and be a good, sufficient, and complete conveyance from the respondent, the Sauntee Land & Ferry Company, to the complain- ant, WilUs M. Sherwood, of all the right, ti- tle, and estate of said respondent in and to said real estate, and shall be taken and held as good, complete, and perfect a deed of con- veyance as would be the deed of conveyance hereinbefore specified. And that the re- spondent, and all persons claiming through,, from, or under it, be, and they are hereby, perpetually barred, restrained, and enjoined from asserting any right, title, ownership, or interest In or to said real estate adversely to the complainant, and from In any man- ner interfering with the peaceable and quiet possession of complainant in and of the same." No conveyance was ever made under this decree by that company, and it is objected that for this reason Sherwood did not acquire by that proceeding the strict legal title, but only obtained an equitable one, and the quieting of that title as against the Sauntee Land & Ferry Company. Section 429, Code Neb., is, however, relied upon by Sherwood's counsel as giving to the decree in his favor in the chancery suit the effect of an actual conveyance of the title. That section is as follows: "When any judgment or decree shall be rendered for a conveyance, release, or ac- quittance in any court of this state, and the party or parties against whom the judgment or decree shall be rendered do not comply therewith within the time mentioned in said judgment or decree, such judgment or decree shall have the same operation and effect, and be as available, as if the conveyance, release, or acquittance had been executed conformable to such judgment or decree." We are of opinion that, if this section of the Code be valid, it was the intention of the makers of it that a judgment and decree such as the one before us should have the same effect, where the parties directed to make the conveyance fail to comply with the order, as it would have had if they had complied, in regard to the transfer of title from them to the party to whom they were bound to convey by the decree. The lan- guage of this section of the Code hardly admits of any other construction. When the party decreed to make the conveyance does not comply therewith within the time men- fcO THE MAXIMS OF EQUITY. tioned in the judgment or decree, such judg- ment or decree shall have the same effect -and operation, and be as available, as if the conveyance had been executed. The oper- ation or effect here meant was the trans- ifer of title, and it could not have been made any clearer if it had said that it should iitLve the effect of transferring the title from ithe party who fails to convey to the one to whom it ought to be conveyed. This must have been the meaning in the minds of the legislators. It was undoubtedly the ancient and usual course, in such a proceeding, to ■compel the party who should convey to per- form the decree of the court, by fine and imprisonment for refusing to do so. But in- asmuch as this was a troublesome and ex- pensive mode of compelling the transfer, and the party might not be within reach of the process of the court so that he could be attached, it has long been the practice of many of the states, under statutes enacted for that purpose, to attain this object, either by the appointment of a special commis- sioner who should convey in the name of the party ordered to convey, or by statutes sim- ilar to the one under consideration, by which the judgment or decree of the court was made to stand as such conveyance on the failure of the party ordered to convey. The validity of these statutes has never been questioned, so far as we know, though long in existence in nearly all the states of the Union. There can be no doubt of their •efficacy in transferring the title, in the courts of the states which have enacted them; nor do we see any reason why the courts of the United States may not use this mode «f effecting that which is clearly within their power. The question of the mode of transferring real estate is one peculiarly within the ju- risdiction of the legislative power of the state in which the land Ues. As this court has repeatedly said, the mode of conveyance is subject to the control of the legislature «f the state; and as the case in hand goes upon the proposition that the title had passed from the government of the United States, and was in controversy between private citi- zens, there can be no valid objection to this mode of enforcing the contract for convey- ance between them according to the law of Nebraska. U. S. v. Crosby, 7 Cranch, 115; €lark v. Graham, 6 Wheat. 677; McCormick V. Sullivant, 10 Wheat. 192; U. S. v. Fox, 94 U. S. 315; Brine v. Insurance Co., 96 U. S. 627; Insurance Co. v. Cushman, 108 U. S. 51, 2 Sup. Ct. 236. We cannot see, therefore, any error in the circuit court in permitting the proceedings in the chancery suit to be eiven in evidence, nor in giving to them the effect of transferring from the Sauntee Land & Ferry Company such legal title as it had to any of the property in controversy. The plaintiff, in order to sustain his right of action in this suit, offered in evidence, first, a certificate of the register of the land- i office at Omaha, Nebraska, of the date of August 14, 1857, of the location by John Joseph Wright of a military land-warrant upon the S. W. % of the S. W. % of sectioa 28, and the W. % of the N. W.V of section 33, In township 13 N., of range 10 B., containing 130 acres. He also offered the assignment of this land and the certificate to the Sauntee Land & Ferry Company. Another certificate of the receiver at Omaha, of the same date, was also offered, acknowledging the payment of $45.50 for the purchase of lot No. 1 of quarter section No. 33, in township No. 13 N., of range 10 E., containing 36 acres and 40-100, and an assignment thereof to the same company. To both of these certificates and assignments the defendants objected, on the ground that they were immaterial, and did not purport to be a conveyance of said lands, and that title could not be shown in this action of ejectment by a certificate of a register or receiver. In its findings, the court, upon this subject, finds specially that, by virtue of these certificates, "the said Wright became seized in fee of the said lands, and that, by his deed of conveyance there- of, the same passed to the Sauntee Land & Ferry Company." It has been repeatedly decided by this court that such certificates of the officers of the land department do not convey the legal title of the land to the holder of the certifi- cate, but that they only evidence an equitable title, which may afterwards be perfected by the issue of a patent, and that in the courts of the United States such certificates are not sufficient to authorize a recovery iu an action of ejectment. The ground of these decisions is that in these courts a recovery in ejectment can only be had upon the strict legal title, that this class of certificates pre- supposes the existence of the title in the United States at the time they were given, and that something more is necessary to show that this legal title was ever divested from the United States by a patent or other- wise. The decisions on this subject are quite numerous, and the principle on which they rest has been frequently asserted, and main- tained with uniformity. In the case of Bag- nell V. Broderick, 13 Pet 436, this question was very fully considered; and the language of the court, expressive of the result ar- rived at, is that "congress has the sole power to declare the dignity and effect of titles emanating from the United States; and the whole legislation of the federal government in reference to the public lands declares the patent the superior and conclusive evidence of legal title. Until its issuance, the fee is in the government, which, by the patent, passes to the grantee; and he is entitled to recover the possession in ejectment." Femi V. Holme, 21 How. 481, was also a case of this character, and in that the court said: "This is an attempt to assert at law, and by a legal remedy, a right to real property,— an action of ejectment to establish the right THE MAXIMS OF EQUITY. 81 of possession in land. That ttie plaintiff in -ejectment must in all cases prove a legal title to the premises in himself at the time -of the demise laid in the declaration, and that evidence of an equitable estate v?ill not be sufficient for a recovery, are principles so elementary and so familiar to the pro- :fession as to render unnecessary the cita- tion of authority in support of them." The «ise of Hooper v. Scheimer, 23 How. 235, was an action of ejectment in the circuit court of the United States for the Eastern ■district of Arkansas. The plaintiff endeavor- ed to maintain his right to recover posses- sion by the production of an entry made in the United States land-office. A statute of Arkansas enacted that an action of ejectment may be maintained where the plaintiff claims possession by virtue of an entry made with the register or receiver of the proper land- office. This court, however, after referring to the case of Bagnell v. Broderick, and de- ■claring that its principles are the settled doctrine of the court, adds: "But there Is another question standing in advance of the foregoing, to-wit: Can an action of ejectment be maintained in the federal courts against a defendant in possession, on an entry made with the register and receiver?" To which -question it responds by saying: "It is also the settled doctrine of this court that no action of ejectment will lie on such an equi- table title, notwithstanding a state legisla- ture may have provided otherwise by stat- ute. The law is only binding on the state courts and has no force in the circuit courts of the Union." See, also, Foster v. Mora, 98 U. S. 425, for an assertion of the same principle. The defendants in error rely upon section 411, Code Civ. Proc. Neb., which is analo- gous in its provisions to the statute of Ar- kansas referred to in the case of Hooper v. Scheimer. That section is as follows: "The usual duplicate receipt of the receiver of Any land-office, or, if that be lost or destroy- ed, or beyond the reach of the party, the ^certificate of such receiver that the books of Tils office show the sale of a tract of land to a certain individual, is proof of title, equiva- lent to a patent, against all but the holder of an actual patent." But, whatever effect may be given to this statute in the courts of the state of Nebraska, it is obvious that in the circuit court of the United States it cannot toe received as establishing the legal title In 8HI5P.EQ.JDK. — 6 the holder of such certificate. Where the question is one of a derivation of title from the United States, it is plain that this class of evidence implies that the title remains in the United States. The certificate is given for the purpose of vesting in the receiver of it an equitable right to demand the patent of the government after such further proceed- ings as the laws of the United States, and the course of business in the departments, may require. The circuit court cannot pre- sume that a patent has been issued to the l)arty to whom such, certificate was issued, cr to any one to whom he may have trans- ferred it. The fact of the issue of a pat- ent is a matter of record in the land depart- ment of the United States, and a copy of that record may be so easily obtained by au- plication at the proper office that no necessity exists for the acceptance in an action at law of the receipt of a register or receiver as a substitute for the patent. If It never issued, it is obvious that the legal title remains in the United States, and, according to the well-settled principles of the action of eject- ment, the plaintiff cannot be entitled to re- cover in the action at law. To receive this evidence, and to give to it the effect of prov- ing a legal title in the holder of sucn a re- ceipt, because the statute of the state pro- poses to give to it such an effect, is to vio- late the principle asserted in Bagnell v. Brod- erick. that it is for the United States to fix the dignity and character of the evidences of title which Issue from the government. And it is also in violation of the other princi- ple settled by the cited decisions, that in the courts of the United States a recovery in eject- ment can be had alone upon the strict legal title, and that the courts of law do not enforce In that manner the equitable title evidenced by these certificates. There was error, therefore, in the decision of the court admitting these certificates from the land-office as evidence of title, and in the finding that there was such evidence of title in the plaintiff as justified the recovery. The judgment of the court on the facts found in regard to the remainder of the land is cor- rect. It must, however, be reversed for the error in regard to the 156 acres and 40-100 In- cluded in the two certificates of the land-of- fice. It is therefore remanded, with Instruc- tions to render judgment against the plaintiff for the 156 acres and 40-100, and In his favor for the remainder of the land. 82 THE MAXIMS OF EQUiTT. MASSIE V. WATTS.i (6 Oranch, 148.) , Supreme Court of the "United States. Feb. Term, 1810. This was an appeal from a decree of the cu'- cuit court of the United States, for the dis- trict of Kentucky, in a suit in equity brovtght by Watts, a citizen of Virginia, against Mas- sie, a citizen of Kentucky, to compel the latter to convey to the former 1,000 acres of land in the state of Ohio, the defendant having ob- tained the legal title with notice of the plain- tiff's equitable title. The material facts, so far as intelligible without a plat, are stated in the opinion of the court. Mr. Pope, for plaintiff. P. B. Key and H. Clay, for defendant. MARSHALL, 0. J., delivered the opinion of the court. This suit having been originally instituted, in the court of Kentucky, for the purpose of obtaining a conveyance for lands lying in the state of Ohio, an objection is made by the plaintiff in error, who was the defendant be- low, to the jurisdiction of the court by which the decree was rendered. Taking into view the character of the suit in chancery brought to establish a prior title originating under the land law of Virginia against a person claiming under a senior pat- ent, considering it as a substitute for a caveat introduced by the peculiar circumstances at- tending those titles, this comt is of opinion, that there is much reason for considering it as a local action, and for confining it to the court sitting within the state in which the lands lie. "VN'as this cause, therefore, to be considered as involving a naked question of title, was it, for example, a contest be- tween Watts and Powell, the jurisdiction of the circuit court of Kentucky would not be sustained. 'But where the question changes its character, where the defendant in the original action is liable to the plaintiff, either in consequence of contract, or as trustee, or as the holder of a legal title acquired by any species of mala fides practised on the plaintiff, the principles of equity give a court jurisdic- tion wherever the person may be found, and the circumstance, that a question of title may be involved in the inquiry, and may even con- stitute the essential point on which the case depends, does not seem sufficient to arrest that jurisdiction. In the celebrated case of Penn v. Lord Bal- timore, 1 Ves. Sr. 444, the chancellor of England decreed a specific performance of a contract respecting lands lying in Xorth America. The objection to the jurisdiction of the court, in that case, as reported by Vesey, was not that the lands lay without the jurisdiction of the court, but that, in cases relating to bound- - Irrelevant parts omitted. aries between provinces, the jurisdiction was exclusively in the king and council. It is in reference to this objection, not to an ob- jection that the lands were without his juris- diction, that the chancellor says, "This court, therefore, has no original jurisdiction on the direct question of the original right of bound- aries." The reason why it had no original jurisdiction on this direct question was," that the decision on the extent of those grants, in- cluding dominion and political power, as well as property, was exclusively reserved to the king in council. In a subsequent part of the opinion, where he treats of the objection to the jurisdiction of the court, arising from its inability to en- force its decree in rem, he allows no weight to tliat argument. The strict primary decree of a court of equity is, he says, in personam, and may be enforced in all cases where the person is within its jurisdiction. In confirma- tion of this position he cites the practice of the courts to decree respecting lands lying in Ireland and in the colonies, if the person, against whom the decree was prayed, be found in England. In the case of Arglasse v. Muschamp, 1 Vern. 75, the defendant, residing in England, having fraudulently obtained a rent-charge on lands lying in Ireland, a bill was brought in England to set it aside. To an objection made to the jurisdiction of the court the chan- cellor replied, "This is surely only a jest put upon the jurisdiction of this court by the common lawyers; for when you go about to bind the lands and grant a sequestration to ex- ecute a decree, then they readily tell you that the authority of this court is only to reg- ulate a man's conscience, and ought not to affect the estate, but that this court must agere in personam only; and when, as in this case, you prosecute the person for a fraud, they tell you that you must not intermeddle here, because, the fraud, though committed here, concerns lands that lie in Ireland, which makes tlie jurisdiction local, and so wholly elude the jurisdiction of this court." The chancellor, in that case, sustained his jurisdic- tion on principle, and on the authority of Archer and Preston, in which case a contract made respecting lands in Ireland, the title to which depended on the act of settlement, was enforced in England, although the defend- ant was a resident of Ireland, and had only made a casual visit to England. On a rehear- ing before Lord Keeper North this decree was affirmed. In the case of Earl of Kildare v. Sir Morriee Eustace, 1 Aern. 419, it was determined, that if the trustee live in England, the chancellor may enforce the trust although the lands lie in Ireland. In the case of Toller v. Carteret, 2 Vern. 494, a bill was sustained for the foreclosure of a mortgage of lands lying out of the jurisdiction of the court, the person of the mortgagor be- ing within it. Subsequent to these decisions was the case THE MAXIiI8 OF EQUITY. 83 of Penn against Lord Baltimore, 1 Ves. Sr. 444, in wliich the specific performance of a con- tract for lands lying in North America, was decreed in England. Upon the authority of these cases, and of others which are to be found in the books, as well as upon general principles, this court is of opinion that, in a case of fraud, of trust, or of contract, the jurisdiction of a court uf chancery is sustainable wherever the pei'son be found, altliough lands not within the ju- risdiction of that court may be affected by the- decree. 84 THE MAXIMS OF EQUITY. OOWPER V. COWPER.1 (2 P. Wms. 720.) High Court of Chancery of England. 1734. ABSTRACT OF OPINION. "The law is clear, and the courts of equity ought to follow it in their judgments, con- cerning titles to equitable estates; otherwise great uncertainty and confusion would en- sue; * * * and as it is said in Eooke's Case, 5 Coke, 996, that discretion is a science, 1 Irrelevant parts omitted. — not to act arbitrarily according to men's wills and private affections, — so ihe discre- tion which is exercised here is to be governed by the rules ot law and equity, which are not to oppose, but eac!i in its turn to be sub- servient to the other. This discretion in some cases follows the law implieitly; in others assists it, and advances the remi'Uy; in others, again, it relieves against the abuse, or allays the rigor of it; but in no case does it contradict or overturn the grounds or principles thereof, as has been sometimes ig- norantly imputed to this court." THE MAXIMS OF EQUITY. 85 MAGNIAC et al. v. THOMSON. (15 How. 281.) Supreme Court of the United States. Dec. Term, 1853. The case is stated in the opinion of the court. The agreement between the debtor and the creditor, referred to, was as fol- lows: "Magniac v. Thomson. No. IS. Circuit Court of the United States, Pennsylvania District, October, 1826. "Defendant having been taken by ca. sa. in this suit, at his instance it is agreed that he be set at liberty on giving security to abide the event of an issue to be formed for ascertaining, by judicial decision, wheth- er he has the means, by the property in his marriage settlement or otherwise, of satisfy- ing the judgment, which issue is to be form- ed by plaintifE's affirmance and defendant's denial of such means; both parties hereby consenting to try such issue at the ensuing session of the circuit court of the United States for this district, on the merits, with- out regard to form or to the time when the jury may be summoned; it being expressly acknowledged by defendant that this agree- ment is made for his accommodation, with- out any prejudice whatever to arise to the plaintiff's rights by the defendant's enlarge- ment on security as aforesaid or otherwise howsoever. "April 8, 1830. John R. Thomson." "I hereby become answerable for the per- formance of the terms above stated, which I guarantee. R. F. Stockton. "Witness, J. P. Norris, Jr." "On the part of the plaintiffs in this case, I hereby consent to the defendant's enlarge- ment on the terms stated in his within prop- osition and agreement of this date. "C. J. IngersoU, Attorney. "9th April, 1830." E. IngersoU and C. Ingersoll, Jr., for ap- pellants. John M. Read and Mr. Cadwalla- der, contra. DANIEL, J., delivered the opinion of the court. This is an appeal from a decree of the cir- cuit court of the United States for the east- ern district of Pennsylvania. The appellants, by their bill in the circuit court, alleged that, being creditors of the ap- pellee in a very large amount of money previously lent and advanced to him, they, in the year 1828, instituted their action for its recovery on the law side of the court, when It was agreed, by writing filed of rec- ord, that a judgment should be entered against the appellee as of the 26th of No- vember, 1827, in favor of the appellants, for the sum of $22,191.71. That this judgment, with a large accumulation of interest, re- mained unappealed from and unsatisfied, ei- ther in whole or in part. That the appel- lants, after obtaining this judgment, believ. ing that the appellee was possessed of con- cealed means of satisfying it, and especially that when in a state of insolvency, and with a view of defeating his creditors, he had set- tled upon his wife a large amount of prop- erty, and, as afterwards appeared, made transfers of property to her between the date of the judgment and of the execution thereon, they sued out upon the said judg- ment a writ of capias ad satisfaciendum, returnable to the April term of the court, 1830, and in virtue of that process caused to be taken into actual custody the body of the appellee. That under the exigency of this process and arrest, the appellee would have been compelled to continue in close confine- ment, or could have obtained his release therefrom solely by the laws of Pennsyl- vania passed for the relief of insolvent debt- ors, which laws would have exacted of the appellee an assignment to his creditors of all estate, property, or interests whatso- ever, held by himself or by others for him, or unlawfully settled upon his wife; and would have conferred upon him only an im- munity against further bodily restraint by reason of the non-payment of such debts as were due and owing from him at the date of such proceedings in insolvency; but that the appellee, being at the time of his arrest a citizen of the state of New Jersey, could not have been admitted to the benefits of the insolvent laws of Pennsylvania until after remaining three months in actual con- finement under the writ of capias ad satis- faciendum. That on the 19th of November, 1825, a marriage contract was executed between the appellee and Annis Stockton, his in- tended wife, and Richard Stockton, the fa- ther of said Annis, by which agreement the said Richard Stockton was invested with a large amount of real and personal property in trust for the benefit of the ap- pellee and his intended wife during their joint lives, and if the said appellee should survive his intended wife and have issue by her, in trust for his benefit and for the maintenance and support of his family; and if there should be no child or children of the said marriage, then after the death of the husband or wife, in trust to convey the property to the survivor in fee-simple. That the appellee being arrested and in actual custody under the capias ad satis- faciendum, sued out as aforesaid, it was then and there agreed in writing, between the appellants and the appellee, that the former should, without prejudice to their rights and remedies against the latter, per- mit him to be forthwith discharged from custody under the said process, and that the appellee should go to the next session of the circuit court of the United States for the eastern district of Pennsylvania, and on S6 THE MAXIMS OF EQUITY. the law side of that court make up an Issue with the appellants, to try the question whether the appellee was possessed of the means, either in or out of the marriage set- tlement, of satisfying the judgment against liim; the said issue to be tried without re- st- rd to form, or to the time when the jury for the trial whereof should be summoned, the appellee also giving security to abide the result of the trial of said issue. That mpon the execution of this agreement, the appellee was released from custody, and the marshal for the eastern district of Pennsyl- vania, to whom the writ of capias ad re- sjjondendum was directed, made a return upon the writ that he had talvcn the body of the appellee into custody, and that he had been discharged by the consent and direc- tion of the appellants. That the trial of the issue, which was provided for in the said agreement, actually took place, and re- j suited in a verdict by which, so far as con- cerned the purposes of the said trial, it was found that the appellee had not the means, either in or out of the said marriage settle- ment, of satisfying the judgment of the ap- pellants. The bill alleges that by the force and ef- fect of the agreement in writing and of the proceedings in pursuance thereof, the appel- lee obtained no further or other right or advantage, than a present discharge from close custody, and the judgment of a court (if competent jurisdiction that he was then possessed of no means, whether in or out of the said marriage settlement, wherewith to satisfy the judgment of the appellants. It further states, that since the judgment upon the issue made up and tried as aforesaid, the wife of the appellee had died without issue, and in consequence of that fact all es- tate and property vested in the trustee by the marriage settlement, and found by the issue tried as aforesaid to be then protected thereby from the creditors of the appellee, had become the absolute property and es- tate of the appellee, and had either by the original trustee in the marriage settlement or by his successor, been conveyed and de- livered over to the appellee as his own es- tate and property, free and clear of any trust whatsoever. That the trust created by the marriage settlement, and by which the above propei'- ty comprised therein was adjudged to be protected against creditors, having expired by its own limitation, that property had be- come liable to the creditors of the appellee who was bound to a full account of the value thereof and for the satisfaction of the rights and demands of the appellants out of the same. That the appellants had accord- ingly applied to the appellee for payment of their judgment, to be made out of the prop- erty comprised in and protected by the mar- riage settlement or out of any other re- sources at his command, but had been met Jt>y a refusal on the part of the appellee, founded not upon his inability to satlslj the just claim of the appellants for money actually loaned, but upon an alleged exemp- tion from all liability resulting from the facts of his having been once arrested un- der a capias ad satisfaciendum, and subse- quently released from custody by consent of the appellants. The bill alleges this refu- sal, and the foundation on which it is pla- ced, to be in direct violation of the written agreement, which explicitly declared that it was made for the accommodation of the appellee, and without any prejudice what- ever to arise to the plaintiffs' (the appel- lants') rights, by the defendant's (the ap- pellee's) enlargement. It charges the re- fusal and objection now interposed to be fraudulent, and made in bad faith, and as such, though it might avail at law to embar- rass or prevent the enforcement of the judg- ment of the appellants, yet that a court of equity should prohibit a resort thereto on account of its unconscientious and fraudu- lent character. The bill concludes with a prayer, that the appellee may be enjoined from setting up, as a discharge from the judgment against him, his release from cus- tody under the circumstances of the case set forth; that an account may be taken of the several subjects of property comprised in the marriage settlement, and of the rents, profits, interest, and dividends accruing therefrom, since the death of the wife of the appellee; that satisfaction out of those subjects, of the judgment and claim of the appellants may be decreed; the bill seeks also for general relief. To this bill the appellee, (the defendant in the circuit court,) demurred, assigning, for causes of demurrer, that if. the taking into custody of the body of the defendant under the capias ad satisfaciendum was a legal dis- charge of the alleged debt, the complainants are not relievable in equity from the effect thereof for or by reason of any act, matter, or thing in the bill alleged; and if the taking into custody was not such a legal discharge, then the complainants have full, adequate, and complete remedy at law; and further that the taking into custody under the said writ was and is to be deemed to have been a discharge and extinction of the judgment of the plaintiffs at law, and a discharge and extinction as well at law as in equity of the debt for which the same was obtained; and the cause coming on to be heard upon the demurrer, the court by its decree sustained the demurrer and dismissed the complain- ants' bill with costs. The correctness, or incorrectness of the de- cree thus pronounced, are now the subjects of our consideration. Extensive or varied as may be the range of inquiry presented by the bill with respeet to what is therein averred to appertain to the merits of this controversy, or to the char- acter of the acts of the parties thereto, the view and the action of this court in relation THE MAXIM:5 OF EQUITY. 87 to that cause must be narrowed necessarily to the questions of law arising upon the de- murrer. In approaching these questions there may be propounded as postulates or legal truisms, admitting of no dispute, the following propositions :— 1. That wherever the rights or the situa- tion of parties are clearly defined and estab- lished by law, equity has no power to change or unsettle those rights or that situation, but in all such instances the maxim equitas se- quitur legem is strictly applicable. 2. That wherever there exists at law a complete and adequate power, either for the prosecution of a right or the redressing of a wrong, courts of equity, with the exception of a few cases of concurrent authority, have no juris- diction or power to act. To the test of these rules the case before us, in common with every appeal to equity, should be brought, and if the effect of such test should prove to be adverse, that effect should be sought in the character of the ap- peal itself, and not in objections to maxims which judicial experience and wisdom have long established. Recurring now to the his- tory of tliis cause, let us inquire what vns the precise situation of the parties, what their legal rights and responsibilities at the date of the judgment and arising therefrom, what have been their acts and proceedings subsequently to that judgment, and the con- sequences flowing from their acts to their pre- vious relative position. Upon the recovery of their judgments the appellants had their election of any of the modes of final process known to the courts of law, or they might in equity have impeached the marriage settle- ment for any vice inherent in its considera- tion, or for an attempt fraudulently to inter- pose that settlement between the appellants' judgment and its legal satisfaction. But in their election of any of the forms of final process, the appellants must be held to have known the nature of that process, and the con- sequences incident to its choice and consum- mation. To permit an ignorance of these, or in other words an Ignorance of the law, to be alleged as the foundation of rights, or in ex- cuse for omissions of duty, or for the priva- tion of rights in others, would lead to the most serious mischief, and would disturb the en- tire fabric of social order. In choosing the writ of capias ad satisfaciendum, therefore, for the enforcement of their judgment, the appellants can derive no benefit from a pre- sumption of ignorance or misapprehension as to the effects of calling into activity this severest and sternest attribute of the law. Such a presumption is wholly inadmissible. They must be affected with knowledge of whatever has been settled as to the nature of this writ, and of whatever regularly fol- lows ai. resort to its use. They were bound to know, 1st, that the service of a capias ad satisfaciendum, by taking Into custody the body of the debtor, operates a satisfaction of the debt; and for that reason deprives the creditor of all recourse to the lands, or chattels, or property of any description be- longing to his debtor. For a doctrine well settled and familiar as is that, it may ap- pear superfluous to cite authorities; but we may refer to some of these, commencing with the early cases of Foster v. Jackson, Hob. 52; Williams v. Gutteris, Cro. Jac. 136, and Rolle, Abr. 903; and coming down through the more modern authorities of Mr. Justice Blackstone (3 Comm. p. 415); 4 Bur- rows, 2482; 1 Term E. 557; 2 East, 243, and 13 Ves. 193. To these cases might be added many decisions in the courts both in Eng- land and In the different states of this coun- try; and, as conclusive of the same doctrine, in this court the case of Snead v. M'Coull, 12 How. 407. So unbending and stringent was the application of the doctrine maintained by the earlier cases, that prior to the stat- ute of 21 Jac. I. c. 24, the death of a debtor ! wliilst charged in execution, an event wliich I rendered the process absolutely unavailable ! to the creditor, deprived the latter neverthe- 1 less of a right to a further execution; the j jealousy of the common law denying to him i any power beyond that he had exerted in the I privation of the personal liberty of the debt- I or. The statute of James authorized the ex- ception of the death of the debtor to this inhibition of the common law, and to this exception has been added the instances of escape or rescue, seemingly upon the ground that in these instances the debtor should not be regarded as legally out of custody. The taking of a body under a capias ad satis- faciendum being thus held the complete and highest satisfaction of the judgment, it would follow ex consequenti, that a dis- charge of the debtor by the creditor would imply an acknowledgment of such satisfac- tion, or at any rate would take from that judgment the character of a warrant for re- sorting to this highest satisfaction in re- peated instances for the same demand. But the authorities have not stopped short at a mere technical restraint upon the creditor who may seek to repeat the arrest of the debtor whom he once had in confinement; they have gone the length of declaring, that If a person taken on a capias ad responden- dum was discharged, the plaintiff had no fur- ther remedy, because he had determined the choice by this kind of execution, which, af- fecting a man's liberty, is esteeme^ the high- est and most rigid in the law. See the cases from Hobart, Croke Jac, and Rolle's Abr., before cited. Again, it has been ruled that if the plaintiff consent to the defendant be- ing discharged out of execution, though upon an agreement, he cannot afterwards retake him, although the security given by the de- fendant on his discharge should be set aside. 4 Burrows, 2482; 1 Term R. 557; 2 East, 243; and the lord chancellor, in 18 Ves. 193, uses this explicit language: "It Is clear, that, by taking the body in execution, the debt is satisfied to all intents and purposes." 38 THE MAXIMS OF EQUITY. Many American cases may be avouched in support of the same doctrine. In the case of U. S. V. Stansbury, 1 Pet 573, Chief Justice Marshall says: "It is not denied that at com- mon law the release of a debtor 'whose person is in execution,' is a release of the judg- ment itself. The law will not permit a man to proceed at the same time against the per- son and estate of his debtor; and when the creditor has elected to take the person, it pre- sumes satisfaction if the person be voluntarily released. The release of the judgment is, therefore, the legal consequence of the volun- tary release of the person by the cred-cor." In the case of Wendrum v. Parker, 2 Leigh, 361, it is said by Carr, J., that the "levy of a ca. sa. and the release of the debtor from execution by the plaintiff or his agent, is an extinguishment of the debt, I have consider- ed as well settled as any point can be by an unbroken series of decisions." And in the case of Noyes v. Cooper, 5 Leigh, 188, Brock- enbrough, J., says: "It has been undoubted- ly established by a series of decisions, that where a defendant in execution has ueen dis- charged from imprisonment by direction or with the consent of the plaintifE, no action will ever again lie on the judgment, nor can any new execution issue on that judgment, even though the defendant was discharged on an ecxpress understanding that he should be liable again to be taken in execution on his failure to comply with the terms on which the discharge took place." Upon a collation of the authorities applica- ble to the acts and proceedings of the par- ties to this controversy at the time, and sub- sequently to the judgment in favor of the ap- pellants against the appellee, we are led to the following conclusions, namely, that by suing out a capias ad satisfaciendum upon their judgment, and by taking into actual custody the body of the appellee under this process, the appellants had obtained that complete and highest satisfaction of their demand, of which they could be deprived only by the act of God, by operation of law, or by their own acknowledgment, or by a release of their debtor; tliat by entering into the arrangement stated in the bill, and by discharging the appellee from custody, the appellants have, in all legal intendment, ad- mitted satisfaction of their demand, released the appellee from all liability therefor, and destroyed every effect of their judgment as the foundation of legal rights. Such bsing our conclusions upon this branch of the case, and the same conclusions being implied in the application of the appellants for equita- ble Interposition, the inquiry here presents itself, whether a court of equity can be called upon to advocate or impair, or in any manner or degree, to interfere with clear, ascertain- ed, and perfect legal rights? The simple statement of such an inquiry suggests this reaay and only correct reply:— Equity may be invoked to aid in the com- pletion of a just but imperfect legal title, or to prevent the successful assertion of an un- conscientious and incomplete legal advan- tage; but to abrogate or to assail a perfect and independent legal right, it can have no pretension. In all such instances, equity must follow, or in other words, be subordi- nate to the law. With the view doubtless of giving color to their application, the appel- lants have intimated, (for they can hardly be said to have charged it positively and direct- ly,) that the marriage settlement of the ap- pellee was made in fraud of his creditors, and they have directly averred that the re- fusal of the appellee after the death of his wife to apply the property comprised in that settlement, in satisfaction of the judgmeut of the appellants, was at once fraudulent, and in direct violation of the agreement ia pursuance of which the appellee was dis- charged from custody. With respect to each of these allegations, however, the appellant* are entirely deficient in their proofs, and in the latter, the statement does not accord with the document, that is, the written agree- ment between the parties on which this aver- ment is founded. No evidence seems to hiive been adduced upon the trial which took place in pursuance of the agreement, to impeach the fairness of the marriage contract; and the absence of any attempt to establish its unfairness, together with the charge of the court to the jury, would seem to exclude the existence, or at that time the belief of the existence, of fraud in the settlement. The agreement entered into at the time of the ap- pellee's release from custody contains no stipulation that he would hold himself liable to another execution dependent on the event of the issue contemplated by that agree- ment, or that he would consider the judg- ment as still in full force against him. And if there had been a stipulation of the kind, we have seen that it could not have averted the consequences flowing from the discharge of the appellee from custody; but the only conditions for which the appellee covenanted were that he would make up and try the is- sue proposed and would abide the result of the ti'ial; witn both of which conditions the appellee has literally complied, a'his charge of fraud then, even if it could in any aspect of this question have been available, is en- tirely unsustained. With regard to the question raised by the demurrer as to the obligation of the appel- lants to pursue their remedy at law, under the allegation in the bill, that such legal rem- edy had been reserved to them by the terms of the agreement, there can be no doubt, upoa the supposition that this remedy remained un- impaired, that the appellants could not arbi- trarily abandon it, and seek the interposition of equity in a matter purely legal. The aver- ment therefore, by the appellants, of the con- tinuation of tlieir judgment, and of their right to enforce it by execution in all their original force and integrity, is wholly irrecon- cilable with any known head or principle of THE MAXIMS OF EQUITY. ay equity jurisdiction, and their bill Is essen- tially obnoxious to objection on that ac- count. "We are of the opinion that the decree of tlie circuit court, sustaining the demurrer to the bill of the appellants, (the complainants in the circuit court,) is correct, and ought to be, as it is, hereby afllrmed, with costs. ■90 THE MAXIMS OF EQUITY. CITY OF ST. LOUIS v. O'NBIL LUMBER CO. et al. (21 S. W. 484, 114 Mo. 74.) Supreme Court of Missouri. Division No. 1. Feb. 6, 1893. Appeal from St. LiOuis circuit court; Jacob Klein, Judge. Petition hy the city of St. Louis that certain creditors of James McLane, a con- tractor, be compelled to interplead for tlie purpose of determining their rights in a iund owing by the city to the contractor. From a judgment of the circuit court giv- ing preference to tbn O'Nci! LumbT Com- pany, James M. Uoyle and others ap- pealed. The court of appeals affirmed the judgment, and the case was then certified to the supreme court. Reversed. J. H. Trembl.y and Rassieur & Schnur- inacher, for respondent. BRAC'E, J. This case is certified here from the St. Louis court of appeals, under section 6 of the amendment of the i.unsti- tution adopted in 18S4. The statement of the case, made by Judge Biggs of that •court, is as follows: "On the J7th day of July, 1S88, the mu- nicipal assembly of the city of St. I^ouis passed an ordinaiiceauthorizingthe bourd of pulilic improvements to contract for certain alterations and repairs at the House of Refuge. Section 2 of the ordi- nance is as follows: 'The cost of tl)e8l)ove 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 repairsof the Uouseof Kefuge.' The work was let to (me 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- <3red dollars. By contract numbered 2,0.'^3 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 63' Mc- Lane as principal and the interpleaders Thomas (;. Higgins and John M. Sellers as his sureties. Among other things, the con- tracts provided that 'in case the con tractor «hall 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 sucii inate/'ials as he may find on the line of said work, or toprocureother materials for the completion of the same, and to charge the expense of said labor and ma- terialstothecontractor; 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.iucasHsuch e.vpense is less than the amount still due under the •contract, had it been completed by the contractor, be shall be entitled to receive the difference, and, in case such expense is greater, the party of the first part (which includes the contractor and his sureties) shall pay the amount of such excess.' The contracts al«o contained the following provision: 'And said party of the first purt (which includes the contractor and his sureties) hereby further agrees that he Will furnish the said b:)ard of public im- provements with satisfactory evidence that all persons who have done or fur- nished materials uiider this agreement, and are entitled to a lien 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 tlie faithful per- formance of the foregoing contracts in ev- ery particular. The foregoing quotations from thf contracts are believed to he 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, 18SM, when he absconded from the state, leaving the work in an unfinished condi- tion. It is conceded that np 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 ime 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 sura of thirty-seven dollars for wB due Higgins and Ssllers 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 proi)erty sold, which may be described in any account or lieu, the proceeds arising from such sale, when not siitticient to discharge in full all the liens against the same without reference to the date of filing the account or lien, shall be paid pro rata on tlie respective liens: pro- vided, such account or liens shall have been filed and suit brought as provided by tliis article.' Kev. St. 1X89, § 6727; Rev. .St.l«79, § :il93. With this statute in force, the city of St. Louis, in making the contract vvitii McLane, inserted the following provision : 'And said party of the first part (wliich includes the contractor and his sureties) hereby furcher agree.i that he will furnish the said board of public improvements with satisfactoryevidencethat all persons who have done work or furnished mate- rials under this agreement, and are enti- tled to a lien therefor under any law of 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 consiiler 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 retaineilfrom the moneys due the said party of the first part under this agreement until the liabili- ties aforesaid may be fully discharged.' With this provisi(jn inforce,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, iudi'/ating a clear purjiose 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 contiactor 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. 642, to hold enough of what was due McLane in the character of trustee for the material men who had furnished to him materials which he used in the work. But events took such a turn that there was not enough 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 conrt to require the contending parties to inter- plead for it, which was done. It is also 92 THE MAXIMS OP EQUITY. true that the city has not, littler the terms of the contract, elected to Bet tins fund apart, and to hold it for any particular beneticiarv; hut nevertheless 1 cannot but think that it outiht 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 has no doubt existed in the contract forms on which the city lets ont contracts for city buildings from a time when it was sup- posed that the city buildiuKS were liable to meclianics' liens. Persons supplying materials to city contractors may fairly he 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 t.'iis fuitli Is broken, and this just expectation disap- pointed, when tlje creditor that makes the first grab at the fund set apart for ail gets a preference over the other, albeit in a court called a court of equity. "Tlie 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 vsilh the character of a trust fund for tlie equal benefit of tlie ma- terial men, and has certainly not indicat- ed a contrary purpose l)y lianding 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 derisions in this state the proceeding has been denominated an 'equ. table gar- nishment.' But that expression vs as used for the mere convenience of having a name for an anomalous proceeding. It was not used with refarenceto the question of prior- ities, which we are here considering. To my mind, there is no such thinm as an 'eq- uital)le garnishment' in the sense in which it is here souiiht to employ the term, any more than there is an equitable indict- ment, or an equitable l)ill of attainder. But if we are to disrecard the policy of the statnte relating to mechanics' liens, and it we ai'e also to disregard the contract be- tween the city and JMcLane, 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, un which the same result should be worked out. It is the doctrine of our supreme court in Rieper v. Riepor, 79 Mo. 352,— the &ame beJng,BO far as 1 can see, the last controlling decision of that court upon this question,— in wliich 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 bauie docti-iue waa stated and applied by this court in Hei- raan v. Fisher, 11 Mo. App. 275, and in St. Louis V. Keane. 27 Mo. App. 646. M hat,, then, are equitable assets' Judge Bake- well, in Heiman v. Fisher, 11 Mo. App. at page 280. says that 'equitable assets ar& such as can he reached only bythe aid of a court of equity, and the established rule U 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 renfon, and that reason alone, equitable assets. Nor does it appear ti> 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 aia of processes of equity alone. To bring them witliin the well-known rule in respect of the dis- tribution of equital)le assets, it is enough that they cannot be touched in any way without aid of a court of equity, and tliat whatever creditor gets saifsfaction out of them must submit himself to the princi- ples of a court whose favorite maxim is that equity is equality. But to this view there is opposed the argument that in this state, in the case of what is called a cred- itors' bill in aid of an execution at la w 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 crele assets merely because he may happen to file his bill a day before the oth- ers? Tliis is notrewardiuK diligence, conr- flge, labor, and the expenditure of money. It 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 sicUness 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- €r V. Rieper, 79 Mo. 352, which was, beyond question, correctly decided. In both cas,es 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 Rieper v. Rieper, seeks to subject the separate es- tate of a married woman, gets no lien by the merefiling of his bill, and for the naked reason that the assets are equitable ns- fiets, 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 S0, 681; Brown v. Furniture Co., 7 C. O. A. 22.j, 58 Fed. 28G; Hills v. Furniture Co., 23 Fed. 432; Buell v. Buckingham, 16 Iowa, 284; Smith V. Skeary, 47 Conn. 53; and Holt v. Bennett, 146 Mass. 437, 16 N. E. 5. Gould V. Railway Co. does not sustain the .position of appellant. That case involved, among other things, the validity, as against the creditors of a railroad corporation, of a deed of trust executed as additional security to certain stockholders and directors who had previously advanced large sums for it, and for the repayment of which the company pledged as collateral security mortgage bonds known at the time to be inadequate as se- curity. But it was the best security the com- pany could then give. Subsequently it ob- tained a grant of lands from the state, and at a later date, 1884, the above deed of trust was given to secure the above loans or ad- vances. Now, the company, when it made the deed of trust, had not abandoned, and did not intend to abandon, the prosecution of its business. Nor was it hopelessly insolvent. On the contrary, it appeared, and the fact is stated in the report of the case, that "at the date of the execution of the deed of trust the floating debt of the company was inconsiderable, and the company continued to be a going concern, and to own its road, until it was sold in 1887 under a decree fore- 1 Bradley v. Converse, 4 Clife. 375, Fed. Cas. No. 1,776; Bradley v. Farwell. 1 Holmes, 433, 430, 443, Fed. Cas. No. 1,779; Corbett v. Wood- ward, 5 Sawy. 403, 417, Fed. Cas. No. 3,223; Adams v. Milling Co., 35 Fed. 433; Consoli- dated Tank-Line Co. v. Kansas City Varnish Co., 45 Fed. 7; Stout v. MUling Co., 4 Mc- Crary, 488, 13 Fed. 802; Haywood v. Lumber Co., 64 Wis. 639, 26 N. W. 184; Olney v. Land Co., 16 R. I. 597, 599, 18 Atl. 181; Beach v. Miller. 130 111. 162, 22 N. E. 464; Roseboom v. Whittaker, 132 111. 81, 23 N. E. 339; Richards V. Insurance Co.. 43 N. H. 264; Smith v. Put- nam, 61 N. H. 632, 634; Corey v. Wadsworth (Ala.) 11 South. 350; Robins v. Embry, 1 Smedes & M. 207, 255; Coons v. Tome. 9 Fed. 534; Marr v. Bank, 4 Cold. 476, 477; Hopkins' Appeal, 90 Pa. St. 76; Sweeny v. Sugar-Re- fining Co., 30 W. Va. 433, 4 S. E. 431; Lowry Banking Co. v. Empire Lumber Co.. 91 Ga. 624, 17 S. E. 968; Lyons-Thomas Hardware Co V. Perry Stove Manuf'g Co.. 86 Tex. 143, 24 S. W. 16; Roan v. Winn. 98 Mo. 503, 4 S. W. 736; Williams v. Jackson County Pa- trons, 23 Mo. App. 132. See, also. Improvement Co. V. Terrell, L. R. 10 Eq. 174; Green, Ultra \ires (2d Ed.) 477, 479; 2 Perry. Trusts (3d Ed.) § 904; 2 Mor. Priv. Corp. § 803. 102 THE MAXIMS OF EQUITY. closing the mortgage given to secure its first- mortgage bonds." The general observations in the opinion in that case must, of course, be Interpreted in the light of these facts, and the decision taken as being only that a cor- poration, although in failing circumstances, may, by mortgage, give a preference to some of its creditors, even to directors, if it be done in good faith to meet existing demands and to keei) it "a going concern." Brown v. Furniture Co., which arose in the state of Michigan, was detei'mined upon the authority of decisions in the supreme court of Michigan, particularly Bank of Mon- treal V. .1. E. Potts Salt & Lumber Co., 90 Mich. 345, 51 N. W. 512. It was contended in that case that the court should reach a conclusion as upon a doctrine of general law, but it declined to do so, holding it to be its duty, when the matter was one of doubt, to lean towards the decisions of the state court. Hills V. Furniture Co. was also a Michigan case, and involved the validity of a mortgage to secure creditors, and to pro- tect directors against liability arising from their indorsements for the company. It may be observed that the court, in the latter case, considering generally the right of the mort- gagor company to give the mortgage there in question, quotes from the testimony of one of its officers, who, in describing the circum- stances attending its execution, said: "We thought we could then, aided by the time thus obtained, go on and pay what we owed. We had no idea but what our debts would be paid." Buell V. Buckingham involved the vaUdity of a sale of property belonging to a private corporation to one of its directors, in dis- charge of its obligation to him. It is suf- ficient to observe, in reference to that case, as was done by Judge Woods in Lippincott V, Carriage Co., above cited, that in that, case there was no evidence that the corpora- tion was insolvent, or that the sale there in question embraced all its property. The o;ise necessarily involved only the question whether the sale was void by reason alone of the fact that the purchaser was a director of the corporation that sold the property. .Smith v. Skeary does not sustain the broad pi-opositiou that an insolvent corporation, which intends to discontinue altogether the prosecution of its business, may transfer its property to a director, being a creditor, to the exclusion of other creditors. That was a ease in which directors of a corporation, who were also creditors, took personal prop- erty from it in discharge of their claim. But the transfer to them was in good faith, in the ordinary course of business, and In the honest belief on the part of directors that the corporation would be able to meet all its liabilities, although it appeared sub- sequently that the fact was otherwise. In Holt V. Bennett a creditor of a corporation disputed the validity of a mortgage made by it for the benefit of two of its directors. The court, among other things, said: "The whole transaction is found to have been done in good faith. With the intent to put the cor- poration on a better footing to go on with its business and develop its patents, which were deemed to be valuable. * * * Even if, when this deed was made, the property of the corporation, outside of the value of the letters patent possessed by it, was in- sufficient to pay its debts in full, the process patented was honestly believed to be of great value, and indeed has since been made suc- cessful, although by another corporation. The position of the plaintiff appears to be that a corporation intending in good faith to proceed with its business, and to render the patents available which it possesses, cannot pay its directors money which it has bor- rowed from them in the ordinary course of business without rendering them responsible for the amount which they thus receive to any of its creditors whose debts may then be owing from it, although not then due and payable. This is quite untenable. The cases cited by the plaintiff which hold that where a corporation is insolvent it cannot make conveyances of its property in contemplation of such insolvency, for the security of its directors who are also its creditors, to the exclusion of others, do not require examina- tion or discussion. They have no relation to a case like that at bar. There was no rea- son why this corporation should not conduct its business in the ordinaiy manner, even if incidentally debts for borrowed money were paid to its directors; this being done fairly, and in its prosecution of the object for which it was formed." It is clear that the Massachusetts case is not an authority in support of appellant's position, but looks the other way. This question, so far as we are aware, has not been determined by the supreme court of Indiana, under whose laws the mortgagor company became a corporation. But the ap- pellant insists that the case is covered by the statutes of Indiana, which provide: "All conveyances or assignments, in writing or otherwise, of any estate in lands, or of goods or things in action, every charge upon lands, goods or things in action, and all bonds, con- tracts, evidences of debt, judgments, decrees, made or suffered with the intent to hinder, delay, or defraud creditors or other persons of their lawful damages, forfeitures, debts, or demands, shall be void as to the persons sought to be defrauded." "The question of fraudulent intent, in all cases arising under the provisions of this act, shall be deemed a question of fact." Rev. St. Ind. 1881, §§ 4920, 4924 (Rev. St. 1894, §§ 6045, G649). Under this act It has been held that fraud in the disposition of property cannot be pre- sumed, but must be averred and proved, and that an insolvent debtor may by mort- gage give a preference to some of his credit- THE MAXIMS OF EQUITY. 103 ors, although he may at the time intend by another instrument, and at an early day thereafter, to make a general assignment, under the statute, of his property for the benefit of creditors. And this principle has been applied even where the preferred cred- itor was the wife of the debtor, the only proper inquiry in all such cases being wheth- er the debt secured was a genuine one. Gil- bert V. McCorkle, 110 Ind. 215, 11 N. E. 29G; Bice V. Irvin, 110 Ind. 561, 11 N. E. 488; Fletcher v. Martin, 126 Ind. 55, 25 N. E. 886; Shillito Co. V. McConnell, 130 Ind. 41, 26 N. E. 832; Hutchinson v. Bank, 133 Ind. 271, 30 N. E. 952; Fuller v. Mehl, 134 Ind. 60, 33 N. E. 773. In our judgment these cases have no ap- plication to the one now before us. The In- diana statute does not cover the whole sub- ject of the conveyance or transfer of prop- erty in violation of the rights of others. It •does not embrace every case of an Insolvent private _ corporation which mortgages its property to secure an antecedent debt due to one of its directors. The statute was aim- ed at conveyances or assignments of proper- ty made with the intent to hinder, delay, or defraud creditors or other persons of their lawful rights or demands. A mortgage made in good faith, without intent to hinder, de- lay, or defraud other creditors, but for the sole purpose of preferring a particular cred- itor, is not prohibited. The statute does not take away the right to give such a prefer- ence where it could be lawfully done ac- cording to the principles of the common law. It leaves the question of the vaUdity of a conveyance not made with the forbidden in- tent, but simply for the purpose of preferring a particular creditor, to be solved by any general, recognized principles that are appli- cable to such a case. At common law even a general assignment by a debtor of his en- tire property for the benefit of all his cred- itors, although it interfered with the enforce- ment by the ordinary process of law of the demands of creditors, was not regarded as hindering or delaying creditors, witliin the meaning of the statutes against fraudulent conveyances. Reed v. Mclntyre, 98 U. S. 507, 509 et seq., and authorities cited. So an as- signment or mortgage which operates as a preference of a particular creditor is not in itself fraudulent, or a hindrance or delay, within the meaning of the Indiana statute, and its validity depends upon the nature and circumstances of the transaction. The case of au insolvent corporation, which has no purpose to continue in business, and which, in the distribution of its property, gives a preference to one of its directors, being also a creditor, — such preference being given with no intent to hinder, delay, or defraud other creditors,— is left untouched by the statute. The determination of such a case may depend altogether upon the fiduciary relation sustained by the directors to the property and to creditors, and the circum- stances under which the preference was ob- tained. In other words, an assignment or mortgage by an insolvent corporation to one of its directors, being a creditor, may be in- valid either upon the ground that it was made with the intent to hinder, delay, or de- fraud other creditors, or upon the ground that it was inconsistent with the fiduciary relations held by the director to the proper- ty or to creditors. If the first ground be not established,— that is, if the fact of the fraud- ulent intent is not proved,— it would not fol- low that the second would be overruled. No case has been cited indicating that the su- preme court of Indiana has relaxed in any degree the salutary rule that forbids any one holding a trust fund to obtain by his own act, or by the act of those associated with him in such holding, any peculiar advantage for himself, to the prejudice of those inter- ested equally with him in the distribution of such fund. In the present case it appears that two of the directors of the insolvent mortgagor com- pany owned nearly 400 out of the 1,000 shares of the stock of the mortgagee company. The mortgage therefore had the eflfect to protect their interests in the property of the latter corporation against the liability previously incurred by its accepting drafts drawn by the former, and to withdraw the property mortgaged from its primary liability for the debts of the mortgagor company. The case presented is consequently one in which an insolvent corporation, recognizing its inabili- ty to further prosecute its business, and with no hope of recovering from its financial em- barrassments, gives a preference by mort- gage of its property to some of its directors, being also creditors. According to the prin- ciples we have announced, this could not be rightfully done. For the reasons we have given the judg- ment of the circuit court Is atSrmed. 104 THE MAXIMS OF EQUITY. BERRY V. MUTTJAIi INSURANCE CO. (2 Johns. Ch. 603.) Court of Chancery of New York. 1817. KENT, Ch. The equitable rights of the par- ties, la this case, must have reference to the time when the knowledge of their respective mortgages was communicated to each other, in the winter of 1814, and prior to the registry of the elder mortgage. The subsequent reg- istry by the plaintiffs was of no avaU. The rights of the parties had become fixed, by means of the notice, previously, mutually and concurrently given, and which notice, as to them, answered all the purpose and object of a registry. Priority of registry never prevails over a previous notice of an unregistered mortgage. 10 Johns. 461. 462. In consider- ing this case, then, I shall place entirely out of view the fact of the registry. The real point in the case Is, which of the unregistered mortgages had the preference in equity, when the information of their existence was given and received. If there be several equitable interests affect- ing the same estate, they will, if the equities are otherwise equal, attach upon it, according to the periods at which they commenced; for it is a maxim of equity, as well as of law, that qui prior est tempore potior est jure. This rule has been repeatedly declared; (Clarke v. Abbott, 2 Eq. Cas. Abr. 606. pi. 41; Bristol V. Hungerford, 2 Vern. 525; Synimes V. Symonds, 1 Brown, Pari. Cas. 66; [4 Brown, Pari. Cas. (2d Ed.j 328]; Brace v. Marlbor- ough, 2 P. Wms. 492, 495,) and we are to see if there be any thing in this case to prevent the application of it. There is no fraud charged or proved upon the plaintiffs, and If they are to be postponed, notwithstanding they have the elder mort- gage, it must be on the ground of culpable negligence, either in leaving the lease with the mortgagor, when they took the mortgage of his term, or in hot causing their mortgage to be seasonably registered. I feel strongly disposed to give to these circumstances all the weight to which they can be entitled. 1. It is understood to have been the old rule in the English chancery, that if a person took a mortgage, and voluntarily left the title deeds with the mortgagor, he was to be post- poned to a subsequent mortgagee, without no- tice, and who was in possession of the title deeds. The reason of the rule was, that, by leaving the title deeds, he enabled the mort- gagor to impose upon others who have no reg- istry to resort to, except in the counties of Yorkshire and Middlesex, and who, therefore, can only look for their security to the title deeds, and the possession of the mortgagor. The rule was so understood and declared, by Mr. Justice Burnet, in Ryall v. RoUe, 1 Atk. 168, 172; 1 Ves. Sr. 380, and by Mr. Justice Buller, in Goodtitle v. Morgan, 1 Term R. 762, and there are decisions which have given great weight to the circumstance of the title deeds being in possession of the junior mort- gagee. Thus, in Head v. Bgerton, 3 P. Wms. 279, the lord chancellor said, It was hard enough upon a subsequent mortgagee, that he had lent his money upon lands subject to a prior mortgage, without notice of it, and, therefore, he could not add to his hardship, by taking away from him the title deeds, and giving them to the elder mortgagee, unless- the first mortgagee paid him his money.; espe- cially as the first mortgagee, by leaving the title deeds with the mortgagor, had been, in some measure, accessory in drawing in the defendant to lend him money. This case, however, so far from establishing what was supposed to be the old rule of equity, evident- ly contradicts it, and admits the better title in the first mortgagee. So, in the case of Stanhope v. Vemey, 2 Eden, 81, before Lord Northington, (Butler's note to Co. Litt 290, 296, § 13,) the second mortgagee, without no- tice, had possession of the title deeds, but the chancellor did not give him the preference on that single circumstance, but because he also had got possession of an outstanding term. There does not seem, therefore, to be the requisite evidence of the existence of any such rule in equity, as has been stated by some of the judges; and if there was, a dif- ferent rule has been since established. It 1& now the settled English doctrine, that th& mere circumstance of leaving the title deeds with the mortgagor, is not, of itself, suflacient to postpone the first mortgagee, and to give the preference to a second mortgagee, who takes the title deeds with his mortgage, and without notice of the prior encumbrance. There must be fraud, or gross negligence, which amotmts to it, to defeat the prior mort- gage. There must be something like a volun- tary, distinct, and unjustifiable concurrence, on the part of the first mortgagee, to the mortgagor's retaining the title deeds, before he shall be postponed. Lord Thurlow, in Tourle v. Rand, 2 Brown, 650, said, he did not conceive of any other rule by which the first mortgagee was to be postponed, but fraud or gross negligence, and that the mere fact of not taking the title deeds was not suf- ficient; and that if there were any cases to the contrary, he wished they had been named. So the rule was also understood by Chief Bar- on Eyre, in Plumb v. Fluitt, 2 Anst. 432, and has since been repeatedly recognized. Lord Eldon, m 6 Ves. 183, 190. Sir WiUiam Grant, in 12 Ves. 130. 1 Fonbl. Bq. 153, 155, note. It is admitted, by these same high authorities, to be just, that the mortgagee, who leaves the title deeds with the mortgagor, so as to enable him to commit a fraud, by holding himself out as absolute owner, should be post- poned; but the established doctrine Is, that nothing but fraud, express or implied, will postpone him. 2. The hardship and abuse complained of in the English cases, arise from the want of a general registry act, under which a second mortgagee can always secure himself. I be- THE MAXIMS OF EQUITT. 105 lieve there are no registry acts in Englana, except in certain counties, as Yorlsshire and Middlesex; and the provision in such cases, (see Stat. 3 and 4 Anne c. 4,) is similar to that in our act concerning mortgages, and gives the subsequent purchaser, or mortgagee, the preference, if the memorial of his deed be first registered. It has been decided, in John- son V. Stagg, 2 Johns. 510, that our act con- cerning the registry of mortgages extends to leases for years, assigned by way of mort- gage; and that the leaving of the lease with the mortgagor, was no evidence of fraud, be- cause the registry of the mortgage was a ben- eficial substitute for the deposit of the deed, and gave better and more effectual security to subsequent mortgagees. The registr:f of the mortgage is notice; and if the first mortgagee neither takes the title deeds, nor registers his mortgage, he only exposes himself, and not the subsequent purchaser, or mortgagee. The statute expressly secures the bona fide purchaser, and it equally enables the subse- quent mortgagee to secure himself, by regis- tering his mortgage. We have seen that the leaving the title deeds with the mortgagor is no prejudice to the first mortgage; and there is the less ne- cessity for it with us than in England, be- cause, with us, the creditor who subsequently, and without notice of any prior unregistered mortgage, deals with the mortgagor, can al- ways protect himself in the easiest and most effectual manner; and, supposing he omits to do it, by a misplaced confidence in the mort- gagor, has he any equitable claim to be pre- ferred to a prior mortgagee, who, under the same misplaced confidence, has. equally omit- ted to dp it? This is the turning point in the present case. The first mortgage was valid without regis- try. The statute does not render a registry indispensable. The omission of the registry only exposes the mortgagee to the hazard of a loss of his lien by a subsequent bona fide purchase, or to the hazard of a postponement of his lien to a subsequent registered mort- gage. A second mortgage will not, per se, and without registry, gain a preference. There is no such principle to be deduced from the statute, and there is no reason or necessity for it in the nature of the case. The reason why a bona fide purchaser is expressly excepted from the operation of an unregistered mort- gage is, that he could not otherwise deal with safety, and would be exposed, even with the utmost vigilance, to the frauds of the mort- gagor. The act does not provide for the reg- istry of his deed, but only for the registry of mortgages, and gives them a preference ac- cording to the priority of the registry. The second mortgagee protects himself by his reg- istry, but the purchaser does not, and cannot; and, therefore, the statute declares that his deed shall absolutely prevail over the unregis- tered mortgage. The statute of 3 and 4 Anne, relative to the west riding of Yorkshire, pro- vides for the registry of deeds and mortgages promiscuously, and, therefore, places them upon an equal footing. Though, in one sense, every mortgage is a purchase, yet the mortgage act evideutlj- speaks of purchasers, in the popular sense, as those who take an absolute estate in fee. There is no pretext for considering a mere mortgagee as a purchaser, within the mean- ing of the second section of the act concern- ing mortgages. I have not been able to discover any prin- ciple of law or equity that will enable me to say, that the first mortgage is to be deprived of its advantage of priority of time. The omission to register the mortgage was not capable of producing any mischief to third persons, who would use ordinary diligence and precaution. The defendants ought not to charge a negligence upon the plaintiffs of which they have been equally guilty. It was their own fault or folly that they were not protected. They trusted to the assurances of the mortgagor that his land was unencum- bered; and the plaintifCs trusted equally In the mortgagor, that he would not, afterwards, sell or mortgage the land. It is a common rule, say the books, that where of two per- sons, equally innocent, or equally blamable, one must suffer, the loss shall be left with him on whom it has fallen; and here comes in the other rule, that the equities being oth- erwise equal, the priority of time must deter- mine the right. It Is very clear that the fir/vt mortgagee was not bound to register his mortgage, because the law makes It valid, as between the par- ties, without registry. The registry Is only a matter of precaution, and the statute has pro- vided against all the mischief of the omission. If the party will not avail himself of the means of safety provided by statute, he can- not expect that this court will grant him fur- ther aid, and especially against a party whom he charges with no fraud. If relief is ever given in any case, on the gi'oimd of policy, or constructive fraud, against the sale or mort- gage of property, it is because, from the non- delivery of possession, or from other circum- stances, imposition had or might have been practised, which could not be detected or guarded against by the exercise of ordlnarj' diligence. No sucli ground for relief exists In this cage. I am, accordingly, of opinion, that the plain- tiffs are entitled to relief, according to the prayer of their bill, and that the defendants are either to account to them for the amount due on their bond and mortgage, or that the residue of the term be sold for the satisfac- tion of their debt. The costs of suit are to be paid out of the property mortgaged. Decree accordingly. 106 THE iMAXIMS OF EQUITY. MUIIt V. SCHEN'CK. (3 Hill, 228.) Suprome 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 live installments. When three installments had been paid to the plaintiff, he assigned the bond to D. as collateral se-i •cuiity. 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 lie himself claimed the balance. The lower court held that the last payment' to A. was good, notwithstanding D.'s no- tice. By the Court, CO WEN, 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 secur- ing the preference as against him; and Aus- tin might have been compelled at tlie election of Doty to pay over to him the last install- iment received from the defendants. But before that.installment was paid, he chose to fix the defendants by giving notice of his Tight to them, and forbidding the payment -of any more to Austin. Tlie 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 receive, the defendants had now 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. at least, that it should be modified so as to> restrain the plaintiff from using his buzz saw on the defendants' premises. As we have- seen, the judgment against the delendants isi- f uUy warranted by the findings; and the ques- tion is, whether any modification should bo 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 yie 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 (he party thus recriminated to ex- plain or refute the charges. (Tripp v. Cook, 26 Wend., 143; MoDonald v. Neihon, 2 Cow., 190; easier v. Shipman, 35 N. Y.. 53i.) 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; aud 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 ind.spensable 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 riglits, 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. Judgment accordingly. IHE ilAXlilS OF KQUITY. 109 BARTLE V. NUTT. (4 Pet. 184.) Supreme Court of the United States. Jan. Term, 18S0. The case is stated in the opinion of the court. Swaun & Jones, for aijpellant. Jlr. Taylor, •Contra. BALDWIN, J., delivered the opinion of the <.ourt. This suit was brought on the chancery side ■of the circuit court of the District of Colum- Ijia for the county of Alexandria, by the ap- pellant (complainant) against the appellee (re- spondent). The object professed is to obtain a .settlement of accounts arising out of a part- nership charged to have existed between the ■complainant and respondent and one Ferdi- nand Marsteller. The bill charges that, in 1814, a contract was •entered into between the complainant and the i'overnment of the United States, for rebuild- ing Fort ^A'ashington. That, when the contract was made, it was agreed between the respondent, Ferdinand Mareteller, and the complainant, that they should share the profits of the contract; that is, that each of them should receive one third part of the profits. That the respondent was to furnish the concern with such merchandise as might be necessary, disburse the funds of the concern, and keep the accounts relative to such disbursements; that the complainant was to superintend the work, and Marsteller to •drawing and furnishing the money for carry- ing it on. The bill charges that, under this arrange- ment, the work was commenced and finished, and that, on its measurement, it was supposed a. profit had been made of about $4,500; and that, accordingly, ?1,500 were advanced to the respondent as his share of the profits. That, about the close of the business, it was •discovered that Marsteller had committed great frauds on the government, and that the complainant gave information of these frauds to the department of war, in consequence of which Marsteller was disgraced, and soon aft- €r died insolvent. That, soon after this development, the re- spondent instituted suit against the complain- ant for a balance claimed on his store account, and for money disbursed by him for complain- ant; that the complainant instituted a cross- action against the respondent, and both suits were, by mutual consent, referred to arbitra- tor's. That, when the reference was made, the •complainant expected that the arbitrators would go into a full examination of the partner- ship accounts in relation to the government con- tract, as well as in relation to tlie individual accounts of the parties. But that, when the arbitrators proceeded to act. they declined looking on the transaction as a partnership one, and thought themselves bound to consider the accounts as unconnected with that ccn- ccrn; and finally awarded against the ecni- plainant $4,497.42, in which was included an allowance of $1,500, for Coleman's share of the profits of the contract, and $1,534, for commissions in disbursing the money received from the government. That the copartnership has been always in- debted to the complainant, on account of the contract with the government. The bill then proceeds to some details re- specting the accounts, at this time not impor- tant, and prays for an account and general re- lief. The answer admi^ that the complainant. In 1814, entered into a conti-act with Ferdinand Marsteller, agent for the United States, for the rebuilding of Fort Washington, with the terms and conditions of which contract the respondent had no concern. That, it being necessary to have an agent in Alexandria, to procure supplies for cann- ing the contract into efCect, and as Marsteller- had expressed a wish that the money should be disbursed through the agency of the re- spondent, and that the respondent should keep the accounts between Marsteller and the com- plainant, the latter agreed that the respondent should act as agent; and, in the first instance, offered him as a compensation a share of the profits, and the complainant afterwards of- fered him a commission of five per cent, on the disbursements. That the respondent ac- cepted of the latter offer, and under it entered on the agenc.v, after having refused the first. The respondent denies that he was in any shape interested as a corpartner with the com- plainant and Marsteller, or with either of them, in relation to the said contract, or that he ever received any share of the profits; but admits the charge of a commission of five per cent, on the money disbursed by him. He admits that the complainant having re- fused to pay the balance due from him to the respondent on private account, he did institute suit against him; that a cross-suit was brought by the complainant against the re- spondent; that both suits were referred to ar- bitrators, who awarded in the respondent's fa- vor the sum of $4,497.42; that, on the investi- gation before the arbitrators, the complainant set up as an offset the same claim which he prosecutes In this suit, and that it was reject- ed, as unsupported by evidence. The respondent relies on that award and the judgment on it, as a bar to further proceed- ings. The cause came on to be heard on the bill and answer, and after various proceedings not necessary to notice, the bill was dismissed without costs; the court being of opinion that the partnership charged was contrary to pub- lic policy and sound morals, and that a court of equity ought not to lend its aid to either of the parties against the other. Among the exhibits in the cause was the con- tract between the complainant and the govern- ment, dated 17th September, 1814, signed and no THE MAXIMS OF EQUITY. sealed by complainant, and witnessed by Thom- !is Lowe. •-.Accepted for the United States, by order of Colonel Monroe, secretary of war. F. Mar- stellor, Deputy Quartermaster-General. Sep- teiiUier 30, 1814." The iiroposition for this contract was ad- dressed by Bartle to Marsteller in writing, and the contract was signed on the same day. From the evidence fallen in the case, it clearly appears that Marsteller acted as the agent of the United States in making the con- tract; that the materials furnished and the la- bor performed were under the direction of Bartle; that the money^ was principally re- ceived from the government by Marsteller, paid over by him to Coleman, who dispersed it on the orders of Bartle. There can be no doubt that Bartle and Marsteller were partners in the profits of the contract; but the capacity in which Coleman acted does not seem to be so certain. There is very strong evidence of his being a partner; but it is not very material wliether he was an agent or a party in a contract made and carried into effect under the circumstances which attended this. The shades of difference which would, in either event, distinguish the moral or legal aspect of the cause, are too slight to engage the atten- tion of the court. By the account of the complainant against the firm of Marsteller, Coleman, and Bartle, it appears that his charges amount to $58,374; and that there is a loss to the concern of $10,538, one half of which he charges to Cole- man; and he seeks to recover this by deduct- ing the amount from a judgment obtained against him by Coleman in the circuit court, affirmed here on a writ of error. Of the alleged loss on this contract, the sum of $8,800 is thus accounted for in the com- plainant's account against the firm: "To de- ductions made by the government (which are against the operative mechanic) from the work and materials. Vide Abstracts B, F, $8,860 dollars of this sum." Of this sum, it appears by Abstract B, that $3,198 were for an over- charge of fifty cents per perch of stone, and fifty cents per thousand of bricks, beyond tli? contract price; and, by Abstract F, that $5,6G1 were for over-measurement of stone, brick, and cai-penter work; so that, deducting these two items from the amount of the loss on the con- tract, it is reduced to $1,678. The case, then, presented for the considera- tion of the circuit court, and now before us for revision, is this: a contract made by the complainant with a public agent, a deputy quartermaster-general, to an amount exceeding $50,000, in the profits of which he was to par- ticipate; false measures attempted to be im- Ijosed on the government; the fraud discov- ered by the vigilance of its accounting officers; and a bill in equity filed to compel an al- leged partner to account for and pay to one of the parties in such a transaction the one half of a loss sustained by an unsuccessful at- tempt to imijose spurious vouchers on the gov- ernment. To state such a case is to decide it Publie morals, public justice, and the well-established principles of all judicial tribunals, alike for- bid the interposition of courts of justice ta lend their aid to purposes like this. To en- force a contract which began with the corrup- tion of a public officer, and progressed in the practice of known and wilful deception in its execution, can never be consummated or sanc- tioned by any court. The law leaves the parties to such a con- tract as it found them. If either has sus- tained a loss by the bad faith of a particeps criminis, it is but a just infliction for premedi- tated and deeply practised fraud, which, when detected, deprives him of anticipated profits or subjects him to unexpected losses. He must not expect that a judicial tribunal will de- grade itself by an exertion of its powers, by shifting the loss from the one to the other, or to equalize the benefits or burdens which may have resulted by the violation of every princi- ple of morals and of laws. This court is unanimously of opinion that the circuit court were right in dismissing the complainant's bill, and aflSrms their decree with costs. THE MAXIMS OF EQUITY. Ill BLEAKLEY'S APPEAIi. (66 Pa. St. 187.) Supreme Court of Pennsylvania. 1870. The opinion of the court was delivered, October 27th J870, by AGNEW, J. The fucts of this cnse are few. Robert Lamberton was the owner of a judgment for $31,000, entered ag;iinst Samuel P. Irvin on the 8th day of .Tune, 1865. Irvin had purcliased of F. D. Kinnear, Esq., lot Mo. 449 in Frankliu at $2600, of whicli $820 only remained unpaid, and would fall due on tlie 6th of August 1865, witli a provision for forfeiture of the contract in case of non-pay- ment for thiitydays after it fell due. On the 19th of July 1865, Irvin assigned his contract to James Bleakley, Ij^iiding him to pay the $820 to save the forfeiture, and with tlieailmilted umlerstanding that Irvin should refund the $820 to Bleakley, settle tiis in- debtedness to the liank, of wliich Bleakley was cashier, and that then Bleakley should reconvey to Irvin's wife. But the assign- ment was antedated to the 1st of May 1865, tl.us overreaching Laniberton's judgment. The master finds that this was dune to de- fraud the plaintiff. The linding is ably vin- dicated in the opinion of Jud.^'e Tinnkey. The absolute cliaracter 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 tlie property by Laml)er- ton on his judgment, evince llie true motive for antedating the paper. Bleakley paid the $820 to Kinnear, and now claims a decree for this sum, before speiiiic performance sliall be decreed to Lam- lierton, who purchased Irvin's title at the sheriff's sale. Kinnear does not resist spe- cilic performance, but stands ready to convey to Lambt-rton, whenever the covinous assign- ment to Bl akley 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 Lamberlon's judgment. Bleakley is made a party to the billonly for the purpose of putting aside the covinous iiss:i,'nment to enable Kinnear to convey to Lamberton. The question then is wlietlier a chiincellor would require Lamberton to refund the .$820 to Bleakley, as a condition to setting aside the assignment and entitling Lamberton to spe- cific performance of Kinnear. But clearly 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 o. Kyner, 6 Walts 221; Wal- lace's Appeal, 5 Barr, 103. On what pretence, in foro conscientice, can a party attempting to carry out a scheme of frautl against an- other, by a payment, claim compensation of tlie 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, mtide by liim because of Irvin's duly to pay, and accepted by Kinnear because of his light to receive- 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 liis right to receive the money in Bleakley. As to Lamberton the payment by Bleakley was not only fraudulent and in- I tendeil to displace his judgment, but it was also voluntary. It was not paid at Lauiu i ton's request nor for his use and benefit; bul on the contrary was intended to defeat liis right, as a creJitor by overlapping his judg- ment, by means of the covinous transfer. Bleakley is therefore neitlier a purchaser, nor a creditor of Lamberton, nor an object of benevolence, but is forced upon tlio record to compel him to put out of the way the frau'lulent barrier to Kinnear's specific per- formance to Lamberton. He cannot, thus islanding before a chancellor, ask liim 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 act. on 1 at law, and if lie can have none, it is a test of his want of equity. And in adiliiion 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 per|ietrate a fraud, to recover liis money, just when the chancellor was engaged in thrusting out of the way of his doing equity to the injured party, the very inslru- ment of the fraud. Who does iniquily 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 belovt' is confirmed.. 112 THE MAXIMS OF EQUITY. WILLARD V. TAYLOB. (8 Wall. 557.) Supreme Court of the United States. Dec, 1869. Appeal from the supreme court of the Dis- trict of Columbia. This was a suit in equity for the specific performance of a contract for the sale of certain real property situated in the city of Washington, in the District of Columbia, and adjoining the hotel owned by the complain- ant, Willard, and known as Willard's Hotel. The facts out of which the case arose were as follows: In April, 1854, the defendant leased to the •complainant the property in question, which was generally known in Washington as "The Mansion House," for the period of ten years from the 1st of May following, at the yearly rent of twelve hundred dollars. The lease contained a covenant that the lessee should have the right or option of purchasing the premises, with the buildings and improve- ments thereon, at any time before the ex- piration of the lease, for the sum of twenty- two thousand and five hundred dollars, pay- able as follows: two thousand dollars in •cash, and two thousand dollars, together •with the interest on all the deferred instal- ments, each year thereafter until the whole was paid; the deferred payments to be se- ■cured by a deed of trust on the property, and the vendor to execute to the purchaser a warranty deed of the premises, subject to a yearly ground-rent of three hundred and ninety dollars. At the time of this lease gold and silver, or bank bills convertible on demand into it, were the ordinary money of the country, and the standard of values. In 1861 the rebel- lion broke out, lasting till 1865. In the inter- val, owing to the influx of people, property in the metropolis used for hotels greatly in- •creased in value, and as was alleged by Tay- loe, who produced what he deemed a record to show the fact, the complainant, Willard, assigned an undivided half of the property which had been leased to him as above-men- tioned to a brother of his. In December, 1861, the banks throughout the country sus- pended payments in specie, and in 1862 and 1863, the federal government issued some hundred millions of notes, to be used as money, and which congress declared should be a tender in the payment of debts. Coin soon ceased to circulate generally, and peo- ple used, in a great degree, the notes of the government to pay what they owed. On the 15th of April, 1864, two weeks be- fore the expiration of the period allowed the complainant for his election to purchase — the property having greatly increased in value since 1854, the year in which the lease was made — the complainant addressed a let- ter to the defendant, inclosing a check, pay- able to his order, on the Bank of America, In New York, for two thousand dollars, as the amount due on the 1st of May following on the purchase of the property, with a blank receipt for the money, and requesting the defendant to sign and return the receipt, and stating that if it were agreeable to the defendant he would have the deed of the property, and the trust deed to be executed by himself, prepared between that date and the 1st of May. To this letter the defendant, on the same day, replied that he had no time then to look into the business, and returned the check, expressing a wish to see the com- plainant for explanations before closing the matter. On the following morning the complainant called on the defendant and informed him that he had two thousand dollars to make the first payment for the property, and offer- ed the monej^to him. The money thus of- fered consisted of notes of the United States, made toy act of congress a legal tender for debts. These the defendant refused to ac- cept, stating that he understood the pur- chase-money was to be paid in gold, and that gold he would accept, but not the notes, and give the receipt desired. It was admit- ted that these notes were at the time greatly depreciated in the market below their nominal value. 1 On repeated occasions subsequently the complainant sent the same amount — ^two thousand dollars— in these United States notes to the defendant in payment of the cash instalment on the purchase, and as oft- en were they refused by him. On one of these occasions a draft of the deed of con- veyance to be executed by the defendant, and a draft of the trust deed to be executed by the complainant, were sent for examina- tion, with the money. This last was prepared for execution by the complainant alone, and contained a pro- vision that he might, if he should elect to do so, pay off the deferred payments at earlier dates than those mentioned in the lease. These deeds were returned by the defend- ant, accompanied with a letter expressing dissatisfaction at the manner in which ne was induced to sign the lease with the clause for the sale of the premises, but stating that as he had signed it he "should have carried the matter out" if the complainant had prof- fered the amount which he knew he had of- fered for the property, meaning by this state- ment, as the court understood it, if he had proffered the amount stipulated in gold. No objection was made to the form of either of the deeds. Soon afterwards the defendant left the city of ^^'ashington, with the intention of being absent until after the 1st of May. On the 29th of April the complainant, find- ing that the defendant had left the city, and perceiving that the purchase was not about to be completed within the period prescribed 1 Between the 15th of April and May 1st, 1864, one dollar in gold was vporth from one dollar and seventy-three cents to one dollar and ■ eighty cents in United States notes. THE MAXIMS OF EQUITY. ll;j by the covenant in the lease, and apprehen- sive that unless legal proceedings were taken by him to enforce its execution his rights thereunder might be lost, instituted the pres- ent suit. In the bill he set forth the covenant giving blm the right or option to purchase the prem- ises; his election to purchase; the notice to the defendant; the repeated efforts made by him to obtain a deed of the property; his of- fer to pay the amount required as the first instalment of the purchase-money in United States notes, and to execute the trust deed stipulated to secure the deferred payments, and the refusal of the defendant to receive the United States notes and to execute to him a deed of the premises. It also set forth the departure of the defendant from the city of Washington, and his intended absence beyond the 1st of May following, and al- leged that the appeal was made to the equi- table intei-position of the court, lest on the return of the defendant he might refuse to allow the complainant to complete the pur- chase, and urge as a reason that the time within which it was to be made had passed. The bill concluded with a prayer that the court decree a specific performance of the agreement by the defendant, and the execu- tion of a deed of the premises to the com- plainant; the latter offering to perform the agreement on his part according to its true intent and meaning. The bill also stated some facts, which it is unnecessary to detail, tending to show that the acquisitiop of the property in question was of especial importance to the complain- ant. The answer set up that the complainant, even on his own showing, had no ease; that there was no proper tender; that even if the complainant once had a right to file a bill in his sole right— the way in which the pres- ent bill was filed— he had lost this right by the transfer of the half to his brother; that the complainant had not demanded an exe- cution even of the contract which he himself set forth, but by the drafts of the tnist deed sent to Tayloe, and which was the tnist deed of which he contemplated the execution, he proposed to pay, at his own option, the whole purchase-money before the expiration of the ten years, and thus would interfere with the duration of that security and investment in the identical property leased, which had been originally contemplated and provided for; thus subjecting the defendant to risk and expense in making a new investment. The answer concluded with an allegation, that "by the great national acts and events which had occurred when the complainant filed his bill, and which were still influencing all values and interests in the country, sUch a state of things had arisen and now existed, as according to equity and good conscience ought to prevent a decree for specific per- formance in this case, upon a demand made on the last day of a term of ten years, even SHBP.BQ.JUR. — 8 if in strict law (which was denied) the com- plainant was entitled to make such demand." Both Tayloe and Willard were examined as witnessus. The former testified, that when the lease was executed he objected to a stipulation for a sale of the premises, and that Willard said it should go for nothing. Willard swore that he had said no such thing. The court below dismissed the bill, and Willard took the present appeal. Curtis, Poland & Howe, for appellant. Cox & McPherson, contra. Mr. Justice FIELD, after stating the facts of the case, delivered the opinion of the court. The covenant in the lease giving the riglit or option to purchase the premises was in the nature of a continuing offer to sell. It was a proposition extending through the period of ten years, and being under seal must be regarded as made upon a sufficient consideration, and, therefore, one from which the defendant was not at liberty to recede. When accepted by the complainant by his notice to the defendant, a contract of sale between the parties was completed. Rail- road Co. V. Bartlett, 3 Gush. 224; Welchman V. Spinks, 5 Law T. (N. S.) 385; Warner v. Willington, 3 Drew. 523; Railroad v. Evans, 6 Gray, 25. This contract is plain and cer- tain in its terms, and in its nature and in the circumstances attending its execution ap- pears to be free from objection. The price stipulated for the property was a fair one. At the time its market value was under fif- teen thousand dollars, and a greater increase than one-half in value during the period of ten years could not then have been reason- ably anticipated. When a contract Is of this character It is the usual practice of courts of equity to en- force its specific execution upon the applica- tion of the party who has complied with its stipulations on his part, or has seasonably and in good faith offered, and continues ready to comply with them. But it is not the invariable practice. This form of re- lief is not a matter of absolute right to either party; it is a matter resting in the discretion of the court, to be exercised upon a consideration of all the circumstances of each particular case. The jurisdiction, said I;ord Erskine (12 Ves. 332), "Is not compul- sory upon the court, but the subject of dis- cretion. The question is not what the court must do, but what it may do under [the] circumstances, either exercising the jurisdic- tion by granting the specific performance or abstaining from it." And long previous to him Lord Hardwicke and other eminent equity judges of England had, in a great variety of cases, asserted the same discretionary power of the court. In .Toynes v. Statham, 3 Atk. 388, Lord Hard- wicke said: "The constant doctrine of this 114 THE MAXIMS OP EQUITY. court is, tliat it is in their discretion, wheth- er in such a bill they will decree a specific performance or leave the plaintiff to his rem- edy at law." And in Underwood v. Hitch- cox, 1 Ves. Sr. 279, the same great judge said, in refusing to enforce a contract: "The rule of equity in cariying agreements into spe- cific performance is well known, and the court is not obliged to decree every agree- ment entered into, though for valuable con- sideration, in strictness of law, it depending on the circumstances." Later jurists, both in England and in the United States, have reiterated the same doc- trine. Chancellor Kent, in Seymour v. De- lancy, 6 Johns. Ch. 222, upon an extended review of the authorities on the subject, de- clares it to be a settled principle that a spe- cific performance of a contract of sale is not a matter of course, but rests entirely in the discretion of the court upon a view of all the circumstances; and Chancellor Bates, of Delaware, in Godwin v. Collins, recently de- cided, upon a very full consideration of the adjudged cases, says, that a patient exam- ination of the whole course of decisions on this subject has left with him "no doubt that, as a matter of judcial history, such a discretion has always been exercised in administering this branch of equity jurisprudence." It is true the cases cited, in which the discre- tion of the court is asserted, arose upon con- tracts in which there existed some inequality or unfairness in the terais, by reason of which injustice would have followed a specific per- formance. But the same discretion is exei-- cised where the contract is fair in its terms, if its enforcement, from subsequent events, or even from collateral circumstances, would work hardship or injustice to either of the parties. In the case of City of London v. Nash, 1 Ves. Sr. 12, the defendant, a lessee, had covenanted to rebuild some houses, but, in- stead of doing this, he rebuilt only two of them, and repaired the others. On a bill by the city for a specific performance Lord Hardwicke held that the covenant was one which the court could specifically enforce; but said, "The most material objection for the defendant, and which has weight with me, is that the court is not obliged to decree a specific performance, and will not when it would be a hardship, as it would be here upon the defendant to oblige him, after hav- ing very largely repaired the houses, to pull them down and rebuild them." In Faine v. Brown (cited in Ramsden v. Hylton, 2 Ves. Sr. 306) similar hardship, flowing from the specific execution of a contract, was made the ground for refusing the decree prayed. In that case the defendant was the owner of a small estate, devised to him on condition that if he sold it within twenty-five years one-half of the purchase-money should go to his brother. Having contracted to sell the property, and refusing to carry out the con- tract under the pretence that he was intoxi- cated at the time, a bill was filed to enforce its specific execution, but Lord Hardwlcko is reported to have said that, without regard to the other circumstance, the hardship alone of losing half the purchase-money, if the contract was can'ied into execution, was sutflcient to determine the discretion of the court not to intei-fere, but to leave the par- ties to the law. The discretion which may be exereised in this class of cases is not an arbitrary or capricious one, depending upon the mere pleasiu'e of the court, but one which is con- trolled by the established doctrines and set- tled principles of equity. No positive rule can be laid down by which the action of the court can be determined in all cases. In general it may be said that the specific relief will be granted when it is apparent, from a view of all the circumstances of the particu- lar case, that it will subserve the ends of justice; and that it will be withheld when, from a like view, it appears that it will pro- duce hardship or injustice to either of the parties. It is not sufficient, as shown by the cases cited, to call forth Lhe equitable intcr- IKjsition of the court, that the legal obliga- tion under the contract to do the specific thing desired may be perfect. It nnist also appear that the specific enforcement ivill work no hardship or injustice, for if that result would follow, the court will leave the parties to their remedies at law, unless the granting of the specific relief can be accom- panied with conditions which will obviate that result. If that result can be thus ob- viated, a specific performance will generally in such cases be decreed conditionally. It is the advantage of a court of equity, as ob- served by Lord Redesdale in Davis v. Hone, 2 Schoales& L. 348, that it can modify the demands of parties according to justice, and where, as in that case, it would be inequi- table, from a change of circumstances, to en- force a contract specifically, it may refuse its decree unless the party will consent to a conscientious modification of the contract, or, what would generally amount to the same thing, take a decree upon condition of doing or relinquishing certain things to the other party. In the present case objection is taken to the action of the complainant in offering, iu payment of the first Instalment stipulated, notes of the United States. It was insisted by the defendant at the time, and it is con- tended by his counsel now, that the covenant in the lease required payment for the prop- erty to be made in gold. The covenant does not in terms specify gold as the currency in which payment is to be made; but gold, it is said, must have been in the contemplation of the parties, • as no other currency, except for small aiuounts, which could be discharged in silver, was at the time recognized by law as a legal tender for private debts. Although the contract in this case was not completed until the proposition of the de- THE MAXIMS OF EQUITY. 115 fendant was accepted in April, 1864, after the passage of the act of congress making notes of the United States a legal tender for private debts, yet as the proposition contain- ing the terms of the contract was previously made, the contract itself must be construed as if it had been then concluded to talie effect subsequently. It is not our intention to express any opin- ion upon the constitutionality of the provi- sion of the act of congress, which malies the notes of the United States a legal tender for private debts, nor whether, if constitu- tional, the provision is to be limited in its ap- plication to contracts, made subsectuent to the passage of the act. See Hepburn v. G-riswold, 8 Wall. 603. These questions are the subject oj special consideration in other cases, and their solution is not required for the determination of the case before us. In the view we take of the case, it is immaterial whether the constitutionality of the provi- sion be affirmed or denied. The relief which the complainant seeks rests, as already stat- ed, in the sound discretion of the court; and, if granted, it may be accompanied with such conditions as will prevent hardship and insure justice to the defendant. The suit it- self is an appeal to the equitable jurisdiction of the court, and, in asking what is equitable to himself, the complainant necessarily sub- mits himself to the judgment of the court, to do what it shall adjudge to be equitable to the defendant. The kind of currency which the complain- ant offered, is only important in considering the good faith of his conduct. A party does not forfeit his rights to the interposition of a court of equity to enforce a specific per- formance of a contract, if he seasonably and in good faith offers to comply, and continues ready to comply, with its stipulations on his part, although he may err in estimating the extent of his obligation. It is only in courts of law that literal and exact performance is required. The condition of the currency at the time repels any imputation of bad faith in the action of the complainant. The act of congress had declared the notes of the United States to be a legal tender for all debts, without, in terms, making any distinction be- tween debts contracted before, and those contracted after its passage. Gold had al- most entirely disappeared from circulation. The community at large used the notes of the United States in the discharge of all debts. They constituted, in fact, almost the entire currency of the country in 1864. They were received and paid out by the govern- ment; and the validity of the act declaring them a legal tender had been sustained by nearly every state court before which the question had been raised. The defendant, it is true, insisted upon his right to payment in gold, but before the expiration of the pe- riod prescribed for the completion of the pur. chase, he left the city of Washington, and thus cut off the possibility of any other tender than the one made within that period. In the presence of this difficulty, respecting the mode of payment, which could not be ob- viated, by reason of the absence of the de- fendant, the complainant filed his bill, in which he states the question which had arisen between them, and invokes the aid of the court in the matter, offering specifically to perform the contract on his part according to its true intent and meaning. He thus pla- ced himself promptly and fairly before the court, expressing a willingness to do what- ever it should adjudge he ought in equity and conscience to do in the execution of the contract. Nothing further could have been reason- ably required of him under the circumstances, even if we should assume that the act of con- gress, making the notes of the United States a legal tender, does not apply to debts cre- ated before its passage, or, if applicable to such debts, is, to that extent, unconstitutional and void. In the case of Chesterman v. Mann, 9 Hare, 212, it was held by the court of tfhancery of England, that where an underlessee had a covenant for the renewal of his lease, upon paying to his lessor a fair proportion of the fines and expenses to which the lessor might be subjected in obtaining a renewal of his own term from the superior landlord, and of any increased rent upon such renewal, and there was a difference between the parties as to the amount to be paid by the under- lessee, he might apply for a specific perform- ance of the covenant, and submit to the court the amount to be paid. So here in this case, the complainant applies for a specific per- formance, and submits the amount to be paid by him to the judgment of the court. We proceed to consider whether any other circumstances have arisen since the covenant in the lease was made, which render the en- forcement of the contract of sale, subsequent- ly completed between the parties, inequitable. Such circumstances are asserted to have aris- en in two particulars; first, in the greatly in- creased value of the property; and second, in the transfer of a moiety of the complain- ant's original interest to his brother. It is true, the property has greatly in- creased in value since April, 1854. Some in- crease was anticipated by the parties, for the covenant exacts, in case of the lessee's elec- tion to purchase, the payment of one-half more than its then estimated value. If the actual increase has exceeded the estimate then made, that circumstance furnishes no ground for interference with the arrangement of the parties. The question, in such cases, always is, was the contract, at the time it was made, a reasonable and fair oneV If such were the fact, the parties are consid- ered as having taken upon themselves the risk of subsequent fluctuations in the value of the property, and such fluctuations are not allowed to prevent its specific enforcement. Wells V. Railway Co., 9 Hare, 129; Low v. ne THE MAXIMS OP EQUITY. Tread well, 12 Me. 441; Fry, Spec. Perf. §§ 235, 252. Here the contract, as already stat- ed, was, when made, a fair one, and in all its attendant circumstances, free from objec- tion. The rent reserved lai-gely exceeded the rent then paid, and the sum stipulated for the property largely exceeded its then market value. The transfer, by the complainant to his brother, of one-half interest in the lease, as- suming now, for the pm-pose of the argu- ment, that there is, in the record, evidence, which we can notice, of such transfer, in no respect affects the obligation of the defend- ant, or impairs the right of the complainant to the enforcement of the contract. The brother is no party to the contract, and any partial interest he may have acquired therein, the defendant was not bound to notice. The owners of partial interests in contracts for land, acquired subsequent to their execution, are not necessary parties to bills for their enforcemeaat The original parties on one side are not to be mixed up in controversies between tte parties on the other side, in which they have no concern. If the entire contract had been assigned to the brother, so that he had become sub- stituted in the place of the complainant, the case would have been different. In that event, the brother might have filed the bill, and insisted upon being treated as represent- ing the vendee. The general rule is, that the parties to the contract are the only proper parties to the suit for Its performance, and, except in the case of an assignment of the eiitire contract, there must be some special circumstances to authorize a departure from the rule. The court, says Chancellor Cottenham, in Tasher v. Small, 3 Mylne & C. 69, "assumes jurisdiction in cases of specific performance of contracts, because a court of law, giving damages only for the non-performance of the contract, in many cases, does not afford an adequate remedy. But in equity, as well as at law, the contract constitutes the right, and regulates the liabilities of the parties; and the object of both proceedings is to place the party complaining, as nearly as possible, in the same situation as the defend- ant had agreed that he should be placed in. It is obvious, that persons, strangers to the contract, and, therefore, neither entitled to the rights nor subject to the liabilities which arise out of it, are as much strangers to a proceeding to enforce the execution of it as they are to a proceeding to recover damages for the breach of it." When the complainant has received his deed from the defendant, the brother may claim from him a conveyance of an interest in the premises, if he have a valid contract for such interest, and enforce such convey- ance by suit; but that is a matter with which the defendant has no concern. It seems that the draft of the trust deed, to secure the deferred payments, sent to the defendant for examination, was prepared for execution by the complainant alone, and con- tained a stipulation that he might, if he should so elect, pay off the deferred pay- ments at earlier dates than those mentioned in the covenant in the lease; and it is ob- jected to the complainant's right to a specific performance, that the trust deed was not drawn to be executed jointly by him and his brother, and that it contained this stipula- tion. A short answer to this objection is found in tht fact, that the parties had dis- agreed in relation to the payment to be made, and until the disagreement ceased no deeds were required. It is admitted that the form of the trust deed was not such a one as the defendant was bound to receive, but as it was sent to him for examination, good faith and fair dealing required him to indi- cate in what particulars it was defective, or with which clauses he was dissatisfied. Whether it was the duty of the complainant or defendant to prepare the trust deed, ac- cording to the usage prevailing in Washing- ton, is not entirely clear from the evidence. There is testimony both ways. The true rule, independent of any usage on the sub- ject, would seem to be that the party who is to execute and deliver a deed should pre- pare it. It is, however, immaterial for this case, what rule obtains in Washington. Un- til the purchase-money was accepted, there was no occasion to prepare any instrument for execution. So long as that was refused the preparation of a trust deed was a work of supererogation. Besides, the execution of the trust deed by the complainant was to be simultaneous with the execution of a con- veyance by the defendant. The two were to be concurrent acts; and if the complainant was to prepare one of them, the defendant was to prepare the other, and it is not pre- tended that the defendant acted in the mat- ter at all. The objection to the trust deed, founded upon the omission of the name of the com- plainant's brother as a co-grantor, does not merit consideration. All that the defendant had to do was to see that he got a trust deed, as security for the deferred payments, from the party to whom he transferred the title. The defendant states in his testimony that when the lease was executed he objected to the stipulation for a sale of the premises, and that the defendant told him that it should go for nothing. And it has been argued by counsel that this evidence should control the terms of the covenant. The an- swer to the position taken Is brief and deci- sive. First, nothing of the kind is averred in the answer; second, the testimony of the defendant in this particular is distinctly contradicted by that of the complainant, and is inconsistent with the attendant circum- stances; and third, the evidence is inadmis- sible. When parties have reduced their con- THE MAXIMS OP EQUITY. 117 tracts to writing, conversations controlling or changing their stipulations are, in the ab- sence of fraud, no more received in a court of equity than in a court of law. Upon a full consideration of the positions of the defendant we perceive none which should preclude the complainant from claim- ing, a specific performance of the contract. The only question remaining is, upon what terms shall the decree be, made? and upon this we have no doubt. The parties, at the time the proposition to sell, embodied in the covenant of the lease, was made, had reference to the currency then recognized by law as a legal tender, wliicli consisted only of gold and silver coin. It was for a specific number of dollars of that character that the offer to sell was made, and it strilies one at ouce as inequita- ble to compel a transfer of the property for notes, worth when tendered in the market only a little more than one-half of the stipu- lated price. Such a substitution of notes for coin could not have been in the possible ex- pectation of the parties. Nor is it reasona- ble to suppose, if it had been, that the cove- nant would ever have been inserted in the lease without some provision against the substitution. The complainant must, there- ■ fore, take his decree upon payment of the stipulated price in gold and silver coin. M'hilst he seeks equity he must do equity. The decree of the court below will, there- fore, be reversed, and the cause remanded with directions to enter a decree for the ex- ecution, by the defendant to the complainant, of a conveyance of the premises with war- rant}', subject to the yearly ground-rent spec- ified in the covenant in the lease, upon the payment by the latter of the instalments past due, with legal interest thereon, in gold and silver coin of the United States, and upon the execution of a trust deed of the premises to the defendant as security for the payment of the remaining instalments as they respectively become due, with legal interest thereon, in like coin; the amounts to be paid and secured to be stated, and the form of the deeds to be settled, by a mas- ter; the costs to be paid by the complain- ant. The CHIEF JUSTICE, with NELSON, J., concurred in the conclusion as above an- nounced,— that the complainant was entitled to specific performance on payment of. the price of the land in gold and silver coin,— but expressed their inability to yield their assent to the argument by which, in this case, it was supported. 118 THE MAXIMS OF EQUITY. ELLISON V. MOFFATT. (1 Johns. Ch. 46.) Court of Chancery of New York. 1814. THE GHANCELLOE. 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 tiling 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 theques- lion. 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 lac?ies. Tlie bill must be dismissed on the ground of the staleness of the demand; but without costs. THE MAXIMS or EQUITY. 119 TWIN-LICK OIL CO. v. MARBURY. (91 U. S. 587.) Supreme Court of the United States. Oct., 1875. Appeal from the supreme court of the Dis- trict of Columbia. J. D. McPherson and Charles Beasten, Jr., for appellants. Walter S. Cox and W. D. Davidge, for appellee. Mr. Justice MILLER delivered the opinion of the court. The appellant here, complainant below, waa a corporation organized under the laws of West Virginia, engaged in the business of raising and selling petroleum. It became very much embarrassed in the early part of 1867, and borrowed from the defendant the sum of $2,000, for which a note was given, secured by a deed of trust, conveying all the property, rights, and franchises of the corpo- ration to WiUiam Thomas, to secure the pay- ment of said note, with the usual power of sale in default of payment. The property wa? sold under the deed of trust; was bought in by defendant's agent for his benefit, and conveyed to him in the summer of the same year. The defendant was, at the time of these transactions, a stockholder and director in the company; and the bill in this case was filed in April, 1871, four years after, to have a decree that defendant holds as trustee for complainant, and for an accounting as to the time he had control pf the property. It char- ges that defendant has abused his trust re- lation to the company, to take advantage of its difficulties, and buy in at a sacrifice its valuable property and franchises; that, con- cealing his knowledge that the lease of the ground on which the coi^pany operated in- cluded a well, working profitably, and by promises to individual shareholders that he would purchase in the property for the joint benefit of the whole, he obtained an unjust advantage, and in other ways violated his duty as an officer charged with a fiduciary relation to the company. As to all this, which is denied in the answer, and as to which much testimony is taken, it is sufficient to say that we are satisfied that the defendant loaned the money to the corporation in good faith, and honestly to assist it in, its business in an hour of extreme embarrassment, and took just such security as any other man would have taken; that when his money be- came due, and there was no apparent prob- ability of the company paying it at any time, the property was sold by the trustee, and bought in by defendant at a fair and open sale, and at a reasonable price; that, in short, there was neither actual fraud nor oppres- sion; no advantage was taken of defendant's position as director, or of any matter known to him at the time of the sale, affecting the value of the property, which was not as well known to others interested as it was to him- self; and that the sale and purchase was the only mode left to defendant to make his money. The first question which arises In this state of the facts is, whether defendant's purchase was absolutely void. That a director of a joint-stock corporation occupies one of those fiduciary relations where his dealings with the subject-matter of his tnist or agency, and with the benefi- ciary or party whose interest is confided to his care, is viewed with jealousy by the courts, and may be set aside on slight grounds, is a doctrine founded on the sound- est morality, and which has received the clearest recognition in this court and in oth- ers. Koehler v. Iron Co., 2 Black, 715; Drury V. Cross, 7 Wall. 299; Railroad Co. v. Ma- quay, 25 Beav. 586; Cumberland Co. v. Sher- man, 30 Barb. 553; 16 Md. 456. The gen- eral doctrine, however, in regard to contracts of this class, Is, not that they are absolutely void, but that they are voidable at the elec- tion of the party whose interest has been so represented by the party claiming under it. We say, this is the general rule: for there may be cases where such contracts would be void ab initio; as when an agent to sell buys of himself, and by his power of attorney con- veys to himself that which he was author- ized to sell. But, even here, acts which amount to a ratification by the principal may validate the sale. The present case is not one of that class. AVhile it is true that the defendant, as a direct- or of the corporation, was bound by all those rules of conscientious fairness which courts of equity have imposed as the guides for dealing in such cases, it cannot be maintained that any rule forbids one director among several from loaning money to the corporation when the money is needed, and the transaction is open, and otherwise free from blame. No adjudged case has gone so far as this. Such a doctrine, while it would afford little protec tion to the corporation against actual fraud or oppression, would deprive it of the aid of those most interested in giving aid judicious- ly, and best qualified to judge of the neces- sity of that aid, and of the extent to which it may safely be given. There are in such a transaction three dis- tinct parties whose interest is affected by it; namely, the lender, the corporation, and the stockholders of the corporation. The directors are the officers or agents of the corporation, and represent the interests of that abstract legal entity, and of those who own the shares of its stock. One of the ob- jects of creating a corporation by law is to enable it to make contracts; and these con- tracts may be made with its stockholders as well as with others. In some classes of cor- porations, as in mutual insurance companies, the main object of the act of incorporation is to enable the company to make contracts with its stockholders, or with persons who become stockholders by the very act of mak- ing the contract of insurance. It is very true, 120 THE MAXIMS OF EQUITY. that as a stockholder, in making a contract of any kind with the corporation of which he is a member, is in some sense dealing with a creature of which he is a ijart, and holds a common interest with the other stockholders, who, with him, constitute the whole of that artificial entity, he is properly held to a larger measure of candor and good faith than if he were not a stockholder. So, when the lender is a director, charged, with others, with the control and management of the af- fairs of the corporation, representing in this regard the aggregated interest of all the stockholders, his obligation, if he becomes a party to a contract with the company, to candor and fair dealing, is increased in the precise degree that his representative char- acter has given him power and control de- rived from the confidence reposed in him by the stockholders who appointed him their agent. If he should be a sole director, or one of a smaller number vested with certain powers, tlris obligation would be still stron- ger, and his acts subject to more severe scru- tiny, and their validity determined by more rigid principles of morality, and freedom from motives of selfishness. All this falls far short, however, of holding that no such con- tract can be made which will be valid; and we entertain no doubt that the defendant in this case could make a loan of money to the company; and as we have already said that the evidence shows it to have been an honest transaction for the benefit of the corporation and its shareholders, both in the rate of inter- est and in the security taken, we think it was valid originally, whether liable to be avoided afterwards by the company or not. If it be conceded that the contract by which the defendant became the creditor of the company was valid, we see no principle on which the subsequent purchase under the deed of trust is not equally so. The defend- ant was not here both seller and buyer. A trustee was intei-posed who made the sale, and who had the usual powers necessary to see that the sale was fairly conducted, and who in this respect was the trustee of the coi-poration, and must be supposed to have been selected by it for the exercise of this power. Defendant was at liberty to bid, subject to those rules of fairness which we have already conceded to belong to his pe- culiar position; for, if he could not bid, he would have been deprived of the only means which his contract gave him of making his debt out of the security on which he had loaned his money. We thinlc the sale was a fair one. The company was hopelessly in- volved beside the debt to defendant. The well was exhausted, to all appearance. The machinery was of little use for any other purpose, and would not pay transportation. Most of the stockholders who now promote this suit refused to pay assessments on theic shares to aid the company. Nothing was left to the defendant but to buy it in, as no one would bid the amount of his debt. The next 'question to be decided is, wheth- er, under the circumstances of this case, the complainant had a right to avoid this sale at the time this suit was brought. The bill alleges, that, both prior to the sale and since, the defendant made various declarations to other stockholders to the ef- fect that he only designed to purchase the property for the benefit of all or a part of the stockholders; and there is some testi- mony to show, that, after the sale, he did propose, that, if his debt was paid by the company or the shareholders, he would re- linquish his purchase. But we need not decide whether any of these declarations raised a legal obligation to do so or not; nor whether, without such declarations, the sale and deed were voidable at the election of the complainant, — a propo- sition which is entitled to more considera- tion, resting solely on the fiduciary relations of the defendant to the plaintiffs, than on the evidence in this case of the declarations alluded to. We need not decide either of these proposi- tions, because plaintiff comes too late with the offer to avoid the sale. The doctrine is well settled, that the op- tion to avoid such a sale must be exercised within a reasonable time. This has never been held to be any determined number of days or years as applied to every case, like the statute of limitations, but must be decid- ed in each case upon all the elements of it which affect that question. These are gen- erally the presence or absence of the parties at the place of the transaction, their knowl- edge or Ignorance of the sale and of the ta.cts which render it voidable, the permanent or fluctuating character of the subject-matter of the transaction as affecting its value, and the actual rise or fall of the property in value during the period within which this option might have been exercised. In fixing this period in any particular case, we are but little aided by the analogies of the statutes of limitation; while, though not falling exactly within the rule as to time for rescinding, or offering to rescind, a contract by one of the parties to it for actual fraud, the analogies are so strong as to give to this latter great force in the consideration of the case. In tlais class of cases the party is bound to act with reasonable diligence as soon as the fraud is discovered, or his right to rescind is gone. No delay for the purpose of enabling the defrauded party to specu- late upon the chances which the future may give him of deciding profitably to himself whether he will abide by his bargain, or re- scind it, is allowed in a court of equity. In the recent case of Upton v. Tribilcock, 91 tJ. S. 45, it was held that the purchaser of stock in an insurance company, who had offered to rescind within two or three months because his note had been sent to a bank for collection in fraud of the agreement to the contrary, could not avail himself of thai THE MAXIMS OF EQUITY. 121 offer to let in as defence other fraudulent representations then unknown to him, when he was sued by the assignee in lianliruptcy for tlie unpaid instalments on that stock aft- er the bankruptcy of the company. The authorities to the point of the neces- sity of the exercise of the right of rescind- ing or avoiding a contract or transaction as soon as it may be reasonably done, after the party with whom that right is optional is aware of the facts which give him that op- tion, are numerous and well collected in the brief of appellees' counsel. The moi-e im- portant are as follows: Badger v. Badger, 2 Wall. 87; Harwood v. Railroad Co., 17 Wall. 78; Marsh v. Whitman, 21 Wall. 178; Vigers v. Pike, 8 Clark & F. G.50; AVentworth V. Lloyd, 32 Beav. 407; FoUansbee v. Kil- breth, 17 111. 522. The cases of Bliss v. Edmonson, 8 De Gex, M. & G. 787, Prendergast v. Turton, 1 Younge & C, while asserting the same general doc- trine, have an especial bearing on this case, because they relate to mining property. The fluctuating character and value of this class of property is remarkably illustrated m ihe history of the production of mineral oil fiom wells. Property worth thousands to- day is worth nothing to-morrow; and that which would to-day sell for a thousand dol- lars as its fair value, may, by the natural changes of a week or the energy and cour- age of desperate enterprise, in the same time be made to yield that much every day. The injustice, therefore, is obvious, of permitting one holding the right to assert an ownership .in such property to voluntarily await the event, and then decide, when the danger which is over has been at the risk of an- other, to come in and share the profit. While a much longer time might be allowed to assert this right in regard to real estate whose value is fixed, on which no outlay is made for improvement, and but little change in value, the class of property here consid- ered, subject to the most rapid, frequent, and violent fluctuations in value of any thing known as property, requires prompt action in all who hold an option, whether they will share its risks, or stand clear of them. The case before us illustrates these prin- ciples very forcibly. The oflicers, and prob- ably all the stockholders, who were not nu- merous, knew of the sale as soon as made. As there was no actual fraud, they knew all the facts on which their right to avoid the contract depended. They not only refused to join the defendant in the purchase when that privilege was tendered them, but they generally refused to pay assessments on their shares already made, which plight have paid this debt. The defendant then had a survey made of the ground leased to the corporation, the lease being the main thing he had acquired by the sale. When the lines were extended, the lease was found to embrace a well, then profitably worked by another company. Of this piece of good luck he availed himself, and by suit and compromise he obtained pos- session of that well. He put more of his money into it, and changed what had been a disastrous speculation by the company into a profltable business. With full knowledge of all these facts, the appellant took no ac- tion until this suit was brought, nearly four years after the sale; and not until all the hazard was over, and the defendant's skill, energy, and money had made his purchase profitable, was any claim or assertion of right in the property made by the corporation or by the stockholders. We think, both on authority and principle, — a principle necessary to protect those who invest their capital and their labor in enter- prises useful but hazardous, — that we should hold that plaintiff has delayed too long. De- cree afiirmed. 122 THE MAXIMS OF EQUITY. COMMISSIONERS OF FRBEDMAN'S SAV- INGS & TRUST CO. V. EARLB. (4 Sup. Ct. 226, 110 U. S. 710.) Supreme Court of the United States. March 10, 1884. Appeal from the supreme court of the Dis- ti'ict of Columbia. Enoch Totten. for appellants. John D. McPherson and Calderon Carlisle, for appellee. MATTHEWS, J. The appellee recovered a judgment against Robert P. Dodge in the supreme court of the District of Columbia on January 4, 1878, for $7,700, with interest and costs, which was revived April 2, 1879, and on which a fi. fa. was issued April 9, 1879, and returned nulla bona. On June 1, 1877, Dodge, the judgment debtor, being then seized in fee-simple of certain real es- tate in the city of Georgetown, in this dis- trict, conveyed the same by deed duly re- corded to Charles H. Cragin, Jr., in trust, to secure to Nannie B. Blackford payment of the sum of $2,000, with interest, according to certain promissory notes given therefor, and which were indorsed to Charles H. Cragin. On April 10, 1879, the appellee filed his bill in equity, to which Dodge, Charles H. Cragin, Jr., Charles H. Cragin, and Nan- nie B. Blackford were made defendants, the object and prayer of which were to take an account of the debt secured by the trust deed, and, subject thereto, to have the prem- ises sold and the proceeds of the sale ap- plied to the satisfaction of the appellee's judgment. The defendants having appear- ed and answered, a decree according to the prayer of the bill was rendered June 11, 1879. On December 27, 1879, leave therefor having been obtained, the appellants filed a petition in the cause, setting forth the recov- ery of a judgment in their favor against the defendant Dodge, in the sum of $7,386.47, with interest and costs, on February 11, 1879, in the supreme court of the District of Columbia, and that on December 2d a fi. fa. had been issued thereon, and returned nulla bona December 19, 1879; and praying that they may be made parties complainant in the cause; that the equitable interest of Dodge in the real estate described be sub- jected to the satisfaction of their judgment; that the same be sold, and the proceeds of sale be brought into court and distributed according to law. To this petition Dodge answered, admitting the recovery of the judgment as alleged. On May 25, 1880, the trustee appointed for that puriiose under the decree of June 11, 1879, reported a sale of the premises for $5,525, and the same, on June 25, 1880, was confirmed. The cause was then referred to an auditor to state the account of the trustee to sell, whose report showed an appropriation of the proceeds of the sale, after payment of costs, in payment to that extent of the appellee's judgment. On exceptions to this report, a final decree- confirming the same was made September 14, 1880, which decree, on appeal to the gen- eral term, was affirmed December 10, 1880. From that decree this appeal is prose- cuted, and as ground of reversal, it is as- signed by the appellants that the proceeds of the sale of the equitable interest of Dodge, the judgment debtor, should have been distributed pro rata between the ap- pellee and the appellants, instead of hav- ing been awarded exclusively to the appel- lee. It is contended on behalf of the appel- lants that the interest of the judgment debt- or in the land being an equity merely, is not subject to execution at law; and as it can he- reached by judgment creditors only through the intervention and by the aid of a court of equity, it becomes of the nature of equi- table assets, and when sold the proceeds- will be applied, according to the maxim that equality is equity, ratably among, the cred- itors. In the case of Morsell v. First Nat. Bank, 91 U. S. 357, it was decided that under the laws of Maryland in force in this dis- trict, judgments at law were not liens upon the interest of judgment debtors who had previously conveyed lands to a trustee in trust for the payment of a debt secured thereby. Mr. Justice Swayne said (page- 361): "The judgment in nowise affected the- trust premises until the bill was filed. That created a lien in favor of the judgment cred- itors. There was none before." And it was accordingly held that in the distribution of the proceeds of sale the judgments must bfr postponed to debts secured by other deeda of trust made before the filing of the bill, but subsequent to the rendition of the judg- ments. But that decision leaves open th& question arising here between judgment creditors seeking satisfaction in equity out of the debtor's equitable estate. It becomes necessary, therefore, to determine the na- ture of the right and the principle of distri- bution which arises from it. At common law executions upon judg- ments could not be levied upon estates mere- ly equitable, because courts of law did not recognize any such titles and could not deal with them. They could not be levied upon the estate of the trustee when the judgment was against the cestui que trust for the same reason; and when the judgment was against the trustee, if his legal estate should be levied on, the execution creditor could ac- quire no beneficial interest, and if the levy tended injuriously to affect the Interest of the cestui que trust, the latter would be en- titled to relief, by injunction or otherwise, in equity. Lewin, Trusts, 171, 186; 2 Spence, Eq. Jur. 39. But as courts of equity re- garded the cestui que trust as the true and beneficial owner of the estate, to whose uses, according to the terms of the trust, the legal title was made subservient, so in its eyes the estate of the cestui que trust came to be invested with the same incidents and qual- THE MAXIMS OF EQUITY. 123 ities which in a court of law belonged to a legal estate, so far as consistent with the preservation and administration of the trust. This was by virtue of a principle of analogy, adopted because courts of equity were un- willing to Interfere with the strict course of the law, except so far as was necessary to execute the just intentions of parties, and to prevent the forms of the law from being made the means and Instruments of wrong, injustice, and oppression. Thus equitable estates were held to be assignable and could be conveyed or devised; were subject to the rules of descent applicable to legal estates; to the tenancy by the courtesy, though not to dower, by an anomalous exception after- wards corrected by statute (3 & 4 Wm. IV. c. 105); and were ordinarily governed by the rules of law which measure the duration of the enjoyment or regulate the devolution or transmission of estates; so that, in general, whatever would be the rule of law, if it were a legal estate, was applied by the court of chancery by analogy to a trust estate. 1 Spence, Eq. Jm'. 502. As judgment creditors, after the statute of Westminster (13th Edw.) p. 1, c. IS, were entitled, by the writ of elegit, to be put in possession of a moiety of the lands of the debtor, until satisfaction of the judgment; and as it would be contrary to equity to per- mit a debtor to withdraw his lands from li- ability to his judgment creditors, this anal- ogy was at an early date extended, so as to give to judgment creditors similar bene- fits in respect to the equitable estate of their debtors; and as the remedies in favor of judgment creditors by way of execution up- on the legal estate of their debtors have been enlarged, they have been imitated by a cor- responding analogy as to equitable estates by courts of equity. This is in pursuance of the principle stated in a pregnant sentence by Lord Northington, in Burgess v. Wheate, 1 Eden, 22^250, where he said: "For my own part, I know no instance where this court has permitted the creation of a trust to affect the right of a third person." It is embodied in the maxim, a;quitas sequitur legen. It was accordingly held by Lord Notting- ham, in the anonymous case cited in Balch V. Wastall, 1 P. Wms. 445, "that one who had a judgment, and had lodged a fieri fa- cias in the sherifC's hands, to which nulla bona was returned, might afterwards bring a bill against the defendant, or any other, to discover any of the goods or personal es- tate of the defendant, and by that means to effect the same;" and although Lord Keeper Bridgman, in Pratt v. Colt, Freem. Ch. 139, refused to permit a trust estate, which had descended to the heir, to be extended upon an elegit on a judgment against his ancestor, the reporter adds: "But note that this hath not been taken to be a good demurrer by the old and best practicers, as little accord- ing with good reason, for the heir at law is as much chargeable with the ancestor's judgment as the executor with the testa- tor's debts, and so equity ought to follow the law." Three j'ears subsequently to this decision the statute of frauds (29 Car. II, c. 3) was enacted, the tenth section of which made trust estates in fee-simple assets for the payment of debts, and subject to an elegit upon judgment against the cestui que trust. But this statute did not extend to chattels real, to trusts under which the debt- or had not the whole interest, to equities of redemption, or to any equitable interest which had been parted with before exe- cution sued out. Forth v. Duke of Norfolk, 4 Madd. 503. The statute of 5 Geo. II. c. 7, which made lands within the English col- onies chargeable with debts, and subject to the like process of execution as personal es- tate, was in force in Maryland; but as it did not interfere with the established dis- tinction between law and equity, it did not permit an equitable interest to be seized un- der a fieri facias. Lessee of Smith v. ilc- Cann, 24 How. 398. But as the effect of these statutes was to enlarge the operation of executions upon legal estates, so the cor- responding equitable remedy as to equitable estates was also enlarged, ajid as to them equitable executions were enforced to cue same extent to which executions at law were enforceable upon estates subject to seizure under them. This mere equity, con- sisting in the right to obtain the aid of the court in subjecting the equitable interest of the debtor, not being a lien at law or a specific charge in equity, nevertheless con- stitutes such an intereaf, and creates such a privity, as entitles the judgment creditors to redeem a prior mortgage, and succeeding thus to the rights of the mortgagee in Eng- land, where the doctrine of tacking prevail- ed, he was permitted to hold the whole es- tate as security for his judgment also, even when by virtue of an elegit at law, he would be entitled only to a moiety of the debtor's land; and he could file his bill to redeem without previously issuing an execution. Neate v. Duke of Marlborough, 3 Mylne & C. 40T. The reason for this, assigned by Lord Cottenham in the case just cited, is that, inasmuch as the court finds the cred- itor in a condition to acquire a power over the estate by suing out the writ, it does what it does in all similar cases— it gives to the party the right to come in and redeem other incumbrances upon the property. But in other cases, when the object of the bill is to obtain satisfaction of the judgment, by a sale of the equitable estate, it must be alleged that execution has been issued. This is not supposed to be necessary wholly on the ground of showing that the judgment creditor has exhausted his remedy at law; foi-, if so, it would be necessary to show a return of the execution unsatisfied, which, however, is not essential. Lewin, Trusts, 513. But the execution must be sued out; 124 THE MAXIMS OF EQUITY. for, if the estate sought to be subjected is a legal estate, and subject to be taken in execution, the ground of the jurisdiction in equity is merely to aid the legal right by re- moving obstacles in the way of its enforce- ment at law (Jones v. Green, 1 Wall. 330); and if the estate is equitable merely, and therefore not subject to be levied on by an execution at law, the judgment creditor is bound, nevertheless, to put himself in the same position as if the estate were legal, because the action of the court converts the estate, so as to make it subject to an exe- cution, as if it were legal. The ground of the jurisdiction, therefore, is not that of a lien or charge arising by virtue of the judgment itself, but of an equity to enforce satisfaction of the judgment by means of an equitable execution. And this it effects by a sale of the debtor's interest subject to prior incumbrances, or according to circum- stances, of the whole estate, for distribu- tion of the proceeds of sale among all the incumbrancers, according to the order in which they may be entitled to participate. Sharpe v. Earl of Scarborough, 4 Yes. 538. It is to be noted, therefore, that the pro- ceeding is one instituted by the judgment creditor for his own interest alone, unless he elects to file the bill also for others in a like situation, with whom he chooses to make common cause; and as no specific lien arises by virtue of the judgment and execu- tion alone, the right to obtain satisfaction out of the specific property sought to be sub- jected to sale for that purpose dates from the filing of the bill. "The creditor," says Chancellor Walworth, in Edmeston v. Lyde, 1 Paige, Ch. 637-640, "whose legal diligence has pursued the property into this court, is entitled to a preference as the reward of his vigilance;" and it would "seem unjust that the creditor who has sustained all the risk and expense of bringing his suit to a suc- cessful termination should in the end be obliged to divide the avails thereof with those who have slept upon their rights, or who have intentionally kept back that they might profit by his exertions when there could no longer be any risk in becoming par- ties to the suit." As his lien begins with the filing of the bill, it is subject to all ex- isting incumbrances, but is superior to all of subsequent date. As was said by this court in Day v. Washburn, 24 How. 3.52: "It is only when he has obtained a judgment and execution in seeking to subject the property of his debtor in the hands of third persons, or to reach property not accessible to an execution, that a legal preference is acquired which a court of chancery will en- force." This is In strict accordance with the analogy of the law, as it was recognized that the judgment creditor who first ex- tends the land by elegit is thereby entitled to be first satisfied out of it. It is the exe- outlon first begun to be executed, unless otherwise regulated by statute, which is en- titled to priority. Rockhill v. Hanna, 15 How. 189-195; Payne v. Drewe, 4 East, 523. The filing of the bill, in cases of equitable execution, is the beginning of executing it. The passage cited from the opinion in Day V. Washburn, supra, speaks of the prefer- ence thus acquired by the execution creditor as a legal preference. It was distinctly held so to be by Chancellor Kent in McDer- mutt V. Strong, 4 Johns. Ch. 687. He there said: "But this case stands on stronger ground than if it rested merely on the gen- eral jurisdiction of this court, upon residu- ary trust interests in chattels, for the plain- tiffs come in the character of execution creditors, and have thereby acquired, by means of their executions at law, what this court regards as a legal preference, or lien on the property so placed in trust;" and "admitting that the plaintiffs had acquired, by their executions at law, a legal prefer- ence to the assistance of this court, (and none but execution creditors at law are en- titled to that assistance,) that preference ought not, in justice, to be taken away. Though it be the favorite policy of this court to distribute assets equally among creditors, pari passu, yet, whenever a judicial pref- erence has been established by the superior legal diligence of any creditor, that prefer- ence is always preserved in the distribution of assets by this court." The decision in that case was made, giving the priority to the execution creditors who filed the bill, when, otherwise, by virtue of an assign- ment by the debtor who was insolvent, the proceeds of the equitable interest sought to be subjected would have been distributed ratably among all creditors. This case, often cited and never questioned, shows that the doctrine of equitable assets, to which we are referred by the appellant as the ground of his claim, has no application to the case. Ordinarily and strictly, the term "equitable assets" applies only to property and funds belonging to the estate of a de- cedent, which by law are not subject to the payment of debts, in the course of adminis- tration by the personal representatives, but which the testator has voluntarily charged with the payment of debts generally, or which, being non-existent at law, have been created in equity, under circumstances which fasten upon them such a trust. Ad- ams, Eq. 234. But, as was said by Chancel- lor Kent in Williams v. Brown, 4 Johns. Ch. 682, the doctrine "does not apply to the case of a debtor in full life, for there is no equitable trust created and attached to the distribution of the effects in the latter case." Property held by a trustee for the testator Is legal assets, for, although the benefit of the trust, if resisted, cannot be enforced without equitable aid, yet the analogy of the law will regulate the application of the fund. To constitute equitable assets, the THE MAXIMS OP EQUITY. 125 trust imposed by the party, or by the court, must be for the benefit of creditors gener- ally. It is true that in Moses v. Murgatroyd, 1 Johns. Ch. 119, Chancellor Kent held sur- plus money arising from the sale of mort- gaged premises to be equitable assets, but that was in a case where the mortgagor was deceased and the fund was in a court of equity for distribution, and when the judg- ment to which priority was refused was con- fessed by the administrator. In Purdy v. Doyle, 1 Paige, 558, the nile was stated by Chancellor "Walworth, in these words: "If it is such property as the judg- ment creditors could obtain a specific or gen- eral lien on at law, they are entitled to tha fruits of their superior vigilance, so far as they have succeeded in getting such lien. But if the propex'ty was in such a situation that it could not be reached by a judgment at law, and the fund is raised by a decree of this court, and the creditors are obliged to come here to avail themselves of it, they will be paid on the footing of equity only." But a specific lien, whether legal or equita- ble, on property liable as equitable assets, was always respected by courts of fequity. Freemoult v. Dedire, 1 P. Wms. 429; Finch V. Earl of Winchelsea, Id. 277; Ram, As- sets, 318. And Lord Chancellor Parker, in Wilson V. Fielding, 2 Vern. 763; 10 Mod. 426, drew the distinction between property which is assets in a court of equity only and cer- tain property which a creditor cannot come at without the aid of a court of equity. In that case the mortgage debt had been paid out of the personal estate by the executor, thus exonerating the mortgaged premises which had descended to the heir. The un- satisfied creditors filed a bill to require the heir at law to refund, which was "a matter purely in equity and a raising of assets where there were none at law." And see Atlas Bank v. Nahant Bank, 3 Mete. (Mass.) 581; Codwise v. Gelston, 10 Johns. 522; Tennant v. Stoney, 1 Rich. Eq. 227; 1 Story, Eq. Jur. § 553; 2 White & T. Lead. Cas. Eq. pt. 1. p. 390. We have already seen that the filing of a bill by an execution creditor to subject the equity of the debtor in his life-time, created a lien and gave him a legal preference. And in the English chancery, although equities of redemption after the death of the mort- gagor are classed as equitable assets, the rule of distribution, pari passu, is modified in its application to them in respect to judg- ment creditors by permitting them to retain their priority over other claims, because, if such priority were not allowed, the judgment creditor might acquire it by redeeming the mortgage; Adams, Eq. 256. Legal assets, according to the definition of Mr. Justice Story (Eq. Jur. § 551), "are such as come into the hands and power of an executor or administrator, or such as he is intrusted with by law virtute officii to dispose of in the course of his administration. In other words, whatever an executor or administra- toi; takes qua executor or administrator, or in respect to his office, is to be considered legal assets." And this is the modern doc- trine in England. In Lovegrove v. Cooper, 2 Smale & G. 271, it was held, for that rea- son, that the proceeds of real estate directed to be sold for the payment of debts, and paid by the purchaser into court, were legal and not equitable assets. It follows from this, that in this country generally, where the real estate of a decedent is chargeable with the payment of debts, and, in case of a deficiency of personal property for that purpose, may be subjected to sale and dis- tribution as assets by the personal repre- sentative in the ordinary course of admin- istration, the distinction between legal and equitable assets has ceased to be important. In every such case the equity of redemp- tion could only be applied after sale by the executor or administrator in the ordinary coui'se of administration, subject to what- ever liens may have been imposed upon it in the life-time of the mortgagor, and among them, as we have seen, is that of an execu- tion creditor who has filed his bill to subject it to the payment of his judgment. So, in other cases where the rule of equality in distribution, as to equitable assets, applies, as in cases of assignments by the debtor him- self for the payment of debts generally, and in cases of bankruptcy and insolvency, ex- cept as otherwise expressly provided by statute, the estate passes, subject to exist- ing liens, including that of an execution creditor who had previously filed a bill to subject the equitable interest of the debtor, and his priority is respected and preserved. The lien is given by the court in the exer- cise of its jurisdiction to entertain the bill and to grant the relief prayed for; and to distribute the proceeds of the sale for the benefit of others, equally with the execution creditor first filing the bill, would be to con- tradict the very principle of the jurisdiction itself, and defeat the very remedy it prom- ised; for the fruits of the litigation, accord- ing to the rule of equality, would have to be divided, not only with other judgment and execution creditors, but, as well, Avith all creditors, whether their claims had been re- duced to judgment or not. For these reasons the decree appealed from is affirmed. 126 DOCTRINES or EQUITY. BLANBY T. WIDMOEE. (1 P. Wms. 323.) Court of Chancery. Trinity Term, 1716. Upon tlie marriage of A. witli B. there were articles reciting, that, in consideration of the marriage and of the portion. It was agreed, that If B. the wife should survive A. her intended husband, A. should leave B. £620, and accordingly A. covenanted with B.'s trustees, that his executors, within three months after his decease, should pay B. £620 If she should survive him. A. died intestate, and without Issue; upon which B. the wife, by the statute of distribution, became intitled to a moiety of the personal estate, which was much more than £620, and the question was, whether the distributive share belonging to B. being more than £C20 should go In satisfaction of it? Serjeant Hooper: This £620 is a debt, and debts must be first paid, after which the distribution is to be made; and if the in- testate had made a will, probably he would have given to his wife something additional to this £620. Now, what the statute gives is not his gift, and being not his gift, is not to he taken as his payment; or supposing it to be his gift, still it cannot be said to be his payment. Lord Chancellor: I will take this cove- nant not to be broken, for the agreement Is . to leave the widow £620. Now the intestate, in this case, has left his widow £620 and up- wards, which she, as administratrix, may take presently upon her husband's death; wherefore let her take it; but then it shall be accounted as in satisfaction of, and to include in it, her demand by virtue of the covenant; so that she shall not come in first as a creditor for the £620, and then for a moiety of the surplus. And Mr. Vernon said, it had been decreed in the case of Wilcox v. Wilcox (Trln. 1706) 2 Vern. 558, that if a man covenants to set- tle an estate of £100 per annum on his eld- est son, and he leaves lands of the value of £100 per annum to descend upon such son, this shall be a satisfaction of the covenant to settle; and that this last was a stronger case, it being the case of an heir, who is favoured in equity; also the case of Phlnney V. Phlnney, Id. 638, was cited. Whereupon the decree made by Sir John Trevor, master of the rolls, was now affirm- ed by J'jord Chancellor Cowper. DOCTiilKES OF EQUITY. 127 STRONG V. WILLIAMS. (12 Mass. 391.) Supreme Judicial Court of Massachusetts. 1815. PUTNAM, J. delivered the opinion ot the court. The general rule anciently established in chancery was, that when a testator being in- debted gave to his creditor a legacy equal to, or e.xceediiig the amount of his debt, the Ipg- acy should be considered as a satisfaction for the debt. The rule has been acknowledged in later cases, but with naaiks of disapproba- tion, and a disposition to restrain its oi)era- tion in all cases where, from circumstances to be collected from tlie will, it might be in- ferred that the testator had a different inten- tion. Haynes v. ilici, 1 Bro. Cha. Ca. 131. Thus where the testator left a sufficient es- tate, it was determined that he was to be pre- sumed to have been kind as well as just. So if the legacy was of a less sum than the debt; or of a different nature; or upon conditions; or not equally beneficial in some one particu- lar, although more so in another. All the cases agree that the intention of the testator ought to prevail; and that, prima facie at least, whatever is given in a will is to be intended as a bounty. But by later oases the courts have not been disposed to understand the testator as meaning to pay a <]ebt, when he declares that be makes a gift; «inless the circumstances of the case should lead to a different conclusion. Thus in the case cited for the plaintiff, Broipn v. Dawson, 2 Vern. 498, where the wife joined in the sale of her jointure, and the husband gave her a note of 7/. 10s. per annum for her life; and aflei Wiirds upon an- other such sale he gave lier a bond for 6/. 10s. per annum for her life; and he after- wards made his will, and gave her HI. per ■annum, for life: the legacy was adjudged to be a satisfaction for the note and bond. Here it will be perceived that the annuity given in the will amounted exactly to the sums se- cured by the bond and note: and the pre- sumption of satisfaction proceeded upon the similitude of the legacy to the debt. 2 Fonbl. ySO, innotis. So in the case ot Fowler v. Fowler, '6 F.Will. 353, the general rule was applied. There the husband, being indebted to the wife for arrears due by the niarria7. Bvarts & Hendricks, for appellant. J. T. Mills, for appellee. WHEELER, J. Whatever differences of opinion adjudged cases may exhibit, as to the cases where the pui-chaser of land will be entitled to have the contract rescinded, or to be relieved against secm-ities given for the piu-chase money, where there is no charge of fraud, it is clearly settled beyond controversy, that chancery will decree a re- tiu-n of the pm-chase money, for insufficiency of title, even after the purchase has been carried completely into execution, by deliv- ery of the deed and payment of the money, and whether the deed was with or without covenants, provided there had been a fraud- ulent representation as to the title. (Ed- wards v. McLeay, Cooper's Eq. R. 308; Fenton y. Browne, 14 Ves. 144; Benston v. Morris, 2 Edwards' Ch. R. 37; 2 Kent, Com. 471.) The petition avers such fraudulent representation; and the only question is, whether it was of a matter respecting which the party can claim to be relieved, on the ground of the deception and fraud,— whether he was not bound to know the law, which disabled the defendant from making title, and whether, to grant him relief would not be to relieve against ignorance or mistake of law. The maxim* ignorantia legis nemi- nem excusat,*is respected equally in courts of equity and law. The legal presumption is, that every man who is not non compos mentis* knows the law, where he knows the facts; and this presumption, though arbi- trary and false in fact, is foimded upon rea- sons of soimd policy; for although a thor- ough knowledge of the law presupposes a life devoted to the laborious study of its principles, and in the application of the knowledge thus acquired, to the complicated affairs of men, there will questions arise upon which the best informed will differ in opinion, and no such thing as absolute cer- tainty can be attained, yet without some ar- bitrary rule, imposing upon all the duty of well considering and understanding the con- sequences of their acts and conti-acts, there would be no limit to the excuse of ignorance, no safety to society, and no secm-ity in any obligation. The law presumes therefore that every man who makes a contract, acts ad- visedly and with a knowledge of its legal effect and consequences. The question whether, in any case, mere ignorance or mis- take of law will entitle a party to relief, has been much discussed by judges and com- mentators, and is still a disputed question. (1 Story's Eq. Ch. 5, Sec. Ill to 138.) Judge Story says that "agreements made and acts done under a mistake of law, are (if not otherwise objectionable) generally held valid and obligatory. The doctrine is laid down in this guarded and qualified manner, be- cause it is not to be disguised, that there are authorities which are supposed to con- tradict it, or at least to form exceptions to it." (Id. Sec. 116.) Chancellor Kent was equally guarded in his statement of the rule, in Storrs v. Barker, (6 .Johns. Ch. R. 160, 170.) The supreme court of the United States, in Hunt V. Rousmanier, (8 Wheaton, 214,) while they expressed a decided affirmation of the general rule, qualified it by the admission that it was not universal, and that there may be cases in which mere ignorance of law alone would entitle a party to relief in a civil matter, on the ground of the presump- tion of imbecility, or fraud, which might arise. In noticing this case, Chief Justice Robertson, in delivering the opinion of the court of appeals of Kentucky in Undenvood V. Brockman, (4 Dana, 309,) where he ex- amines the subject in an elaborate opinion, says the court might have added also, the additional and more conclusive and plain ground of a want of consideration. In South Carolina and Kentucky the universal application of the general rule is not admit- ted. (Lowndes v. Chisholm, 2 Mc.Cord Ch. 455; Lawrence v. Beaubien, 2 Bail. 623; Hop- Ivins' Ex'rs v. Mazyck, 1 HiU. Ch. 242; Un-- derwood v. Brockman, 4 Dana, 309.) The review of the decisions by Judge Stoi-y, shows that there are very many apparent, and he dares not deny that there are some, though he thinks but few, real exceptions to the general rule; and he says they gen- erally stand upon some very urgent pressru-e of circumstances. (Story's Eq. Sec. 137.) The general rule, it has been truly said, is justified by considerations of public policy; and yet so harsh a rule, founded upon a pre- sumption so arbitrary, ought to be modified in its application, by eveiy exception which can be admitted without defeating its policy. "If there be, at the time a contract is en- tered into, a mistake of the law applicable thereto, which entirely modifies it, to enforce such an agreement is to create a new con- tract, which was never assented to under- standingly, and to impose duties and liabil- ities, which the party never contemplated assuming. So, also, if there be a promise, or an actual performance of a contract, upon the supposition of liability, that liability be- comes the very basis of the contract, and its non-existence being an utter failure of con- sideration, an executory or executed con- tract founded thereupon, would, by one of the first principles relating to contracts, be wholly void." (Story on Con. 407, note.) Admitting the rule that ignorance of the law, with a knowledge of the facts, cannot generally be set up as a defence, (6 Johns. Ch. R. 169, 170,) there are other elements in the present case, which bring it within the exceptions, or take it out of the opera- 156 GROUNDS FOR EQUITABLE RELIEF. tion of the rule, and entitle the party to re- lief. It is not a case of mere ignorance of law, unmixed with fraud and ignorance of fact. There was both fraud and ignorance of fact, as well as law. And it has been the constant practice of courts of chan- cery to grant relief, where the case did not depend upon a mere mistalve of law, stripped of all other circumstances, but upon an ad- mixture of other ingredients, going to estab- lish misrepresentation, imposition, undue confidence, imdue influence, or advantage taken of another's situation. iStory's Eq. 120, et seq. and notes.) There was, in this case, misrepresentation and fraud, if corrupt- ly deceiving one, as to matter of ]aw, amounts to fraud, in a legal sense; and we do not doubt that it may, where, as in this case, advantage is talven of the ignorance of the party. An Iramigi'ant arrives in the country, and his first object is to procm'e a home. He, of course, is ignorant respecting the land titles of the country; and he meets with an old citizen who professes familiarity with them, and who proposes to sell him land to which he assm'es him he had a per- fectly good title. The immigrant relies on his superior information, and trusts to his representation; and has he not a right to do so? When one who has had superior means of information, professes a superior knowl- edge, even of the law, and thereby obtains an unconscientious advantage of another, who is confessedly ignorant, and who has not been in a situation to be informed, is not the in- jured partj' as much entitled to relief, on the ground of fraud, as if the misrepresentation were of a matter of fact? "We think he is. The plaintiff is not supposed to have had a knowledge of the laws of this state until he came within their influence. Ignorance of the law signifies ignorande of the laws of one's own country; ignorance of the law of a foreign government, is ignorance of fact. (Haven v. Poster, 9 Pick. R. 112, 130.) To deny him relief against a ruinous Contract, induced by the misrepresentation of one who professes a knowledge of the subject, and who has been in a situation to be Informed, while he has not, and when, if he had been informed, he would not have made the con- tract, would not only be extremely unrea- sonable and unjust to the injured party, but it would bo giving a premium to the other party for taking advantage of his ignorance. It would be plainly repugnant to good morals and fair dealing. There can be no good rea- son why the law, in this case more than any other, should suffer one who has no right or title, to retain that which is the property of another. But the truth or falsehood of the repre- sentation did not depend upon a mere ques- tion of law; nor would a knowledge of the law alone have enabled the plaintiff to de- tect its falsehood. He might have known that the land included within the boundaries of the colony was reserved by law from loca- tion and pre-emption, and still have been ignorant of the fact that this land was with- in the bounds of the reserved territory. Whether the defendant had or could make a good title to the land was a question of fact as well as law, no less in this, than in other cases where there had been a prior appropri- ation of the land. The misrepresentation, therefore, was of matter of fact, as well as law. TTie consequence is, that the defend- ant has obtained the property of the plain- tiff without consideration, and by means which does not divest the latter of his title, and ought not, on principle, to deprive him of his remedy. We conclude that the plain- tiff has stated a case which entitled him to his action to recover back his property or its value; and that the coui-t erved in dismissing the petition. The judgment is therefore re- versed and the cause remanded. GKOUNDS rOU EQUITABLE KELIEF. 157 ROGERS V. INGHAM. (3 Oh. Div. 351.) Chancery Division. .Tuly 18, 1876. John Ingham, by his will, bequeathed the residue of his estate to W. Taylor and W. Ingham upon trust to divide the same be- tween his children and 1(heir children as therein mentioned. He died in 1S47, and his will was proved by W. Taylor and W. Ingham. In 1866 Jlary Rogers, one of the testator's children, who had, under the will, an estate for life in one-fourth of the estate, died, leaving, her surviving, two children, Martha Rogers and R. R. Rogers, and also Thomas Wlieatley, husband and adminis- trator of Hester Wheatley, another child, who had died in the lifetime of Mary Rog- ers. W. Ingham, who had survived W. Taylor, paid the interest in that one-fourth of the estate for some time equally between Martha Rogers and R. R. Rogers, being of opinion that the share of Hester Wheatley had gone to them as survivors, and after the death of R. R. Rogers he paid the in- terest to Martha Rogers as surviving. W. Ingham then died, and J. W. Ingham took out letters of administration to his estate. J. W. Ingham took the opinion of counsel on the will, and was advised that the share of Hester Wheatley did not survive, but had become vested in her, and passed to her husband as administrator, and, consequent- ly, that the interest had been paid to Mar- tha Rogers in error. Her solicitors took the opinion of another counsel, and wrote to the solicitors of J. W. Ingham as follows: "We have taken an opinion on this mat- ter, and may as well state it confirms the opinion of your counsel, but whether our client will be satisfied or not with it we can- not say. It is certainly a very great disap- pointment to her, and will be very hard in- deed should Mr. Ingham and Mr. Wheatley insist on making the deductions you pro- pose. Surely Mr. Wheatley will not look for the whole of the arrears of interest be- ing paid to him. You must admit it is a very hard case, as far as Mrs. Rogers Is concerned. Will you kindly see your clients and write us what they are inclined to do, and we will endeavour to bring the matter to a conclusion at the end of the week." The solicitors of Mr. Ingham, however, made out an account of the whole estate, debiting Martha Rogers with interest as paid to her in mistake, making £274. 16s. 7d., as due to her from the estate of .lohn Ingham. Some more letters as to the ac- counts passed, and on the 2d of July, 1873, a cheaue for £274. 16s. 7d. was sent for Martha Rogers, and the receipt was ac- knowledged by her solicitors. At the same time £454. 15s. 3d. was paid to Thomas Wheatley as the share of Hester Wheatley, with the arrears of interest paid to Martha Rogers as by mistake. On the 14th of June, 1875, Martha Rogers filed her bill against J. W. Ingham and Thomas Wheatley, stat- ing the will of W. Ingham and submitting that, on the true construction of the will, the share did not vest in Hester Wheatley, but passed to R. R. Rogers (to whom Mar- tha Rogers was administratrix), and Mar- tha Rogers as surviving, and praying that Thomas Wheatley might be ordered to re- pay the same, with interest. The suit came on for hearing before Vice Chancellor HALL on the 13th of January, 1876. Mr. Dickinson, Q. C, and Eyre Thompson, for plaintiff. Mr. Hastings, Q. C, and Mr. Hanson, for defendant Wheatley. HALL, V. 0. It appears to me that the plaintilf is not entitled to recall the money which was paid over to the defendant AVheatley, under the circumstances which are disclosed in his answer. [His lord.?hip then stated the facts of the case.] There being a family dispute between the parties as to the true construction of this will, in order, no doubt, to avoid litigation, the fund was divided in a given way. That ha\ing taken place on the 2d of July, 1873, upon the 12th of August, 1875, two years after- wards, this bill is filed to raise the question of construction which had been the s»ib- ject of discussion between the parties, and upon which two opinions had been taluni, these two opinions agreeing as to the c-on- struction of the will. There has, up to this time, been no judicial determination to the contrary, and I think that the court should not, under the circumstances, put a judi- cial construction upon the will. It seems to me that the fund was divided as a matter of arrangement between the parties, and that having taken place more than two years before the bill was filed, I ought not to give the assistance of this court for the purpose of recalling that fund from the de- fendant, who received it upon the faith and footing of what took place on that occasion. This has been acquiesced in, and the execu- tor has been permitted to distribute the fund accordingly, which fund, I'or aught I know, Wheatley may have spent and may not be in a position to restore. Under these circumstances, it appears to me that the plaintiff's case fails, and ta,king that view, it is not necessary for me to determine— nor do I determine— what is the true con- struction of the will. The plaintiff appealed, and the appeal came on to be heard on the 18th of July, 1876. JAMES, L. J. I am of opinion Ihat tha judgment of the vice chancellor ought to be affirmed. In arriving at that conclusion I entirely put aside anything that has been said about any supposed or condition-il con- sideration connected with the matter. It 158 GROUNDS FOR EQUITABLE KEUEF. really is to be looked at as between the two persons who alone are now in litifration before us,— that is, the plaintiff on Ihe one part, and Wheatley on the other part; and the greater portion of the argument socins to me to be disposed of by this considera- tion: that there really is no question of trust, trust estate, or trust money, to be dealt with. When a trustee, by the direc- tion or with the authority of his cestui que trust, pays money to a third person, no mat- ter under what claim of right, or under what circumstances, it is exactly the same as if the cestui que trust had received the money from the trustee, and had herself paid it to that person. It is simply a qiies- tion of money paid by the lady, or by the lady's direction, out of money of hers v.hich the trustee had in hand, to a person who said that he had a claim to the money. That being so, it Is reduced, as it appears to me, to a mere action for money had and received, and it is the same as if A., through a third person, had paid money to B., think- ing that B. was entitled to it, B. thinking, also, that he was entitled to it; there hav- ing been, as it is now said, a mistake of law which was common to ))oth parties. No authority whatever has been cited to us in support of the proposition that an ac- tion for money had and received would lie against a person who has received money from another, with perfect knowledge of all the facts common to both, merely because it was said that the claim to the money was not well founded in point of law. ()f course, cases of that kind must have continually occurred, and yet no case has been pro- duced in which a suit of this ivind has suc- ceeded. And really, when it is Ireated as the common case of money paid to B. imder a mistake, the law on the subject ivas ex- actly the same in the old court of .;hanc(n'y as in the old courts of common law. 'J'here were no more equities affecting the con- science of the person receiving the money in the one court than in the other court, for the action for money had and received procfeod- ed upon equitable considerations. Here the money has got into the hands oi une pijrson, and he received it honestly, with no mistake on his part, and no mistake on the part of the lady or of the trustee, the intermediate hand through whom the money passed and by whom it was actually paid. I have no doubt that there are some cases, which have been relied on, in which this court has not adhered strictly to the rule that a mistake in law is not always incapable of being remedied in this court; but relief has never been given in the case of a simple money demand by one person against anoth- er, there being, between those two persons, no fiduciary relation whatever, and no equity to supoi-vene by reason of the conduct of ei- ther of the parties. It is said that there have been two cases of that kind. In Bing- ham V. Bingham, 1 Ves. Sr. 12G. a man was held to be entitled to get his money back when he had paid it for a conveyance of his own land from another person. It was held in that case that he was entitled to recover back the money because he had not the con- sideration for which he had bargained. The other case is Davis v. Morier, 2 Colly. 303, where the relation of trustee and cestui que trust existed between the parties; but where the facts of that case come to be looked into, the person who received the whole income of the fund on trust to apply the same prop- erly, and who was the trustee, retained to himself all, except £.500 a year, and it ap- peared that the £500 a year was not all that he ought to have paid to the cestui que trust, and, that being so, Vice Chancellor Knight Bruce directed an inquiry— First, as to wheth- er he had retained more than he ought to have retained; and, secondly, under what circumstances and whether the other cestuis que trustent had in any manner assented to such a retainer, that is to say, had acquiesced in it so as to show whether they had given it up. Therefore, there was there a question of a cestui que trust against a trustee, which trustee, no doubt under mistake, had retained trust money in his own possession. That is the nearest case that I have been able to find to the ease now before us, hut that case is far from establishing the propo- sition contended for. If that proposition were true in respect of this case, it must he true in respect to every case in the high court of justice where money has been paid under a mistake as to legal rights, and it would open a fearful amount of litigation and evil in the cases of distribution of es- tates, and it would be difficult to say what limit could be placed to this kind of claim, if it could be made after an executor or trus- tee had distributed the whole estate among the persons supposed to be entitled, every one of them having knowledge of all the facts, and having given a release. The thing has never been done, and it is not a thing which, in my opinion, is to be encouraged. Where people have a knowledge of all the facts, and take advice, and, whether they get proper ad- vice or not, the money is divided and the business is settled, it is not for the good of mankind that it should be reopened by one of the parties saying: "You have received your money by mistake. I acquiesced in your receipt of it under that mistake, and, therefoie, I ask you to give it to me back." I am of opinion, therefore, that the decision of the vice chancellor Is perfectly correct, and ought to be affirmed. ftlELLISH, L. J. I am entirely of the same opinion. There is no doubt as to the rule of law that money paid with a full knowledge of all the facts, although, it may be, under a mistake of law on the part of both parties, cannot be recovered back; aud I think it is equally clear that, as a general rule, the court of equity did not, in such GKOUNDS FOR EQUITABLE KELIEE. 159 •cases, interfere with the courts of law. Noth- ing, in my opinion, would be more mis- chievous than for us to say that money paid, for Instance, under a mercantile contract, ac- ■cording to the construction which the par- ties themselves put upon that contract, might, years afterwards, be recovered, because per- haps some court of justice, upan a similar ■contract, gave to it a different constraction from that which the parties had put on it. I think there is no doubt that the rule at law is in itself an equitable and just rule, which is not interfered with by courts of equity; but, on the other hand, I think that, no doubt, as was said by Lord Justice Turner, "this court has power (as I feel no doubt that it has) to relieve against mistakes in law as well as against mistakes in fact" (Stone v. Oodfrey, 5 De Gex, 51. & G. 90), that is to say, if there is any equitable ground which makes it, under the particular facts of the case, inequitable that the party who received the money should retain it. Now, is there any such ground in this case? It appears that there was a trustee in pos- session of a fund which belonged either to the plaintiff or to the defendant. All the facts were perfectly well known. The trus- tee was in communication with both parties. Both parties were well aware that the ques- tion was then to be decided. The plaintiff's attention and the attention of the plaintiff's legal advisers were called to all the facts and circumstances. She took advice upon the point, and she and her advisers being all of them aware that, if she had not assented to the view that the trustee took, the natural ■consequence would be that the money would have been paid into court undpr the trustee relief act, and that she would have been obliged to have the question then decided. Therefore, having all the facts before her, and before her solicitors, and being advised, «he thinks it better for her not to contest the matter, but to allow it to be settled in that way; and there is no doubt that she was advised properly. Thereupon the money was divided, and of course would not be paid into court, and the matter would not be liti gated. Then the question is, whether a per- son who has acted in this way is now en- titled, because she has changed her mind, to litigate this question, which before she had been advised and had determined not to liti- gate. It seems to me that it would be con- trary to the ordinai-y rule of law, and that the defendant is entitled to say: "I received this money believing it to be my own. The person by whose direction it was paid was the counter claimant against me. She knew all the facts, and elected at the time not to litigate the question, and therefore I have received the money just as if the question had been determined in open court." In my opin- ion, it would be most unsafe to estates in general if we were to hold, in a case of this kind, that money paid under those circum- stances could be got back. I agree, there- fore, with the lord justice in thinliing that the judgment of the vice chancellor ought to be affirmed. BAGGALLAY, J. A. I am of the same opinion, and I merely wish to add that, while I give a general assent to the passage in the judgment of Lord Brougham (3 Jlylne & K. 99) which has been referred to in the course of the argument, in which he expressed him- self to the effect that cases might arise in which it would be the duty of the court to relieve against an error of law, I do not think that the present is a proper case for the ap- plication of such a principle. The appeal will be dismis- JAMES, L. J. sed, with costs. Solicitor for plaintiff: F. Last, agent for Barren & Rodway, Liverpool. Solicitors for defendant: Patterson, Snow, & Burney, agents for Dlbb, Atkinson, & Braithwaite, Leeds. 160 GKOUXDS FOR EQUITABLE BELIEF. COBB et al. v. COLE. (46 N. W. 364, 44 Minn. 278.) Supreme Court of Minnesota. Aug. 19, 1890. Appeal by plaintiffs from an order of the district court for Dakota county, Crosby, J., presiding, refusing a new trial. Cole, Bramliall & Morris, for appellants. Hodgson & Sclialler, for respondent. DICKINSON, J. It appears from the pleadingsthat the plaintiffs and thedefend- ant had formerly been enaaged in partner- ship business. The partnership was dis- solved by mutual consent, it being agreed, as is alleged in the complaint, that the de- fendant should retire from the firm, and sell his interest therein to them ; that he should pay to the plaintiffs "such sum as would make his interest in said firm equal to that of each of the plaintiffs thei'cin, to- wit, one-third interest, " (except as to a matter which need not be particularl.y re- ferred to,) and the pl'i^ntiffs were to nay defendant "a sum equal to his one-third interest in the firm business, as the same then appeared upon the books of the firm." The complaint alleges that a statement was made, from the books, of the resources and liabilities of the firm and of the inter- est of each partner therein; and that, re- l.yin.g upon the correctness of that state- ment, the plaintiffs paid to the defendant the amount thus appearing to be the value of the defendant's interest, it having been mutually agreed that if au.v errors should be discovered in the statement they should be corrected. The complaint then alleges the existence of errors in the statement, since discovered, which rendered the result of tne computation of the defendant's in- terest in the partnership erroneous to the extent of more than fl,400, as appears from the books of the firm, by reason of which mistake the plaintiffs overpaid the defendant in an amount stated, which they seek to recover in this action. The de- fendant put in issue (1) the alleged mis- take; (2) the allegation that he agreed to pay to the plaintiffs such sum as would make his interest equal to that of each of the plaintilTs; (3) the allegation of an agreement that any errors in the state- ment of the accounts should be corrected; and (4) the defendant alleged that the plaintiffs, having charge of the books of the firm, and representing to the defend- ant the state of the accounts, which they professed to know, offered to pay to the defendant a specified sum for his interest in the partnership business, (excepting as to certain matters,) which sum, being ac- cepted bj'' him, was paid. When the cause was called for trial th" defendant demand- ed a trial of all the issues by a jury. The plaintiffs moved the trial of the cause by the court. The court, in terms, denied both motions, and directed that these two issues be submitted to a jury : First, whether there was any express agreement between the parties that errors which might be discovered in the statement of the accounts should be corrected ; and, second, whether the defendant agreed to pa.v to the plaintiffs such sum as would make his interest in the firm equ... i.^ ...at of each of the plaintiffs. The court added that the other issues in the action would be tried by the court or a referee, as the court might determine. A jury was then called, and the trial proceeded before th& jury. When the evidence was closed the court instructed the jury as to the two issues submitted to them. The jury re- turned a negative answer to each of the questions put to them. Some time subse- quently theplaintiffs moved the court that the findings of the jury be disregarded as immaterial, and that the court try the case without a jury, as a court case. The defendant at the same time moved the court for judgment in his favor " upon the evidence and the findings of the jury." The court denied the motion of the plain- tiffs, but directed judgment to be entered in favor of the defendant "upon the find- ings of the jury," the court considering that the findings of the jury disposed of the wliole case. The plaintiffs then moved for a new trial, which was refused, and from that refusal this appeal is taken. We do not understand that judgment was in fact entered. The action was of an equitable nature, properly triable by the court. It involved, aside from the specific issues submitted to the jury, the issue as to whether there had been a mutual mis- take of fact as to the state of theaccouuts b.y reason of whicli the plaintiffs had been led to pay to the defendant more than, by the terms of the agreement, the latter was entitled to. That would constitute a cause of action, even though thfirewereno express agreement that if mistakes should be discovered they should be corrected. The attention of tlie court seems to have been diverted from the alleged mistake, as of itself entitling the plaintiffs to a remedy in equity, by the allegation of an express agreement that mistakes should be cor- rected, upon which the defendant joined issue. The determination of the issue as to the express agreement left the issue of mistake in fact still undetermined, and judgment should not have been entered upon the special verdict which did not fully decide the issues in the case. It is obvious from the statementwe havemade of the case that the only issues tried were the two which were submitted to the jury. But the plaintiff's motion for a new trial of the cause was properly refused, for the plaintiffs were only entitled to a trial of the issues as yet untried. The court had authority, of its own motion, to direct the trial of specific questions by a jury, as it did do, (Gen. St. 1878, c. 66, § 217;) and we find no error justifying a new trial. While it may be probable, from the fact that the court ordered judgment to be entered (m the verdict of the jury, that the court would have refused to try the issues which had not been tried, still the order refusing a new trial was not erroneous, and should be affirmed. The order for judgment was probably erroneous, for the reasons above stated, but that error is not reached by a motion tor a new trial. Order affirmed. A motion for reargumentof this case was denied October 7, 1S90. GHOUNDiS FOR EQUITAliLE liELJEF, 161 GRYMES V. SANDERS et al. (93 IT. S. 55.) Supreme Court of the United States. Oct. Term, 1876. Appeal from the circuit court of ine United States for the eastern district of A irginia. Conway Robinson and Mr. Leigh Robinson, for appellant. Edwin L. Stanton and George 51. 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 pm-pose 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 was 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 sive, as Catlett's compensation, all he could ^et 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- lott 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 dai'k, 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 ht(l been washing for sm'face-gold, and then look him to an abandoned shaft, Avhich he I snEr.EiJLi;.— 11 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 ti-ain, 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 appeay. that any th:ng 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 com-t-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, 1806. 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 api>ellant $10,000, and retained the residue on account of the compensation to which he was entitled under the contract between 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 Intel-mission. 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 Septem- 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- 162 GROUN'DS 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 ocCTu-red. 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 .lohnson, 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 SoOO 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 he said that they had sent for him to return home, and he couldn't stay longer to make the examination, and went off, leaving ihe 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 ba found in that vein; for it is the same vt-in which passes through the Greenwood Minr', 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 torn- hands, and they were not engaged more than eight or ten days at the utmost." In September, 1866, Repplier instructed Gatlett 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 file! on the 21st of March, 1808. 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 com't 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, 408; 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? AVhen 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 UELIEE. 163 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, but I do know that nothing was said about the shaft, and that he said nothing to produce Ihe 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 ..heir 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 Iiave arisen from negligence, where the means of knowledge were easily accessible. The party complaining must have exercised :\t least the degree of diligence "which may be fairly expected from a reasonable person." Kerr on Fraud and Jlistake, 407. Fisher, the agent of the appellees, who had the deed prepared, was within a few hom-s" 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 com'se 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 apjjellants 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 pm-chase. 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 Tjeav. 234; Campbell v. Ingilby, 1 De G. & J. 405; Gar- rett V. Bm-leson, 25 Tex. 44; Warner v. Dan- iels et al., 1 Woodb. & M. 91; Ferson v. San- ger, id. 139; Lamb v. Harris, 8 Ga. 540; Trigg v. Read, 5 Humph. 520; Haywood r. Cope, 25 Beav. 143. AVhere a party desires to rescind upon th(?. ground of mistake or fraud, he must, up lu the discovery of the facts, at once announce- his pm-pose, and adhere to it. If he be si- lent, and continue to treat the property as: his own, he will be held to have waive 1 (he objection, and will be conclusively bound hy the contract, as if the mistake or fraud liacE' not occm-red. He is not permitted to plaj^ fast and loose. Delay and vacillation are- fatal to the right which had before suli.sist- ed. These remarks are pecuharly 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; cd.) 335; Diman v. Providence, W. & B. R. R. Co., 5 R. L 130. A court of equity is always reluctant to re- scind, unless the pai-ties can be put back in- statu quo. If this cannot be done, it will give such relief only where the clearest andL 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 suchi property, and it has fallen largely in mr.vet: value. Under the circumstances, the loss^ ought not to be borne by the appellant- Hunt V. Silk, 5 East, 4.52; Jlintnrn v. ^..aln,. 3 Seld. 227; Okill v. AVhittaker, 2 Piiill. 340; Brisbane v. Daeres, 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. 130. The parties, in dealing with the pvoportj'- 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 coiild 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. Broughtoiv 17 id. 234; Attwood v. Small, 6 01. & Fin- 407; Marvin v. Bennett, 8 Paige, 321; Thoni^ IQi GROUNDS FOR E:QU1TAI?LE RELIEF. as V. Bartow, 4S N. Y. 19S; Hiuitcr v. Goudy, 1 Ham. 451; Hall t. 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 spolien 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 s:iid 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 bUl. GROUNDS FOR EQU1TA13LE RELIEF. 1C5 COLLINS V. COOLEY et al. m Atl. Rep. 5T4.) Court or Chancery of New Jersey. June 16, 18S8. Bill to foreclose a chattel mortgage. CaiTOll Kobbins, for complainant, Eliza- beth Collins. James Buchanan, for defend- ant Wentz. G. D. W. Vroom, for defend- ants Lockwood & Co. Edwin R. Walker, for defendants Harbison & Co. BIRD, v. C. This is a contest bet\yeoii cei-tain chattel mortgagees and the vendor of a portion of the goods mortgaged. The defendants Hlarbison & Co. allege tliat Cooley, the mortgagor, obtained the goods in- volved, of them, by fraud, and that, as against the mortgagees, who hold the goods under mortgages given to secure moneys which had been previously loaned, they (Har- bison & Co.) can hold them under their re- plevin. Was any fraud perpetrated by Coo- ley at the time of the sale? This is the only question. Cooley had been in business in Brooklyn, and was about going to Hagers- town, Md., when he called on Harbison & Co. for additional credit, (having dealt with them for years on credit.) He selected about $1,300 of goods, and then Harbison callpcl his attention to their long-continued friend- ship and business intercourse, and also to the fact that his efforts in Brooklyn had not been a success, and said: "Now, I would like to know how you stand?" Whether, in his reply to this inquiry, Cooley said that he would take $13,000 or $14,000 worth of goods to Maryland, as he insists, or $18,000, as Harbison says, is not so material as an- other point raised by the inquiry. Cooley said his indebtedness was $4,000 to $5,000; but he says that, whatever the amount of the indebtedness which he named was, it uid not include his individual indebtedness, but only his Indebtedness on merchandise ac- count. He makes a distinction. Now, at this very time, he was indebted to the chat- tel mortgagees, although they did not take their mortgages till long after, in the sum of $9,000 and over, for money borrowed. This money h« had put in his business as a merchant, and had given the lender credit for it on his books. He says he did not in- clude the amount of this indebtedness in his statement to Harbison because the latter did not ask for it; and it is urged that he was not bound to disclose this fact. Surely, the complainant's counsel must be wrong in this. If one business man, a vendor, asks his ven- dee for a statement of his financial condition, or asks him how he stands, it cannot possi- bly be that he answers fairly and fuUy if he only speaks with reference to the business he proposes to promote by the particular purchase. This case shows that, if such par- tial statements were to be regarded as suffi- cient, most extraordinary wrongs would be inflicted on honest business men. I think Harbison was entitled to full disclosure of the situation, and that the concealment, by Cooley, of his indebtedness for money bor- rowed, was a fraud. It was his duty to tell the whole truth. See Bigelow, Fraud, .503, 504. The following cases aid in reaching a just conclusion: Stoutenburgh v. Konkle, 15 N. J. Eq. 33; Hicks v. Campbell, 19 N. J. Eq. 183; Ensign v. Hoffleld, (Pa. Sup.) 4 Atl. Rep. 189; Robinson v. Levi, 81 Ala. 134, 1 South. Rep. 584; Doane v. Lockwood, 115 Rl. 490, 4 N. E. Rep. 500; Atwood v. Dear- born, 1 Allen, 4S3. The cases in which the right of tlie vendor to recover the goods be- cause of fraud have been considered, togeth- er with the right to pursue them when the vendee has parted with them wholly or par- tially, all hold that he is entitled to them as against every one who is not a bona fide purchaser for value. See the cases above- cited. I find the value of the goods sold by the re- ceiver, which had been replevied by Harbi- son & Co., is $499.79: This amount the re- ceiver should pay to Harbison & Co., and also their costs, out of the funds in his hands. I will so advise. 166 Gi:OU\J>S FOR EQUITABLE RELIEF. HOLMES'S APPEAL. (77 Pa. St. 50.) Supreme Court of Pennsylvania. Oct. 26, 1874. Before AGNEW, 0. J., and SHARSWOOD and MERCUR, JJ. Bayne & Magee, for appellant. T. C. La- zear, for appellee. PER CURIAM. When the treaty between the parties for the exchange was in prog- ress, both Heckler and his wife were anxious to know whether ague and fever existed in the vicinity of the Indiana farm, and in- > j)osition that the court ought not to decreb a rescission of this contract, the incumbrance being actually released before decree. In that case the complainant brought his bill for relief from payment in full of the pur- chase price of a plantation and negr. es o •. the ground of a false warranty of sound- ness of some of the negi-oes, and for an iu junction against a foreclosure of a deed of trust given to secure such pm-chase money. After answer the complainant filed an amended bill, which stated that after the filing of tho original bill the complainant discovered that a large number of the slaves were the property of defendant's wife, and that the defendant fraudulently concealed the fact, and represented himself as the owner; that he would not have bought If he had been aware of it; that defendant had within a few weeks tendered deeds of hi]ii- self and wife and children for the slaves, which he declined, considering himself as en- titled to a rescission of the contract as to the 18 slaves on account of the fraud. The coiu't were of opinion that by an-alogv to the doctrine in cases of suits for specific performance, (in which, unless time is of ihe essence of the contract, it is sufficient that the vendol- is able to make a title before decree,) the deed in the case before it was a fulfillment of the contract, and the covenant GnouxD-; Foil equitable relief. ley for title was fuUy kept 1^ having a capacity to convey at any time before decree. The doctrine in cases of specific perform- auce, however, goes upon thfi ground that time is not of the essence of the contract; that is, that a title at any time before decree was what the parties in effect bargained for. But the agi\eement in the case of an exe- cuted contract is expi-ess that the seller has a good title at the time of the transfer or conveyance. There is no room, therefore, for any sup- position that time was not of the essence of the conti-act, and the court, in Davidson v. Moss, seem to have overlooked this in say- ing that, so far as th9 prinsiple is coDCjrned, it made no difference that the contract wms executed. The court admit that if the pur- chaser had sustained any damage in conse- quence of the fraud, the tenier plea del would have been 'no answer to the bill; but say that there was no proof of any loss or damage by the complainant in con-requence of the defect alleged, nnd cite Boyce v. Grun- dy, 3 Pet. 210, as holding that, in the a'jsence of such proof, if the party is able to make title when the bill to rescind the contract is filed, and so answers, and duly sets out the title to be tendered, it may be a good an- swer to the bm. The case, however, does not come up to that It was a biU filed to rescind an agreement between Boycie and the complainant for the sale by Boyce to him of a tract of land in Tennessee, in which, by the agreement itself, four years' time was .^llowed to make a title. It was not only the case of an executory agreement, but of one in which time would hardly have been held of the essence of the contract. The language of the court ui>on the point is that, since upon discovery of the fraud the complainant gave notice, "not: of an intention to rescind, but of a cUiim for a deduction pro rata, and since time is expressly given, to the extent of four years, to make title to the whole tract, we will not affirm th;it in the absence of any proof of positive loss from want of title in the interval, if the party had been able to make title when the bill was filed, and had so answered, nnd duly set but ttie title to be tendered, that it would have been a case for relief." T?ie principle of that case, therefore, is in om- opinion inapplicable to a bill brought to rescind a conveyance on the ground of fraud, and the conclusion of the court in Dav.dson V. Moss, that though there may have been a fraud practiced by the vendor at the time of the contract, the vendee has not su^^- talned any Injury, and therefore is not ceeds of plaintiff's prop- erty sold by the defendant as had been used in the purchase of that propei-ty. Order appealed from affirmed. 170 GKOUNDS FOB EQUITABLE KELIEF. MULVEY V. KING. (39 Ohio St. 491.) Supreme Court of Ohio. Jan. Term, 18S3. Error to the district court of Portage •county. W. B. Thomas and Luther Day, for plain- tiff in error. Ira S. King and Alphonso Hart, for defendant In error. UPSON, J. The facts alleged in the XLmended answer not having been put in issue by a reply, and having also been fully proved by the testimony, the court of com- mon pleas must have decided that these facts did not constitute a defense nor coun- ter-claim. The representation that the tract of land purchased, included a piece more valuable than that actually conveyed, on aocount of its being of better quality, and having on it timber, and a building of some value, was certainly a material representa- tion, and If made falsely or fraudulently, would, without doubt, constitute a good cause of action for the damages sustained by a person who was, by means thereof, in- duced to purchase the property. In the case of Allen v. Shackelton, 15 Ohio St. 145, it was held that the purchaser might set up, as a defense to a suit upon the note -and mortgage given for the purchase money, a counter-claim for damages for fraud prac- ticed, in the sale of the premises by tlie -vendor, by means of representations s'm lor to those which were made by King 'o Mul- vey; but that was a case of actual fraud. In the case of Taylor v. Leith, 26 Ohio St. 428, which was an action brouglit to recover -damages for fraudulent representations in the sale of lands, it was held that the in- struction given by the com-t of common pleas was calculated to mislead the jury, by giving them to understand that the representations which were untrue in fact would give a cause of action, although they may have been founded in mere mistake; and, in the -opinion of the court, White, J., says: "The present action is brought to recover damages for fraud or deceit practiced in the sale of land. To constitute a cause of action there must be bad faith. If the representations, when made, were believed to be true, and the facts of the case were such as to ,1ustify the belief, there is no fraud or deceit, and there can be no recovery." In the case of Aetna Ins. Co. v. Reed, 33 Ohio St 283, it was held that an action would lie for a false representation of a ma- terial fact, whether thff party making it knew it to be false or not, if he had no reason to believe it to be true, and it was made with the intention of inducing the per- son to whom made to act upon it, and he did so, sustaining a damage in consequence. The principle upon which a person is held liable for damages in such a case is, that one who causes damage to another by intucing him to act upon representations false in fact, and which the person making them had no re i son to believe to be true, is guilty of such gross negligence as in law is regarded as a fraud. It may be considered as well settled in this state, by the cases above cited, that an action for damages caused by misrepresentation cannot ordinarily be maintained, without proof of actual fraud, or such gross negli- gence as amounts to fraud. When, however, a person claims the benefit of a contract into which he has induced another to enter by means of misrepresentations, however hon- estly made, the same principles cannot be applied. It is then only necessary to prove that the representation was material and substantial, affecting the identity, value or character of the subject-matter of the con- tract, that it was false, that the other party had a right to rely upon it, and that he was induced by it to make the contract, in order to entitle him to reUef either by rescission of the contract or by recoupment in a suit brought to enforce it In this case it Is fully proved that the representations made, materially affected the identity and value of the property sold, that they were made for the purpose of inducing Mulvey to make the purchase, that he be- lieved them to be true and therefore bought the property, which he would not otherwise have done, and that they were false. But the testimony also fuUy proves that King was guilty neither of fraud nor of gross neg- ligence in making those representations, his mistake having been occasioned by that of a surveyor In previously establishing the boundary line. The facts thus proved bring the case with- in the principles above stated and give a right of recoupment in an action for the balance of the purchase money, to the ex- tent of the deficiency in the value of the property purchased. The rights of the pur- chaser do not rest upon the ground of fraud, actual or constructive, but that, to the ex- tent of the difference in value between the property as it was represented to be, and the property conveyed, there is no consideraticn for his promise. He cannot, upon any prin- ciple of law or equity, bo compollod to pay for what the vendor did not own, and coiilti not convey. The maxim caveat emptor does not apply to such representations as wore made in this case, upon which the purchaser tinder the chcumstances had a right to rely, and in reference to which he was guilty of no negligence. .Tudgments of the district coui-t and court of common pleas reversed, and cause re- manded. GROUNDS FOR EQUITABLE RELIEF. 171 PERKINS V. PARTRIDGE et al. (30 N. J. Eq. 82.) Court of Chancery of New Jersey. Oct. Term Bill for relief. On final hearing, on plead- mgs and proofs. B. A. Vail, for complainant. S. M. Dick- inson, for defendants. THE CPIAXCELLOR. The complainant seelis to set aside a conveyance made by liim to Charles P. Partridge, on the 1st of August, 1875, whereby he conveyed in fee to the latter his house and lot in Woodbrldge 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 amotmt 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 cotmty, 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. These 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 tiear 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 Brooklyji 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 commmiicated 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 $7,000 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 tlie face of it; and that he would have to pay his father for it." After the contract was signed, and on the day when Ihe deed was delivered and before the papers were ex- changed, the complainant and Charles F. Partridge and his fatlier 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 tlie 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 seU 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 pm-chaser. Charles Part- ridge testifies that he made an exchange of the property with certain persons whom he designates as Charles F. Bouton and De 172 GUOUNDS rOK EQUITABLE RELIEF. Witt H. Phillips (thougli the conveyance to Thomas H. Phillips had then been madel, 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 la 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 day on which it was conveyed to him, Mai'ch 6, 1874, and he swears that he never paid Charles Partridge, or any one else, any in- terest on the mortgage. It is worthy of re- marlj, 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 tlieir value consisted, principally, in the bark of the hemlock trees growing on them. Tlie right to this baric was resei-ved by the gran- tors, in the deed to Partridge, anil the bark lias 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 regai-ded as mere "dealing talk" —simplex commendatio. They were substan- tial, important representations as to exist- ing facts, materially affecting the charactei" 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— all 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 purcliase- money of his property, the defendants were- enabled to obtain the conveyance of that property. The complainant mnde 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 i\ig. p. 102.i This section is expressed in negative terms, and has not changed the former practice except in pre- scribing that notice of the lis pendens shall be filed before a bona fide purchaser or mort- gagee shall be chargeable with notice of the pendency of the suit, notwithstanding the bill has been filed and the subpaana served. But the defendant was not a purchaser pendente lite. He acquired title by a deed which bears date on the 7th day of August, 1865, and was acknowledged on the next day. The defendant testifies that it was delivered on the 7th of August. Boisaubln's testimo- ny is that it was delivered on the 7th or Sth. From the date of the acknowledgment of the mortgage, it is probable that it was not finally delivered before the 19th. The proof, however, is full and clear that it was exe- cuted and delivered to Murphy before the bill was filed in the case of Houshwout v. Boisaubin. 2 The commencement of a suit- in chancery is constructive notice of the pend- ency of such suit only as against persons who have acquired some title to or interest in the property involved in the litigation, un- der the defendant, after the suit is com- menced. Stuyvesant v. Hall, 2 Barb. Ch. 151; Hopkins v. McLaren, 4 Cow. 667: Parks v. Jackson, 11 Wend. 442. A person 1 Revision, p. 114, § 57. 2 1,8 N. J. Eq. 315. PROPEUTV IX EQUITY. 199 whose Interest existed at the commenoeuient of the suit is a necessity party, and will not be bound by the proceedings unless he bo made a party to the suit. Ensworth v. Lam- bert, 4 Johns. Ch. COS. The complainants' right to relief on the ground that the defendant was a purchaser from Boisaubin pendente lite having failed, it must be considered whether, In the other aspect of the case, he will be entitled to re- lief. In this aspect the bill is to be taken to have been filed for the execution of the trust arising from the prior contract between Haughwout and Boisaubin for the purchase of the lands, by the conveyance to the com- plainant, by Murphy, of the legal title which he acquired by his deed. In this aspect of the case, the biU is a bill for specific perform- ance. In equity, upon an agreement for the sale of lands, the contract is regarded, for most purposes, as if specifically executed. The purchaser becomes the equitable owner of the lands, and the vendor of the purchase money. After the contract, the vendor is the trustee of the legal estate for the vendee. Crawford v. Bertholf, 1 N. J. Eq. 460; Hoag- land V. Latourette, 2 N. J. Eq. 254; Huffman v. Hummer, 17 N. .1. Eq. 264; King v. Ruck- man, 21 IN. J. Eq. 509. Before the contract is executed by conveyance, the lands are de- visable by the vendee, and descendible to his heirs as real estate; and the personal repre- sentatives of the vendor are entitled to the purchase money. 1 Story, Eq. Jur. § 789; 2 Story, Eq. Jur. § 1213. If the vendor should again seU the estate of which, by rear son of the first contract, he is only seized in trust, he will be considered as selling it for the benefit of the person for whom, by the first contract, he became trustee, and there- fore liable to account. 2 Spence, Eq. Jur. 310. Or the second purchaser, if he have notice at the time of the purchase of the pre- vious contract, will be compelled to convey the property to the first purchaser. Hoag- land V. Latourette, 2 N. J. Eq. 254; Down- ing v. LUsley, 15 N. J. Eq. 94. A purchaser from a trustee, with notice of the trust, stands in the place of his vendor, and is as much a trustee as he was. 1 Eq. Cas. Abr. o84; Story v. Lord Windsor, 2 Atk. 631. The cestui que trust may follow the trust property in the hands of the purchaser, or may resort to the purchase money as a sub- stituted fund. Murray v. Ballon, 1 Johns. Oh. 566, 581. It is upon the principle of the transmission by the contract of an actual equitable estate, and the impressing of a trust upon the legal estate for the benefit of the vendee, that the doctrine of the specific performance of contracts for the sale and conveyance of lands mainly depends. The defendant Insists that he holds the lands discharged of any trust in favor of Haughwout or the complainants, by reason of his being a bona fide purchaser for a val- uable consideration, without notice. The proof is, that at the time of the deliv- ei-y of the deed, $400 of the consideration money was paid, and the balance secured by mortgage. Conceding that the $400 was ac- tually paid before Murphy had notice of Haughwout's claim, the defence of a bona fide purchase is not supported. Before the mortgage became due, ilurphy had actual notice of' the existence and nature of Haugh- wout's claim. The defence of a bona fide purchase may be made by plea, in bar of discovery and re- lief, or by answer, in bar of relief only. If made by plea, the payment of the whole of the consideration money must be averred. An averment that part was paid and the balance secured by mortgage, will not be sufficient. Wood v. Mann, 1 Sumn. 506, Fed. Cas. No. 17,'J51. Proof of the payment of the whole purchase money is essential to the de- fence, whether it be made by plea or answer. Jewett V. Palmer, 7 Johns. Ch. 65; Molony v. Kernan, 2 Dru. & War. 31; Losey v. Simp- son. 11 N. J. Eq. 246. Notice before actual payment of all the purchase money, although it be secured and the conveyance executed, or before the execution of the conveyance, notwithstanding the money is paid, is equiv- alent to notice before the contract. 2 Sugd. Vend. 533 (1037) ; Hill, Trustees, 165. If the defendant has paid part only, he will be pro- tected pro tanto only. 1 Story, Eq. Jur. § 61c; Story, Eq. PL § 604a. What the measure of relief shall be in cases where the deed has been executed and delivered and part of the purchase money paid before notice of the previous contract to sell to another, was elaborately discussed by the counsel of the appellants. The chancel- lor held, upon the authority of Flagg v. Mann, 2 Sumn. 487, Fed. Cas. No. 4,847, that a contract of purchase, executed by delivery of the deed and payment of part of the pur- chase money without notice of the previous contract, gave the purchaser a right to hold the .land, and that the equity of the person with whom the previous contract was made, was merely to have the unpaid purchase money. The law of the English courts is, that un- til the defence of a bona fide purchase is perfected by the delivery of the deed of con- veyance, and the payment of the entire con- sideration money, such purchaser is without any protection as against the estate of the equitable owner under a prior contract, even though he contracted to purchase, and ac- cepted his deed and paid part of the pur- chase money in good faith; his only remedy being against his vendor to recover back what he has paid on a consideration Avhich has failed. In some of the American courts this doctrine has been qualified to the ex- tent of enforcing specific performance of the prior contract, on condition that the pur- chaser shall be indemnified for the purchase money paid, and also for permanent improve- ments put upon the property before notice, 20O PROI'EKTY IN EQUITY. on the principle that he who asks equity must do equity. The cases are collected in 2 Lead. Cas. Eq. 1; notes to Basset v. Nos- worthy. The doctrine of the English courts is nec- essary to give effect to the principle that in equity, immediately on the contract to pur- chase, an equitable estate arises in the ven- dee, the legal estate remaining in the vendor for his benefit. Qualified by the obligation to make compensation to any subsequent bona fide purchaser, who has paid part only of the consideration money, for all disburse- ments made before notice, the rule is every way consonant with correct principles. Such indemnity is protection pro tanto. But whatever the nature of the relief may be in cases where the naked question of the acceptance of a deed and payment of part of the consideration before notice is presented, the relief indicated by the chancellor is the only relief the complainants are entitled to under the circumstances of this case. The rule of law which deprives a subsequent pur- chaser who has contracted for and accepted a conveyance, and paid part of the purchase money in good faith, of the fruits of his pur- chase without indemnity, is exceedingly harsh, and often oppressive in its applica- tion. Mitigated by the obligation to make indemnity for payments and expenditures before actual notice, its operation is never- theless frequently inequitable. A party who asks the enforcement of a rule of this nature against another who is innocent of actual fraud, must seek his remedy promptly. He may lose his right to specific relief against the lands by laches, and be remitted to the unpaid purchase money as the only relief which will be equitable. In cases where the prayer is for the specific performance of a contract between the immediate parties to the suit, delay in filing the bill is often of it- self a bar to relief. Merritt v. Brown, 21 N. .1. Eq. 401. The agreement between Haughwout and Boisaubin was made on the 24th of Septem- ber, 1S63. In February, 18G4, Haughwout gave Boisaubin notice of his election to take the property under the agreement. After this notice was given, Boisaubin laid the property out in lots and publicly offered them for sale. JIurphy's deed for the three lots of which he became the purchaser, was ex- ecuted and delivered in August, 1865. The bill in the suit of Haughwout v. Boisaubin, was filed the last day in the same month. The solicitor who appeared for Haughwout in that suit, had notice of the existence of Murphy's deed within a few days after his bill was filed. Boisaubin, in his answer, which was filed on the 3d of November, 1865, specifically sets out the fact of the convey- ance to Murphy and the circumstances con- nected therewith. Murphy was himself ex- amined as a witness on the 5th of April, 1866, and testified in relation to the convey- ance to him. Haughwout must be charged with notice as early as April, 1860, that Murphy intended to assert his right to the land. The bill in this case was not filed un- til the 4th of April, 1868. After this long delay It would be inequitable to enforce specific performance against the defendant. The fact that there were delays in the prose- cution of that suit to final decree, which were unavoidable, ought not to prejudice Murphy. He should have been made a party to that suit. Besides that, the bond and mortgage which were given by Murphy to Boisaubin for the unpaid purchase money, were assigned by Boisaubin to one Geoffrey, on the 16th of April, 1866, and by Geoffrey further assign- ed to William Davidson, on the 2d of July of the same year, and notice of such assign- ment given to Murphy by the solicitor of Davidson. The money due on the mortgage was paid at its maturity by Murphy to Dav- idson's solicitor. That Davidson, in the transaction, was acting for Haughwout, and that the money wherewith this assignment was procured was paid by Haughwout, and that the proceeds when collected were real- ized by him, are indisputable. That the assignment was made by Geof- frey to Davidson, as collateral security, will not affect the case. When Murphy received notice of the prior equitable title of Haugh- wout, he was entitled to have the security lie had given for the unpaid purchase mon- ey surrendered. Tourville v. Naish, 3 P. Wms. 307. The subsequent assignments were taken and the money received, with full notice of all the circumstances. The money received on the mortgage, Haugh- wout still retains. It is no answer to say that in decreeing specific performance Mur- phy may liave the money refunded to him. Haughwout might have insisted upon hav- ing the land itself, or at his option, pursued the proceeds of the sale. He cannot have both. By accepting a security given for the purchase money, he is deemed to have af- firmed the sale so far as respects the pur- chaser. Murray v. Lylburn, 2 Johns. Ch. 441; 2 Stoi-y, Eq. Jur. § 1262; Scott v. Gam- ble, 9 N. J. Eq. 218. The complainants are not entitled to relief. The decree of the chancellor is aflSrmed, with costs. The whole court concurred. PKOl'EKTY IN EQUITY. 201 NEWTON V. POKTER et al. (69 N. Y. 133.) Court of Appeals of New York. March 27, 1877. Action to recover proceeds of stolen bonda There was a judgment for plaintifC, from which defendants appealed. M. Goodrich, for appellants. M. M. Wa- ters, for respondent. ANDREWS, J. This is an equitable action "brought to establish the right of the plaintiff to certain securities, the proceeds of stolen bonds, and to compel the defendants to ac- count therefor; In March, 1869, the plaintiff was the owner -of $13,000 of government bonds, and of a rail- road bond for $1,000, negotiable by delivery, vs'hich, on the 12th of March, 1869, were stol- •en from her, and soon afterward $11,500 of the bonds were sold by the thief and his con- federates, and the proceeds divided between them. William Warner loaned a part of his «hare in separate loans and took the promis- sory notes of the borrower therefor. George Warner invested $2,000 of his share in the purchase of a bond and mortgage, which was assigned to his wife Cordelia without consid- ■eration. In January, 1S70, William Warner, George Warner, Cordelia Warner and one Lusk were arrested upon the charge of stealing the bonds, or as accessories to the larceny, and were severally Indicted in the county of Cort- land. The Warners employed the defendants, who are attorneys, to defend them in the criminal proceedings, and in any civil suits which might be instituted against them in re- ■spect to the bonds, and to secure them for their services and expenses, and for any lia- bilities they might incur in their behalf; Wil- liam Warner transferred to the defendants Miner and Warren promissory notes taken on loans made by him out of the proceeds of the stolen bonds, amounting to $2,250 or there- abouts, and Cordelia Warner, for the same purpose, assigned to the defendant Porter the bond and mortgage above mentioned. The learned judge at special term found that the defendants had notice at the time they received the transfer of the securities, that they were the avails and proceeds of the stolen bonds, and directed judgment against them for the value of the securities, it ajipear- ing on the trial that they had collected or dis- posed of them and received the proceeds. The doctrine upon which the judgment in this case proceeded, viz.: that the owner of negotiable securities stolen and afterward sold by the thief may pursue the proceeds of the sale in the hands of the felonious taker •or his assignee with notice, through whatever changes the proceeds may have gone, so long as the proceeds or the substitute therefor can l3e distinguished or identified, and have the proceeds or the property in which they were invested subjected, by the aid of a court of equity, to a lien and trust in his favor for the purposes of recompense and restitution, is founded upon the plainest principles of jus- tice and morality, and is consistent with the rule in analogous cases acted upon in courts of law and equity. It is a general principle of the law of personal property that the title of the owner cannot be divested without his consent. The purchaser from a thief, how- ever honest and bona fide the purchase may have been, cannot hold the stolen chattel against the true proprietor, but the latter may follow and reclaim it wherever or in whoseso- ever hands it may be found. The right of pursuit and reclamation only ceases when its Identity is lost and further pursuit is hope- less; but the law still protects the interest of the true owner by giving him an action as for the conversion of the chattel against any one who has interfered with his dominion over it, although such interference may have been innocent in intention and under a claim of right, and in reliance upon the title of the fe- lonious taker. The extent to which the com- mon law goes to protect the title of the true owner has a striking illustration in those cases in which it is held that where a willful tresijasser converts a chattel into a different species, as for example, timber into shingles, wood into coal, or corn into whisky, the prod- uct in its improved and changed condition be- longs to the owner of the original material. Silsbury v. McCoon, 8 N. Y. 380, and cases cited. The rule that a thief cannot convey a good title to stolen property has an exception in case of money or negotiable securities transferable by delivery, which have been put into circulation and have come to the hands of bona fide holders. The right of the owner to pursue and reclaim the money and securi- ties there ends, and the holder is protected in his title. The plaintiff was in this position. The bonds, with the exception stated, had, as the evidence tends to show, been sold to bona fide purchasers, and she was precluded from following and reclaiming them. The right of the plaintiff in equity to have the notes and mortgage while they remained in the possession of the felons or of their as- signees with notice, subjected to a lien and trust in her favor, and to compel their trans- fer to her as the equitable owner, does not, we think, admit of serious doubt. The plain- tifC, by the sale of the bonds to bona fide purchasers, lost her title to the securities. She could not further follow them. She could maintain an action as for a conversion of the property against the felons. But this remedy in this case would be fruitless, as they are wholly insolvent. Unless she can elect to regard the securities in which the bonds were invested as a substitute, pro tanto, for the bonds, she has no effectual remedy. The thieves certainly have no claim to the securities in which the proceeds of the bonds were invested as against the plaintiff. They, without her consent, have disposed of her property, and put it beyond 202 PROPERTY IN EQUITY. her reach. If the avails remained in their hands, In money, the direct proceeds of the sale, can it be doubted that she could reach it? It is not necessary to decide that in the case supposed she would have the legal title to the money, but if that question was in- volved in the case I should have great hesi- tation in denying the proposition. Tliat she could assert an equitable claim to the money I have no doubt. And this equitable right to follow the proceeds would continue and attach to any securities or property in which the proceeds were invested, so long as they could be traced and identified, and the rights of bona flde purchasers had not intervened. In Taylor v. Flumer, 3 Maule & S. 562, an agent, intrusted with a draft for money to buy exchequer bills for his principal, re- ceived the money and misapplied it by pur- chasing American stoclss and bullion, intend- ing to abscond and go to America, and ab- sconded, but was arrested berore he quitted England, and surrendered the securities and bullion to his principal, who sold them and received the proceeds. It was held that the principal was entitled to withhold the pro- ceeds from the assignee in bankruptcy of the agent, who became bankrupt on the day he received and misapplied the money. Lord Ellenborough, in pronouncing the opinion in that case, said: "It makes no difference, in reason or law, into what other form differ- ent from the original the change may have been made, whether It be into that of prom- issory notes for the security of money pro- duced on the sale of the goods of the princi- pal, as in Scott v. Surman, Willes, 400, or into other merchandise, as in Whitecomb v. Ja- cob, Salk. 160, for the product or substitute for the original thing still follows the na- ture of the thing itself so long as it can be ascertained to be such, and the right only ceases when the means of ascertainment fails." If, in the case now under consideration, the plaintiff had intrusted the Warners with the possession of the bonds, and they had sold them in violation of their duty, for the purpose of embezzling the proceeds, and in- vested them in the notes and mortgage In question, the plaintiff could, within the au- thority of Taylor v. Plumer, have claimed them while in their hands, or in the hands of their assignees with notice, and would be adjudged to have the legal title. In courts of equity the doctrine is well settled and is uniformly applied that when a person, standing in a fiduciary relation, misapplies or converts a trast fund into an- other species of property, the beneficiary will be entitled to the property thus acquired. The jurisdiction exercised for the protection of a party defrauded by the misappropria- tion of property, in violation of a duty, ow- ing by the party making the misappropria- tion, is exceedingly broad and comiDrehen- sive. Tlie doctrine is illustrated and applied most frequently in cases of trusts, where trust moneys have been, by the fraud or violation of duty of the trustee, diverted from the purposes of the trust and converted into other property. In such case a court of equity will follow the trust fund into the- property into which it has been converted, and appropriate it for the indemnity of the- beneficiary. It is immaterial in what way the change has been made, whether money has been laid out in land, or land has beea turned into money, or how the legal title to the converted property may be placed. Eq- uity only stops the pursuit when the means of ascertainment fail, or the rights of bona- flde purchasers for value without notice of the trust, have intervened. The relief will be moulded and adapted to the circumstan- ces of the case, so as to protect the inter- ests and rights of the true owner. Lane v. Dighton, Amb, 409; Mansell v. Mansell, 2 P. Wms. 679; Lench v. Lench, 10 Ves. 511; Lewis V. Madocks, 17 Ves. 56; Perry, Trusts, § 820; Story, Eq. Jur. § 1258. It is insisted by the counsel for the defend- ants that the doctrine which subjects prop- erty acquired by the fraudulent misuse of trust moneys by a trustee to the influence of the trust, and converts it into trust property and the wrong-doer into a trustee at the elec- tion of the beneficiary, has no application tO' a case where money or property acquired by felony has been converted into other prop- erty. There is, it is said, in such cases, no trust relation between the owner of the stol- en property and the thief, and the law will not imply one for the purpose of subjecting the avails of the stolen property to the claims of the owner. It would seem to be an anom- aly in the law if the owner who has been de- prived of his property by a larceny should be less favorably situated in a court of eq- uity, in respect to his remedy to recover it^ or the property into which it had been con- verted, than one who by an abuse of trust has been injured by the wrongful act of a trustee to whom the possession of trust prop- erty has been confided. The law in such a case will raise a trust in invitum out of the transaction, for the very purpose of subject- ing the substituted property to the purposes of indemnity and recompense. "One of the most common cases," remarks Judge Story, "in which a court of equity acts upon the- grou; ,1 of implied trusts in invitum, is whem a party receives money which he cannot con- scientiously withhold from another party." Story, Eq. Jur. § 1253. And he states it to- be a general principle that "whenever the property of a party has been wrongfully" misapplied, or a trust fund has been wrong- fully converted into another species of prop- erty, if its identity can be traced, it will be- held in its new form liable to the rights of the original owner, or the cestui que trust." Id. § 1258. See, also. Hill, Ti-ustees, p. 222. We are of opinion that the absence of the conventional relation of trustee and cestui que trust between the plaintiff and the War- PROl'EliTi' IN EQUITY. 2a3 ners IS no obstacle to giving the plaintifC the benefit of the notes and mortgage, or the proceeds In part of the stolen bonds. See Bank of America v. Pollocli, 4 Edw. Ch. 215. It is however strenuously insisted that the defendants had no notice when they received the securities that they were the avails or proceeds of the bonds. That if they had no- tice they would stand in the position of their assignors, and that the property in their hands would be affected by the same equi- ties as if no transfer had been made, is not denied. Murray v. Ballou, 1 Johns. Ch. 566; Hill, Trustees, p. 259. The learned judge at special term found as has been stated, that the defendants had notice of the larceny of the bonds, and the use made of the money arising from their sale, at the time they re- ceived the notes and mortgage. The duty of this court upon the question of notice is limited to the examination of the case, with a view of ascertaining whether there was evidence to support the finding of fact. If such evidence exists, the finding of the trial judge is conclusive. We have examined with much care the voluminous record before us, and are of opin- ion that the finding is sustained by the evi- dence. The testimony was conflicting. The circumstances under which the defendants took the transfer of the securities were cer- tainly unusual, and the facts then known by the defendants were calculated to create a strong presumption that the notes and mort- gage came from investments of the stolen property. It was for the trial court to weigh the testimony, and in the light of all the facts developed on the trial, to determine the question of notice. It would be a use- less labor to collate the testimony on this subject, and we content ourselves with stat- ing our conclusion, that the finding was war- ranted by the evidence. The objection to the evidence, under a com- mission issued to William Jessup of Mon- trose, Pennsylvania, and which was execut- ed by William H. Jessup as commissioner was, we think, j^roperly overruled. In sup- port of the objection, one of the defendants testified that he resided at Montrose in 1858, and that at that time two attorneys resided there, named respectively William and Wil- liam H. Jessup, and an offer was made to prove that the judge who granted the order for the commission consulted a register of at- torneys in which both names appeared, and selected the name of William Jessup, and in- serted it in the order. The commission was executed two years and a half before the trial. It does not appear at what time It was returned to the clerk, but the presump- tion is that it was returned within a reason- able time after its execution. The objection that the commission was not executed by the person intended was not made until the evidence taken under it was offered on the trial. That the defendants were apprised of the facts upon which the objection was founded before the trial is quite evident. Prima facie a commission directed to a person, omitting any mention of a middle name, and returned executed by a person of the same name, with the addition of a mid- dle name, is executed by the person named in the order. Franklin v. Talmadge, 5 Johns. 84. The ruling of the judge, in respect to the objection made to the commission, was clearly in furtherance of justice. The de- fendant had ample opportunity to raise the objection to the commission before the trial by a motion to suppress, and it should not be permitted that a party may lie by, and spring an objection of this kind on the trial for the first time, when the other party may be unable to meet it by proof, and when there is no opportunity to issue a new com- mission, or send it back to be executed by the proper person. It is we think a whole- some rule that objections to the execution of a commission where the party has an op- portunity to make them before the trial, should be raised by motion, and if not raised in that way when such opijortunity exists, they should be deemed to have been waived. Whether such objection is to formal defects merely, or as in this case goes to the right of the person who executed the commission to, act as commissioner, makes, we think, no difference in the application of the rule, if the fact of disqualification is known to the party who seeks to exclude the evidence a sufficient time before the trial, to enable him to make his motion. See Kimball v. Davis. 19 Wend. 438; Sturm v. Atlantic Mut. Ins. Co., 6.3 N. Y. 77; Drury v. Foster, 2 Wall. 33; Sheldon v. Wood, 2 Bosw. 267; Zellweger v. Gaffe; 5 Duer, 100. The judgment should be affirmed. All concur. Judgment affirmed. 204 PKOPEETY IN EQUITY. RICHARDS V. DBLBRIDGE. (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, 1863. 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 memorandumk delivered the lease on his behalf to Elizabeth Ann Richards, the plain- tifE'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 tlierein comprised, and in the good will of the business carried on thers, 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, Q. C, with him), and T. D. Bolton, for plain- tiff. Gregory, Rowcliffes & Rawle, for de- fendants. JESSEL, M. R. This bill is warranted by the decisions in Richardson* v. Richardson, L. R. 3 Eq. 686, and Morgan v. Malleson, L. R. 10 Eq. 475, but, on the other hand, we have the case of MUroy v. Lord, 4 De Gex, P. & J. 264, before the coml of appeals, and the more recent case of Warriuer v. Rogers, L. R. 16 Eq. 340, 348, in which A'ice Chancellor Bacon said: "The rule of law upon this subject I take to be very clear, and, with the exception of two cases which have been referred to (Richardson v. Rich- ardson and Morgan v. Malleson), the deci- sions are all perfectly consistent with that rule. The one thing necessary to give valid- ity to a declaration of trust— the indispen- sable thing— I take to be, that the donor, or grantor, or whatever he may be called, should have absolutely parted with that in- terest which had been his up to the time of the declaration, should have effectually changed his right in that respect, and put the property out of his power, at least in the way of interest." The two first mentioned cases are wholly opposed to the two last. That being soi, I am not at liberty to decide the case other- wise than in accordance with the decision of the coiu-t of appeal. It is true the judges appear to have taken different views of the construction of certain expressions, but I am not bound by another judge's view of the construction of particular words; and there is no case in which a different prin- ciple is stated from that laid down by the court of appeal. Moreover, if it were my duty to decide the matter for the first time, I should lay down the law in the same way. THe principle is a very simple one. A man may transfer his property, without valuable consideration, in one of two ways: he may either do such acts as amount in law to a conveyance or assignment of the property, and thus completely divest himself of the legal ownership, in which case the person who by those acts acquires the property takes it beneficially, or on trust, as the case may be; or the legal owner of the property m.ly, by one or other of. the modes recog- nized as amounting to a valid declaration of trust, constitute himself a trustee, and, without an actual transfer of the legal title, may so deal with the property as to deprive himself of its beneficial ownership, and de^ Clare that he will hold it from that time forward on trust for the other person. It is true he need not use the words, "I declare myself a trustee," but he must do some- thing which is equivalent to it, and use ex- pressions which have that meaning; for, however anxious the court may be to carry out a man's intention, it is not at liberty to constnie words otherwise than according to their proper meaning. The cases in which the question has arisen are nearly all cases in which a man, by doc- uments insufficient to pass a legal interest, has said: "I give or grant certain property to A. B." Thus, in Morgan v. Malleson, L. R. 10 Eq. 475, the words were: "I hereby give and make over to Dr. Morris an India bond"; and in Richardson v. Richardson, L. R. 3 Eq. 680, the words were, "grant convey, and assign." In both cases the judges held that the words were effectual PROPERTY IN EQUITY. 200 declarations of trust. In the former case, Lord RomOly considered that the words were the same as these: "I undertake to hold the bond for you," which would undoubtedly have amounted to a declaration of trust. The true distinction appeai-s to me to be plain, and beyond dispute; for man to make himself a trustee there must be an expres- sion of intention to become a ti-ustee, where- as words of present gift shew an intention to give over pi-operty to another, .and not re- tain it in the donor's own hands for any puipose, fiduciary or otherwise. In Milroy v. Lord, 4 De Gex, F. & J. 264, 274, Lord Justice Turner, after referring to the two modes of making a voluntary settle- ment valid and effectual, adds these words: "The cases, I think, go further, to this ex- tent: That if the settlement is intended to be effectuated by one of the modes to which I have referred, the court will not give effect to it by applying another of those modes. If it is intended to take effect by transfer, the court will not hold the intended trans- fer to operate as a declaration of trust, for then every imperfect instrument would be made effectual by being convei-ted into a perfect trust." It appears to me that that sentence con- tains the whole law on the subject. If the decisions of Lord Romilly and of Vice-Chan- cellor Wood were right, there never could be a case where an expression of a present gift would not amount to an effectual dec- laration of trusi, which would be carrying the doctrine on that subject too far. It ap- pears to me that these cases of voluntary gifts should not be confounded with another class of cases In which words of present transfer for valuable consideration are held to be evidence of a contract which the court will enforce. Applying that reasoning to cases of this kind, you only make the imper- fect instrument evidence of a contract of a voluntary nature which this court will not enforce; so that, following out the principle even of those cases, you come to the same conclusion. I must, therefore, allow the demurrer; and, though I feel some hesitation, owing to the conflict of the authorities, I think the costs must follow the i-esult. 206 PROPEBTY IN EQUITY. PERKINS' APPEAL. (108 Pa. St. 314.) Supreme Court of Pennsylvania. Feb. 9, 1885. Appeal from the court of common pleas, Philadelphia county. Appellant filed his account as trustee, in which he claimed compensation "for profes- sional sei-vices before his appointment as trus- tee, including drawing petition, etc., for his appointment," and also compensation for pro- fessional services rendered after his appoint- ment in examining the account of his prede- cessor. These items were disallowed by the court below, and the trustee appealed. William PI. Burnett, for appellant Fran- cis llawle and S. Davis Page (Walter George Smith, with them), for appellees. STEERETT, J. In his final account as trustee, under the deed of manlage settlement executed in 1838, appellant claimed credit, in- ter alia, "for professional services, prior to his appointment, $100; for compensation as trus- tee, $1,500." Exception was taken to each of these credits. To the first it was objected that the professional services in question were ren- dered not for the benefit of the trust estate, but in the special interest of the beneficiary for life; and, to the second, that the charge was excessive. Both of these exceptions were fully considered by the leai'nad auditor, and by him overruled. As to the first, the substance of his finding was that the professional serv- ices, rendered by appellant before his appoint- ment as tiiistee. were for the benefit of the trust estate, and in the interest of exceptants and others entitled to the corpus thereof. This satisfactorily disposed of the only allegation of fact on which that exception is based. As to the second exception, the learned auditor found from the testimony before him that, in view of the services, of a strictly professional char- acter, rendered by appellant, in connection with bis duties and responsibilities as trustee, the compensation claimed by him was just and rea- sonable ; and this conclusion of fact appears to have been warranted by the evidence. For the purpose of showing the character and ex- tent of the special services rendered by appel- lant, the account of his predecessor in the trust, and report of the auditor to whom it was referred, were given in evidence. From these it appeared that the account, exhibiting the administration of the trust for the period of 40 years, was necessarily very voluminous; and, of course, a proper examination of the same reciuired considerable time as well as professional skill and judgment. It was the duty of appellant as successor of the deceased trustee, to cause a thorough examination of the account to be made. Instead of employ- ing counsel for that purpose, as might have been done, he gave his personal attention to the matter. The learned auditor to whom that account was referred says in his report there- on: "The accounts of both principal and In- terest were very thoroughly exaniined with the vouchers, receipts, and other evidences of the transactions, both by the auditor and the suc- ceeding trustee (Mr. Perkins), involving on the part of the latter a degree and character of skill and attention such as would ordinarily have been performed by a professional adviser, as being over and beyond the duties strictly pertaining to the office of a trustee." The question of reasonable compensation to trustees depends largely upon the circumstan- ces of each particular case, and cannot be properly determined by any inflexible rule. Carrier's Appeal, 29 P. F. Smith, 230. While in practice it is usually claimed and awarded in the form of a commission, the rate is not determinable by any established rule. It must be graduated according to the responsibility incurred, the amount of the estate, the nature and extent of the services necessarily per- formed. Harland's Appeal, 5 Rawle, 323, 330. In that case Chief Justice Gibson says compen- sation "may be awarded even in a gross sum, according to a common practice in the country, which I take to be the preferable one, as It necessarily leads to an examination of the na- ture, items, and actual extent of the services, which the adoption of a rate per centum has a tendency to leave out of view." It cannot be doubted that for services of an extraordinary character, rendered by a trustee, he is enti- tled to extra compensation beyond the usual allowance for receiving and disbursing trust funds. If professional services, necessary to the proper administration of the trust, have been rendered by a trustee in person, he is clearly entitled to such reasonable compensa- tion as he would have paid had he been obliged to employ counsel. If authority for a princi- ple so manifestly just and reasonable as this be required it may be found in Lowrie's Ap- peal, 1 Grant, Cas. 373. In reaching the conclusion that appellant's claim, as presented, was not excessive, the learned auditor apjjears to have considered and properly applied the principles above stat- ed to the facts of the case as he found them. He took intg consideration the professional as well as the ordinary services of the trustee, and in connection therewith he very properly took into consideration the necessity of yet converting into money, for the purpose of dis- tribution, the securities which represent the corpus of the estate. These securities, con- sisting of shares in eight or ten different cor- porations, valued at about $25,000, came into his hands from his predeces;-or in the trust. It will doubtless be necessary for the trustee to sell these stocks and distribute the proceeds among the twenty or more parties in interest. In view of all the facts and circumstances of the case, we think the conclusions of the auditor were correct, and the learned court erred in reducing appellant's compensation for all services to 5 per cent, on the amount of PROPERTY IN EQUITY. 207 the estate. The difference, it is true, is com- paratively small, but the record fails to dis- •close any reason for not confirming the au- •ditor's report, and none has been even sug- gested by the court below. Decree reversed at costs of appellees, and report of the auditor confirmed, and it is or- dered that the record be remitted to the court below for further proceedings in accordance therewith. 208 PEOPEUTT IN EQUITY. DXEE T. DYER. 2 Cox, Ch. 92. Court of Chancery. Nov. 27, 1788. In 1737 certain copyhold premises holden of the manor of Hej'tesbury, in the county of Wilts, were granted by the lord, accord- ing to the custom of that manor, to Simon Dyer (the plaintilf's father), and Mary, his wife, and the defendant "William (his other son), 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 plaintiif, 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- .siession 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 tlie 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. 385; Taylor v. Taylor, Id. 380; 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, 1778; Kow 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. 2G; Kingdon v. Bridges, 2 Vern. 07; Back V. Andrew, Id. 120; Kundle v. Rundle, Id. 204; Lamplugh v. Lamplugh, 1 P. Wms. Ill; Stileman v. Ashdown, 2 Atk. 480; Pole v. Pole, 1 Ves. Sr. 76. LORD CHIEF BARON, after directing the cause to stand over for a few days, delivered the .iudgment of the court. The question between the parties In this cause is 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 1 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 clear a light as possible, espe- cially in a case in which so great a ditter- 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, 1701. 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 proisosition, 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 sou already provided for? Lord Not- PROPEHTY IN EQUITY. 209 tiMham could. nat get over this, and he i-uled that in such a case the resulting trust was not rebutted; and in Pole v. Pole, 1 Ves. Sr. 7t), Lord Hardwicko thought so too; and yet the rule in a court of equity as rec- ogniied 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 diflicult 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. Tlie answer given is that the father took the rents a^ 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 m 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 SnEP.BQ.JDI!. — 14 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 tne 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 s not quite in point to the present; but 1 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 au opinion of Lord Keeper Henley, but h all t;ases of executory agreements. But in l^'arick v. Edwards, 11 Paige 290, a formal conveyance of a possibility, or expectancy, though it liad been ruled inoperative at law, was held good in equity. And in McWiUiaras et al. v. Nisly, 2 S. & R 507, Chief Justice Tilgh- man said, that "if one enter into articles to conve}', in case subseijuent events sliould make it lawful, there could be no doubt that in equity he would be decreed to convey when he subsequently acquired the power." And he added he did not think the case less strong because, instead of entering into articles, lie makes an absolute conveyance. Regarding then the mortgage made by Mrs. Jay of the estate which she expected thereafter to inherit from her father, as inoperative at law, and valid only in equity, if valid at all, it is next to be seen whether a chancellor would enforce it. That he would not, unless it was made for a valu- able consideration, will not be claimed. The equity of the mortgagee, if any, springs out of the consideration, and, if that is wanting, he will vainly ask the aid of a chancellor. The reason why, before the Act of April 11th 1848, the husband's voluntary assign- ment of a wife's chose in action, did not destroy her right of survivorship, although he had succeeded to her dominion over the chose, was, because a chose in action was assignable only in equity; and an assignee without value given, was regarded as desti- tute of equity. In his behalf, therefore, no chancellor would move to enforce the assign- ment: Haitman v. Dowdel, 1 Rawle 281. It is not to be doubted that a wife may mortgage her lands for lier liusband's debt, by uniting witli him in the instrument. And if this had not been a mortgage of 218 PliOPERTY IN EQUITY. mere expectancy, it would have been f;ood ■without the intciiiosition of a court of equity. It is because this mortgagee must come into such a court, that it becomes material to inquire whether there was sucli a consideration for the instrument as to iUiluce a cliancellor to interfere to give it effect. It was given to rseciire an anteced- ent debt of the liusband. No new consid- eration was given at the time it was exe- cuted. The wife received nothing — the husband received noiliiug — the creditor parted with notliing. The instiiiment was, tlierefore, no more than a colhiteral security given for an old debt of tlie liusband. As between JVIrs. .lay and Henry l^ayler, he was not a purchaser for value : Petrie -«. Clark, 11 S. & R. 377; Walker v. Geisse, 4 "Wiiart. 258; Dep^au v. Waddington, 6 Id. 220. Tlie question, then, is rc^duced to this: AVill a co:ii't of equity interfere in favour of one wlio is an assi{;pee or covenantee, but not for value, to enforce a wife's engage- ment to pay an old debt of her husband's? The ansv\er is plain. If it will not decree the performance of an ordinary agreement, not founded on a valuable consideration, much less will it enforce sucli a contract against a feme covert. A creditor of the husband, who asks that the wife's estate shall be applied to the discharge of her hus- band's debts, must show a legal right or a complete equity. It is by no means clear that a married woman can, by any form of conveyance, even in equity, convey the estate wliicli she expects to inlierit. I know of no case in which such a conveyance has been sustained, and I doubt whether it is- authorized by the Act of 1770, that estab- lished the mode by which a husband and wife may convey the estate of the wife. There are decisions in oilier states, that when a married woman, in conjunction with her husband, undertakis to convey her land with covenants of warranty, her deed estops her from chiiming an after-acquired title. The after-acquired estate, as in other cases, is held to feed the estoppel : Nash v. 8poffoid, 10 Met. 192; Hill's Lessee v. West, 8 Ohio 226. Even this, however, has been denied in New York, New Jersey, and New Hampshire. But the case is very different where tlie wife attempts to convey and war- rant lanil which slie does not own, but some- tliing whicli she liopes or expects afterwards to acquire. It may be doubted whether, to- do such an act, all common law disability does not reniiain. Whetlier this be so or not, her deed is no more tlian an executory coiitiaL-t, and, if supportable in equity, re- quires a valuable consideration to give it life. There having been none for the mort- gage of Mrs. Jay — no other having been shown but a precedent debt of the husband, which the instrument was given to secure, the Court of Common Pleas committed no- error in instructing the jury that it could not be enforced as the mortgage of the wife. This view of the case makes it needless to- consider tlie excejition taken to the admis- sion of evidence to contradict the commis- sioner's certificate of the wife's separate- acknowledgment. The judgment is afiSrmed. PHOPEHTY JN EQUITY. 21& RTJPLE V. BINDLEY. (01 J>a. St. 296.) Supreme Court of Pennsylvania. Oct. 27, 1879. Mr. Justice TRUNKEY delivered the Jpinion of the court. The evidence was amply sufficient to war- rant a jury in finding thnt Ruple contraoted J\.,olf "* "^Sl't of stairs for Bindley for ^ou iV "'"^-' '° ^''^^ pnyout of said sun-> ?r-ia.lo whicli Ruple owed to Enrrlund & Bindley; that the order for !$104.85 w"is given for the balance of the contract price, in con- sideration tliat Lewis would furnish Ruple with material and money to enalile him to do the work, and tliey were so furnished; that Bindley had notice of the order about, the time the work was commenced and before he had paid anything to Ruple; and that Bind- ley paid .562 to Boyd on an order given after said notiL-e, and to Ruple tlie balance of the contract price. The jury were instructed that tliere was notliing in the evidence to justify the plaintiff's recovery. If it were material to the plaintiff's case that Bindley agreed to pay the order, on completion of the work, thouuh he refused a written accept- ance, the conllicting testimony on this ques- tion should have been submitted. An assignment, for a valuable considera- tion, of demands having at the time no actual existence, but which rest in expectancy only, is valid in equity as an agreement, and takes effect as an assignment, when the demands intended to be assigned are subsequently brought into existence: Field v. City of New York, 6 N. Y. 179; Enst Lewisburg Lumber & Manuf. Co. v. Marsh, 91 Pa. St. 9(5. In Field V. City of New York, it was held that assignments of parts of a demand to different persons, to secure payments to them of spe- cific sums, in succession, are good and will be enforced in equity. Whether such assign- ments are valid in Pennsylvania need not now be said; for the order covered the whole, after deducting tlie sura to be paid, by the terms of the contract, to England & Bindley. The form is immaterial so tliat there be a clearly expressed intention of an imnjediate transfer of the right to the assignee. Whei-e one was indebted to a number of persons and remitted a sum of money to B., with orders to give specific parts to certain creditors, it was held that B. became a trustee for those creditors, and that they, thereupon, acquired ■ sucli an interest in tlie trust fund as could not be divested by an attachment against tlie debtor, though some of the creditors had no notice of the trust before the service of the attachment: Sharpless v. Welsh, 4 Dall. 279. An order to the drawer's attorney, to pay to W. the amount of a note on H. when col- lected, is an assignment of the fund, by the agreement of the parties, and cannot be re- voked, even if the draft was not accepted by the drawpe: Nesmith '«. Drum, 8 W."& S. 9. Ill Caldwell v. Hartupee & Co., 20 P. F. Smith 74, an order for part of a fund was held to be a valid equitable assignment. Caldwell was to receive money for use of Hartupee & Co., who were indebted to a lirm of wliicli Caldwell was a partner. Hartupee & Co. gave an order to Cutlibert for $1500, out of proceeds of the last note coming to them, whicli, on presentation, Caldwell re- fused to accept, saying, "Hartupee & Co. owed them money and lie was going to apply it on their book account." At the time of said refusal Caldwell had in his hands only about $30, but afterwards received more than enough to pay the order. On the trial Cald- well's defence of set-off was rejected as to the amount of the order, and allowed for the balance in his hands. The defendant seems to rely on Jermyn v. Moffltt, 25 P. F. Smith 400, where it was held that a transfer of "a debt to arise for wages not yet earned, against any person by whom the assignor may afterwards be employed, aUhough followed by a subsequent notice of the assignment to such an employer, is in- suflBcient, wiiliout acceptance, to make a valid transfer of the debt against the employer. " The soundness of this principle is unques- tioned, and was strictly applicable to the facts of that case. Jermyn's name was not in the instrument; Leslie, the assignor, had no con- tract with him, was not then in his employ, and, consequently, there was neither a pres- ent nor expectant fund on which the assign- ment could atlafh. On the trial, the point that "an assignment can only be made of moneys due or owing, and not in futnro of moneys to be earned," was refused, wi,th answer that "a party is competent to assign wages to come due if the vested rights of third parties are in nowise prejudiced there- by;" and this court said there was no error in that. We are of the opinion that the order by Ruple to Lewis was an equitable assignment; and, in connection with the facis which the jury might well have found, had the evi- dence been submitted, the plaintiff was en- titled to recover. For the present inquiry such facts must be considered as existing. The first, second, third and fifth assignments of error are sustained. It may be presumed that if the case had been given to the jury, the matter contained in the fourth assignment would have been properly explained. Tliis suit is not on the alleged promise of Bindley to pay Lewis, but on the contract assigned by Ruple. Judgment reversed and venire facias de novo awarded. 220 PLiOPERXY IN EQUITY. BUTT V. BLLBTT. (19 Wall. 544.) Supreme Court of the United StatesT Oct., 1873. Appeal from the circuit court for the dis- trict of Louisiana. Sillers, the owner of a plantation in Mis- sissippi, leased the same, on the 15th of Jan- uary, 1867, to Graham, for one year, from January 1st, of that year, Graham giving his own note, payable to Sillers, for $3,500, for the rent, and to secure payment of the note embodying in the lease by which the plantation was let to him a mortgage of all the crops raised on the plantation in the year 18G7. The mortgage was immediately recorded in due form. The note was never paid. On the 3d of June, 1867, one Ellett, having recovered a judgment against Sillers, sold the plantation at a sheriff's sale under the judgment, and bought it; and Sillers trans- ferred to him the note of Graham for $3,500, due November 1st, 1867, the rent to be paid. Notwithstanding this, Graham, in Novem- ber of 18G7, transferred the whole crop to certain correspondents of his, Butt & Co., who were heavily in advance for him on then existing transactions. They sold the crop and applied the proceeds in account to the pay- ment of Graham's debt to them. Hereupon Ellett filed a bill in the court below against Butt & Co., to charge them, as trustees for him, with the proceeds of the crop. The evidence showed^ On the one hand, that planting never be- gins in Mississippi earlier than March; and, Qn the other. That on the 6th of February, 1867, the de- fendants had seen the lease with the mort- gage provision in it, but apparently that they regarded the provision as void. It also showed that on learning that Graham had transferred the crop of 1867 to Butt & Co., Ellett immediately wrote to them, informing them that the lease with the mortgage in it had been at once duly recorded; that, be- sides, they had express notice of its exist- ence, and that he would hold them account- able as trustees for the proceeds of the crop if they sold it. The court below decreed in favor of the complainant, and the defendant brought the case here. K. H. Marr and T. A. Clarke, for appel- lants. Estes, Jackson, and Ellett, contra. Mr. Justice SWAYNE delivered the opinion of the court. The mortgage clause in the contract of lease of the 15th of January, 1867, executed by Sillers and Graham, could not operate as a mortgage, because the crops to which it relates were not then in existence. When the crops grew, the lien attached and bound them effectually from that time. It is admitted that the cotton in question was one of those crops. Ellett having bought the premises became clothed with all the rights of Sillers, touching the rent stipulated to be paid by Graham. The sheriff's deed conveyed the reversion, and the rent followed it as an incident. The lease passed by assignment to the grantee, and all its provisions in favor of the lessor enured to the benefit of the assignee. The appellants had full notice of the rights of Sillers. They read the lease a few days after its execution. Ellett also notified them of his rights and claim. The cotton went impressed with his lien into their hands. When they sold it they took the proceeds in trust for his benefit, and became liable to him for the amount. Decree afiirmed. EQUITABLE REMEDIES. 221 AETNA LIFE INS. CO. OF HARTFORD V. TOWN OF MIDDLEPORT. SAME t TOWN OF BELMONT. SAME v. TOWN OF HILFORD. (8 Sup. Gt. 625, 12i 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, 1S71, 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 18G5 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 constmction of its road, to be paid as soon as the traclj 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 vpters 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 talien 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 malie 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 .lune, 1807, 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 towa should be made a point in said road; that it appeared, on counting the votes, that 323 were in favor of and U8 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 j 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 .Tune, 18G7, 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 sufl^cient 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 I 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 Slarch, 1871, 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 raih-oad company, upon ! the fulfillment of the conditions of said vote, I in payment of ninety cents on the dollar of j the appropriation made to said company by said vote; both parties believing that said i 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 cotmty 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 ■222 EQUITABLE KExMEDIES. 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 hill, 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 ■\'oid, 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 fhe railroad company. It was also alleged that no part of the principal sum named in the bonds, or any part of said appropriation, nad 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 eijuity as should be necessary and proper; and also prayed that W. H. Leyford, in wli(i:(' hands as receiver the Chicago, Danville & Vin- cennes Railroad Company had been placed by the court, it being insolvent, might he made a party defendant thereto. To this bill the defendant demurred, and assigned the following as causes tor 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 lial>le, 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 gi'ounds of defense: First, it denies the right of subrogation, upon which rests the whole case of the conujlainant; second, it relies upon the statute of limitations of five years; and, third, it assorts 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 compans-, 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 expi'oss ngreement that the sale of these b(inds carried with them any obligation which the company might have bad to en- force the appropriation voted by the town. 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 Avas in equity subrogated to said rights, and entitled to en- force tlie same against the town of Middle- EQUITABLE KEMKUlEd. 223 port. Tbe ai-giiment of the leaniod counsel in the case is based entirely upon the right ^r^i^'^ complainant to be subrogated to the I'lghts of the railroad company by virtue of the principles of equity and justice. He -does not set up any claim of an exiiress 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 iliddleport to the railroad <;ompany, 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 -cases 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. Xeither 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 tJ. 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 B'irst 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 e'-ror 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. Thf.r 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. TTiey 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 U. S. 204. That M'as a case in which the city of Louisiana, having a riglit 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, and 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 utteriy void, because there was no authoritj' 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 transacnon 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. Ballon, 114 U. S. 190, 5 Sup. Gt. 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. Woud, the bonds were so far 224 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 plaintil^ 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 additien 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 losa which miglit 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 deotor. As we have already said, the plain- tiff in this case paid no debt. It bought cer- tain bonds of the railroad compkny 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 th6 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 accoimt 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 tlie 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 fic- 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 per-sion 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 ot a purchaser who has extinguished an in- cumbrance upon the estate which he has pur- chased; or of a co-obligor or surety who ha& 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. Eq. 234; Sandford v. McLean, 3 Paige,. 117; Hoover v. Epler, 52 Pa. St. 522. In Gadsden v. Brown, Speer, Bq. 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 net 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 tlie penalty." This is perhaps as clear a statement of the- doctrine on this subject as is to be found anywliere. Chancellor Walworth, in the case of Ssand- ford V. McLean, 3 Paige, 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 EEMEDIES. 225 ■coiirse, without any agreement to that effect, la other cases the demand of a creditor, Avhieh is paid with the money of a third per- son, and without any agreement that the se- cin-ity 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 rigbts of a creditor, for the benelit 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; CivU 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, BHBF. EQ.JUB. — 15 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 Braxiw. 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 suijerior; and to cases of insurance. * * * Any one who is under no legal obligation or liability to pay the debt is a sti-anger, 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 tl>e 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. 226 EQUITABLE HEMEDIES. BYLAR et al. v. EYLAR et ux. (60 Tex. 315.) Supreme Court of Texas. Nov. 9, 1883. * Appeal from Navarro. L. D. Bradley, Judge. The opinion states the case. John D. Lee, for appellants. Beale & Jones, for appellee. STAYTON, J. There are many assign- ments of error in this case, but only such of them will be considered as are deemed well taken, and necessary to be considered for the proper determination of this appeal. It ap- pears that on May 1, 1876, J. F. Eylar and wife conveyed the property in controversy to O. A. Eylar, by deed absolute in form, con- taining clause of general warranty, and re- citing a consideration of $500 paid. This -deed was acknowledged by the husband and wife in such manner as would pass title to homestead property, and was filed for record on the day of its execution. At the time of this conveyance the property was used by J. F. Eylar as a saddler shop, and after the purchase he continued to use it for the same purpose. On the 26th of October, 1876, O. A. Eylar conveyed the property to Ann A. Eylar, his mother, in consideration of $500, the greater part of which seems to have been paid by the other children of Ann A. Eylar, prior to the institution of this suit. Mrs. Ann Eylar executed five notes to secure the pay- ment of the pm-chase money. Whether they were negotiable, or had been negotiated, does not appear. It is claimed by the appellees that it was agreed between them and O. A. Eylar that the deed executed by them to him should only operate as a mortgage to secure to him the repayment of money which he agreed to pay to Padgitt, who held an express lien up- on the lot for the purchase money; and fur- ther to secure to him the repayment of such sum as he had agreed to pay to one Shelton on a debt due to him by J. F. Eylar, to se- cure which Shelton held a deed of trust on the property in controversy, which was ex- ecuted March 1, 1875. The indebtedness of J. F. Eylar to Padgitt and to Shelton was paid by O. A. Eylar, and together amounted to more than $500. It is claimed by the ap- pellants that the conveyance to O. A. Eylai- was an absolute sale, and not understood by the parties thereto as in any sense a mort- gage; and that after the date of the deed to him the appellees recognized him as their landlord, and paid to him rent for the prop- erty until he conveyed to Ann A., and that after that time they so recognized Ann A. and paid rent to her, and there was much evidence tending to show that this was true. That money designated as "rent" was paid by J. F. Eylar, he does not deny, but claims Hiat the sums which he paid, while denom- inated "rent," were agreed anil understood to be only paid as interest on the sum paid to Padgitt and Shelton. Mrs. Ann A. Eylar fur- ther claims, if the conveyance from J. F. Eylar and wife to O. A. Eylar was, as between them, only intended as a mortgage, that she had no notice of that fact, and is entitled to protection as an innocent purchaser. There is no evidence that Ann A. Eylar had any actual notice that the deed to O. A. Eylar was intended by the parties to it simply as a mortgage, and it is contended by the ap- pellees that their possession of the property after they had made the deed to O. A. Eylar, and the same had been placed upon record, was notice to her of any understanding which may have existed between them and O. A. Eylar. Upon this subject the court gave the following instructions: "Notice is of two kinds, — actual and constructive. Actual no- tice is the actual personal knowledge by a person of an existing state of facts; con- structive notice is an apparently existing state or condition of things, such as would put a person upon inquiry to ascertain the actual state of facts. The actual possession of property by any one, whether he has title to same or not, and the relationship of the parties is such constructive notice as to put a purchaser upon inquiry, but such posses- sion must be clear, open, notorious, and un- equivocal. Such inquiry is only required to be reasonable and diligent, such as the ex- amination of the proper records, and inquiry of those who, by their connection with the matter, are most likely fully to be informed about it." The giving of this charge is assigned as error. This charge, in effect, assumes that the possession of a vendor, after having ex- ecu1;ed an absolute deed which has been placed upon record, is constructive notice of whatever right the vendor may have secretly maintained, by verbal agreement or other- wise, with his vendee. This precise ques- tion, so far as we know, has not been passed upon by this court. In the case of MuUins v. Wimberly, 50 Tex. 446, the question seems to have been considered, and the opinion seems to limit the application of the rule that possession is notice of whatever title the pos- sessor has to cases in which the possessor is not knowingly in fault in permitting a deed which he has executed to be placed on record, or to cases in which the possessor has not voluntarily aided in misleading a purchaser. The facts of that case were peculiar, and one of the grounds upon which the title of the possessor was sustained, although a deed of the ancestor of the guardian's wards was shown to have been executed and recorded before the right of the claimant attached, was that the instrument through which the claimant asserted title was executed in mu- tual mistake as to the land which both par- ties Intended should be covered by It. Many cases can be found in our reports in which it is said that possession is notice of what- ever title the possessor has. Among them EQUITABLE HEMED:ES. 227 are tbe following: Watkins v. Edwards, 23 Tex. 443; Hawley v. Bullock, 29 Tex. 22.'?; Mainwarring v. Templeman, 51 Tex. 212; Wimberly v. Bailey, 58 Tex. 227. All of these were cases in which the rule was ap- plicable, and the language must he under- stood with reference to the facts of the cases. It would seem that the sole office which possession performs, in the matter of notice, is to put a person desiring to purchase upon inquiry, and that it has no effect in deter- mining what the inquiry shall be, or of whom it shall be made. The policy of the law, as evidenced by our statutes, requires all con- veyances of land or interests therein for a term longer than one year to be evidenced by writing, and when parties place, in this the most certain, and enduring form, the evi- dence of their right, they ought to be held, so far as third persons are concerned, to have therein spoken truly in respect to the title to the land to which the conveyance re- lates. That all persons who may deal with persons claiming land may have the means of knowing in whom titles to land rest, and that no one may buy what appears to be a good title, when another person may have better right not made public, the law re- quires all persons, for the protection of inno- cent purchasers and creditors, to register their titles to land. Such being the case, can it be said, even if possession is sufficient in all cases to put purchasers upon inquiry, that such inquiry is not prosecuted sufficiently far when the person who desires to buy examines the records of the county, and finds on record a deed from the person in possession to the person who offers to sell, and who under that deed asserts title? If the inquiry is prosecuted to the highest source which the law of the laud declares shall exist for the determination of title, and to the source which the parties have created as the high- est evidence of their respective rights, can it be true that it is further necessary to ex- amine sources inferior, and make inquiry as to whether or not there are claims, or even rights, in others, not evidenced as the law requires, or otherwise the purchaser be charged with constructive notice of secret vices in the title which he buys? To so hold, we are of the opinion, would be to strike at the very foundation of the policy upon which registration laws rest. That there are cases to which registration laws do not apply is true, but those are cases in which titles vest by operation of law, or cases in which there has not been a wrong- ful holding out of some person to be the true owner of land, when in fact some other person has the better I'ight; and not cases in which parties, as between themselves, have executed instruments evidencing their respective rights, which may be, and which the law requires to be, registered. By the deed in question, the parties who now as- sert claim through a secret agreement de- clared In the most solemn form that the land in controversy was the property of O. A. Eylar. They permitted the declaration' to be placed on record for the very ijurpos!* of giving information to all persons as to the true ownership. Such being true, can the simple fact that they remained in possession of the land which they had declared be- longed to another, which they might law- fully do as the tenants at sufferance or oth- erwise of such other person, make it requi- site for any person who may desire to buy from the person whom they have so declar- ed to be the owner to inquire of themselves: whether or not they had uttered the truth in their deed, — whether or not their own declaration was false V We are of the opin- ion, under the facts in this case, that a purchaser from O. A. Eylar was not bound to inquire of the appellees what right they had in the land; that the inquiry was suffi- ciently prosecuted; prosecuted as far as a prudent man, having a due regard to the rights of others, and to his own protection, would be bound to prosecute it, when he looked to the recoi-d, and there found that O. A. Eylar was declared by the very per- sons in possession to be the true and abso- lute owner of the land. The following cases; sustain the views here expressed: Yait Keuren v. Railroad Co., 38 N. J. Law, 167; Bank v. Batty, 30 N. J. Eq. 133; Insurance Co. V. Cutler, 3 Sandf. Ch. 179; Cook v. Travis, 20 N. Y. 400; Bloomer v. Henderson,. 8 Mich. 393; Dawson v. Bank, 15 Mich. 497; Scott V. Gallagher, 14 Sorg. & R. 333; New- hall V. Pierce, 5 Pick. 4t'l. The same con- clusions are reached by the learned authors of notes of Leading Cases in Equity (volume 2, pt. 1, p. 184). As between O. A. Eylai- and the appellees, the agreement* that the- instrument should have only the effect of a mortgage, if it was so made, would be en- forced when clearly shown, and it would be so limited as against Ann A. Eylar if she had notice of such agreement. The view- maintained in tlie charge of the court is not, however, without authority for its sup- port, as will be seen by an examination of the following cases: Grimstone v. Carter,. 3 Paige, 439; Daulenspeck v. Piatt, 22 CaL 333. The charge of the court was further ob- jectionable in that it gave too great weight to the relationship of the parties upon the question of notice. If that fact had a bear- ing upon the question, it was but a fact like any other for the consideration of the jury, without a charge from the court as to its weight. O. A. Eylar sought, in case it should be found that the conveyance to him was in- tended by the parties to operate only as a mortgage, to be subrogated to the rights which Padgitt and Shelton both had under tlieir liens, which the appellees. In effect, al- leged were merged in the instrument, which 228 EQUITABLE HEMEDIES. they charge is but a mortgage, and this, by their agreement, for the purpose of securing to O. A. Bylar the repayment of such sums as he paid to both of the lien holders. The court eliarged the jury that as to the sum which he had paid to Padgitt on the purchase money for the lot in controversy he was entitled to be subrogated, and the jury found in his favor to that extent. The court further charged the jury, in ef- fect, that he was not entitled to be subro- gated to the rights which Shelton had under his lien, if, at the time the deed was made to him, the property was a part of his home- stead, and refused to give a charge sub- stantially to the contrary. The fact that the proijerty was a part of the homestead of the appellees at the time they made the deed to O. A. Bylar would not defeat his right to be subrogated to the rights of the lienholders who held valid liens prior to the adoption of the present constitution, by and through which alone the place of business became a part of the homestead. The lien held by Shelton, as well as that held by Padgitt, having been acquired prior to the adoption of the present constitution, was valid, and could not be divested by its adoption. Iken v. Olenick. 42 Tex. 195; Wood V. Wheeler, 7 Tex. 13; Gunn v. Barry, 15 Wall. 610. The agreement of the parties, if the averments of the petition be true, was that Eylar, through the instrument now sought to be canceled as an absolute deed, should be subrogated to whatever rights ei- ther Padgitt or Shelton had, and the fact that the property may have been homestead at the time that instrument was executed does not in any manner interfere with its enforcement. Flanagan v. Cushman, 48 Tex. 244; Cannon v. McDaniel, 46 Tex. 304; Hicks V. Morris, 57 Tex. 658. Many of the matters assigned as error will probably not arise upon another trial, and they will not be further considered. For the errors indicated, the judgment will be re- versed, and the cause remanded. Reversed and remanded. EQUITABLE HEMEDIES. :2» BROWN V. RAY. (18 N. H. 102.) Superior Court of New Hampshire. July Term, 1846. Assumpsit, to recover the sum of $254.55, paid by tlie plaintiff to the Derry Banli, iDOing the amount of a note signed by the parties, and one William Hall, dated October 31, 1842, on which the above sum was due when the plaintiff paid it, May 30, 1844. The evidence tended to show that the note in question was given to renew a note made payable to the bank, signed by the parties to it, for the ben- efit of John R. Hall, who had the money. It was further in evidence that the defendant was also surety for Hall on other notes and obligations, to which the plaintiff was not a party; that the defendant held several notes against Hall, some of which were pay- able to him, and some payable to other per- sons and purchased by him; that Hall, on the 4th of October, 1841, made an estimate, with the defendant, of his liabilities (of which the note to the bank formed a part), amounting to about $1,500, for which sum Hall gave a note to the defendant, and also two. mort- gages to secure the note, and on the follow- ing day another mortgage; that the defend- ant subsequently stated that the security was more than enough to indemnify him for all his liabilities; and that the defendant after- wards foreclosed the mortgages, and has held the land ever since, except a portion of it which he sold at public auction a short time before the trial. The defendant offered evi- dence to show that the lands were of less value than the claims he had against Hall. The court instructed the jury that, if one of several sureties should take collateral securi- ty from the principal, for several liabilities, upon some of which A. was cosurety, and up- cn others B. was cosurety, he must apply the property, pro rata, upon each demand; that he could not apply any part of it to pay claims which he had subsequently purchased; and that no part of it could be applied to claims for which the security was not given, although there was a pre-existing liability on such claims. The defendant excepted, and moved for a new trial. :\Ir. Foster, for plaintiff. West & Morrison, for defendant. PARKER, C. J. When a surety, before he is damnified, takes security from the principal to indemnify himself against loss, a cosurety is entitled to share the benefit of the security thus taken. The defendant, when he took the security, was surety upon several demaiiils, upon which the plaintiff and other person* were severally cosureties, and the security was talien generally to indemnify him on all the demands. The indemnity furnished by the security must, therefore, be apportioned among the several demands, as far as the sure- ties have an interest in it. But the plaintiff had demands of his own against Hall. The security was taken for his demands, as well as to indemnify him as surety, and he is en- titled to apply the security in the first instance to the payment of his demands in full; they being present debts, and the other but a contingent liability. None of the other sure- ties are interested with him thus far, and they are not entitled to set up an interest adverse to him, so far as he, without their interference, obtained a security upon the debts due to himself. They come in for a share of the benefit, so far as they are cosure- ties, upon the ground that he has taken the security for indemnity against a liability com- mon to all, and that it is one, therefore, in which they have a common interest. So far as he has a security in which they have not such interest, he is entitled to hold it; and, having obtained the security without their as- sistance, for his own debts as well as the oth- er demands, he is entitled to apply it first to his own debts. He took the whole for his own use and indemnity. To the extent of his debt, he may rightfully hold it for his own use. But the defendant is not entitled to hold anything, against the cosureties, on ac- count of demands against Hall which he has- purchased since the time of the transfer. The- right of the cosureties to participation in the benefit of the security attached when it was taken; and it cannot be divested by such sub- sequent purchase, unless it was part of the agreement, at the time when the security was taken, that the defendant should purchase such demands, the security being taken for them also. Whether a bill in equity would not have been the more appropriate remedy, we have not considered. It does not appear that the other cosureties were not satisfied, and no objec- tions of that character were taken at the trial. The instructions were erroneous iu re- gard to the right of the defendant to retain for demands due him at the time, for which reason there must be a new trial. 230 EQUITABLE REMEDIES. OSBORN et al. v. NOBLE. (46 Miss. 449.) "Supreme Court of Mississippi. April Term, 1872. Appeal from cliancery court, Hinds coun- ty; Tarbell, Judge. T. J. & F. A. R. "\^'harton, for appellants. Harris & Withers, for appellee. SIJIRALL, J. The complainant filed his bill in chancery to be substituted to the bene- fits of a deed in trust, executed by S. O. Capers, to protect and indemnify Winters, Myers, and Strong, who were his sureties on -sevei-al promissory notes, amounting in the aggregate to $29,620, given to the complain- ant, Noble, for a plantation and slaves, sold and conveyed by Noble to Capers in 1838. The complainant grounds his right upon doc- trines well established in the- courts of eq- mity: "That, if a creditor obtains a mort- gage or other security from the principal -debtor, the surety is entitled to its protec- tion. So, if the surety has obtained indem- aiitj- from his principal, the creditor may avail of it, and have satisfaction of his debt «nt of it." 1 Story, Eq. § 481. For a state- jment of tlie general principle, see, also, 2iowen v. Hcskins, 45 Miss. 183. In disposing of this case it is necessary to aook somewhat closely into the principle in- ■»'oked; to trace its origin, and see upon -what considerations it rests; what is its ex- itent and limitation? It is universally con- iceded by the jurists that the principle known an our jurisprudence as "substitution" was Ibrought from the civil laws, where it was 3vnown as "cessio actionem." As, if the •Siurety pays voluntarily or cumpulsorily, the ■creditor must make good to the surety any actions or remedies he has against the prin- -(•ipal (lebtor, also all the accessories thereof, ;his actions apa nst other sureties, and his apleilges. If the creditor has put himself in -.such condition tl.at he cmnot assign his se- "«unties and remedies against the principal ^nd other sureties, he Is barred of his rem- ■ifidy against him vipon whom he makes claim, il'otier. Pan. bk. 4i;, § 5. In Hopeland v. Bank, 10 Leigh, 220, it was thought to be wise to lecur to the civil law, to derive aid In determining the scope of the doctrine of substitution. Theie could be no "cessio ac- ■tionem" if there i ever had been a cause of 1 action and a remedy. Where one is bound ;for the debt of another, and pays it, equity ■\vill treat the securities and remedies of the ■<'re liter against the principal debtor as still subsisting for the benefit of the surety. :.Somi" of the cases hold that the rule only "embraces collateral securities, while others aiave so extended it as not to treat the prin- <-ipal debt extinguished by the payment, if there were any special advantages incident i>) it, but consider such payment as operat- ing as an assignment of the debt itself, in oi' "cr that the surety may avail of the inci- dental privileges. As if it be a judgment with a lien on jroperty, the judgment will be considered, by an advance of the money, as purchased and equitably assigned, so that the surety may have the priority of the lien against other creditors. The rule that a creditor is equally provided for when the principal has created an indemnity for his surety does not arise out of any notion of mutual contract between the parties, but is rather the olfspring of natural equity, in- dependent of contract, to prevent the surety. in the first Instance, from being harassed with the debt, and then turn him round to seek redress out of the collateral indemnity. Where the conveyance is made to or for the security of property not by the terms of the instrument specifically bound to the creditor, the primary intent apparent on the face of the wri Jug is that the property is not pledged to him for tlie debt. The extent of the bur- dens, trusts, and conditions annexed to a gi-ant, is to be learned by reading the instru- ment, and gathering from it the intent and purpose. The owner has a right (if he does no fraud, or vio'ates no prohibition of law) to disiDose of his property at pleasure. Courts enforce contracts, or give redress for the violation of them, as made by the parties--. By construction they cannot enlarge them beyond their fair intent and meaning, nor, on the other hand, so limit them as to fall short of that. In subrogating, therefore, the creditor to the surety's place, as to any in- demnity given him, there can be neither in- crease nor diminution of rights, as they ac- tually existed in favor of the surety. If, therefore, the indemnity is aga'nst a contin- gent liability, there can be no substitution until the liability has become absolute. Bank V. Eoiseau, 12 Leigh, 370; 10 Le'gh, 222. If a mortgage or other security is given to the surety, not to secure the debt or provide a fund for its payment, but to save harmless from a contingent liability or loss, that con- tingency must come, or the injury be sus- tained, before a right to the indemnity in- ures to the creditor. Where the contract is for the lersonal benefit of the surety, in op- position to the idea of a pledge for the debt, or providing means for its payment, the creditor can claim only such rights and rem- edies as the surety had. If he has not been damnified, and the conditions of the mor.- gage or other contract of indemnity are un- broken, the surety himself could assert no remedy, nor could the creditor claiming through him and in his stead have substitu- tion. Insurance Co. v. Reeder, 18 Ohio, 46. If, however, the principal has assigned a fund for tlie payment of the debt, and the surety pays it, he is entitled to reimburse- ment out of the funds. 2 Burrows, 202. An analysis of the cases in this state and elsewhere will, we thinlv, show the distinc- tion wo have attempted to enforce, though not always fidvertod to, that where the cred- itor seeks to .ippropriatc to his debt the col- lateral indemiiity of the surety, it must ap- EQUITABLE HEMEDIES. 231 pear that the security Is for the debt as well as the ultimate protection of the surety. If such be its character, it Is of no moment whether it was given at the time the prin- cipal obligation was incurred or afterwards, or whether it was Ivuown at the time to the creditor or not. The cl-edltor has an Interest in it, and becomes a cestui que trust. The fund or property at once takes on a trust character, and the surety can do no act which will discharge the trust or release the property from the burden, to the prejudice of the creditor. Thus in Paris v. Hulett, 20 Vt. 308, the mortgage to the surety was upon the condition that the mortgagor would pay the notes, and hold the surety harmless. So in Eastman v. Foster, 8 Mete. (Mass.) 19; Collin v. Colvin, 3 Grat. 363. In Insur- ance Co. V. Reeder, it was said the in- demnity was for the better security and pro- tection of the debt. In Moses v. Murga- troyd, 1 Johns. Ch. 119, it was said by Chan- cellor Kent that it made no difference wheth- er the creditor linew of the securities or not. They were trusts created for the better pro- tection of the debt, "and the court will see that they fulfill that design." In Homer v. Bank, 7 Conn. 484, after a somewhat patient examination of the books, it was declared by the court that the principle to be extracted from the cases was that, if collateral se- curity is given, or property assigned for the better protection or payment of the debt, it shall be made effective for that purpose, not only to the immediate parties, but to whomsoever is entitled to the debt. It rests upon the intent of the transaction. When created for such an object, the indemnities Isecome trusts, which courts of chancery will carry out, "and see that they fulfill the de- sign." In Daniel v. Joyner, 3 Ired. Eq. 913 (to which reference was made by counsel for appellee), the terms of the trust deed were ''to save harmless B. [the surety], and when- ever required by the creditors of A. [the grantor], or by any surety who may be threatened with loss by reason of his surety- ship, the trustee shall proceed to sell suffi- cient property to answer the ends of this deed In trust." There the creditors on re- conveyance, he is entitled to stand in the place of Doyle. A decree must be entered in the court below directing that, if the debt of Ross be not paid within three months from the date of such decree, the said prop- erty must be sold on the terms usual upon foreclosure of a mortgage; that an account be taken of the amount due to Ross and Wil- son upon the debt paid by him to Doyle, and the proceeds of the sale be divided between Ross and Wilson pro rata, in proportion to the amount of their respective debts. De- cree reversed, and cause remanded. 234 EQUITABLE KEMEDJES. In re WALKER. SHEFFIELD BANKING CO. v. CLAYTON. ([1892] 1 Ch. 621.) Chancery Division. Jan. 14, 1892. This was an action to administer the es- tate of Hugh Walker, deceased. On the 7th of May, 1885, the testator guarantied the cuii'ent account of Messrs. Spencer Brothers, of Sheffield, with the Shef- field and Eotherham Banking Company, Lim- ited, to the extent of £1,000. By an inden- ture, d.ited the 1st of August, 1885, Arthur Spencer, a member of the firm of Spencer Brothers, in consideration of the above-men- tioned guaranty, assigned to the testator, by way of mortgage, but subject to a previous mortgage, certain hereditaments at Sheffield, and covenanted to indemnify the testator in respect of his guaranty. On the 5th of July, 188G, the testator gave to the London and Yorkshire Bank, Limited, to whom tlie bank- ing account of Spencer Brothers was then transferred, a guaranty to secure the payment of all moneys then or thereafter payable to the said bank by the firm of Spencer Broth- ers, not exceeding £1,000. On the same date Agnes Spencer, the wife of Arthur Spencer, as a security against this guaranty, executed to the testator a memorandum of deposit of title deeds relating to certain property be- longing to her, and by a further memoran- dum, dated the 18th of August, 1880, in which her husband also joined, Mrs. Agnes Spencer agreed to execute a legal mortgage to the te"tator of the property comprised in the •eiiuitable mortgage, to secure the said sum of £1,000 and interest. On the 9th of Sep- tember, 1887, the banking account of Spencer Brothers was, with the approbation of Agnes Spencer, transferred to the plaintiffs, the Sheffield Banking Company, Limited, and on the same date the testator, with the full knowledge and approbation of Mrs. Spencer, gave the follojving guaranty to the plaintiffs: "In consideration that you will make ad- vances and grant other accommodation, at your discretion, to the firm of Spencer Broth- ers, of Sheffield Moor, Sheffield, wholesale grocers, I hereby guarantee the payment of all such moneys as the said Spencer Brothers are, or may become, liable to i^ay to you on cui'rent account, or on any other account, or in any manner whatsoever, but so that the total amount recoverable imder this guaranty shall not exceed two thousand pounds. And this guai'anty shall, in the event of my death, hind and charge my estate in respect of transactions and dealings subsequent as well as prior thereto, and continue until notice sball be given to you by me, my executors or administrators, determining the same." The testator died on the 4th of November, ISSS. and his will, dated the 12tli of July, l.y; Clinan v. Gooke, 1 Schoales & L. 22, 41; Allen's Estate, 1 Watts & S. 3S3; Purcell v. Miner, 4 Wall. 513. 2. Possession by the purchasei', under such a deed as was given to the plaintiff, is pos- session according 'to the title thereby con- veyed; and is not such a possession as to afford ground for enforcing an alleged oral agreement to convey other land, claimed to have been embraced in the same oral agree- ment with that conveyed. Moale v. Buchan- an, 11 Gill & J. 314. The plaintiff does not appear to have been let into actual posses- sion of the 17 acres, nor to have been in- duced to do any acts thereon, as owner, un- der his supposed rights as purchaser. 3. The conveyance of a portion of the land is neither a part performance, nor is it a recognition of the alleged oral contract, so far as it relates to the remaining land not in- cluded in the deed. On the contrary, it is in distinct disregard and implied disavowal of such a contract. The deed was given and ac- cepted In execution of the entire contract of sale. Its terms are in literal conformity with the agreement as made. The plaintiff con- cedes that the southern boundary was stipu- lated to be described as it is written in the deed, to wit, running from the southwesterly corner of land of McDaniels, and at right angles with his westerly line, to the high- way. But the plaintiff claims that he in fact pur- chased the whole of a certain tract of land which Included the 17 acres now in dispute; that the description of the boundaries, as agreed upon and inserted in the deed, was so agreed on and inserted upon the representa- tion of the defendant and the belief of the plaintiff that it did include said 17 acres; and that the failure of the deed to embrace and convey that part of the land was oc- casioned either by the mutual mistake of the parties as to the position of the southwest corner of land of McDaniels, or else by the misrepresentation, deceit, tind fraud of the defendant in relation thereto. In either al- ternative, the plaintiff contends that he is entitled to a reformation of the deed, to make it conform to the sale actually con- tracted by the parties. Such a reformation not only requires a de- scription of the subject-matter of the sale,- different from the express terms of the oral contract, but would enlarge the effect and operation of the deed as a conveyance. It involves the transfer of the legal title to land not covered by the deed already given. It requires a new deed to be executed and de- livered by the defendant to the plaintiff. Whether that deed shall embrace the entire subject of the alleged contract of purchase, with a corrected description to make it con- form to facts and abuttals as they were rep- resented to be, or merely convey the IT acres^ omitted from the deed already given, the or- der for its execution will enforce the specific performance of a contract for the sale of lands, for which there exists no memoran- dum, note, or other evidence in writing sign- ed by the party to be charged therewith.. As to the 17 acres in dispute, the obligation to convey them rests solely in the oral con- tract. The defendant denies any contract which includes them. The plaintiff seeks to establish such a contract by parol evidence,. and enforce it. The deed itself furnishes no means of making the coiTection sought foiv and no evidence of the contract relied on for this purpose; nor is it in any sense an ac- knowledgment of the substance of the al- leged oral agreement. The power to rectify deeds and other writ- ten instruments undoubtedly exists in this- court, under the clauses of the statute giving equity jurisdiction in cases of fraud, acci- dent, and mistake, or the clause giving it gen- erally where there is no adequate remedy at law. It has been exercised in several cases. Canedy v. Marcy, 13 Gray, 373; Metcalf v. Putman, 9 Allen, 97. But the power will be exercised in subordination to other fixed prin- ciples of law, and especially to statute pro- visions. If the rules, restricting the admin- istration of judicial remedies, which are pre- scribed by the statute of frauds, were to be disregarded in this branch of equity pro- cedure, it would open the door to all the 266 EQUITABLE KEMEDIES. forms of fraud wMoh tbat statute was in- tended to prevent. The statute is not a mere rule of evidence, but a limitation of judicial authority to afford a remedy. It requires that contracts for the sale of lands, in order to be enforced by judicial proceedings, must be substantiated by some writing. This pro- vision of law cannot be dispensed with mere- ly for the reason that the want of such writing was occasioned by accident, mistake, or fraudulent representations, unless some other ingredient enters into the case to give rise to equities stronger than those which stand upon the oral contract alone, which estop the other party fi'om setting up the statute. It makes no difference wh(ither the want of a writing was accidental or intentional, by way of refusal or by reason of mutual mis- take; nor that there were false representa- tions, and a pretence of conveying the land, but a fraudulent evasion, by means whereof there was no couve.vance in fact, and no proper written evidence of the agreement to convey. From the oral agreement there can be derived no legal right, either to have per- formance of its stipulations or written evi- dence of its terms. So long, therefore, as the effect of the fraud or mistake extends no fur- ther than to prevent the execution, or with- hold from the other party written evidence of the agreement, it does not furnish suffi- cient ground for the court to disregard the statute of frauds, and enter into the investi- gation of the oral agreement for the pur- pose of enforcing it. And we do not see that the present case stands otherwise in this re- si^ect than it would if there had been no con- veyance of any part of the land. As al- ready shown, that conveyance was not in ex- ecution or recognition of the contract which the plaintiff seeks, by this bill, to enforce; and does not furnish any reason for taking the case out of the statute, on the ground of part perfoi-mauce. Indeed, the rule seems to be that no jiart performance by the party sought to be chai-ged will take an agreement out of the statute of fi'auds, except in those cases where the statute itself provides for such effect. It is part performance by the party seeking to enforce, and not by the oth- er party, to which courts of equity look, in giving relief from the statute. Caton v. Caton, 1 Ch. App. 137, L. R. 2 H. L. 127; Mundy v. JoUiff'e, 5 Mylne & C. 1G7; Buck- master V. Harrop, 7 Ves. 3ti9; Browne, St. Frauds, § 453. When the proposed reformation of an in- sti'ument involves the specific enforcement of an oral agreement within the statute of frauds, or when the term sought to be added would so modify the instrument as to make it operate to convey an interest or secure a right which can only be conveyed or secured through an Instrument in writing, and for which no writing has ever existed, the stat- ute of frauds is a sutficient answer to such a proceeding, unless the plea of the statute can be met by some ground of estoppel to de- prive the party of the right to set up that defence. Jordan v. Sawkins, 1 Ves. Jr. 402; Osborn v. Phelps, 19 Conn. 63;- Clinan v. Cooke, 1 Schoales & L. 22. The fact that the omission or defect in the writing, by reason of which it failed to con- vey the land or express the obligation which it is sourrht to make it convey or express, was occasioned by mistake, or by deceit and fraud, will not alone constitute sucn an es- toppel. There must concur, also, some change in the condition or position of the party seeking relief, by reason of being in- duced to enter upon the execution of the agreement, or to do acts upon the faith of it as if it were executed, with the knowledge and. acquiescence of the other party, either express or implied, for which he would be left without redress if the agreement were to be defeated. Upon a somewhat extended examination of the decisions in regard to the effect of the statute of frauds upon the right to have eq- uitable relief where the writing is defective, although many of them, where relief has been granted, hardly come within this defi- nition in the apparent character of the par- ticular facts upon which they were decided, yet we are satisfied that this principle of dis- crimination is the only one which can give consistency to the great mass of authorities upon this subject. The case of Smith v. Underdunck, 1 Sandf. Ch. 579, is nearly like the present in its facts; and the opinion of the assistant vice-chan- cellor would seem to sustain the right of the plaintiff here. There was no fraud in the preparation of the deed. The judgment was based mainly upon the ground of part per- formance. It was held to be sufllcient to take the case out of the statute tliat the plaintiff had been let into possession as pur- chaser; and the opinion " indicates that pos- session under and in accordance with a deed of part would be a sufficient possession of the whole for the purpose of requiring a deed of the remainder. But the decision rests up- on tlie fact of possession by the plaintiff of the entire premises, including the part for which the bill was brought. The case arose upon demurrer to the bill, which of course admitted the contract, and the alleged pos- session of the whole tract. The question of the statute of frauds did not ai-ise therefore. That the purchaser has been let into pos- session in pursuance of a parol agreement has been very generally recognized as suffi- cient to take it out of the statute. The rea- soning by which this result was reached is far from satisfactory; and even where the rule prevails there are frequent intimations that it is regarded as trenching too closely upon the spirit as well as the letter of the statute. If it were now open to settle the rule anew, Ave cannot doubt that it would be limited to possession accompanied with or followed by such change of position of the EQUITABLE REMEDIES. 267 purchaser as would subject him to loss for which he could not otherwise have adequate compeusatlon or other redress; and that mere change of possession would not be held to take a case out of the statute. However it may be elsewhere, we are disposed to hold the rule to be so in Massacliusetts. Previously to the Statutes of 1855, c. 194, and 1856, c. 38 (Gen. St. c. 113, § 2), the power of the court to direct specific per- formance was confined to written contracts. Rev. St. c. 74, § 8. That power was held to be strictly limited to contracts in which the whole obligation to be enforced was ex- pressed in the writing. Dwight v. Pomeroy, 17 Mass. 303; Brooks v. Wheelock, 11 Pick. 439; Leach v. Leach, IS Pick. 68; Buck v. Dowley, 16 Gray, 555; Park v. Johnson, 4 Allen. 259. The provision conferring that power specifically in case of written con- tracts is still retained in the Gen. St. c. 113, § 2. If the subsequent clauses, conferring jurisdiction generally, are to be construed, as we think they are, to extend the power of the court, so as to give relief by way of specific performance, either of contracts wholly unwritten, or of stipulations proved by parol and incoi-porated into a contract by judicial rectification of a written instrument, as in Metcalf v. Putman, 9 Allen, 97, still that power ought to be exercised with con- stant reference and in subordination to the condition that "the party asking relief has not a plain, adeoiuate, and complete remedy at common law," which accompanied each enlargement of the equity power of the court, and which prefaces and closes the enumeration of those powers in the General Statutes. The force of this consideration is not lessened when applied to agreements within the statute of frauds. Mere possession of land does not expose the party to loss or danger of loss without redress at law. The parol agreement of sale and purchase, with permission to enter, though not to be enforced as a valid contract of sale, will constitute such a license as will protect the party from liability for acts done before the license is revoked, and for all acts necessary to enable him to remove himself and his property from the premises after such revocation. If posses.sion be taken without such permission, express or imislied, it is no foundation for relief in equity, ac- cording to any of the authorities. The argu- ment, for the admission of parol evidence to prove an agreement within the statute of frauds in order to enforce it in equity, drawn from the admissibility of such evidence to maintain a defence, either at law or in eq- uity, seems to be based upon a misconcep- tion of the purport and force of the statute, which reaches no farther than to deny the right of action to enforce such agreements. In this commonwealth, the possession of land by a purchaser is not even notice to a third party of an unrecorded deed. The whole spirit of our laws in respect to real es- tate is against the policy of enabling parties to acquire or confer title, either legal or eq- uitable, by mere parol and delivery of pos- session. The possession of the plaintiff, therefore, even if it extended to the tract in dispute, is not sufficient to entitle him to re- lief against the statute. The principle, on which courts of equity rectify an instrument, so as to enlarge its operation, or to convey or enforce rights not found in the writing itself, and make it con- form to the agreement as proved by parol evidence, on the ground of an omission, by mutual mistake, in the reduction of the agreement to writing, is, as we understand it, that in equity the previous oral agree- ment is held to subsist as a binding contract, notwithstanding the attempt to put it in writing; and upon clear proof of its terms the courts compel the incorporation of the omitted clause, or the modification of that which is inserted, so that the whole agree- ment, as actuahy intended to be made, shall be ti'uly expressed and executed. Hunt v. Rousmaniere, 1 Pet. 1; Oliver v. Mutual Commercial Marine Ins. Co., 2 Curt. 277, Fed. Cas. No. 10,498. But when the omitted term or obligation is ^^'ithin the statute of frauds, there is no valid agreement which the court is authorized to enforce, outside of the writing. In such case, relief may be had against the enforcement of the contract as written, or the assertion of rights acquired under it contrary to the terms and intent of the real agreement of the parties. Such re- lief may be given as well upon the suit of a plaintifC seeking to have a written contract, or some of its terms, set aside, annulled, or restricted, as to a defendant resisting its specific performance. Canedy v. Marcy, 13 Gray, 373; Gillespie v. Moon, 2 Johns. Ch. 0S5; Keisselbrack v. Livingston, 4 Johns. Ch. 148. Relief in this form, although procured by parol evidence of an agreement differing from the written contract, with proof that the difference was the result of accident or mistake, does not conflict with the provi- sions of the statute of frauds. That statute forbids the enforcement of certain kinds of agreement without writing; but it does not forbid the defeat or restriction of written contracts; nor the use of parol evidence for the purpose of establishing the equitable grounds therefor. The parol evidence is in- troduced, not to establish an oral agreement independently of the writing, but to show that the written instrument contained some- thing contrary to or in excess of the real agreement of the parties, or does not prop- erly express that agreement. Higginson v. Clowes, 15 Ves. 516; Clowes v. Higginson, 1 Ves. & B. 524; Squier v. Campbell, 1 Mylne & C. 459, 4S0. But rectification by makiug the conti'act include obUgations or subject-matter to whicli its written terms will not apply is a direct enforcement of the oral agreement, as 268 EQUITABLE IiEMED:ES. much in conflict witli the statute of frauds as if there were no writing at all. Moale v. Buchanan, 11 Gill & J. 314; Osborn v. Phelps, 19 Conn. 63; Elder v. Elder, 10 Me. SO. In Parkhurst v. Van Cortland, 14 Johns. 15, 32, it is said that, "where it is necessary to make out a contract in writing, no parol evi- dence can he admitted to supply any defects in the writing." Per Thompson, C. J. Such rectification, when the enlarged operation in- cludes that which is within the statute of frauds, must he accomplished, if at all, under the other head of equity jurisdiction, namely, fraud. Irnham v. Child, 1 Brown, Cb. 92; 1 Story, Eq. Jm-. § 770a; Davies v. Fltton, 2 Dru. & War. 225; Wilson v. Wilson, 5 H. L. Cas. 40, (.15; Manser v. Back, 6 Hare, 443; Clarke v. Grant, 14 Yes. 519; Clinan v. Cook, 1 Schoales & L. 22. The fraud most commonly treated as tak- ing an agreement out of the statute of frauds is that which consists in setting up the stat- ute against its performance, after the other party has been induced to make expendi- tm-es, or a change of situation in regard to the subject-matter of the agreement, or up- on the supposition that it was to be carried into execution, and the assumption of rights thereby to be acquired; so that the refusal to complete the execution of the agreement is not merely a denial of rights which it was intended to confer, but the infliction of an unjust and unconscientious injury and loss. In such case, the party is held, by force of his acts or silent acquiescence, which have misled the other to his harm, to be estopped from setting up the statute of frauds. Hawkins v. Holmes, 1 P. Wms. 770; Parkhurst v. Van Cortlandt, 1 Johns. Ch. 274, 14 Johns, l.j; Browne, St. Frauds, § 43? el seq.; Fry, Spec. Perf. §§ 334-383; Caton v. Caton, 1 Ch. App. 137, 147, L. R. 2 H. L. 12 r. In the last named case it is said that "the right to relief in such cases rests not mere- ly on the contract, but on what has been done in pursuance of the contract." Per Lord Chancellor Cranworth. See, also, 1 Story, Eq. Jm'. § 759. But the present case, as we have already seen, does not come within the principle of this ground of equi- table relief. Fraud, which relates only to the prepara- tion, form, and execution of the writing, is sufficient to vitiate the insU'ument so made. It may be set aside eitlier in equity or at law. If it is made to include land not the subject of the actual sale, it is inoperative as to such land; and the fraud may be shown, for the purpose of defeating its re- covery, in an action at law. AValker v. Swasey, 2 Allen, 312, 4 Allen, 527; Bartlett V. Drake, 100 Mass. 174. It has been ques- tioned whether any other effect can be given to such fraud than to defeat the operation of the instrument altogether; and whether a court of equity can reform by giving it a narrower operation, as modified by parol proof, in a case within the statute of frauds. Attorney General v. Sitwell, 1 Younge & O. Exch. 559. The difflculty is that, if the fraud vitiates and defeats the instrument, then the modified agreement to be enforced must be that which is proved by parol evi- dence; and this seems to violate the stat- ute. But the instrument, in such ease, is not void. It is voidable only; and that not at the election of the party who committed the fraud. He is not entitled to control the extent of the effect that shall be given t& his fraudulent conduct; and it is not for him to object that the fraud is availed of only to defeat the rights, which he has se- cured by fraud, beyond what he is fairly en- titled to. by the terms of the real agreement between the parties. When those are sep- arable, and the nature of the case will ad- mit of it, the coui't may enforce the written contract in accordance with its terms, giving relief against the fraudulent excess, or the clause improperly inserted. Parol testiniony, used to defeat a title or limit an interest ac- quired under a written instnament, or to con- vert it into a trust, does not necessarily con- flict with the statute of frauds. It has been held that an absolute deed may, in this moue, be converted, in equity, into a mort- gage. Washburn v. Merrill, 1 Day, 140; Taylor v. Luther, 2 Sumn. 228, Fed. Cas. No. 13,780; Jenkins v. Eldredge, 3 Story, 181, 293, Fed Cas. No. 7,200; Morris v. Nix- on, 1 How. 118; 4 Kent, Comm. (Cth Ed.) 143. ., heLuer this can be done in Massachu- setts has not yet been decided. Newton v. Fay, 10 Allen, 505. But if it were to ba so held, it would not be upon the ground of en- forcing a parol agreement to re convey; but upon the ground that such an agreement, to- gether with proof that the deed was given and accepted only as security for a debt, made out a case of fraud, or trust, which would warrant a decree vacating the title of the grantee, as far as he attempted to hold contrary to the purposes of the conveyance. In such cases the court acts upon the estate- or rights acquired under the written instru- ment; and within the power over that in- strument which is derived from the fraud or other ground of jurisdiction. But when it is sought to extend that power to interests in land not included in the instrument, and in relation to which there is no agreement in writing, the case stands uiiferently. Fraud may vitiate the writing which is tainted by it, but it does not supply that which the statute requires. It may destroy a title or right acquired by its means; but it has no creative force. It wdl not confer title. In the absence of a legal contract by the agreement of the parties, it will not es- tablish one, nor authorize the court to de- clare one, by its decree. This distinction is illustrated by the anal- ogous rule in regard toimpMed tj'usts. Gen. St. c. 100, § 19. Parol evidence may charge the grantee of lands conveyed with a result- ing or implied ti-ust, which equity will en- EQUITABLE REMEDIES. 261) lorce. But such evidence will not create a trust in lands already held by an absolute title. A fraudulent misrepresentation, although sufficient to sustain an action for damages, cannot be converted into a contract to be enforced as such. Neither will it furnish the measui-e by which a written contract may be reformed. In this discussion we have as- sumed that there was a clear agreement be- tween the parties, which the deed fails to carry out, and to which it might proi>erly be made to conform, but for the obstacle in the statute of frauds. It has been of ten asserted that where one by deceit or fraudulent contrivance prevents an agi'eement intended to be put in writing from being properly written or executed, he shall not avail himself of the omission, and shall not be permitted to set up the statute of fraud against the proof and enforcement of the parol agreement, or of the pai'ol stipu- lation improperly omitted. But in our opin- ion this doctrine would practically annul the statute. The tendency of the human mind, when fraud and injustice are manifest, is to strain every point to compass its defeat; and to render full redress to the party upon whom it has been practiced. Mundy v. Jol- Uffe, -J IMylne & O. 1G7; Taylor v. Luther, 2 Sumn. 233, Fed. Cas. No. 13,793. This in- fluence has led to decisions in which the facts of the particular case were regarded more than the general considerations, of public pol- icy upon which the statute is founded anl entitled to be maintained. Courts have some- times regarded it as a matter of judicial mer- it to wrest from under the statute all cases in which the lineaments of fraud in any form were discernible. But the impulse of moral reprobation of deceit and fraud, how- ever commendable in itself, is liable to mis- lead, if taken as the guide to judicial de- crees. We apprehend that in most instances where fraud occasioning a failure of written evi- dence of an agreement or particular stipula- tion has been held to take the case out of the statute of frauds, there was some fact of prejudice to the party, or change of situa- tion consequent upon the fraud, which was regarded as sufficient to make up the ele- ments of an equitable estoppel. In such case, the argument is transferred to the simple question of the sufficiency of the additional circumstance for that purpose. The cases most frequently referred to are those arising out of agreements for marriage settlements. In such cases the man'iage, 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, or the assurance that it would be, executed, the other party is held to make good the agreement, and not pex-mit- ted to defeat It by pleading the statute. Max- well V. Mountacute, Prec. Ch. 526; Browne, St. Frauds, §§ 441^45. ' Another class of cases are those where a party acquires property by conveyance or de- vise secured to himself under assurances that he will transfer the property to, or hold and appropriate it for the use and benefit of, an- other. A trust for the benefit of such other person is charged upon the property, not by reason merely of the oral promise, but be- cause of the fact that by means of such promise, he had induced the transfer of the property to himself. Brown v. Lynch, 1 Paige, 147; Thynn v. Thynn, 1 Vern. 29G; Oldham v. Litchfield, 2 Vern. 500; Devenish V. Baines, Prec. Ch. 3; 1 Story, Eq. Jur. § 7GS. When these cases are cited in support of the doctrine that artifice or fiaud in evading or preventing the execution of the writing is alone sufficient to induce a court of equity to disregard the statute and enforce the oral agreement, the subsequent change of situa- tion or transfer of property, without which the deceit would be innocuous, seems to ba overlooked, because it is not strictly In part performance of the agreement sought to be enforced. It must be manifest, however, that without siuch consequent act there would be no standing for the case in a court of equity. That which moves the court to a decree to enforce the agreement is not the artifice by which the execution of the writing has been evaded, but what the other party has been induced to do upon the faith of the agree- ment for such a writing. It is not that de- celt, misrepresentation, or fraud, of itself, en- titles a party to an equitable remedy; but that equity will interfere to prevent the ac- complishment of the fraud which would re- sult from the enforcement of legal rights con- trary to the real agreement of the parties. Indeed, the fraud which alone justifies this exercise of equity powers by relief against the statute of frauds consists in the attempt to take advantage of that which has been done in performance or upon the faith of an agreement, while repudiating its obligations under cover of the statute. When a writing has been executed, the courts allow the fraud or mistake by which an omission or defect in the instmment has been occasioned to defeat the conclusiveness of the writing, and opeu the door for proof of the real agreeipent. But the obstacle of the statute of frauds to the enforcement of obligations, or the security of rights not expressed in the instrument re- mains to be removed in the same manner as if there were no writing. Phyfe v. Wardell, 2 Edw. Ch. 47; Moale v. Buchanan, 11 Gill & J. 314. The power to reform the instrument Is not an independent power or branch of eq- uity jurisdiction, but only a means of exercis- ing the power of the court under its general jurisdiction in cases of fraud, accident, and mistake. We are aware that the limitation which we 270 EQUITABLE REMEDIES. liave undertaken to define has not been uni- formly observed or recognized. In Wiswall v. Hall, 3 Paige, 313, Chancel- lor Walworth granted a perpetual injunction, and ordered a deed of release of title to land omitted from a deed by fraud and secret con- trivance. There was no discussion of the au- thorities, nor of the principles upon which the case was decided; and no reference to the statute of frauds; and the statute does not appear, by the report, to have been set up against the prayer for relief. In De Peyster v. Hasbrouck, 11 N. Y. 591, a similar decision was made in the court of appeals in New York. Here again there is no reference to the statute of frauds, no dis- cussion of the principles involved in the deci- sion, and no authority or precedent cited ex- cept that of Wiswall v. Hall. The mortgagor whose deed was reformed put in no answer whatever. The defence was made by parties claiming under him, and the statute of frauds does not appear to have been pleaded. De- nio, C. J., in giving the opinion, proceeds to say: "It is unnecessary to refer to cases to establish the familiar doctrine that when through mistake or fraud a contract or con- veyance fails to express the actual agreement of the parties, it will be reformed by a court of equity, so as to correspond with such ac- tual agreement. The English cases have been ably digested by Chancellor Kent, and the principle has been stated with his accus- tomed care and accuracy, in Gillespie v. Moon, 2 Johns. Ch. 585." But in Gillespie v. Moon the relief sought and granted was by way of restricting, and not by enlarging, the operation of the deed. Such relief would not, as already shown, con- flict with the statute of frauds; and neither the discussion in that case nor the citation of authorities had reference to the bearing of the statute of frauds upon the question of af- fording relief upon contracts relating to land. Indeed, the English cases furnish but little aid upon that point, for the reason that the courts there have generally, without refer- ence to the statute of frauds, refused to en- force written contracts with a modification or variation set up by parol proof. Woollam V. Heam, 7 Ves. 211, and notes on the same in 2 Lead. Gas. Eq. 404; Nurse v. Seymour, 13 Beav. 254. The principle which was maintained by Chancellor Kent, and upon which the Eng- lish authorities were cited by him in Gilles- pie V. Moon, was that relief in equity against the operation of a written instrument, on the ground that by fraud or mistake it did not express the tnie contract of the parties, might be afforded to a plaintiff seeking a modification of the contract, as well as to a defendant resisting its enforcement. That proposition must be considered as fully es- tablished. 1 Story, Eq. Jur. § 161. It is quite another proposition, to enlarge the sub- ject-matter of the contract, or to add a new term to the writing, by parol evidence, and enforce it. No such proposition was present- ed by the case of Gillespie v. Moon, and it does not sustain the right to such relief against the statute of frauds. That Chancellor Walworth, in Wiswall v. Hall, did not intend to decide that the stat- ute of frauds could be disregarded if properly set up against such an enlargement of the operation of the written contract is apparent from the remarks of the same learned judge in the subsequent case of Cowles v. Bowne, 10 Paige, 535. He says: "Whether a party can come into this court for the specific per- formance of a mere executoiy agreement for the sale of lands, which in its terms is ma- terially variant from the written agreement between the parties that has been executed accoi-ding to the statute, where there has been no part performance or other equitable circumstance sufiicient to take the case out of the statute of frauds, as a mere parol con- tract between the parties, is a question which it will not be necessaiy for me to con- sider in this case." In Gouverneur v. Titus, 1 Edw. Ch. 480, there was a deed of land described as being in the northwest comer of a township by mis- take for the northeast corner. The grantor admitted the real contract, and had corrected the mistake by deed. The only question was whether equity would enforce the corrected deed against the lien of a judgment creditor, who had notice of the mistake. In the opinion it is said: "It is a case in which this court would interfere, as between the immsdiate par- ties, to correct the mistake." The judgment was clearly right. The dictum we are dis- posed to question, unless the deed itself con- tained some other description by means of which the land might be identified and the mistake corrected. In Newson v. Bufferlow, 1 Dev. Eq. 379, a deed was reformed, which was made, by fraud, to include land not sold; and the fraud- ulent grantee was required to execute a recon- veyance of the excess. The opinion contains a remark of the court that this power may be exercised as well by inserting what was omit- ted as by striking out what was wrong- fully included. But this remark is clearly obiter dictum, and is not sustained by the authority cited, namely, Gillespie v. Moon. In Blodgett v. Hobart, 18 Vem. 414, a mortgage was reformed by including other lands omitted by mistake. The statute of frauds was not set up in the answer nor re- ferred to in the opinion of the court, and the answer was considered by the court to be evasive in regard to the alleged agreement for security upon such other lands. In Tilton v. Tilton, 9 N. H. 385, the court controvert the doctrine of such a limitation, as declared in Elder v. Elder, 10 Me. 80; but the decision did not involve the question so discussed. The case arose from an attempted partition between tenants in common of real estate. There was a written agreement for partition according to the award of certain EQUITABLE UEMEDIES. 271 arbitrators named, and the only question was as to the effect of a substitution of other ar- bitrators by parol. Deeds had been executed, and the plaintiff had fully performed his part of the agreement. It was a case of part per- formance sufficient to take the case out of the statute of frauds, and was decided upon that ground. Besides, a partition of lands, though effected by mutual deeds of release, is not a contract for the sale of land. Craig V. Kittridge, 3 Fost. (N. H.) 231, arose upon a partition, and was decided upon the authority of Tilton v. Tilton. Smith v. Greeley, 14 N. H. 378, was a decree upon de- fault, without argument or opinion, against the executors and heirs of a party whose deed, by mutual mistake, failed to include certain land sold. It does not appear whether tliere was written evidence of the agreement, nor whether there was possession or acts of performance. It was sufficient, perhaps, that the statute was not pleaded, and the default admitted the agreement. Caldwell v. Carriugton, 9 Pet. 8G, was an agreement for exchange of lands, and stands entirely upon the ground of part performance. Notwithstanding contrary decisions and dic- ta, we are satisfied that upon principle the conveyance of land cannot be decreed in eq- uity by reason merely of an oral agreement therefor against a party denying the alleged agreement and relying upon the statute of frauds, in the absence of evidence of change of situation or part performance creating an estoppel against the plea of the statute. This rule applies as well to the enforcement of such an agreement by way of rectifying a deed as to a direct suit for its specific per- formance. We are satisfied also that this is the rule to be derived from a great prepon- derance of the authorities. Whitchurch v. Bevls, 2 Brown, Ch. 059; Woollam v. Hearn, 7 Ves. 211; 2 Lead. Cas. Eq. (3d Am. Ed.) notes, [*414], Am. Notes, 091; Townshend V. Stangroom, 6 "Ves. 328; Beaumont v. Bram- ley, Turn. & R. 41. See, also, Moale v. Bu- chanan, 11 Gill & J. 314; Osborn v. Phelps, 19 Conn. 03; and Elder v. Elder, 10 Me. SO, already cited above; Adams, Eq. 171, 172; Churchill v. Rogers, 3 T. B. Mon. 81; Purcell v. Miner, 4 Wall. 513. The prayer in regard to the fence stands differently. If that stipulation had been fraudulently inserted in the deed, the agree- ment being otherwise, the deed might be re- formed by striking out that provision, or re- quiring a release of it, so as to make the writ- ing correspond with the actual agreement. But upon the allegations of the bill there is no other agreement by which to reform the deed, and to which to make it conform. The plaintiff admits that the stipulation in the deed is precisely in accordance with the ac- tual agreement. The fraud which he alleges relates only to the consideration or induce- ment upon which he was led to make that agreement; not to the form of the agreement itself. If that stipulation were to be stricken out, the writing would then not express the agreement actually made by the parties. The court cannot rectify an instrument otherwise than in accordance with the actual agree- ment. It cannot make an agreement for the parties. Hunt v. Rousmaniere, 1 Pet. 1, 14; Brooks v. Stolley, 3 McLean, 523, Fed. Cas. No. 1,902. If the subject-matter of this stipulation were of sufficient materiality, the fraud alleged might have the effect to defeat the whole instrument. But this effect is not sought. The plaintiff's remedy, thei-e- fore, is at law, in damages for the deceit and false representation. The alleged agreement in regard to the pre- mium and accrued interest upon the bonds transferred in payment for the land will not sustain a bill in equity. If such an agreement was made and broken, we see no reason why an action of assumpsit will not lie upon the agreement, or for the oveiipayment of the agreed price of the purchase. The remedy at law is as effectual as it can be In equity. The entry must therefore be, bill dismissed. 272 EQUITABLE REMEDIES. PURCBLL T. MINER. (4 Wall. 513.) Supreme Court of the "United States. Dec, 1866. Purcell filed a bill against Coleman, Mi- ner and wife, and others, in the supreme court of the District of Columbia, where the statute of frauds— enacting that all estates In lands made by parol only and not put in writing and signed by the iiarties making the same shall have the force and effect of estates at will only—Is in force. The bill set forth that Coleman having a house in Washington, and he, Purcell, a farm in Vir- ginia, "a ti'ade" had been made between them; and the possession and key of the house delivered to him by Coleman, and fuU payment admitted by Coleman's receiv- ing tiie farm, the title of which he had ex- amined, and "the trade" closed; and that Coleman had requested the complainant to prepare both deeds; that Purcell had done so, and had tendered and was now ready to tender to Coleman a deed for the farm according to the contract. The bill then went on: "Your orator further avers that several weeks thereafter, to his great surprise, about the time he had commenced improv- ing the house for the purpose of placing a tenant in it, the said Coleman, in the night- time, entered the back way, by means of a ladder, and took from the back door the' key on the inside of said house, and held for- cible possession of the same until he was found guilty of the charge by two justices, after hearing all the testimony and having the aid of two counsel. That the said Cole- man then delivered the key to your orator, and stated in the presence of several gentle- men that the change of property was fair; that he knew its condition before trading, in relation to its value and title: that it was advantageous to him, but that his wife had a few days previous refused to go with him to the said farm, and that was his only reason for his unlawful conduct, and that he would not do it again, and that he would pay all the costs in the case, which he has failed to do. "Your orator further avers that notwith- standing the key, ijossession, and equitable title being with your orator, and that he had actually prepared a bill in equity to compel said Coleman to make him a deed for the house and lot, and was about to file it, that to his great surprise it appeared that on the 9th March, ISGl, one Miner had entered in- to a conditional contract with the said Cole- man for the house and lot, and obtained a deed for the same in the name of his wife; the said Miner well knowing at the time he made the conditional contract with the said Coleman that your orator was entitled to the equitable estate in said house and lot, as well as the peaceable and lawful possession of the same; that the said Miner, in order to get possession of the house, in the ab- sence of your orator prepared a false key and entered It, first having torn down the printed advertisement from the door show- ing the house was for rent by your orator. And that your orator had again to incur the expense, loss of time, and annoyance of prosecuting the writ of forcible entry, and the said Miner was found guilty as charged, and fined fifty dollars. "Your orator further avers that the said Miner stated to your orator in the presence of several gentlemen that it was not neces- sary to make him a party to the suit to com- pel the legal title; that if your orator suc- ceeded against said Coleman, that said Cole- man was to convey back to him or his wife the land in Virginia, which he had conveyed to said Coleman for the house and lot re- ferred to, thereby showing that their pre- tended exchange was entirely depending on the right of your orator to the said house and lot, which is still in your orator's pos- session, but owing to the annoyance, by said Coleman and Miner, he has been un- able to rent it. "Your oiator further avers that It is im- possible to place your orator and the said Coleman in the same situation they were in before they exchanged property, because the said Coleman not having given atten- tion to the farm, a barn has been destroyed, and also much of the fencing, as your ora- tor has been informed and believes, and that he has been at expense in repairing the house and lot, &c." The bill prayed a specific performance of the contract set up. The bill was answered by Miner, denying, etc., and set out that Jliner also having a farm in Virginia, he and Coleman had agreed on and actually consummated a bo- na fide and unconditional exchange of the house for it. The answer then thus went on: "This defendant further says, that soon after the execution of said deed to his said wife he took possession of the premises (as this defendant was authorized to do as the property of his wife) in a peaceable, quiet, and proper manner, and that he met upon the street a locksmith, who unlocked the front door of said house and sold this de- fendant a key. Some days subsequently the said complainant demanded of this de- fendant the possession of said house and lot, which demand this defendant refused to comply with. The next day the com- plainant came to the premises with a large number of oflicers and two justices of the peace, and in their presence again demand- ed possession of the house and lot, which this detendant again refused to grant, but being requested by said justices, he opened the door and allowed them to enter. The said justices immediately proceeded to try the question of possession, and, to the ut- ter surprise and astonishment of this de- EQUITABLE KEMEDIES. 273 fendant, imposed a fine for withholding from the said complainant the possession of the said house and lot. This defendant re- quested the said complainant to show his title to the said house and lot which he claimed, and the said complainant exhib- ited some papers, but none of them were signed by said Coleman, nor were they of any consequence in reference to the sup- port of his pretended claim of title. This defendant immediately called upon Coleman and related to him the circumstances in ref- erence to the claim upon the house and lot set up by the complainant, and was inform- ed by Coleman that the complainant had no ..claim upon the said house and lot, but ad- mitted that they had been negotiating for an exchange of properties, and while the negotiations were going on, he, the said Coleman, learned that the farm in Virginia tliat said complainant had offered him for said house and lot did not belong to the said comiJlainant, and that he could not give him, the said Coleman, a clear title thereto, and consequently that he, the said Coleman, had declined clofeing any contract with said complainant." Mrs. Miner did not answer, but made de- fault. A good deal of testimony was taken, many of the interrogatories — the parties managing their own case — being of a most leading character. The court below dismissed the bill, and the case is now here on appeal. Brent & Merrick, for appellant. Mr. Mi- ner, pro se, contra. Mr. Justice GRIER delivered the opinion of the court. A conti-act for the exchange of lands is as much within the statute of frauds as a con- tract for their sale, and a party seeking to enforce a specific execution of a parol con- tract for that purpose, must bring himself within the same conditions before he can invoke the aid of a court of equity. The statute, which requires such contracts to be in writing, is equally binding on courts of equity as courts of law. Every day's experi- ence more fully demonstitites that this stat- ute was founded in 'wisdom, and absolutely necessary to preserve the title to real prop- erty from the chances, the uncertainty, and the fraud attending the admission of parol testimony. It has been often regretted by judges that courts of equity have not re- quired as rigid an execution of the statute as courts of law. Nevertheless, courts of equity have, in many instances, relaxed the rigid require- ments of the statute; but it has always been done for the purposes of hindering the stat- ute made to prevent frauds from becoming the instrument of fraud. A mere breach of a parol promise will not make a case for the interference of a chan- cellor. It is plain that a party who claims such interference has the burden of proof SHEP. BQ. JUK. — 18 thrown on him. He knows that the law re- quires written evidence of such contracts, in order to their validity. He has acted with great negligence and folly who has paid his money without getting his deed. When he requests a court to interfere for him, and save him from the consequences of his own disregard of the law, he should be held rig- idly to full, satisfactory, and indubitable proof — First. Of the contract, and of its terms. Such proof must be clear, definite, and con- clusive, and must show a contract, leaving no jus deliberandi, or locus pojnitentiiE. It cannot be made out by mere hearsay, or evi- dence of the declarations of a party to mere sti-angers to the transaction, in chance con- versation, which the witness had no reason to recollect from interest in the subject-mat- ter, which may have been imperfectly heard, or inaccurately remembered, iierverted, or altogether fabricated; testimony, therefore, impossible to be contradicted. Second. That the consideration has been paid or tendered. But the mere payment of the price, in part or in whole, will not, of itself, be sufficient for the interference of a court of equity, the party having a sufficient remedy at law to recover back the money. Third. Such a part performance of the con- tract that its rescission would be a fraud on the other party, and could not be fully compensated by recovery of damages in a court of law. Fourth. That delivery of possession has been made in pursuance of the contract, and acquiesced in by the other party. This will not be satisfied by proof of a scrambling and litigious possession. The application of these principles to the case before us will show that the plaintiff lias wholly failed to establish a case proper for the interference of a court of equity. We do not think it necessary to a vindica- tion of our judgment to give a history either of the pleadings or evidence disclosed by the record. The case appears to have been car- ried on by the parties propria persona, who are excusable for their ignorance of all the rules of pleading and practice in a court of chancery, or the proper mode of taking tes- timony. The merits of the case seem to have been tried in a verbal wrangle before two justices, and afterwards converted into a written one for the consideration of the court. Taking the complainant's bill to be a cor- rect statement of the facts, he has shown no case for the interference of the court. By his statement, the contract was not intended to be left in parol; but when the parties had each examined the iDroperties proposed to be exchanged, they contemplated to come together and perfect the exchange. If either party had delivered a deed, in execution of the "trade" or bargain, and tlie other re- fused to fulfil his part, by making a proper conveyance, or if valuable improvements 274 EQUITABLE REMEDIES. had been made by the party in possession, there would have been a case for a decree of specific execution. As it was, the de- fendant declined to go on with the "trade," alleging that the plaintifC's farm was incum- bered. He had given the key of the house to the complainant, which was set up as a delivery of possession, while the defendant denied any intention to make such delivery, and took forcible possession of his house. While this contest about the possession was going on, the defendant sold his house, and conveyed it to the wife of his counsel, who carried on the litigation for him before the justices, and here. The bill must fail— 1. For want of clear, definite, and conclu- sive iiroofs of the contract. 2. For want of any delivery of peaceful and uninterrupted possession. 3. Or of valuable improvements made. We find no part execution on either side, nor anything but a breach of promise, and a consequent quarrel before the contract of exchange was executed. Decree atfifmed. EQUITABLE REMEDIES. 275 JONES V. NEWHALIi. (115 Mass. 244.) Supreme Judicial Court of Massachusetts. Suffolk. June 20, 1874. Bill by Leouai'd 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 stocli 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. I 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. 3.')7; Wilson V. Leishman, 12 Mete. (Mass.) 310, 321; Hil- liard v. Allen. 4 Cush. 532, 535; Pratt v. Pond, 5 Allen, 59; Glass v. Hulbert, 102 Mass. 24, 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 7iiay 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. r,07; Harnett v. Yielding, 2 Schoales & L. 540, .5."i3; 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, 109; 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 iilaintiff 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- 276 EQUITABLE REMEDIES. ment due. In equity he can liave no decree beyond that. He cannot come into equity to obtain precisely what he can have at law. Howe V. Nickerson, 14 Allen, 400, 400; Jacobs V. Peterborough & S. K. Co., 8 Gush. 223; Gill V. Bicknell, 2 Gush. O-Jo; Russell V. Clark, 7 Cranch, CO. 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 recoTer 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 plaintilf insists, that a different rule exists in the English courta 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' jurisdictisn, 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. § C4i; Suell, Eq. 335; Slim v. Orouther, 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. Wms. 1.54; Green v. Barrett, 1 Sim. 45; Blain v. Agar, 2 Sim. 2S9; Cridland v. De Mauley, 1 De Gex & S-^ 4.59; 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. \Var- ren, 9 Ves. 005; Walker v. Eastern Coun- ties Ry. Co., 6 Hare, 594; Kenney v. ^Vex- ham, U 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 EuglisJi courts than it can be here; and that is the doctrine of equitable conversion. Jt 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. Gas. 331; Fry, Spec. Pert. § 23. In Jlassachusetts, instead of a distinct and independent court of chancery, with a juris- diction derived from and delined 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 coiu't of law had already become ex- tended much bej'ond those of English coiu'ts 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 dilTerent rules gov- erning their exercise. Black v. Black, 4 Pick. 234, 238; Tirrell v. Merrill, 17 Mass. 117, 121; Baker v. Biddle, Baldw. 304, Fed. Gas. No. 704. 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 IIEMEDIE3. 277 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. 282; 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. 61G; Parker v. Winnipiseogee Lake Cotton & Woollen Co., 2 Black, 51j; Baker V. Biddle, Baldw. 394, Fed. Cas. No. 7G4. See, also. Woodman v. Freeman, 25 Me. 531; Piscataquis F. & M. Ins. Co. v. Hill, CO Me. 178. Even in courts of general chancery powers and of indeijendent 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 pai'- 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 Gvoon 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; Kamshire 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 Jletc. (Mass.) 525, 529; Woodman v. Saltonstall, 7 Cush. 181; Pratt V. Pond, 5 Allen, 59; Clark v. Jones,. Id. 379; Metcalf v. Cady, 8 Allen, 5S7; Mill River Loan Fund Ass'n v. Claflin, 9 Allen, 101; Com. V. Smith, 10 Allen, 448; Bassett V. Brown, 100 Mass. 355, 105 Mass. 551, 560. The demurrer, therefore, must be sustain- ed, and the bill dismissed. 278 EQUITABLE KEMEDIES. PUSEY T. PUSBY. (1 Vern. 279^) Michaelmas Term. Nov. 20, 1G84. BUI was that a horn, which, time out of mind, had goce along with the plaintiff's estate, and was delivered to his ance.etors iu ancient time to hold their land by, might be delivered to him; upon which horn was this inscription, viz. "Pecote this horn to hold huy thy land." The defendant answered as to part, and demurred as to the other part, and the de- murrer was that the plaintiff did not by his bill pretend to be entitled to this horn, either as executor or devisee; nor had he in his bill charged it to be an heir-loome. The demurrer was overruled, because the defendant had not fully answered all the particular charges in the bill, and was or- dered to pay costs. And the lord keeper was of opinion that if the land was held by the tenure of a horn or corna.s,'e, the heir would be well entitled to the horn at law. Vide 1 Inst. lOTa. EQUITABLE KEMEDIES. 279 LINDSAY V. GLASS. (21 N. E. 897, 119 Ind. 301.) Supreme Court of Indiana. June 6, 1889. Appeal from circuit court, Biirtlioloinew countyi.JSTELsoN K. Keyes, Judge. Action by Eliza Glass agiiinst James Keyes, to recover certain sums of monev. Judgment for plaintilf, and defendajit ap- peals. G. W. Cooper and C. B. Cooper, for ap- pellant^ F. T. Hord, il. D. Euiig, and K. W. Harrison, (or appellee. MITCHELL, J. Eliza Glass brought this action agiiinst James Lindsay, to recover cer- tain sums of money derived from lier deceased husband's estate, which she charges that the defendant reieived and appropriated to his own use. There is no controversy but that the defendant received $2,1)60 of the plaintiff's money from various sources, but lie dnnies her riglit to recover, because he says that in the month of November, 1884, the plaintiff being very old, feeble, and to- tally blind, and witliout 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 witli his agreement, he kept the plaintiff from tlie date above mentioned until in the month of February, 18S7, at which time she left his house, and has not since returned, altliough he has been all the time and still is ready and willing to perform his part of the contract. Tliere was a verdict and judgment for the plaintiff below for ;S1, 502.1:;, and tlie 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, througii which a claim is asserted to their property in consideration of an unexecuted promise of support and mainlenance, are peculiar in tlieir 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 excicise the caie for his own interest and protection that usually characterizes the con- duct of persons in making ordinary contracts. 8uch contracts, involving continuing care and personal service, and requiiing 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. Hep. 326. To compel one to accept the alternative of receiving support under an improvident contract or to become a subject of chaiity 'night 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 ivho 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 Avis. 209; Rowell v. Jewett, 69 Me. 2.13; Eastman v. Batchelder, 36 JSl. H. 141; Bethlehem v. Annis, 40 N. H. 34; Wilder v. AVhittemore, 15 Mass. 262; Tluner V. Richards, 19 Pick. 398. Until the con- tract is fully performed on both sides, it is iiable to be rescinded, and the propeity re- ■laimed, leaving the parties to their remedies, L-espcctively, for what may have been fur- nished under the contract. In the present ■ase the plaintiff persistently denied that she ■ver made any contract with the appellant by whiili he became entitled to her property in consideration of a promise to sup|iort 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 jjrop- 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 a.nrees in consi leration thereof to furnish a home, with suitable maintenance and support, does not perform his contract fairly, and according to its spir- it, by simply fuinishing 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 plaintilf 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 qu^tion before us as to the proper rat^; of interest to be charged in such a case. We must presume that the 2S0 EQUITABLE EEMEDIES. court instructed the jury properly upon the subject of interest. Upon tlie view of tlie case most fiivorable to tlie appellant, he was entitled to nothing more tlian to be reim- bursed for the actual value of the support and maintenance furnished, and for expenses in- curred in and about the plainliff's business. So far as we can discover, this was the rule applied. The judgment is aflirmtd, with costs. EQULTABLE KEMEDIES. 281 CLASON V. BAILEY et al. SAME v. DEN- TON et al. SAME v. MERUIT et al. (14 Johns. 484.) Court of Errors of New York. March, 1817. These causes came 'before this court on writs of error, to the supreme court'. The facts in all were, substantially, the same. See Merrit v. Clasou, 12 Johns. 102. Townsend, a broker, was employed by CLison, a merchant, in the city of New York, in February, 1812, to purchase a quantity of rye for him. Townsend applied to Bailey & Vcorliees, to know if they had rye for sale; and they agreed to sell him, for Clason, o.'JOO bushels of rye, at one dollar per bushel, pay- able on delivery, and authorized him to make sale thereof to Clason, accordingly. Townsend informed Clason of the quantity of rye he could purchase of Bailey & Vocrhees, and the terms of sale, and he was directed by Clason to purchase it. Townsend then went to Bailey & Voorhees and closed the bargain; and there- upon wrote the following memorandum in his memorandum book, in the presence of Bailey & Voorhees: "Februai-y 29th, bousht for Isaac Clason, of Bailey & Vocrhees, three thousand biishels of good merchantable rye, deliverable from the oth to the loth of April next, at one dollar per bushel, and payable on delivery." The memorandum was made the 20th of Feb- ruary, 1812, and was written, as well as the other memoranda, in the same book, with a lead pencil. The day after making the bar- gain, Townsend infoimed Clason of it; and he gave him a copy of the memorandum, in the latter part of the month of April, but not before. On the 14th of April, 1812, Bailey & ^'oorhees tendered 3,000 bushels of good mer- cliantable rye to Clason, requesting him to take the same away, and pay for it, according to the terms of the bargain; but Clason re- fused to accept and pay for it. On the 10th of April, Bailey & Voorhees addressed a let- ter to Clason, giving him notice, that unless he took the vye and paid for it, in the mean time. It would be sold on the Tuesday follow- ing, at public auction, etc., and that they should hold him accountable for whatever deficiency there might be, after charging the original price, charges, &c. Clason neglected to receive and pay for the rye, which was sold pursuant to the notice, at the best price that could be got for it; and the deficiency, after deducting the nett proceeds from the price at which it was purchased by Clason, was $1,150.50 to recover which sum, the suit was brought by Bailey & Voorhees against Clason. There was a special verdict, on which the court below gave judgment for the plaintiffs below, on which the defendant brought a writ of error. The reasons of the judgment below, were as- signed by the chief justice; being the same as delivered by the supreme court, in Merrit v. Clason, 12 Johns. 100. Mr. Van Beuren, Atty. Gen., for plaintiff in error. S. Jones, Jr., and Mr. Henry, for de- fendants in error. TI-IE CHANCELLOR. The case struck me upon the argument as being veiy plain. But as it may have appeared to other members of the court in a different, or, at least, in a more serious light, I will very briefly state the rea- sons why I am of opinion, that the judg- ment of the supreme court "ought to be af- firmed. The contract on which the controversy aris- es, was made in the following manner: Isaac Clason employed John Townsend ta purchase a quantity of rye for him. He, in p>u-suance of this authority, purchased of Bailey & Voorhees 3,000 bushels, at one dollar per "bushel, and at the time of closing tlie bar- gain, he wrote a memorandum in his memo- randnm book, in the presence of Bailey & Voorhees, in these words: "February 2Jth, bought for Isaac Clason, of Bailey & Voorhees, 3,000 bushels of good merchantable rye, deliv- erable from the 5th to the 15th of April next, at one dollar per bushel, and payable On deliv- ery." The terms of the sale and purchase had been previously communicated to Clason, and approved of by him, and yet at the time of delivery, he refused to accept and pay for the rye. The objection to the contract, on the part uf Clason, is that it was not a valid coutiact within the statute of frauds: (1) Because the contract was not signed by Bailey & Voorhees. (2) Because it was written with a lead pen- cil, instead of pen and ink. I will examine each of these objections. It is admitted that Clason signed this con- tract, by the insertion of his name by his authorized agent, in the body of the memo- randum. The counsel for the plaintiff in error do not contend against the position, that this was a sufficient subscription on his part. It is a point settled, that if the name of a party appears in the memoiandum, and is applicable to the whole substance of the writing, and is put there by him or by his authority, it is immaterial in what part of the instrument the name appears, whether at the top, in the middle, or at the bottom. Saunderson v. Jackson, 2 Bos. & P. 238; Welford v. Beaz- eJy, 3 Atk. 503; Stokes v. Jloor, cited by ilr. Coxe in a note to 1 P. Wms. 771. Forms are not regarded, and the statute is satisfied if the terms of the contract are in writing, and the names of the contracting parties appear. Clason's name was inserted in the contract, by his authorized agent, and if it were admitted that the name of the other party was not there by their direction, yet the better opinion is, that Clason, the pai-ty who is sought to be charged, is estopped, by his name, from say- • ing that the contract was not duly signed within the purview of the statute of frauds; 282 EQUITABLE EEMEDIES. and that it is sufficient, if the agreement be signed by the party to be cliarged. It appeai-s to me, that this is the result of the weight of authority both in the courts of law and equity. In Ballard v. Walker, 3 Johns. Cas. 60, de- cided in the supreme court, in 1802, it was held, that a contract to sell land, signed by tlie vendor only, and accepted by the other party, was binding en the vendor, who was the pnrty there sought to be charged. So in Roget V. Merritt, 2 Caines, 117, an agree- ment concerning goods, signed by the seller, and accepted by the buyer, was considered a valid agreement, and binding on the party who signed it. These were decisions here, under both branch- es of the Statute, and the cases in the English courts are to the same effect. In Saunderson v. Jackson, 2 Bos. & P. 238, the suit was against the seller, for not deliv- ering goods according to a memorandum sign- ed by him only, and .ludgment was given for the plaintiff, notwithstanding the obiection that this was not a sufficient note Avithin the statute. In Champion v. Plumer, 4 Bos. & P. 252. the suit was against the seller, who alone had signed the agreement. No objection was made that it was not signed by both parties, but the memorandum was held defective, be- cause the name of the buyer was not men- tioned at all, and consequently there T\'as no certainty in the writing. Again, in Egerton V. Matthews, 6 East, 307, the suit was on a memorandum for the purchase of goods, sign- ed only by the defendant, who was the buyer, and it was held a good agreement within the statute. Lastly, in Allen v. Bennet, 3 Taunt. 1(19, the seller was sued for the non- delivery of goods, in piu'suance of an agi'ee- ment signed by him only, and .iudgment was rendered for Ihe plaintiff. In that case. Chief Justice Mansfield made the observation, that "the cases of Egerton v. Matthews, Saunder- son V. Jackson, and Champion v. Plumer, sup- pose a signature by the seller to be sufficient; and every one knows it is the daily practice of the court of chancery, to establish con- tracts signed by one person only, and yet a court of equity can no more dispense with the statute of frauds than a court of law can." So Lawrence, J., observed, that "the statute clearly supposes the probability of there being a signature by one person only." If we pass from the decisions at law to the courts of equity, we meet with the same uni- form construction. Indeed, Lord Eldon has said (18 Ves. 183) that chancery professes to follow courts of law, in the construction of the statute of frauds. In Hatton v. Gray, 2 Ch. Cas. 164, 1 Eq. Cas. Abr. 21, pi. 10, the purchaser of land signed the agreement, and not the other party, and yet the agreement was held by Lord Keeper North to be binding on him, and this too, on a bill for a specific performance. So in Coleman v. Upcol, 5 Mn. Abr. 527, pi. 17, tlio Lord Keeper AVvight held, that an agree- ment concerning lands was within the stat- ute, if signed by the party to be charged, and that there was no need of its being signed by both parties, as the plaintiff, by his bill for a specific performance, had submitted to per- form what was required on his part to be performed. Lord Hardwicke repeatedly adopted the same language. In Buckhouse v. Crosby, 2 Eq. Cas. Abr. 32, pi. 44, he said, he had often known the objection taken, that a mutual contract in writing, signed by both parties, ought to appear, but that the objection had as often been ovei'ruled; and in Welford v. Beazely, 3 Atk. 503, he said, there were cases where writing a letter, setting forth the terms of an agreement, was held a signing within the statute; and in Owen v. Davies, 1 Ves. Sr. 82. an agreement to sell land, signed by the defendant only, was held binding. The modern cases are equally explicit. In Cotton V. Lee, before the lords commissioners, in 1770, which is cited in 2 Brown, Ch. 5G4, it was deemed sufficient, that the party to be cliarged had signed the agreement So in Seton V. Slade, 7 "S'es. 275, Lord Eldon, on a bill for a specific performance, against the buyer of land, said, that the agreement being signed by the defendant only, made him, within the statute, a party to be charged. The case of Fowle v. Freeman, 9 Ves. 351, was an express decision of the master of the rolls, on the very point, that an agreement to sell lands, signed by the vendor only, was bind- ing. There is nothing to disturb this strong and united curi-ent of authority, but the observa- tions of Lord Chancellor Redesdale, in Law- renson v. Butler, 1 Schoales & L. 13, who thought that the contract ought to be mutual, to be binding, and that if one party could not enforce It, the other ought not. To decree performance, when one party only was bound, would "make the statute really a stat- ute of frauds, for it would enable any per- son who had procured another to sign an agreement, to make it depend on his owii will and pleasure whether it should be an agreement or not." The Intrinsic force of this argument, the boldness with which it was applied, and the commanding weight of the very respectable character who used it, caused the courts, for a time, to pause. Lord Eldon, in 11 Ves. 592, out of respect to this opinion, waived, in that case, the dis- cussion of the point; but the courts have, on further consideration, resumed their for- mer tract. In Western v. Russell, 3 Ves. & B. 192, the master of the rolls declared he was hardly at liberty, notwithstanding the considerable doubt thrown upon the point by Lord Redesdale, to refuse a specific per- formance of a contract to sell land, upon the ground that there was no agreement signed by the party seeking a performance: and in Ormond v. Anderson, 2 Ball & B. 370, the present lord chancellor of Ireland (and whose authority, if we may judge from the ability EQUITABLE KEMEDIES. 283 of his decisions, is not far short of that of his predecessor), has not felt himself au- thorized to follow the opinion of Lord Redes- dale. "I am well aware," he observes, "that a doubt has been entertained, by a judge of this court, of very high authority, whether courts of equity would speclfleally execute an agreement where one party only was bound; but there exists no provision in the statute of frauds to prevent the execution of such an agreement." He then cites, with ap- probation, what was said by Sir J. Mansfield, in Allen v. Bennet. I have thought, and have often intimated, that the weight of argument was in favour of the construction that the agreement concern- ing lands, to be enforced in equity, should be mutually binding, and that the one party ought not to be at liberty to enforce, at his' pleasure, an agreement which the other was not entitled to claim. It appears to be set- tled (Hawkins v. Holmes, 1 P. Wms. 770), that though the plaintifC has signed the agreement, he never can enforce it against the party who has nqt signed it. The reme- dy, therefore, in such case, is not mutual. But, notwithstanding this objection, it ap- pears from the review of the cases, that the point is too well settled to be now questioned. There is a slight variation in the statute respecting agreements concerning the sale of lands, and agreements concerning the sale of chattels, in as much as the one section (being the fourth section of the English, and the eleventh section of our statute,) speaks of the party, and the other section (being the seventeenth of the Enghsh, and the flf- .teenth of ours,) speaks of the parties to be charged. But I do not find from the cases that this variation has produced any differ- ence in the decisions. The construction, as to the point under consideration, has been uniformly the same in both cases. Glason, who signed the agreement, and is the party sought to be charged, is then, ac- cording to the authorities, bound by the agreement, and he cannot set up the statute in bar. But I do not deem it absolutely nec- essary to place the cause on this ground, though as the question was raised and dis- cussed, I thought it would be useful to ad- vert to the most material cases, and to trace the doctrine through the course of authority. In my opinion, the objection itself is not well founded in point of fact. The names of Bailey & Voorhees are as much in the memorandum as that of Clasoh. The words are, . "Bought for Isaac Olason, of Bailey & Yoorhees, 3,000 bushels," &c.; and how came their names to be inserted? Most undoubtedly they were inserted by their di- rection and consent, and so it appears by the special verdict. The jury find, that when the bargain was closed, Townsend, the agent of Olason, did, at the time, and in their pres- ence, write the memorandum; and if so, were not their names inserted by their con- sent? Was not Townsend their agent for that purpose? If they had not assented to the memorandum, they should have spoken. But they did assent, for the memorandum was made to reduce the bargain to writing in their presence, at the time it was closed. It was, therefore, as much their memoran- dum as if they had written it themselves. Townsend was, so far, the acknowledged agent of both parties. The auctioneer who takes down the name of the bviyer, when he bids, is quoad hoc his agent. Emmerson v. Heelis, 2 Taunt. 38. The contract was, then, in judgment of law, reduced to writing, and signed by both parties, and it appears to me to be as unjust as it is illegal, for Clason, or his representatives, to get rid of so fair a bargain, on so groundless a pretext. 2. The remaining objection is, that the memorandum was made with a lead pencil. The statute requires a writing. It does not undertake to define with what instrument, or with what material the contract shall be written. It only requires it to be in writing, and signed, &c.; the verdict here finds that the memorandum was written, but it pro- ceeds further, and tells us with what instru- ment it was written, viz. with a lead pencil. But what have we to do with the kind of in- strument which tlie parties employed, when we find all that the statute required, viz. a memorandum of the contract in writing, to- gether with the names of the parties? To write is to express our ideas by letters visible to the eye. The mode or manner of impressing those letters is no part of the substance or definition of writing. A pencil is an instrument with which we write with- out ink. The ancients understood alpha- betic writing as well as we do, but it is cer- tain that the use of paper, pen, and ink, was, for a long time, unknown to them. In the days of Job they wrote upon lead with an iron pen. The ancients used to write upon hard substances, as stones, metals, ivory, wood, i"tc. with a style or iron instrument. The next improvement was writing upon waxed tables; until, at last, paper and parch- ment were adopted; when the use of the calamus or reed was introduced. The com- mon law has gone so far to regulate writ- ings, as to make it necessary that a deed should be written on paper or parchment, and not on wood or stone. This was for the sake of durability and safety; and this is all the regulation that the law has prescrib- ed. The instrument, or the material by which letters were to be impressed on paper or parchment, has never yet been defined. This has been left to be governed by public convenience and usage; and as far as ques- tions have arisen on this subject, the courts have, with great latitude and liberality, left the parties to their own discretion. It has. accordingly, been admitted (2 Bl. Comm. 297; 2 Bos. & P. 238; 3 Esp. 180), that printing was writing, within the statute, and (2 Brown, Oh. 585) that stamping was equivalent to signing, and (8 Ves. 175) that making a mark 284 EQUITABLE REMEDIES. was subscribing within the act. I do not find any case in the courts of common law in which the very point now before us has been decided, viz. whether writing with a lead pencil was sufficient; but there are sev- eral cases in which such writings were pro- duced, and no objection talsen. The courts have impliedly admitted that writing with such an instrument, without the use of any liquid, was valid. Thus in a case in Comyn (page 451), the counsel cited the case of Jjoveday v. Claridge, in 1730, where Love- day, intending to make his will, pulled a pa- per out of his pocket, wrote some things down with ink, and some with a pencil, and it was held a good will. But we have a more full and authentic authority in a late case decided at doctors commons (Rymes v. Clark- son, 1 Phillim. Ecc. Judgm. 22), where the very question arose on the validity of a codi- cil written with a pencil. It was a point over which the prerogative court had com- plete jurisdiction, and one objection taken to the codicil was the material with which it was written, but it was contended, on the other side, that a man might write his will with any material he pleased, quocunque modo velit, quocunque modo possit, and it was ruled by Sir John Nicholl, that a will or codicil written in pencil was valid in law. The statute of frauds, in respect to such contracts as the one before us, did not re- quire any formal and solemn instrument. It only required a note or memorandum, which Imports an informal writing done on the spot. In the moment and hurry and tu- mult of commercial business. A lead pencil is generally the most accessible and conven- ient instrument of writing, on such occasions, and I see no good reason why we should wish to put an interdict on all memoranda written with a pencil. I am persuaded It would be attended with much inconvenience, and af- ford more opportunities and temptation to parties to break faith with each other, than by allowing the writing with a pencil to stand. It is no doubt very much in use. The courts have frequently seen such papers be- fore them, and have always assumed them to be valid. This is a sanction not to be dis- regarded. I am, accordingly, of opinion that the judg- ment of the supreme court ought to be af- firmed. This was the opinion of the court, ELMEN- DOKP and LIVINGSTON, Senators, dissent- ing. It was thereupon ordered, adjudged, and decreed, that the judgment of the supreme court be, in all things, affirmed, and that the defendants recover from the plaintiffs their double costs, to be taxed, and that the rec- ord be remitted, etc. Judgment affirmed. EQUITABLE KEMEDiES. 285 L.A5IB V. HINMAN et al. (8 N. W. 709, 46 Mich. 112.) Supreme Court of Blichigan. April 27, ISSl. Appeal from Berrien. , Edward Bacon, for complainant. Henry F. Severeus, for defendants. COOLEY, J. Specific performance Is pray- ed in this case of an oral contract alleged to have been made by complainant with Hugh Lamb, his father, now deceased. The defend- ants are the administrator and heirs at law of Hugh Lamb. The case made by the bill is that ou or about October 12, 1S72, Hugh Lamb owned a certain SO-acre lot of laud In the township of \^'arsaw, of the value of .about ?2,40a, upon which he lived alone; that he was then 72 years of age, and very infirm; that among his infirmities was an ungovern- able temper which rendered it diSicult for others to live with him; that he had been let- ting his land on shares and had not succeeded well in so doing; that he had no team, little live stock and few farming utensils; that complainant was then a married man, living with his wife and two children about a mile from his father; that his father weut to see him, and after talking over his affairs and cir- cumstances, entered into a verbal agreement with him in substance and effect, as follows: On the part of eomp'ainant it was agreed that as soon as suitable preparations could be made, complainant with his wife and family •should remove to his father's dwelling-house on the land aforesaid, and live with him dur- ing the remainder of his life, and should give him suitable care and attention, and should farm the land, rendering to his father annual- ly two-fifths of all the wheat and one-half of all the corn raised on the land, all to be de- livered on the land, the wheat in the half l)ushel and the corn in the shock or row; that complainant should furnish the seed, farming utensils and team for use on the farm, and supply his father with suitable board, lodging, washing and mending, and on the part of said Hugh Lamb it was agreed that he should pay annually to complainant $75, and let com- plainant have the south 40 acres of the land and give him a good and sufficient deed there- of; that this agreement was fully performed on his part to the satisfaction of his father; that complainant took possession of the south 40 as his own in .July, 1873, and has since cul- tivated and improved the same; that his fath- er often premised to give complainant a deed of said south 40, but neglected to do so, and died without having given a deed, in Sep- tember, 1878, and that since his death the heirs at law and the administrator appointed to settle his estate refuse to recognize and per- form the agreement; wherefore complainant prays the aid of the court. The defendant answered, denying that Hugh Lamb ever made such an agreement, and the case was brought to a hearing on pleadings ■and proofs. We are convinced by the proofs that a contract substantially aS set up in the bill was made by the parties, and that com- plainant has strong equities in his favor which should be recognized if no inflexible rules of law forbid. The evidence that proves, the cjn- tract di?closes little diserep.incies in the un- derstanding of particulars, but not such as to make us doubt the parties having agreed up- on the terms of an arrangement as complain- ant now describes them. If there is any doubt as to the precise terms of the contract, it concerns the time when the deed was to be given. The complainant seems to have expected his father would give him a deed without any great delay; but the agreement fixed no tims; and as the re- tention of the title constituted the father's se- curity for the performance by complainant, it was not unnatural that he should delay put- ting the security out of his hands. If the con- tract had been in writing, Hugh Lamb would have had the legal right to decline to part with the title so long as he lived; and it is no reason for declming specific performance of the oral contract that complainant had ex- pected his father would so far confide in him as to make the deed in person instead of leav- ing it to be made by his heirs. We think, therefore, that so far as proof of the contract is concerned, the case is sufficiently made out to answer the requirements of casts relied up- on by defendants. Case v. Eelers, 20 Mich. 29S; Wright v. Wright, 31 Jlich. 380. But it is said there has been no such part performance as can take the case out of the statute of frauds. The most important act of part performance was the taking possession of the land, occupying and cultivating it dur- ing the father's life. But this it is said was not in fact the complainant's possession, but the possession of the father; so that on this branch of the case there is substantial failure to make out any recognizable equity. The reason why taking possession under an oral contract is recognized as a ground for specific performance when payment of the purchase price is not, is that in one case there is no standard for the estimate of damages when the contract is repudiated, and in the other there is a standard that is definite and cer- tain. A purchaser who takes possession of land under an oral purchase is likely in so doing to change very consi(lerabl.y— perhaps Avholly— the general course of his life as pre- viously planned by him; and if he is evicted on a repudiation of the contract, any esti- mate of his loss by others must in many cases be mere guess-work. Tlie rule, therefore, rests upon the element of uncertainty, and not upon any technical ground of exclusiveness in the possession. And upon this looint no caseon its equities could be plainer than this. Com- plainant abandoned one home and made a new one in reliance upon the oral contract; occupied the land bargained for and cultivated it for six years in confidence that the con- tract would be performed; and it is not too much to say that the whole course of his sub- 286 EQUITABLE KEMEDIES. sequent life was probably changed in conse- quence. To deny relief under such circum- stances for no other reason than that he did not occupy exclusively, would be to make the whole case turn upon a point in itself unim- portant as affecting the real equities. The case is within Kinyon v. Young, 44 Mich. 339, 6 N. W. 835. The decree of the court of chancery was in favor of complainant, and it must be affirmed with coste. The other justices concm-red. EQUITABLE REiMEDIES. 287 MADDISON V. ALDERSON. (L. R. 8 App. Cas. 4G7.)i House of Lords. June 4, 18S3. Rigby, Q. C, and W. D. Rawlins,, for appellant. Davey, Q. C, and Gainsford Bruce, foi" respondent. SELBORNB, 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 IGth of December, 1877. She originally entered his service in 184"), and, having become his housekeeper some years before 18G0, 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 estate of Moulton, in Yorkshire, called the "Manor House Farm," in extent about ninety-two acres, and in value about fl37 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 necessai-y 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 must 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 tli» appellant's counsel, and without objectioii from the respondent) was left by Mr. .lust- ice Stephen to the jury was "whether the defendant was induced to serve Thomas Al- derson as his housekeeper without wages for many years, and to give up otner 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 th<= verdict proceed- ed was that of the appellant herself, with- 1 Irrelevant parts omitted. out any coi-roboration 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. 1800, £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, wliich 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, orto 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 GifC. 592, decided by Vice Chancellor Stuart (uLder circumstan- ces not dissimilar) on the doctrine of repre- sentation, for which purpose the vice chan- cellor relied upon some expressions used by Loi'd 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 288 EQUITABLE REMEDIES. Lord Brouffliam for the later decision of tliis 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 liave been decided in Jorden v. Money, 5 H. L. Cas. 18.5, that the doctrine 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 cares as Prole v. Soady, 2 Gift. 1, and Pig- gott V. Stratton, 1 De Gex., P. & J. 33. Ham- mersley v. De Biol, 12 Clark & E'. 45, was a case of contract for valuable considera- tion, duly signed, so as to fulfill the require- ments of the statute of fi'auds, in the view both of Lords Langdale and Cottenham in chancery, and of Lord Campbell in the house of lords. 12 Clark & F. IJ3, G4, 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 LofCus v. Maw, 3 Gift. 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 Avords 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 liy the party t6 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 Cotteuliam (see I-Iam- mersley v. De Biel, 12 Clark & F. 64, note, and Lassenco 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 tlie 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, G02, 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 Ellenborough, "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 conseiiuences 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- EQUJTABLE REMEDIES. 289 ings) npon 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 taliing the contract into account. The matter has advanced beyond the stage of contiact; 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 bean 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 eiTors, 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, who?e 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-j 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 "final 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." But 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- SHBP.EQ.JUK.— 19 tant, on the part of the obligee, known to and permitted by the obligor to talie 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 Iledesdale, in Clinan v. Cooke, 1 Schoales & L. 22, and Bond v. Hopkins, Id. 483, 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. 3G3,— deeidad in 1G83 and 1085, 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 'N'ern. 303, 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 fame land from the vendor, the defendant having paid his purchase-money imder a signed agree- ment, and having obtained a conveyance of the legal estate. Lord Guilford "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 can-ied into execution." Sir ,Tohn Strange, 1 Yes. 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, 290 EQUITA13LE BEiMEDIES. 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. 58G, 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 pui'chase-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) Finch, Free. 5C1, 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. 358; Britain v. Itossiter, 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 ijurchase-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. .Tones, 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, 3S1), 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, fs not in general admitted ta 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 bo purchase-money. The fraud, in a moral point of view, may be as great in the one case as in the other, but in the latter cases the court does not in general give- relief." See, also, Britain v. Rossiter, II (). 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 bean (a most, 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. Exann)les of circumstances which have been held insufficient for this purpose are found in (1) v^^lerk v. Wright, 1 Atk. 13, and Whaley v. Bagnel, 1 Brown, Pari. Cas. 343, where acts preparatory to the completion of a contract were held not to be part perfomi- ance; (2) Wills v. Stradling, 3 ^'es. 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 purcliase 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 tlie 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 EQUITABLE ItEMEDIES. 291 land. It was explicable, -without supposing any such new contract, as easily as the con- tiniiance 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. Tliompson, 2 Cox, Ch. 27) a con- dition precedent without the fulfillment of which the promise wliich the .iury found to have been made by Thomas Alderson could not on his part become a biuding 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: AX'alker v. Walker, 2 Atk. 9i, and Parker v. Smith, 1 Colly. 608. In Walker v. Walker, 2 Atk. 98, Lord Hardi-sicke did not execute any parol con- tract on the ground of part performance, or otherwise; all that he did was to relieve Iho defendant from a liability which the plaintiff's conduct had made it inequitable to enforce. There had been a parol agi-ee- 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. suiTendered his copyhold according- ly, charged with the annuities, and died. B. did not s'urrender; but besought, nevertheless, by his bill, to enforce payment of the an- nuities against C. Lord Hardw;cke 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. unconsclentiously 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 30lh of November, 1842; but the siijjposed acts of part performance were 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. 008, 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 salutai-y limits within which it has hithertb 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. 292 EQUITABLE llEMEDIES. HENDRICKSON r. HINCKLEY. (17 How. 443.) Supreme Court of the United States. Dec. Term, 1854. The facts are stated In the opmion of the court. Mr. Hart, for appellant. Mr. Mills, contra. CUKTIS, J., delivered the opinion of the comt. The complainant filed his hill 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. Eobbins, 14 How. 584. The ajjplication of this rule to the case stated in the bill leav^ 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 dunng any considerable part of that period of time, did not olfer 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 ilso, 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- bell, containing admissions adverse to the defence, were read in evidence to the jury; and the bill avers that Campbell was not truly infonned 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 sui-prised. To this there are two answers, either of which is sufHcient. 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 wliat admissions CamiDbell had made, he might, and with the vise 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 tnal, 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 Camjihell had against the said Hincltley, 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 vinliqui- 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 EQUITABLE REMEDIES. 293 an original jurisdiction In cases of set-off, and that this jurisdiction is not talien away by tlie , statutes of set-ofC, which have given the right at law. This may be admitted, though it has been found exceedingly ditficult to determine wliat was the original jurisdic- tion in equity over this subject. 2 Story, Eq. 65G, 664. But whatever may have been its exact limits, there can be no doubt that a party sued at law has his e" action to set off hi? claim, or resort to his separate action. And if he deliberately elects the last, he cannot come into a court of equity and asli 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 eoTyt 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 com't helow is affirmed. 2P4 EQUITABLE REMEDIES. WM. ROGERS MANUF'G CO. v. ROGERS. (20 Atl. 467, 58 Conn. 356.) Supreme Court of Errors of Connecticut. Feb. 17, 1890. Appt-al from superior court, Hartford county; Fenx, Judge. This was a suit to enjoin the violation of a contract between Franli W. Rogers and tlie Win. Rogers Manufacturing Com- pany and tlie Rogers Cutlery Company a' follows: "(1) That said companies will employ said Rogers in tlie business to lit done by said companies, according to the Btipulations of said agreement, for the pe- riod of twenty-flve years therein named, if said Rogers shall so long live and dis- charge the duties devolved upon him b.y said Watrous as general agent and man- ager of the business to be done in common by said companies, under the d.rectioii.s and to the satisfactioli 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 proinot'-' (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 may be 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 reriiainder 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 olherwise as may he agreed upon between hiin and said general agent. " The complaint was held insufficient, and the plaintiffs appealed. F. Chawberlin and E. S. White, for ap- pellants. C. 11. Ing-arsoU and F. L. Huu- gerford, for appellee. ANDREWS, C.J. Contracts forpersonal service are matters for courts of law, and equity will not undertake a speciflc per- formance. 2 Kent, C'onim. ;io8, note b; Hamblin v.Dinnetord,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 bj' 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: Be Pol v. Sohlke, 7 Rob. (N. Y.)2.S0; Keinble V. Kean, 6 Sim. 3.:i3; 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 per.?onal services oracts, 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 injui'ed party adequate compensa- tion in damages, while the loss of serv- ices of the latter class can be adequalely compensated by an action for damages. 2 Story, Eq.Jur. § 9nS.i ; 3 Wait, Act. & Def. 754; 3Pom.Eq. Jur. § 1343: California Bank v. Fresno Canal, etc., Co. ,53 Cal.2l)l ; Singer Sewing-MachineCo, v. Union Button- Hole Co., 1 Holmes, 2.33, Luniley 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. 1S9. 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 be devolved upon him bythegen- 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 hiiu, including also any duties as secretary or otherofflcerof either or both of said companies as said compa- nies may desire to have him perform." These services, while they may not be ma- 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 plaintitls, however, insist that the negative part of the contract, by which EQUITABLE UEMEDIES. 295 the defendant stipulated and agreed that he would not be eiigaged ia or allow Bis 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 informatirm and belief, that the defendant is planning with certain of their competitors to engage with them in bu.siness.with the intent and purpose of allowing his name to be used or employed in connection with such business as a stamp on the ware manufactured; and they say such use would cio them great and irreparable injury. It the plain- tiffs owned the name of the defendant as a trade-mark, they could havenodilficulty 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 thry 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 plaintiffs manufacture is of no more value than the nam,e8 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 jjlaintiffs 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 extrani ous facts the nameof thedcfend- 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 n.nst 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 (iny 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 divulge. Peabody v. iNor- folk,98Mass 4.52. There is no errorin the judgment of the superiorcourt. The other indges concurred. 296 EQUITAHLE REMEDIES. WHITWOOD CHEMICAL CO. v. HARDMAN. ([1891] 2 Ch. 416.) Chancery Division. March 2, 1891. By an agreement dated the 2.jth of Sep- tember, 1885, between the plaintiffs and the defendant, it was provided that the defend- ant, a manufacturing chemist, should be the manager of the plaintiffs' works at Nor- manton for five years, at a salary of £300 per annum, with a commission of 7% per cent, on the dividends; and it v.as further provided that the defendant should give due diligence to the performance of his duties, conduct himself with propriety, and conform to the reasonable requirements of the board of directors. The agreement contained no provision as to exclusive service or in re- striction of the defendant's employment at the end of the term. By an agreement dated the 24th of July,' 1889, it was agreed that the defendant should be manager for the remainder of an extended term of 10 years from September, 1885, at the same salary, and with the same commission. Tbis agreement contained the following clause: "The said manager shall give the whole of his time to the company's business. He shall give due diligence to the performance of his duties, and shall con- form to the reasonable requirements of the board of directors; and he shall reside with- in two miles from the company's said works." The agreement contained no nega- tive contract by the defendant. The plaintiffs were incorporated in 1883 for the purpose of working a license dated the 25th of September, 1885, from Hard- man's Patent Carbonization Process Com- pany, Limited, under letters patent for im- provements in the carbonization of coal and coal shale, and in the treatment of coal gas for obtaining benzole, solvent naphtha, and other products. Hardman, the patentee, was the defendant's brother. The license granted an exclusive right to work the patent within an area of 10 miles from the company's works at Normanton. One of the directors of the plaintiff com- pany stated in an affidavit that it had re- cently come to the knowledge of the com- pany that the defendant was In communi- cation with a firm of colliery proprietors, whose colliery was distant about a mile from the company's works, with a view to setting up a rival establishment at or near the col- liery for carbonizing coal, in which the de- fendant was to invest a large sum of capital, and to be a director. It was proved that the defendant had written to one of the direct- ors that it was practically impossible for him to work any longer with the company, and that for the benefit of both parties it would be advisable 'that the agreement should be canceled, and .that he was willing to leave at once, or at a month, or at the end of the half year terminating on the 31st of March, 1891; and also that he had wrlt- teft to another of the directors that he had "decided to instruct a new company" about to be formed for carbonizing coal, and like- wise to assume the position of a director, and take up one-third of the capital thereof. It was alleged that the defendant had had special opportunities of mastering all the details of the patent processes and their suc- cessful application, both in the service of the patentee himself, and in that of the plaintiff company, and by the use of their property and resources. The defendant ad- mitted that he had been actively engager" in forming a company to work the proposed new business, but stated that the plaintiffs' process was widely known, and that he him- self had gained his own skill, knowledge, and experience while with his brother, the patentee; and that he had learned nothing whatever whilst with the plaintiffs regard- ing the patent, and the working thereof, which he did not know before. The plaintiffs brought this action, and claimed an injunction to restrain the de- fendant from setting up any business, or en- tering into any agreement, or making any engagement with any person or company other than the plaintiffs, by which the whole of the defendant's time would cease to be devoted to the business of the plain- tiffs, or by which the defendant would be prevented from carrying out the agreement of the 24th of July, 1889, and in particular from assisting in the formation of, and from becoming a director, manager, or agent of any company or partnership then or there- after to be formed for the purpose of car- rying on a similar business and manufac- ture to those carried on by the plaintiffs during the residue of the term specified in the agreement. The plaintiffs then moved for an injunction in the terms of their claim until the hearing of the action or further order. The motion was heard before Mr. Justice KEKEWICH on the 6th of February, 1891. Mr. Warmlngton, Q. C., and Mr. Dibdin, for plaintiffs. Mr. Marten, Q. C, and Archi- bald Brown, for defendant. KEKEWICH, J. Under these two agree- ments of the 25th of September, 1885, and the 24th of July, 1889, read together, the de- fendant is engaged and bound to serve the plaintiffs for a period of ten years at a sal- ary of £300 and a commission of 714 per cent, on the profits; and he is bound during the term of his employment to give the whole of his time to the company's business. On these two agreements, and the facts as proved by the affidavits, two questions have been raised: First, it is said on behalf of the defendant that he is now entirely free from that engagement; that he may, if he pleases, quit the company's employment, and that, if he does, he will not be liable to EQUITABLE REMEDIES. 297 an action for damages; that he is only con- tinuing the employment for the convenience of the company, and not because he in any way desires to do so. That may turn out to be a question of some difficulty; but I am unwilling, and I think it is unnecessary, to decide it finally now, because I do not think I have before me all the materials which would, be required for a final decision; and I am not prepared to say that a master may not so behave to a servant— or, to prevent misunderstanding, an employer to an em- ploye—in such a way as to justify the em- ploys in breaking his engagement. The em- ployer may refuse to admit him into his works; he may decline to allow him to work when he goes there; he may treat him with an entire want of confidence; he may use such language to him as to make it impossi- ble, as Mr. Jlarten said, for a man with any proper self-respect to stay there. And there may be extreme cases in which the employe would be entitled to say to his employer, "You have yourself broken the contract, and you cannot sue me." That there may be many cases in which a jury would give mere- ly nominal damages cannot, I think, be doubted. But I will go further. I think there may be cases in which the court would hold that the action would not lie; that there was no question of fact to be submitted to the jury. But I am not satis- fied that anything of that kind appears here. I thinlt, if the defendant is hereafter ad- vised to raise that question, that must be raised in a proper way on a full investiga- tion of the facts. I do not think the affi- davits here, standing alone, disclose such a cass; and, without going further, I think I should be wijong in saying that the defend- ant is entitled to defeat the motion on the ground that he is either no longer the servant of the company or is in such a position that he may determine his service to-morrow, in which case, of course, an injunction would be useless, because he has only to give the whole of his time to the company's business while he remains as manager. The other argument is that there ought not to be any injunction to restrain the defend- ant, even though he may be doing something which contravenes the covenant into which he has entered. It is common knowledge that a covenant of this kind is not enforce- able, in the sense that specific performance cannot be decreed; and that proceeds, not only on cases and on law, but on common sense. It would be quite Impossible to make a man work, and therefore the court never attempts to do it. But a covenant is en- forceable in another sense, namely, that, so long as it has not been determined, and is not immediately determinable, it can be made the ground of an action for damages; and it is therefore binding upon the party, and can be enforced in that way. And the court of chancery has, over and over again, in a large variety of cases, enforced a contract where it has found an exclusive term; that is to say, where the employe has bound him- self not to do that which is inconsistent with the terms of his engagement. There are the common cases of the ordinary trade servant, such as the milkman, who engages, either during his period of service or for a certain number of years afterwards, not to engage with any one else within a particular limited, radius. There are also cases, of which Lum- ley v. Wagner, 1 De Gex, M. & G. 604, is a well-known example, where the employe is an artist, having special knowledge, special powers, or special abilities, which he or she has engaged to give up and use for the ben- efit of the employer. That is the foundation of such cases as Lumley v. Wagner. It is because the defendant in a case of that kind is an artist who cannot easily be replaced that such an action is brought. And that is easily illustrated by what Lord Justice Knight Bruce said in the case of Johnson v. Railway Co., 3 De Gex, M. & G. 914, where he states (3 De Gex, M. & G. 92G) the im- possibility of enforcing contracts between a man and his valet, or coachman or cook, who, however excellent they may be in their par- ticular capacities, can be replaced; and on the very next page of the report the lord jus- tice expresses his satisfaction that Lumley v. Wagner, 1 De Gex, M. & G. 604, was decided, in the way in which it was. He does not draw the distinction in so many words be- tween the domestic servant on the one hand and the German singer on the other; but the way in which he places them in contradis- tinction shows, I think, very clearly what was passing in his mind. Now, here I have a man whom, from his- own statements and the other affidavits be- fore me, I must take to be a man who has special knowledge of this special business; and if he has contracted in elfect not to give time to others, but to give his time and Ms- powers to this particular company, the case seems to me to be quite as much within the authority of the case of Lumley v. Wagner as that of any singer or other artist. Has he contracted to do this? He has contracted, to give, during the period of time which l! have mentioned, the whole of his time to the) company's business. The negative seems ton me not to be implied, but to be expressed.! Though the covenant is in the positive and! not in the negative form, still it is no less? negative because it is in that positive form;.; and I think I should be doing injustice to the ordinary constniction of the English lan- guage if I failed to see in that covenant on his part anything but a covenant that he will not give his powers and his strength of body and mind to another business. And I have no doubt at all from the alHdavits that that is what he is threatening and intending to do. There are passages which have been read to me from the aflidavits, and which I have noticed, in which he speaks about employ- ment of his time out of office hours, or his- 298 EQUITABLE REMEDIES. "free time." But he fails to tell me how he Is going to do this which he distinctly says he wishes and intends to do, except during the time which certainly may be, if not must be, required for his services to the company. In his letter to one of the directors of the plaintiff company he says he is going to "in- struct a new company," whose objects would be similar to those of the plaintiff company. He says he is going to be a director of that new company, and that he is going to take up a large part of the capital; and the ob- vious meaning of that statement, standing alone, is tliat he intends to give a consider- able portion of his time to that new company. And throughout the letter, except in particu- lar passages, which are relied upon as show- ing a different intention, he shows from his own statements that he does so intend, and that he must, if he fulfills his intentions, de- vote some considerable time to this new com- pany. I certainly do not intend to decide that this gentleman may not, out of his otEce hours, or in his free time, do anything which it pleases him to do which does not interfere with the performance of his duties to the plaintiff company. I am not by any means saying tliat he can, even out of oftii-e hours, and in his free time, assist a rival company in its rivalry; but that question at present •does not arise. He may do much that may be useful to him; he may earn money in oth- er ways in his free time; but what is his free time I cannot, with the materials at present before me, undertake to determine. I think I may, without presuming to know more than a judge may of the world, con- clude that occasionally, at least, if not fre- quently, in business of this character, the y creating a boycott against the cars of the car company; that, to make such boycott ef- fective, they had ah-eady prevented certain of the railroads running out of Chicago from op- erating theirtrains, and were combining to ex- tend such boycott against Pullman sleeping cars by causing strikes among employes of aU railroads attempting to haul the same. It char- ,ged knowledge on the part of the defendants of the necessity of the use of sleeping cars in the operation of the business of the railroads as common carriers, of the contracts for such use between the railroad companies and the car company, of the contracts, laws, and reg- ulations binding the railway companies and the receivers to the carrying of the mails; al- so of the fact that sleeping cars were, and of necessity must be, carried upon the trains of said carriers with cars containing the mails; that with this knowledge they entered into a combination and conspiracy to prevent the railroad companies and the receivers, and each of them, from performing their duties as com- mon carriers of interstate commerce, and in carrying into execution that conspiracy did in- duce various employes of the railway compa- nies to leave the service of the companies, and prevent such companies and the receivers fi'om securing other pei'sons to take their places; that they issued orders, notifications, etc., to the members of the railway union to leave the service of the companies and re- ceivers, and to prevent the companies and re- ceivers from operating their trains; that they had asserted that they could and would tie up, paralyze, and break down any and every of said railway companies and receivers which did not accede to their demands; that, in pur- suance of the instructions, commands, and re- quests of said oflicers, large numbers of the employes of the railway companies and re- ceivers left their service. Then followed these allegations: "And your orator further charges that'said defendants aimed and intended, and do now aim and intend, in and by the said conspiracy and combination, to secure unto themselves the entire control of the interstate, industrial, and commercial business m which the population of the city of Chicago and of the other com- munities along the lines of road of said rail- ways are engaged with each other, and to restrain any and all other persons from any independent control or management of such interstate, industrial, or commercial enter- prises, save according to the will and with the consent of the defendants. "Your orator further avers that in pursuance of said combination and conspu'acy, and to accomplish the purpose thereof as hereinbe- fore set forth, the said defendants Debs, How- ard, Rogers, Keliher, and others, oflicers of said American Railway Union,, issued or caused to be issued the orders and directions as above set forth, and that in obedience of such orders, and in pursuance of said con- spiracy and combination, numerous employes of said railroad companies and receivers unitedly refused to obey the orders of said employers or to perform the usual duties of such service, and many others of such em- ployes quit such service with the common pur- pose and with the result of preventing said railroad companies and receivers from operat- ing their said railroads and from transporting the United States mails, and from carrying on or conducting their duties as common carriers of interstate trafiic. "Your orator further avers that, pursuant to said combination and conspiracy, and under the direction as aforesaid of said officers and EQUITABLE REMEDIES. SG5 directors of said American Railway Union, said other defendants, and other persons whose names are to your orator unknown, proceeded, by collecting together in large num- bers, by threats, intimidation, force, and vio- lence, at the station grounds, yards, and right of way of said railroad companies, respective- ly, in the state of Illinois, to prevent said rail- road companies from employing other persons to fiU the vacancies aforesaid; to compel oth- ers, still employes of said railroad companies, to quit such employment, and to refuse to perform the duties of their service, and to prevent the persons remaining in such service, and ready and willing to perform the duties of the same, from doing so. "Your orator further avers that said de- fendants, in jiursuance of said combination and conspiracy, acting under the direction of said olEcers and directors of said American Railway Union, did with force and violence, at divers times and places, within said state of Illinois and elsewhere, stop, obstruct, and derail and wreck the engines and trains of said railroad comi^anies, both passenger and freight, then and there engaged in interstate commerce and in transporting United States mails, by locking the switches of tlie railroad of said railroad companies, by removing the spikes and rails from the track thereof, by turning switches and displacing and destroy- ing signals, by assaulting and interfering with and disabling the switchmen and other em- ployes of said railroad companies having charge of the signals, switches, and tracks of said companies, and the movement of trains thereon, and in other manners, by force and violence, depriving the employes of said rail- road companies in charge of such trains of the control and management of the same, and by these and other unlawful means attempted to obtain and exercise absolute control and dom- ination over the entire operations of said rail- roads." The bill further set forth that there had become established in the city of Chicago a business conducted under the name of the Union Stock Yards, at which for many years immense numbers of live stock from states and territories beyond the state of Illinois had been received, slaughtered, and convert- ed into food products, and distributed to all quarters of the globe, and that all the large centers of population in the United States were in a great degree dependent upon those stock yards for their food supply of that character; that for the purpose of handling such live stock and the product thereof, the company conducting such business operated certain railroad tracks, and that in pursu- ance of the combination and conspiracy aforesaid the four defendants, officers of the , railway union, issued orders directing all the employ&s handling such railroad tracks to abandon such service. To this was added the following: "And your orator further alleges that, in pursuance of the like combination and un- lawful conspiracy, the said defendants, and SHEP.EQ.JUK.— 20 others combining and conspiring with them, for the purpose of still further restraining and preventing the conduct of such business, have by menaces, threats, and intimidation prevented the employment of other persons to take the place of the employes quitting the service of said company so operating salil Union Stock Yards. "And your orator further charges that by reason of said unlawful combination and conspiracy and the acts and doings afore- said thereunder, the supply of coal and fuel for consumption throughout the different states of the Union, and of grain, bread- stuffs, vegetables, fruits, meats, and other necessaries of life, has been cut off, inter- rupted, and interfered with, and the market therefor made largely unavailable, and deal- ers in all of said various products and the consumers thereof have been greatly injur- ed, and trade and commerce therein among the states has been restrained, obstructed, ,and largely destroyed." The bill alleged that the defendants threat- ened and declared that they would continue to restrain, obstruct, and interfere with in- terstate commerce, as above set forth, and that they "will, if necessary to carry out the said unlawful combination and conspiracy above set forth, tie up and paralyze the oper- ations of every railway in the United States, and the business and industries dependent thereon." Following these allegations was a prayer for an injunction. The bill was verified. On presentation of it to the court an injunc- tion was ordered commanding the defend- ants "and all persons combining and conspir- ing with them, and all other persons whom-, soever, absolutely to desist and refrain from in any way or manner interfering with, hindering, obstructing, or stopping any of the business of any of the following named ! railroads [specifically naming the various roads named in the bill] as common carriers of passengers and freight between or among any states of the United States, and from in any way or manner interfering with, hindering, obstructing, or stopping any mail trains, express trains, or other trains, wheth- er freight or passenger, engaged in inter- state commerce, or carrying passengers or freight between or among the states; and from in any manner interfering with, hinder- ing, or stopping any trains carrying the mail; and from in any manner interfering with, hindering, obstructing, or stopping any en- gines, cars, or rolling stock of any of said companies engaged in interstate commerce, or in connection with the carriage of pas- sengers or freight between oi- among the states; and from in any manner interfering with, injuring, or destroying any of the prop- erty of any of said railroads engaged in, or for the purpose of, or in connection with in- terstate commerce, or the carriage of the mails of the United States, or the transpor- tation of passengers or freight between or among the states; and from entering upon 806 EQUITABLE HEMEDIES. tlie grounds or premises of any of said rail- roads for tlie purpose of interfering witli, hindering, obstructing, or stopping any of said mail trains, passenger or freight trains engaged in interstate commerce, or in the transportation of passengers or freight be- tween or among the states, or for tlie pur- pose of interfering with, injuring, or destroy- ing any of said property so engaged in or used in connection with interstate commerce, or the transportation of passengers or prop- erty between or among the states; and from Injuring or destroying any part of the tracks, roadbed, or road or permanent structures of said railroads; and from injuring, destroy- ing, or in any way interfering with any of the signals or switches of any of said rail- roads; and from displacing or extinguishing any of the signals of .any of said railroads; and from spiking, locking, or in any manner fastening any of the switches of any of said railroads; and from uncoupling or in any way hampering or obstructing the control by any of said railroads of any of the cars, engines, or parts of trains of any of said railroads engaged in interstate commerce or in the transportation' of passengers or freight between or among the states, or engaged in carrying any of the mails of the United States; and from compelling or inducing, or attempting to compel or induce, by threats, intimidation, persuasion, force, or violence, any of the employSs of any of said railroads to refuse or fail to perform any of their duties as employes of any of said railroads in connection with the interstate business or commerce of such railroads or the carriage of the United States mail by such railroads, or the transportation of passengers or prop- erty between or among the states; and from compelling or inducing, or attempting to com- Ijel or induce, by threats, intimidation, force, or violence, any of the employes of any of said railroads who are employed by such rail- roads, and engaged in its service in the con- duct of interstate business or in the opera- tion of any of its trains carrying the mail of the United States, or doing interstate busi- ness, or the transportation of passengers and freight between and among the states, to leave the service of such railroads; and from preventing any person whatever by threats, intimidation, force, or violence from enter- ing the service of any of said railroads, and doing the work thereof, in the carrying of the mails of the United States or the trans- portation of passengers and freight between or among the states; and from doing any act whatever in furtherance of any conspir- acy or combination to restrain either of said railroad companies or receivers in the free and unhindered control and handling of in- tei'State commerce over the lines of said rail- roads, and of transportation of persons and freight between and among the states; and from ordering, directing, aiding, assisting, or abetting in any manner whatever any pei'sou or persons to commit any or either of thaacts aforesaid. "And it Is further ordered that the afore- said injunction and writ of injunction shall be in force and binding upon such of said defendants as are named in said bill from and after the service upon them severally of said writ, by delivering to them severally a copy of said writ, or by reading the same to them, and the service upon them respec- tively of the writ of subpoena herein, and shall be binding upon said defendants, whose names are alleged to be unknown, from and after the service of such writ upon them re- spectively, by the reading of the same to them, or by the publication thereof by post- ing or printing, and, after service of subpoe- na upon any of said defendants named here- in, shall be binding upon said defendants and upon all other persons whatsoever who are not named herein from and after the time when they shall severally have knowl- edge of the entry of such order and the ex- istence of said injunction." This injunction was served upon the de- fendants, at least upon those who are here as petitioners. On July 17th the district attornej' filed in the office of the clerk of said court an information for an attachment against the four defendants, officers of the railway union, and on August 1st, a similar information against the other petitioners. A hearing was had before the circuit court, and on December 14th these petitioners were found guilty of contempt, and sentenced to imprisonment in the county jail for terms varying from three to six months. 64 Fed. 724. Having been committed to jail in pur- suance of this order, they, on January ]4, 1895, applied to this court for a writ of error, and also one of habeas corpus. The former was on January 17th denied, on the ground that the order of the circuit court was not a final judgment or decree. The latter is now to be considered. C. S. Darrow, S. S. Gregory, and Lyman Trumbull, for petitioners. Atty. Gen. OIney, Asst. Atty. Gen. Whitney, and Edwin Walk- er, tor respondents. Mr. Justice BREWER, after stating the facts in the foregoing language, delivered the opinion of the court. The case presented by the bill is this: The United States, finding that the interstate transportation of persons and property, as .well as the carriage of the mails, is forcibly obstructed, and that a combination and con- spiracy exists to subject the control of such transportation to the will of the conspii-ators, applied to one of their courts, sitting as a court of equity, for an injunction to restrain such obstruction and prevent carrying Into effect such conspiracy. Two questions of importance are presented: First. Are the relations of the general government to inter- state commerce and the transportation of the mails such as authorize a direct interference to prevent a forcible obstruction thereof? Second. If authority exists, as authority in governmental affairs implies both power an<:i EQUITABLE REMEDIES. 307 duty, has a court of equity jurisdiction to issue an injunction in aid of tlie performance of sucli duty? 1. What are the relations of the general government to interstate commerce and the transportation of the mails? They are those of direct supervision, control, and manage- ment. While, under the dual system which prevails with us, the powers of government are distributed between the state and the na- tion, and while the latter is properly styled a goveHiment of enumerated powers, yet within the limits of such enumeration it has All the attributes of sovereignty, and, in the «xercise of those enumerated powers, acts directly upon the citizen, and not through the intermediate agency of the state. "The government of the Union, then, is, emphatically and truly, a government of the people. In form and in substance it em- anates from them. Its powers are granted by them, and are to be exercised directly on them, and for their beuetit." "No trace is to be found in the constitution of an intention to create a dependence of the government of the Union on those of the states, for the execution of the great powers assigned to it. Its means are adequate to its ends, and on those means alone was it expected to rely for the accomplishment of its ends. To impose on it the necessity of resorting to means which it cannot control, which another government may furnish or, withhold, would render its course precarious, the result of its measures uncertain, and create a dependence on other governments, which might disappoint its most important designs, and is incompatible with the lan- guage of the constitution." Chief Justice .Marshall in McCuUoch v. State of Maryland, 4 Wheat. 316, 405, 424. "Both the states and the United States ex- isted before the constitution. The people, through that instrument, established a more perfect union by substituting a national gov- ernment, acting, with ample power, directly upon the citizens, instead of the confederate government, which acted with powers, great- ly restricted, only upon the states." Chief Justice Chase in Lane Co. v. Oregon, 7 Wall. 71, 76. "We hold it to be an incontrovertible prin- ciple that the government of the United States may, by means of physical force, ex- ercised through its official agents, execute on every foot of American soil the powers and functions that belong to it. This neces- sarily involves the power to command obe- dience to its laws, and hence the power to keep the peace to that extent." "This power to enforce its laws and to ex- ecute its functions in all places does not derogate from the power of the state to exe- cute Its laws at the same time and in the same places. The one does not exclude the other, except where both cannot be executed at the same time. In that case the words of the constitution itself show which is to yield. 'This constitution, and all laws which shall be made in pursuance thereof, • * * shall be the supreme law of the land.' " Mr. Jus- tice Bradley in Bx parte Siebold, 100 U. S. o71, 305. See, also, The Exchange v. McFaddon, 7 Cranch, 116, 136; Cohens v. Virginia, 6 ^A'heat. 261, 413; Legal Tender Cases, 12 ^Vall. 457, 555; Tennessee v. Davis, 100 U. S. 257; The Chinese Exclusion Case, 130 U. S. 581, 9 Sup. Ct. 623; In re Neagle, 135 U. S. 1, 10 Sup. Ct. 658; Logan v. U. S., 144 U. S. 203, 12 Sup. Ct. 617; Pong Xue Ting v. U. S., 149 U. S. 698, 13 Sup. Ct. lOlG; In re Quai-les, 158 U. S. 532, 15 Sup. Ct. 959. Among the powers expressly given to the national government are the control of in- terstate commerce and the creation and man- agement of a post-offlce system for the na- tion. Article 1, § 8, of the constitution pro- vides that "the congress shall have power: * * •* Third, to regulate commerce with foreign nations and among the several states, and with the Indian tribes. * » » sev- enth, to establish post offices and post roads." Congri.>ss has exercised the power granted in respect to interstate commerce in a varie- ty of legislative acts. Passing by for the pres- ent all that legislation in respect to commerce by water, and considering only that which bears upon railroad interstate transportation (for this is the specific matter involved in this case), these acts may be noticed: First. That of June 15, 1866 (14 Stat. 66), carried into the Revised Statutes as section 52.3S, which pro- vides: "Whereas the constitution of the United States confers upon congress, in express terms, the power to regulate commerce among the several states, to establish post roads, and to raise and support armies: Therefore, be it enacted by the senate and house of representatives of the United States of America in congress assembled, that every railroad company in the United States whose road Is operated by steam, its successors and assigns, be, and Is hereby, authori/pd to carry upon and over its road, boats, bridges, and ferries all passengers, troops, government supplies, mails, freight, and property on their way from any state to an- other state, and to receive compensation therefor, and to connect with roads of otlier states so as to form continuous lines for the transportation of the same to the place of destination." Second. That of March 3, 1873 (17 Stat. 584; Rev. St. §§ 438G-438&), which regulates the transportation of live stock over inter- state railroads. Third. That of May 29. 1884 (chapter 60, § 6, 23 Stat. 32), prohibiting in- terstate transportation by railroads of live stock affected with any contagious or infec- tious disease. Fourth. That of February 4. 1887 (24 Stat. 379), with its amendments of March 2, 1889 (25 Stat. 855), and February 10, 1891 (26 Stat. 743), known as the "Inter- state Commerce Act," by which a commission was created with large powers of regulation and control of interstate commerce by rail- 308 EQUITABLE EEMEDIES. roads, and the sixteenCi section of which act gives to the courts of the United State power to enforce the orclers of the commia sion. Fifth. That of October 1, 1888 (2a Stat. 501), providing for arbitration between railroad interstate com;'auies and their em- ployes. And, sixth, the act of March 2, 1893 (27 Stat. 531), requiring the use of automatic couplers on interstate trains, and empower- ing the interstate commerce commission to enforce its provisions. Under the power vested in congress to es- tablish post offices and post roads, congress has, by a mass of legislation, established the great post-office system of the counti-y, with all its detail of organization, its machineiT for the transaction of business, defining what shall be carried and what not, and the prices of carriage, and also prescribing pen- alties for all offenses against it. Obviously, these powers given to the na- tional government over interstate commerce, and in respect to the transportation of the mails, were not dormant and unused. Con- gress had taken hold of these two matters, and, by various and specific acts, had as- sumed and exercised the powers given to it, and was in the full discharge of its duty to regulate interstate commerce and carry the mails. The validity of such exercise, and the exclusiveness of its control, had been again and again presented to this court for consideration. It is curious to note the fact that, in a large proportion of the cases in respect to interstate commerce brought to this court, the question presented was of the validity of state legislation in its bearings upon Interstate commerce, and the uniform course of decision has been to declare that it Is not within the competency of a state to legislate in such a manner as to obstruct in- terstate commerce. If a state, with its rec- ognized powers of sovereignty, is impotent to obstruct interstate commerce, can it be that any mere voluntary association of indi- viduals within the limits of that state has a power which the state itself does not pos- sess V As, under the constitution, power over In- terstate commerce and the transportation of the mails is vested In the national govern- ment, and congress, by virtue of such grant, has assumed actual and direct control, it fol- lows that the national government may pre- vent any unlawful and forcible interference therewith. But how shall this be accom- plifrhedV Doubtless, it is within the compe- tency of congress to prescribe by legislation that any interferences with these matters shall be offenses against the United States, and prosecuted and punished by indictment In the proper courts. But is that the only remedy? Have the vast interests of the na- tion in interstate commerce, and in the trans- portation of the mails, no other protection than lies in the possible punishment of those who interfere with it? To ask the question is to answer it. By article 3, § 2, cl. 3, of fie federal con.=titution, i* is provided: "The trial of all crimes except in cases of Im- peachment shall be by jury; and such trial shall be held in the state where the said crime shall have been committed." If all the inhabitants of a state, or even a great body of them, should combine to obstruct Interstate commerce or the transportation of the mails, prosecutions for such offenses had In such a community would be doomed in advance to failure. And if the certainty of such failure was known, and the national government had no other way to enforce the freedom of interstate commerce and the transportation of the mails than by prosecu- tion and punishment for interference there- with, the whole Interests of the nation in these respects would be at the absolute mercy of a portion of the inhabitants of that single state. But there is no such impotency in the na- tional government. The entire strength of the nation may be used to enforce in any part of the land the full and free exercise of all national powers and the security of all rights intrusted by the constitution to Its cai-e. The strong arm of the national gov- ernment may be put foith to brush away all obstructions to the freedom of interstate commerce or the transportation of the mails. If the emergency arises, the army of the na- tion, and all its militia, are at the service of the nation, to compel obedience to its laws. But, passing to the second question, is there no other alternative than the use of force on the part of the executive authorities whenever obstructions, arise to the freedom of interstate commerce or the transportation of the mails? Is the army the only instru- ment by which rights of the public can be enforced, and the peace of the nation pre- served? Grant that any public nuisance may be forcibly abated, either at the in- stance of the authorities, or by any individ- ual suffering private damage therefrom. The existence of this right of forcible abate- ment is not inconsistent with, nor does it destroy, the right of appeal, in an orderly way, to the courts for a judicial determina- tion, and an exercise of their powers, by writ of injunction and otherwise, to ac- complish the same result. In Borough of Stamford v. Stamford Horse R. Co., 56 Conn. 381, 15 Atl. 749, an injunction was asked by the borough to restrain the company from laying down its track In a street of the bor- ough. The right of the borough to forcibly remove the track was insisted upon as a ground for questioning the jurisdiction of a court of equity, but the court sustained the injunction, adding: "And none the less so because of Its right to remove the track by force. As a rule, injunctions are denied to those who have adequate remedy at law. Where the choice is between the ordinary and the extraordinary processes of law, and the former are sufficient, the rule will not permit the use of the latter. In some cases of nuisance, and in some cases of trespass, the law permits an individual to abate the EQUITABLE REMEDIES. 309 one and prevent the other by force, because such permission is necessary to the complete protection of property and person. When the choice is between redress or prevention of injury by force and by peaceful process, the law is well pleased if the individual will consent to waive his right to the use of force, and await its action. Therefore, as between force and the extraordinary writ of injunction, the rule will permit the latter." So, in the case before us, the right to use force does not exclude the right of appeal to the courts for a judicial determination, and for the exercise of all their powers of pre- vention. Indeed, it is more to the praise than to the blame of the governmem that, instead of determining for itself questions of right and wrong on the part of these peti- tioners and their associates, and enforcing that determination by the club of the police- man and the bayonet of the soldier, it sub- mitted all those questions to the peaceful determination of judicial tribunals, and in- voked their consideration and judgment as to the measure of its rights and powers, and the correlative obligations of those against whom it made complaint. And it is equally to the credit of the latter that the judgment of those tribunals was by the great body of them respected, and the troubles which threatened so much disaster terminated. Neither can it be doubted that the govern- ment has such an interest in the subject- ' matter as enables it to appear as party plain- tiff in this suit. It is said that equity only interferes for the protection of property, and that the government has no property inter- '. est A sufficient reply is that the United States have a property in the mails, the pro- tection of which was one of the purposes of , tills bill. Searight v. Stokes, 3 How. 151, 'arose uiDon a compact between the United States and the state of Pennsylvania in re- spect to the Cumberland road, which provid- ed, among other things, "that no toll shall be received or collected for the passage of any wagon or carriage laden witli the prop- erty of the United States"; the question be- ing whether a carriage employed in trans- porting the mails of the United States was one "laden with the property of the United States," and it was held that it was, the court, by Chief Justice Taney, saying: "The United States have unquestionably a prop- erty in the mails. They are not mere com- mon carriers, but a government, performing a high official duty in holding and guarding its own property as well as that of its citi- zens committed to its care; for a very large portion of the letters and packages convey- ed on this road, especially during the session of congress, consists of communications to or from the officers of the executive depart- ments, or members of the legislature, on public service, or in relation to matters of public concern. » * * We think that a carriage, whenever it is carrying the mail, Is laden with the property of the United States, within the true meaning of the com- pact." We do not care to place our decision upon this ground alone. Every government, in- trusted by the very terms of its being with powers and duties to be exercised and dis- charged for the general welfare, has a right to apply to its own courts for any proper assistance in the exercise of the one and the discharge of the other, and it is no sufQcient answer to its appeal to one of those courts that it has no pecuniary interest in the mat- ter. The obligations which it is under to promote the interest of all and to prevent the wrongdoing of one, resulting in injury to the general welfare, is often of itself suffi- cient to give it a standing in court. This proposition in some of its relations has here- tofore received the sanction of this court. In U. S. V. San Jacinto Tin Co., 125 U. S. 273; 8 Sup. Ct. 850, was presented an application of the United States to cancel and annul a patent for land on the ground that it was ob- tained by fraud or mistake. The right of the United States to maintain such a suit was affirmed, though it was held that if the controversy was really one only between in- dividuals in respect to their claims to prop- erty the government ought not to be per- mitted to interfere, the court saying: "If it be a question of property, a case must be made in which the court can afford a remedy in regard to that property; if it be a question of fraud which would render the instrument void, the fraud must operate to tlie prejudice of the United States; and if it is apparent that the suit is brought for the benefit of some third party, and that the United States has no pecuniary interest in the remedy sought, and is under no obligation to the party who will be benefited to sustain an ac- tion for his use; in short, if there does not appear any obligation on the part of the United States to the public or to any indi- vidual, or any interest of its own, — it can no more sustain such an action than any private person could under similar circumstances." This language was relied upon in the sub- sequent case of U. S. v. American Bell Tel. Co., 128 U. S. 315, 9 Sup. Ct. 90, which was a suit brought by the United States to set aside a patent for an invention on the ground that it had been obtained by fraud or mis- take, and it was claimed that the United States, having no pecuniary interest in the subject-matter of the suit, could not be heard to question the validity of the patent. But this contention was oveiTuled, the court say- ing, in response to this argument, after quot- ing the foregoing language from the San Ja- cinto Case: "This language is constraed by counsel for the appellee in this case to limit the relief granted at the instance of the Unit- ed States to cases in which it has a direct pecuniary interest. But it is not susceptible of such construction. It was evidently in the mind of the court that the case before it was one where the prcpcily right to the land in 310 EQUITABLE EEMEDIES. controversy was the matter of importance, but it was careful to say that the cases in which the instrumentality of tlie court cannot thus he used are those where the United States has no pecuniary interest in the remedy sought, and is also under no obliga- tion to the party who will be benefited to "sustain an action for his use, and also whore it does not appear that any obligation existed on the part of the United States to the public or to any individual. The essence of the right of the United States to interfere in the present case is its obligation to protect the public from the monopoly of the patent which was procured by fraud, and it would be difficult to find language more aptly used to include this in the class of cases which are not excluded from the jurisdiction of the court by want of interest in the government of the United States." It is obvious from these decisions that while it is not the province of the govern- ment to interfere in any mere matter of pri- vate controversy between individuals, or to use its great powers toenforce the rights of one against another, yet, whenever the wrongs complained of are such as affect the public at la,rge, and are in respect of matters which by the constitution are intrusted to the care of the nation, and concerning which the na- tion owes the duty to all the citizens of se- curing to them their common rights, then the mere fact tliat the government has no pecuni- ary interest in the controversy is not suffl- ; clent to exclude it from the courts, or pre- vent it from taliing measures therein to fully discharge those constitutional duties. The national government, given by the con- stitution power to regulate interstate com- merce, has by express statute assumed juris- diction over such commerce when carried up- on railroads. It is charged, therefore, with the duty of keeping those highways of in- terstate commerce free from obstraction, for it has always been recognized as one of the powers and duties of a government to re- move obstructions from the highways under its control. As said in Gilman v. Philadelphia, 3 AVall. 713, 724: "The power to regulate commerce compre- hends the control for that purpose, and to tlie extent necessary, of all the navigable waters of the United States which are accessible from a state other than those in which they lie. For this purpose they are the public prop- erty of the nation, and subject to all the req- uisite legislation by congress. This neces- sarily includes the power to keep them open and free from any obstruction to their nav- igation interposed by the states or otlierwise; to remove such obstructions when they exist; and to provide, by such sanctions as they may deem proper, against the occurrence of the evil and for the punishment of ofTenders. For these purposes, congress possesses all the pow- ers which existed in the states before the .'x'joption of the national constitution, and which have always existed in the parliament in England." See, also, the following authorities, in which at the instance of the state, or of some munic- ipality thereof within whose limits the ob- structed highway existed, a like power was asserted: Borough of Stamford v. Stamford Horse B. Co., 56 Conn. 381, 15 Atl. 749; Peo- ple v. Vanderbilt, 28 N. Y. 39G; State v. Day- ton & S. E. E. Co., 36 Ohio St. 431; Inhabit- ants of Springfield v. Connecticut R. R. Co., 4 Cush. 63; Attorney General v. Woods, 108 Mass. 436; Baston & A. R. Co. v. Inhabitants of Greenwich, 25 N. J. Eq. 565; County of Stearns v. St. Cloud, M. & A. R. Co., 36 Minn. 425, 32 N. W. 91; Rio Grande R. Co. v. City of Brownsville, 45 Tex. 88; City of Philadelphia V. Thirteenth & F. St. P. Ey. Co., 8 Phila. 648. Indeed, the obstruction of a highway is a public nuisance (4 Bl. Comm. 167), and a pub- , lie nuisance has always been held subject to abatement at the instance of the government (Attorney General v. Tudor Ice Co., 104 Mass. 239, 244; Attorney General v. Jamaica Pond Aqueduct Corp., 133 Mass. 361; Village of Pine City v. Munch, 42 Minn. 342, 44 N. W. 197; State v. Goodnight, 70 Tex. 682, 11 S. W. 119). It may not be amiss to notice a few of the leading cases. Mayor, etc., of Georgetown v. Alexandria Canal Co., 12 Pet. 91, was a biU filed by the plaintifl: to restrain the construc- tion of an aqueduct across the Potomac river. While, under the facts of that case, the relief prayed for was denied, yet the jurisdiction of the court was sustained. After referring to the right to maintain an action at law for damages, it was said: "Besides this remedy at law, it is now set- , tied that a court of equity may take juris- diction in cases of public nuisance by an in- formation filed by the attorney general. This ; jurisdiction seems to have been acted on with great caution and hesitancy. * * * Yet the jurisdiction has been finally sustained, upon the principle that equity can give more ade- quate and complete relief than can be obtain- ed at law. Whilst, therefore, it is admitted by all that it is confessedly one of delicacy, and accordingly the instances of its exercise are rare, yet It may be exercised in those cases in which there is imminent danger of ir- reparable mischief before the tardiness of the law could reach it." State of Pennsylvania v. Wheeling, etc., Bridge Co., 13 How. 518, was a bill filed by f the state of Pennsylvania to enjoin the erec- tion of a bridge over the Ohio river within the limits of the state of Virginia. As the alleged obstruction was not within the state of Pennsylvania, its right to relief was only that of an individual in case of a private nui- sance, and it was said, on page 504: "The injury makes the obsti-uction a private nuisance to the injured party; and the doc- trine of nuisance applies to the case where the jurisdiction is made out, the same as in a EQUITABLE REMEDIES. 311 public prosecution. If the obstruction be un- lawful, and the irjury Irreparable by a suit at common law, the injured party may claim the extraordinary protection of a court of chancery. "Such a proceeding is as common and as free from difficulty as an ordinary ini unction bill, against a proceeding at law, or to stay waste or trespass. The powers of a court of chancery are as well adapted and as effectual for relief in the case of a private nuisance as in eltlier of the cases named. And in regard to the exercise of these powers it is of no im- portance whether the eastern channel, over which the bridge is thrown, is wholly within the limits of the state of Virginia. The Ohio being a navigable stream, subject to the com- mercial power of congress, and over which that power has been exerted, if the river be within the state of Virginia, the commerce upon it, which extends to other states, Is not within its jurisdiction. Consequently, if the act of Virginia authorized the structure of the bridge, so as to obstruct navigation, it could afford no justification to the bridge company." Coosaw Min. Co. v. South Carolina, 144 TJ. S. 550, 12 Sup. Ct. 689, was a bill filed by the state in one of its own courts to enjoin the digging, mining, and removing phosphate rock and deposits in the bed of a navigable river within its territories. The case was removed by the defendant to the federal court, and in that court the relief prayed for was granted. The decree of the circuit court was sustained by this court, and in the opinion by Mr. Justice Harlan, the matter of equity jurisdiction is discussed at some length, and several cases cited; among them Attorney General. v. Uieh- ards, 2 Anstr. 603; Attorney General v. Forbes, 2 Mylne & C. 123; Gibson v. Smith, 2 Atk. 182; Attorney General v. Jamaica Pond Aqueduct Corp., 133 Mass. 361. From Attor- ney General v. Forbes was quoted this decla- ration of the lord chancellor: "Many cases might have been produced in which the court has interfered to prevent nuisances to pub- lic rivers and to public harbors; and the court of exchequer, as well as this court, acting as a court of equity, has a well-established juiis- diction, upon a proceeding by way of informa- tion, to prevent nuisances to public harbors and public roads; and, in short, generally to prevent public nuisances." And from Attor- ney General v. Jamaica Pond Aqueduct Corp. these words of the supreme court of the state of Massachusetts: "There is another ground upon which, in our opinion, this information can be maintained, though perhaps it belongs to the same general head of equity jurisdic- tion of restraining and preventing nuisances. The gi-eat ponds of the commonwealth belong to the public, and, like the tide waters and navigable streams, are under the control and care of the commonwealth. The rights of fishing, boating, bathing, and other like rights wh'ch pertain to the public are regarded as valuable rights, entitled to the protection of the government. * * • If a corporation or an individual is fotmd to be doing acts without right, the necessary effect of which is to de- stroy or impair these rights and privileges, it furnishes a proper case for an information by the attorney general to restrain and prevent the mischief." An additional case, not no- ticed in that opinion, may also be referred to (Attorney General v. Terry, 9 Ch. App. 423), in which an injunction was granted against extending a wharf a few feet out into the navigable part of a river; Mellish, L. J., say- ing: "If this is an indictable nuisance, there must be a remedy in the court of chancery, and that remedy is by injunction;" and James, L. J., adding: "I entirely concur. Where a public body is intrusted with the duty of be- ing conservators of a ri 'er, it is their duty to take proceedings for the protection of those who use the river." It is said that the jurisdiction heretofore exercised by the national government over highways has been in respect to waterways, —the natural highways of the counti-y,— and not over artificial highways, such as rail- roads; but the occasion for the exercise by congress of its jurisdiction over the latter is of recent date. Perhaps the first act in the course of such legislation is that heretofore referred to, of June 15, 1866; but the basis upon which rests its jurisdiction over ar- tificial highways is the same as that which supports it over the natural highways. Both spring from the power to regulate com- merce. The national government has no sep- arate dominion over a river within the lim- its of a state; its jurisdiction there is like that over land within the same state. Its control over the river is simply by virtue of the fact that it is one of the highways of interstate and international commerce. The great case of Gibbons v. Ogden, 9 Wheat 1, in which the control of congress over inland waters was asserted, rested that control on the grant of the power to regulate com- merce. The argument of the chief justice was that commerce Includefs navigation, "and a power to regulate navigation is as ex- pressly granted as if that term had been added to the word 'commerce.' " In order to fully regulate commerce with foreign na- tions, it is essential that the power of con- gress does not stop at the borders of the nation, and equally so as to commerce among the states : "The power of congress, then, compre- hends navigation within the limits of every state in the Union, so far as that navigation may be, in any manner, connected with 'commerce with foreign nations, or among the several states, or with the Indian tribes.' It may, of consequence, pass the jurisdiction- al line of New York, and act upon the very waters to which the prohibition now under consideration applies." See, also, Gilman v. Philadelphia, 3 Wall. 713, 725, In which it was said: "Wherever 'commerce among the states' goes, the power of the nation, as represented in this court, 3:2 EQUITABLE REMEDIES. goes with it, to protect and enforce its rights." Up to a recent date, commerce, both inter- state and international, was chiefly by wa- ter, and it is not strange that both the leg- islation of congress and the cases in the courts have been principally concerned there- with. The fact that in recent years inter- state commerce has come to be carried on mainly by railroads and over artificial high- ways has in no manner narrowed the scope of the constitutional provision, or abridged the power of congress over such commerce. On the contrary, the same fullness of con- trol exists in the one case as in the other, and the same power to' remove obstructions from the one as from the other. Constitutional provisions do not change, but their operation extends to new matters, as the modes of business and the habits of life of the people vary with each succeeding generation. The law of the common carrier is the same to-day as when transportation on land was by coach and wagon, and on water by canal boat and sailing vessel; yet in its actual operation it touches and regu- lates transportation by modes then un- known, the railroad train and the steam- ship. Just so is it with the grant to the national government of power over inter- state commerce. The constitution has not changed. The power is the same. But it operates to-day upon modes of interstate commerce unknown to the fathers, and it will operate with equal force upon any new modes of such commerce which the future may develop. It is said that seldom have the courts as- sumed jurisdiction to restrain by injunction in suits brought by the government, either state or national, obstructions to highways either artificial or natural. This is undoubtedly true, but the reason is that the necessity for such interference has only been occasional. Or- dinarily, the local authorities have taken full control over the matter, and by indictment for misdemeanor, or in some kindred way, have secured the removal of the obstruc- tion and the cessation of the nuisance. As said in Attorney General v. Brown, 24 N. .T. Eq. 89, 91: "The jurisdiction of courts of equity to redress the grievance of public nuisances by injunction is undoubted and clearly established; but it is well settled that, as a general rule, equity will not in- terfere where the object sought can be as well attained in the ordinary tribunals. At- torney General v. New Jersey R. & T. Co., 3 N. J. Bq. 136; Water Com'rs of Jersey City V. City of Hudson, 13 N. J. Bq. 426; Attorney General v. Heishon, 18 N. J. Eq. 410; Railroad Co. v. Prudden, 20 N. J. Eq. 532; High, Inj. § 521. And, because the remedy by indictment is so efficacious, courts of equity entertain jurisdiction in such cases with great reluctance, whether their inter- vention is invoked at the instance of the at torney general, or of a private individual who suffers some injury therefrom distinct from that of the public, and they will only do so whore there appears to be a necessity for their interference. Rowe v. Granite Bridge, 21 Pick. 847; Railroad Co. v. Prud- den, supra. The jurisdiction of the court of chancery with regard to public nuisances is founded on the irreparable damage to indi- viduals, or the great public injury which is likely to ensue. 3 Daniell, Ch. Prac. 1740." Indeed, it may be affirmed that in no well- considered case has the power of a court of equity to interfere by injunction in cases of public nuisance been denied,' the only de- nial ever being that of a necessity for the exercise of that jurisdiction under the cir- cumstances of the particular case. Story, Eq. Jur. §§ 921, 923, 924; Pom. Eq. Jur. § 1349; High, Inj. §§ 745, 1354; 2 Daniell, Ch. PL & Prac. (4th Ed.) p. 1636. That the bill filed in this case alleged spe- cial facts calling for the exercise of all the powers of the court is not open to question. The picture di-awn in it of the vast inter- ests involved, not merely of the city of Chi- cago and the state of Illinois, but of all the states, and the general confusion into which the interstate commerce of the country was thrown; the forcible interference with that commerce; the attempted exercise by indi- viduals of powers belonging only to govern- ment, and the threatened continuance of such invasions of public right, presented a condition of affairs which called for the full- est exercise of all the powers of the courts. If ever there was a special exigency, one which demanded that the courts should do all that, courts can do, it was disclosed by this bill, and we need not turn to the public history of the day, which only reaffiiTas with clearest emphasis all its allegations. The difference between a public nuisance and a private nuisance is that the one af- fects the people at large and the other sim- ply the individual. The quality of the wrongs is the same, and the jurisdiction of the courts over them rests upon the same principles and goes to the same extent. Of course, cir- cumstances may exist in one case, which do not in another, to induce the court to inter- fere or to refuse to interfere by injunction; but the jurisdiction — the power to interfere — exists in all cases of nuisance. True, many more suits are brought by individuals than by the public to enjoin nuisances, but there are two reasons for this: First, the instances are more numerous of private than of public nuisances; and, second, often that which is in fact a public nuisance is re- strained at the suit of a private individual, whose right to relief arises because of a spe- cial injury resulting therefrom. Again, it is objected that it is outside of the jurisdiction of a court of equity to en- join the commission of crimes. This, as a general proposition, is unquestioned. A chancellor has no criminal jurisdiction. Something more tlian the threatened com- EQUITABLE REMEDIES. 313 mission of an offense against the laws of the land is necessary to call into exercise the in- junctive powers of the court. There must toe some interferences, actual or threatened, with property or rights of a pecuniary na- ture; but when such interferences appear the jurisdiction of a court of equity arises, and is not destroyed by the fact that they are accompanied by or are themselves viola- tions of the criminal law. Thus, In Cran- ford v. TyiTell, 128 N. ¥. 311, 28 N. B. 514, an injunctionto restrain the defendant from keeping a house of ill fame was sustained; the court saying, on page 344, 128 N. Y., and page 514, 28 N. B.: "That the perpetrator of the nuisance is amenable to the provisions and penalties of the criminal law is not an answer to an action against him by a pri- vate person to recover for injui-y sustained, and for an injunction against the continued use of his premises in such a manner." And in Port of Mobile v. Louisville & N. R. Co., 84 Ala. 115, 126, 4 South. 10(5, is a simi- lar declaration, in these words: "The mere fact that an act is criminal does not divest the Jurisdiction of equity to prevent it by injunction, if it be also a violation of prop- erty rights, and the party aggrieved has no other adequate remedy for the prevention of the irreparable injury which will result from the failure or inability of a court of law to redress such rights." The law is full of instances in which the -same act may give rise to a civil action and a criminal prosecution. An assault with in- tent to kill may be punished criminally, un- der an indictment therefor, or will support a civil action for damages; and the same is true of all other offenses which cause injury to person or property. In such eases the ju- risdiction of the civil court is invoked, not to enforce the criminal law and punish the wrongdoer, but to compensate the injured party for the damages which he or his prop- erty has suffered; and it is no defense to the civil action that the same act by the defend- ant exposes him also to indictment and pun- ishment in a court of criminal jurisdiction. So here the acts of the defendants may or may not have been violations of the criminal law. If they were, that matter is for in- quiry in other proceedings. The complaint made against them in this is of disobedience to an order of a civil court, made for the pro- tection of property and the security of rights. If any criminal prosecution be brought against them for the criminal of- fenses alleged in the bill of complaint, of de- railing and wrecking engines and trains, as- saulting and disabling employes of the rail- road companies, it will be no defense to such prosecution that they disobeyed the orders of injunction served upon them, and have been punished for such disobedience. Nor is there in this any invasion of the constitutional right of trial by jury. We fully agree with counsel that "it matters not what form the. attempt to deny constitutional right may take; it is vain and ineffectual, and must be so declared by the courts." And we reaffirm the declaration made for the court by Mr. Justice Bradley in Boyd v. U. S., 116 U. S. 616, 635, 6 Sup. Ct. 524, that "it is the duty of courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon. Their motto should be obsta principiis." But the power of a court to make an order carries with it the equal power to punish for a disobedience of that order, and the in- quiry as to the question of disobedience has been, from time immemorial, the special function of the court. And this is no tech- nical rule. In order that a court may compel obedience to its orders, it must have the right to inquire whether there has been any disobedience thereof. To submit the ques- tion of disobedience to another tribunal, be it a jury or another court, would operate to deprive the proceeding of half its efficiency. In the Case of Yates, 4 Johns. 317, 369, Chan- cellor Kent, then chief Justice of the supreme court of the state of New York, said: "In the Case of Earl of Shaftsbury, 2 State Tr. 615, 1 Mod. 144, who was imprisoned by the house of lords for 'high contempts commit- ted against it,' and brought into the king's bench, the court held that they had no au- thority to judge of the contempt, and re- manded the prisoner. The court in that case seem to have laid down a principle from which they never have departed, and which is essential to the due administration of jus- tice. This principle that every court, at least of the superior kind, in which great confidence is placed, must be the sole judge. In the last resort, of contempts arising there- in, is more explicitly defined and more em- phatically enforced in the two subsequent cases of The Queen v. Paty [2 Ld. Raym. 1105], and of The King v. Crosby [3 Wils. 188]." And again, on page 371: "Mr. Jus- tice Blackstone pursued the same i train of observation, and declared that all courts, by which he meant to include the two houses of parliament and the courts of Westmin- ster Hall, could have no control in matters of contempt; that the sole adjudication of contempts and the punishments thereof be- longed exclusively, and without interfering, to each respective court." In Watson v. Wil- liams, 36 Miss. 331, 341, it was said: "The power to fine and imprison for contempt, from the earliest history of Jurispi-udence, has been regarded as a necessary incident and at- tribute of a court, without which it could no more exist than without a judge. It is a power inherent in all courts of record, and coexisting with them by the wise provisions of the common law. A court without the power effectually to protect itself against the assaults of the lawless, or to enforce its or- ders. Judgments, or decrees against the re- cusant parties before it, would be a disgrace to the legislation, and a stigma upon the age which invented it" In Cartwright's Case, 814 EQUITABLE REMEDIES. 114 Mass. 230, 238, we find this language: "The summary power to commit and punish for contempts tending to obstruct or degrade the administration of justice is inherent in courts of chancery and other superior courts, as essential to the execution of their powers and to the maintenance of their authority, and is part of the law of the land, within the meaning of Magna Charta and of the twelfth article of our Declaration of Rights." See, also, U. S. v. Hudson, 7 Cranch, 32; Anderson v. Dunn, G Wheat. 204; Ex parte Robinson, 19 AVall. 50.j; Mugler v. Kansas, 123 U. S. C23-G72, S Sup. Ct. 273; Ex parte Terry, 128 U. S. 289, 9 Sup. Ct. 77; Eilen- becker v. Plymouth Co., 134 V. S. 31-36, 10 Sup. Ct. 424, in which Mr. Justice Miller ob- sei-ved: "If it has ever been understood that proceedings according to the common law for contempt of court have been subject to the right of trial by jury, we have been unable to find any instance of it." Commission v. Brimson, 154 U. S. 447-488, 14 Sup. Ct. 1125. In this last case it was said: "Surely it can- not be supposed that the question of con- tempt of the authority of a court of the United States, committed by a disobedience of its orders, is triable, of right, by a jury.'" / In brief, a court enforcing obedience to its / orders by proceedings for contempt is not executing the criminal laws of the land, but : only securing to suitors the rights which it has adjudged them entitled to. Further, it is said by counsel in their brief: "iS^o case can be cited where such a bill in behalf of the sovereign has been entertained against riot and mob violence, though occur- ring on the highway. It is not such fitful and temporary obstruction that constitutes a nuisance. The strong hand of executive pow- er is required to deal with such lawless dem- onstrations. "The courts should stand aloof from them and not invade executive prerogative, nor, even at the behest or request of the executive, travel out of the beaten path of well-settled judicial authority. A mob cannot be sup- pressed by injunction; nor can its leaders be tried, convicted, and sentenced in equity. "It is too great a strain upon the judicial branch of the government to impose tnis es- sentially executive and military power upon courts of chancery." We do not perceive that this argument questions the jurisdiction of the court, but only the expediency of the action of the gov- ernment in applying for its process. It surely cannot be seriously contended that the court has jurisdiction to enjoin the obstractlon of a highway by one person, but that its jurisdic- tion ceases when the obstruction is by a hun- dred persons. It may be true, as suggested, that in the excitement of passion a mob will pay little heed to processes issued from the courts, and it may be, as said by coimsel in argument, that it would savor somewhat of the puerile and ridiculous to have read a writ of injunction to Lee's army during the late Civil War. It is doubtless true that inter arma leges silent, and in the throes of rebel- lion or revolution the processes of civil courts are of little avail, for the power of the courts rests on the general support of the people, and their recognition of the fact that peaceful remedies are the true resort for the correc- tion of wrongs. But does not counsel's ar- gument imply too much? Is it to be assumed that these defendants were conducting a re- bellion or inaugurating a revolution, and that they and their associates were thus placing themselves beyond the reach of the civil pro- cess of the courts? We find in the opinion of the circuit court a quotation from the testi- mony given by one of the defendants before the United States strike commission, which is sufficient answer to this suggestion: "As soon as the employes found that we were arrested, and taken from the scene of action, they became demoralized, and that ended the strilce. It was not the soldiers that ended the strike. It was not the old brother- hoods that ended the strike. It was simply the United States courts that ended. the strike. Our men were in a position that never would have been shaken, under any circumstances, if we had been permitted to remain upon the field, among them. Once we were taken from the scene of action, and restrained from send- ing telegrams or issuing orders or answering questions, then the minions of the corpora- tions would be put to work. * * * Our headquarters were temporarily demoralized and abandoned, and we could not answer any messages. The men went back to work, and the ranks were broken, and the strike was broken up, * * * not by the army, and not by any other power, but simply and solely by the action of the United States courts in restraining us from discharging our duties as officers and representatives of our empioyfis." Whatever any single individual may have thought or planned, the great body of those who were engaged in these transactions con- templated neither rebellion nor revolution, and when in the due order of legal proceed- ings the question of right and wrong was sub- mitted to the courts, and by them decided, they unhesitatingly yielded to their decisions. The outcome, by the very testimony of the defendants, attests the wisdom of the course pursued by the government, and that it was well not to oppose force simply by force, but to invoke the jurisdiction and judgment of those tribunals to whom by the constitution and in accordance with the settled conviction of all citizens is committed the determination of questions of right and wrong between in- dividuals, masses, and states. It must be borne in mind that this bill was not simply to enjoin a mob and mob violence. It was not a bill to command a keeping of the peace; much less was its purport to restrain the defendants from abandoning whatever employment they were engaged in. The right of any laborer, or any number of laborers, to qviit work was not challenged. The scope EQUITABLE KEMEDIES. 315 and purpose of the bill was only to restrain forcible obstructions of the highways along ■which interstate commerce travels and the mails are carried. And the facts set forth at length are only those facts which tended to show that the defendants were engaged in such obstructions. A most earnest and eloquent appeal was made to us in eulogy of the heroic spirit of those who threw up their employment, and gave up their means of earning a livelihood, not in defense of their own rights, but in sympathy for and to assist others whom they believed to be wronged. We yield to none in our admiration of any act of heroism or self -sacrifice, but we may be permitted to add that It is a lesson which cannot be learned tco soon or too thoroughly that under this government of and by the people the means of redress of all wrongs are through the courts and at the ballot box, and that no wrong, real or fancied, carries with it legal warrant to invite as a means of redress the co-operation of a mob, with Its accompany- ing acts of violence. We have given to this case the most care- ful and anxious attention, for we realize that it touches closely questions of supreme im- portance to the people of this country. Sum- ming up our conclusions, we hold that the government of the United States is one hav- ing jurisdiction over every foot of soil within Its territory, and acting directly upon each citizen; that, while it is a government of enumerated powers, it has within the limits of those powers all the attributes of sovereignty; that to It is committed power over interstate commerce and the transmission of the mail; that the powers thus conferred upon the na- tional government are not dormant, but have been assumed and put into practical exercise by the legislation of congress; that in the ex- ercise of those powers it is competent for the nation to remove all obstmctions upon high- ways, natural or artificial, to the passage of in- terstate commerce or the carrying of the mail; that, while It may be competent for the govern- ment (through the executive branch and in the use of the entire executive power of the na- tion) to forcibly remove all such obstructions. It is equally within its competency to appeal to the civil courts for an inquiry and deter- mination as to the existence and character of any alleged obstructions, and if such are found to exist, or threaten to occur, to in- voke the powers of those courts to remove or restrain such obstructions; that the jurisdic- tion of courts to Interfere in such matters by injunction is one recognized from ancient times and by indubitable authority; that such jurisdiction is not ousted by the fact that the obstructions are accompanied by or consist of acts in themselves violations of the criminal law; that the proceeding by injunction is of a civil character, and may be enforced by proceedings in contempt; that such proceed- ings are not in execution of the criminal laws of tlie land; that the penalty for a violation of injunction is no substitute for and no de- fense to a prosecution for any criminal of- fenses conmiittod In the course of such viola- tion; that the complaint filed in this case clearly showed an existing obstruction of ar- tificial highways for the passage of Interstate commerce and the transmission of the mail, — an obstniction not only temporarily existing, but threatening to continue; that under such complaint the circuit court had power to is- sue its process of injunction; that, it having been issued and served on these defendants, the circuit court had authority to inquire whether its orders had been disobeyed, and, wJien it found that they had been, then to proceed under section 725, Rev. St., which grants power "to punish, by fine or impris- onment, • * * disobedience, * * * by any party * * * or other person, to any lawful writ, process, order, rule, decree, or command," and enter the order of punishment complained of; and, finally, that the circuit court having full jurisdiction in the premises, Its finding of the fact of disobedience is not open to review on habeas corpus In this or any other court. Ex parte Watliins, 3 Pet. 193; Ex parte Yai-brough, 110 XJ. S. 651, 4 Sup. Ct. 152; Ex parte Terry, 128 U. S. 2S0- 305, 9 Sup. Ct. 77; In re Swan, 150 U. S. 637, 14 Sup. Ct. 225; U. S. v. Pridgeou, 153 U. S. 48, 14 Sup. Ct. 746. We enter into no examination of the act of July 2, 1890 (26 Stat. 209), upon which the circuit court relied mainly to sustain its ju- risdiction. It must not be understood from this that we dissent from the conclusions of that court In reference to the scope of the act, but simply that we prefer to rest our judg- ment on the broader ground which has been discussed in this opinion, believing it of im- portance that the principles underlying It should be fully stated and affirmed. The petition for a writ of habeas corpus is denied. 316 EQUITABLE KEMEDIES. GRIFFITH V. HILIilARD. (25 Atl. 427, 64 Vt. 643.) Supreme Court of Vermont, General Term. Nov. 5. 1892. Appeal from chancery court, Rutland county; Taft, CliancoUor. Action by Silas L. Griffith asainst John H. Hiiliard. From a decree sustuiniug a demnrrer to plaintiff's bill fur an injunc- tion and dismissing the bill pro tomia, orator appeals. Reversed and modified. J . C. Baker, for orator. H. A. Barman, tor defendant. START, .7. The defendant, John H. Hii- liard, by the demurrer contained in his ansv\er, claims that a court of equity has no inrisdiction 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 cutting and dra wing tiinher 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 einbrace 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 Avrong may be prevented or stopiied by injunc- tion. Smith v.Rock,o9 Vt. 232,9 Atl. Rep. 551; Langdon v, Tenipleton, 61 Vt. Hi), 17 Atl. Rep. h3'J; Ei-hardt v. Boaro, 118 U. S. 539, 5 Sup. Ct. Rep. -SIS; Iron Co. v. Rey- mert, 45 N. Y. 703; Power Co. v. Tibbetts, 31 Conn. 165; Irwin v. Dixion, 9 How. 28; Livingston v. Livingston, G Johns. Ch. (Law Ed.) 490; High, Inj. 724-727; Shiplev V. Hitter, 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 tlie committing of several trespasses by the defendants by drawing wood and logs acros.s the orator's land. The defendants claimed a right of way. The court i?uund 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 Judge Story in his work on Kquitv Juris- prudence, (volume 2, g§ 928, 929:) ""If the trespass be fugitive and teniporary, and adequate compensation can be 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.Reyniert, supra, it is said that mines, quarries, and timber are protected by injunction, upon the ground that injuries to and depreda- tions upon theni are, or may cause, an irreparable damage, and also with a view to prevent a multiplicity of actions for damages, which might accrue frofn 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, gcjing to the destruction of the 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 pending legal proceed! n,i5.s tor 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 lias the better title; or it may dismiss the bill, and leave the orator to his legal rem- edy. Bacon v. Jones, 4 Slylne & C. 433; Duke of Beaufort v. Morris, 6 Hare, 340; Campbell v. Scott, 11 Sim. 31; Kerr, Inj. 209; Iiigraham v. Dunnell, 5 Mete. (Mass.) ns; Rooney v. Soule, 45 Vt. 303; Wing v; Hall, 44 Vt. 118; Lyon v. McLaughlin, 32 Vt. 4-J3- 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 Cottitnh.wi says: "The jurisdiction of this court is founded upon legal right. The plaintiff coriiinginto 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- EQUITAHLE RKMEDIES. 317 Idk; and in both CRses, I appreliend, great latitude and discretion are allowed to the court in dealing with the application. When the application is for an interlocn- tc)r.v injunction, several courses are open The court may at once grant the injunc- tion siwpliciter, without more,— a course which, though perfectly competent to tlie court, is not very likely to be taken where the defendant raises aquostion as tothe valid- ity of the plaintiff's title; or it may follow the more usual, and, as I apprehend, more wholesome, practice in snch a case, of either granting an injunction, and at the same time directing the plaintiff to proceed to establish his title at law, and suspend- ing the grant of the injunction until the result of the legal investigation has t)een ascertained, the defendant, in the mean time, keeping an account. Which oj these several courses ought to be taken must depend entirely upon the discretion of the court, according to the case. When the cau»e 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 law. 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 to producesuch a result, although this is certainly not verj' likely to happen, and I .am not aware of any ease in wliich it has happened. Nevertheless it is a course unquestionably competent to the court, provided a case be presented wl.'ich 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 maj- 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 billatonee." Although Bacon v. Jones was a casH relative to a patent right, the re- marks of the lord chancellor are applicable to any case in which the orator's til le 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, hy his hill, makes out a strong case forecjuitatile 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 do so. These acts, if continued, will work a destruction of the estate, and render it of no value for the purpose for which it has been held and enjtiyed. 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 snch court before proceeding fur- ther with the cause, and such will he tlie order of this court. The pro forma decree of the court of chancery is reversed; the demurrer contained in the answer of the defendant, John H. Billiard, is overruled; the orator's hill is adjudged sufficient, and defendant's (Hilliard's) answer is ordered brought forward, from which it appears that the orator's title tothe 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 shHll, 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. 318 EQUITABLE I;E>[EDIES. WILSON v. CITY OF MINERAL POINT et al. (39 Wis. 160.) Supreme Court of Wisconsin. Ang. Term, 1875. Bill for an injunction. A demurrer to the bill was overruled, and the defendants ap- pealed. M. M. Cothren, for appellants. Wilson & Jones, for respondent. LYON, J. It is sufficiently averred in the complaint that the defendant Weidenfeller, acting under the authority and orders of the regularly constituted authorities of the de- fendant city, is about to destroy fences, fruit and ornamental trees and shrubbery standing and growing upon iiremises owned by the plaintiff and occupied by him as his residence and homestead; that the pretense for so doing is that such fences, trees and shrub- bery are within the limits of public streets; but that such pretense is unfounded in fact, and the defendants have no lawful authority to do the threatened acts. On the facts averred it is clear that the plaintiff is entitled to an injunction as pray- 'ed in the complaint. It is quite true that the courts will not interfere by injunction to restrain the committing of a mere trespass, for which, if committed, the recovery of dam- ages in an action at law would be an ade- quate remedy. It is also true that the courts will interfere by injunction and prevent a threatened injury, which, if inflicted, will be irreparable. An injury is irreparable when it is of such a nature that the injured party cannot be adequately compensated therefor in dam- ages, or when the damages which may result therefrom cannot be measured by any cer- tain pecuniary standard. High, Inj. § 460, and cases cited. It is said by Tudge Story that: "If the trespass be fugitive and tem- porary, and adequate compensation can be obtained in an action at law, there is no ground to justify the interposition of courts of equity. Formerly, indeed, courts of equity were extremely reluctant to interfere at all, even in regard to cases of repeated tres- passes. But now there is not the slightest hesitation, if the acts done or threatened to be done to the proijerty would be ruinous or ir- reparable, or would impair the just enjoy- ment of the property in future." 2 Story, Eq. Jur. § di- rection, take into his possession every kind of property which may be taken in execu- tion, and also that which is equitable, if of a nature to be reduced into possession. But it is not considered in every case thut the right to the possession is transferred by his appointment; for, where the property is real; and there are tenants, the court is virtually the landlord, though the tenants may be compelled to attorn to the receiver. .Teremy, Eq. Jur. 249. When appointed, very little discretion is allowed to him, for he must apply to the court for liberty to bring or defend actions, to let the estate, and in most cases to lay out money on repairs, and he may without leave distrain only for rent in arrear short of a year. 6 Ves. 802; 15 Ves. 26; 3 Brown, Ch. Cas. 88; 9 Ves. 33.5; 1 Jac. & W. 178; Morris v. Elme, 1 Ves. .Tr. 130; Id. 165; Blunt v. Clithero, 6 Ves. 790; Hughes v. Hughes, 3 Brown, Ch. Cas. 87; 5 Madd. 473. A receiver is an indifferent person between parties, appointed by the court to receive the rents, issues, or profits of land, or other thing in question In this court, pending the suit, where it does not seem reasonable to the court that either party should do it. Wyatt's Prac. Reg. 355. He is an officer of the court; his appointment is provisional. He is appointed in behalf of all parties, and not of the complainant or of the defendant only. He is appointed for the benefit of all parties who may establish rights in the cause. The money in his hands is in cus- todia legis for whoever can make out a title to it. Delany v. Mansfield, 1 Hogan, 234. ANCILLAEY REMEDIES. 329 It is the court itself which has the care of the property In dispute. The receiver is but the creature of tlie court; he has no powers except such as are conferred upon him by the order of his appointment and the course and practice of the court. Verplanck v. In- surance Co., 2 Paige, Ch. 452. Unless where he is appointed under the statute of New York, directing proceedings against corpora- tions (2 Rev. St. 43S), and then he is a stand- ing assignee, vested with nearly all the powers and authority of the assignee of an Insolvent debtor. Attorney General v. Life & Fire Ins. Co., 4 Paige, Ch. 224. In the case just cited. Chancellor Walworth says, that the receiver has "no powers except such as are conferred upon him by the order of his appointment and the course and practice of the court." In the statement which has been made of the restraints upon a receiver, we are aware that they have been meas- m-ably qualified by rules, and by the prac- tice of the courts in the state of New York, as may be seen in Hoffman's Practice; lint none of them alter his official relation to the court, and, so far as we have investigated the subject, we have not found another in- stance of an order in the courts of the state of New York, or in the courts of any other state, empowering a receiver to sue in his own name officially in another jurisdiction for the property or choses in action of a judgment debtor. Indeed, whatever may be the receiver's rights under a creditor's bill, to the possession of the property of the debt- or in the state of New York, or the permis- sions which may be given to him to sue for such property, we understand the decisions of that state as confining his action to the state of New York. Such an inference may be made from sev- eral decisions. It mij- be inferred from what was said by Chancellor Walworth, in Mitchell V. Bunch, 2 Paige, Ch. G15. Speak- ing of the property which might be put into the possession of a receiver, and of the pow- er of a court of chancery to reach property out of the state, he declares the manner in which it may be done, thus: "The original and primary jurisdiction of that court was in personam merely. The writ of assistance to deliver possession, and even the seques- tration of property to compel the perform- ance of a decree, are comparatively of re- cent origin. The jurisdiction of the court was exercised for several centuries by the simple proceeding of attachment against the bodies of the parties to compel obedience to its orders and decrees. Althouuh the prop- erty of a defendant is beyond the reach of the court, so that it can neither be seques- tered nor taken in execution, the court does not lose its jurisdiction in relation to that property, provided the person of the defend- ant is within the jurisdiction. "By the or- dinary course of proceeding, the defendant may be compelled either to bring the prop- erty in dispute, or to which the defendant claims an equitable title, within the juris- diction of the court, or to execute such a conveyance or transfer thereof as will be sufilcient to vest the legal title, as well as the possession of the property, according to the lex loci rel sitoe." It is very obvious, from the foregoing extract, that up to the time when iNIitchell v. Bunch was decided, in the year 1831, it had not been thought that a court of chancery in the state of New York could act upon the property of a judg- ment debtor in a creditor's bill which w.ts not within the state of New York, but by the coercion of his person when he was within the jurisdiction of the state; and that it had not been contemplated then to add to the means used by chancery to en- force its sentences. In respect to property out of the state of New York, the power to a receiver to sue in a foreign jurisdiction for the same. It is true that the jurisdiction of a court of chancery in England and the United States, to enforce equitable rights, is not confined to cases where the property is claimed in either country, but the primary movement in the chancery courts of both countries to enforce an injunction, is the at- tachment of the person of the debtor, whei-e he is amenable to the jurisdiction of the court. We find in the second volume of Spence on the Jurisdiction of the Court of Chancery in England (pages 6, 7), this language: "When, therefore, a case is made out against a per- son resident within the jurisdiction of the court, in respect to property out of it, but within the empire, or its dependencies, which would call for the interference of the court of chancery if the property were situate in the country, the court, as it had the power, has assumed the jurisdiction, when such an interference is necessary to the ends of justit-e, of enforcing the ei;ui ta- ble rights of the parties to or over property out of its jurisdiction, by the coercion of the person and sequestration of his pi-operty here, in the same manner as it would have done had the property been situate in this country." And Sir John Leach said: "When parties defendants are resident in England, and are brought upon subpoi^na here, the court has full authority to act upon them personallj', with respect to the subject of the suit, as the ends of justice require, and with that view to order them to take cr to omit to take any stops or proceedings in any otlier court of justice, whether in this or in a foreign country. This court does not pretend to any interference with the other courts." It acts upon the defendant by punishment for his contempt, for his dis- obedience of the court. The court of chan- cery has no power directly to affect prop- erty out of the bounds of its jurisdiction. Roberdeau v. Rous, 1 Atk. 544; 2 Spence. We believe such to be the proper course, in chancery, in cases of injunction, and that its jurisdiction, by injuuction, rests entirely on 330 ANCILLARY EEMEDIES. the coercion of tbe person. Sucli, however, was not the course pursued in this case, though the debtor was then a resident of the state of New York, and amenable to the jurisdiction of the court. No motion was made to force Clark to comply witli the in- junction which Camara had obtained under the creditor's bill. The matter was allowed to rest for seven years, Camara being aware that Clark had a pecuniary claim upon the republic of Mexico, at least as early as in the year 1843. The receiver during all that time took no action. His first movement is an application to be permitted to sue for the fund in the hands of the government, which had been awarded to Clark by the commis- sioners under the treaty wi'^h Mexico. Per- mission was given vo sue. He has brought his bill accordingly, and it directly raises the question, whether he can, as an officer of the court of chancery in New York, and in his relation of receiver to Camara, be permitted to sue in another political juris- diction. We have already cited Chancellor Wal- worth's opinion as to the course which is to be pursued in New York upon an injunction in a creditor's bill. Mr. Edwards, in his excellent work on Receivers in Chancery, after citing the language used in Mitchell v. Bunch, says: "Still, the difficulty remains as to a recognition of the powers or officers of the court, by persons holding a lease upon the property, especially realty, out of the jurisdiction. Then in Malcolm v. Montgom- ery, 1 Hogan, 93, the master of the rolls ob- served, that a receiver could not be effectu- ally appointed over estates in Ireland, by the English court of chancery, in any direct proceeding for the purpose; and that at- tempts had often been made to do so by serving orders made by the English court of chancery, but that they had failed, because the English court of chancery has no direct means of enforcing payment of rent to its receiver, by tenants who reside in Irelanc^ The xittorney-general and another counsellor also said, that to their knowledge such at- tempts had been frequently made, but had been uniformly given up as impracticable. A conflict might also arise between the re- ceiver out of the jurisdiction and creditors, and also other persons out of the jurisdic- tion. The comity of nations and different tribunals would hardly help a receiver." We also infer, from the case of Storm v. Waddell, 2 Sandf. 494, that the receiver's right to the possession of the property of a debtor in the state of New York, and his right to sue for property there, is limited to that jurisdiction. The chancellor, in the last case mentioned, after having given an epitome of the cause of proceeding In a cred- itor's bill, and speaking of equitable inter- ests and things in action belonging to the debtor, without regard to the injunction, says: "The property of the defendant is sub- jected to the suit, wherc\'er it may be, if the receiver can lay hold of it, or the com- plainant can reach it by the decree. The injunction, when served, prevents the debtor from putting it away or squandering it." This language indicates the receiver's locality ot action. Taken in connection with that of Chancellor Walworth, in Mitchell v. Bunch, it shows that the receiver's right to the possession of the debtor's property is limited to the jurisdiction of his appointment, and that he has no lien upon the property of the debtor, except for that which he may get the possession of without suit, or for that which, after having been permitted to sue for, he may reduce into possession in that way. Our industry has been tasked unsuc- cessfully to find a case in which a receiver has been permitted to sue in a foreign ju- risdiction for the property of the debtor. So far as we can find, it has not been al- lowed in an English tribunal; orders have been given in the English chancery for re- ceivers to proceed to execute their func- tions in another jurisdiction, but we are not aware of its ever having been permitted by the tribunals of the last. We think that a receiver has never been recognized by a foreign tribunal as an actor in a suit. He is not within that comiiy which nations have permitted, after the man- ner of such nations as practise it, in respect to the judgments and decrees of foreign tri- bunals, for all of them do not permit it in the same manner and to the same extent, to make such comit.y international or a part of the laws of nations. But it was said that re- ceivers in New York are statutory officers, as assignees in bankruptcy are. That being so, he had, as assignees in bankruptcy have upon the property of me bankrupt, a lien up- on the property of a judgment debtor, under an appointment in a creditor's bill. But that cannot be so. An assignee in bankruptcy in England, and in this country when it had a bankrupt law, is -an officer made by the statute of bankruptcy, with powers, priv- ileges, and duties prescribed by the statute, for the collection of the bankrupt's estate for an equal distribution of it among all of his creditors. In England, the property of the bankrupt is vested in the assignees in bankruptcy by legislative enactment. Where commissioners have been appointed, it is imperative upon them to convey to the assignees the proper- ty of the bankrupt, wherever it may be or whatever it may be, and it is done by deed of bargain and sale, which is after- wards enrolled. It vests the assignees with the title to the property from the date of the conveyance, it having been previously vested in the commissioners for conveyance by them to the assignees. As to the bank- rupt's personal estate, the statute looks be- yond the debts and effects of a trader with- in the kingdom, and vests them in the com- missioners in every part of the world. The last is done in England, upon the principle ANCirXAUY KEMEDIES. 331 that personal property has no locality, and is subject to the law which governs the per- son of the owner. As by that law the prop- erty of a bankrupt becomes vested in the assignee, for the purposes of the assignment, his title to sucli property out of England is as good as that which the owner had, ex- cept where some positive law of the coun- ti-y, in which the personal property is, for- bids it. Cullen, 244. In claiming such a recognition of assignees in banljruptcy from foreign courts, England does no more than is permitted in her courts, for they give effect to foreign assignments made under laws analogous to the English bankrupt laws. Solomons v. Ross, 1 H. Bl. 131, note; Jollet v. Deponthieu, Id. \Z2. note. But such comity between nations has not become international or universal. It was not admitted in England until the middle of the last century in favor of assignees in bankruptcy. Lord Raymond decreed it in 1811, in the case of a commission of bank- ruptcy from Holland. Sir Joseph Jekyll, in 1715, said, the law of England takes no no- tice of a commission in Holland, and there- fore a creditor here may attach the effects in the city of London, and proceed to con- demnation. 3 Burge, 907. Lord Mansfield, in Warring v. Knight, (sittings in Guildhall, after Hilary term, Geo. III.) Cooke, Bankr. Law, 200, 3 Burge, 907, ruled, that where an English creditor proceeded subsequent to an act of bankruptcy, by attachment in a for- eign country, and obtained judgment there and satisfaction by the sale of the debtor's personal property, the assignees in an action In England could not recover from such cred- itor the amount of the debt which had been remitted to him. Again, his lordship ruled, that the statutes of bankrupts do not extend to the colonies or any of the king's domin- ions out of England, but the assignments un- der such commissions are, in the courts abroad, considered as voluntary, and as such take place between the assignee and the bankrupt, but do not affect the rights of any other creditors. So the law stood in England until the case of FoUiott V. Ogden, 1 H. Bl. 123, when Chancellor Northington stimulated It into a larger comity, by giving effect to a claim to the creditors of a bankrupt in Amsterdam over an attaching creditor in England, who had proceeded after the bankrupt had been ■ declared to be so, by the proper tribunal in Amsterdam. England had just then become the great creditor nation of Europe, and of her provinces in North America. Her inter- est prompted a change of the rule, and her courts have ever since led the way in ex- tending a comity which had before been de- nied by them. The judicial history of the change, until the comity in favor of as- signees became in England what it now is, is given in 3 Burge, c. 22; Bankr. Laws, 886, 906-912, inclusive, and from 912-929. It may now be said to be the rule of comity b(!tweeu the nations of Europe; but it has never been sanctioned in the courts of the United States, nor in the judicial tribunals of the states of our nation, so far as we know, and we know that it has been re- peatedly refused in the latter. Our courts, when the states were colonies, had been schooled, before the Revolution, in the ear- lier doctrines of the English courts upon the subject. The change in England took place but a few years before the separation of the two countries. That comity has not yet reached our courts. We do not know why it should do so, so long as we have no national bankrupt laws. The rule which prevailed whilst these states were colonies still continues to be the rule In the courts of the United States, and it is not otherwise between the courts of the states. It was the rule in Maryland, before the Revolution. It is the rule still, as may be seen in Birch v. McLean, 1 Har. & McH. 286; Wallace v. Patterson, 2 Har. & McH. 463. An assignment abi'oad, by act of law, has no legal operation in Pennsylvania. We find from McNeil v. Colquhoon, 2 Hayw. (N. C.) 24, that it has been the rule in North Carolina for sixty years. South Carolina has no other. 1 Const. (S. C.) 2S3; 4 McCord, 519; Taylor v. Geary, Kirby, 313. In Mas- sachusetts, the courts will not permit an assignment in one of the states, whether it be voluntary or under an insolvent law, to control an attachment in that state of the property of an insolvent which was laid after the assignment, and before payment to the assignees. The point occurred recently in the circuit court of the United States for that district, in the case of Betton v. Valentine, 1 Curt. 168; and it was ruled that the as- signee of an insolvent debtor, appointed un- der the law of Massachusetts, does not so far represent creditors in the state of Rhode Island as to be able to avoid a conveyance of personal property in the latter state, good as against the insolvent, but invalid as against creditors, by the law of Rhode Island. In New York, the "ubiquity of the operation of the bankrupt law, as respects personal property," was denied in Abraham v. Ples- toro, 3 Wend. 538. Chancellor Kent consid- ers it to be a settled part of the jurisprudence of the United States, that a prior assignment under a foreign law will not be permitted to prevail against a subsequent attachment of the baijjtrupt's effects found in the United States. The courts of the United States will not subject their citizens to the Inconvenience of seeking their dividends abroad, when they have the means to satisfy them under their own control. We think that it would preju- dice the rights of the citizens of the states to admit a contrary rule. The rule, as it is with us, affords an admitted exception to the universality of the rule that personal prop- erty has no locality, and follows the domicile of the owner. This court, in Ogden v. Saun- ders, 12 Wheat. 213, disclaimed the English 332 ANCILLAUY REMEDIES. doctrine upon this subject; and in Harrison Y. Sterry, 5 Cranch, 289, 302, this court de- clared that ttie bankrupt law of a foreign country is incapable of operating a legal transfer of property In the United States. Such being the rule in the American courts, in respect to foreign assignments in bank- ruptcy, and in respect to such assignments as may be made under the insolvent laws of the states of the United States, there can be no good reason for giving to a receiver, ap- pointed in one of the states under a cred- itor's bill, a larger comity in the courts of the United States, or in those of the states or territories. On the contrary, strong rea- sons may be urged against it. A receiver is appointed under a creditor's bill for one or more creditors, as the case may be, for their benefit, to the exclusion of all other creditors of the debtor, if there be any such, as there are in this case. Whether appoint- ed as this receiver was, under the statute of New York, or under the rules and practice of chancery as they may be, his official rela- tions to the court are the same. A statute appointment neither enlarges nor diminishes the limitation upon his, action. His responsi- bilities are unaltered. Under eitlier kind of appointment, he has at most only a pas- sive capacity in the most important part of what it may be necessary for him to do, until it has been called by the direction of the coi'rt into ability to act. He has no ex- tra-territorial power of othcial action; none which the court appointing him can confer, with authority to enable him to go into a foreign jurisdiction to take possession of the debtor's property; none which can give him, upon the principle of comit3% a privilege to sue in a foreign court or another jurisdiction, as the judgment creditor himself might have done, where his debtor may be amenable to the tribunal which the creditor may seek. In those countries of Europe in which for- eign judgments are regarded as a foundation for an action, whether it be allowed by treaty stipulations or by comity, it has not as yet been extended to a receiver in chancery. In the United States, where the same rule pre- vails between the states as to judgments and decrees, aided as it is by the first sec- tion of the fourth article of the constitution, and by the act of congress of 20th jMay, 171J0 (1 Stat. 122), by which full faith and credit are to be given in all of the courts of the United States, to the judiijial sen- tences of the different states, a receiver under a creditor's bill has not as yet been an actor as such in a suit out of the state in which he was appointed. This court considered the effect of that section of the constitution, and of the act just mentioned, in McElmoyle v. Cohen, 13 Pet. 32i-327. But apart from the absence of any such case, we think that a receiver could not be admitted to the comity extended to judgment creditors, without an entire departure from chancery proceedings, as to the manner of his appointment, the securities which are taken from him for the performance of his duties, and the direction which the court has over him in the collec- tion of the estate of the debtor, and the ap- plication and distribution of them. If he seeks to be recognized in another jurisdiction, it is to take the fund there out of it, without such court having any control of his sub- sequent action in respect to it, and without his having even official power to give secur- ity to the court, the aid of which he seeks, for his faithful conduct and official account- ability. All that could be done upon such an application from a receiver, according to chancery practice, would be to transfer him from the locality of his appointment to that where he asks to be recognized, for the ex- ecution of his trust in the last, under the coercive ability of that court; and that it would be difficult to do, where it may be ask- ed to be done, without the court exercising its province to determine whether the suitor, or another person within its jurisdiction, was the proper person to act as receiver. Besides, there is much less reason for al- lowing the complainant in this case to be rec- ognized as receiver for the fund out of the state of New York, and in this jurisdiction, even if the practice in chancery in respect to receivers was different from what we have said It was. The remedies which the judgment creditor in New York had under his creditor's bill against his debtor, were not applied as they might have been in that state, according to the practice in chancery in such cases. When Clark had been en- joined under the creditor's bill, and the re- ceiver had been appointed, both judgment creditor and receiver knew at the time.— certainly, as the record shows, in a short time afterwards,— that Clark had a pecuniary claim upon the republic of Mexico. No at- tempt was made, according to chancery prac- tice, to coerce Clark by the attachment of his person under the injunction, to make an assignment of that claim for the payment of Camara's judgment. It cannot be said that Clark had not property to assign, and that it was therefore unnecessary to attacli him. That would make no dift'erence; for whether with or without property, he might have been compelled to make a formal assign- ment, even though he had sworn that he had none. It was so ruled in Chipman v. Sab- baton, 7 Paige, 47, and in Fitzburgh v. Ever- ingham, G Paige, 21). There was a want of vigilance in this mat- ter, which does not make any equity which he may have in New York upon Clark's prop- erty, superior to that of Clark's creditors, who are pursuing the funds in this district. Nor, according to the rule prescribed in the United States, that personal property has no locality on account of the domicile of the owner, to transfer it under a foreign assign- ment, can the receiver have in this case any thing in the nature of a lien to bind the property of Clark not within the state of ANCILLAUY HEMEDIES, 333 New York. When we take into consideration also the origin of the fund in controversy, the manner of its ultimate recovery from Mexico, the congi-essional action upon it, in every particular, to secure it, after the awards were made, to those who might be entitled to receive it; the jurisdiction given to the circuit court of this district, with an appeal from its decision to this court, upon the principles which govern courts of equity to adjudge disputes concerning it, and that such cases were to be conducted and govern- ed in all respects as in other cases in equity, we must conclude that the complainant in this case, as receiver, cannot be brought under the rule prescribed for our decision. We concur with the com-t below in the dismis- sion of the bill. a34 AKCILLARY KEMEDIES. WISWALL V. SAMPSON et al. (14 How. 52.) Supreme Court of the United States. Dec. Term, 1852. The case Is stated in the opinion of the court. IXr. Sewai-d, for plaintiff. Mr. Chilton and J. A. Campbell, contra. NELSON, J., delivered the opinion of the court. This is a writ of error to the circuit court of the United States for the Southern district of Alabama. The -suit in the court below was an action of ejectment against Wiswall to recover the possession of a lot of land situated in the city of Slobile. The lessors of the plaintiff gave in evidence two judgments against John Ticknor— one in favor of Fowler and Co. for $4,401, rendered 2Sth December, 1840— the other in favor of Grouch and Sneed for $7,107.25, rendered 31st December of the same year, each of them in the circuit court of the United States. Executions were issued upon each of the judgments within the year, and returned by the marshal "no property found." An alias fi. fa. was issued on the judgment in favor of Crouch and Sneed on the 24th February, 1815, and the lot in question levied on; an alias fi. fa. was also issued on the judgment in favor of Fowler and Co. on the 7th April, 1845, and a levy made on the same; and on the 7th July, the lot was sold on both executions, and bid off by Dargan, one of the lessors of the plaintiff, for the sum of $7,5!J0, and a deed executed to him by the marshal on the 13th August of the same year. Dar- gan quitclaimed the premises to Hall, the oth- er lessor. The lessor's of the plaintiff claim title imder this sale. The defendant, Wiswall, gave in evidence a judgment in his favor against Ticknor in the circuit court of the state tor !f2, 233,17, rendered 14th June, 1S42; an execution is- sued 1st July of the same year, which was returned by the sheriff "no property found;" also, a deed of the lot in question from Tick- nor to one James L. Day, bearing date 28th April, 1840; and the exemplification of a de- cree and the proceedings in chancery on a bill filed 7th February, 1843, by Wiswall against Ticknor and Day, setting nside the deed to Day as fraudulent and void against creditors. The decree was rendered April tenn, 1845. Also, the appointment of a re- ceiver by the court to whom possession of the property was delivered on the 27th June of the same year. The receiver remained in the possession till the lot was sold by the master, 1st March, 1847, under the decree in chancery, and was purchased in for the de- fendant Wiswall for the sum of $0,500. The defendant claims under this title. Notice was given, on the day of sale, by the marshal, under the two judgments, of the pendency of this suit in chancery, and of the appointment of a receiver, and that he was in the possession of the property. It appeared, also, that the lot was bid off by Dargan at the marshal's sale, by an ar- rangement between the attorneys represent- ing the two judgments, Dargan being the at- torney for the one in favor of Crouch and Sneed, that if the title thus acquired should enable him to recover the property, the judg- ment in favor of Fowler and Co. should be paid out of it; but, if he should fail to re- cover it, then the sale was to be considered a nullity, and no money was to be paid. It further appeared, that an application had been made by the attorney in the judg- ment in favor of Fowler and Co. to the court to amend the marshal's return so as to set forth the fact that no money had been paid, and that the motion was then pending in court And further, that a bill had been filed in chancery by the assignee in bank- ruptcy of the judgment of Fowler and Co. against the defendant and others, to have the proceeds of the sale of the property on the decree apislied to the payment of that judgment, and in which bill it is insisted that the sale under the two judgments was inop- erative, on account of the agreeiaent between the attorneys under whom it was made, and that this suit was then pending. It further appeared, that Dargan applied to the court of chancery on the 20th Novem- ber, 1815, by petition, setting out his title un- der the two judgments to have the posses- sion of the lot by the receiver delivered up to him, or if that should not be ordered, then that he might be at liberty to bring an action of ejectment against the recjiver to recover the same. That the defendant, Wiswall, put in his answer, setting up the same matters now re- lied on to invalidate the sale to Dargan and also claiming a paramount lien upon the property by virtue of his judgment and bill in chancery and decree setting aside the fraudulent conveyance to Day, directing a sale and application of the proceeds to the payment of his judgment, the app.jintment of a receiver, &c. That the chancellor overruled the applica- tion, and dismissed the petition on the 10th December, 1845. From which order an ap- peal was taken to the supreme court, and the decree or order affirmed. After the evidence was closed, the court charged the juiy, that the title of Dargan under the mai'shal's sale upon the two judg- ments, was superior to that of the defend- ant under the sale upon the decree in chan- cery, and direct'ed a verdict for the plaintiff. And further, that the decree in chancery on the petition of Dargan, was not conclusive upon the rights of the parties— that he was not bound to go into that court for relief, as his remedy was at law. ANCILLARY REMEDIES. 335 The case is now before us on exceptions to this charge. It was made a question, on the argument, whether or not the lien of the judgments, un- der which the marshal's sale took place, had not been postponed to tliat of Wiswall, on account of laches in the enforcement of them by execution. But in the view we have talt- en of the case, the validity of the liens, at the time of sale, will be conceded, without, how- ever, intending to express any opinion upon the question. Wiswall filed his bill in chancery against Ticknor and Day to set aside the fraudulent conveyance to the latter, and have the prop- erty applied to the satisfaction of his judg- ment, on the 7th February, 18-13. In that bill he prayed for a sale of the real estate, and for the appointment of a receiver to take charge of it, with other assets of the judg- ment debtor; and, also, for an injunction. A temporary injunction was granted. On the coming in of the answers of the defendants, the complainant, on the 11th April of the same year, moved for the appointment of a receiver, and the defendants, at the same time, moved to dissolve the injunction. The court denied the motion to appoint the re- ceiver, and dissolved the injunction, express- ing the opinion that the answers so far ex- plained the circumstances under which ths deed to Day was given, as to remove the charge of fraud against it. An appeal was taken to the supreme court, and, on the 10th April, 184i, that court reversed the or- der of the court below, and remanded the cause for further proceedings; and on the 1.5th April, ISio, the chancellor made a de- cree, that the deed was fraudulent and void, as against the complainant, and referred the case to a master, to take and state the ac- count between the parties. He further or- dered and decreed that a receiver should be appointed to take possession of all the prop- erty embraced in the fraudulent conveyance, and, particularly, that possession should be delivered to him of the premises in question; and further, that the receiver, under the di- rection of the master, should sell the same and apply the proceeds to the payment. of the complainant's judgment, with costs, &c. The receiver was appointed on the 27th June, 1S4.5, and on the same day, Ticknor, who was in possession of the premises, at- torned to him, who held possession until the sale was made in pursuance of the de- cree. It will be recollected that the execu- tion on the judgment, in favor of Crouch and Sneed, was issued, and levied on the 24th February, 184.5 ; and on that in favor of Fowler and Co. 7th April of the same year, and that the sale took place under which the lessors of the plaintiff claim, 7th July, 1845. At the time, therefore, of this sale, the receiver was in the possession of the prem- ises, under the decree of the court of chan- cery—in other words, the possession and custody of them were in the court of chan- cery itself, (as the court is deemed the land- lord,) to abide the hnal decree to be there- after rendered in the suit pending. The apiDointraent of a receiver is a matter resting in the discretion of the court; and, as a general rule, in making the appointment on behalf of a complainant seeking to en- force an equitable claim, or a claim which Is the subject of equitable jurisdiction, against real estate, it will take care not to interfere with the rights of a person holding a pridr legal interest in the property. Thus, where there is a prior mortgagee having the legal estate, the court will not, by the ap- pointment of a receiver, deprive him of his right to the possession; but, at the same time, it will not permit him to object to the aiipointment by any act short of a personal assertion of his legal rights, and the taking of possession himself. 1 Jac. & "W. 64S; 2 Swa^st. 108, 137; 3 Swanst. 112, note 115; 3 Daniell, Ch. Prac. 1950, 1951. If the person holding the legal interest is not in possession, the equitable claimant against the property is entitled to the in- terference of the court, not only for the purpose of preserving it from waste, but for the purpose of obtaining the rents and prof- its accruing, as a fund in court to abide the result of the litigation. For until the per- son holding the legal interest takes posses- sion, or asserts his right to the possession, the accruing rents and profits present a question simply between the parties to the litigation. And the coui't will also appoint a receiver, even against a party having pos- session under a legal title, if it is satisfied such party has wrongfully obtained that in- terest in the property. Thus, where fraud can be proved, and immediate danger is likely to result, if possession, pending the litigation, should not be taken by the court in the mean time. 13 Yes. 105; 16 Ves. 59; 3 Daniell, Ch. Prac. 1055. The effect of the appointment is not to oust any party of his right to the possession of the property, but merely to retain it for the benefit of the party who may ultimately appear to be entitled to it; and when the party entitled to the estate has been ascer- tained, the receiver will be considered his receiver; Turn. & R. ;->45; Daniell, Ch. Prac. 1982; and the master will usually be direct- ed to inquire what encumbrances there are affecting the estate, and into the priorities respectively. Cod wise v. Gelaton, 10 Johns. 521. When a receiver has been appointed, his possession is that of the con -t, and any at- temiJt to disturb it, without the leave of the court first obtained, will be a contempt on the part of the person making it. This was held in Angel v. Smith, 9 Ves. 335, both with respect to receivers and sequestrators. When, therefore, a party is prejudiced by having a receiver put in his way, the course 336 ANCILLARY EEMEDIES. has either been to give him leave to bring an ejectment, or to permit him to be examin- ed pro interesse suo. Broolis v. Greathed, 1 Jac. & W. 170; 3 Daniell, Ch. Prac. 1981. And the doctrine that a receiver is not to be disturbed, extends even to cases in which he has been appointed expressly, -without prejudice to the rights of persons having prior legal or equitable interests. And the individuals, having such prior interests must, if they desire to avail themselves of them, apply to the court either for liberty to bring ejectment, or to be examined pro interesse suo; and this, though their right to the possession is clear. 1 Cox, 422; 6 Ves. 2S7. The proper course to be pursued, says Mr. Daniell, in his valuable treatise on Pleading and Practice in Chancery, by any person who claims title to an estate or other prop- erty sequestered, whether by mortgage or judgment, lease or otherwise, or who_ has a title paramount to the sequestration, is to apply to the court to direct the plaintiff to exhibit interrogatories before one of the masters, in order that the party applying may be examined as to his title to the es- tate. An examination of this sort is called an examination pro interesse suo, and an order for such examination may be obtained by a party interested, as well where the property consists of goods and chattels, or personalty, as where it is real estate. And the mode of proceeding is the same in the case of the receiver. C Ves. 287; 9 Ves. 330; 1 Jac. & W. 178; 3 Daniell, Ch. Prac. 1984. A party, therefore, holding a judgment which is a prior lien upon the property, the same as a mortgagee, if desirous of enfor- cing it against the estate after it has been taken into the care and custody of the court, to abide the final determination of the liti- gation, and, pending that litigation, must first obtain leave of the court for this purpose. The court win direct a master to inquire into the circumstances, whether it is an existing un- satisfied demand, or as to the priority of the lien, &c., and take care that the fund be applied accordingly. Chancellor Kent, in delivering the opinion of the court in Codwise v. Gelston, as chief justice, observed: "That if a fund for the payment of debts be created under an order or decree in chancery, and the creditors come in to avail themselves of it, the rule of equity then is, that they shall be paid in pari passu, or upon a footing of equality. But when the law gives a priority, equity will not destroy it, and especially where legal assets are created by statute, as In case of a judgment lien, they remain so, though the creditors be obliged to go into equity for assistance. The legal priority will be protected and preserved in chan- cery." 10 Johns. 522. The settled rule, also, appears to be, that where the subject-matter of the suit in equi- ty is real estate, and which is taken into the possession of the court pending the litiga- tion, by the appointment of a receiver, or by sequestration, the title is bound from the filing of the bill; and any purchaser, pendente lite, even if for a valuable consid- eration, comes in at his peril. 3 Swanst, 278, note, 29S, note; 2 Daniell, Ch. Prac. 12G7; G Ves. 287; 9 Ves. 330; 1 Jac. & W. 178; 3 Daniell, Ch. Prac. 1984. It has been argued, that a sale of the premises on execution and purchase, occa- sioned no interference with the possession of the receiver, and hence no contempt of the authority of the court, and that the sale, therefore, in such a case, should be upheld. But, conceding the proceedings did not disturb the possession of the receiv- er, the argument does not meet the objec- tion. The property is a fund in court, to abide the event of the litigation, and to be applied to the payment of the judgment creditor, who has filed his bill to remove impediments in the way of his execution. If he has succeeded in establishing his right to the application of any portion of the fund, it is the duty of the court to see that such application is made. And, in order to ef- fect this, the court must administer it in- dependently of any riguts acquired by third persons, pending the litigation. Otherwise, the whole fund may have passed out of its hards before the final decree, and the liti- gation becomes fruitless. It is true, in administering the fund, the court will take care that the rights of prior liens or encumbrances shall not be destroy- ed; and will adopt the proper measures, by reference to the master or otherwise, to as- certain them, and bring them before it. unless the court be permitted to retain the possession of the fund, thus to administer it, how can it ascertain the interest in the same to which the prosecuting judgment creditor is entitled, and apply it upon his demand ? There can be no difficulty In ascertaining the prior Hens and encumbrances, as all of them are matters of record. Several of the judgment creditors came in, in this case, and received their share in the distribution. These two judgment creditors had notice of the suit before the sale, and might hare made themselves parties to it, and claimed application of the fund according to the priority of their liens. They were also before the court, pending the litigation, on the petition of Dargan, who had purchased for their benefit, to have the possession of the recelveridelivered up to the purchaser. There is no pretence, therefore, for saying that they have not had notice of the proceedings in the equity suit. The prayer of the petition was denied, among other grounds, because their appropriate remedy was a motion to the court founded ANCILLARY liEMEDIES. 337 on their judgments, to hiave the proceeds of the sale under the decree applied to them according to priority. We agree, that the person holding the prior legal lien or encumbrance, must have notice, and an opportunity to come In and claim hia prior I'ight to the property or in- terest in the fund before his legal right can be affected; and the proper way is by sum- mons or notice upon the order or direction of the court. This notice can be readily given on the report of the master, of the prior liens or encumb' ances resting upon the estate. But it is not necessary to go this length in the case before us, as it is sufficient to say, that tlie sale under the judgment, pending the equity suit, and while the court was in possession of the estate without leave of the court, was illegal and void. We do not doubt but that it would be competent for the coui't. in case the judgment creditor, holding the prior lien, had not come in and claimed his interest in the equity suit, to decree a sn^p in the final disposition of the fund sub- ject to his judgment. The purchaser wou-d then be bound to pay it off. But this dis- position of the legal prior encumbrance is a very different mattei', and comes to a very different result, from that of permitting the enforcement of it, pendente lite, without the leave of the court. The rights of the sev- eral f-iaimants to the estate or fund is then settled, and the purchase under the decree cn-r> i^f made with a full knowledge of the condition of the title, or charges to which it may be subject. Neither do we doubt but that it is com- petent, and might, in some cases, be fit and proper for the court, where the property in dispute is ample, and the litigation protract- ed, to permit the execution to issue, and compel the prosecuting creditor to pay off the judgment. 3 Beav. 428. But it is man- ifest that these proceedings, on behalf of the prior encumbrancer, should be under the control of the discretion of the court, as the condition of the title to the property may frequently be so complicated and embar- rassed, that unless the sale was withheld until the title was cleared up by the judg- ment of the court, great sacrifice must nec- essarily ensue to the parties interested. This case affords an apt illustration of the remark. The marshal's sale was made un- der an arrangement that no money was to be paid by the purchaser, unless he succeed- ed in obtaining a title to the property under it. It is obvious, therefore. If the purchase had been unconditional, and at the risk of the purchaser, it must have been bid off for a nominal consideration. As we have already said, it is sufficient, for the disposition of this case, to hold, that while the estate is in the custody of the court, as a fund to abide the result of a suit pending, no sale of the property can take ' SHEP.EQ.JHB. — 22 place either on execution or otherwise, with- out the leave of the court for that purpose. And upon this ground, we hold that the sale by the marshal on the two judgments, was illegal and void, and passed no title to the purchaser. Wo are, also, inclined to think, that the question of title to the property under the mavshal's sale is concluded between those loarties by the judgment of the court in the proceedings on the petition by the purchaser f'>r the removal of the receiver, and to be let into the possession. This, we have ssen, is the appropriate remedy on behalf of a person claiming a paramount legal right to an estate which has been brought into the possession and safe-keeping of the court of chancery, pending the litigation in respect to it. This proceeding was explained by Lord Eldon in Angel v. Smith, 9 Ves. 33.j, speak- ing of the rule in respect to sequestrators, and which he held was equally applicable J in the case of receivers. "Where sequestra- tors," he observed, "are in possession under the process of the court, their possession is not to be disturbed, even by an adverse ti- tle, without leave: upon this principle, that the possession of the sequestrators is the possession of the court, and the court being competent to examine the title, will not per- mit itself to be made a suitor In a court of law, but will itself examine the title. And the mode is, by permitting the party to come in to be examined pro mteresse suo; the practice being, to go before the master to state his title, and there is the judgment of the master, and afterwards, if necessary, of the court upon it." See, also, 10 Beav. 318; 2 Daniell, Oh. Prac. 12T1; 2 Madd. 21; IP. Wms. 308. An appeal to the house of lords will lie from the order or decree of the chancellor upon exceptions to the master's report in the matter. 2 Daniell, Ch. Prac. 1273; 3 Daniell, Ch. Prac. 1633, 1634. In the petition to the chancellor in the case before us, the purchaser set out his title at large under the marshal's sale, and claim- ed the possession of the property by virtue of his title, that the receiver might be re- moved, and the possession delivered to the petitioners. The answer of Wiswall set up his right to the property under the decree in the suit against Ticknor and Day. The right of the petitioner, therefore, un- der his title to the possession of the property as against the right of Wiswall under the proceedings in equity and the decree in his favor, would seem to be a question directly involved. The court so understood the issue and passed upon it, holding, as we hold in this case, that the sale was illegal and void, having been made while the estate was in the possession and safe-keeping of the court of chancery. From this decision, an appeal 338 ANCII.LABY REMEDIES. was taken to the supreme court, where the order or decree of the court below was af- firmed. 11 Ala. 988, Dargan v. Waring and others. The question is one depending very much upon the local law of Alabama; and the judgment, therefore, in the matter, by the highest court of the state, is entitled to the highest respect. For these reasons, we are of opinion that the judgment of the court below was erro- neous and must be reversed, and the case remitted for further proceedings. 14 How. 3G8; 17 How. 239, 471. ANCILLARY EEMEDIES. 339 FOSDICK V. SCHALL. (99 U. S. 235.) Supreme Court of the United States. Oct., 1878. Appeal from the circuit court of the Unit- ed States for the Northern district of Illi- nois. The Chicago, Danville, and Vihconues Railroad Company, an Illinois corporation, on the 10th of March, ISCO, executed a mort- gage to William R. Fosdick and James D. Fish, trustees, to secure an issue of $2,500,- 000 of bonds. This mortgage covered all the franchises, issues, and profits of the company, and all the property it then owned or possessed, or might thereafter acquire, either in law or equity. Fro vision was made to the effect that, in case of default in the payment of interest on the bonds continuing for six months, the trustees in the mortgage, on demand of the holders of at least one-half the bonds then outstanding and unpaid, might take possession of all the mortgaged property, together with all the books, records, papers, accounts, and money of the eompauy, and enter into the management and control thereof, paying all the expenses of taking, holding, managing, and operating the property from the income and profits thereof, or, if the property should be sold, from the sale thereof. The property might be sold as an entirety, and the proceeds, after deducting the expenses of sale, applied to the payment of the in- terest and principal of the bonds. On the 12th of Jlarch, 1872, a second mort- gage was executed to the same trustees, to secure a further issue of bonds to the amount of $1,500,000. On the 1st of February, 1873. after both these mortgages were executed, the railroad company and Michael Schall entered into a contract in writing, a copy of which is as follows: "New York, Feb. 1, 1873. Sold this day for account of Mr. Michael Schall, of York, Penn., to the Chicago, Danville, and Vincennes Railroad Co., Office 38 Pine street. New York: Two hundred (200) eight- wheel gondola coal-cars, as per specifica- tions and agreement made by J. E. Young, and herewith attached. Price, delivered on the track at Pittsburg, at depot of P. C. & St. L. R. R., seven hundred dollars per car. Cars to remain the property of Michael Schall until paid for. Delivery to com- mence, and cars to be taken, on or before March 1, and at least twenty-five (2."3) cars in each week thereafter until all are deliv- ered, the seller having the option of increas- ing the number of cars to be delivered per week, if desired. Settlement to be made on delivery of each twenty-fl.ve (25) cars or more, at the option of sellers, with the notes of the Chicago, Danville, and Vincennes Railroad Company, payable in the city of New York, and adding interest at the rate of ten per cent per annum. The first notes are to be drawn at sixty days from date of delivery, and for twenty (20) dollars on each car, and the balance for a like amount and payable monthly thereafter. Cars to be let- tered and numbered as per directions of Mr. Young. Invoice and shipping receipts to be sent to the railroad company's office. No. 38 Pine street. New York. It is understood the sellers shall not be responsible for the acts of Providence, strikes of workmen, or other causes beyond their control, which may retard and delay the manufacturing and delivery of the said cars as above stated. Shipping receipts to be evidence of delivery. [Signed] Michael Schall. "I hereby accept the above proposition for the R. R. Co. [Signed] J. E. Young, Gen. Manager." Under this contract two hundred and twenty-five cars were delivered into the pos- session of the railroad company by Schall, numbered from 0141 to 03G5, both inclusive, and lettered, "This car is the property of Michael Schall, York, Pa." Notes were ex- ecuted by the company, according to agree- ment, for the price of the cars as they were delivered. Of these notes $44,323.43 have been paid by the company, and $110,334.04 are outstanding. The cars were used by the company in the usual course of business. On the 22d of February, 1875, Stephen Os- good, who held $9,000 of the bonds secured by the mortgage of 1869, and $2,000 of those secured by that of 1872. filed a bill in chan- cery in the circuit court of Will county, Illi- nois, against the railroad company and Fos- dick and Fish, trustees, with others, for a foreclosure of the two mortgages and a sale of the mortgaged property for the benefit of the bondholders, according to their respec- tive priorities; and on the same day the court appointed Henry B. Hammond and John B. Brown receivers In the cause, with authority to take the moneys, property, and efCeets of the company into their possession, and run and operate the railroad under the orders of the court until discharged. In the order making the appointment it was spe- cially provided that out of the moneys which should come into the hands of the receivers by reason of the operation of the road, the collection of debts, or the sale of the property, they should pay without fur- ther order as to particular demands— 1. The necessary current expenses of car- rying out the duties of the trust; 2. "All debts now [then] due and owing by said railroad company for labor and services rendered in operating the railroad within the [then] last three months, and all indebt- edness for engines, iron, wood, supplies, cars, or other property purchased within said period of three months for the use of the company;" 3. Taxes, insurance, and charges of litiga- tion; and. 4. Liabilities for animals killed by engines or cars upon the line of the road. On the 5th of May, 1875, the cause was re- 340 ANCILLAUY KEMEDIES. moved to the circuit court of tlie United States for the Northern district of Illinois on the application of Fosdick and Fish, trustees, two of the defendants, and on the 17th of the same month the receivers ap- pointed by the state court filed in the cir- cuit court an account of their receivership for the months of February, March, and Aiiril. On the 20th of May, Fosdick and Fish, as trustees, filed in the same circuit court of the United States their bill against the rail- road com'pany and certain other defendants, for the foreclosure of the two mortgages of which they were trustees; and on the same day an order was entered in that court ap- pointing Adna Anderson receiver, with au- thority to take possession of all the books, paisers, vouchers, and evidence of indebtea- ness, moneys, and assets of the company, and all other effects of every kind, name, and nature which belonged to the company, or were held for its use and benefit, or in which it had any beneficial interest. He was also authorized to run, operate, and manage the road and pay the expenses thereof, and manage and control all the property and affairs of the company. Au- thority was also given him to use the mon- eys of the company for any and all the pur- poses specified in the order, and he was re- quired, as speedily as possible, to examme into the condition of the property and as- sets of the company, its contracts, leases, running arrangements, its business affairs, and take an inventory of its movable prop- erty and make a schedule of its floating in- debtedness for labor and supplies, and re- port the same, as soon as might be, witn nta recommendation as to the proper uisposido^i of the same and payment thereof. Under this order Anderson took possession of the property, and on the ]lth of June the re- ceivers appointed by the state court filed their final accounts, and asked to be dis- charged from their trust. The cars delivered under the Schall eon- tract were in use by the company when the receivers appointed by the state court took possession. Those receivers also continued to use the cars during all the time they oper- ated the road, and Anderson took the posses- sion of them when he entered upon his re- ceivership. On the 27th of November, 1875, Anderson having ascertained what the claini of Schall was, and finding that they were necessary for the use of the road, entered into an arrangement with him, subject to the approval of the court, by which they were valued at $420 each ; and it was agreed that Schall should be paid seven dollars a month for each car as rent. The aggregate of payments at this rate for five years would equal the value of the cars; and it was fur- ther agreed that if the rent was paid prompt- ly, and in addition an amount which would be equal to interest at the rate of seven per cent per annum on the deferred instalments. the cars should, at the end of that time, be- come the property of the company. On the 19th of July, 1875, the circuit court denied a motion of Osgood to consolidate his suit removed from the state court with that of Fosdick and Fish, but made an order al- lowing him and his associates to intervene in the latter suit for the protection of their respective interests, upon taking the neces-, sary steps therefor. Accordingly, on the 6th of January, 1876, Stephen Osgood, Frederick W. Huidekoper, Thomas W. Shannon, John M. Dennison, George W. Gill, Alanson A. Sumner, Chandler Bobbins, and William T. Hickok, owners and holders of a large amount of bonds secured by the several mortgages which were in the process of foreclosure, filed, with the permission of the court, their petition of intervention. On the 27th of January, 1876, Schall filed an intervening ijetition, in which, after set- ting forth the facts of his claim substantial- ly as they have already been given, and averring that he had been paid at the rate of seven dollars a month as rent during all the time the cars had been in use by the present receiver, he asked that the balance, his due, might be paid him out of any funds to the credit of the cause not otherwise ap- propriated, and that the cars might be re- turned to him. Fosdick and Fish and the intervening bond- holders answered this petition, claiming that the title of the cars had passed to the com- pany under its contract with Schall, and that consequently the lien of the mortgages had attached to the cars as after-acquired prop- .erty. They denied his right to payment for the cars out of the income of the road or out of the proceeds of the sale, and they de- nied his right to a return of the cars. On the 5th of December, 1876, the court entered a decree in the suit of Fosdick and Fish for a sale of the mortgaged property, not, however, including the cars of Schall; and on the 7th of February, 1877, the proper- ty was sold in accordance with the provisions of the decree to Huidekoper, Shannon, and Dennison for $3. -1.50,000. On the 12th of April the sale was approved by the court, and the master ordered to convey the property to the purchasers. On the 28th of April, 1877, the master, to whom the matter of the intervening petition of Schall had been referred, reported the facts as they have already been stated, and also that the cars were necessary for the use of the road, and that the arrangement which had been made by the receiver was a beneficial one, whether the road remained in the hands of the receiver or passed into the possession of other parties. To this report Fosdick and Fish and the Intervening bondholders excepted, in sub- stance, because the master found the title to the cars to be in Schall, and not in the com- pany. Upon the final hearing, the court held that Schall had not parted with his title ANCILLARY REMEDIES. 341 to the cars, and was entitled to the posses- sion. Accordingly it was ordered that the receiver, if in possession, or the purchasers at the sale, should restore the cars to Schall, and that the clerk of the court, out of the funds standing to the credit of the cause, should pay him the sum of $9,450. as rent for the cars, at the rate of seven dollars each per month for the six mouths preceding the 22d of February, lS7.j, the date when the re- ceivers of the state court were appointed and took possession, and the further sum of $5,- 118.75, for a like rent during the time the cars were used by the receivers of the state court. It nowhere appears from the record that there are any funds in court to the cred- it of the cause except such as arose from the sale of the mortgaged property. From this decree Fosdicli and Fish and the intervening bondholders have appealed. Henry Crawford and Ashbel Green, for ap- pellant. R. Biddle Roberts, contra. Mr. Chief Justice WAITB, after stating the facts, delivered the opinion of the court. Two questions are presented by the assign- ment of errors in this case: (1) Did the lieu of the mortgages attach to the cars of Schall on their delivery to the com- pany under his contract, so as to prevent their reclamation as against the mortgagees if the price was not paid according to agreement? (2) Was the order for the payment out of the fund in court of the rent of the cars, dur- ing the time they were used by the receivers appointed by the state court and for six mouths before, justifiable under the circum- stances of this case? As to the first question, it is contended that the mortgage created a subsisting and para- mount lien on the cars as soon as they were put into the possession of the railroad com- pany under the contract, and that the reserva- tion of the title was void under the laws of Illinois, because the contract was not recorded. It must be conceded that contracts like this are held by the courts of Illinois to be in ef- fect, so far as the chattel mortgage act of that state is concerned, the same as though a form- al bill of sale had been executed and a mortgage given back to secure the price. We had occasion to consider that question in Her- vey V. Locomotive Works, 93 U. S. 664, and there held, following the Illinois decisions, that if such an instrument was not recorded in ac- cordance with the jjrovisions of the chattel mortgage act (Rev. St. 111. 1874, 711, 712), a lien like that of Schall would have no validity as against third persons. Whatever may be the rule in other states, this is undoubtedly the effect of the Illinois statute as construed by the courts of that state. In Green v. Van Buskirk, 5 Wall. 307, this court also held that "where personal property is seized and sold under an attachment, or other writ issuing from a court of the state where the property is, the question of the liability of the property to be sold under the writ must be determined by the law of that state, notwithstanding the domicile of all the claimants to the property may be in another state." Hervey v. Loco- motive Works, supra, was also a case of sei- zure and sale under judicial process; and the language of the court, as expressed in its opin- ion delivered by ilr. Justice Davis, is to be construed in connection with that fact. As between the parties, notwithstanding the Illinois statute, the transaction is just what, on its face, it purports to be, "a conditional sale, Avith a riglit of rescission on the part of the vendor, in case the purchaser shall fail in payment of his instalments, — a contract legal and valid as between the parties, but made Avith the risk, on the part of the vendor, of his losing his lien" if it works a legal wrong to third parties. Murch v. Wright, 46 111. 488. The question, tlien, is whether these mortga- gees occupy the position of thn-d parties with- in the meaning of that tenn as used in this statute. They are in no sense purchasers of the cars. The mortgage attaches to the cars, if it at- taches at all, because they are "after-acquired" I'lroperty of the company; but as to that class of property it is well settled that the lien at- taches subject to all the conditions with which it is incumbered when it comes into the hands of the mortgagor. The mortgagees take just such an interest in the property as the mort- gagor acquired ; no more, no less. These cars were "loose property susceptible of separate ownership and sepai'ate liens," and "such liens, if binding on the railroad company itself, are unaffected by a prior general mortgage given by the company and paramount thereto." tJ. S. V. New Orleans Railroad, 12 Wall. 362. The title of the mortgagees in this case, there- fore, is subject to aU the rights of Schall under his contract. The possession talcen by the receiver is only that of the court, whose olHcer he is, and adds nothing to the previously existing title of the mortgagees. He holds, pending the litigation, for the benefit of whomsoever in the end it shall be found to concern, and in the mean time the court proceeds to determine the rights of the parties upon the same principles it would if no change of possession had taken place. It follows that the decree ordering a return of the cars to Schall was right. A^'hether, if the property is worth more than is due upon the contract of purchase, the mortgagees can obtain the benefit of the overplus, is a ques- tion we are not called upon to consider. As to the second question, we have no doubt that when a court of chancery is asked by railroad mortgagees to appoint a receiver of railroad property, pending proceedings for foreclosure, the court, in the exercise of a sound judicial discretion, may, as a condition of issuing the necessaiy order, impose such terms in reference to the payment from the income during the receivership of outstanding debts for labor, supplies, equipment, or per- manent improvement of the mortgaged prop- 34-2 ANCILLAKY REMEDIES. erty as may under the circumstances of the particular case, appear to tie reasonable. Rail- road mortgages and the rights of railroad mortgagees are comparatively new in the his- tory of judicial iDroceedings. They are pecul- iar ii) their character and affect peculiar inter- ests. The amounts involved are generally large, and the rights of the parties oftentimes complicated and conflieting. It rarely hap- pens that a foreclosure is carried through to the end without some concessions by some parties from their strict legal rights, in order to secure advantages that could not otherwise be attained, and which it is supposed will op- erate for the general good of all who are in- terested. This results almost as a matter of necessity from the peculiar circumstances which suiTound such litigation. The business of all railroad companies is done to a greater or less extent on credit. This credit is longer or shorter, as the necessi- ties of the case require; and when companies become pecuniarily embarrassed, it frequently liappens that debts for labor, supplies, equip- ment, and improvements are permitted to ac- "umulate, in order that bonded interest may be paid and a disastrous foreclosure postponed, if not altogether avoided. In this way the daily and monthly earnings, which ordinarily should go to pay the daily and monthly expenses, are kept from those to whom in equity they be- long, and used- to pay the mortgage debt. The income out of which the mortgagee is to be paid is the net income obtained by deducting from the gross earnings what is required for necessary operating and managing expenses, proper equipment, and useful improvements. Every railroad mortgagee in accepting his se- curity impliedly agi-ees that the current debts made in tlie ordinary course of business shall be paid from the current receipts before he has any claim upon the income. If for the convenience of the moment something is taken from what may not improperly be called the current debt fund, and put into that which be- longs to the mortgage creditors, it certainly is not Inequitable for the court, when asked by the mortgagees to take possession of the future income and hold it for their benefit, to require as a condition of such an order that what is due from the earnings to the current debt shall be paid by tlie court from the future current receipts before any thing derived from that source goes to the mortgagees. In this way the court will only do what, if a receiver should not be appointed, the company ought itself to do. For even though the mortgage may in terms give a lien upon the profits and income, until possession of the mortgaged premises is actually taken or something equivalent done, the whole earnings belong to the company and are subject to its control. Railroad v. Cow- drey, 11 Wall. 459; Oilman v. Telegraph Co., 91 U. S. 603; Bridge Co. v. Heidelbaoh, 94 U. S. 798. The mortgagee has his sti-ict rights which he may enforce in the ordinary way. If he asks no favors, he need grant none. But if he calls upon a court of chancery to put forth its extraordinary powers and grant him purely equitable relief, he may with pro- priety be required to submit to, the operation of a rule which always applies in such cases, and do equity in order to get equity. The appointment of a receiver is not a matter of strict right. Such an application always calls for the exercise of judicial discretion; and the chancellor should so mould his order that while favoring one, injustice is not done to another. If this cannot be accomplished, the application should ordinarily be denied. We think, also, that if no such order is made when the receiver is appointed, and it appears in the progress of the cause that bonded interest has been paid, additional equipment provided, or lasting and valuable improvements made out of earnings which ought in equity to have been employed to keep down debts for labor, supplies, and the like, it is within the power of the court to use the income of the receivership to dis- charge obligations which, but for the diver- sion of funds, would have been paid in the ordinary course of business. This, not be- cause the creditors to whom such debts are due have in law a lien upon the mortgaged property or the income, but because, in a sense, the officers of the company are trus- tees of the earnings for the benefit of the different classes of creditors and the stock-- holders; and if they give to one class of creditois that which properly belongs to an- other, the court may, upon an adjustment of the accounts, so use the income which comes into its own hands as, if practicable, to re- store the parties to their original equitable rights. While, ordinarily, this power is con- fined to the appropriationof the income of the receivership and the proceeds of moneyed as- sets that have been taken from the company," cases may arise where equity will require the use of the proceeds of the sale of the mortgaged property in the same way. Thus it often happens that, in the course of the administration of the cause, the court is called upon to take income which would oth- erwise be applied to the payment of old debts for current expense.';, and use it to make per- manent improvements on the fixed property, or to buy additional equipment. In this way the value of the mortgaged property is not unfrequently materially increased. It is not to be supposed that any such use of the in- come will be directed by the court, without giving the parties in interest an opportunity to be heard against it. Generally, as we know both from observation and experience, all such orders are made at the request of the parties or with their consent. Under such circumstances, it is easy to see that there may sometimes be a propriety in paying back to the income from the proceeds of the sale what is thus again diverted from the current debt fund in order to increase the value of the property sold. The same may sometimes be true in respect to expenditures ANCILLARY REMEDIES. 343 before the receivership. No fixed and in- flexible rule can be laid down for the govern- ment of the courts in all cases. Each case will necessarily have its own peculiarities, which must to a greater or less extent in- fluence the chancellor when he comes to act. The power rests upon the fact, that in the administration of the affairs of the company the mortgage creditors have got possession of that which in equity belonged to the whole or a part of the general creditors. Whatever is done, therefore, must be with a view to a restoration by the mortgage cred- itors of that which they have thus inequita- bly obtained. It follows that if there has been in reality no diversion, there can be no restoration; and that the amount of restora- tion should be made to depend upon the amount of the diversion. If in the exercise of this power eiTors are committed, they, like others, are open to correction on appeal. All depends upon a proper application of well-settled rules of equity jurisprudence to the facts of the case, as established by the evidence. In this case no special conditions were at- tached to the order appointing a receiver in the circuit court of the United States; and it is not contended that the intervener has brought himself within the rule fixed by the state court, in respect to the payment of gen- eral creditors. He asks to be paid a rent for his cars; but he entered into no express contract with the company which requires such a payment, and there is nowhere to be found any proof of an implied obligation to make such compensation. Two years and more before the appointment of a receiver by the state court, he contracted to sell his cars to the company at an agreed price, pay- able in instalments, secured by what was in legal effect a paramount lien upon the cars. Payments were made according to the con- tract uuMl October, 1871, when they stopped. The cars remained in use after that, not un- der a new contract of lease, but under the old contract of sale. The price agreed upon not having been paid in full, the powor of reclamation, which was reserved, has been exercised and sustained. The ears were not included in what was sold at the foreclosure sale, and consequently have contributed nothing directly to the fund now in court for distribution. So far as appears, no mon- eys growing out of the receivership remain to be applied on the bonded debt; and, if there did, through the rent already paid by Eeceiver Anderson, full compensation has been made fer all additions to that fund by means of the use of the cars. There is nothing to show that the current income of the receivership or of the company has been in any manner employed so as to deprive this creditor of any of his equitable rights. In short, as the case stands, no equitable claim whatever has been established upon the fund in court. Prima facie that fund be- longs to the mortgage creditors, and the pre- sumption which thus arises has not been overcome. Schall, for the balance, his due, after his own security has been exhausted, occupies the position of a general creditor only. The decree of the circuit court will be re- versed so far as it directs the payment of the sum of $14,568.75 to Schall, the appellee, from the fund in court; but in all other re- spects it is affirmed, and the cause remanded with instructions to so modify the decree as to make it conform hereto. The costs of the appeal must be paid by the appellee; and it is so ordered. 344 ANCILLARY REMEDIES. DREYFUS V. PERUVIAN GUANO CO. (41 Ch. Div. 151.) Chancery Division. Feb. 27, 1889. The lilaintiffs in this action by their state- ments of claim alleged as follows: (1) On the 2cl of March, 18S6, the plaintiffs insti- tuted an action against the defendant com- pany before the tribunal of commerce of Antwerp, in Belgium, claiming payment from the defendant company of the sum of 1,500.000 francs, representing the proceeds of the realization of the cargoes of guano of three ships arrived and taken and dischar- ged by the defendant company at Antwerp, or any greater or less sum which should be proved to be the proceeds thereof, and in interest from the 31st of December, 1883, to the day of payment, together with the costs of suit. (2) The defendant company appear- ed, and the tribunal, on the 25th of April, 1887, gave judgment, condemning the defend- ant company to pay to the plaintiffs 1,500,000 francs as the value of the cargoes, with in- terest at 6 per cent, from the 31st of Decem- ber, 1883, and the costs. (3) The defendant company appealed against that judgment to the court of appeal of Brussels, one of the supei-ior courts of the kingdom of Belgium, and that court, on the 10th of July, 1888, pronounced judgment, declaring the action to be admissible, and that the defendant com- pany owed an account to the plaintiffs of the proceeds of the realization of the car- goes; and annulled the judgment of the tri- bunal of commerce as far as it pronounced forthwith against the defendant company a condemnation to the payment of 1,500,000 francs and interest; ordered the defendants to produce, in two months from the service of the judgment, an account of the realiza- tion of the cargoes; reserved to the plaintiffs the right of disputing such account; con- demned the defendant company to pay to the plaintiffs on account (a, litre de provision) 500,000 francs, adjourned the rest of the ac- tion, and condeijined the defendant company in the costs of the action. (4) That judg- ment was served on the defendant company on the 21st of August, 1888, but they had not yet produced the account thereby order- ed, and in fact refused to do so. (5) The three cargoes of guano, the property of the plaintiffs, were sold, and the proceeds re- ceived by the defendant company, or their agents, and the plaintiffs could not ascertain the amount of such proceeds without full discovery thereof by the defendant company, and in particular of the accounts, books, pa- ))ers, documents, and writings relating there- to in the defendant company's possession or power. (6) Full or sufficient or any discov- ery could not be had under any procedure in the Belgian courts. The defendant company had no residence, place of business, or prop- erty within the jurisdiction of those courts, and any order by such courts for discovery would be entirely ineffectual. (7) The dis- covery sought by the plaintiffs was material and necessary to the prosecution of their claims and proceedings abroad against the defendant company; and it was contrary to justice and equity that such discovery should be withheld; and it could not be had except in this court. The plaintiff accordingly claimed (1) dis- covery from the defendant' company, by in- terrogatories or otherwise, of all dealings by the defendant company with the three car- goes in question, and of the time, place, man- ner, and other particulars of the sale there- of, and of the price at which they were sold, and of the expenses of such sale, and of the moneys received by the defendant company in respect thereof; and (2) such further or other order, by way of discovery, and in aid of the Belgian action, as the nature of the case might require. The defendant company now moved, un- der the rules of the supreme court, 1883, or- der 25, rule 4, to strike out the plaintifts' statement of claim on the ground that it dis- closed no reasonable cause of action, and to have the action dismissed, with costs. Sir Horace Davey, Q. C, and Ingle Joyce, for plaintiffs. Rigby, Q. C, and Jlr. Hal- dane, for defendants, in support of the mo- tion. KAY, J. The notice of motion in this case seeks to have the statement of claim struck out on the ground that it discloses no reason- able cause of action, and that the action may be dismissed with costs. The application is founded upon order 25, rule 4, an order insti- tuting a new course of proceeding in lieu of demurrers, which it abolishes. The state- ment of claim seeks discovery in aid of an action which is pending between the plaintiffs and defendants in the kingdom of Belgium. The main question is whether tlie court has jurisdiction to entertain an action for dis- covery only in such a case. In Lord Redes- dale's treatise on Pleading (3d Ed., p. 151) the practice is thus stated: "Where the bill is a bill of disqovery merely, it is necessary for the plaintilf to sheAV by his bill a case in which a court of equity will assume a jurisdiction for the mere purpose of compelling a discov- ery. Th's jurisdiction is exercised to assist the administration of justice in the prosecution or defence of some other suit, either in the court itself or in some other court." In a note it is added: "A discovery has been com- pelled to aid the jurisdiction of a foreign court. Crowe and others against Del Ris and Val- lego, in chancery, lllh July, 17G9." The case last mentioned has not been reported, but the records have been investigated, and a fuller statement of it is given In the note to Bent V. Young, 9 Sim. 180. From tliat it appears that the real names of the defendants were Del Rio and A'allejo, wlio were merchants in Lon- don, and that the plaintiff's had brought an action at Seville, in Spain, against merchants there, who they alleged \\cre agents for the ANCILLARY REMEDIES. 345 ilcfendants, and had by undue practices ob- tainecl gcrads and money upon wliicb the plain- tilts made a claim. The bill charged that (he defendants had in their custody or power accounts, letters, etc., from which this would appear, and prayed for discovery. The de- fendants put in a demurrer stating that they were no parties to the litigation in Spain, and also for want of equity, and this demurrer was overruled. There is no other case to be found in England in which a similar bill has been supported. But in Mitchell v. Smith (1 I'aige, 287), decided in 1828 in America, that case was treated as an authority for such a practice. However, in the later case of Bent v. Young, in 1838, the late vice chancellor of England pointed out that the demurrer might have been overruled on technical grounds, be- cause the former part of it was bad as a speaking demurrer, and, so far as it was for want- of equity, it did not apply, as no relief was prayed. The vice chancellor of England was evidently of opinion that there was no practice which warranted such a proceeding. He says (9 Sim. 191): "It seems to me to be siugular, considering the vast number of ap- peals that British subjects as weU as foreign- er have made to the privy council in respect of foreign lalantations, that no instance can be produced of this jurisdiction having been exercised, except tlie solitary one in Lord Redesdale's book; and it is equally singular if, in his opinion, the case was good law, that he should not have cited it with greater confi- dence than lie has done. In the case of Earl of Derby v. Duke of Athol, 1 Ves. Sr. U02, Lord Hardwicke seems to think it clear that this court will not compel discovery in favor either of an inferior court or of a court which has power, in itself, to compel a discov- ery. Those two propositions are iJlainly de- ducible from the language which his lordship uses towards the conclusion of his judgment; and I consider that in the contemplation of the court of chancery every foreign court is an inferior court. In the case of Crowe v. Del Itio (which is the only authority to be found (in the point now before me) the defendants were compelled to answer by the overi-nhng of the demurrer; and it seems to me that, with- out entering into the merits of the case, the demurrer was defective in point of mere form, and therefore it might have been overruled en that ground. In that case two grounds of demurrer were assigned. One was the gener- al want of equity; but, as the bill was not filed for relief, but for discovery only, that would be no objection. The other ground was that the defendants were not parties to the suit in the foreign court. That, therefore, was a speaking demurrer; for there was no allegation on the face of the bill that they were parties to the suit; and the lord chancel- lor may vei-y probably have overruled the de- inurrer on that ground, without at all enter- ing into the consideration of the question whether this court will enforce discovery in aid of proceedings in a foreign court." Bent V. Young, 9 Sim. 180, has been referred to in subsequent cases; as, for example, Morris v. Morris, 2 Phil. Ch. 20o; Paul v. Roy, 15 Beav. 433; and Transatlantic Co. v. Pietroni, Johns. (Bug.) 604. I cannot find any case in which the doctrine as there stated has been dissented from. On the other hand. Lord Redesdale's state- ment of Crowe v. Del Rio has been copied in- to various text-books, such as Beames, PI. Bq. I pp. Gti, 2.5:2; Coop. Eq. PI. p. 191; 2 Story, ! Eq. Jur. p. 712, pi. 14'J.3; 1 Madd. Ch. Prac. (3d Ed.) p. 270. But in all these, as was pointed out in the argument, it is evident that the writers merely took the statement of the case from Lord Redesdale's note without ex- amining the record, for in citing the case they have copied his misspelling of the names of the defendants. JS[o other case can be found in which courts of equity have entertained a bill of this kind for discovery in aid of pro ceedings in a foreign court. I am bound, there- fore, to assume that the practice as stated by the vice chancellor of England in Bent v. Young, 9 Sim. 180, and his explanation of Crowe V. Del Rio, have been adopted and acquiesced in; and in the face of these facts it would be inexpedient to permit such a prac- tice without the authority of an act of parha- ment. I do not advert to other objections which have been raised peculiar to this particular case, some of which possibly might be re- moved by amendment. My decision rests up- on the simple ground that this proceeding is not in accordance with the practice of the court, and I therefore direct that the state- ment of claim be struck out, and the action dismissed, with costs. Solicitors: G. M. Clements, C. & S. Harri- son & Co. H-i6 ANCILLARY REMEDIES. MITCHELL et al. v. SMITH. (1 Paige. Ch. 287.) Court of Chanceiy of New York. Dec. 2, 1828. In this suit a bill of discovery was filed to aid tlie defence to an action at law brought against the complainants in the superior court of Fairfield county, in the state of Con- necticut, at the suit of the diifendant Smith, who is a resident of tuis state. To this bill the defendant interposed a plea to the juris- diction of the court, alleging that by the laws of Connecticut, the superior court, on a bill in equity brought and presented there, can compel and enforce from a plaintiff in a suit at law a discovery and foreclosure, on oath, of the matters charged in such bill, to be used as evidence in the suit at law. W. Silliman, for complainants. J. R. Scott, for defendant. WALWORTH, Ch. The diiJerent elemen- tary writers on the jurisdiction of the court of chancery lay it down as an established principle, that this court will sustain a bill of discovery to aid the prosecution or de- fence of a civil suit in a foreign tribunal. Coop. PI. 191; Mitf. PI. 1.30; 1 Madd. Ch. 196. And the case of Crow v. Del Ris (de- cided by the English court of chancery in 1769) Is cited by those writers as establish- ing that principle. This jurisdiction, which is merely ancillary to tlie courts of other states, is entirely different from that which would interfere with their proceedings by in- junction. If the partj' wishes to stay the proceedings at law until he can obtain a discover3^ he must apply to the tribunal of the state or country where the action at law is pending. The plea in this case appears to be found- ed upon the principle, that this court will not sustain a bill of discovery in aid of the jurisdiction of another court, if sucli court has power to compel the discovery required. But that principle is misapplied here. The case of Dunn v. Coates, 1 Atk. 288, cited in support of this principle, was a bill seeking a discovery in aid of the jurisdiction of the ecclesiastical court; and the discoveiy war, refused, on the ground that those courts were capable of coming at the discovery themselves. By the ordinary course of pro- ceedings in those courts, a party may set forth the facts on which he relies, or which he seeks to establish, in the form of an alle- gation, which the other party may be com- pelled to answer personally, on oath. Such discovery is not only made in the same court, but in the same suit or proceeding. A bill of discovery in such a case would be worse than useless. The power of the su- perior courts of Connecticut to compel a discovery is of a very different description. It sufficiently appears from the defendant's plea, and such is undoubtedly the fact, that those courts have two distinct and inde- pendent jurisdictions, one of law. and the other in equity, like the exchequer in Eng- land, or the federal courts of our own coun- try. For the purposes of discovery, there- fore, the law and equity sides of the supei'ior court of Fairfield county are as distinct as if those powers were separatelj' vested in dif- ferent judges. If that- court has the power to comiiel a discovery from the defendant, who is a resident of this state, it cannot be done by any proceeding in the suit instituted there on the common-law side of the court, but must be by a bill in chancery. Whether the 0(iuity powers of that court are suffi- ciently extensive to reach this particul.^r case of compelling a discovery from a non- resident partj', does not distinctly appear from the averments in the defendant's plea. The same must, therefore, be overruled with costs; and the defendant must answer the complainant's bill within thirty days. WEST rUBJ.ISaiNU CO., raiNTEKS AND STEKEOTVPICUrt. ST. T.VUL, MI.NN. CASES ON EQUITY JURISPRUDENCE The following cases have been printed at the request of Prof. H. B. (Hutchins, Dean of the Law Department of the University of Michigan, for use in connection with his lectures in that law school. They have been chiefly selected from Fetter's Cases on Equity Juris- prudence and Pattee's Cases in Equity. RT. PAUL WEST PUBLISHING CO. 1895 COPTEIGHT, 1895, ity WEST PUBLISHING COMPANY. TABLE OF CONTENTS. Principles Limiting Jurisdiction. Page Teft V. Stewart 3 Crreen v. Spring 5 Frue T Loring 6 Watson V. Sutherland 8 Lynch v. Metropolitan El. Ry. Co 10 Movss V. Blmendorf 14 Rees T. C?ity- of Watertown 17 Maxims of Equity. Berry v. Mutual Ins. Co 21 Shirras v. Caig 23 City of St. Louis v. O'Neil Lumber Co 26 Comstoek v. Johnson 30 McLaughlin v. McLaughlin 31 Bleakley's Appeal 34 Plummer v. Keppler 35 Ellison T. Moffatt 36 Russell V. Failor 37 Craig V. Leslie 38 Stinchfield v. Milliken 48 Ames T. Richard.si)n 45 Haughwout V. Murphy 47 Clements v. Tillman 50 Property in Equity — Trusts. Urann v. Coates 52 Bates V. Hurd 54 Patton V. Chamberlain 56 Crissman v. Crissman 57 Steere v. Steere 60 Tobias v. Ketchum 67 Young T. Young 70 Ellison v. Ellison 75 Richardson v. Richardson 78 Morgan v. Malleson 80 Richards v. Delbridge 81 Martin v. Funk 83 Delaney v. McCormack 86 .Tackson t. Phillips 89 Holland v. Alcock 110 Fisher v. Fobes 11!) Dyer v. Dyer 121 Ocean Bank of New York v. Olcott I--'- Mitchell V. Read 12S Newton v. Porter 1.3(! McLeod V. Evans 139 Myers v. Board of Education of City of Clay Center 143 Cavin v. G-leason 148 Kyan v. Dox 150 Hun V. Cary 155 King V. Talbot 159 Ogden V. Murray 163 In re Schell 166 Equitable Eights. Fatten V. Campbell 168 Hunt V. Rousmanier 170 Park Bros. & Co. v. Blodgett & Clapp Co . . 175 Renard v. Clink 179 .Tacobs V. Morange 180 Peterson v. Grover 182 Kider v. Powell 184 Ludington v. Ford 186 Welles V. Yates 187 •Glass V. Hulbert 191 Hunter v. Bilyeu 199 Swimm v. Bush 205 Stimson v. Helps 207 Mitchell V. McDougall 209 Allore V. .Tewell 212 Tate V. Williamson 215 Cowee V. Cornell 218 Ross Y. Conway 222 Solinger v. Earle 224 Equitable Remedies. Page V. Martin 226 Blanchard v. Detroit, L. &■ L. M. R. Co 228 Wm. Rogers Manuf'g Co. v. Rogers 234 Danforth v. Philadelphia & C. M. S. L. Ry. Oo 236 3eck V. Allison 238 Lear t. Chouteau 241 ..Tones v. Newhall 243 Margraf v. Muir 246 Bird V. Hall 248 Merchants' Bank v. Thomson 249 Hubbell V. Von Schoening 253 HUTCH. BQ. JUK. (Hi)' Lamb v. Hinman 255 Stewa rd v. Winters 257 Manhattan Manufacturing & Fertilizing Co. V. New Jersey Stock Yard & Market Co.. 259 Trustees of Columbia College v. Lynch. .. . 261 Hendrickson v. Hinckley 265 Griffith V. Hilliard 267 Carlisle v. Cooper 269 Robinson v. Baugh 277 Dimcombe v. Felt 280 Wilson V. City of Mineral Point 282 CASES REPORTED. Pago -\nore V. Jewell (94 U. S. 506) 212 Ames V. Richardson (13 N. W. 137, 29 Minn. 330) 45 Bates V. Hurd (65 Me. 180) 54 Beet V. Allison (56 N. Y. 366) 238 ■Berry v. Mutual Insurance Co. (2 Johns. Ch. 603) 21 Bird V. Hall (30 Mich. 374) 248 Blanchard v. Detroit, L. & L. M. R. Co. (31 Mich. 43) vvy Blealdey's Appeal (66 Pa. St. 187) 34 ■Carlisle v. Cooper (21 N. J. Eq. 576) 269 Caviu V. Gleason (11 N. B. 504, 105 N. Y. 256) 148 City of St. Louis v. O'Neil Lumber Co. (21 S. W. 484, 114 Mo. 74) 26 •Clements v. Tillman (5 S. E. 194. 79 Ga. 451) 50 Comstock V. Johnson (46 N. Y. 615) 30 Cooper V. Carlisle (21 N. J. Eq. 576) 269 Coweo V. Cornell (75 N. Y. 91) 218 ■Craig V. Leslie (3 Wheat. 563-576) 38 Crissman v. Crissman (23 Mich. 217) 57 Danforth v. Philadelphia & Cape May S. L. R. Co. (30 N. J. Eq. 12) 236 Delaney v. McCormack (88 N. Y. 174). . . 86 Duncombe v. Pelt (45 N. W. 1004, 81 Mich. 332) 280 Dyer v. Dyer (2 Cox, Ch. 92) 121 Ellison V. Ellison (6 Ves. 656) 75 Ellison V. Moffatt (1 Johns. Ch. 46) 36 Fisher v. Fobes (22 Mich. 454) 119 Frue V. Loring (120 Mass. 507) 6 •Glass V. Hulbert (102 Mass. 24) 191 Green v. Spring (43 111. 280) 5 •Griffith V. Hilliard (25 A. 427, 64 Vt. 643) 267 Haugh-wout V. Murphy (22 N. J. Eq. 531) 47 Hendrickson v. Hinckley (17 Ho-w. 443). 265 Holland v. Alcock (16 N. E. 305, 108 N. Y. 312) 110 Hubbell V. Von Schoening (49 N. Y. 326) . 253 Hun V. Gary (82 N. Y. 65) 155 Hunt T. Rousmanier's Adm'rs (8 Wheat. 174) 170 Hunter v. Bilyeu (30 111. 228) 199 Jackson v. Phillips (14 Allen, 539) 89 Jacobs V. Morange (47 N. Y. 57) 180 .Jones V. Ne-whall (115 Mass. 244) 243 King V. Talbot (40 N. Y. 76) 159 HUTCH. EQ.JUR. Page Lamb v. Hinman (8 N. W. 709, 46 Mich. 112) 255 Lear v. Chouteau (23 111. 39) 241 lAidington v. Ford (33 Mich. 123) 186 Lynch v. Metropolitan El. Ry. Co. (29 N. E. 315, 129 N. Y. 274) 10 McLaughlin v. McLaughlin (20 N. J. Eq. 190) 31 McLeod V. Evans (28 N. W. 173, 214, 66 Wis. 401) 139 Manhattan Manufacturing & Fertilizing Co. V. New Jersey Stock- Yard & Market Co. (23 N. J. Eq. 161) 259 Margraf v. Muir (57 N. Y. 155) 246 Martin v. Funk (75 N. Y. 134) 83 Merchants' Bank v. Thomson (55 N. Y. 7) 249 Mitchell V. McDougall (62 111. 498) 209 Mitchell V. Read (61 N. Y. 123) 128 Morgan v. Malleson (L. R. 10 Eq. 475). 80 Morss V. Elmendorf (11 Paige, 277) 14 Myers v. Board of Education of City of Clay Center (32 P. 658, 51 Kan. 87) 143 Newton v. Porter (69 N. Y. 133) 136 Ocean Bank of New York v. Olcott (46 N. Y. 12) 124 Ogden V. Murray (39 N. Y. 202) 163 Page V. Martin (20 A. 46, 46 N. J. Eq. 585) 226 Park Bros. & Co. v. Blodgett & Clapp Co. (29 A. 133, 64 Conn. 28) 175 Patton V. Campbell (70 lU. 72) 168 Patton V. Chamberlain (5 N. W. 1037, 44 Mich. 5) 56 Peterson v. Grover (20 Me. 363) 182 Plummer v. Keppler (26 N. J. Eq. 481) . . 35 Rees V. City of Watertown (19 Wall. 107) 17 Renard v. Clink (51 N.W.692,91 Mich.l) 179 Richards v. Delbridge (L. R. 18 Eq. 11). 81 Richardson v. Richardson (L. R. 3 Eq. 686) 78 Rider v. Powell (28 N. Y. 310) 184 Robinson v. BaLwh (31 Mich. 290) 277 Rogers Manuf'g Co. v. Rogers (20 A. 467, 58 Conn. 356) 234 Ross V. Conway (28 P. 785, 92 Cal. 632). 222 Russell V. Failor (1 Ohio St. 327) 37 Ryan v. Dox (34 N. Y. 307) 150 Schell, In re (53 N. Y. 263) 166 Shirras v. Caig (7 Cranch, 34) 23 Solinger v. Earle (82 N. Y. 393) 224 Steere v. Steere (5 Johns. Ch. 1) 60 Steward v. Winters (4 Sandf. Ch. 588). . 257 (V) VI CASES REPORTED. Page Stirason v. Helps HO P. 290, 9 Colo. 33). 207 Stincbfield v. Milliken (71 Me. 567) 43 Swimm v. Bush (23 Mich. 99) 205 Tate V. Williamson (2 Ch. App. 55) 215 Teft V. Stewart (31 Mich. 367) 8 Tobias v. Ketchum (32 N. Y. 319) 67 Trustees of Columbia College v. Lynch (70 N. Y. 440) 261 Page Urann v. Coates (109 Mass. 581) 52 Watson V. Sutherland (5 WaU. 74) 8 Welles V. Yates (44 N. Y. 525) 187 Wm. Rogers Manuf'g Co. v. Rogers (20 A. 467, 58 Conn. 356) 234 Wilson V. City of Mineral Point (39 Wis. 160) 282 Young V. Young (80 N. Y. 422) 70 t CASES ON EQUITY JURISPRUDENCE. BUTCH.EQJCB.— 1. (1)* PRINCIPLES LIMITING JUEISBICTION. TEFT V. STEWART et al. (31 Mich. 367.) Supreme Court of Michigan. Jan. Term, 1875. Appeal from circuit court, Berrien county; in chancery. Edward Bacon, for complainant. George S. Olapp and D. Darwin Hughes, for defend- ants. GRAVES, C. J. The real grievance alleged by complainant is, that defendants combin- ed to defraud him, and the substance of the transaction, and its incidents, which he re- lates at much length, may be stated from the bill as follows: The defendant Stewart resided in St. Jo- seph, Berrien county, and owned a stock of goods, including a quantity of boots and shoes. This property was at Bangor, Van Buren county, and was valued by Stewart at some fourteen thousand dollars, and he wish- ed to sell it. One Sherwin, residing in Illi- nois, owned a tract of about two hundred acres of land in Berrien county, which he de- sired to dispose of. Complainant was an acquaintance of Sherwin, and after some ne- gotiations, it was agreed between the differ- ent parties, that Stewart should transfer to complainant the boots and shoes and one- half of the remainder of the stock, and that complainant, in consideration thereof, should procure Sherwin, upon certain terms agreed on between Sherwin and complainant, to convey the land to Stewart, but subject to an existing mortgage on it of one thousand dollars; that Carroll should buy the remain- ing half of the stock of Stewart, at two thou- sand five hundred dollars; that complainant in a few days received from Sherwin the deed going to Stewart, and called on the lat- ter to deliver it, and get possession of the boots and shoes and his share of the other goods; whereupon Stewart stated that com- plainant would have no trouble about the goods, as Carroll was at Bangor, in charge of them and making an inventory; that com- plainant expressed himself as unwilling to deliver the deed unless Stewart would give him some writing which would assure to him his portion, as he had nothing to do with Carroll; that Stewart then stated his readi- ness to give such a paper, and one Devoe, a brother-in-law of complainant, being present, it was arranged that the writing should run to Devoe instead of complainant; although, as was understood, complainant was solely interested; that Stewart then made a bill of sale to Devoe of .the boots and shoes, and half of the rest of the stock, and added an order to Carroll to make delivery; that com- plainant then gave up the deed to Stewart, who subsequently put it on record, and De- voe received the bill of saje and order, and proceeded to Bangor for the property; that complainant and Devoe then called on Carroll for it, when he refused to deliver any of it, or to allow any of it to be taken, and claimed the whole in virtue of a purchase by himself of Stewart; that complainant succeeded in getting a part of the boots and shoes, but was precluded by Carroll from getting any- thing more; that complainant discovered, aft- er this claim by Carroll, that subsequent to the conclusion of the terms of the bargain as before mentioned, but before the delivery of Sherwin's deed to Stewart, and the mak- ing of the bill of sale and order by Stewart to Devoe, Carroll and Stewart had fraudu- lently, and without complainant's knowledge, and with intent to cheat him, made an ar- rangement by which Stewart had given a bill of sale of the whole property to Carroll, ard had taken back a mortgage on it for two thousand five hundred dollars; that com- plainant had neither knowledge nor notice of this transaction when the deed was delivered to Stewart, and the bill of sale and order re- ceived from him. and first became aware of it when Carroll refused to allow anything to be taken; that Stewart and Carroll refused to recognize any right of complainant in or to the property, and refused to allow him to have any of it; that Stewart and Carroll, or one of them, have converted a portion of it and appropriated the proceeds, and mixed with the rest of the old stock other goods since procured; that Devoe has assigned to complainant, but that Stewart and Carroll wholly deny his right. The bill waived answer on oath, and asked no preliminary or final relief by injunction. Neither did it seek to get rid of the deed made to Stewart, or to obtain the land con- veyed by Stewart to complainant. The defendants answered separately, and denied the fraud charged, and most of the ma- terial matter tending to show the grievance alleged in the biU. Their account of the transaction was in substance, that complain- ant was not known to Stewart in the trans- action as vendee, or as a party in any way to the trade concerning the goods, and that Car- roll was sole vendee. They further explicitly claimed that the biU did not make a case of equitable cogni- zance, and insisted that his remedy, if any, was at law. Proofs having been taken, the court on final hearing decreed that the defendants, within forty days after the 11th of August, 1874, should pay to complainant, or his solicitor, two thousand nine hundred and fifty dollars, with interest from that date at seven per cent., together with complainant's costs, and that he should have execution therefor. The defendant Stewart thereupon appealed, whilst the defendant Carroll acquiesced in the de- cree. It appears to me quite impossible, in the face of the objection taken and insisted on, to sustain this decree without sanctioning the right to come into equity in all cases to recover damages where the grievance assert- ed is a fraud committed by one upon an- other in a dealing in personal property. PEINCIPLEi LIMITING JUBISDICTION. If the right contended for and carried out by tlie decree can be maintained, no reason is perceived why, upon the same principle, a party claiming to have been cheated in a horse trade, or in a purchase of any chattels where the amount is sufHcient, may not at his election proceed to sue in chancery for damages, and preclude an investigation be- fore a .iury. The principles and course of practice of the court are, however, not in harmony with any such procedure. It is admitted that the books commonly say that equity has jurisdiction in all cases of fraud, but every one knows that the propo- sition is not to be accepted literally. It must always be understood in connection with the general and specific remedial powers of the court. These confine it absolutely to civil suits. They also confine it, when the point is seasonably and properly made and insisted on, to transactions where, in consequence of the indicated state of facts, there appears to be ground for employing some mode of ac- tion, or some kind of aid or relief not prac- ticable in a court of law, but allowable in equity. In the present case no injunction was call- ed for, and there was no ground for discov- ery, and no discovery was sought, as the bill waived an answer on oath. No claim was set up to have the deed from Sherwln to Stewart set aside, or to have the land conveyed to complainant, and no case Is made to warrant such a claim, since the biU contains nothing to show that third persons may not have acquired interests on the faith of Stewart's title. Indeed, no circumstances are set forth to call specially for equitable intervention or for any assistance or mode of redress peculiar to chancery procedure. The facts as given, and the case as shaped, point to just the action and relief peculiar to a court of law. They look to a single judg- ment for damages, and nothing else. The case, then, was really of legal, and not in strict propriety of equitable cognizance. The objection was timely made and urged. and complainant was bound to regard it; and unless it is to be maintained that in all cases standing on the same principle, a complain- ing party is to be allowed by bis election to try in chancery, and prevent an investigation by jury, the point made by appellant must be sustained, and In my judgment it should be. Story, Eq. Jur. §§ 72-74; 1 Spence, Eq. Jur. 691-700; Adams, Eq. Introduction, pp. 57, 5S; Shepard v. Sanford, 3 Barb. Ch. 127; Bradley v. Bosley, 1 Barb. Ch. 125; Monk v. Harper, 3 Edw. Uh. 109; Pierpont v. Fowle, 2 Woodb. & M. 23, Fed. Gas. No. 11,152; Vose y. Philbrook, 3 Story, 335, Fed. Gas. No. 17,- 010; Insurance Go. v. Bailey, 13 Wall. 616; Hipp V. Babin, 19 How. 271; Parker v.' Man- ufacturing Co., 2 Black, 545; Jones v. New- hall. 115 Mass. 244; Suter v. Matthews, Id. 253; Foley v. Hill, 2 H. L. Cas. 28; Cramp- ton V. Varna R. Co., 7 Gh. App. 562, 3 Eng. R. 509; Hoare v. Bremridge, L. R. 14 Eq. 522, 3 Eng. R. 824, cited by Lord Hatherly with approbation in Ochsenbein v. Papelier, 8 Ch. App. 695, 6 Eng. R. 576; Kemp v. Tucker, 8 Gh. App. 369, 5 Eng. R. 596; Warne V. Banking Co., 5 N. J. Eq. 410; Haythorn v. Margerem, 7 N. J. Eq. 324. There would be more reason than there is for wishing to escape from the objection no- ticed, if complainant's version of the affair was placed by the proofs beyond fair contro- versy; but it is not. The evidence is ex- tremely conflicting in regard to the true na- ture of the transaction, and there is room for arguing in favor of the theory advanced on each side. The case is, then, specifically suited for investigation by jury, where the witnesses can be seen and their trustworthi- ness be better understood. I think that, so far as the defendant Stew- art is concerned, who alone has appealed, the decree should be reversed, and the bill dismissed, with his costs of both courts, but that the dismissal should be without preju- dice to any proceedings at law against hun the complainant may think proper to take. OAMPBBbL and COOLEY, JJ., concurred. CHRISTIANCY, J., did not sit in this case. PRINCIPLES LIMITING JURISDICTION. GREEN et al. v. SPRING, (43 111. 280.) Supreme Court of Illinois. Jan. Term, 1867. Error to Richland county; Aaron Shaw, Judge. J. G. Bowman, for plaintiffs in error. Hay- ward & Kitchen, for defendant in error. LAWRENCE, J. This was a bill in chan- cery for dower and partition, filed in Octo- ber. 1864, by Henry Green, and Elizabeth M. Green, his wife, alleging that, on the 20th of August, 1843, one Asahel L. Powers died seized in fee simple of two lots in the town of Olney, leaving said Elizabeth, his widow, and without lineal descendants; that the said Elizabeth, in August, 1845, intermarried with one Henry Green, and that she is en- titled to an undivided half of said real es- tate in fee, and a right of dower in the other half; and that said lots were held under claim of title b.v one Henry Spring, who was made defendant to the bill. Elizabeth M. Green died pending the suit, and her heirs were made parties, and so much of the bill as prayed dower was dismissed by complain- ants. After the bill, so far as it related to dower, was dismissed, there was nothing left upon which the jurisdiction of a court of chan- cery could be maintained. It became, in substance, simply an action of ejectment. The defendant Spring was in possession, claiming title to the entire lots under a sale made in 1845, by the administrator of Pow- ers for the payment of debts. If this sale, as alleged by the complainant, was illegally made, and one undivided half of the lots belonged to the heirs of Mrs. Green, the other half belonged to the heirs of Powers, who are not parties to this pro- ceeding, and not to the defendant. If he has any interest In the lots, he owns the en- tirety. This bill professes to be for dower and partition. The claim for dower is aban- doned, and the only persons with whom partition can be made are not parties. So far as Spring is concerned, it stands a naked bill to turn him out of possession of land adversely claimed by him, and to compel an account of rents and profits. If this bill can be maintained, we are at a loss to per- ceive why a bill In chancery cannot be main- tained In every instance to recover posses- sion of land adversely held. It is not as if the bill were filed to set aside the adminis- trator's sale for fraud. No fraud is alleged, nor other head of chancery jurisdiction. In- deed, in the bill it does not appear that there has ever been an administrator's sale. It is merely alleged that Spring is in possession claiming adversely, and that complainants know of no title which Spring has to any part of the lots; but that, if he has any, it is only to one-half. In the answer. Spring sets up the title claimed by him under the ad- ministrator's sale, which is attacked in the argument, on the ground that there was no jurisdiction to make the order, for want of notice. But the bill was not filed to set this sale aside, and when set up in the pleadings and proof of defendant It is insisted that it was void. The bill was properly dismissed as a bill of partition, for want of proper par- ties, and, so far as it sought to evict an ad- verse claimant without title, there was noth- ing, either In the bill or proofs, to give the court jurisdiction. A court of chancery will sometimes decree an adverse claimant to de- liver possession to the rightful owner, but only when such relief is incidental to the main object of the bill, and when the power of the court has been called into action for some purpose that belongs to Its legitimate jurisdiction. Decree affirmed. PEINCIPLJES LIMITING JURISDICTION. FRUB V. LORING. (120 Mass. 507.) Supreme Judicial Court of Massachusetts. Sept. 9, 1876. Bill in equity to establish a trust. The de- fendant demurred to the bill for want of eq- uity, and on the ground that there was an adequate remedy at law. The case was re- sei-ved by Wells, J., for the consideration of the full court. B. F. Thomas, for plaintiff. O. A. Welch, for defendant COLT, J. The equity jurisdiction of this court, by the terms of the statute, embraces suits and proceedings for enforcing and reg- ulating the execution of trusts, whether the trusts relate to real or personal estate, sub- ject to the general provision which excludes such jurisdiction where the parties have a plain, adequate and complete remedy at com- mon law. Gen. St. c. 113, § 2. The plaintiff seeks to charge the defendant as trustee for the appropriation to his own use of certain shares of stock held in trust The bill alleges an agreement between the parties and certain other persons named for the purchase of mining lands on Lake Su- perior and the formation of mining corpora- tions; the subsequent formation of two com- panies, and the conveyance to them of the land purchased; the allotment of shares among the proprietors; and the agreement between the plaintiff and the defendant that the plaintiff's shares should be issued to the defendant as trustee, to be held by him until the assessments, to become due from the plain- tiff thereon, were paid. It then alleges the plaintiff's payment of more than was due on his shares, referring to annexed exhibits for the state of the account; and charges the defendant with the wrongful sale of the shares and the appropriation of the proceeds. It expressly waives the defendant's oath to his answer, and seeks no discovery as inci- dental to the relief. The prayer is for an account, for payment of the balance due over the assessments paid, and payment of the highest value of the stock since the plain- tiff became entitled to it with all dividends, and for general relief. The question is whether the bill shows a case in which there is not an equally effectual remedy at law. It is plain, from the allegations in the bill, that the only matter in controversy is the plaintiff's title to the shares of stock in ques- tion, and his right to claim that the defend- ant shall make their value good to him. He does not seek to obtain the control of trust property in the possession of the trustee; but he avers that it has been sold, and we as- sume that it is now held by the purchaser by good title, discharged of the trust. His claim is reduced to a claim for compensation in damages for the conversion of property of which he claims to have been owner. His right will be determined by settling his title to the property. He seeks no discovery, and there is nothing in the case to show that his right to compensation may not be the same in measure, and that his title may not be as completely and adequately enforced at law as in equity. The jurisdiction in equity ex- tends, it is said, equally to express and im- plied trusts (Wright v. Dame, 22 Pick. 55); and yet it has never been contended that it embraced all such cases of implied trust as arise out of the relations created by a pledge or mortgage of personal property, or a trans- fer of choses in action, or shares in a corpora- tion to be held as collateral security for the payment of money, or which might arise be- tween principal and agent, or between bailor and bailee, unless there were facts alleged showing either the need of a discovery in support of the bill, or relief in some form pe- culiar to courts of equity. In none of the eases cited by the plaintiff, in which the ob- jection has been taken by demurrer, will be found a clear departure from this rule. In most of them an account of the trust, or a discovery, or a delivery of trust property, was prayed for. Hobart v. Andrews, 21 Pick. 526; Raynham Congregational Soc, v. Trus- tees of Fund in Raynham, 23 Pick. 14S; Bur- lingame v. Hobbs, 12 Gray, 367. , The rule of damages in equity cannot be more favorable than at law to the plaintiff, when he asks compensation only for the con- version of his property. Nor can this bill be maintained under the jurisdiction given to this court in suits upon accounts, when the nature of the account is such that it cannot be conveniently and prop- erly adjusted and settled in an action at law. It is not shown by sufficiently distinct alle- gations that there is any peculiar difficulty in ascertaining the tme state of the account between the parties. It is not charged that there has been any refusal to render an ac- count; the charge is rather that the defend- ant refused to account for the proceeds of the stock sold. The elements and means of stat- ing the account appear to be accessible to the plaintiff, for he annexes to his bill a full statement of its items. The real question is of the ownership of the stock, and that ques- tion does not appear by the bill to depend upon "long complicated and cross accounts." It is said that courts of equity will decline to take jurisdiction under this head where the accounts are all on oue side; or where there is a single matter on the side of the plain- tiff and mere set-offs on the other side, and no discovery is sought. 1 Story, Eq. Jur. § 459, note, and cases cited; Adams, Eq. 222. See, also, Locke v. Bennett, 7 Cush. 445, 449; Foley V. Hill, 2 H. L. Cas. 28. The construction, which we here give to the general clause restricting jurisdiction to cases where the remedy is imperfect at law, is that which has been in many cases recently given under other heads of equity jurisdiction. Thus a bill to redeem a mortgage of per- PEINCIPLES LIMITING JURISDICTION. eomal property was rtismissed because it did not show that, from the nature of the prop- erty, the peculiar relations of the parties, or the difficulty of ascertaining the ajnount to be paid or tendered, the mode of redemption pointed out by the statute was not sufficient to protect the plaintiff's rights (Gordon v. Clapp, 111 Mass. 22), although a similar bill, containing such averments, was maintained in Boston & Fairhaven Iron Works v. Mon- tague, 108 Mass. 248. So In Jones y. New- hall, 115 Mass. 244, the court refused to enter- tain a bill in favor of the vendor for the specific performance of a contract, when all that remained to be done was the payment of money by the defendant; and in Suter v. Matthews, 115 Mass. 253, it was declared that there was no concurrent jurisdiction in case of fraud where there is a plain and ade- quate remedy at law. See, also. Ward v. Peek, 114 Mass. 121. Demurrer sustained. PRINCIPLES LIMITING JURISDICTION. WATSON V. SUTHERLAND. (5 Wall. 74.) Supreme Court of the United States. Dec, 1866. Appeal from circuit court of the United States for the district of Maryland. Watson & Co., appellants in the suit, hav- ing issued writs of fieri facias on certain judgments which they had recovered in the circuit court for the district of Maryland against Wroth & Fullerton, caused them to be levied on the entire stock in trade of a retail dry goods store in Baltimore, in the possession of one Sutherland, the appellee. Sutherland, claiming the exclusive owner- ship of the property, and insisting that Wroth & FuUerton had no interest whatever in it, filed a bill in equity, to enjoin the further prosecution of these writs of fieri facias, and so to prevent, as he alleged, irreparable in- jury to himself. The grounds on which the bill of Sutherland charged that the injury would be irreparable, and could not be com- pensated in damages, were these: that he was the bona fide owner of the stock of goods, which were valuable and purchased for the business of the current season, and not all paid for; that his only means of pay- ment were through his sales; that he was a young man, recently engaged on his own account in merchandising, and had succeed- ed in establishing a profitable trade, and if his store was closed, or goods taken from him, or their sale even long delayed, he would not only be rendered Insolvent, but his credit destroyed, his business wholly broken up, and his prospects in life blasted. The answer set forth that the goods levied on were really the property of Wroth & Ful- lerton, who had been partners in business in Baltimore, and who, suspending payment in March, 1861, greatly in debt to the appel- lants and others, had, on the 27th October, 1862, and under th^ form of a sale, conveyed the goods to Sutherland, the appellee; that Sutherland was a young man, who came to this country from Ireland a few years ago; that when he came he was wholly without iproperty; that since he came he had been salesman in a retail dry goods store, at a small salary, so low as to have rendered it impossible for him to have saved from his earnings any sum of money sufficient to have made any real purchase of this stock of goods from Wroth & FuUerton, which the answer set up was accordingly a fraudulent transfer made to hinder and defeat creditors. It further stated that the legislature of Maryland had passed acts staying executions from the 10th of May, 1861, until the 1st of November, 1862; that previous to the 1st November, 1862, Wroth & FuUerton had de- termined to pay no part of the judgments rendered against them; and that from the 10th May, 1861, until the 1st November, 1862, judgments, amounting to between $30,000 and $40,000 had been rendered against them; that between the date of the suspension, March, 1861, and the 27th October, 18C2, they had sold the greater portion of their goods, and collected a great many of the debts due them, but had paid only a small portion of those which they owed; secreting for their own use the greater portion of the money collected, and with the residue obtaining the goods levied upon. It added that there was no reason to sup- pose that the levy aforesaid, as made by said marshal, would work irreparable injury to the appellee, even if the goods so levied on were the property of the complainant, as property of the same description, quantity, and quality, could be easily obtained in mar- ket, which would suit the appellee's purpose as well as those levied upon, and that a jury would, have ample power, on a trial at com- mon law, in an action against the respond- ents, now appellants, or against the marshal on his official bond, to give a verdict com- mensurate with any damages the said ap- pellee could sustain by the levy and sale of the goods aforesaid. On the filing of the bill a temporary in- junction was granted, and when the cause was finally heard, after a general replication filed and proof taken, it was made perpetual. These proofs, as both this court and the one below considered, hardly established, as respected Sutherland, the alleged fraud on creditors. The appeal was from the decree of per- petual injunction. Mason, Campbell & McLaughlin, for de- fendants. Wallis & Alexander, contra. Mr. Justice DAVIS delivered the opinion of the court. There are, in this record, two questions for consideration. Was Sutherland entitled to invoke the interposition of a court of equity? and, if so, did the evidence warrant the court below in perpetuating the injunction? It is contended that the Injunction should have been refused, because there was a com- plete remedy at law. If the remedy at law is sufficient, equity cannot give relief, "but it is not enough tliat there is a remedy at law; it must be plain and adequate, or in other words, as practical and efficient to the ends of justice, and its prompt administra- tion, as the remedy in equity."i How could Sutherland be compensated at law, for the injuries he would suffer, should the grievan- ces of which he complains be consummated? If the appellants made the levy, and pros- ecuted it in good faith, without circumstan- ces of aggravation, in the honest belief that Wroth & FuUerton owned the stock of goods (which they swear to In their answer), and it should turn out, in an action at law insti- tuted by Sutherland for the trespass, that the merchandise belonged exclusively to him, it Is well settled that the measure of dam- 1 Boyce's Ex'rs v. Grundy, 3 Pet. 210. PKINCIPLES LIMITING JURISDICTION. ages, if the property were not sold, could not extend beyond the Injury done to it, or, if sold, to the value of It, when taken, with in- terest from the time of the taking down to the trial. 2 And this is an equal rule, whether the suit is against the marshal or the attaching cred- itors, if the proceedings are fairly conduct- ed, and there has been no abuse of authority. Any hajsher rule would interfere to prevent the assertion of rights honestly entertained, and which should be judicially investigated and settled. "Legal coinpeusation refers solely to the injury done to the property tak- en, and not to any collateral or consequen- tial damages, resulting to the owner, by the trespass."3 Loss of trade, destruction of credit, and failure of business prospects, are collateral or consequential damages, which it is claimed would result from the trespass, but for which compensation cannot be award- ed in a trial at law. Commercial ruin to Sutherland might, therefore, be the effect of closing his store and selling his goods, and yet the common law fail to reach the mischief. To prevent a consequence like this, a court of equity steps in, arrests the proceedings in limine; brings the parties before it; hears their al- legations and proofs, and decrees, either that the proceedings shall be unrestrained, or else perpetually enjoined. The absence of a plain and adequate remedy at law affords the only test of equity jurisdiction, and the application of this principle to a particular case, must depend altogether upon the char- acter of the case, as disclosed in the plead- ings. In the case we are considering, it is very clear that the remedy in equity could alone furnish relief, and that the ends of justice required the injunction to be issued The remaining question in this case is one of fact. The appellants, in their answers, deny that the property was Sutherland's, but insist 2 Conard v. Pacific Ins. Co., 6 Pet. 272, 282. 8 Pacific Ins. Co. v. Conard, 1 Baldw. 142, Fed. Cas. No. 10,647. that it was fraudulently purchased by him of Wroth & FuUerton, and is subject to the payment of their debts. It seems that Wroth & Fullerton had been partners in business in Baltimore, and suspended pay- ment in March, 1861, in debt to the appel- lants, besides other creditors. Although the appellants did not recover judgments against them until after their sale to Sutherland, yet other creditors did, who were delayed in con- sequence of the then existing laws of Mary- land, which provided that executions should be stayed until the 1st of November, 1862. Taking advantage of this provision of law, the answer charges that Wroth & Fullerton, after their failure, collected a large portion of their assets, but appropriated to the pay- ment of their debts only a small portion thus realized, and used the residue to buy the very goods in question, which Sutherland fraudulently purchased from them on the 27th of October, 1862, in execution of a com- bination and conspiracy with them to hin- der, delay, and defraud their creditors. The answers also deny that the injury to Suther- land would be irreparable, even if the stock were his, and insist that he could be amply compensated by damages at law. After gen- eral replication was filed, proofs were taken, but, as in all contests of this kind, there was a great deal of irrelevant testimony, and very much that had only a remote bearing on the question at issue between the parties. It is unnecessary to disquss the facts of this case, for it would serve no useful purpose to do so. We are satisfied, from a consideration of the whole evidence, that Wroth & Fullerton act- ed badly, but that Sutherland was not a party to any fraud which they contemplated against their creditors, and that he made the purchase in controversy, in good faith, and for an honest purpose. The evidence also shows conclusively, that had not the levy been arrested by injunc- tion, damages would have resulted to Suth- erland, which could not have been repaired at law. The decree of the circuit court is, there- fore, affirmed. 10 PEINCIPLES LIMITING JUBISDICTIOST. LYNCH V. METROPOLITAN BL. RY. CO. et al. (29 N. E. 315, 129 N. Y. 274.) Ocurt of Appeals of New York. Dec. 15, 1891. Appeal from superior court of New York city, general term. Action by Lawrence Lynch against the Metropolitan Elevated Railway Company and others to restrain the maintenance and operation of defendants' roads in front of plaintiff's premises, and for dam- ages. Plaintiff obtained judgment, which was affirmed by the general term. De- fendants appeal. Affirmed. Samuel BIythe Rogers and Julien T. Da- vies, for appellants. Charles Gibson Ben- nett, for respondent. GRAY, .7. This action was brought to restrain the maintenance and operation of the defendants' roads in front of the plaintiff's premises, and the prayer lor such a judgment included also a demand for the amount of loss and damage which might beascertained to have been already sustained by the plaintiff. The complaint sets out the title and ownership of the plaintiff, and his rights in and to the street in front of his premises; the con- struction of the elevated railroad, and the operation of trains over it, and the an- noying results therefrom; the illegal and unauthorized nature of the trespass upon the plaintiff's premises and easements, and the failure of the defendants to ac- qniiporto make ((imiiensB tion foi' tlieui ■ the injuries sustained, and that they will be constant and continuous; and, finally, that, to prevent a multiplicity of suits, to protect against irreparable daroaijes, and to afford complete relief, the olaintifl is compelled to seek the equitable inter- ference of the court. When the action came on for trial the defendants' counsel moved for a trial of the plaintiff's claim for past damages by jury, and the excep- tion to the denial of that motion raises the main question presented upon this ap- peal. The clause of the constitution upon which the demand for a jury trial was based reads: "The trial by jury, in all eases in which it has heretofore been used, shall remain inviolate forever." The ar- gument for the appellants is, in substance, that there were two independent causes of action stated in thecomplaint.of which one was for past damages, which, prior to the constitution of 184(), was cognizable solely in a court of law, and that, under the Code, it comes within the equity juris- diction of the court only by reason of the permission to join in one complaint legal and equitable causes of action. Bj' sec- tion 970 of the Code of Civil Procedure, which was a now enactment, it is provid- ed that "where a party is entitled by the constitution, or by express provision of law, to a trial by a jury of one or more issues of fact, * » * hemay apply upon notice to the court for an order directing all the questions arising upon that issue to be distinctly and jjlainly stated for tri- al accordingly," whereupon the court must so oilier, etc. If the defendants be- lieved that they had a constitutional right to a jury trial of some Issue of fact in this action, it would have been the natu- ral and orderly way for them to make an application to the court under this section. The complaint appears to be but one con- secutive narrative of the grounds upon which the equitable interference of the court is alleged to be necessary. The pre- tense that there is a separate cause of ac- tion rests only upon the demand of the complainant that, if he is entitled to the- equitable relief of an injunction, the court shall adjudge to him such an amount for the loss sustained by the defendants' acts as shall be ascertained. Undoubtedly the claim for past damages sustained by plaintiff in his property rights from the defendants' acts could have been made the- subject of an action at law, but that was not the cause of action which the- plaintiff elected to assert in his complaint, and to bring to trial. What he attempt- ed by instituting his action was to re- strain the continuance of acts, which were- constantly injuring, and would, to all ap- pearances, constantly in the future con- tinue to injure, him in ways and in a man- ner which he described in his complaint. That was a form of relief demandable and cognizable only on the equity side of the court. Hence, as upon the face of the complaint the plaintiff alleged a cause of action for equitable relief, if the defend- ants conceived that they were entitled to a trial by jury of any issue of fact in- volved in the statements of the complaint, they might have moved the court under section 970, and then the question could have been opportunely and properly met. Appellants cite upon this point the decis- ion in Colman v. Dixon, 50 N. Y. 572; but that was made in 1S72, and section 970- was a new provision, and was enacted in. 1877. But, whatever the effect of the omission to take this course of procedure, we need not determine it now, inasmuch as the conclusion we have reached holds the right CO a separate trial by jury, as to the amount of past damages, in such an ac- tion, not to be -vi'ithin the purvie^v of the constitutional guaranty. The action was one purely for a court of equity, for th-i main relief sought was an injunctior against the defendants, restraining them from maintaining and operating their ele- vated railroad. To the assertion of this ground for the equitable interference of the- court the facts in tire complaint were marshaled, and to the necessity for grant- ing that species of relief every allegation of the complaint was framed and calcu- lated to lead. There was but one cause of action stated in this complaint, and that was the claim for relief against the- continued trespass upon the complain- ant's properties. The demand for past damages, included in the praj'er for judg- ment, does not have the effect to set up- an independent cause of action. It ia notliing more than a demand that the- court, having adjudged the plaintiff enti- tled to the equitable relief prayed for, and having acquired entire jurisdiction of the- action, will assess the damages which ap- pear to have been sustained down to the- trial. It has always been a well-settled and familiar rule that when a court of. PRINCIPLES LIMITING JUEISDICTION. 11 equity gains jurisdiction of a cause before it for one purpose it may retain it gener- ally. To do complete justice between tlie parties, a court of equity will lurtlier re- tain the cause for the purpose of aister- taining and awarding the apparent dam- ages, as something which is incidental to the main relief sought. While this is done on the ground that the remedy for the damage done is deemed to be incidental to the relief of injunction, the principle is in perfect harmony with the theory of the jurisdiction of a court of equity. Its power is invoked, and it interferes to re- strain a trespass which is continuous in its nature, in order to prevent a multi- plicity of suits; and, taking jurisdiction of the cause for such a purpose, it may retain It to the end, and close up all mat- ters for legal dispute between the parties by assessing the loss sustained from the acts which it has restrained. The power and practice of courts of equity were, as it was forcibly remarked by Judge Eari^ in the case of Madison Avenue Baptist Church, 73 N. Y. S2, 95, "when they have once obtained jurisdiction of a case, to administer all the relief which the nature of the case and the facts demand, and to bring such relief down to the close of the litigation between the parties." The fact that a money judgment is ordered against the defendant for the plaintiff's loss affords no peculiar ground for attacking equity's jurisdiction. That is frequently the case in actions of an unquestioned equitable nature. Quite recently, Judge Fi.N'CH, in Van Rensselaer v. Van Rens- selaer, 113 N. y. 207, 21 N. E. Rep. 75, ob- served, with respect to an objection to the jurisdiction of a court of equity that the final relief would be a personal judg- ment, that it would not in that manner lose its jurisdiction of an action of an eq- uitable character. The jurisdiction "once acquired," he said, "it retains to the end, even though it may turn out that ade- quate relief is reached l>y a merely person- al judgment. That is not an uncommon occurrence." Instances are frequent in which a court of equity decrees the pay ment of money as an incident of the grant of equitable relief, and that fenruredoes not suffice to qualify the jurisdiction. But I think we should consider the ques- tion to have been settled, upon the au thority of several decisions of this court. In the case of Williams v. Railroad Co., 16 N. Y. 97, the opinion was delivered by Judge Samuel Sp:lden. That was a suit in equit.y, brought to restrain the defend- ants from using the street with their rail- way, and to recover dam ages for past use. Tlie conclusion arrived at, as expressed in the opinion, was that "it follows that the defendants, in cnuMtructing their road, * * * were guilty of an unwarrantable intrusion and trespass upon plaintiff's property, and that he is entitled to relief. Although he had a remedy at law for the trespass, yet, as the trespass was of a continuous nature, he had a right to come into a court of equity, and to invoke its restraining power, to prevent a multi- pinit.v ol huii.-^, ami can, oU-oufse, recover his damages as incidental to this equita- ble relief. There may be doubt as to his right to recover iu this suit the damages upon the lots which have been sold, he- cause as to those lots there was no occa- sion to ask an.y equitable relief, and to permit the damages to be assessed in tliis suit, in effect, deprives the defendants of the right to have them assessed by a jury. But, as this question has not been raised, it is unnecessary to consider it." There are two things to be noted in that opinion. In the first place, the damages alread.y sus- tained were deemed within the power of a court of equity to award as an incident of its jurisdiction over the action. This idea is, in fact, emphasized by the sugges- tion as to the lots which hadbeensold, be- cause it is clear that the court regarded its right to award the damages as a mat- ter connected with or dependent upon the ground for granting any equitable relief; that is to say, as to the property to be protected by the decree of tlie court against the defendants' acts, the damages caused to it could be assessed by the court; but as to that portion withdrawn by the sale it might be doubtful, because not the subject of, or entitled to, the equi- table relief. It is very obvious that the court had in mind the question as to the right of trial by jury. In the second place, it may be noted that the opinion speaks of the assessment of the damages. This definition of an assessment of the dam- ages seems to me to put the action of the court in line with just what courts of equity have always done in cases over which they have gained jurisdiction ; that is to say, they proceed to inquire directly, or by reference, or otherwise, as to the damages sustained, and assess them ac- cordingly. When, later, the same case, entitled as Henderson et al., alter a new trial, came up again, (78 N. Y. 423,) the opinion of the court was delivered by Judge Danfokth, who again upheld the plaintiff's right to invoke the equitable power of the court, and held that he could, "of course, recover his damages as incidental to this equitable relief;" and he stated it to be "an elementary principle" that " when a court assumes jurisdiction in order to prevent a multiplicity of suits it will proceed to give full relief both for the tortious act and the resulting dam- ages." The opinion was carefully writ- ten, and based upon the authority of many cases. Recently, again, in the case of Shepard v. Railroad Co., 117 N. Y. 442, 23 N. E.Rep.30, it was said ol these actions that the.y were necessarily "on the equity side of the court, as the main relief sought was the injunction against the defend- ants," and that in them the complainants could "recover the damages they have sus- tained as incidental to the granting of the equitable relief." This view, as stated in that opinion, was expressly based upon the AVilliams and Henderson Cases, and upon the supposed equitable principles governing such actions. The Shepard Case somewhat conspicuously illustrates the powers a court of equity may arrogate to itself with the object of completely deter- mining and quieting the questions before it when it has once acquired jurisdiction of the action. It follows, in that re- spect, a rule long established b.y au- thority. It is true that in these cases the right to demand a jury trial as to past 12 PBINCIPLES LIMlTmG JUEISDICTION. damages was not precisely or in terms stated as the proposition advanced; hut that, an it seems to me, would be a very narrow evasion ot thi- effect of the opin- ions delivered. They did consider the nat- ure of such actions, and deliberately de- clared the power of the court in equity, as an incident of the main relief of injunction, to assess the damages sustained. In Car- penter v. Osborn, 102 IS!. Y. 552, 7 N. E. Eep. 82.3, the court, in an action to set aside certain conveyances as fraudulent, granted the equitable relief prayed for, and. in addition, decreed the judgment a lien upon theland for some unpaid install- ments of interest, to the payment of which thedefeudant had obligated himself in H certain asjrpeiiicnt. Chief Judge EuGEK delivered the opinion ot this court in affirmance of the judgment, and said: "This principle has been applied in many cases in awarding judgment for pecuniary damages, even when the party had an adequate remedy at law, if the damages were connected with a transaction over which the courts had jurisdiction for any purpose; although for the purpose of col- lecting damages merely they would not have had jurisdiction." In support of the principle declared by him, the learned judge cited Pom. Eq. Jur. § 181, and vari- ofls cases. I think some confusion of thought con- cerning the constitutional guaranty of a trial by jury may arise in a misapprehen- sion as to its proper application. That Ijrovision relates to the trial of issues of fact in civil and criminal proceedings in the courts, as it was held by the chancel- lor in the case ot Beekman v. Railroad, 3 Paige, 45. Where the trial of a civil pro- ceeding presents for determination a ques- tion of fact the right ot trial by jury is proper, and can be invoked. But an ac- tion brought to restrain the commission of trespasses whicii are continuous in their nature is necessarily in equity, and the court interferes to prevent multiplici- ty ot suits, and grants equitable relief by way of an injunction. The question pre- sented for determination in such an action is one of law, whether, upon the facts to be established upon the trial, the plaintiff is entitled to such relief. Upon the proofs, showing the nature of the trespasses, and the consequent injury to the complain- ant's property, the court decides the ques- tion ot plaintiff's right to an injunction. It does not seem to me that it can be said that any issue ot fact as to damage re- mains. That was necessarily decided in the action, and all that remains is to fix its amount; and I do not think the con- stitutional provision was aimed at such a proceeding. As defined by the chancellor in thecase above referred to, it seems diffi- cult to rationally give it an application to what is simply an assessment of the dam- ages. I may extract, and may appositely quote here, a remark of Judge Andrews in his opinion in Cogswell v. Railroad Co., 105 jy. Y. 310. 11 N. E. Eep. 51S: "We think," he says, "it is a reason- able rule, and one in consonance with the authorities, that where a plain- tiff brings an action for both legal and equitable relief, in respect to the same cause of action, the case presented is not one of right triable by jury under the con- stitution." The case was one wherein the plaintiff's complaint demanded judgment for damages and an abatement of a nui- sance, and also for an injunction against its continuance. The learned judge's opin- ion is upon the question of whether such an action was one tor a nuisance, under section 968 of the Code, which must be tried by jury, unless waived or referred, and he held "that it differed from Hudson V. Caryl, 44 N. Y. 553, which was a com- mon-law action, in that equitable relief by way of injunction was asked, and not simply the relief obtainable by writ ot nuisance for damages and an abatement. His remark upon the right to a jury trial inequitable actions is not out of place, however, here. To carry this discussion backwards, and to a time anterior to de- cisions of this court, we find warrant in the opinions then held by our own and the English chancery courts for holding that a trial by jury was not usual in cases where equity had acquired jurisdiction, and that the court would administer all the relief which the facts warranted, in- cluding the assessment and awarding ot compensation for injury sustained. In Watson V. Hunter. 5 Johns. Ch. 169, the bill was tiled to enjoin the cutting of tim- ber and to restrain the removal of tiiat which had already been cut. Chancellor Kent confined the relief ot injunction to the timber standing, and refused it as to the removal of the cut timber, on the ground that it would be an application to an "incidental remedy." He said that "the practice of granting injunctions in cases of waste is to prevent or stay the future commission of waste, and the remedy tor waste already committed is merely incidental to the jurisdiction in the other case, assumed to prevent multiplici- ty of suits, and co save the party the ne- cessity of resorting to trover at law."' The chancellor's exposition ot the princi- ple upon which equity acts in cases ot waste obviously is as applicable to cases of trespass. If the action at law in tro- ver was deemed unnecessary for the per- sonal property already converted in that case, it seems unnecessary in such an ac- tion as this, in order to recover the loss sustained from the trespass. The chan- cellor in the Watson Case relied upon the practice followed by the English chancel- lors. LordHAHDWlCKE.in Garth v. Cotton, 1 Ves. Sr. 528, had held that the decree tor the waste already committed was an in- cidsnt to the injunction to stay waste. Before that, in Jesus College v. Bloom, 3 Atk. 262, where the bill was filed tor an ac- count and satisfaction tor waste in cut- ting trees, and no injunction was prayed for. Lord Hardwioke said that the bill was improper, and that an action ot trover was the remedy. He asserted the rule, however, that where the bill was tor an Injunction to prevent waste, and for waste already committed, the court, to prevent a double suit, would award an injunction to prevent future waste, and aecree an account and satisfaction for what was past. He held that to prevent multiplicity of suits the court will, on bills for injunction, make a i-omplete decree, and give the injured party a satisfaction PUmCIPLES LIMITING JURISDICTION. 13 for wliatliad been done, and not oblige him to bring another action at law. In the subsequent case of Smith v. Cooke, Id. 3m1, the same lord chancellor declaimed the same doctrine, as did also Lord Thurlow in Lee V. Alston, 1 Ves. Jr. 78. I quote a remark of Lord Nottingham in Parker v. Dee, 2 Ch. Cas. 201, that when a court of chancery has once gained possession of the cause, if it can determine the whole matter, it will not be the handmaid of other courts, " nor beget a suit to be ended elsewhere. " In our former court of errors Chancellor (then Judge) Ke.nt held, in Armstrong v. (Gilchrist, 2 Johns. Cas. 424, 431, (decided in 1800,) that "the court of chancery, having acquired cognizance of a suit, for the pur- pose of discovery or iniunci;ion, will, in most cases of account, whenever it is in full possession of the merits, and has snfh- cient matefials before It, retain the suit in order to do complete justice between the parties and to prevent useless litigation and expense. '■ That case was upon a bill for specific relief, and to restrain an ac- tion at law brought to recover the value of certain bank-stock, and it set up cer- tain equitable considerations as against the justice of a recovery in the other ac- tion. The chancellor below decided against the whole relief sought by the bill, and decreed infavorof thedefendants that the complainants should pay them the value of the stock, and ordered a reference to state the account. This procedure the court of errors upheld as being right, and the duty of the chancellor to follow. I do not consider the cases cited by the appel- lants to be at all controlling upon the question. In Murray v. Hay, 1 Barb. Oh. 59, the bill was filed by two persons, who were owners of different dwelling-houses in severalty, having no joint interest in either of them, to restrain a nuisance whicli was a common, but not a joint, in- jury to both complainants. The objec- tion to the pra>er for an account and compensationfor their respective damages was upon the ground of multifariousness, and so considered. Another case, of Hud- son V. Caryl, 44 N. Y. 553, was an action to recover damages for the overflowing of plaintiff's lands, and to compel the remov- al of the dam; and the decision turned upon the ancient right to a jury trial in such an action of nuisance, which the Code had not affected. It was not an ac- tion in equity to restrain a nuisance, which, according to Judge Andrews' opin- ion in the Cogswell Case, supra, would not be an action for a nuisance directed by the Code to be tried by jury. But the judge who delivered the opinion of the ma- jority of the commission of appeals in Hudson V. Caryl spoke obiter in his re- marks upon the general right of trial by jury, as his opinion indicates, for he says (page 555:) "But, whatever maybe said or decided in regard to the trial of other actions, in which two causes of action — one exclusively of legal, and another ex- clusively of equitable, cognizance, arising out of the same transaction — are united, this action should, for an independent rea- son, have been tried by jury, and that is that the action, when brought for the double object of removing the nuisance and recovering the damages occasioned by it, was always tried, by jury ;" and lie proceeds to refer to Blackstone and to the old Revised Statutes. As, therefore, "a case is presented in which a trial by jury has been heretofore used," the commis- sioner concluded it was error to refuse it. It does not seem to me necessary to pursue further the consideration of au- thorities. The respondent's counsel has cited others in this and the lower courts. In a note to Armstrong v. Gilchrist, supra, will be found reference to other early cases in tuis state and in the United States supremo court in support of the "settled rule that when the court of chan- cery has gained jurisdiction of a cause lor one purpose, it may retain ic generally for relief." Underlying the system upon which courts of e- ant a pei-petual lease hereof, according to the terms of the contract. It M'as further de- creed, in case the master should find that the defendant did not then own lot No. 11, or any part thereof, and wks not the owner thereof at the date of the conti-act, that such master proceed to assess the damages which should be allowed and paid to the complainant by the defendant, for the non-performance of the contract. From this decree the defend- ant appealed to the chancellor. M. McDonald, for appellant. A. J. Parker, for respondent. WALWORTH, Ch. There is no principle up- on which this decree or any part thereof can be sustained. The 'question whether there was in fact any gore, between lot No. 20 of the subdivisions of great lot No. 49 and the line of great lot No. 50, was distinctly put in issue by the defendant's answer, and by the replication filed to the same; so that each party had a full opportunity to take testimony to that point. And the evidence of Keirstead, the surveyor, and the map of the location of the lots, produced by him, show conclusively that no such gore ever existed except in the imaginations of the in- habitants of the neighborhood, and In that of the defendant who resided at some con- siderable distance from the supposed prem- ises intended to be leased. It, therefore, was useless and Improper to direct a reference, and subject the pai-ties to further expense, when the complainant had not attempted to controvert this fact, stated in the defend- ant's answer, by any testimony whatever In PRINCIPLES LIMITING JURISDICTION. 15 •opposition to the positive evidence of Keir- stead; who established the fact beyond all ■doubt Another surveyor who surveyed the supposed gore for the complainant, and who was examined by him as a witness, does not pretend to dispute the fact sworn to by Keirstead, that the supposed gore is in fact within the bounds of great lot No. 50, as actually run out and located upon the land by Tappan and Cockburn; the commissioners who made the partition of the patent more than fifty yeiars since. It must, therefore, be considered as settled, for all the pur- poses of this suit, that all the parties to the contract of the first of March, 1839, were under a mistake in supposing that there was any such gore as is described in that con- tract. It is true the letters of the defend- ant, written soon after the contract was made, and when he supposed great lots No. 20 and No. 49 cornered together, state that there was a gore. But the answer and the evidence show that the defendant was then laboring under a mistake. And as the lease, if executed in conformity with that contract, and purporting to convey land which has in fact no existence, would have been a mere nullity, there was nothing of which a specific performance could be decreed. I am also sat- isfied, from the evidence, that the complain- ant must have been aware of the fact that there was no such gore of land, at the time of filing this bill. The assistant vice chancellor has indeed attempted to make a new contract for the parties, and to decree a specific performance thereof, provided the defendant owns any land in lot "No. 11. That, however, is land which neither of the parties supiwsed was to be included in the lease. For by the terms of the contract the whole of great lot No. 50, and the whole of lot No. 11 of the subdivisions of great lot No. 49, are neces- sarily excluded from the operation of such contract. See Jackson v. Woodruff, 1 Cow. 276. Where the vendor has contracted to convey a tract of land the title to a part of which fails, the vendee may claim a specific performance of the contract as to the resi- due of the land, with a compensation in damages in relation to the part as to which the vendor is unable to give a good title. At least courts of equity have in some instances acted upon that principle. But I am not aware of any case in which the vendor has been decreed to convey an entirely differ- ent piece of land from that which the par- ties had in contemplation at the time of making their contract, and which is not in fact embraced in such contract. Here it is perfectly evident that neither party, at the time of making this contract, expected that Elmendorf was to lease to Dutcher and Hoge- boom any part of lot No. 11. That part of the decree which directs the master to set off to the complainant 183 acres of lot No. 11, to be leased to him by Elmendorf, pro- vided It shall be found by the master that the defendant is the owner of lot No. 11, is therefore clearly erroneous. Nor do I think this is a proper case for the court to decree a compensation in dam- ages to the complainant; even if this court has jurisdiction to entertain a suit for dam- ages merely, where the defendant never had tlie title to land which he has positively agreed to convey, or where he has parted with his title before the commencement of the suit, and that fact is known to the com- plainant at the time of filing of his bill. Here the evidence shows that the parties were acting under a mutual mistake, as to the actual existence of the gore between lots No. 20 and 50, at the time the contract was made. If the contract has any legal force or effect whatever, which is at least doubt- ful, there is no reason why Dutcher and Hogeboom, or the complainant who claims the benefit- of the contract under them, should not be left to their action at law to recover damages for the non-performance of the contract, if any damages have in fact been sustained. Nothing had been done by them, or either of them, under the contract, and nothing had been paid. Nor was there any mutuality in it. For the defendant could not have sustained any suit or action, against Dutcher and Hogeboom, if they had refused to take a lease of the supposed gore of land; which, in fact, had no existence. The most that can be said in this case is, that Dutcher and Hogeboom have lost the speculation wliich they supposed they were making when they entered into the contract of March, 1839. The means of ascertaining whether the supposed gore had any existence was enually accessible to both parties, as the lines of the lots were run out and marked upon the land. And the defendant being misled by the reports in the neighborhood of ilie existence of a gore, when there was no such gore, no fault is attributable to him. In such a case, the proper course is to leave the parties to their legal remedies, if they have any. It is also perfectly evident in this case, that the complainant, at the time he filed his bill, was aware that the supposed gore had no actual existence, and that no specific performance of the agreement could be ob- tained in this court. And, in a case of that kind, Chancellor Kent correctly decided that this court ought not to entertain the suit merely for the assessment of damages. Hatch V. Cobb, 4 Johns. Ch. 559. Kemp- shall V. Stone, 5 Johns. Ch. 193. But where the defendant deprives himself of the power to perform the contract specifically, during the pendency of a suit to compel such per- formance, this court may very properly re- tain the suit, and award to the complainant a compensation in damages; to prevent a multiplicity of suits. And I am not prepai-ed to say that such a decree might not be proper, where the defendant had deprived himself of the power to perform the con- 16 PEINCIPLES LIMITING JUEISDICTION. tract prior to the filing of the bill, but with- out the knowledge of the complainant; or even where he never had the power to per- form, if the complainant had filed his bill in good faith, supposing at the time he in- stituted his suit here that a specific perform- ance of the contract could be obtained under the decree of this court. But this court does not entertain .iurisdiction where the sole ob- ject of the bUI is to obtain a compensation in damages for the breach of a contract, ex- cept where the contract is of equitable cogni- zance merely. Nor can the complainant en- title himself to the interference of this court, to give him a compensation in damages for the non-performance of a contract, by neg- lecting to state, in his bill, that the defend- ant is unable to perform the contract specifi- cally; where that fact is known to him at the time of filing his bill in this court. For if the facts which were then known to him had been fully stated in his bill, the de- fendant might have demurred, upon the ground that the complainant's remedy, if any he had, was at law and not in equity. Or he might have raised that objection in his answer. In this case, therefore, the com- plainant's bill cannot be retained, for the purpose of obtaining a compensation in dam- ages merely, when he knew that he could expect nothing more than such a compensa- tion in damages at the time of filing his bill. And the complainant having made a case, by his bill, apparently entitling him to a specific performance, he cannot now insist that the defendant has waived the objection, that the remedy of the complainant was at law; be- cause he did not demur to the bill, or state that objection in his answer. The decree appealed from is erroneous, and must be reversed. And the complainant's bill must be dismissed, with costs in the court below; but without prejudice to the complainant's remedy at law, upon the con- tract, if he has any such remedy there. The defendant having died since this cause was submitted upon the appeal, the decree to be entered upon this decision must be entered nunc pro tunc, as of the time of such sub- mission. PKINCIPLES LIMITING JURISDICTION. 17 REES V. CITY OP WATBRTOWN. (19 Wall. 107.) Supreme Court of the United States. 1ST.3. Mr. Justice HUNT delivered the opinion of tlie court. Tliis case is free from tlie objections usual- ly made to a recovery upon municipal bonds. It is beyond doubt tliat tlie bonds were issued by the authority of iin act of the legis- liiture of the State of Wisconsin, ami 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. Tliey 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 aslsed 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 power to impose burdens and raise money is the highest attribute of sovereignty, and is exercised, first, to raise money for public 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 piace of a State in the exercise of tliis authority at once so delicate and so important. The question is not entirely new in this court. In the case of Supercinors 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- *T Wallace, 175. HUTCH. BQ. JUE. — 3 I tachraent, and is express and unqnalifled. j 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 ripon the board of supervisors hy tlie act of the legislature tliat authorized I tlieir 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 th9 peremptory mandate of tlie court." The State of Wisconsin, of which the city of Watertown is a municipal corporation, has passed no sucli act. The case of Supervisors V. Rogers is, therefore, of no authority in the case before us. Tlie appropriate remedy of the plaintiif 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 prospect of its future success is, perhaps, not flattering. However this may be, we are aware of no authority in this court to apjioint 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 circumstancea. We are not able to recognize the authority of the case. No counsel ap- peared for the city (Mr. Reynolds as amicus curiae oi\\y)\ 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 tlie opinion of the court, states that the case is without precedent, and cites in support of its de- cision no otlier 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 tlie case of Superoisors v. Rogers^ 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 V. Johnson County, 6 Wallace, 193. *10 Am. Law Keg. (N. S.) 513, Fed. Cas. No'. 1',- 373. **6 Wallace, 166. {9 Am. Law Reg. (N. S.) 415, Fed. Cas. No. 16,538. g7 Wallace, 175. 18 PEINCJPLES LIMITING JURISDICTION. 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 Stale 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 ditfer- 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 oBBcers, 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 VVatertown 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 tlie 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- tift liis just rights we roust be careful not to invade the rights of others. If an inhab- itant of the city of Waterlown 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 and several debtors with the corporation, nor does their property stand in that relation to the corporation or to the creditor. This is 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 ot 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 collectinn 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 wlien the contract 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.| 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 plaintiiE 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 Quiney, i WaUace, 535. tCooley, Constitutional Limitations, 235, -237. tCooley, Constitutional Limitations, 2Sa. PKmCIPLES LIMITING JURISDICTION. 19 Eonscienee 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:I "There are cases, indeed, in wliich a court of equity gives remedy where the law gives none, but where a particular remedy is given by law, and that remeily bounded and ciicumscribed 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 Gliarta, 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 liave 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 .'states is brought in form against the inhabitants tl Kquity Jurisprudence, § 61. JHeardu. Stanford, Cases Tempore Talbot, 174. •1 Story's Equity Jurisprudence, i 60. **We9tervelt 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 West- ern States.^ So far as it rests upon the rule 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 without defence, is not im- portant. To assume tliat 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 Emerio v. Qilman, 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. Tliose 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 tliis 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 might 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. t See Emerio v. Gilman, 10 California, 408, where all the cases are collected. {Cooley's Constitutional Limitations, 24& tl Story's Equity Jurisprudence, § 470 and on- wards. 20 PBINCIPLES LIMITING JURISDICTION. We apprehend, also, that there is some confusion in the plaintifE'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 fortii in the bill, the writs have been fruit- less; that, in fact, tliey 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 tlie fruits of a judgment for the phiintifE in ejectment. It is a full, adequate, and com- plete remedy. Not miiny 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 powei', 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 affikmed. MAXIMS OF EQUITY. 21 BERRY V. MUTUAL INSURANCE CO. (2 Johns. Ch. 603.) Court of Chancery of New York. 1817. KENT, Ch. The equitable rights of the par- ties, in this case, must have reference to the time when the knowledge of their respective morligages was communicated to each other, in the winter of 1814, and prior to the registry of the elder mtogage. The subsequent reg- istry by the plaintiffs was of no avail. The rights of the parties had become fixed, by means of the notice, previously, mutually and concurrently given, and which notice, as to them, answered all the purpose and object of a registry. Priority of registry never prevails over a previous notice of an unregistered mortgage. 10 Johns. 461. 462. In consider- ing this case, then, I shall place entirely out of view the fact of the registry. The real point in the case is, which of the unregistered mortgages had the preference in equity, when the information of their existence was given and received. If there be several equitable interests affect- ing the same estate, they will, if the equities are otherwise equal, attach upon it, according to the periods at which they commenced; for it is a maxim of equity, as well as of law, that qui prior est tempore potior est jure. This rule has been repeatedly declared; (Clarke v. Abbott, 2 Eq. Cas. Abr. 606, pi. 41; Bristol V. Hungerford, 2 Vern. 525; Symmes V. Symonds, 1 Brown, Pari. Cas. 66; [4 Brown, Pari. Cas. (2d Ed.j 328]; Brace v. Marlbor- ough, 2 P. Wms. 492, 495,) and we are to see if there be any thing in this case to prevent the application of it. There is no fraud charged or proved upon the plaintiffs, and if they are to be postponed, notwithstanding they have the elder mort- gage, It must be on the ground of culpable negligence, either in leaving the lease with the mortgagor, when they took the mortgage of his term, or In not causing their mortgage to be seasonably registered. I feel strongly disposed to give to these circumstances all the weight to which they can be entitled. 1. It is understood to have been the old rule in the English chancery, that if a person took a mortgage, and voluntarily left the title deeds with the mortgagor, he was to be post- poned to a subsequent mortgagee, without no- tice, and who was in possession of the title deeds. The reason of the rule was, that, by leaving the title deeds, he enabled the mort- gagor to impose upon others who have no reg- istry to resort to, except in the counties of Yorkshire and Middlesex, and who, therefore, can only look for their security to the title deeds, and the possession of the mortgagor. The rule was so understood and declared, by Mr. Justice Burnet, in Ryall v. RoUe, 1 Atk. 168, 172; 1 Ves. Sr. 360, and by Mr. Justice Buller, in Goodtitle v. Morgan, 1 Term R. 762, and there are decisions which have given great weight to the cu'cumstance of the title deeds being in possession of the junior mort- gagee. Thus, in Head v. Egerton, 3 P. Wms. 279, the lord chancellor said, it was hard enough upon a subsequent mortgagee, that he had lent his money upon lands subject to a prior mortgage, without notice of it, and, therefore, he could not add to his hardship, by taking away from him the title deeds, and giving them to the elder mortgagee, unless the first mortgagee paid him his money; espe- cially as the first mortgagee, by leaving the title deeds with the mortgagor, had been, in some measure, accessory in drawing in the defendant to lend him money. This case, however, so far from establishing what was supposed to be the old rule of equity, evident- ly contradicts it, and admits the better title in the first mortgagee. So, in the case of Stanhope v. Verney, 2 Eden, 81, before Lord Northington, (Butler's note to Co. Litt. 290, 296, § 13,) the second mortgagee, without no- tice, had possession of the title deeds, but the chancellor did not give him the preference on that single circumstance, but because he also had got possession of an outstanding term. There does not seem, therefore, to be the requisite evidence of the existence of any such rule in equity, as has been stated by some of the judges; and if there was, a dif- ferent rule has been since established. It is now the settled English doctrine, that the mere circumstance of leaving the title deeds with the mortgagor, is not, of itself, sufficient to postpone the first mortgagee, and to give the preference to a second mortgagee, who takes the title deeds with his mortgage, and without notice of the prior encumbrance. There must be fraud, or gross negligence, which amounts to it, to defeat the prior mort- gage. There must be something like a volun- tary, distinct, and unjustifiable concurrence, on the part of the first mortgagee, to the mortgagor's retaining the title deeds, before he shall be postponed. Lord Thurlow, in Tourle v. Rand," 2 Brown, 650, said, he did not conceive of any other rule by which the first mortgagee was to be postponed, but fraud or gross negligence, and that the mere fact of not taking the title deeds was not suf- ficient; and that if there were any cases to the contrary, he wished they had been named. So the rule was also understood by Chief Bar- on Eyre, in Plumb v. Pluitt, 2 Anst. 432, and has since been repeatedly recognized. Lord Bldon, in 6 Ves. 183, 190. Sir William Grant, in 12 Ves. 130. 1 Fonbl. Eq. 153, 155, note. It is admitted, by these same high authorities, to be just, that the mortgagee, who leaves the title deeds with the mortgagor, so as to enable him to commit a fraud, by holding himself out as absolute owner, should be post- poned; but the established doctrine is, that nothing but fraud, express or Implied, will postpone him. 2. The hardship and abuse complained of in the English cases, arise from the want of a general registry act, under which a second mortgagee can always secure himself. I be- 22 MAXIMS OF EQUITY. lieve there are no registry acts in England, except in certain counties, as Yorkshire and Middlesex; and the provision in such cases, (see Stat. 3 and 4 Anne c. 4,) is similar to that in our act concerning mortgages, and gives the subsequent purchaser, or mortgagee, the preference, if the memorial of his deed be first registered. It has been decided, in John- son V. Stagg, 2 Johns. 510, that our act con- cerning the registry of mortgages extends to leases for years, assigned by way of mort- gage; and that the leaving of the lease with the mortgagor, was no evidence of fraud, be- cause the registry of the mortgage was a ben- eficial substitute for the deposit of the deed, and gave better and more effectual security to subsequent mortgagees. The registry of the mortgage is notice; and if the first mortgagee neither taiies the title deeds, nor registers his mortgage, he only exposes himself, and not the subsequent purchaser, or mortgagee. The statute expressly secures the bona fide purchaser, and it equally enables the subse- quent mortgagee to secure himself, by regis- tering his mortgage. We have seen that the leaving the title deeds with the mortgagor is no prejudice to the first mortgage; and there is the less ne- • cessity for it with us than in England, be- cause, with us, the creditor who subsequently, and without notice of any prior unregistered mortgage, deals with the mortgagor, can al- ways protect himself in the easiest and most effectual manner; and, supposing he omits to do it, by a misplaced confidence in the mort- gagor, has he any equitable claim to be pre- ferred to a prior mortgagee, who, under the same misplaced confidence, has equally omit- ted to do it? This is the turning point in the present case. The first mortgage was valid without regis- try. The statute does not render a registry indispensable. The omission of the registry only exposes the mortgagee to the hazard of a loss of his lien by a subsequent bona fide purchase, or to the hazard of a postponement of his lien to a subsequent registered mort- gage. A second mortgage will not, per se, and without registry, gain a preference. There is no such principle to be deduced from the statute, and there is no reason or necessity for it in the nature of the case. The reason why a bona fide purchaser is expressly excepted from the operation of an unregistered mort- gage is, that he could not otherwise deal with safety, and would be exposed, even with the utmost vigilance, to the frauds of the mort- gagor. The act does not provide for the reg- istry of his deed, but only for the registry of mortgages, and gives them a preference ac- cording to the priority of the registry. The second mortgagee protects himself by his reg- istry, but the purchaser does not, and cannot; and, therefore, the statute declares that his deed shall absolutely prevail over the unregis- tered mortgage. The statute of 3 and 4 Anne, relative to the west riding of Yorkshire, pro- vides for the registry of deeds and mortgages promiscuously, and, therefore, places them upon an equal footing. Though, in one sense, every mortgage is a purchase, yet the mortgage act evidently speaks of purchasers, in the popular sense; as those who take an absolute estate in fee. There is no pretext for considering a mere mortgagee as a purchaser, within the mean- ing of the second section of the act concern- ing mortgages. I have not been able to discover any prin- ciple of law or equity that wiU enable me to say, that the first mortgage is to be deprived of its advantage of priority of time. The omission to register the mortgage was not capable of producing any mischief to third persons, who would use ordinary diligence and precaution. The defendants ought not to charge a negligence upon the plaintiffs of which they have been equally guilty. It was their own fault or folly that they were not protected. They trusted to the assurances of the mortgagor that his land was unencum- bered; and the plaintiffs trusted equally in the mortgagor, that he would not, afterwards, sell or mortgage the land. It is a common rule, say the books, that where of two per- sons, equally innocent, or equally blamable, one must suffer, the loss shall be left with him on whom it has fallen; and here comes in the other rule, that the equities being oth- erwise equal, the priority of time must deter- mine the right. It is very clear that the firot mortgagee was not bound to register his mortgage, because the law makes it valid, as between the par- ties, without registry. The registry is only a matter of precaution, and the statute has pro- vided against all the mischief of the omission. If the party will not avail himself of the means of safety provided by statute, he can- not expect that this coin-t will grant him fur- ther aid, and especially against a party whom he charges with no fraud. If relief is ever given in any case, on the ground of policy, or constructive fraud, against the sale or mort- gage of property, it is because, from the non- deliveiy of possession, or from other circum- stances, imposition had or might have been practised, which could not be detected or guarded against by the exercise of ordinary diligence. No such ground for relief exists in this case. I am, accordingly, of opinion, that the plain- tiffs are entitled to relief, according to the prayer of their bill, and that the defendants are either to account to them for the amount due on their bond and mortgage, or that the residue of the term be sold for the satisfac- tion of their debt. The costs of suit are to be paid out of the property mortgaged. Decree accordingly. MAXIMS OF EQUITY. 23 SHIRRAS V. CAIG. (7 Oranch, 34.) Supreme Court of the United States. 1812. MARSHALL, C. J., delivered the opinion of the court as follows: This is an appeal from a decree rendered by the cii-cuit court for the district of Geor- gia. Shirras and others, the appellants, brought their bill to foreclose the equity of redemp- tion on two lots lying in the town of Sa- vannah, alleged to have been mortgaged to them by Edwin Gairdner. The deed of mort- gage is dated the first of December, 1801, and purports to be a conveyance from Ed- win Gairdner and John Caig, by Edwin Gaird- ner his attorney in fact. Edwin Gairdner not appearing to have possessed any power to act for John Caig, the conveyance as to him, is void, and could only pass that interest which was possessed by Gairdner himself. The court will proceed to inquire what that interest was. It appears that, on the 17th May, 1796, the premises were conveyed to James Gau:dner, Edwin Gairdner and Robert Mitchel, mer- chants and co-partners of the city of Sa- vannah. In 1799, this partnership was dissolved; and, in December in the same year, James Gairdner made an entry on the books of the company charging this property to Edwin Gairdner & Co. of Charleston, at the price of 20,000 dollars. This firm consisted of Ed- win Gairdner alone. James Gairdner also ex- ecuted a power of attorney authorizing Ed- win Gairdner to sell and convey his interest in this and other real property. In March, 1801, a partnership was formed between Edwin Gairdner and John Caig to carry on trade in Savannah, under the firm [name] of Edwin Gairdner & Co.; and in the same month, Robert Mitchel, conveyed his one third of the lots in question to Edwin Gairdner and John Caig. About the same time it was agreed between the house at Charleston and that in Savan- ■ nah to transfer the Savannah property to the firm trading at that place; and entries to that effect were made in the books of both companies; and possession was deliv- ered to Edwin Gairdner & Co. of Savannah. Such was the state of title in December, 1801, when the deed of mortgage bears date. The plaintiffs claim the whole property, or, if not the whole, five sixths; because they suppose Edwin Gairdner to have been equitably entitled to his own third, to that of James Gairdner, and to half of the third of Robert Mitchel. But for this claim the court is of opinion that there can be no just pretension, because he did not affect to con- vey by virtue of the power from James Gairdner— he did not affect to pass the in- terest of James Gairdner, but to pass the estate of John Caig and himself. Conse- quently the power of attorney may be put out of the case, and the conveyance could only operate on his own legal or equitable interest. In law, he was seized under the original deed, and the deed from Robert Mitchel of one undivided moiety of the property. Under the various agreements and entries on the books of the firms at Charleston and Savannah which have been stated, his equi- table interest was precisely equal to his legal interest. In law and equity he held one moiety of the premises in question. The other moiety was in John Caig. To one sixth Caig was legally entitled by the con- veyance from Robert Mitchel, and to two sixths he was equitably entitled by the agree- ment with Edwin Gairdner and the conse- quent entries on the books. Of the equitable interest of John Caig the mortgagees were bound to take notice, because the purchaser of an equitable in- terest, purchases at his peril, and acquires the property burdened with every prior equi- ty charged upon it, because the deed itself gives notice of Caig's title, and because Caig was in possession of the property. The mortgage deed of December, 1801, could not, then, in law or equity, pass more than one moiety of the property it men- tions. A question arises on the face of the deed respecting the extent of the property com- prehended in it. The plaintiffs contend that both lots are within the description; the , defendants that only the wharf lot is con- veyed. The property conveyed is thus described: "All that lot of land, houses and wharfs in the city of Savannah as is particularly de- scribed by the annexed plat, and is general- ly known by the name of Gairdner's wharf." The plat was not annexed, nor was it re- corded with the deed. It is, however, filed as an exhibit in the cause, and appears to be a plat of a part of the town of Savannah, including the lot on which Gairdner's wharf was, and also one other lot belonging to the same persons, which was designated as No. 6, and which does not adjoin the property on which the wharves are erected. The words descriptive of the property in- tended to be conveyed do not appear to the court to be applicable to more than the wharf lot. The word "lot" is in the singular num- ber; the term "houses" is satisfied by the fact that there are houses on the wharf lot; and there is no evidence in the cause, nor any reason to believe that lot No. 6 was "generally known by the name of Gairdner's Wharf." The court, therefore, cannot con- sider that lot as comprehended within the conveyance. The mortgaged property is in possession of the defendants Caig and Mitchel, who derive their title thereto in the following manner. On the 7th of January, 1802, a new part- 24 MAXIMS or EQUITY. nership was formed between Gairdner, Caig and Mitchel, and, by the articles of co-part- nery, whlcli are under seal, the Savannah property is declared to be stock in trade, and an entry was made on the books of the old firm transferring this property to the new concern. On the 12th of the same month, the co-partnership of Gairdner and Caig was dissolved. On the 27th of July, 1802, by deeds prop- erly executed, one third of the property be- came vested in John Caig, and one other third in Robert Mitchel. On the 3d of November, 1802, Edwin Gaird- ner became a bankrupt; and this bill is brought by his mortgagees and assignees. The claim to foreclose is resisted by Caig and Mitchel, because they say, 1st. The mortgage was not executed at the time it bears date, but long afterwards, and on the eve of bankruptcy. 2d. That the transaction is not bona fide, there being no real debt, nor any money ac- tually advanced by the mortgagees. 3d. That the mortgage was kept secret, in- stead of being committed to record. 4th. That the whole transaction is totally variant from that stated in the deed. They therefore claim the property for the creditors of Gairdner, Caig and JVljitchel. 1st. From the testimony in the cause it appears that the deed, if not executed on the day, was executed about the day of its date; and that Gairdner, at the time, was believed to be solvent. 2d. It appears, also, that the mortgage was executed, in part, to secure the payment of money actually due at the time, and, in part, to secure sums to be advanced, and to in- demnify some of the mortgagees for liabili- ties to be incurred. 3d. The mortgage is dated the 1st of De- cember, 1801, and was recorded in September, 1802. By the laws of Georgia, a deed is valid if recorded within twelve months; but any deed recorded within ten days after its execution takes preference of deeds not recorded within that time, or previously on the record. It appears to the court, that neither neg- ligence, nor that fraud which is inferred from the mere fact of omitting to place a deed on record, can, with propriety, be imputed to the person who has used all the despatch which the law requires. If subsequent pur- chasers without notice, sustain an Injury within the time allowed for recording a deed, the injury is to be ascribed to the law, not to the individual who has complied with its requisition. In this case the subsequent purchasers might have proceeded to record their deeds within ten days, and have thereby obtained the preference they claim, but they have failed to do so. They are themselves charge- able with the very negligence which they as- cribe to their adversaries; and, were they to be preferred, the court would invert the well established rule of law, and postpone, under similar circumstances, a prior to a sub- sequent deed. 4th. It is true that the real transaction does not appear on the face of the mortgage. The deed purports to secure a debt of £30,- 000 sterling due to all the mortgagees. It was really intended to secure different sums, due at the time from particular mortgagees, advances afterwards to be made, and liabili- ties to be incurred to an uncertain amount. It is not to be denied, that a deed, which misrepresents the transaction it recites, and the consideration on which it is executed, is liable to suspicion. It must sustain a rig- orous examination. It is certainly, always advisable fairly and plainly to state the truth. But if, upon investigation, the real transac- tion shall appear to be fair, though somewhat variant from that which is described, it would seem to be unjust and unprecedented to de- prive the person claiming under the deed, of his real equitable rights, unless it be in favor of a person who has been, in fact, injured and deceived by the misrepresentation. That cannot have happened in the present case. There is the less reason for imputing blame to the mortgagees, in this case, because the deed was prepared by the mortgagor himself, and executed without being inspected by them, so far as appears in the case. It is then, the opinion of the court that the plaintiffs, Shirras and others, have a just title, under their mortgage deed, to subject one moiety of the lot, or parcel of ground, commonly known .by the name of Gairdner's Wharf, to the payment of the debts still re- maining due to them, which were either due at the date of the mortgage, or were after- wards contracted upon its faith, either by ad- vances actually made or incurred prior to the receipt of actual notice of the subsequent title of the defendants, Caig and Mitchel; and that the decree of the circuit court of Georgia, so far as it is inconsistent with this opinion, ought to be reversed. The following is the decree of this court: This cause came on to be heard on the transcript of the record, and was argued by counsel. On consideration whereof it is the opinion of this court, that the deed of mort- gage in the proceedings mentioned, and dated on the 1st of December, 1801, is, in law, a valid conveyance of one moiety of that lot of land, houses and wharves in the city of Savannah, which was generally known by the name of Gairdner's Wharf, being the par- cel of ground lying between the river and the street, and that the mortgagees in the said deed mentioned, are entitled to foreclose the equity of redemption in the said mortgaged property, and to obtain a sale thereof, and to apply the proceeds of the said sale to the pay- ment of what remains unsatisfied of their re- spective debts, which were either due at the date of the mortgage, or have been since con- tracted, either on account of monies advanced. MAXIMS OF EQUITY. 25 or liabilities incurred prior to their receiving actual notice of the title of the defendants, John Caig, and Robert Mitchel. And the de- cree of the circuit court for the district of Georgia, so far as It is inconsistent with this opinion, Is reversed and annulled, and in all other things is affirmed; and the cause is re- manded to the said circuit court for the dis- trict of Georgia, that further proceedings may be had therein according to equity. 26 MAXIMS OF EQUITY, CITY OF ST. LOUIS v. O'NEIL LUMBER CO. et al. (21 S. W. 484, 114 Mo. 74.) Supreme Court of Missouri. Division No. 1. Feb. 6. 18&3. 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 tlieir 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. Uoyle 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 Eassieur & 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 authorizingthe 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 worlj 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 Houseof Refuge.' The work was let to one James McLane, under three separate contracts. Contract No. 2,071 provided for tlie erection of two new privy buildings at a cost of twenty-eight hun- dred dollars. By contract numbered 2,0t>3 McLane agreed to make certain altera- tions in the basement and in the dormi- tory of the old building, for the sum of eiglit hundred and fifty dollars. The third contract, numbered 2,076, provided for furnishing lumber and laying the floor in the shoe shop of the Houseof Refuge. The foregoing contracts were signed by 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 ease the contractor 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 mate/'ials as he may find on the line of said work, or to procure other materials for the completion oi tlio same, and to charge the expense of said labor and ma- terials to the contractor; that thisexpense shall be deducted and paid ont of such moneys as may then be due, or may at any time thereafter grow due, to him un- der the contract; and,incasKsuch 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 the contractor and his sureties) shall pay the amount of such excess.' The contracts also contained the following provision: 'And said party of the first pfirt (which includes the contractor and his sureties) hereby further agrees that be 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 a lien therefor under any law of the state of Missouri, have been fully paid, are no lunger 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 party 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 inarliet 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 he 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,. 1888, 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 McLanfr 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 hundi-ed 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 tlie 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 Houseof 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. Afewdays- MAXIMS or EQUITY. 27 after this arrangement with Higgins and Sellers, the O'Neil T. umber Company, one of the interpleaders, filed a suit in etjuity against McLane 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 afnount 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 theyclaimed to have performed work and furnished materials to McLane, under contract No. 2,071, of the valueof thirxeen 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 tliem. When Higgins and iSellers completed the work they claimed that the work done and the materials fur- nished by thera in the completicm "of con- tract No. 2,071 actually cost thera the sura 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 that 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.thnt, 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- tracis, in preference to the O'Neil Lumber Company and Doyle Bros. When the city found itsplf beset with these conflicting claims, it l)rought 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 furtlier 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 respectiveclainis to prior- ity. The court held that Higgins and Sell- ers must be paid first. 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 tue Ist and 2()th 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 of the Doyle Bros, being the next in point of time, the remainder nf 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 distril)ution Doyle Bros, have prosecuted their appeal." The court of appeals affirmed the judg- ment of the circuit court, (42 Mo. App.5S6,) all the judges agreeing that out of tliH funds to be distributed the amount found to be due Higgins and Sailers must be first Ijaid. But to the conclusion reached by a majority of the court of appeals auij the circuit court,— that the remainder should he 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 egual footing, without reference to the date of filing, the account, or lien; and in all cases whers a sale shall be or- dered, and the property sold, which may be described in any account or lien, the proceeds arising from such sale, when not sutficientto discharge in full all the liens against the same without reference to the date of filing the account or lien, shall lie fiaid pro rata on the respective liens: pro- vided, such accountor liens shall havebeen filed and suit brought as provided by this article.' Rev. St. 18S9,§ 6727; Rev. St. 1879, § :S19S. With this statute in force, the city of St. Louis, in making the contract with McLaup, inserted the following provision : 'And said party of the first part (which includes the contractor and his sureties) hereby furcher agree.i that he will furnish the said board of public Improvements with satisfactory evidence that all persons who have dune work or famished mate- rials under this agreement, and are enti- tled to a lien therefor under any law of 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 pntil the liabili- ties aforesaid ma.v be fully discharged.' With this provision inforce, indicating the policy of the state to be that all mechanics and material men entitled to liens shall share ratably, the cit,y 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 Mie statute is carried out, and that it will withhold enough of what is due to the principal conti actor 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. 642, to hold enough of what was due McLane in the characterof trustee for the material men who had furnished to him materials which he used in the work. But events took such a turn that there was not enough 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 ■28 MAXIMS or EQUITY. true that the cityhas not, under the terms Now, what is the situation of an alien? He cannot only take an interest in land, but a freehold interest in the land itself, and may hold it against all the world but the king, and even against him until office found, and he is not accountable for the rents and profits previously received.^ In this case the will being valid, and the alien capable of taking under it, there can be no resulting trust to the heir, and the claim of the state is founded solely upon a supposed equity, to have the land by escheat as if the alien had, or could upon the principles of a court of equity, have elected to take the land instead of the money. The points of difference be- tween the two cases are so striking that it would be a waste of time to notice them in detail. It may be further observed, that the case of Roper v. Radcliffe has never, in England, been applied to the case of aliens; that its authority has been submitted to with re- luctance, and is strictly confined in its ap- plication to cases precisely parallel to it. Lord Mansfield in the case of Foone v. Blount, speaks of it with marked disappro- bation; and we know, that had Lord Trevor 10 An alien may take, by purchase, a freehold, or other interest in land, and may hold it against all the world except the king; and even against him until office found; and is not ac- countable for the rents and profits previously received. 11 Vide 3 Wheat. 12. Jackson ex dem. State of New York v. Clarke, note c. been present, and declared the opinion he- had before entertained, the judges wo^ld have been equally divided. The case of the Attorney General and Lord Weymouth, Amb. 20, was also pressed upon the court, as strongly supporting that of Roper V. Radcliffe, and as bearing upon thfr present case. The first of these pro]>ositions might be- admitted; although it is certain that the mortmain act, upon which that case was. decided, is even stronger in its expression than the statute against papists, and the chancellor so considers it; for he says, whether the sui^ilus be considered as money or land, it is just the same thing, the statute making void all charges and encumbrances on land, for the benefit of a charity. But if this case were, in all respects, the- same as Roper v. Radcliffe, the observations which have been made upon the latter would all apply to it It may be remarked, however, that in this case, the chancellor avoids expressing any opinion upon the ques- tion, whether the money to arise from the- sale of the land, was to be taken as personal- ty or land; and, although he mentions the case of Roper v. Radcliffe, he adds, that he- does not depend upon it, as it is immaterial whether the surplus was to be considered as land or money under the mortmain act. Upon the whole we are unanimously of opinion, that the legacy given to Thomas. Craig, in the will of Robert Craig, is to be considered as a bequest of personal estate,, which he is capable of taking for his own, benefit. Certificate accordingly. MAXIM-^ OF EQUITY. 48 STESrCHFIELD 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 Hallowell 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. Tlie 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 iis personal property to secure the notes here- after named, in order to protect a lien ttiere- 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. iShaw 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 pints of the transaction. Where the intention is clear tli;u an absolute convey- ance is talven as a security for a debt, it is in equity a mortgage. Ko" 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 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 sufiScient 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, acijuiring 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 such 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. Rowell v. 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 diffwent 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 reoaration to be 14 MAXIMS OF EQUITY. made by admitting a verbal defp.'isiuice to be proved. The cases which support this view are too numerous to cite. Tlie 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. Tliat 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 dorte. 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. Cushing v. Thomp- son, 34 Maine, 496; Pierce v. Faunae, 53 Maine, 351. The bead note in Larrabee v. Luinbert, 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. Oneof the defendants teslifles that "Stinch- fleld 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 tlieni. 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. Tor 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 tliat 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 tliat 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., WALTOISr, DA.N- FORTH, VlllGIN, and LIBBEY, 33., con- curred. MAXIMS OF EQUITY. 45 AMES V. RICHARDSON. (13 N. W. Rep. 137, 29 Minn. 330.) Supreme Court of Minnesota. July 25, 1882. Plaintiffs broupfht this action, in the district <:oui t 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 policv 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. Young, 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 froiu 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 13,500 (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 Comoanv, 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 compiiny'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, tlie 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 II. I. 491; Plimpton v. /ns. Co., 43 Vt. 407;. May, Ins. §g 449, 456; Carter v. Rockett, 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 ouc 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. That is 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 N Y. 42; Miller v. Aldrioh, 31 Mich. 408; 1 Story, Eq, Jur. § Qiy; 2 Am. Lead. Cas. (5th Ed.)8S2-4; In re Sands Ale Brewing Co., ^ Biss. 175, Fed. Cas. No. 12,1)07. Ir the cases cited (with the exception of Nichols V. Baxter) the insurance was effect- ed after the agreement to insure. In Nichols V. Baxter it would seem that the court thought this made no difference, though the opinion alludes (somewhat as a makeweight, as. it occurs to us) to the fact, which appeared by inference only, that the insurance in that 46 MAXIMS or EQUITY. case, though effected before tlie agreement to insure, wa? understood by the parties to be embraced in it. We, however, can see no reason why the same rule should not be ap- plicable to insurance already subsisting when the agreement to insure is made, as to that subsequently obtained, unless this result is affirmatively excluded by the facts of the case. Such subsisting Insurance can be made payable to the mortgagee, or assigned to him, so as to satisfy the agreement. Wliere the agreement is, as in the case at bar, "to keep" the premises insured, it is en- tirely consistent with its letter as well as its spirit to hold that it embraces prior as well as subsequent insurance. And where, as in tlio present instance, the value of the insured prujierty is such that subsequent insurance, sullicient to satisfy the agreement, cannot be obtained so long as the prior insurance stands, this is an equitable circumstance en- titled to great weight upon the question whether the prior insurance ought to be held to be covered by the agreement. This equi- table circumstance is much enhanced when the effect of the prior insurance is, as in this case, to scale and reduce the subsequent insurance procured and made payable to the mortgagee under the agreement. In such a state of facts, to permit the moitgagor to withhold the prior insurance from the mortgagee is to permit him to protil by his own wrong, at the expense of him whom he has wronged, and a violation of «ne of the first principles of law as well as of equity. The question is not what the mortgagor's intention was with reference to the prior insurance, but whether it was equi- table that, in carrying out any intention, he should be permitted to withhold the benefits from the mortgagee, especially in view of the maxim that equity regards that as done wliich ought to have been done. Cromwell V. Brooklyn Fire Ins. Co., Wheeler v. Ins. Co., Miller v. Aldrich, and In re 8ands Ale Brewing Co., supra. Applying these considerations to this case, we are of opinion that Ilichardson is clearly entitled to an equitable lien upon the pro- ceeds of the first insurance, to be applied up- on her note and mortgage. Cochran ought to have kept his covenant. He could have done this by procuring a third new policy, oi by assigning the first insurance, or hav- ing it made payable to Eichardson. As he did not do the former, he should have done the latter, and therefore Richardson is in equity entitled to stand in the same position as if he had done what he ought to have done. Stearns v. Quincy Ins. Co., 124 Mass. 61, relied upon by the plaintiffs, is not a case presenting the precise question whether an insurance effected before an agreement to insure is to be regarded as embraced in such agreement, so as to give a mortgagee an equitable lien on the proceeds. But the principle there enunciated, and which ap- pears to be supported by other decisions of that state, is that the mortgagee cannot have the lien unless the insurance was obtained by the mortgagor as his agent, or with intent to perform an agreement to insure. If this was to be regarded as the correct rule, it would seem to be decisive in the plain- tiffs' favor. But it is against the weight and current of authority, and, as it seems to us, inequitable, and therefore we do not fol- low it. Another question was discussed upon the argument, viz., whether tlie covenant to in- sure ran with the land, so that the record of the mortgage was constructive notice to the plaintiff and to all others of Richardson's (the mortgagee's) equities. "We do not deem it at all necessary to consider this question. The mortgagor's assignment of his claim under the certificate after the loss was an as- signment of a debt, — a mere chose in action, — wliich the plaintiffs took subject to all de- fenses and equities against him. Archer v. Merchants' & M. Ins. Co., 43 Mo. 434; Wil- son v. Hill, 3 Met. 66; Brichta v. N. Y. La- fayette Ins. Co., 2 Hall, (N. Y.) 372; Mel- len V. Hamilton Fire Ins. Co., 17 X. Y. 609; Greene v. Warnick, 64 N. Y. 220; May, Ins. § 386. From all this it follows that, in our opinion, the defendant is entitled to the pro- ceeds of the first insurance paid into the court, instead of the plaintiffs, as found by the court below. There being no dispute as to the correct- ness of the findings of fact, the case is re- manded, with directions to the district court to render judgment for the defendant accord- ingly. Though there is no formal reversal of the order denying a new trial, the defend- ant is entitled to costs, as of course. MAXIMS or EQUITY. 47 HAUGHWOUT et al. v. MURPHY. (22 N. J. Eq. 531.) ■Court of Errors and Appeals of New Jersey. 1871. Mr. Pitney (with whom was C. Parker), for ■appellants. Mr. Vanatta, for respondent. DEPUE, J. The bill of complaint filed in this cause, after setting out the proceedings in the suit in chancery between Haughwout and Boisaubin, charges that the deed of con- veyance from Boisaubin to Murphy, though bearing date on the 7th of August, 1865, was not actually delivered until the 5th day of October of that year, and after the filing of the bill of complaint by Haughwout against Boisaubin, and after the filing of notice of the pendency of that suit in the clerk's office of the county of Morris. It further charges that the said Murphy had actual knowledge of the contract of purchase made by Haugh- wout with Boisaubin, and of the intention of Haughwout to commence suit for specific performance, long before the delivery of his deed and the payment of any part of the con- sideration money therefor; and that the de- fendant accepted the said conveyance, and paid the purchase money therefor, with ac- tual knowledge of the existence of the com- plainants' contract, and of the pendency of the suit for the specific performance thereof. The prayer of the bill is that the title of the complainants to the said three lots may be ratified and established, and declared to be good and valid as against the claim of title made to the same by said Murphy, and be de- clared paramount thereto; and that the claim of title to the said lots by the said Murphy, under his deed of conveyance from Boisau- bin, be declared Invalid and of no efCeet against the title of the complainants, and that the defendant may be directed to release and convey to the complainants; and that the complainants may have such other and further relief, &c. A suit in chancery, duly prosecuted in good faith, and followed by a decree, is construct- ive notice to eveiy person who acquires from a defendant, pendente lite, an interest in the sub.1ect matter of the litigation, of the legal and equitable rights of the complainant as charged in the bill and established by the de- cree. This effect of a successful litigation in sub- ordinating the title of a purchaser pending a litigation, to the rights of the complainant as established in the suit, is not derived from legislation. It is a doctrine of courts of eq- uity, of ancient origin, and rests not upon the principles of the court with regard to notice, but on the ground that it is necessary to the administration of justice that the de- cision of the court in a suit should be bind- ing not only on the litigant parties, but also upon those who acquire title from them dur- ing the pendency of the suit. Bellamy v. Sabine, 1 De Gex & J. 566; Metcalfe v. Pul- vertoft, 2 Ves. & B. 205; Walden v. Bodleys' Heirs, 9 How. 49; Murray v. Lylburn, 2 Johns. Ch. 441. Such a purchaser need not be made a party, and will be bound by the decree which shall be made. 1 Story, Bq. Jur. § 406; Stoi-y, Eq. PI. §§ 106, 351; Bishop of Winchester v. Paine, 11 Ves. 196. Before any statutory provision was made requiring notice of the pendency of the suit to be filed in order to charge a subsequent purchaser from the defendant with notice of the litigation, it became the established practice that subpoena served and bill filed were necessary before the suit was consid- ered as commenced, so as to make Its pend- ency constructive notice to persons deriving title from the parties, and to give the decree a conclusive effect against such persons. 1 Vern. 318; 2 Madd. Ch. Prac. 325; 2 Sugd. Vend. 280; Hill, Trustees, '*511; Hayden v. Bucklin, 9 Paige, 512; Dunn v. Games, 1 Mc- Lean, 321, Fed. Cas. No. 4,176; Id., 14 Pet. 322, 333. An assignee who takes an assign- ment from the defendant after bill filed, but before subpoena served, is a necessary party. Powell V. Wright, 7 Beav. 444. By the fifty- seventh section of the chancery practice act, (the provisions of which are similar to the New York act of 1834, and to the English statute of 2 Vict. c. 11, § 7,) another requisite is superadded in order that the proceedings in the suit shall affect a bona fide purchaser or mortgagee; a written notice of the pend- ency of the suit must be filed in the clerk's office of the county in which the lands to be affected lie. Nix. Dig. p. 102. i This section Is expressed in negative terms, and has not changed the former practice except in pre- scribing that notice of the lis pendens shall be filed before a bona fide purchaser or mort- gagee shall be chargeable with notice of the pendency of the suit, notwithstanding the bill has been filed and the subpojna served. But the defendant was not a purchaser pendente lite. He acquired title by a deed which bears date on the 7th day of August, 1865, and was acknowledged on the next day. The defendant testifies that it was delivered on the 7th of August. Boisaubin's testimo- ny is that it was delivered on the 7th or 8th. From the date of the acknowledgment of the mortgage, it is probable that it was not finally delivered before the 19th. The proof, however, is full and clear that it was exe- cuted and delivered to Murphy before the bill was filed in the case of Houghwout v. Boisaubin. 2 The commencement of a suit in chancery is constructive notice of the pend- ency of such suit only as against persons who have acquired some title to or interest in the property Involved in the litigation, un- der the defendant, after the suit is com- menced. Stuyvesant v. Hall, 2 Barb. Ch. 151; Hopkins v. McLaren, 4 Cow. 667: Parks V. Jackson, 11 Wend. 442. A person 1 Revision, p. 114, § 57. 2 18 N. J. Eq. 315. 48 MAXIMS OP EQUITY. whose interest existed at the eomniencement of the suit is a necessity party, and will not be bound by the proceedings unless he be made a party to the suit. Ens worth v. Lam- bert, 4 Johns. Ch. 605. The complainants' right to relief on the ground that the defendant was a purchaser from Boisaubin pendente lite having failed, it must be considered whether, in the other aspect of the case, he will be entilled to re- lief. In this aspect the bill is to be taken to have been filed for the execution of the trust arising from the prior contract between Haughwout and Boisaubin for the purchase of the lands, by the conveyance to the com- plainant, by Murphy, of the legal title which he acquired by his deed. In this aspect of the case, the bill is a bill for specific perform- ance. In equity, upon an agreement for the sale of lands, the contract is regarded, for most purposes, as if specifically executed. The purchaser becomes the equitable owner of Che lands, and the vendor of the purchase money. After the contract, the vendor is the trustee of the legal estate for the vendee. Crawford v. Bertholf, 1 N. J. Bq. 460; Hoag- land V. Latourette, 2 N. J. Eq. 254; Huffman V. Hummer, 17 N. T. Eq. 264; King v. Kuck- man, 21 N. J. Eq. 599. Before the contract is executed by conveyance, the lands are de- visable by the vendee, and descendible to his heirs as real estate; and the personal repre- sentatives of the vendor are entitled to the purchase money. 1 Story, Eq. Jur. § 789; 2 Story, Eq. Jur. § 1213. If the vendor should again sell the estate of which, by rea- son of the first contract, he is only seized in trust, he will be considered as selling it for the benefit of the person for whom, by the first contract, he became trustee, and there- fore liable to account. 2 Spence, Eq. Jur. 310. Or the second purchaser, if he have notice at the time of the purchase of the pre- vious contract, will be compelled to convey the property to the first purchaser. Hoag- land V. Latourette, 2 N. J. Eq. 254; Down- ing y. Uisley, 15 N. J. Eq. 94. A purchaser from a trustee, with notice of the trust, stands in the place of his vendor, and is as mucli a trustee as he was. J. Eq. Gas. Abr. 384; Story v. Lord Windsor, 2 Atk. 631. The cestui que trust may follow the trust property in the hands of the purchaser, or may resort to the purchase money as a sub- stituted fund. Murray v. Ballon, 1 Johns. Ch. 566, 581. It is upon the principle of the transmission by the contract of an actual equitable estate, and the impressing of a trust upon the legal estate for the benefit of the vendee, that the doctrine of the specific performance of contracts for the sale and conveyance of lands mainly depends. The defendant Insists that he holds the lands discharged of any trust in favor of Haughwout or the complainants, by reason of his being a bona fide purchaser for a val- uable consideration, without notice. The proof is, that at the time of the deliv- ery of the deed, $400 of the consideration, money was paid, and the balance secured by mortgage. Conceding that the $400 was ac- tually paid before Murphy had notice of Haughwout's claim, the defence of a bona fide purchase is not supported. Before the mortgage became due, Murphy had actual notice of the existence and nature of Haugh- wout's claim. The defence of a bona fide purchase may be made by plea, in bar of discovery and re- lief, or by answer, in bar of relief only. If made by plea, the paj-ment of the whole of the consideration money must be averred. An averment that part was paid and the balance secured by mortgage, will not be sutticient. Wood v. Mann, 1 Sumn. 506, Fed. Cas. No. 17,951. Proof of the payment of the whole purchase money is essential to the de- fence, whether it be made by plea or answer. Jewett V. Palmer, 7 Johns. Ch. 65; Molony v. Kernan, 2 Dru. & War. 31; Losey v. Simp- son. 11 N. J. Eq. 246. Notice before actual payment of all the purchase money, although it be secured and the conveyance executed, or before the execution of the conveyance, notwithstanding the money is paid, is equiv- alent to notice before the contract. 2 Sugd. Vend. 533 (1037); Hill, Trustees, 165. If the defendant has paid part only, he will be pro- tected pro tanto only. 1 Story, Eq. Jur. § 64c; Story, Eq. PI. § 604a. What the measure of relief shall be in cases where the deed has been executed and delivered and part of the purchase money paid before notice of the previous contract to sell to another, was elaborately discussed by the counsel of the appellants. The chancel- lor held, upon the authority of Flagg v. Mann, 2 Sumn. 487, Fed. Cas. No. 4,847, that a contract of purchase, executed by delivery of the deed and payment of part of the pur- chase money without notice of the previous contract, gave the purchaser a right to hold the land, and that the equity of the person with whom the previous contract was made, was merely to have the unpaid purchase mone.y. The law of the English courts is, that un- til the defence of a bona fide purchase is perfected by the delivery of the deed of con- veyance, and the payment of the entire con- sideration money, such purchaser is without any protection as against the estate of the equitable owner under a prior contract, even though he contracted to purchase, and ac- cepted his deed and paid part of the pur- chase money in good faith; his only remedy being against his vendor to recover back what he has paid on a consideration which has failed. In some of the American courts this doctrine has been qualified to the ex- tent of enforcing specific performance of the prior contract, on condition that the pur- chaser shall be indemnified for the purchase money paid, and also for permanent improve- ments put upon the property before notice. MAXIMS or EQUITY. 49 on the principle that he who asks equity must do equity. The cases are collected In 2 Lead. Cas. Eq. 1; notes to Basset v. Nos- worthy. The doctrine of the English courts is nec- essary to give effect to the principle that in equitj', immediately on the contract to pur- chase, an equitable estate arises in the ven- dee, the legal estate remaining in the vendor for his benefit. Qualified by the obligation to make compensation to any subsequent bona fide purchaser, who has paid part only of the consideration money, for all disburse- ments made before notice, the rule is every way consonant with correct principles. Such indemnity Is protection pro tanto. But whatever the nature of the relief may be in cases where the naked question of the acceptance of a deed and payment of part of the consideration before notice is presented, the relief indicated by the chancellor is the only relief the complainants are entitled to under the circumstances of this case. The rule of law which deprives a subsequent pur- chaser who has contracted for and accepted a conveyance, and paid part of the purchase money in good faith, of the fruits of his pur- chase without indemnity, is exceedingly harsh, and often oppressive in its applica- tion. Mitigated by the obligation to make indemnity for payments and expenditures before actual notice, its operation is never- theless frequently inequitable. A party who asks the enforcement of a rule of this nature against another who is innocent of actual fraud, must seek his remedy promptly. He may lose his right to specific relief against the lands by laches, and be remitted to the unpaid purchase money as the only relief which will be equitable. In cases where the prayer is for the specific performance of a contract between the immediate parties to the suit, delay in filing the bill is often of it- self a bar to relief. Merritt v. Brown, 21 N. J. Eq. 401. The agreement between Haughwout and Boisaubin was made on the 24th of Septem- ber, 1863. In February, 1864, Haughwout gave Boisaubin notice of his election to take the property under the agreement. After this notice was given, Boisaubin laid the property out in lots and publicly offered them for sale. Murphy's deed for the three lots of which he became the purchaser, was ex- ecuted and delivered in August, 1865. The bill in the suit of Haughwout v. Boisaubin, was filed the last day in the same month. The solicitor who appeared for Haughwout in that suit, had notice of the existence of Murphy's deed within a few days after his bill was filed. Boisaubin, in his answer, HUTCH.EQ.JUB. — 4 which was filed on the 3d of November, 1SG.5, specifically sets out the fact of the convey- ance to Murphy and the circumstances con- nected therewith. Murphy was himself ex- amined as a witness on the 5th of April,, 1866, and testified in relation to the convey- ance to him. Haughwout must be charged with notice as early as April, 186G, that Murphy intended to assert his right to the land. The bill in this case was not filed un- til the 4th of April, 1868. After this long delay it would be inequitable to enforce specific performance against the defendant. The fact that there were delays in the prose- cution of that suit to final decree, which were unavoidable, ought not to prejudice Murphy. He should have been made a party to that suit. Besides that, the bond and mortgage which were given by Murphy to Boisaubin for the unpaid purchase money, were assigned by Boisaubin to one Geoffrey, on the 16th of April, 1866, and by Geoffrey further assign- ed to William Davidson, on the 2d of July of the same year, and notice of such assign- ment given to Murphy by the solicitor of Davidson. The money due on the mortgage was paid at its maturity by Murphy to Dav- idson's solicitor. That Davidson, in the transaction, was acting for Haughwout, and that the money wherewith this assignment was procured was paid by Haughwout, and that the proceeds when collected were real- ized by him, are indisputable. That the assignment was made by Geof- frey to Davidson, as collateral security, will not affect the case. When Murphy received' notice of the prior equitable title of Haugh- wout, he was entitled to have the security- he had given for the unpaid purchase mon- ey surrendered. Tourville v. Naish, 3 P. Wms. 307. The subsequent assignments- were taken and the money received, with- full notice of all the circumstances. The- money received on the mortgage, Haugh- wout still retains. It is no answer to say- that in decreeing specific performance Mur- phy may have the money refunded to him. Haughwout might have insisted upon hav- ing the land itself, or at his option, pursued the proceeds of the sale. He cannot have- both. By accepting a security given for the purchase money, he is deemed to have af- firmed the sale so far as respects the pur- chaser. Murray v. Lylburn, 2 Johns. Ch. 441; 2 Story, Eq. Jur. § 1262; Scott v. Gam- ble, 9 N. J. Eq. 218. The complainants are not entitled to relief. The decree of the chancellor is affirmed, with costs. The whole court concurred. 50 MAXIMS OF EQUITY. CLEMENTS v. TTLLMAN et al. (5 S. E. 194. 79 Ga. 451.) Supreme Court of Georgia. February 13, 1888. Error from superior court, Muscogee coun- ty; Smith, Judge. Suit by Hattie E. Tillman and William L. Tillman, plaintifCs and defendants in error, against John W. Clements, defendant and plaintiff in error, for an account and settle- ment of a legacy due said Hattie E. Till- man under the will of one Jacob A. Clem- ents, John W. Clements being an executor of the same. The following is the official report: Hattie E. Tillman, a legatee under the will of Jacob A. Clements, deceased, with her husband and trustee, William L. Tillman, filed their bill for account and settlement against John W. Clements, executor, and Sa- rah B. Clements, executrix, of said will. The bill contained charges of mismanage- ment of the estate, violations of the provi- sions of said bill, and non-payment by the executors of the interest of complainant as legatee. The defendants answered the bill; but as their answers are not material or nec- essary to an understanding of the errors com- plained of, they are not set forth. The jury returned the following verdict: "We, the jury, find that Sarah B. Clements has no property or effects of the estate of Jacob A. Clements, deceased, in her hands, as execu- trix or otherwise. We, the jury, further find that John W. Clements, as executor of the will of Jacob A. Clements, deceased, has now in his hands the sum of eight hundred and ten dollars principal and five hundred dollars in- terest, belonging to Hattie B. Tillman, as lega- tee under the will of Jacob A. Clements." Upon this verdict the following decree was rendered by the court: "Whereupon, the premises considered, it is ordered, adjudged, and decreed by the court that the complainant do recover the same sum of eight hundred and ten dollars principal and the further sum of five hundred dollars interest to this date, and the further sum of dollars, costs of suit in this behalf laid out and expended, for which said several sums let execution is- sue, to be levied in the first place of the goods and chattels, lands and tenements, of said Jacob A. Clements, deceased, in the hands of John W. Clements, executor of the will of said Jacob A. Clements, if to be found; and if not to be found, then to be levied of the personal goods and chattels, lands and tenements, of said John W. Clem- ents. It is further ordered and decreed by said court that the said John W. Clements do satisfy and pay the aforesaid amounts, principal, interest, and costs, to the said complainant, on or before the first day of January next; and, in default thereof, that he be held and deemed to be in contempt of the oi-der and decree of this court." Plaintiff ia error excepts to the portion of the decree embodied by the last sentence, and says the court erred in rendering a decree to be en- forced by attachment for contempt— "First, because the verdict was a money verdict, and the same could only be enforced by ex- ecution; second, because the verdict of the jury was a money verdict, and could not be enforced by an attachment for contempt, and could only be enforced by execution; third, because the verdict of the jury was a money verdict, and was a debt, and to en- force the decree by an attachment for con- tempt would be to imprison the defendant for debt, which is prohibited by the constitu- tion of the state; fourth, because the decree sought and moved for provides both for the enforcement of it by execution, and an at- tachment for contempt; and the complain- ant should be required to elect whether she would proceed to enforce it by execution or attachment for contempt if the court deter- mined that it could be enforced by attach- ment for contempt." C. J. Thornton, for plaintiff in error. L. F. Garrard, for defendants in error. KIBBEE, J.i Originally, in the absence of statutes providing otherwise, decrees of courts of equity, of whatever kind or nature, operated strictly and exclusively in per- sonam. The only remedy for their enforce- ment was by what is termed "process of contempt," under which the party failing to obey them was arrested and imprisoned until he yielded obedience, or purged the contempt by showing that disobedience was not wilful, but the result of inability not produced by his own fault or contumacy. The writ of assistance to deliver possession, and even the sequestration to compel the performance of a decree, are comparatively of recent origin. Our statutes expressly pro- vide that "all orders and decrees of the court may be enforced by attachment against the person; decrees for money may be enforced by execution against the property." Code, § 3099. "A decree in favor of any party, for a specific sum of money, or for regular in- stallments of money, shall be enforced by execution against property as at law." Code, § 4215. "Every decree or order of a court of equity may be enforced by attachment against the person for contempt; and if a decree he partly for money and partly for the per- formance of a duty, the former may be en- forced by execution, and the latter by attach- ment or other process." Code, § 4216. The clear legislative intent is manifest to en- large and render more efficacious equitable remedies, while preserving the remedies the courts had previously employed in the ab- sence of statutes providing others. Under our statutes, when a party is decreed to per- form a duty, or to do any act other than the 1 Blandford, J., being disqualified, Judge Kib- bee, of the Oconee circuit, was designated to preside in his stead. MAXIMS or EQUITY. 51 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 Coughlln v. Ehlert, 39 Mo. 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- Cay, 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. 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. 52 PROPEliXY IN EQUITY— TKUSTS. URANN V. COATES et al. (109 Mass. 581.) Supreme Judicial Court of Massachusetts. March, 1872. A. conveyed to B. certain land by an abso- lute conveyance, B. agreeing orally to hold in trust for A. after satisfying claims he held against A. At B.'s death the following writ- ing was found among his papers. "Boston, July 21, 18G.5. I, Benjamin Rand, having purchased the estate of Isaac P. Rand, of Roxbury, said estate being situated partly in Roxbury and partly in Dorchester, in the state of Massachusetts, for his deed de- livered to me on July 21, 1865, do hereby agree and bind myself and my heirs to pay over to tha said Isaac P. Rand whatever bal- ance shall remain over and above the amount necessary to discharge my original claims against Isaac P. Rand, and the charges against the said estate, which by my pur- chase of the same have become vested in me, the said payment to be made when all such claims and charges shall have been fully liquidated and discharged. * * * And also in all charges and expenses which have been or shall be incurred by me or my heirs in dis- charging the above claims and charges and in carrying on the estate. Benjamin Rand." This was followed by the memorandum which is given in the opinion. The plaintiff, who is the assignee of A., brings this action against the heir and administrator of B. to recover the balance remaining after the satis- faction of the claims of B. H. F. French & J. E. Maynadier, for plain- tiff. E. D. Sohier & 0. A. Welch, for defend- ants. COLT, J. The bill charges that Benjamin Rand held the land conveyed to him by the absolute deed of Isaac P. Rand, upon trust to apply the avails of it to the payment of cer- tain incumbrances and debts due him, and to account for any surplus to Isaac P. Rand, the grantor, to whose right the plaintiff, as assignee, has succeeded. The writings by which it is claimed that this trust is de- clared are fully set forth, and it Is alleged that under the trust sales have been made of more than enough to pay all demands and charges, leaving a surplus, to which the plain- tiff is entitled. The defendants file a plea denying that Benjamin in his lifetime held the land upon any such trust, or that any trust was de- volved upon them, as his representatives, by his death. The purpose, no doubt, is to ob- tain first the decision of the court upon the question whether, upon the facts disclosed, any trust is raised which can be enforced; for, if no trust shall be found to exist, then the investigation of long and detailed ac- counts will be avoided. This is the point which was argued at the bar, and we proceed to its consideration without regard to sup- posed irregularities in the pleadings. The land in question was conveyed by an absolute quitclaim deed, dated on the 15th, but delivered on the 21st day of July, 1865, to Benjamin, who then held large demands against Isaac P. Rand, secured by mortgage on the same premises. The evidence suffi- ciently proves that Benjamin orally agreed, at and before the time of the delivery of the deed of the equity, and as part of the transac- tion, that any surplus over and above his claim that might remain of the estate or its proceeds should belong to Isaac P. No writ- ten memorandum of the agreement was made before the delivery of the deed, but it was suggested at the time that Benjamin should put it in the shape of a'memorandum, safely deposited, in case anything should happen to him. And Benjamin afterwards informed Isaac P. that soon after the transaction he made a memorandum of the agreement. No such paper was ever delivered to, or came into the possession of, Isaac P., but after the death of Benjamin a writing of that descrip- tion was found safely deposited in his bank trunk. By the terms of this writing, he agreed to pay over any balance of the estate remaining, substantially in accordance with the oral agreement. It was signed by Benja- min, and dated July 21, 1865; and under- neath the first signature was an additional statement, also signed, in these words: ''This memorandum is made by me for the use of my executor or administrator only. Neither Isaac P. Rand, nor those claiming under him, have any legal or equitable claim against me or my estate; but upon the payment of my debt, Interest, and all charges, as above men- tioned, any balance shall enure to the bene- fit of Isaac P. Rand and those claiming un- der him." We are of opinion that this writing is sut-\ ficient as a declaration of trust, within the/ meaning of our statute. It Is much more' formal and particular in its statement than declarations of this description by letter, by answer in chancery, affidavit, recital in bond or deed, or in pamphlet, which have all been held sufficient, and with reference to which it is held to be no objection that they were drawn up for another purpose and not ad- dressed to, nor intended for the use of, the cestui que trust. See cases cited in Browne, St. Frauds, §§ 98, 99. It is not essential that the memorandum re- lied on should have been delivered to any one as a declaration of trust. It is a question of fact, in all cases, whether the trust had been perfectly created ; and upon that ques- tion the delivery or nondelivery of the instru- ment is a significant fact, of greater or less weight according to the circumstances. K the alleged trust ai'ises from mere gift, de- livery of the writing by which it is declared Is not always required as proof that the gift was perfected, for the court will consider all the fncts bearing upon the question of inten- tion, and it has been held that if a party ex- ecute a voluntary settlement, and the deed PROPEBTY IN EQUITY— TRUSTS. 53 recites that it is sealed and delivered, it will be binding on the settlor, even if he never parts vcith it and keeps it In his possession until his death. Bunn v. Winthrop, 1 Johns. Ch. 329; Perry, Tnists, § 103, and cases cited. It must always, however, appear that the fiduciary relation is completely established, and not left as a matter of executory agree- ment only, regard being had to the situation of the property, the relations of the parties, and the purposes and objects had in view. In this case the verbal agreement in which the trust originated was made in considera- tion of the conveyance by Isaac P. of his in- terest in the real estate, and the tru.st is founded on a good consideration. The fact is of weight in aiding the court to carry out the intentions of the parties; and the want of a delivery of the memorandum becomes of less significailce. The law as thus laid down is to be found mainly in decisions under the words of the English statute, which requires that all dec- larations and creations of trust shall be man- ifested or proved in writing. These were the words of our earlier law (St. 1783, e. 37, § 3), and they remained until the fli-st general re- vision of the statutes; the requirement of the present statute being that the trust shall be created or declared in writing. Gen. St. c. 100, § 19. The same change has been made in other states; and in those in which the question has been incidentally before the courts the tendency is to rule that this ab- breviation in the words does not change the law, and that "created or declared" are equivalent to "manifested or proved." Trusts may be created in the first instance in writ- ing. They more commonly originate in the oral agreements and transactions of the par- ties, and are subsequently declared in writ- ing. Our statute embraces both descriptions. It had been settled by repeated decisions un- der the old statute, when this change was made, that an express trust was sufficiently declared if shown by any proper written evi- dence disclosing facts which created a fidu- ciai'y relation. Under this construction, the additional words of the old statute seemed immaterial, and are omitted. And we are of opinion that no change in the meaning or ef- fect of it was intended or made. Perry, Ti-usts, § 81, and cases cited. In view of the law thus stated, the fact that there was no delivery of the memoran- dum in this case is not of controlling im- portance. It is impossible to account for its existence and safe preservation, unless there was an intention that it should be used, if necessary, to prove a trust. The statement that it is made for the use of the executor or administrator of the trustee implies this. The cestui que trust was informed of its existence; and by its terms a perfect trust is declared. It is, indeed, declared that neither Isaac P., nor those claiming under him, have any legal or equitable claim against the maker or his estate. But this statement, if such was its intention, cannot control the efCect of the memorandum in establishing the trust. That results, as matter of law, from the proof. We are inclined to think that its intention was not to defeat an equitable claim to the proceeds of the estate conveyed, but only to protect the maker against personal responsi- bility beyond the actual receipts In admiii.s- tering the tnists. Decree for the plaintiff. 54 PEOPERTY IN EQUITY— TBUSTS. BATES et al. v. HURD. (65 Me. 180.) Supreme Judicial Court of Maine. Franklin. May 2, 1876. Bill In equity to declare a trust and for an account. P. H. Stubbs, for plaintiff. H. L. Whit- comb, for defendants. BARROWS, J. In 1847 one Kennedy gave to Nicholas Bates and bis brother Thomas, the plaintiff, a bond conditioned for the con- veyance of certain parcels of land (estimated at about tvi^o hundred and fifty acresj upon payment of the obligee's notes. In 1851, be- fore the maturity of all the notes, an adjust- ment was made, by which, in satisfaction of the bond, he made conveyances of the bonded land in two separate parcels, — one to Wm. W. Bates, a third brother, and the other to Nich- olas, who (with Wm. W. and the plaintiff) subscribed and delivered to Kennedy a re- ceipt indorsed upon the bond, setting forth that he had received the deed of his portion, "for himself and in trust for his brother Thomas Bates, according to what the said Thomas has or may pay towards the same real estate, which amounts at present to sev- enty-five dollars." The price of the parcel thus conveyed to Nicholas was $450, and Nicholas seems to have admitted a resulting trust in favor of the plaintiff to the amount of one-sixth of the purchase, which was bind- ing upon him and all claiming under him with notice. Indeed the writing subscribed by Nicholas Bates seems to be tantamount to a declara- tion of an express trust, so as to satisfy Rev. St. c. 73. § 11. The words "created and declared" in that statute seem to be construed by the courts to be synonymous with "manifested and proved" as they stood In the original sev- enth section of the statute of frauds,— 29 Car. II. c. 3. Forster v. Hale, 3 Ves. 707, 5 Ves. 308; Unitarian Society v. Woodbury, 14 Me. 281; Barrel! v. Joy, 16 Mass. 221; Pinnock V. Clough, 17 Vt 508. From the cases just cited and numerous others we see that a letter, memorandum, or recital subscribed by the trustee, whether ad- dressed to or deposited with the cestui que trust or not, or whether intended, when made, to be evidence of the trust or not, will be suf- ficient to establish the trust when the subject, object, and nature of the trust, and the par- ties and their relations to it and each other, appear with reasonable certainty. The existence of a trust in favor of the plaintiff, which he may enforce against Nich- olas Bates and his representatives, and all claiming under him with notice of the trust, may be regarded as established. Nicholas Bates mortgaged the property to Kennedy to secure a balance of the purchase money, and subsequently made two other mortgages thereon to Philip M. Stubbs, the scrivener who drew the conveyances from Kennedy and wrote the indorsement upon the bond containing the declaration of the trust. Both of these last-named mortgages were assigned to Prince Thompson, who had no knowledge of the trust, and has given notice of foreclosure, but has never been In posses- sion of the property. Nicholas Bates died in January, 1868, leav- ing a widow, Keziah M. Bates, now Keziah M. Hurd, who is one of the respondents, and who took out letters of administration on his estate, inventoried the land as subject to the mortgage to Prince Thompson, "and being also held as a trust estate for Thomas Bates to the amount of about $140." This sum is apparently the amount of the $75 originally paid in by the plaintifC towards the purchase money, with interest up to the time of the making of the inventory. The widow con- tinued in possession of the land, receiving the rents and profits until November, 1868, when she made sale thereof by license from the probate court, without making mention of the trust, to Daniel Day, who mortgaged It back to her for part of the purchase money, and took possession. The widow married George Hurd, the other respondent, and on September 9, 1870, took a quitclaim deed from Day, and since then the two defendants have occupied or had the exclusive use, in- come, and profit of the premises. The plaintifC does not claim any rights as against the mortgagees. The heirs of Nich- olas Bates are no longer interested, as the sale by the administratrix devested them of all right and title in the premises. The administratrix, in her inventory, ad- mitted the plaintiff's rights, and is fully chargeable with notice of them. The other respondent, her husband, seems to have oc- cupied only under her. But a joint reception by them of the rents and profits is admitted in the agreed statement. He is therefore re- sponsible to the plaintifC on this score with her. The testimony establishes the fact that the plaintifC made a claim upon the adminis- tratrix for his interest, and that there was more or less negotiation between them look- ing to an adjustment. It Is unfortunate for both that an equitable adjustment could not be reached without litigation. In the hands of these respondents it is ob- vious that the property is subject to the trust which the plaintiff seeks to enforce. They object that he might have had an ade- quate remedy at law by a suit for his share of the income. But cases of trust are, under our statute, specially made the subject of remedies In equity, and, moreover, it might be desirable for him to have the decree to which he Is entitled In equity as against them. In view of the possibility of a redemp- tion. Unless the parties can agree as to the PROPERTY IN EQUITY— TRUSTS. 55 proper sum to be allowed for the past rents and profits, a master must be appointed to as- certain them. Bill sustained. Estate declared subject, In the hands of these respondents, to the trust asserted. Costs for the complainant. Mas- ter to be appointed at nisi prius, if required. APPLBTON, O. J., and WALTON, DAN- FORTH, and PETERS, JJ., concurred. 56 PROPERTY IN EQUITY— TRUSTS. PATTON et al. v. CHAMBERLAIN et al. (5 N. W. 1037, 44 Mich. 5.) Supreme Court of Michigan. June 11, 1880. Appeal from Detroit. Joslyn & Freeman, for complainants. At- kinson & Atkinson, for defendants. COOLBY, J. We have not been brought by the evidence in this case to the conclusion reached by the judge of the superior court. We are convinced that the testimony of Fran- cis J. Chamberlain is truthful, and that it de- feats the complainants' case. From this evi- dence it appears that, some twelve years or more ago Chamberlain's first vi'ife caused to be. conveyed to him an 80-acre lot of land in St. Joseph county, which she had purchased with money received from her father, on a trust, declared orally, that he would hold the same for their infant daughtei, then six years of age or thereabouts. This the wife did in expectation of her speedy decease, and she ac- tually deceased six months thereafter. In Chamberlain's hands this lot was occupied and cultivated as part of a farm of 131 acres; the remaining 51 acres being owned by him- self. It was all mortgaged by him for gome $2,000. Becoming embarrassed in his circum- stances he made an arrangement with his brother, A. H. Chamberlain, whereby he ex- changed the farm for certain property in De- troit, and caused the Detroit property to be conveyed to the defendant Jane E. Chamber- lain, who is cousin to his daughter, on a verbal understanding that It should be held in trust for the daughter. It is this Detroit property which complain- ants, as judgment creditors of Francis J. Chamberlain, seek to reach. If the farm in St. Joseph county had been in equity the prop- erty of Francis J. Chamberlain, a trust In re- spect to the Detroit property would have aris- en in favor of his creditors when the ex- change was made. Maynard v. Hoskins, 9 Mich. 485. But he had encumbered the farm to an extent that exhausted his interest, and in equity the daughter was entitled to the avails of the encumbered place when it should be disposed of. So far as concerns the contro- versy with these complainants, it is immate- rial that the trust was a verbal one; it could not have been enforced against him, but it was nevertheless his duty to recognize and execute it; and when he did recognize it, in the exchange made for other property, his creditors could not complain. The claim of his daughter that he should perform the trust was quite as strong in equity as any claim of creditors can be. Jane E. Chamberlain defends this suit in the interest of the daughter, and avows the trust in her answer. That is a sufficient dec- laration of trust in writing to answer the re- quirements of the statute of frauds. McLau- rie v. Partlow, 53 111. 340; Whiting v. Gould, 2 Wis. 552; Woods v. Dille, 11 Ohio, 455; Co- zine v. Graham, 2 Paige, 177; Chitwood v. Britain, 2 N. J. Eq. 450; Wynn v. Albert, 2 Md. Ch. 169; Kingsbury v. Burnside, 58 111. 310. The decree must be reversed, and the bill dismissed, with the costs of both courts. The other justices concurred. PROPERTY lif EQUITY— TRUSTS. 57 CRISSJIAN V. CEISSMAN et al. (23 Mich. 217.) Supreme Court of Michigan. July Term, 1871. Appeal from circuit court, Macomb coun- ty; in cliancery. G-. Hubbard and Ashley Pond, for complain- ant. B. P. Mead and A. B. Maynard, for de- fendants. COOLEY, J. This is a bill to establish a trust in the favor of complainant, in certain personal property alleged to have been con- veyed by her father, Francis Smith, to the defendant, Frederick S. Crissman, vrho is her husband, for her use. The averments in the bill are that the said Francis Smith, becoming aged and feeble in health, was desirous of making a proper dis- position of his property, and his wife Dinah Smith, the mother of complainant, having be- come much weakened in mind and body, so as to be unfit to manage or control property for her own benefit or for the benefit of oth- ers, and being so deranged mentally, and childish, and nervous, that it had become im- possible to please or satisfy her, the said Francis Smith, without consulting with, and the knowledge of, his said wife as to the dis- position of his personal property, concluded to make the disposition of his whole estate as follows: His lands and tenements were in due form of law deeded to complainant (his sole child), by deed bearing date December 31, 1883 ; and his personal property was transferred to said Frederick S. Crissman, in trust, for complain- ant, to be by him kept at interest, used and preserved as such trustee, for the use and benefit of complainant, and in case any of such property, or the proceeds thereof, should remain after the death of complainant and not disposed of during her life, by her or for her benefit, then the remainder to go to her heirs; that such transfer of personal property was not mentioned or disclosed to said Dinah Smith, or to complainant, for the reason, as alleged by said Francis Smith, that it might •create a jealousy on the part of said Dinah towards complainant; she the said Dinah, being then in a feeble and childish state of mind, and then being unfit and incapable of managing property matters, the said Francis Smith then and there declaring and stating that the use and proceeds of said farm dur- ing the life of the said Dinah Smith (which was reserved for her), would be all she would need and require for her support and main- tenance, and it being his, the said Francis Smith's, desire that his estate should be se- cured to complainant, her heirs and assigns forever. This Is the whole statement of the trust, but the bill proceeds to aver that said Fran- cis Smith died intestate, May 31, 1866, and on August 11, 1866, said Frederick S. Criss- man was appointed by the probate court of Macomb county, administrator upon his es- tate, and took upon himself that trust; that complainant is informed and believes that said Frederick S. Crissman, soon after the transfer of said personal property to him, in trust, without authority of law, returned and delivered to said Francis Smith certain por- tions thereof, amounting in value to about five thousand dollars; that at or about the time of the death of said Francis Smith, said Frederick S. Crissman, without the consent or- knowledge of complainant, and without authority of law, delivered and entrusted to said Dinah Smith a portion of said personal property, for the sole gratification of the said Dinah Smith, under the expectation and be- lief on the part of said Frederick, that she would preserve and take care of the same during her life, and at her death the same would come to complainant and her heirs; that the said Frederick, further to gratify said Dinah, and without the knowledge or consent of complainant, agreed with said Dinah to employ no attorney and take no counsel in the settlement of said estate; and the said Frederick, being ignorant of h:s le- gal responsibility and duty as such trustee, and further expecting to please and gratify said Dinah, made an inventory of all the trust property and proceeds thereof, as the property and effects of the estate of said Francis Smith deceased. The bill fm'ther avers that one Elisha S. Day, a nephew of said Dinah (who is made a defendant), intermarried with a daughter of complainant and afterwards, by undue in- fluence, induced said Dinah Smith to make her will, by which, after certain other gifts, said Day and his wife were made residuary legatees of her property; that this will was dated May 4, 1867, and that after making it, said Dinah was and continued to be of weak and unsound mind and memory, and was controlled by said Day; that she had, at the time of her death, about fom* thousand dollars of said personal property in her hands, of which said Day took possession un- der the pretense that it had been given to him and his wife, or to one of them. The bill after other averments that need not be here repeated, prays that the transfer of such personal property so made by said Francis Smith to said Ifrederick S. Criss- man, may be declared to be a legal, equitable and bona fide conveyance to said Freaerick, in trust for complainant, withovit power or authority of revocation, and that a re-deliv- ery of said property, or the proceeds thereof, to the said Francis Smith, was without au- thority of law and conti-ary to equity, and that a transfer of any of the said trust prop- erty to said Dinah Smith and by her to said Day, or to the executors named in her will, was a violation of said trust; and that said Day and such executors may be en.ioined from transferring, expending or disposing of 58 PllOPERTY IN EQUITY— TKUSTS. any of the money, property or the proceeds thereof so received by them through, and by, said Dinah SmitJb.. ar since her death, except as they sMll return the same to Frederick S. Crissman, and that said Fredericlc may be enjoined from in any way, as such adminis- trator of the estate of said Francis Smith, representing, inventorying or accounting with the estate of said Francis for the said prop- erty so conveyed to him in trust, as belonging to the said estate, and that complainant may have other and further relief. For the purposes of a preliminary injunc- tion, this bill was verified by the oath of the defendant, Frederick S. Crissman, who, though one of the parties to be enjoined, ap- pears to have acted in the whole litigation, in concert with complainant, and to have been the witness upon whom she principally rehed to establish the trust The case was heard on pleadings and proofs in the court below and the bill dismissed. In reviewing the testimony as it appears in the record, we are strongly impressed that if the case were to stand upon the testimony introduced by complainant, it would not es- tablish such a trust as is alleged. So far from there being any reasonable pretense that the arrangement — whatever it was — was to be kept secret from Dinah Smith, on ac- count of her defective understanding, or for any other reason, the complainant herself ap- pears to have taken testimony to prove that Dinah Smith understood and was satisfied with the arrangement, and there is other very conclusive evidence to the same effect. Nor would complainant's testimony convince us that the trust, if any was created, was to be irrevocable; but, on the contrary, it is clear enough that Francis Smith believed he had a right to withdraw from the hands of Fred- erick S. Crissman any portion of the property transferred to him, at any time when he saw fit, and that when he did withdraw any, it was not in violation of any trust, but of right. And perhaps, on the ground that com- plainant's testimony tends to support a dif- ferent case from that made by the bill, we should be justified in affirming the decree of the court below without examining the rec- ord further. But we are not disposed to place our de- cision on any technical ground, inasmuch as we think there is no sufficient showing that any trust whatever was ever created. Where a party undertakes to establish a trust upon parol evidence, especially after a considerable lapse of time, the evidence ought to be very clear and satisfactoi-y, and it ought to find some support in the subsequent conduct of the parties and in the surrounding circum- stances. In the case before us, the parol evi- dence is not clear or satisfactory, and the conduct of the parties and the surrounding circumstances tend to overthrow rather than to support it. It appears that Crissman, be- fore this alleged transfer in trust, had been acting as the agent of Francis Smith in the management of his personal property and the collection of his dues, and there was nothing in the externals of the new arrangement which was inconsistent with a continuance of the same relation. It appears also that after the transfer was made to Crissman, he gave back a receipt in which he undertakes to account to said Francis Smith for the mortgages assigned, or to his administrator or assigns whenever called upon. Crissman testifies that this receipt was given in con- sequence of the importunities of Mrs. Smith, but this is not very material; the important fact is that it bears strongly against the complainant's case. The justice who drew the deed from Francis Smith to complainant, and also the papers on the transfer of the per- sonal property, was sworn for complainant, but could give but a very imperfect account of the transaction. He remembers Smith say- ing, "He was doing this for the benefit of Eliza;" and to the question, "Do you or do you not recollect the fact that there was something said by Smith in regard to his personal property being conveyed in trust?" he replies, "There was a little something said — a very little — but I cannot now remem- ber what it was." Now, Smith at this time was conveying the real property to Eliza, and it is not clear that what he said about "doing this for the benefit of Eliza," did not have exclusive reference to that conveyance; but, if not, the fact that he regarded the agency of Crissman in his affairs as bene- ficial to his own interests, might well have induced him to speak of the arrangement as for the benefit of his only child, to whom, as he was already an old man, he would expect his property or a portion of it to pass in a brief period. And the use of the word "trust" in reference to the personal property, was not at all unnatural or unlikely if he understood it to be held for his own use and subject to his orders. Crissman testifies more distinctly to a trust declared in favor of his wife. If he testifies truly, it seems to us matter of astonishment that he did not mention it to his wife for nearly three years; that he should procure himself to be appointed administrator on the estate of his father-in-law on the supposition that all this property belonged to that estate; and that he should inventory it all as pertain- ing to the estate. It is ina-edible that he could have understood in 1863 that the prop- erty was put into his hands to hold for his wife, and, without consulting with any one on the subject, could have supposed it his duty in 1866 to inventory it as the property of her father's estate. We look in vain for any satisfactory explanation of this circum- stance, though we think we are not without the means of some insight into the motives which have impelled Crissman and his wife to the course they have taken. "I had been told," Crissman testifies, "that the old lady could not, in any way, dispose of [the prop- erty], and I suppose it was the ease." It was PROPERTY IN EQUITY— TRUSTS. 59 only after it was ascertained that Francis Smith's widow was entitled of right to a por- tion of his property, and might dispose of it by will, that Orissman advanced to his wife and to the judge of probate this theory of a conveyance to him in trust; a theory whol- ly inconsistent with all his actions in re- spect to the property, both before and since tJie death of Francis Smith, and Inconsistent also with the only writing which evidenced any part of the transaction. This is a most unfortunate family contro- versy, and we regret the necessity of having to dispose of it; but we are of opinion that the circuit court made the only decree war- ranted by the law and the evidence, and it must be affirmed, with costs. The other justices concurred. 60 PROPERTY IN EQUITY— TRUSTS. STEERE et al. v. STEERE et al. (5 Johns. Ch. 1.) Court of Chancery of New York. Oct. 2, 1820. The original bill, filed February 21st, 1818, stated, among other things, that Stephen Steere, father of the plaintiffs, Timothy, Smith, and T. Steere, was seized in fee, prior to the 18th of October, 1802, of various par- cels of land in the county of Chenango, and which were particularly described, amounting in the whole to 739 acres, and all of which, except 47 acres, was situate in the town of Norwich. That on the 18th of October, 1802, S. Phet- tiplace obtained a judgment against Stephen Steere, for 1,258 dollars, on which a fi. fa. was issued in 1805, and all the lands of Stephen Steere, in the county of Chenango, advertised for sale. That Richard Steere and Mark Steere, defendants, sons of Stephen Steere, in August, 1806, bid off all the real estate of Stephen Steere, at the sheriff's sale, for 1,600 dollars, and paid 1,400 dollars, the amount of the judgment, interest, and costs, and took a deed from the sheriff for "the whole of the real estate of Stephen Steere, in the county of Chenango, and his right and title thereto:" and the levy and advertisement of the lands, by the sheriff, were in the same general terms of description. The bill alleged that the deed was taken in trust, pursuant to a previous agreement with Stephen Steere, to loan him the amount of the judgment, and to hold the land as security, to be reconveyed, on repay- ment of the loan, with interest and expenses, and of such other sums as might thereafter be loaned to Stephen Steere, by Richard and Mark Steere. That the Cole lot, containing 120 acres, belonging to Stephen Steere, was sold by the sheriff, under a judgment and exe- cution in favour of James Glover, in Decem- ber, 1799, to James Glover, for 140 dollars, being much less than its value; and that James Glover agreed to reconvey the land to Stephen Steere, on the payment of the 140 dollars, and interest. That in August, 1809, Mark Steere released to Richard Steere, all his interest in the lands under the sheriff's deed of August, 1805, and became insolvent. That on the 30th of April, 1808, James Glover conveyed to Asel Steere, defendant, another son of Stephen Steere, tie Cole and (Jlover farms. That Asel Steere conveyed the same farms to Richard and Mark Steere. Tliat the purchase was made pursuant to an agreement with Stephen Steere, and that Asel Steere acted merely as the agent of Richard and Mark Steere, and the land was to be held in trust fo-r Stephen Steere. That on the 14th of August, 1809, Asel Steere made a new con- veyance to Richard Steere, of the Cole and Glover farms. The bill then proceeded to state sales and conveyances of various par- cels of the lands by Richard Steere, to differ- ent persons, and of the sums of money re- ceived by him on such sales, and for rents; all of which sales and conveyances were al- leged to be made by Richard Steere, as trus- tee, &c. The bill alleged, that the deed of August, 1805, from the sheriff to Richard and Mark Steere, was void at law, as the description of the lands sold was too general and undefined. That in 1806, Stephen Steere requested Rich- ard and Mark Steere to reconvey to him all the property, except the Unadilla farm, being 325 acres, which he agreed that they might retain in satisfaction for their advances, &c.: and which far exceeded the value of all their advances, which they neglected to do. That Stephen Steere requested Richard and Mark Steere to account to him for all the moneys received by them, as trustees, from the sales, rents, and profits of the lands, after allowing the money advanced by them on the judg- ment of Phettiplace, and all their just expense and demands; but that Richard and Mark Steere presented unjust and false accounts of moneys, which they pretended to have ad- vanced, the items of which were particularly set forth; and insisted on holding the proper- ty to cover the same. That on the 25th of October, 1815, Stephen Steere made his will, reciting the lands of which he was seized in Norwich, and partic- ularly describing the same, and declaring, that "it was his intention to dispose of all his real and personal estate wheresoever, to his three sons, plaintiffs, viz: the one moiety thereof to Timothy, and the other moiety to Smith and Thomas. That he appointed James Birdsall his executor. That the testator died April 22d, 1816, without being in debt, and the plaintiffs were thus devisees and legatees of all his real and personal estate. That Rich- ard and Mark Steere refused to account and convey to them the property, so held in ti'ust; that the trusts had been acknowledged by Richard and Mark, in letters and accounts. That the plaintiffs were willing to confirm all the sales made by Richard and Mark, not con- firmed by Stephen Steere, in his life time, but that Richard and Mark ought to account for the moneys, and assign the securities received by them. That Richard Steere had brought a suit at law against the plaintiff Timothy Steere, on his bond for 540 dollars, given to Richard Steere, for a part of the trust prop- erty sold and conveyed by him to Timothy Steere, but that the plaintiff, Timothy, can- not plead at law, the various and complicated trusts above mentioned. The bill prayed that the defendants, Richard and Mark Steere, may be decreed to account to the plaintiffs for the rents and profits received by them on the lands so held in trust, and for the moneys and securities received on sales, &c., making to them all just allowances for loans, advan- ces, and expenses; and to pay over the bal- ance to the plaintiffs, and reconvey to them the lands so held in trust and undisposed of, and for general relief, and for an injunction against the suit at law. By an amendment to the original bill, the accounts and letters, said to contain an acknowledgment of the PKOPEKTY IN EQUITY— TRUSTS. 61 trust, were set forth at large and several spe- cial Interrogations added. The defendants, Richard and Mark Steere, in their answers, the whole of which it is un- necessary to state, denied the trusts alleged in the bill, or any agreement whatever, to ad- vance money, and to purchase and hold the property In trust, or any conversation, before or after the sale, with Stephen Steere, relative to a purchase In trust. Richard Steere admit- ted, that Asel Steere informed him of the ex- ecution, and that it was the wish of all the brothers that he and Marli Steere should at- tend the sale and buy in the property, so as to deprive S. Steere of all control over it, as he was then much embarrassed. They admit- ted that Stephen Steere acquiesced in the sale, under the idea that it would be better for the defendants, Richard and Mark Steere, to have the land than strangers; that it might have been the hope and expectation of Stephen Steere, and his children, that Richard and JIark Steere, would give a share of the prop- erty to them. That Richard and Mark Steere had often advanced large sums of money to Stephen Steere, to save his stock, &c., and permitted him to reside on part of the estate. That the defendant, Richard Steere, may have promised the plaintiffs to distribute part of the real estate among them, and may have said and written things for that purpose; and had made gifts of land and money with that view; but they denied that these acts of kind- ness amounted to a trust. That pursuant to an agreement between Richard and ilark Steere, Timothy and Stephen Steere, jun., of January, 1814, by which Richard Steere agreed to convey to Mark Steere, and Tim- othy Steere, each, land to the value of 1,000 doUars, he conveyed 43 acres to Stephen Steere, jun., 33 acres to Mark Steere, and 38 acres to Timothy Steere, and that he took the bond of Timothy Steere, for 540 dollars, being the excess in the value of the land conveyed to him, over and above the 1,000 dollars. That these deeds were gratuitous. That by that agreement he was to convey the residue of the land to Timothy Steere and Mark Steere, who were to sell the same, and pay the defendant his expenses and advances; but owing to the failure of Mark Steere, the agreement was only in part carried into ef- fect. But he denied that any of these gifts and conveyances were made with the under- standing or belief, that he was bound as trus- tee to Stephen Steere. The defendants, Rich- ard and Mark, admitted the account of the 28th of Januai-y, 1809, but denied that it was made up and presented by them as trustees; that the account of the estate was on loose papers, prior to 1809, and the account was made out from those papers, which are now mislaid, or in the possession of the plaintiffs. That the name of Stephen Steere was used in the account to distinguish the estate from the other estate of Richard and Mark, and that the name of Stephen Steere was used as a debtor, because the estate was looked upon as a family patrimony, in which, from the gra- tuities of Richard Steere, they expected to share. That Mark Steere, at that time, prci- posed to release his share, on being paid his advances, &c., and the account was made up to ascertain the consideration to be paid to Mark Steere, which was found to amount to 3,901 dollars and 80 cents, which Richard Steere paid to Mark Steere. That Richard Steere then made an estimate of what further advances he had made, and in the same form, using the name of Stephen Steere as a debtor, and Richard Steere as creditor, for the sake of convenience. That the account was made out for the satisfaction of the plaintiffs and the family, and to show that any further de- mands on him were unreasonable. That the account was retained by him as a jprivate memorandum, until February, 1814, and to as- sist in the gratuitous disposition of the prop- erty among the family. That in January, 1814, an agreement by parol was entered into between Richard Steere, Mark Steere, and the plaintiffs, of which a memorandum was reduced to writing by James Birdsall, and which was acceded to by Richard Steere, on the ground that it would be satisfactory; and to facilitate it, and not as trastee, he wrote the letter mentioned in the amended bill, to Mark Steere, dated February 12th, 1814, con- taining the account, &c., of January 28th, 1809, but he denied that the letter was writ- ten at the request of Stephen Steere, or as trustee. That in 1815 Stephen Steere was nearly eighty years old, and was induced by the plaintiffs, his younger children, to make his will in their favour, to the exclusion of his eight other children then living. One of the accounts of the 28th of January, 1809, referred to in the bill, made Stephen Steere debtor to Mark Steere, for his bond dated September 3d, 1803, and the interest thereon at 8 per cent, and for various sums advanced, and for expenses of two journeys to Chenango, the whole amounting to 3,901 dollars and 80 cents. The other account was against Stephen Steere, as debtor to Richard Steere, containing different charges for sums advanced, among which were the expenses of several journeys to Chenango, and at the foot were added various charges for advances, un- der subsequent dates, among which was one of 1,000 dollars, towards a mortgage to Glov- er, the whole amount being 3,016 dollars and 26 cents. In a letter from Richard to Mark Steere, dated Smithfleld, February 12th, 1814. the former writes, as follows: "I herewith present you with the amount of my account against the estate of Stephen Steere, as fol- lows: Richard and Mark Steere's account against Stephen Steere, as appears by the original account, and your casting up to 28th of May, 1810, amounts to 7,840 dollars and 4G cents, four years interest, 3,126 dollars 16 cents, the Glover debt when settled, in March, 1813, and costs, 2,600 dollars, and interest thereon, 286 dollars." Certain credits were also stated, among which was 500 dollars, on 62 PROPERTY IN EQUITY— TRUSTS. a sale of land to Gunn, and for the Unadilla farm, 6,000 dollars, leaving a balance of 6,085 dollars and 62 cents due Richard Steere. A note of the sums due for lands sold was sub- joined, amounting to 6,720 dollars. The let- ter continued as follows: "So that you will see by this statement, that you will pay me and retain 110 acres on the south side of the way, to pay you and Stephen, and the remain- der divide. I think you may do as well, or nearly as well, as above stated. I send the original account, for the satisfaction of Ste- phen and Timothy, together with a paper, on which you have heretofore cast it, both of which papers I wish you to keep, as they may hereafter be wanted. The old account had been agreed to by father." In a letter, dat- ed Smithfleld, October 19th, 1806, Richard Steere writes to Asel Steere, as follows: "I wish you to assist father in every possible way in acquiring a good title to his land from Glover, and likewise to get AVhite's lease on the Unadilla farm settled, as there is a pros- pect of selling that this fall." — "If in case we sell it, I don't know but it will be necessary for father to come down and take a quit claim from us, and give a warrantee deed, but if we trade, I will write you further on this sub- ject; at any rate, I wish to have it clear of White's lease, but, as it seems some fatality attends all father's business, I am not in much expectation of its being soon done." — "It is particularly necessary for father to attend to this business, as we are called upon for the money advanced, and shall be under the disagreeable necessity of selling other land, in order to reimburse ourselves, and which fa- ther and the family would choose to keep in preference to the Unadilla farm. I am partic- ularly unfortunate in all my dealings with fa- ther; for at the time we were up last year, a little before which I understood by him, that his object in redeeming his lana was on account of its going to the family, and not to strangers; I inferred from that, if in case it came into our hands, he would certainly have no objections to our deeding a part to his children ; under those circumstances, I as- sisted in raising the money, with a promise to many of the family, that it should not go out of my hands without their having a part, which I believe you will very well recollect. Now, it seems, I must either break my prom- ise with my brethren, or incur the heavy dis- pleasure of my father. I must confess that the situation of the Glover lot, lying so long, when the probability of its going to stran- gers was so great, with the averseness to deeding to his sons, does not, in my opinion, square with his conversation last year, above written."— "If there is any compromise that can take place between father and my broth- ers, whether in lands or any otherwise, so that I may escape the heavy sin of a breach of promise, I shall with all cheerfulness ac- quiesce in It; but, by the way, Jane would ex- pect to be included." In another letter, dated Smithfleld, 9th of July, 1807, Richard writes to his brother Asel, as follows: "Father wish- es very much for Mark and I to reconvey back all the land In your county, in our pur- chases, except the Unadilla farm, which we cannot at this time comply with. As there seems to be a willingness on Mark's part to reconvey, whenever he is paid, it makes it hard, on my part, to perform my engage- ments with my brethren, and give father sat- isfaction. He appears to be willing to give Stephen and Timothy a 1,000 dollars each, Jane 500 dollars, and defray Simon's expenses at Doctor Bellows. Timothy is willing to take his, and I wish you to use your influence with Stephen to consent to take his, or agree with father some other way, for really, I wish the matter settled." In a letter, dated Smithfleld, 8th of August, 1809, from Richard Steere, to Stephen, Asel, and Timothy Steere, after mentioning the loss of a vessel and cargo belonging to Mark, and that all his property was attached, and that he, Richard, was left bound with him for a large amount, without security, unless he could be secured in Chenango county, Richard adds: "I herewith send a deed from Mark to me, last winter, which I hope you will lose no time in having acknowledged and recorded. You will see the necessity of this; for other- wise, Mark holds more than treble the land which is justly due to him, which is whoUy lost to his family, if his creditors here should attach it, before my deed should be recorded. The deed or deeds made to Mark and I of the Cole and Glover lots from Asel, now In the hands of Stephen, must be given up or de- stroyed, and a deed or deeds made to me, at the same prices, which last must be recorded," — "I wish his creditors to have all his proper- ty, but to have the other property, which he holds to a large amount for security, torn from the family, would be distressing indeed." Several witnesses were examined on both sides, the material part of whose testimony is stated in the opinion of the court. Mr. Henry, for plaintiffs. Mr. Van Buren, contra. KENT, Oh. The bill charges that the pur- chase by the defendants, Richard and Mark Steere, at the sheriff's sale, on the 16th of August, 1805, was in trust for the plaintiffs' testator, and those defendants are called upon to account to the plaintiffs, as deVisees, for the rents and proflts, and for the proceeds of that part of the lands which have since been conveyed to others, and to reconvey to the plaintiffs that part of the lands which [they] still retain. It is intimated in the bill, and it was made a point at the hearing by the counsel for the plaintiffs, that the sheriff's sale was void, and that the deed in pursuance of it was Invalid, for want of designation and description of the lands sold. If this were so, then the plain- tiffs, as devisees of Stephen Steere, the orig- inal owner, in August, 1805, would have theii PBOPEETY IN EQUITY— TBUSTS. 63 fit and adequate remedy at law, for the lands now sought by the bill. In respect to any claim for the proceeds of the estate, I appre- hend the executor of Stephen Steere ought to have been a party to the bill; for these pro- ceeds in the hands of the defendants were personal property, and if they were be- queathed at all to the plaintiffs by the will, (which cannot very readily be admitted,) the executor is the proper person to call the de- fendants to account, and to distribute the per- sonal estate under the directions of the will. But I shall not dwell upon this difficulty in the case, but proceed at once to the examina- tion of the question on which the whole foun- dation of the bill rests, viz. is there a trust sufficiently manifested in writing, to be rec- ognized and enforced in this court? To take the case out of the statute of frauds, the trust must appear in writing, under the hand of the party to be charged, with abso- lute certainty as to its nature and terms, be- fore the court can undertake to execute it. The words of the statute of frauds are, "That all declarations or creations of trusts or con- fidences, of any lands, &c. shall be mani- fested and proved by some writing, signed by the party who is or shall be by law enabled to declare such trust, or by his last will in writing, or else they shall be utterly void, & of none effect." A trust need not be created by writing, but it must be manifested and proved by writing; and the doctrine in Fors- ter V. Hale, 3 Ves. 696, is that the nature of the trust, and the terms and conditions of it, must sufficiently appear, so that the court may not be called upon to execute the trust in a manner different from that intended. In this case, the testator, Stephen Steere, at the age of seventy, was much in debt and embarrassed; and among other debts there was a judgment against him, amounting with interest and costs, to 1,400 dollars. He was utterly unable to satisfy it, and his lands in the county of Chenango were advertised for sale on execution. He had eleven children, at the time, and the defendants, Richard and Mark Steere, (who were two of them,) at- tended the sale and purchased the property for 1,600 dollars, and advanced the money out of their own funds, and took the sheriff's deeds in their own names. This was in Aug- ust, 1805, and it appears to have been a fair purchase at public auction. The natural consequence, of such a transaction is, that these two sons would not be inclined to speculate upon their aged father's misfor- tunes, and make a profitable bargain to them- selves, to the injury of him and his other children. Considerations arising from the ties of blood and the dictates of family affection, would ordinarily lead such a purchaser to offer to restore the property, on being re- imbursed his, advances and indemnified for his trouble, or else to engage that all the prof- its of the purchase should be applied justly, and equitably, to the common benefit of the family. But intentions and intimations of that kind cannot well be considered as amount- ing to a clear and absolute trust, which a court of equity will recognize and enforce, unless the declaration of it be quite positive and free from all ambiguity. Parents will usually make declarations and express inten- tions of holding their property for their chil- dren, but a technical trust would not easily be deduced from them, unless they were con- tained in a last will and testament made on purpose to dispose of the estate. It would be injurious to that freedom of intercourse, and to the operation of those kind and gen- erous affections, which ought to be cherished in the circle of the domestic connexions, to make such deductions from loose and general expressions, in a confidential correspondence between one member of a family and an- other, and to give them the force and rigour of legal obligations. It ought also to be re- membered, in respect to the obligations re- sulting from family connexion, and the effect to be given to them in courts of justice, that the duty of benevolence, to borrow an ex- pression of Lord Karnes, is much more lim- ited than the virtue. "Sanguinis conjunctVo benevolentia devincit homines et caritate." The first item of testimony from whence the plaintiffs undertake to show the trust, is a letter from the defendant, Richard Steere, to Asel Steere, dated October 19th, 1806, up- wards of one year after the purchase under the sheriff's sale. This letter is not addressed to the testator, whom the bill alleges to have been the cestui que trust, and in that respect it differs essentially from the evidence from which a trust was deduced, in the cases of O'Hare v. O'Neil, 2 Brown, Pari. Cas. 39, and Forster v. Hale, 3 Ves. 696. It is ad- dressed to a stranger to the alleged trust, through a brother of the defendant, and it was evidently a letter on private and confiden- tial business. The letters in the other cases were addressed to the cestui, que trust, and there was then a reasonable ground of infer- ence, (which is wanted in this case,) that the writer of the letters [intended] to give a manifestation or evidence of the trust. This same Asel Steere declares, in his answer, that the understanding between him and the defendants, Richard and Mark Steere, was, that the land was not to be reconveyed to the testator after the repayment of the money advanced and their expenses and trouble, but that the surplus should be held for the testa- tor and his wife, and the seven children then residing In Chenango county. This letter corresponds with the general view of the case, as given by Asel Steere, in his answer, and shows evidently that Rich- ard Steere considered himself as holding the land in the first place, for his reimbursement, and then, under some general and vague promise, to distribute the surplus among his brethren of the family. He says, he infer- red that to be his father's wishes, even be- fore he purchased, and that the land should go "to the family, and not to strangers." He 64 PROPERTY m EQUITY— TRUSTS. says, therefore, he made "a promise to many of the family, that it (the land) should not go out of his hands without their having a part," and that he was not willing to "break his promise with his brethren." The next letter addressed to Asel Steere, is dated July 9th, 1807, in which he says, his father "wished him and his brother Mark to reconvey back all the land except the Uha- dilla purchase. This, he said, he could not then do, because he could not "perform his engagements with his brethren and give his father satisfaction." The third letter of this defendant is dated August 8th, 1809, and is addressed to three of his brothers, of whom the plaintiff! Timothy is one, and is material only for the idea which prevails through all the letters, that he and his brother Mark held the property for their security and for "the family." There is not, therefore, in either of these three letters, any sufficient manifestation and evidence of the specific trust charged in the bill. The trust charged is in favour of Ste- phen Steere, the testator, but the trust vague- ly intimated in these letters is one in favour of the family at large of Stephen Steere; and admitting a trust to have been duly man- ifested in favour of the children of Stephen Steere, (and this is an admission which the evidence does not demand, for the sugges- tions and intimations in the letters are too indefinite and loose to be the foundation of a bill for specific execution,) yet the bill calls upon the court to support the will of the testator, and to "execute the trust in a man- ner very different from that intended." This, Lord Alvanley admits, cannot be done. The strongest evidence in favour of the trust charged, is contained in the letter from the defendant, Richard Steere, to his brother, the defendant, Mark Steere, dated February 12th, 1814, inclosing the account of these two de- fendants against Stephen Steere, of the date of January 28th, 1809. In that account, Stephen Steere is charged as a debtor, with payments by R. and M. to the sheriff, at the time of the purchase by them in August, 1805, and with some ex- penses in relation to that business, and he is likewise credited with the Sale part of the lands held under the sheriff's deed. He says in the letter that the original account was sent "for the satisfaction of Stephen and Timothy Steere," and that "the old account had been agreed to by father." The defendants, in their answer, admit, that the account of 1809 was once, and only once, shown to Stephen Steere, and then cas- ually, and that It was made up with the intent to show how expensive the estate had been to them, and what advances had been made, and that it was made up from loose papers now mislaid, or in possession of the plaintiffs, and that the name of Stephen Steere was used as a debtor for convenience, and to distinguish the real estate derived from the sheriff's deed from the other estate of the defendants, and because the estate was looked upon as a family patrimony, in which the family expected to share. They aver in their answer, that the account was made out for the satisfaction of the , plaintiffs and the family, and to show that further demands were unreasonable, and that the account of 1809 was retained by them, as a private memorandum, until February, 1814, and that additions were made to it from time to time, to assist in the gratuitous dispositions of the property among the family. These explanations were given in answer to interrogatories specially pointed to those accounts, and by which they were required to answer, "whether the said accounts were not made out in the usual form of accounts." It appears to me that the explanation is consistent with the proof applicable to those accounts, and with the general complexion of the entire transactions of the estate. James Birdsall, a witness, states that in January, 1814, the defendants, Richard Steere and Mark Steere, entered into a parol agree- ment in relation to the lands so purchased at the sheriff's sale, with their brothers, Ste- phen Steere, jun., and the plaintiff, Timothy Steere. The substance of the agreement was reduced to writing, at the time, by the wit- ness, at the request of the parties to it, and was approved of by them. That agreement was considered as a final settlement of all questions and claims in respect to that prop- erty, and it provided for a distribution of what remained of the estate, among certain of the children. The memorandum begins with these words: "Richard Steere will state his account to Mark, Stephen, and Timothy Steere:" and here we have the origin of the publication of the account produced by the plaintiffs as ev'dence of the trust. The ac- count was sent to Mark Steere, in the letter of Richard Steere, of the 12th of February,. 1814, and now we can understand the mean- ing of that paragraph in the letter, in which he says, "I send the original account for the satisfaction of Stephen and Timothy;" and also the force of another paragraph in which it is said: "So you will see by my statement that you will pay me and retain 110 acres on the south side of the way, to pay you and Stephen, and the remainder to divide." This account and letter could not have been intended as a manifestation or declaration of a trust in favour of the testator.' The man- ner in which it arose, and was transmitted, and the contents of the letter, are pretty sat- isfactory proof, that the explanation given of the account in the answer is the just and true explanation, and the only one of which the whole transaction is susceptible. The way in which these accounts came to the knowledge and possession of the plaintiffs, was by taking copies of the originals while in the bauds ot the defendant Mark Steere, and there was never any free and voluntary delivery for the pm'pose to which they have been applied. Tho only part of the letter PROPERTY IN EQUITY— TRUSTS. 65 which shows that the defendants considered themselves as acting in the purchase and management of the estate, as trustees for their father, the testator, is the expression that "the old account had been agreed to by fa- ther." This probably referred to the account of 1S09; and though a loose paragraph, it would be difficult to understand it in any other sense than as an admission of the trust sought after, if it was not accompanied with other paragraphs In the same letter absolutely inconsistent with that fact. The account was sent only for the satisfaction of the two sons, (of whom the plaintiff Timothy was one,) and in pursuance of an agreement to dis- tribute the surplus property among the chil- dren. The letter says, that after Mark's and Stephen's debts wore satisfied, the remainder was to be divided. The whole letter must be taken together, and one expression checked and balanced by another. And when we take into consideration the manner in which that real estate had been dealt with by these two defendants, for ten years together, under the eye, and with the approbation of their father, the notion of any other trust than that found- ed upon brotherly good will, spontaneous promises, and gratuitous acts of benevolence to the family at large, including their father and all his other children, is utterly inadmis- sible. We have conveyances from the defend- ants of parts of the estate between 1809 and 1815, to strangers, for a valuable considera- tion, and to several of the children, as gifts, and all these acts confirmed by the testator. The agreement of 1814 was partly executed by the defendants, and the several voluntary transfers to the childien, to the amount of 5,000 dollars in value, are decisive proofs, that the defendants have acted according to their original suggestions and intentions of applying the surplus property, after their in- demnity, to tne benefit of the family. The idea of a technical trust binding in equity in favour of the father, was never heard of in the family, or put forward by any branch of it, until after the two plaintiffs, Thomas and Timothy Steere, had obtained from Mark Steere copies of the accounts above referred to. I cannot easily reconcile this claim with good faith, after the agreement of 1814, and the extent to which it had been carried into execution by the defendants Richard and Mark. It also strikes me, considering the manner in which the purchase had been re- ceived and treated by the family of the tes- tator, from the time it was made, down to the testator's death, and the many gifts and conveyances which the family have been con- tent to receive at the hands of the defendants, that to enforce a strict trust with all the legal responsibilities attached to it, accord- ing to the bill, would be extremely unjust and oppressive. A question has been raised, whether the parol evidence given in the case be admissi- ble, to contradict the inference drawn by the plaintiffs from the accounts and the letters. HUTCH. EQ. JUR. — 5 If the written proof was clear and positive, it could not be rebutted by parol proof; but considering the loose and ambiguous nature of it, I am inclined to think the parol evi- dence is competent in support of the sheriffs deed, and to explain the obscurity of the- case, by showing what was the understanding of all the parties concerned. In Forster v. Hale, parol proof was received, and taken into consideration by the master of the rolls, in forming his opinion; and in Redington v. Redington, 3 Ridg. App. 182, parol evidence was held, by Lord Clare, to be admissible to support a deed in the name of the son, but Inadmissible to create a trust against it. The- cases of Lamplugh v. Lamplugh, 1 P. "Wms. Ill, and of Taylor v. Taylor, 1 Atk. 386, were referred to by the lord chancellor of Ireland, in confirmation of this principle. The parol proof in this case puts an end to all pretension of a trust in favour of the testator, and shows that by the acknowledgment of the testator and of all the family, the pur- chase at the sheriff's sale was absolute, with- out any trust or qualification whatsoever, and that none was ever heard of, or suggested in the family, until about the time that the- testator made the will, giving all the undis- posed part of the estate to the plaintiffs. It was the uniform and universal understand- ing in the family, for ten years, that the property was not to be reconveyed to the father, but was to be held, in the first place, for the indemnity of the two purchasers, and then, it was submitted to their discretion and justice, in what manner and mode, and to what extent, the surplus should be appro- priated to the wishes and wants of the fam- ily. I am aware, however, of the dangerous- nature of such proof, and should not will- ingly rest upon it, if it did not appear to- corroborate the reasonable inferences to be drawn from the written testimony in the case. I do not perceive any ground for a distinct tion between the case of the estate generally,, and the Cole and Glover lots. If any trust exists as to them, distinct from what is at- tempted to be established as to the rest of the estate, it is a trust by implication or oper- ation of law, and guch a trust cannot be made out but by showing the actual payment of the money by the cestui que trust, or an actual loan by him for that purpose; and in this case no such payment or loan is pretended. The mere charge of the payment to the third person who sets up the trust will not be sufficient; and actual payment, or an actual loan of the money at the time, and not sub- sequent to the purchase, is indispensable. Botsford V. Burr, 2 Johns. Ch. 409. "If you merely employ a man by parol," says Mr. Sugden, "to buy an estate for you, although he buy it accordingly, yet if he hold himself out as the real puichaser, and no part of the purchase money was paid by you, you can- not compel him to convey the estate to you, because that would be directly in the teetb of the statute of frauds." And If the entry 66 PROPERTY IN EQUITY— TRUSTS. in the account communicated to Mark Steere, in 1814, Is assented to as evidence in writing of a trust, it is no longer the case of a result- ing trust, but rests precisely upon the same ground with the general trust set up by the bill, and must partake of the same fate. I am, accordingly, of opinion, that the bill cannot be sustained, because, 1. The plaintiffs, upon their own showing, have a remedy at law for the land possessed by the defendant Richard Steere, inasmuch as neither the sale nor the sheriff's deed con- tained any description or location of the land sold. If, however, the plaintiffs, or the testator under whom they hold, may be considered (and I think he may justly) as having waived that objection, and as having affirmed the sale, by repeated acts, then, 2. The plaintiffs have not made out a trust sufficiently clear and certain, to enable this court to act upon it, and to take the case out of the statute of frauds. Bill dismissed, without costs. PEOPEETT IN EQUITY— TEUSTS. TOBIAS V. KETCHUM. (32 N. Y. 319.) Court of Appeals of New York. March, 1865. Action to recover dower and mesne prof- its. Defendant pleaded a provision by will in lieu of dower, and failure of tlie widow to elect. Tliere was a judgment for plain- tiff, from which defendant appealed. T. W. Dwight, for appellant. Charles Tracy, for respondent. DAVIS, J. The testator not having de- clared in express terms that the provisions made by his will for his widow are given in lieu of dower, she is not put to her election unless the devises of the will "be so repug- nant to the claim of dower, that they cannot stand together." Lewis v. Smith, 9 N. Y. ,502; Church v. Bull, 2 Denio, 430; Jackson v. Churchill, T Cow. 287; Savage v. Burn- ham, 17 N. Y. 562. This rule is a familiar one, and needs no further citation of author- ity. In this case the provisions made by the will and codicil for the widow are as fol- lows: 1. The will gives her all the house- liold furniture and jewelry of every kind in use by her and the testator, or either of them. 2. One-third of the net income of all the real estate belonging to the testator, after payment of all taxes, assessments and interest due thereon, to commence to be paid to her six months after the testator's de- cease, and to be paid to her every six months thereafter, during her life. The codicil adds, ■"a suitable provision in money," "to be paid to her during the first six months, till the payment of her provisions under the will shall commence," and the use during her natural life of the apartments in the house No. 615 Fourth street. New York, as occu- pied by her and her husband, as a residence at the date of the codicil, with the election to have such other suitable residence in any other house belonging to him at the time of his decease that she might prefer. After making these provisions the will dis- poses of all the "rest, residue and remainder of the estate," by directing in substance that it be divided equally among his surviving children and the children of his deceased children, if any there should be, six months after the death of his widow. The will then nominates executors, and clothes them "with full power and authority to carry out all the provisions of the will," and if they deem it necessary or proper to a fair division of the property among the par- ties entitled thereto, to sell either at public or private sale the personal and real estate, or any portion thereof, and execute deeds thereof, and to divide the proceeds as there- inbefore directed; but no sale to be made till six months subsequent to the death of the testator and his wife. It also clothes the executors, "the survivor or survivors of them, with full power and authority to rent, lease, repair and insure any portion of the estate during any period of time the same may remain unsold or undivided." In Savage v. Burnham, 17 N. Y. 561, the testator devised and bequeathed all of his estate, real and personal, to trustees; the real estate upon trust to sell after the death of his wife. The will provided that during her life, the widow should "receive and take to her own use one-third part of the clear yearly rents and profits of the real estate, and that the residue of the clear yearly rents and profits should be deemed a part of the personal estate, and subject to the disposi- tions of the will concerning the personal es- tate." The entire estate, with all its income, ex- cept the one-third of the rents and profits of the land, was given (through the trusts) to the testator's children and the children of his daughters. It was held that a claim of dower could not stand consistently with these provisions, and that the widow was put to her election. Upon the authority of that case, if the will in question creates a trust and vests the entire legal estate in the trustees, the pro- vision made for the widow is inconsistent with the right of dower, and she was bound to elect. In that case her claim of dower, if allowed, would inevitably defeat the scheme of the will, for it would prevent the trustees from holding the legal title of the whole estate, and receiving the entire rents and profits for the purpose of paying taxes, assessments, interest, repairs and insurance, and ascertaining the net income, of which one-third is to be paid to the widow, and the residue ultimately to the other beneficiaries. The first question then is, are the execu- tors, under this will, made trustees of an ex- press trust? The word "trust" or "trustee" is not used in the will, but that is only a circumstance to be noted in considering the question. "It is by no means necessary that the donee should be expressly directed to hold the property to certain uses or in trust, or as a trustee. ■* * * It is one of the fix- ed rules of equitable construction, that there is no magic in particular words; and any ex- pressions that show imequivocally the inten- tion of the parties to create a trust will have that effect. It was said by Lord Eldon, that the word 'trusf not being made use of, is a circumstance to be alluded to, but nothing more; and if the whole frame of the will creates a trust, the law is the same though the word 'trust' is not used." Hill, Trustees (3d Am. Ed.) 99; (Orig. Ed. 65) and cases there cited. We are in this ease to determine the ques- tion by the authority confeiTed and the du- ties imposed. The executors are clothed "with full power and authority to rent, lease, repair and insure" the estate "during any period of the time it shall remain unsold and undivided." That period is, at all 158 PKOPEKTY JX EQUITY— TliUSTS. events, to last until six months after the decease of the widow. They are also in general language clothed "with full power and authority to carry out all the provisions of this wiU." It is apparent that the "net income of all the real estate" is to be ascer- tained by some person or persons once in six months dui'ing the life of the widow, "after all taxes, assessments and interest due there- on are paid." One-third of this net income is to be paid to the widow. By whom is this duty to be performed? It is clearly im- practicable for the various tenants of the estate to perform it; neither collectively nor individually have they the means of deter- mining the facts upon which the net income is ascertained, and it would be extremely embarrassing so to frame leases that each tenant should be subject to pay to the widow an amount of his rent that should discharge the proportion his rent bore to the net in- come of the whole estate, after payment of all taxes, assessments and interest due on the whole. Collating the power to rent, lease, repair, and insure, with the duty that rests somewhere to pay all taxes, assessments and interest, and then to pay to the widow one- third of the net income after such payment, there seems to be no embarrassment in de- termining where the duty rests. To my mind it is apparent that the scheme of this will requires that the whole income, rents and profits of the real estate shall be re- ceived by the executors until the sale and division provided for; and that they are the persons on whom the duty to pay one-third of the net income to the widow is imposed. They are to make the ultimate division, and consequently to retain for that pm-pose the income not paid semi-annually to the widow. The rents and profits of all the real estate are given to them for several purposes: 1. To keep down taxes, assessments and inter- est by paying them; 2. To ascertain the "net income" by deducting from the gross re- ceipts the amount paid for those purposes; 3. To pay one-third of the net income thus ascertained to the widow every six months; 4. To repair and insm-e the premises out of the residue; and 5. To retain the balance for division, and finally divide It among the daughters or their children after the decease of the widow. The imposition of these vari- ous duties by the will make the acting ex- ecutors trustees for their performance to the same extent as though declared to be so by the most explicit language. The authority to sell the real estate and execute deads thereof, as given by the will, standing by itself, would confer nothing but a power; but coupled as it is with the various pro- visions for leasing, repairing and insuring, with the obligation to give to the widow a residence as she may elect in any of the houses of the testator, it goes far to show that it was the testator's intention to vest the fee of the estate In the trustees. But however that may be, it is well settled that trustees take the legal estate whenever they are clothed with the authority which, the foregoing .construction of the will gives to the executors in this case. "If land be devised to three persons and their heirs in trust to permit A. to receive the net profits for her life for her own use, and after her death to permit B. to receive the net profits for her life, etc., it has been held that the legal estate is in the trustees, for that , they are to receive the rents and thereout pay the land tax and other charges on the estate, and hand over the net rents only to the tenant for life." Lewin, Trusts, 248; Baker v. Greenwood, 4 Mees. & W. 421; White V. Parker, 1 Bing. N. C. 573. In White v. Parker, the trustees were to permit the testator's wife and daughters to receive the clear rents of three parts and his son the clear rent of one part— the trustees to pay all outgoings, to repair and let the premises. It was held that the legal estate vested in the trustees. In the note to 2 Wms. Saund. 11, the rule is thus laid down: "Where something is to be done by the trus- tees which makes it necessary for them to have the legal estate, such as payment of the rents and profits to another's separate use, or of the debts of the testator, or to pay rates and taxes, and keep the premises in repair, the legal estate is vested in them, and the grantee has only a trust estate." In Birmingham v. Kerivan, 2 Schoales & L. 444, Lord Redesdale said that a direction to keep a house in repair applied to the whole house, and could not be considered an obligation on a person claiming dower. When therefore the testator authorized his executors to repair, he did not expect that they would control two-thirds of the estate and the widow one-third, but that they would, manage the entire property. The authority to rent and lease, to repair and to insure, by necessary implication vests. the trustees with the legal title. They must not only execute leases, but enforce them, put in tenants and dispossess them, the prop- er performance of which requires the title of the estate. So to repair there must be such a right of entry and control in the trus- tees as gives them complete dominion; and to insure involves the necessity of ownership^ for the policy must be taken in the name of the trustees. But to repair and to insure necessarily involve expenses chargeable up- on the rents and profits; and an executor who is authorized to lease, repair and insure by necessary implication may so lease that rents will come to his hands out of which to pay repairs and insm-ance, and if a net income is to be paid out of such rents, the executor becomes the party whose duty it is to ascertain and pay it. In Leggett v. Perkins, 2 N. Y. 297, the testator constituted his ex- ecutors ti'ustees of the estate devised to his daughters for life, and authorized them to talce charge of, manage and improve the same, and pay over to them from time to PEOPEBTY IN EQUITY— TRUSTS. 69 time the rents, interest and income tliereof. It was held to be "very obvious that the le- gal estate in the premises was necessary to enable the trustees to discharge their du- ties," and that the trust was a valid one under the third subdivision of section 55 of the statutes of uses and trusts (1 Rev. St. 729), and that by section 60 of the same stat- ute, the whole estate in law and equity vest- ed in the trustees. In Brewster v. Striker, 2 N. Y. 19, the tes- tator devised his real estate to his grand- children, and then provided that the lands should not be sold or alienated, but that his executors should lease or rent the same and pay the rents, issues and profits to his said grandchildren, etc.; it was held that the executors were trustees for the purposes of the will, and took, by implication, the legal estate dm-ing the lives of the grandchildren. These authorities are conceived to be abundant to establish the proposition that the authority to lease, rent, repair, insure, pay taxes, assessments and interest, and pay net income to devisees, carried the legal title to the executors in this case, and created a trust in them valid under the statute. It follows therefore from the decision of this court in Savage v. Burnham, that a claim of dower is totally inconsistent with the provisions of the will, and the plaintiff was not at liberty to take both the provi- sions of the will and dower. In the language of Comstock, J., in the case cited: "During her life she was to have one-third of the clear rent and profits, and the other two-thirds were to go into a general fund for distribution. The entire es- tate, with all its income, except the one-third, is given in the clearest possible terms, to the testator's children and the children of his daughters. It is therefore impossible for her to receive any part of it, except what is ex- pressly given to her, without subverting the will to that extent." The circuit judge erred In directing a ver- dict for plaintiff. I have considered the question as to the effect of the alleged release of dower. In my opinion, the instrument was not designed for any such purpose as a release of dower, and ought not to be so construed. Its ob- jects are apparent on its face; to-wit, to dis- iwse of the vexed question as to her rights under the provision of the will directing moneys to be paid to her for her suitable support the first six months, and protecting the executors on paying her a sum which might prove larger than was designed by the surrogate's decree, and the instrument ought to be construed accordingly. I am not embarrassed by the question of parties, nor the form of the judgment. The Code authorizes all persons having conflict- ing claims to be made pai-ties. Code, § 118. The defendants who appeared and answered, admitted the receipt of the rents and profits as alleged in the complaint, putting nothing but the amount in issue. They are the heirs at law, and the statute authorizes the ver- dict for rents and profits against them. The judgment below should be reversed, and new trial ordered, costs to abide event. All the judges concurring, the judgment was reversed and a new trial ordered. Judgment reversed. 70 PKOPEETY IN EQUITY— TEUSTS. YOUNG V. YOUNG. (80 N. Y. 422.) Court of Appeals of New York. 1880. Appeal from judgment of the general term of the supreme court, in the Third judicial department, reversing a decree of the surro- gate of the county of Sullivan upon the ac- counting of plaintiff, as administrator of the estate of Joseph Young, deceased. Upon such accounting the administrator claimed that certain United States and town coupon bonds belonged to himself and to his brother, John N. Young. The surrogate dis- allowed the claim, and charged him with said bonds. These bonds, upon the death of the intes- tate, were found in two packages inclosed in envelopes, upon which were indorsed memo- randa signed by him, one dated March 14, the other March 14, 1874, each of which de- scribed the bonds inclosed by numbers, and stated that certain of them belonged to Wil- liam H. Young, that the others belonged to John N. Young. Then followed a statement of the indorsements, of which the following is a copy: "But the inst. to become due thereon is owned and reserved by me for so long as I shall live; at my death they be- long absolutely and entirely to them and their heirs." The other was similar. The circumstances under which the memo- randa were made, and the further material facts, are set forth in the opinion. Hezekiah Watson, for appellant. Homer A. Nelson, for respondent. RAPALLO, J. The intention of Joseph Young, deceased, to give the bonds In con- troversy on this appeal to his son, William H. Young, reserving to himself only the in- terest during his life-time, was so clearly manifested, that we have examined the case with a strong disposition to effectuate that intention and sustain the gift, if possible. The transaction is sought to be sustained in two aspects: First, as an actual executed gift, and secondly, as a declaration of trust. These positions are antagonistic to each oth- er, for it a trust was created, the posses- sion of the bonds, and the legal title thereto, remained in the trustee. In that case there was no delivery to the donee, and conse- quently no valid executed gift; while if there was a valid gift, the possession and le- gal title must have been transferred to the donee, and no trust was created. As each of these theories thus necessarily excludes the other, , they must be separately consid- ered. To establish a valid gift, a delivery of the subject of the gift to the donee or to some person for him, so as to divest the posses- sion and title of the donor, must be shown, and the first question which arises under the peculiar circumstances of this case is, whether it is practicable to make a valid gift in prsesenti of an instrument securing the payment of money, reserving to the donor the accruing interest, and if so, by what means this can be done. The puvi^ose of such a gift may undoubtedly be accom- plished by a proper transfer to a trustee and perhaps by a written transfer delivered to the donee, but the question now is, can it be done in the fonn of a gift, without any written transfer delivered to the donee, and without creating any trust? I can conceive of but one way in which this is possible, and that IS by an absolute delivery of tlie secu- rity which is the subject of the gift, to the donee, vesting the entire legal title and pos- session in him, on his undertaking to account to the donor for the Interest which he may collect thereon. But if the donor retains the instniment under his own control, though he do so merely for the purpose of collect- ing the interest, there is an absence of the complete delivery which is absolutely essen- • tial to the validity of a gift. A gift cannot be made by creating a joint possession of donor and donee, even though the intention be that each shall have an interest in the chattel, especially where, as in this case, the line of division between these interests is not ascertainable. The reservation of the interest on the bonds to the donor was for an uncertain period; that is, during his life- time, and until his death it was impossible to determine the precise proportion of the money secured by the bonds, to which the donee was entitled. If therefore the donor retained the cus- tody of the bonds for the purpose of collect- ing the accruing interest, or even if they were placed in the joint custody or posses- sion of himself and the^donee, there was no sufficient delivery to constitute a gift. Bui if an absolute deliver;/ of the bonds to the donee, with intent to pass the title, was made out, the donor resei^ving only the right to look to the donee for the interest, the traasaction may be sustained as an executed gift. Doty V. Willson, 47 N. Y. 580. This brings us to an examination of the evidence. The written memoranda attached by the donor to the envelopes containing the bonds, evinced his intention to make a pres- ent gift to the respondent of an interest in the bonds, and shows that the disposition was not intended to be of a testamentary character. He declares that the bonds are owned by William H. Young, but the inter- est to become due on the same is owned and reserved by the donor for so long as he shall live, and that at his death the bonds are owned by the donee ''absolutely and entire- ly" in one case, and ''wholly and entire- ly" in the other. There are some verbal dif- ferences in the two meriioranda, but the pur- port of both is the same. They both ex- press in the same words that the interest to become due on the bonds is "owned and reserved" by the donor for so long as he shall live, and that the bonds are not to be- PROPERTY IN EQUITY— TRUSTS. 71 long "wholly" or "absolutely" to the donees till after his death. The exhibition of these memoranda to the wife of the donee, and the declarations of the donor, show that what he had thus done was iQ pursuance of a settled purpose, and that he believed that he had made a valid disposition of the bonds according to the memoranda, but they do not satisfy the re- quirement of an actual delivery. The evidence touching the point of deliv- ery is that the deceased for several years before his death resided at the house of his son, William H. Young, where there was a safe which had formerly belonged to the de- ceased, but which he is said to have present- ed to his grandson, James C. Young, a son of William H., reserving to himself the right to use the safe, and in fact using it as a place of deposit for his valuable papers. That William H. Young also kept papers in the same safe, but rarely went to It himself, the deceased being in the habit of depositing therein for him such things as he desired, and removing them for him at his request. The upper part of this safe was divided into pigeon-holes, where the deceased usu- ally kept his papers and was in the habit, up to the time of the transaction now in ques- tion, of keeping the bonds in controversy. The lower part of the safe was divided into larger open compartments, one of which had been appropriated as the receptacle of the papers of William H. Young. After afflxing to the two envelopes in which the bonds were contained, the memo- randa showing the dispositions in favor of his sons William H. Young and John N. Young, and after exhibiting these memo- randa to the respective wives of the donees, the deceased replaced the two packages of bonds in this safe, and after his death they were found, not in the pigeon-hole where they had formerly been kept, but in the compartment where William H. Young's pa- pers were kept. After the memoranda had been made, the bonds were generally kept in that compartment, but the deceased had been seen by William H. to put them in the pigeon-holes and take them out with the In- dorsements on. On the occasion of exhibiting the packages of bonds and the indorsements to Mrs. Wil- liam H. Young, the deceased asked her to take them in her hands and see what he had written on them. But this was not in- tended as a delivery to her, for she asked him whether he wanted her to take them and put them up, and he said, "No." After having thus exhibited them he took them back and placed them in the safe. The mem- oranda w?re made on the 14th JIarch, 1874.' The testator died November 12, 1875. In the meantime installments of interest on the bonds became due. The deceased cut off the coupons, and on some occasions William H. Young assisted him in so doing, but Wil- liam H. testified tlnat he never asserted any ownership over the bonds as against his father. And the testimony shows that they were at all times under the control of the deceased, although William H. Young and his son, James 0. Young, also had access to the safe. Those three however were the only persons having access to the safe, and it does not appear that John N. Young, the other donee named in the memoranda, ever had any control over the bonds or access thereto. It was also shown that after the alleged gift, when solicited for a loan, the deceased said that he supposed he might with the boys' consent take some of their bonds. Also that he called the attention of his grandson, James C. Young, to the niemo- randa and said, "you see what I have done with them." That he declared to a witness, Benjamin Grant, that what he had left he had given to William and Newton. That in September, 1875, he took from one of the envelopes a bond of $1,000, being one of those stated in the memorandum indorsed to belong to John N. Young, and gave it to a third party, but it also appeared that he had, before making the memorandum, presented John N. Young with $1,000. This is the substance of aU the testimony by which a delivery to the donee is sought to be established. It shows that the de- ceased at no time parted with the posses- sion or control of the bonds, but merely confirms the intention expressed in the mem- oranda. The change of the position of the bonds in the safe where they were kept, from the pigeon-hole to the compartment, might have been significant had William H. been the only donee, and had the intended gift been unaccompanied by any reserva- tion. But under the existing circumstances it cannot be construed into a delivery of the bonds. In the first place, part of the bonds were stated in the memoranda to be given to William H., and part to John N. Young. The intention of the donor toward each of his sons was the same. Yet no attempt ap- pears to have been made to effect any sort of delivery to John N. Moreover, the form of the intended gift shows that no immedi- ate delivery could have been contemplated by the deceased. The memorandum on each envelope says that the interest to become due on the bonds is "owned and reserved" by the donor. This interest, up to the dates of the maturity of the bonds respectively, was represented by coupons attached to the bonds. It clearly could not have been in- tended to deliver them, for so many of them as might become due during the life of the donor were reserved from the gift, as the interest was expressly declared to be "owned" by the donor, and not parted with. The possession of these coupons was neces- sary to enable him to collect the interest, and he availed himself of it for that pur- pose from time to time. No intention was manifested to deliver up these vouchers and look to the donees for the interest No divi- 72 PKOPEllTY I2Sr EQUITY— TRUSTS. sion of the coupons could be made, for the period of the donor's life was uncertain; and further, if all the coupons were retained by the donor, they might not represent the entire interest reserved by him. The bonds matured in 1887 and 1888, and some were redeemable earlier; and if he had lived un- til the maturity of the bonds, or until the United States bonds were called in by the government, as they were liable to be, the donees would not then have been entitled to the possession of the bonds or their pro- ceeds. The reservation accompanying the gift would entitle the donor to possession of the fund. The intention of the donor, as deducible from the memoranda and the evi- dence, was, not to part with his title to the accruing interest, but to lieep the bonds and collect the interest for his own use till he should die; and that then, and not before, his sons should have possession of them and own them absolutely. That although he meant that their right to this interest in remainder should be vested and irrevocable from the time of the supposed gift, yet that at no time during his life did the donees have exclusive possession of the bonds or the le- gal right to such possession. The declarations of the donor that he had given the bonds to his sons must be under- stood as referring to the qualified gift which he intended to make. There is nothing to indicate that he ever relinquished his right to the interest, and all the circumstances of the case show that he could not have in- tended to admit that he had made an ab- solute gift, free from the qualification ex- pressed in the memoranda. The cases of Grangiac v. Arden, 10 Johns. 295; Davis v. Davis, 8 Nott & McC. 226, and kindred cases, consequently have no application. The prin- ciple of those cases was applied in the late case of Trow v. Shannon, 78 N. Y. 446, but In that case the gift was Intended to be ab- solute. No qualification was attached to it, and the bonds were placed where they were accessible to the donee, and he had himself collected the interest for his own use. There was nothing inconsistent with a full delivery, but there was no direct evidence of such de- livery, and the admissions of the donor that she had given the bonds and they belonged to the donee, were received, and weight given to them, as some evidence from which the jury might infer that the gift had been com- pleted by an absolute delivery. It is impossible to sustain this as an exe- cuted gift, without abrogating the rule that delivery is essential to gifts of chattels inter vivos. It is an elementary rule that such a gift cannot be made to take effect in posses- sion in future. Such a transaction amounts only to a promise to make a gift, which is nudum pactum. Pitts v. Mangum, 2 Bailey, 588. There must be a delivery of possession with a view to pass a present right of prop- erty. "Any gift of chattels which expressly reserves the use of the property to the donor for a certain period, or (as commonly appears in the cases which the courts have had oc- casion to pass upon) as long as the donor shall live, is ineffectual." 2 Schouler, Pers. Prop. p. 118, and cases cited; Vass v. Hicks, 3 Murph. (N. 0.) 494. This rule has been ap- plied even where the gift was made by a written instrument or deed purporting to transfer the title, but containing the reserva- tion. Sutton's Ex'r v. Hallowell, 2 Dev. 186; Lance v. Lance, 5 Jones Law, 413. The only question remaining therefore is whether a valid declaration of trust is made out. The trust contended for, if put into words, would be that the donor should hold the bonds and their proceeds for his own bene- fit during his life and to the use of the donees from the time of his own death. Of course no trust was created of the inter- est for the donor's own life, for he was the legal owner of the income of the bonds, and never parted with this right— nor could he be at the same time trustee and cestui que trust. The trust then would be to hold to the use of the; donees an estate in remainder in the bonds, which should vest in possession in the donees, at the time of his death. The difficulty in establishing such a trust is that the donor did not undertake or at- tempt to create it, but to vest the remainder directly in the donees. Assuming, for the purposes of the argument, that he might have created such a trust in himself, for the bene- fit of his sons, and, further, that he might have done so by simply signing a paper to that effect and retaining it in his own posses- sion, without ever having delivered it to the donees, or any one for them, yet he did not do so. He simply signed a paper certifying that the bonds belonged to his sons. He did not declare that he held them in trust for the donees, but that they owned them subject to the reservation, and were at his death to have them absolutely. If this instrument had been founded upon a valuable consideration, equity might have interfered and efCectuated its intent by compelling the execution of a declaration of trust, or by charging the bonds, while in his hands, with a trust in favor of the equitable owner. Day v. Eoth, 18 N. Y. 448. But it is well settled that eq- uity will not Interpose to perfect a defective gift or voluntary settlement made without consideration. If legally made, it will be up- held, but It must stand as made or not at all. When therefore it is found that the gift which the deceased attempted to make fail- ed to take effect for want of delivery, or a sufficient transfer, and It is sought to supply this defect and carry out the intent of the donor by declaring a trust which he did not himself declare, we are encountered by the rule above referred to. Story, Eq. Jur. 706, 787, 793b-793d; Antrobus v. Smith, 12 Ves. 89, 43; Edwai-ds v. Jones, 1 Mylne & C. 226; 7 Sim. 325; Price v. Price, 8 Eng.- Law & Eq. 281; Hughes v. Stubbs, 1 Hare, 476. It PROPERTY IN EQUITY— TRUSTS. 73 is e'?tablished as unquestionable law that a court of equity cannot by its authority render that gift perfect which the donor has left imperfect, and cannot convert an imper- fect sift into a declaration of trust, merely on account of that imperfection. Heartley v. Nicholson, 44 L. J. Ch. 279. It has iu some cases been attempted to establish an excep- tion in favor of a wife and children on the ground that the moral obligation of the donor to provide for them constituted what was called a meritorious consideration far the gift, but Judge Story (2 Eq. Jur. § 987, and 1 Eq. Jur. § 433) says that that doctrine seems now to be overthrown, and that the general principle is established that in no case what- ever will courts of equity interfere in favor of mere volunteers, whether it be upon a voluntary contract, or a covenant, or a set- tlement, however meritorious may be the con- sideration, and although the beneficiaries stand in the relation of a wife or child. Hol- loway V. Headington, 8 Sim. 325; Jeffreys v. Jefereys, 1 Craig & P. 138, 141. These positions are sustained by many au- thorities. To create a trust, the acts or words relied upon must be unequivocal, implying that the person holds the property as trustee for another. Martin v. Funk, 75 N. Y. 134, per Church, C. J. Though it is not necessary that the declar-ation of trust be in terms ex- plicit, the donor must have evinced by acts which admit of no other interpretation, that :such legal right as he retains is held by him ■as trustee for the donee. Heartley v. Nich- olson, 44 L. J. Ch. 277, per Bacon, V. C. The settler must transfer the property to a trustee, or declare that he holds it himself in trust Milroy v. Lord, 4 De Gex, F. & 3. 264, per Lord Knight Bruce. In cases of volun- tary settlements or gifts, the court will not impute a trust where a trust was not in fact the thing contemplated. The distinction be- tween words importing a gift and words cre- ating a trust is pointed out by Sir Geo. Jessel in Richards v. Delbridge, L. R. 18 Eq. Cas. 11, as follows: "The making a man trustee involves an intention to become a trustee, whereas words of gift show an intention to give over property to another, and not to re- tain it in the donor's hands for any purpose, fiduciary or otherwise." The words of the donor in the present case are that the bonds are owned by the donees, but that the interest to accrue thereon is owned and reserved by the donor for so long as he shall live, and at his death they belong absolutely to the donees. No intention is here expressed to hold any legal title to the bonds in trust for the donees. Whatever interest was intended to be vested in them was trans- ferred to them directly, subject to the reser- vation in favor of the donor during his life, and free from that reservation at his death. Nothing was reserved to the donor, to be held in trust or otherwise, except his right to the accruing Interest which should become pay- .able during his life. It could only be by re- forming or supplementing the language used, that a trust could be created, and this, as has been shown, will not be done in case of a voluntary settlement without consideration. There are two English cases where indeed the circumstances were much stronger in favor of the donees than in the present case, which tend to sustain the position that a set- tlement of this description may be enforced in equity by constituting the donor trustee for the donee. They are Morgan v. Malleson, L. R. 10 Eq. Cas. 475, and Richardson v. Richardson, L. R. 3 Eq. Cas. 686. In the first of these cases, Morgan v. Malleson, L. R. 10 Eq. Cas. 475, the intestate signed and deliv- ered to Dr. Morris a memorandum in writing: "I hereby give and make over to Dr. Morris one India bond," but did not deliver the bond. Sir John Romilly sustained this gift as a declaration of trust. The case is refer- red to by Church, C. J., in Martin v. Funk as an extreme case. In Richardson v. Richard- son, an insti-ument purporting to be an as- signment, unsupported by a valuable consid- eration, was upheld as a declaration of trust. In speaking of these cases in Richards v. Delbridge, L. R. 18 Eq. Cas. 11, Sir Geo. Jes- sel, M. R., says: "If the decisions of Lord Romilly (in Morgan v. Malleson), and of Wood, V. C. (in Richardson v. Richardson) were right, there never could be a case where the expression of a present gift would not amount to an effectual declaration of trust." And it may be added that there never could be a case where an Intended gift, defective for want of delivery, could not, if expressed in writing, be sustained as a declaration of trust. Both of the cases cited are now placed among overruled cases. Fisher, Ann. Dig. (1873 and 1874) 24, 25. In Moore v. Moore, 48 L. J. Ch. 623, Hall, V. C, says: "I think it very important indeed to keep a clear and definite distinction between these cases of imperfect gifts and cases of declarations of trust; and that we should not extend beyond what the authorities have already establish- ed, the doctrine of declarations of trust, so as to supplement what would otherwise be mere imperfect gifts." If the settlement is intend- ed to be effectuated by gift, the court will not give effect to it by construing it as a trust. If it is intended to take effect by transfer the court will not hold the intended transfer to operate as a declaration of trust, for then every imperfect instrument would be made effectual by being converted into a perfect trust. Milroy v. Lord, 4 De Gex, F. Si J. 264. The case of Martin v. Funk and kindred cases cannot aid the respondent. In all those cases there was an express declaration of trust. In the one named the donor delivered the money to the bank, taking back its obli- gation to herself in the character of trustee for the donee; thus parting with all bene- ficial interest in the fund, and having the le- gal title vested in her in the character of trus- tee only. No interposition on the part of the 74 PKOPERTY IN EQUITY— TRUSTS. court was necessary to confer that character upon her; nor was it necessary, by construc- tion or otherwise, to change or supplement the actual transaction. None of the difficul- ties encountered in the present case stood in the way of carrying out her intention. It was capable of being executed in the form in which it was expressed. The question whether a' remainder in a chattel may be created and given by a donor by carving out a life estate for himself and transferring the remainder, without the inter- vention of a trustee, is learnedly discussed in the appellant's brief; but the views we have expressed render it unnecessary to pursue that inquiry. We are satisfied that it Is im- possible to hold that the facts as they appear establish a valid transfer of any interest iu the bonds in question to the donee, and that the attempted gift cannot be sustained as a declaration of trust. It follows that the judg- ment of the general term must be reversed and the decree of the surrogate affirmed. Costs of all the parties in this court and in the supreme court to be paid out of the es- tate. All concur. Judgment reversed. PROPEEXY IN EQUITY— TRUSTS. 75 ELLISON V. ELLISON. (6 Ves. 656.) High Court of Ohaucery. 1802. By indentures, dated the 1st of July, 1791, reciting a lease, dated the 6th of June pre- ceding, of collieries at Hebburn and Jar- rowood in the county of Durham, for thirty- one years to Charles Wren, and others; and that the name of Wren was used in trust for Nathaniel Ellison and Wren in equal shares, it was declared, that Wren, his executors and administrators would stand possessed of the lease in trust as to one moiety for Ellison, his executors, &c. By another indenture, dated the 18th of June, 1796, reciting, that Ellison was interest- ed in and entitled to one undivided eighth part of certain collieries at Hebburn and Jarro- wood, held by two several leases for terms of thirty-one years; and that he was desirous of settling his interest, he assigned and trans- ferred all his interest in the said collieries and all the stock, &c. to Wren, his executors, administrators, and assigns, in trust for Na- thaniel Ellison and his assigns during his life; and after his decease in trust to man- age and carry on the same in like manner as Wren should carry on his own share; and upon further trust out of the profits to pay to Margaret Clavering during the remainder of the term, in case she should so long live, the yearly sum of £103. 2s. 8d.; which sum is thereby mentioned to be secured to her by an indenture, dated the 14th of May last; and subject thereto in trust to pay thereout to Jane Ellison, in case she should survive Na- thaniel Ellison, during the remainder of the term, during the joint lives of Jane Ellison and Anne Furye, the clear yearly sum of £180; and after the decease of Anne Furye then the yearly sum of £90 during the re- mainder of the term, in case Jane Ellison should so long live; and subject, as afore- said, upon trust to pay thereout to each of the children of Nathaniel Ellison, that should be living at his decease, during the remainder of the term, during the joint lives of Jane El- lison, and Anne Furye, and the life of the survivor, the yearly sum of £30 a-piece, and after the decease of the survivor the yearly sum of £15; and upon further trust to pay the residue of the profits arising from the collieries to the eldest son of Nathaniel Ellison, who should attain the age of twen- ty-one; and upon the death of Margaret Clavering theii upon trust to pay to each of the children of Nathaniel Ellison the further yearly sum of £10; with survivor- ship, in case any of the children should die before twenty-one, or marriage of daughters, provided none except the eldest should be en- titled to a greater annuity than $50; and upon further trust to pay the residue to the eldest son; provided further, in case all the children die before twenty-one or the mar- riage of daughters, upon trust to pay the whole to such only child at twenty one, or marriage of a daughter: provided further, in case the profits to arise from the colliery should not be sufficient to pay all the an- nuities, the annuitants except Margaret Clav- ering should abate; to be made up, whenever the profits should be sufficient; and upon fur- ther trust, in case Wren, his executors, or administrators, should think it more bene- ficial for the family to sell and dispose of the collieries, upon trust to sell and dispose of the same for the most money, that could reasonably be got, and to apply the money in the first place in payment of all debts due from the colliery in respect of the share of Ellison; and subject thereto to place out the residue on real securities and apply the inter- est in the first place in payment of the an- nuity of £103. 2s. 8d. to Margaret Clavering, then to the annuities of £180 or £90; then to pay all the children of BlUson during the life of Margaret Clavering the yearly sum of £22. IDs. and to pay the residue of the dividends, and interest to the eldest son of Ellison in manner aforesaid; and if the dividends, &c. should not be sufficient for the annuities, the two annuitants except Margaret Clavering to abate; and after her death to pay to each of the children of Nathaniel Ellison the fur- ther yearly sum of £2. 10s. for their lives; and after the decease of Margaret Clavering and Jane Ellison upon trust to pay to each of the children of Nathaniel Ellison the sum of £500 in case the money arising from the sale should be sufficient; then upon, trust to divide the same equally among all the chil- dren, share and share aUke; and subject, as aforesaid, to pay over the residue to the eld- est son on his attaining twenty-one; and it was declared, that the portions of the chil- dren should be paid to the sons at twenty- one, to the daughters at twenty-one or mar- riage; and In case of the death of any before such period to pay that share to the eldest son at twenty-one; and if only one child should survive, to pay the whole to such one at twenty-one, or marriage, if a daughter; and in case all die before twenty-one, &c. then the said Charles Wren, his executors and administrators, shall stand possessed of the said collieries and the money to arise by sale thereof, subject as aforesaid, in trust for Na- thaniel Ellison, his executors, administi'ators, and assigns. It was further declared, that the annuities should be paid half-yearly; and that upon any such sale the receipt of Wren, his executors or administrators should be a sufficient discharge to the purchasers. Then followed this proviso: "Provided always and it is hereby further declared that it shall and may be lawful for the said Nathaniel Ellison by any deed or deeds writing or writings to be by him sign- ed sealed and delivered in the presence of and attested by two or more credible witnesses, to revoke determine and make void all and every the uses trusts limitations and powers hereinbefore limited and created of and con- cerning the said collieries and coal mines. 7i5 PilOPEUTY IN EQUITY— Til USTS. and by the same deed or deeds or by any other deed to be by him executed in like manner to limit any new or other uses of the said collieries and coal mines as he the said Nathaniel Ellison shall think fit." By another indenture dated the 3d of July, 1797, but not attested by two witnesses, re- citing the leases of the collieries, and that the name of Charles Wren was used in trust for Nathaniel Ellison and himself in equal shares; and that Ellison had advanced an ■equal share of the monies supplied for carry- ing on the collieries, amounting to £9037. 10s. it was witnessed, that in consideration of t£4518. 15s. Wren assigned to Nathaniel El- lison one undivided moiety or half part of all the said collieries demised to him by the said several leases, with a like share of the stock; to have and to hold the said collieries to El- lison, his executors, administrators, and as- signs, for the residue of the said terms, sub- ject to the rents, covenants, and agreements, in the said leases; and to have and to hold the stock unto Ellison, his executors, admin- istrators, and assigns, to and for his and their own proper use for ever; with the usual covenants from Wren as to his title to assign, &c. and from Ellison to indemnify Wren, his executors, &c. Nathaniel Ellison, by his will, dated the 22d of June, 1796, after several specific and pecuniary legacies, gave all the rest and resi- due of his personal estate and effects of what nature or kind soever not before disposed of, to his wife and Wren and the survivor and the executors and administrators of such survivor; upon trust to call in and place the same out in the funds or on real securities; and he directed, that all sums of money, which should come to the hands of his wife and Wren or of the executors, &c. of either of them under the said trusts, should be equally divided between all his children, sons and daughters, born and to be born, share and share alike: the shares to become vest- ed and be payable upon marriage with con- sent of their guardians, and not otherwise until the age of twenty-one: such part of the interest in the mean time as the guardians shall think proper to be applied for main- tenance: the residue to accumulate; with a direction for payment of part of the prin- cipal for advancement; and survivorship up- on the death of any, before the respective shares should be payable; and in case of the death of all under age and unmarried he gave the dividends and interest to his wife for life; and upon her death he gave the princi- pal and a sum of £3000 charged upon her estates, to his sister Margaret Olaverlng and his nephew. Then after some further dispo- sitions of stock in favour of his children, he gave a legacy of twenty guineas to Wren; and appointed his wife and Wren executors and guardians. The testator died in 1798; leaving his wid- ow and ten children surviving; one of whom, Charles Ellison, died in 1799, an infant, Wren also died in that year. The bill was filed by the testator's widow and Margaret Claver- Ing; praying that the trusts of the deed of June, 1796, may be established; and that new trustees may be appointed. The younger children by their answer sub- mitted, whether the trusts of that deed were not varied or revoked by the deed of July, 1797. Mr. Romilly and Mr. Bell, for plaintiffs. Mr. Richards, Mr. Steele, and Mr. W. Agar, for defendants. LORD CHANCELLOR. I had no doubt, that from the moment of executing the first deed, supposing it not to have been for a wife and children, but for pure volunteers, those volunteers might have filed "a bill in equity on the ground of their interests in that in- strument; making the trustees and the au- thor of the deed parties. I take the distinc- tion to be, that if you want the assistance of the court to constitute you cestuy que trust, and the instrument is voluntary, you shall not have that assistance for the purpose of constituting you cestuy que trust; as upon a covenant to transfer stock, &c. if it rests in covenant, and is purely voluntary, this court will not execute that voluntary cove- nant; but if the party has completely trans- ferred stock, &c. though it is voluntary, yet the legal conveyance being effectually made, the equitable interest will be enforced by this court. That distinction was clearly tak- en in Coleman v. Sarrel, independent of the vicious consideration. I stated the objection that the deed was voluntary; and the lord chancellor went with me so far as to con- sider it a good objection to executing what remained in covenant. But if the actual transfer is made, that constitutes the relation between trustee and cestuy que trust, though voluntary, and without good or meritorious consideration; and it is clear in that case, that If the stock had been actually traDS- ferred, unless the transaction was affected by the turpitude of the consideration, the court would have executed it against the trustee and the author of the trust. In this case, therefore, the person claim- ing under the settlement might maintain a suit, notwithstanding any objection made to it as being voluntary; if that could apply to the case of a wife and children: considering also, that Mrs. Clavering was an annuitant, and not a mere volunteer. But it was put for the defendants thus; that though the in- strument would have been executed original- ly, if the subject got back by accident into the author of the trust, and was vested in him, then the objection will lie in the same manner, as if the instrument was voluntary. I doubt that for many reasons; the trust be- ing once well created; and whether it would apply at all, where the trust was originally well created; and did not rest merely in en- gagement to create It. Suppose Wren had rilOPEUTY IN EQUITY— TRUSTS. 77 died, and had made Ellison his executor, it would be extraordinary to hold, that though an execution would be decreed against him as executor, yet, happening to be also author of the trust, therefore an end was to be put to the interest of the cestuy que trust. But it does not rest there; for Ellison clothes the legal estate remaining in Wren with the equi- table interests declared by the first deed; making him therefore a trustee for Ellison himself first, and after his death for several other persons; and he has said, he puts that restraint upon his own power; not only, that he shall not have a power of revocation, whenever he changes his intention, but, that he shall not execute that power, nor be sup- posed to have that change of intention, un- less manifested by an instrument executed with certain given ceremonies. My opinion is, that, if there is nothing more in this trans- action than taking out of Wren the estate clothed with a trust for others, with present interests, though future in enjoyment, and that was done by an instrument with no wit- ness, or only one witness, it is hardly possible to contend, that such an instrument would be a revocation according to the Intention of the party, the evidence of whose intention is made subject to restrictions that are not complied with. The only difficulty is, that the declaration of the trusts in the first in- strument could not be executed, the second instrument being allowed to have effect. It is said, a power was placed in Wren, his ex- ecutors and administrators, not his assigns, if in sound discretion thought fit, to sell, and to give a larger interest to the younger chil- dren than they otherwise would take. If Wren had not after the reassignment that discretion still vested in him, I think, it would not be in the executors of Ellison, and it could not be exercised by the court; though in general cases trusts will not fail by the failure of the trustee. But though the effect would be to destroy the power of Wren, which I strongly doubt, attending to the requisition of two witnesses, I do not know that it would destroy the other inter- ests. I think therefore, upon the whole, this trust does remain notwithstanding this reas- signment of the legal estate to Ellison. I dO' not think, consistently with the intention ex- pressed in the first instrument, and the ne- cessity imposed upon himself of declaring a different intention under certain restrictions, that if a different intention appeared clearly upon the face of the instrument, the latter would have controlled the former. But I do not think his acts do manifest a different in- tention. Supposing one witness sufficient, the second deed does not sufficiently mani- fest an intention to revoke all the benefits given by the first deed to the children; and it is not inconsistent that he might intend to revoke some and not all. As to the will, it is impossible to main- tain, that the will is a writing within the- meaning of the power: considering how the subject is described. The word "residue" there means that estate, of which he had the power of disposing, not engaged by contracts, declarations of ti-usts, &c. It was necessary for him to describe the subject in such a way, that there could be no doubt he meant to em- brace that property. Upon the whole, therefore, this relief must be granted; though I agree, that, if it rested in covenant, the personal representative might have put them to their legal remedies, he cannot where the character of trust at- tached upon the estate, while in Wren; which character of trust therefore should adhere to the estate in Ellison, unless a contrary in- tention was declared; and the circumstance of one witness only, when the power reserved required two witnesses, is also a circum- stance of evidence, that he had not the in- tention of destroying those trusts which had attached, and were then vested in the person of Wren. 78 PBOPERTY IN EQUITY— TRUSTS. RICHARDSON v. RICHARDSON. (L. R. 3 Eg. 680.) February 26, 1876. Mr. G. M. Giffard and Mr. Kay, Q. C, for plaintiff. Mr. Willcocli, Q. C, and Mr. Faber, for defendants. WOOD, V. 0. The sole question in tbis case is whether a legatee, under the will of tbe testator, Richard Richardson, of a sum of £1250, ought or ought not to submjit to a •deduction of £450, In respect of two promis- sory notes given by him to his sister, which involves the further question whether the testator was or was not the absolute owner of tbe notes. If he was the owner, though he demanded no Interest upon the notes, and made no application for payment of them, yet, as is conceded, the statute of limitations cannot be set up, and the plain- tiff must be considered as having received on account of bis legacy so much of the as- sets of tbe testator as his debt amounted to. Wliether or not the notes were the property of the testator depends upon a certain vol- untary assignment, whereby the sister, short- ly before her death, assigned the whole of her personal estate to her brother, tbe tes- tator, and in tbe same Instrument she gave him a power of attorney to ask, sue for, and recover the thereby assigned moneys and premises, and to do and execute such further acts and deeds as should be deemed necessary for deriving the full benefit of the assignment. Now, there is no specific description in the deed of the promissory notes, and, if they passed at all, they passed under the descrip- tion of "all other tbe personal estate and elfects, whatsoever and wheresoever," of Elizabeth Richardson. She did not Indorse the notes, and the defendants, the executors, by their answer, say they believe that if she had not died so soon the testator would have applied to her to indorse the notes, but she did not do so. The questions are: First, whether they passed by the deed at all; and, secondly, If they passed, whether they passed to tbe testator as trustee or in his own right After tbe decision in Kekewich v. Man- ning, 1 De Gex, M. & G. 176, I think It is impossible to contend that these notes did not pass by tbis instrument, because the rule laid down in that case, the decision in wliich was supported by reference to Ex parte Pye, 18 Ves. 140, was not confined merely to this: that a person who, being en- titled to a reversionary interest, or to stock standing in another's name, assigns it by a voluntary deed, thereby passes it, notwith- standing that he does not in formal terms ■declare himself to be trustee of the property; but it amounts to this: that an instrument executed as a present and complete assign- ment (not being a mere covenant to assign on a future day) is equivalent to a declara- tion of trust. It is impossible to read tbe argument in that case, and the judgment of Lord Justice Knight Bruce; without seeing that his mind was directed' to Meek v. Kettle well, 1. Hare, 464; on appeal, 1 Phil. Oh. 342, and that class of cases, where it had been held (such was the nicety upon which the decisions turned) that an actual assignment is nothing more than an agreement to assign in equity, be- cause it merely passes such equitable in- terest as the assignor may have, and some further step must be taken by the assignee to acquire the legal interest. That further step being necessary, the assignment wan held to be, in truth, nothing but an agree- ment to assign; and, being so, was not en- forceable in this court, the court having oftt>n decided that it will not enforce a mere volun- tary agreement. The distinction, undoubtedly, was very fine between that and a declaration of trust; and the good sense of the decision in Kekewich V. Manning, 1 De Gex, M. & G. 176, I think, lies in this: that the real distinction should be made between an agreement to do some- thing when called upon, something distinctly expressed to be future in the instrument, and an instrument which effects to pass ev- erything independently of the legal estate. It was held in Kekewich v. Manning that such an instrument operates as an out and out assignment, disposing of the whole of the assignor's equitable interest, and that such a declaration of trust is as good a form as any that can be devised. Tbe expression used by the lords justices is this : "A declara- tion of trust is not confined to any express form of words, but may be indicated by the character of the instrumemt." In that case reference was made in the argument principally to the case of Ex pai'te Pye, 18 Ves. 140, which was a decision of Lord Eldon to tbe same eifect. Reliance is often placed on the circumstance that the assignor has done all he can; that there is nothing remaining for him to do; and it is contended that he must, in that case only, be taken to have made a complete and effec- tual assi§jnment. But that is not the sound doctrineoTph which the case rests; for if there be an actual declaration of trust, al- though the assignor has not done all that be could do, — for example, although he has not given notice to the assignee, — yet the in- terest is held to have effectually passed as between the donor and donee. The difference must be rested simply on this: Aye or no, has he constituted himself a trustee? In Ex parte Pye, 18 Ves. 140, the testator had written to one Dubost, authorizing him to purchase in France an annuity for the benefit of a lady named Garos, for her life, with power to draw on him for £1,500 for such purchase. The agent, finding the lady was a married woman, exercised his own dis- PROPERTY IN EQUITY— TRUSTS. 79 ■cretion, and bought the annuity in the name of the testator. Then, shortly before his ^ieath, the testator sent to Dubost, by his desire, a power of attorney, authorizing him to transfer the annuity to the lady. The testator died before anything more was done, and after his death the annuity was transferred. There was a question wheth- er, by the law of France, the exercise of a power of attorney by the person to whom it is given, without knowledge of the death of his principal, is good. I think the mas- ter found that it was so; but Lord El- don expressly declined to rely upon that, as he says m his judgment (Id. 150): "These petitions" (the question came on upon peti- tion) "call for the decision of points of more importance and difficulty than I should wish to decide in this way, if the case was not pressed upon the court. With regard to the French annuity, the master has stated his opinion as to the French law, perhaps with- out sufficient authority, or sufficient inquiry into the efCect of It, as applicable to the pre- cise circumstances of this case; but it is not necessary to pursue that, as upon the •documents before me it does appear that, though in one sense this may be represented as the testator's personal estate, yet he has •committed to writing what seems to me a sufficient declaration that he held this part of the estate in trust for the annuitant." Now, the testator had done nothing more than execute the power of attorney. It is true, he had written a letter directing the stock to be purchased in the lady's name; but that was not done; it was purchased in his name. The decision, therefore, could only be rested upon this: that this was not an agreement to assign, not an agreement to become a trustee at some future period, but an actual constitution by the testator of himself as trustee. Following, therefore, Kekewich v. Man- ning; 1 De Gex, M. & G-. 176, I must regard this instrument as having eifectually asslgn- r^'' '"' ed the promissory notes, although they were not indorsed. The instrument is an actual •assignment with a power immediately vest- ed in the assignee to make himself master of the property; and I do not know in what way the assignor could have more effec- tually declared that she was a trustee of that property for Richard Richardson. The next question is whether the testator took these notes upon trust, for, if he did, there can be no set-off of the debt due to him qua trustee, against the legacy given by his will. It appears to me there is nothing | whatever on the face of the instrument to' <;reate a trust. The property is given out' and out, absolutely. Nor do I find anything' like evidence to authorize me to say that it is fixed with a trust. [His honor reviewed the evidence, and came to the conclusion that a will had been executed in 1855, although the instrument itself had not been produced, nor its absence accounted for. His honour thought it very possible that the assignment was executed for the purpose of avoiding the duty, and disposing of the property through the medium of a trust; but he did not think the evidence sufficient to fasten that trust upon the property, no right hav- ing been asserted, during the period from 1858 to 1864, as against the testator. His honour continued:] It was said by Mr. Giffard, In another part of his argument, relying on the case of Free- man v. Lomas, 9 Hare, 109, that if the testa- tor could not take this property, except through the executors of Elizabeth Richard- sou, if he could not take the notes specifical- ly, but could only take their value as an or- dinary legacy after a settlement of accounts with the executors of Elizabeth Richardson, the testator's executors are not in a posi- tion to assert a right of set-off as regards these specific notes. But I have already stated my reasons for considering that there is no evidence to show that the testator did not take these notes absolutely by the deed; and, as regards the application of the moneys secured on the notes to the pay- ment of debts, that would only arise in con- sequence of the possibility of the statute of Elizabeth intervening, which might take out for the benefit of the creditors as much of the property as might be wanted for the payment of debts; but, as regards the donee and donor, the deed would remain absolute, no debt ever having been asserted, and the property having been completely and effec- tually assigned. As regards some faint evidence of the tes- tator's wish that this debt might not be en- forced, no doubt the testator never received interest, and he was in a vacillating frame of mind about it; but unfortunately that vacil- lation never amounted to anything definite or precise, amounting to a gift of the prop- erty. [His honour went through the evidence on this head, and continued:] Although I am very reluctant to come to this conclusion, I must say the testator does not appear to me to have made up his mind; and, as he did not do so, I cannot do any- thing for the plaintiff. Therefore the legacy must be paid, deducting the value of the notes; but of course there will be no inter- est on them. The order will be to pay the plaintiff his legacy of £1,250, less £450, with interest at £4 per cent, on the difference, from one year after the testator's death. There will be no costs on either side, except that the defendants will have their costs out of the estate. 80 PBOPEKTY IK EQUITY— TRUSTS. MORGAN V. MALLESON. (L. R. 10 Eg. 475.) July 28, 1870. The following memorandum was given by John Saunders, the testator In the cause, to his medical attendant, Dr. Morris: "I hereby give and make over to Dr. Morris an India bond. No. D., 506, value £1000, as some token for all his very kind attention to me during illness. "Witness my hand, this 1st day of August, 1868. "(Signed) John Saunders." The signature was attested by two witness- es, and the memorandum was handed over to Dr. Morris, but the bond, which was trans- ferable by delivery, remained in the posses- sion of Saunders. There was no considera- tion for it. Saunders died more than a year afterwards, having, by his will, bequeathed the residue of his personal estate to charities. A suit was instituted for the administration of his estate, and a summons was taken out by the attorney general on behalf of absent chari- ties for the direction of the court on the ques- tion whether this memorandum was or was not a valid declaration of trust In favor of Dr. Morris. Mr. Jessel, Q. C, Mr. Speed, and Tucker & Lake, for Dr. Morris. Raven & Bradley and Mr. Wickens, for the attorney general. Lord ROMILLY, M. R. I am of opinion that the paper writing signed by Saunders is equivalent to a declaration of trust in fa- vor of Dr. Morris. If he had said, "I under- take to hold the bond for you," or if he had said, "I hereby give and make over the bond in the hands of A.," that would have been a declaration of trust, though there had been no delivery. This amounts to the same thing; and Dr. Morris is entitled to the bond, and to all interest accrued due thereon. PROPEETY IN EQUITY— TRUSTS. 81 RICHARDS V. DELBRIDGE. (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- ei-y, 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, 1ST3, John Del- bridge indorsed upon the lease and signed the following memorandum: "7th March, 1S73. 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 memoraudumv delivered the lease on his behalf to Elizabeth Ann Richards, the plain- tiff's mother, who was still in possession thereof. Tbat 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-ti-ade 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, Q. C, with him), and T. D. Bolton, for plain- tiff. Gregory, Rowcliffes & Rawle, for de- fendants. JESSEL, M. R. This bill is wan-anted by the decisions in Richardson v. Richardson, L, R. 3 Bq. 686, and Morgan v. Malleson, L. R. 10 Eq. 475, but, on the other hand, we have the case of Milroy v. Lord, 4 De Gex, P. & J. 264, before the court of appeals, and the more recent case of Warriner v. Rogers, L. R. 16 Eq. 340, 348, in which Vice Chancellor Bacon said: "The rule of law HDTCH.EQ.JUR.— 6 upon this subject I take to be very clear, and, with the exception of two cases which have been referred to (Richardson v. Rich- ardson and Morgan v. Malleson), the deci- sions are all perfectly consistent with that rule. The one thing necessary to give valid- ity to a declaration of trust— the indispen- sable thing— I take to be, that the donor, or grantor, or whatever he may be called, should have absolutely parted with that in- terest which had been his up to the time of the declaration, should have effectually changed his right in that respect, and put the property out of his power, at least in the way of interest." The two first mentioned cases are wholly opposed to the two last. That being sa, I am not at liberty to decide the case other- wise than in accordance with the decision of the court of appeal. It is true the judges appear to have taken different views of the construction of certain expressions, but I am not bound by another judge's view of the construction of particular words; and there is no case in which a different prin- ciple is stated from that laid down by the court of appeal. JXoreover, if it were my duty to decide the matter for the first time,. I should lay down the law in the same way. The principle is a very simple one. .A man may transfer his property, without valuable consideration, in one of two ways: he may either do such acts as amount in law to at conveyance or assignment of the propertyJ and thus completely divest himself of the legal ownership, in which case the person who by those acts acquires the property takes it b enefic ially, or 4-196, and cases cited; Peria v. Carey, 24 How. 501; Magill V. Brown, Brightly, N. P. 346; 2 Kent, Comm. 286-288, and note; Burbank v. Whitney, 24 Pick. 152, 153; Preachers' Aid Soc. v. Rich, 45 Me. 559; Derby v. Derby, 4 R. I. 436; Urmey v. Wooden, 1 Ohio St. 160; Chambers V. St. Louis, 29 Mo. 543; 1 Spence, Bq. Jur. 588; Tudor, Char. Trusts, 102, 103. The theory that St. 43 Eliz. enlarged the discretion of the chancellor to depart from the expressed intention of the founder of a charity is refuted by the words of the stat- ute itself. After reciting that many gifts and appointments for the charitable purposes therein named "have not been employed ac- cording to the charitable intent of the givers and founders thereof, by reason of frauds, breaches of trust, and negligence in those that should pay, deliver and employ the same;" it then, for redress and remedy there- of, authorizes the lord chancellor or lord keeper to make such decrees that the prop- erty "may be duly and faithfully employed tQ and for such of the charitable uses and in- tents before rehearsed respectively for which they were given, limited, assigned or appoint- ed by the donors and founders thereof;" which decrees, "not being contrary or repug- nant to the orders, statutes or decrees of the donors or founders," shall "stand firm and good, according to the tenor and purpose thereof, and shall be executed accordinglj'," until altered by the lord chancellor or lord keeper upon complaint by any party aggriev- ed; and upon such complaint the chancellor or keeper may "by such course as to their wisdoms shall seem meetest, the circumstan- ces of the case considered, proceed to the ex- amination, hearing and determining thereof; and upon hearing thereof shall and may an- nul, diminish, alter or enlarge" the decrees of the commissioners as "shall be thought to stand with equity and good conscience, ac- cording to the true intent and meaning of the donors and founders thereof." These last qualifications are specially marked by Lord Coke, who was attorney general at th^ passage of the statute and for some time be- ■ fore and after, and who adds, by way of note to the final clause, "This is the lapis ductitius, whereby the commissioners and chancellors must institute their course." 2 Inst. 712. See, also, Duke, Char. Uses, 11, 156. 169, 372, 619. In cases of bequests to trustees for char- itable uses, the nature of which is described in the will, the chancellor acts in his equity, jurisdiction over trusts; and the prerogative/ of the king finds Its appropriate exercisq through his attorney general in bringing the case before the court of chancery for a judi-1 cial determination. This has been well ex-l plained by Lord Eldon. "It is the duty of] a court of equity, a main part, originally almost the whole, of its jurisdiction, to ad- minister trusts; to protect not the visible owner, who alone can proceed at law, but the individual equitably, though not legally, en- titled. From this principle has arisen the practice of administering the trust of a pub- lic charity: persons possessed of funds ap- propriated to such purposes are within the general rule; but, no one being entitled to an immediate and peculiar interest to prefer a complaint, who is to compel the perform- ance of these obligations, and to enforce their responsibility? It is the duty of the king, as parens patriae, to protect property devoted to charitable uses; and that duty is executed by the ofE:cer who represents the crown for all forensic purposes. On this foundation rests the right of the attorney general in such cases to obtain by informa- tion the interposition of a court of equity." Attorney General v. Brown, 1 Swanst. 291, 1 Wils. 354. To the like effect are the opin- ions of Lord Redesdale in Attorney General V. Mayor, etc., of Dublin, 1 Bligh (N. S.) 347, 348, and Corporation of Ludlow v. Green- house, Id. 48, 62; of Lord Keeper Bridgman in Attorney General v. Newman, 1 Ch. Cas. 158; of Sir Joseph Jekyll in Byre v. Shafts- bury, 2 P. Wms. 119; and of Lord Hard- wicke in Attorney General v. Middleton, 2 Ves. Sr. 328; which also state that the juris- diction of the court of chancery over chari- ties was exercised on such informations be- fore St. 43 Eliz. See, also. Attorney Gen- eml v. Carroll, Act. Can. 729; Dwight's Ar- 102 PROPERTY IN EQUITY— TRUSTS. gument in the Rose Will Case, 259-2G8. This duty of maintaining the rights of the public, and of a number of persons too indefinite to vindicate their own, has vested in the commonwealth, and is exercised here, as in England, through the attorney general. Go- ing V. Emery, 16 Pick. 119; County Attor- ney V. May, 5 Cush. 338-340; Gen. St. c. 14, § 20. It is upon this ground that, in a suit instituted by the trustees of a charity to ob- tain the instructions of the court, the attor- ney general should be made a party defend- ant, as he has been by order of the court in this case. Harvard College v. Society for Promoting Theological Education, 3 Gray, 280; Tudor, Char. Trusts, 161, 162. The power of the king or commonwealth, thus exercised, is simply to present the question to a court of justice, not to control or direct its judicial action. A charity, being a trust in the support and execution of which the whole public is con- cerned, and which is therefore allowed by the law to be perpetual, deserves and often requires the exercise of a larger discretion by the court of chancery than a mere pri- vate trust; for without a large discretionary power, in carrying out the general intent of the donor, to vary the details of administra- tion, and even the mode of application, many charities would fail by change of circumstan- ces and the happening of contingencies which no human foresight could provide against; and the probabilities of such fail- ure would increase with the lapse of time and the remoteness of the heirs from the original donor who had in a clear and lawful manner manifested his will to divert his es- tate from his heirs for the benefit of public charities. It is accordingly well settled by decisions of the highest authority, that when a gift is made to trustees for a charitable purpose, the general nature of which is pointed out, and which is lawful and valid at the time of the death of the testator, and no Intention is expressed to limit it to a particular insti- tution or mode of application, and after- wards, either by change of circumstances the scheme of the testator becomes imprac- ticable, or by change of law becomes illegal, the fund, having once vested in the charity, does not go to the heirs at law as a resulting trust, but is to be applied by the court of chancery, in the exercise of its jurisdiction in equity, as near the testator's particular directions as possible, to carry out his gen- eral charitable intent. In all the cases of charities which have been administered In the English courts of chancery without the aid of the sign manual, the prerogative of the king acting through the chancellor has not been alluded to, except for the purpose of distinguishing it from the power exer- cised by the court in its inherent equitable jurisdiction with the assistance of its mas- ters in chancery. At the time of the settlement of the Mass- achusetts Colony, this power was most free- ly exercised by the court of chancery, either on information by the attorney general, or on proceedings by commission under the statute of charitable uses. Attorney Gen- eral V. Warwick (1615, 1638) Dwight, Char. Cas. 140, 141, West, Ch. 60, 62; Bloomfield V. Stowemarket (1619) Duke, Char. Uses, 644. In the last case, lands had been given before the Reformation to be sold, and the proceeds applied, one half to the making of a highway from the town in which the lands were, one fourth to the repair of a church in that town, and the other fourth to the priest of the church to say prayers for the souls of the donor and others; and Lord Bacon decreed the establishment of the uses for making the highway and repairing the church, and directed the remaining fourth (which could not, by reason of the change in religion, be applied as directed by the donor) to be divided between the poor of the same town, and the poor of the town where the donor inhabited. In the Case of Baliol College, this doctrine was enforced by successive decrees of the greatest English chancellors between the English Revolution and our own, which have been recently confirmed by the unanimous decision of the house of lords. Attorney Gen- eral V. Guise, 2 Vern. 166; Attorney Gen- eral V. Baliol College, 9 Mod. 407; Attorney General v. Glasgow College, 2 Colly. 665, 1 H. L. Cas. 800. The case is of such im- portance and reported at different stages in so many books and at such length, that it may be well to state it. John Snell, an Episcopalian, who made his last will and died in 1679, while the form of religion es- tablished by law in Scotland as well as in England was Episcopal, gave lands in trust to apply the income for the maintenance and education at the university of Oxford of Scotchmen to be designated by the vice chan- cellor of that university and the heads of certain colleges therein, and who should, up- on their admission, give security to enter into holy orders and to be sent into Scotland and there remain. After the Revolution of 1688, Presbyterianism was reestablished in Scotland by act of parliament; and in 1690 an information was filed by the attorney gen- eral, at the relation of the vice chancellor and heads of colleges named in the will, against the testator's heiress at law, suggest- ing a pretence by her that as Episcopacy and Prelacy had been abolished in Scotland, and the Presbyterian form of worship established instead, the testator's intentions could not be carried into effect, the devise became void, and the property reverted to her. But the lords commissioners of the great seal, by a decree passed in 1692, established the devise against her, ordered an account, and reserv- ed all directions for the establishment of the charity. 2 Vern. 267, note; 2 Colly. 665-670, 1 H. L. Cas. S02-804, 820, 822. In 1693 the cause came on for further directions before PROPERTY IN EQUITY— TRUSTS. 103 Lord Keeper Somers, who, acting upon the doctrine tliat it was within the province of a court of equity to administer the trust up- on the principle of cy pres, ordered the es- tate to be conveyed to the six senior fellows of Baliol College, one of the colleges named in the will, to maintain a certain number of Scotch scholars at that college, and, in con- sideration of the privileges enjoyed by such scholars, to apply the surplus income to its library; and this decree was made subject to such alteration and disposition as the court should from time to time make, upon the ap- plication of any person concerned, for the better and more effectual execution of the trust, as near as could be to the testator's will and intentions. 2 Vem. 267, note; 2 Colly. 670, 671, 1 H. L. Cas. 804, 805, 824. In 1744 Lord Hardwicke, in the execution of the directions in the decree of Lord Somers, referred the cause to a master to approve of a scheme "for the better establishment and regulation of the charity, and carrying the «ame into eflEect for the future as near to the will and intention of the testator as the al- teration of circumstances since the making of the will would admit;" and upon his re- port, and against the exceptions of the heads of colleges in Oxford, confirmed a scheme which did not impose any condition of the scholars taking holy orders— thus carrying out the general intention of the trust so far as to educate Scotch scholars at Oxford, al- though the testator's ultimate object that they should be educated in the Episcopal form of church government to take part in the established religion in Scotland could not, by reason of the change of law since his death, be effected. 9 Mod. 407; 1 H. L. Cas. 805, 806, 825-827. In 1759 Lord Keeper Henley (afterward Lord Northington) varied the scheme in other particulars, but declined to vary it in this; and further orders were aft- erwards made in chancery as the revenues increased. 2 CoUy. 672-674, 1 H. L. Cas. 806, 807, 825, 826; 3 Ves. 650, note. Upon a new information filed at the relation of some Scotch Episcopalians, the house of lords in 1848, reversing an order of Vice Chancellor Knight Bruce, held that the charity must continue to be administered according to the earlier decrees. 1 H. L. Cas. 800. In another case, Queen Elizabeth, by let- ters patent, established a hospital for forty lepers, and made the inmates a corporation. After leprosy had become almost extinct in England, and the members of the corporation reduced to three, an information was filed, alleging that the corporation was dissolved, and praying for a new application of the revenues agreeably to the letters patent and the donor's intention, or as near thereto as circumstances would permit and the court should direct. Lord Eldon held that neither the donor's heirs at law nor the crown took the land discharged of the charity; referred the case to a master to report a scheme; and confirmed the report of the master, approv- ing a scheme for the application of the rev- enues to a general infirmary, reserving a preference to all lepers who might offer themselves. Attorney General v. Hicks, Highm. Mortm. 336-354, 3 Brown, Ch. 166, uote. Sir John Romilly, M. R., afterwards made a like decision, holding that a gift made in 1687 of land (for which in 1774 other land had been substituted by leave of parliament) in trust out of the income to keep it ready for a hospital and burial place for patients sick of the plague, was a present gift for charitable purposes, and valid, although the plague had not reappeared in England for more than one hundred and eighty years; and, after alluding to a class of cases, cited for the heirs at law in that case, as they have been in this, in which the charitable be- quest could never have taken effect, added, "But who can say, when this deed was exe- cuted or the act passed, that this was not a charitable trust, capable of being perform- ed;" "and if it were ever wholly devoted to charity, those cases do not apply." Attorney General v. Craven, 21 Beav. 392, 408. The principle that a bequest to trustees for charitable purposes indicated in the will, which are lawful and capable of being car- ried out at the time of the testator's death, will not be allowed to fail and result to the heirs at law upon a change of circumstancse., but will be applied by the court according x» a scheme approved by a master to carry out the intent of the testator as nearly as pos- sible, has been affirmed and acted on in many other English cases. Attorney Gen- eral V. Pyle, 1 Atk. 435; Attorney General v. Green, 2 Brown, Ch. 492; Attorney General V. Bishop of London, 3 Brown, Ch. 171; Mogg- ridge v. Thackwell, Id. 517, 1 Ves. Jr. 464; Attorney General v. Glyn, 12 Sim. 84; At- torney General v. Lawes, 8 Hare, 32; At- torney General v. Vint, 3 De Gex & S. 705. The dicta of Lord Alvanley, upon which the heirs at law much rely, do not, in the con- nection in which they were uttered, substan- tially differ from the general current of au- thority. Attorney General v. Boultbee, 2 Ves. Jr. 387, 388; Attorney General v. Whit- church, 3 Ves. 143, 144; Attorney General v. Minshull, 4 Ves. 14. By the opinion of Lord Eldon, formed after great doubt and hesitation, the principle has been held to extend to the case of a bequest of property to a person named, in trust for such charitable purposes, not otherwise de- scribed, as he should appoint. Moggridge v. Thackwell, 7 Ves. 96, 13 Ves. 416; Paice v. Archbishop of Canterbury, 14 Ves. 364; Mills V. Farmer, 19 Ves. 483, 1 Mer. 55. Such a trust has been held valid in this common- wealth, so far as to vest a title in the trustee as against the next of kin. Wells v. Doane, 3 Gray, 201. Whether, in case of his death, it could properly be administered by a court of chancery, without the aid of the preroga- tive power, need not be considered in this 104 PROPERTY IN EQUITY— TRUSTS. case. See Fontain v. Ravenel, 17 How. 387, 388; Moore v. Moore, 4 Dana, 366. i In most of the eases cited at the argument. In wlaieh the heirs at law were held to be en- titled to the property, the charitable gift nev- er took effect at all; either because it could not be carried out as directed, without vio- lating the mortmain act of 9 Geo. II., as in Jones V. WUliams, Amb. 651; Attorney Gen- eral V. Whitchurch, 3 Ves. 141, and Smith v. Oliver, 11 Beav. 481; or because the testator had in terms limited it to a special object which could not be accomplished at the time of his death; as in the case of a bequest to build a church in Wheatley, which could not be done without the consent of the bishop, and he refused (Attorney General v. Bishop of Oxford, 1 Brown, Ch. 444, note; Id., cited 2 Cox, Ch. 365; 2 Ves. Jr. 388; and 4 Ves. 431, 432); or of a direction to contract with the governors of a hospital for the purchase of a presentation of a boy to that charity, if the residuary assets should prove sufficient for that purpose, and they proved to be in- sufficient (Cherry v. Mott, 1 Mylne & C. 123). In Marsh v. Means, 3 Jur. (N. S.) 790, the testator gave a legacy, after the death of his wife, "for continuing the periodical publish- ed under the title of 'The Voice of Human- ity,' according to the objects and principles which are set forth in the prospectus con- tained in the third number of that publica- tion." "The Voice of Humanity" had been published quarterly by an association for the protection of animals, but no number had appeared for nearly a year before the date of the will. Upon the death of the widow twenty years later, Vice Chancellor Wood held that the gift was not to support the principles of the publication, but only the publication itself, and, the publication hav- ing ceased and the association perished, that the legacy lapsed. But he added, "It would, I think, have fallen within the description of charity, if this periodical had been subsisting at the date of the will, and afterwards ceas- ed. That would be simply a case where, the particular Intention having failed, the general Intention must be carried out." Two striking cases upon this subject have arisen in England under charities for the re- demption of captives. In the Case of Betton's Charity, Thomas Betton in 1723 bequeathed the residue of his estate to the Ironmongers' Company, in trust, "positively forbicVMng them to diminish the capital sum by giving away any part, or that the interest and profit arising be applied to any other use or uses than hereinafter mentioned and directed," namely, one half of the income yearly unto the redemption of British slaves in Turkey or Barbary, one fourth unto charity schools in the city and suburbs of London where the education is according to the church of England, and one 1 See, also, Lorings v. Marsh, 6 Wall. 337. fourth "unto necessitated decayed freemen of the company, their widows and children." The first half of the income of the fund greatly accumulated, few such slaves having been found for a century. Lord Brougham, reversing the decree of Sir John Leach, M. B., held that the court had jurisdiction to apply the surplus income of this moiety and its accumulations as near as might be to the intentions of the testator; laving regard to the bequest touching British captives, and also to the other charitable bequests in the will; and that the case should be referred back to the master to approve a proper scheme for such application. Attorney Gen- eral V. Ironmongers' Co., 2 Mylne & K. 576. Sir Christopher Pepys, M. K. (afterwards Lord Cottenham,) accordingly ordered it to be so referred. On the return of the master's report, Lord Langdale, M. R., approved a scheme to apply the whole fund to the sec- ond and third purposes declared in the will. 2 Beav. 313. Lord Chancellor Cottenham on appeal reversed this decree; and upon the ground that the testator had not limited the first charity, like the others, to persons in London, ordered the first moiety to be ap- plied to supporting and assisting charity schools in England and Wales, and referred it back to the master to settle a scheme for that purpose. Craig & P. 208. And this de- cree was afiirmed in the house of lords with the concurrence of Lord Chancellor Lynd- hurst, and Lords Brougham, Cottenham and Campbell. 10 Clark c& P. 908. In that case, though there were differences of opinion as to the details of the scheme, the jurisdiction of the court of chancery to frame one in such a case was thus affirmed by the deliberate judgments of five law lords; and all agreed that, for the purpose of ascertaining what was cy pres to the particular object which had failed, the court might look at all the charitable bequests in the will; applying in this respect the principle upon which Lord Bacon had acted more than two centuries before in the case of Bloomfield v. Stowe- market, above cited. But the case most like that now before ns is that of Lady Mico's Charity, Lady Mico, by her will made in 1670, gave a thousand pounds "to redeem poor slaves in what man- ner the executors should think most con- venient." This charity was established by decree in chancery in 1686. Upon an in- formation filed In 1827, after the fund had accumulated a hundred fold, it was referred to a master to approve of a scheme for the application of the income according to the will of the testatrix, or. If he should find that it could not be executed according to her will, then as near the intent of the will as could be, regard being had to the existing circum- stances and to the amount of the fund. The master, by his general report In 1835, stated that the relators had laid before him a scheme for applying the fund to the enfran- chisement of slaves in the British Colonies PROPERTY IN EQUITY— TRUSTS. :05- who were too poor to purchase their own freedom; which application, in consequence of St. 3 & 4 Wm. IV. c. 73, abolishing slavery (which took effect In 1834), had become im- practicable; that he was of opinion that the testatrix by her will contemplated the re- demption of poor slaves In the Barbary States, but that intention could not be car- ried into effect; and he approved a scheme to apply the capital and income in purchasing and building schcol-houses for the education of the emancipated apprentices and their is- sue, qualifying teachers, paying the salaries of masters and other expenses, and to apply the sui-plus rents to the support of any other schools, and generally in promoting educa- tion in the British Colonies. Sir Christopher Pepys, JI. R., confirmed this scheme by a de- cree; and, after he had become lord chan- cellor, stated the reasons to have been that "in this there was no restriction as to the description of slaves, or the countries in which the slaves were to be looked for;" that upon the reference to the master "it appeared that there were not within any part of the British dominions any poor slaves to be re- deemed, but that there were in the colonies many thousands of human beings from whom the odious appellation of slaves had been removed, but whose state was very far short of that of freemen, from whose bodies the chains of slavery had been struck, but whose minds and morals were still in that state of degradation which is inseparable from the unfortunate situation from which they had recently been in part rescued; it was proposed to the master to apply, and he approved of a scheme for the completion of that holy work, by assisting in the education of those poor beings. If, before the slavery abolition act, these funds could properly have been applied to procuring the redemption of slaves in the colonies, the proposed applica- tion for the benefit of the apprentices was doubtless cy pres to the intention of the donor." And his reason for not applying Betton's Charity in the same manner was that it was in terms limited to slaves in Tur- key or Barbary. Attorney General v. Gibson, 2 Beav. 317, note; Attorney General v. Iron- mongers' Co., Craig & P. 226, 227. There is no adjudication of this question by the supreme court of the United States. The dicta of Chief Justice Marshall in Bap- tist Ass'n V. Hart's Ex'rs, 4 Wheat. 1, were based upon an Imperfect survey of the au- thorities, were not required by the decision, and are hardly reconcilable with the more recent judgments of the same court; and that case, as well as Wheeler v. Smith, 9 How. 79, arose under the law of Virginia. Vidal v. Girard's Bx'rs, 2 How. 192; Perin v. Carey, 24 How. 501; Bartlett v. Nye, 4 Mete. (Mass.) 380; American Academy of Arts & Sciences V. President, etc., of Harvard College, 12 Gray, 593; 2 Kent, Comm. 287. In Fontain V. Ravenel, 17 How. 369, the testator author- ized his executors or the survivor of them to dispose of the residue of his estate "for the use of such charitable institutions in Pennsylvania and South Carolina, as they or he may deem most beneficial to mankind," and they died without appointing; and it was held that the title did not vest in the execu- tors as trustees, and that according to the English law the disposition would have been In the crown by sign manual. As Mr. Jus- lice McLean, delivering the opinion of the court, said: "Nothing short of the preroga- tive power, it would seem, can reach this case. There is not only uncertainty in the beneficiaries of this charity, but behind that is a more formidable objection. There is no expressed will of the testator. He Intended to speak through his executors or the sur- vivor of them, but by the acts of Providence this has become impossible. It is then as though he had not spoken. Can any power now speak for him, except the parens pat- rise?" The further remarks about the power of cy pres, if intended to cover a case in which the charitable purposes were described or indicated in the will, were upon a question not before the court. The separate opinion of Chief Justice Taney in Fontain v. Ravenel was but his own, based mainly upon that of Chief Justice Marshall in BaiDtist Ass'n v. Hart's Ex'rs. And it is impossible to avoid the inference that the impressions of both of those eminent magistrates were derived from the laws of Maryland and Virginia in which they had been educated, and by which St. 43 Eliz. has been expressly repealed, and chari- ties are not recognized as entitled to ans* favor, either in duration or construction, be- yond other trusts. Dashiell v. Attorney Gen- eral, 5 Har. & J. 392; Gallego v. Attorney General, 3 Leigh, 450. In North Carolina, the supreme court once declared that it had all the powers exercised by the English chan- cellor, either in the equity jurisdiction or un- der the sign manual; and since, rebounding from that extreme opinion, seems to have adopted the view of Maryland and Virginia. Griffin v. Graham, 1 Hawks, 96; McAuley v. Wilson; 1 Dev. Bq. 276; Holland v. Peck, 2 Ired. Eq. 255. There is a dictum to a like effect in Carter v. Balfour, 19 Ala. 830. So in New York, the court of appeals, after some division and vacillation of opinion in the course of the frequent changes in the composition of the court, has recently ad- judged that in that state the English law of charitable uses has been wholly abrogated by statute, and that charities are within the rule against perpetuities, and have no privi- leges about private trusts. Bascom v. Al- bertson, 34 N. Y. 584. On the other hand, the court of appeals of Kentucky, In an able judgment delivered by Chief Justice Robertson, marked the distinc- tion between the power exercised under the sign manual, and that inherent in the equity jurisdiction; and, after speaking of the for- mer as not judicial, added: "The cy pres doc- trine of England is not, or should not be, a 106 PROPERTY JX EQUITY— TRUSTS. judicial doctrine, except in one Ijind of case; and that is, where there is an available char- ity to an identified or ascertainable object, and a particular mode, inadequate, illegal or inappropriate, or which happens to fail, has been prescribed. In such case, a court of eq- uity may substitute or sanction any other mode that may be lawful and suitable and will efCectuate the declared intention of the donor, and not arbitrarily and in the dark, presuming on his weakness or wishes, de- clare an object for him. A court may act ju- dicially as long as it effectuates the lawful intention of the donor." Moore v. Moore, 4 Dana, 366. See, also, Gass v. Wilhite, 2 Dana, 177; Curling v. Curling, 8 Dana, 38. The power of cy pres, which was declared by the supreme court of Pennsylvania in Metho- dist Church V. Remington, 1 Watts, 226, and Witman v. Lex, 17 Serg. & R. 93, not to ex- ist in that state, was the power exercised un- der the sign manual in case of a gift to super- stitious uses, or of an expression of general intention to devote a sum to charitable pur- poses not designated. In a very recent case, the same court said: "The rule of equity on this subject seems to be clear, that when a definite charity is created, the failure of the particular mode in which it is to be effectu- ated does not destroy the charity; for equity will substitute another mode, so that the sub- stantial intention shall not depend ~ )on the formal intention." "And this is the doctrine of cy pres, so far as it has been expressly adopted by us" — "a reasonable doctrine, by which a well defined charity, or one where the means of definition are given, may be enforced in favor of the general intent, even where the mode or means provided for by the donor fail by reason of their inadequacy or unlawfulness." Philadelphia v. Girard, 45 Pa. St. 27, 28. Like principles have been maintained in South Carolina and Illinois. Attorney General v. Jolly, 1 Rich. Eq. 99, 2 Strob. E'q. 395; Gilman v. Hamilton, 16 III. 231. The existence of a judicial power to ad- minister a charity cy pres where the ex- pressed intention of the founder cannot be exactly carried out has been either counte- nanced or left an open question in all the New England states except Connecticut Burr v. Smith, 7 Vt. 287, 288; Second Con- gregational Soc. V. First Congregational Soc, 14 N. H. 330; Brown v. Concord, 33 N. H. 296; Derby v. Derby, 4 R. I. 439; Tappan v. Deblo's, 45 Me. 131; Howard v. American Peace Soc, 49 Me. 302, 303; Treat's Appeal, 30 Conn. 113. See, also, 2 Redf. Wills, 815, note; McCord v. Ochiltree, 8 Blackf. 15; Beall v. Fox, 4 Ga. 427; Chambers v. St. Louis, 29 Mo. 590, 592; Lepage v. Macnamara, 5 Iowa, 146; Mclntyre v. Zanesville, 17 Ohio St. 352. The narrow doctrines which have prevailed in some states upon this subject are incon- sistent with the established law of this com- monwealth. Our ancestors brought with them from England the elements of the law of charitable uses, and, although the form of proceeding by commission under St. 43 Eliz. has never prevailed in Massachusetts, that statute, in substaxice and principle, has al- ways been considered as pait of our common law. 4 Dane, Abr. 6, 239; Earle v. Wood, 8 Gush. 445. Under the Colony charter, chari- ties were regulated and administered, accord- ing to the intent of the donors, under the di- rection of the general court, the court of as- sistants, and the county courts; and under the Province charter, although no court was vested with equity jurisdiction, charitable bequests were not the less valid. Anc. Chart. 52; Drury v. Natick, 10 Allen, 180, 181, and authorities cited; Winslow v. Trowbridge, stated in 11 Allen, 459, 460. 'The English mortmain act of 9 Geo. II. c. 36, did not ex- tend to Massachusetts; and the similar pro- vision in Prov. St. 28 Geo. II. e. 9, was re- pealed immediately after our Revolution by St. 1785, c. 51. Odell v. Odell, 10 Allen, 6. Charities are held not to be within the com- mon rule limiting perpetuities and accumula- tions. Dexter v. Gardner, 7 Allen, 243; Odell V. Odell, 10 Allen, 1. Charitable bequests to an unincorporated society here, to a foreign corporation or society, or to a particular re- ligious denomination in a certain county, have been carried into effect, even where no trustees have been named in the will. Bur- bank V. Whitney, 24 Pick. 146; Bartlett v. Nye, 4 Mete. (Mass.) 378; Washburn v. Se- wall, 9 Mete. (Mass.) 280; Universallst See. v. Fitch, 8 Gray, 421. See, also, Wells v. Doane, 3 Gray, 201; Saltonstall v. Sanders, 11 Allen, 446. The intention of the testator is the guide, or, in the phrase of Lord Coke, the lodestone, of the court; and therefore, whenever a char- itable gift can be administered according to his express directions, this court, like the court of chancery in England, is not at lib- erty to modify it upon considerations of pol- icy or convenience. Harvard College v. So- ciety for Promoting Theological Education, 3 Gray, 280; Baker v. Smith, 13 Mete. (Mass.) 34; Trustees of Smith Charities v. Inhabitants of Northampton, 10 Allen, 498. But there are several cases, where the charitable trust could not be executed as directed in the will, in which the testator's scheme has been var- ied by this court in such a way and to such an extent as could not be done in the case of a private trust Thus bequests to a par- ticular bible society by name, whether a cor- poration established by law or a voluntary association, which had ceased to exist before the death of the testator, have been sustain- ed, and applied to the distribution of bibles through a trustee appointed by tlie court for the purpose. Winslow v. Cummings, 3 Cush. 358; Bliss v. American Bible Soc, 2 Allen, 334. At a time when the general chancery jurisdiction of this court over trusts was limited to those arising under deeds and wills, the legislature by a special statute authoriz- ed it to hear and determine in equity any niOPERTY IN EQUITY— TRUSTS. 107 and all matters relating to a certain gift to a scientific corporation, to be invested in a cer- tain manner, and paid in premiums for dis- coveries or improvements on heat or light published in America within two years be- fore each award. Upon a bill beuig filed, and it appearing that it had become impracticable to carry out the intent of the donor in the mode prescribed. Chief Justice Shaw author- ized a different investment of the fund; and, in accordance with a scheme reported by a master, authorized the corporation lo fipply the surplus income, after paying such pre- miums, to purchasing books, papers and phil- osophical apparatus, and making such pub- lications or 1 ocuring such lectures, experi- ments or investigations as should facilitate and encourage the making of such discoveries and Improvements; and said: "Whenever it appears that a general object of charity is intended, and the purpose is not unlawful and void, the right of the heir at law is di- vested." "It is now a settled rule in equity that a liberal construction is to be given to charitable donations, with a view to promote and accomplish the general charitable intent of the donor, and that such intent ought to be observed, and when this cannot be strictly and literally done, this court will cause It to be fulfilled as nearly in conformity with the intent of the donor as practicabla Where the property thus given is given to trustees capable of taking, but the property cannot be applied precisely in the mode directed, the court of chancery interferes, and regu- lates the disposition of such property under its general jurisdiction on the subject" of trusts, and not as administering a branch of the prerogative of the king as parens pa- trise." "What is the nearest method of car- rying into effect the general intent of the donor must of course depend upon the sub- ject matter, the expressed intent, and the other circumstances of each particular case, upon all of which the court is to exercise its discretion." American Academy v. Harvard College, 12 Gray, 582. The same principle was also recognized or assumed in 4 Dane, Abr. 242, 243, in Sanderson v. White, 18 Pick. 333, and other cases already cited. Baker v. Smith, 13 Mete. (Mass.) 41; Harvard College V. Society for Promoting Theological Educa- tion, 3 Gray, 282, 298; Trustees of Smith Charities v. Inhabitants of Northampton, 10 Allen, 501, 502. By Gen. St. c. 113, § 2, this court may hear and determine in equity all suits and proceedings for enforcing and regulating the execution of trusts, whether the trusts relate to real or personal estate, "and shall have full equity jurisdiction, according to the us- age and practice of courts of equity, in all other cases, where there is not a plain, ad- equate and complete remedy at law." The powers usually exercised by the court of chan- cery in the course of its jurisdiction in equity have thus been expressly conferred upon this court by the legislature. The authority of ad- ministering a charitable trust according to the expressed intention of the donor, and, when that cannot be exactly followed, then as nearly as possible, is a part of this juris- diction, which the court is not at liberty to decline. The only question is, whether the facts of the case show a proper occasion for its exercise according to the settled practice in chancery. In all the cases cited at the argument, in which a charitable bequest, which might have been lawfully carried out under the circum- stances existing at the death of the testator, has been held, upon a change of circumstan- ces, to result to the heirs at law or residuary legatees, the gift was distinctly limited to particular persons or establishments. Such was Russell v. Kellett, 3 Smale & G. 264, in which the gift was of five pounds out- right to each poor person of a particular de- scription in certain parishes, and Vice Chan- cellor Stuart held that the shares of those who died before receiving them went to the residuary legatees. Such, also, was Clark v. Taylor, 1 Drew. 642, in which it was held that a legacy to a certain orphan school by name, which ceased to exist after the death of the testator, failed and fell into the resi- due of the estate; and which can hardly be reconciled with the decisions in Incorporated Soc. V. Price, 1 Jones & L. 498, 7 Ir. Eq. 260; In re Clergy Society, 2 Kay & J. 615; Marsh v. Attorney General, 2 Johns. & H. 61; Winslow v. Cummings, 3 Cush. 358, and Bliss V. American Bible Soc, 2 Allen, 334. So in Easterbrooks v. Tillinghast, 5 Gray, 17, the trust was expressly limited, not only in object, but in duration, to the maintenance of the pastor of a certain church of a speci- fied faith and practice in a particular town, "so long as they or their successors shall maintain the visibility of a church in said faith and order;" and could not have been held to have terminated, had it not been so limited. Attorney General v. Columbine, Boyle, Char. 204, 205; Potter v. Thurston, 7 R. I. 25; Dexter v. Gardner, 7 Allen, 243. The charitable bequests of Francis Jackson cannot, in the opinion of the court, be re- garded as so restricted in their objects, or so limited in point of time, as to have been terminated and destroyed by the abolition of slavery in the United States. They are to a board of trustees for whose continuance care- ful provision is made in the will, and which the testator expresses a wish may become a permanent organization and may receive the services and sympathy, the donations and be- quests, of the friends of the slave. Their dm'ation is not in terms limited, like that of the trust sought to be established in the sixth article of the will, by the accomplish- ment of the end specified. They take effect from the time of the testator's death, and might then have been lawfully applied in exact conformity with his expressed inten- tions. The retaining of the funds in the cus- tody of the court while this case has been 108 PKOPERTY IN EQUITY— TRUSTS. tinder adTisement cannot affect the question. The gifts being lawful and charitable, and having once vested, the subsequent change of circumstances before the funds have been actually paid over is of no more vyeight than if they had been paid to the trustees and been administered by them for a century be- fore slavery was extinguished. Neither the immediate purpose of the tes- tator—the moral education of the people; nor his ultimate object— to better the condition of the African race in this country; has been fully accomplished by the abolition of slav- ery. Negro slavery was recognized by our law as an infraction of the rights inseparable from human nature; and tended to promote idle- ness, selfishness and ■ tyranny in one part of the community, a destruction of the domestic relations and utter debasement in the other part. The sentiment which would put an end to It is the sentiment of Justice, humanity and charity, based upon moral duty, inspired by the most tamiliar precepts of the Chris- tian religion, and approved by the constitu- tion of the commonwealth. The teaching and diffusion of such a sentiment are not of tem- porary benefit or necessity, but of perpetual obligation. Slavery may be abolished; but to strengthen and confirm the sentiment which opposed it will continue to be useful and desirable so long as selfishness, cruelty, the lust of dominion, and indifference to the rights of the weak, the poor and the ignorant, have a place In the hearts of men. Looking at the trust established by the fourth article of this will as one for the moral educjption of tlie people only, tlie ease *s within the principle of those, already cited, in which charities for the relief of leprosy and the plague were held not to end with the disap- pearance of those diseases; and is not es- sentially different from that of Attorney Gen- eral V. Baliol College, In. which a trust for the education at Oxford of Scotch youths, to be sent into Scotland to preach Episcopalianism in the established church there, was applied by Lords Somers and Hardwicke and their successors to educate such youths, although, by the change of faith and practice of the Church of Scotland, the donor's ultimate ob- ject could no longer be ■accomplished. The intention of Francis Jackson to benefit the negro race appears not only in the lead- ing clause of the fourth article, and in his expression of a hope that his trustees might receive the aid and the gifts of the friends of the slave, but in the trust for the benefit of fugitive slaves in the fifth article of the will, to which, according to the principle es- tablished by the house of lords in the Case of Betton's Charity, resort may be had to ascer^ tain his intent and the fittest mode of carry- ing it out. The negroes, although emancipat- ed, still stand in great need of assistance and education. Charities for the relief of the poor have been often held to be well applied to educate them and their children. Bishop of Hereford v. Adams, 7 Ves. 324; Wilkinson V. Malin, 2 Cromp. & J. 636, 2 Tyrw. .544; Anderson V. Wrights of Glasgow, 12 L. T. (N. S.) 807. The Case of Mico Charity is directly to the point that a gift for the re- demption of poor slaves may be appropriated, after they have been emancipated by law, to educate them; and the reasons given by Lord Cottenham for that decision apply with no less force to those set free by the recent amendment of the constitution in the "United States, than to these who were emancipated by act of parliament in the West Indies. The mode in which the funds bequeathed by the fourth and fifth . articles of the will may be best applied to carry out in a lawful manner the charitable intents and purposes of the testator as nearly as possible must be settled by a scheme to he framed by a master and confirmed by the court before the funds are paid over to the trustees. In doing this, the court does not take the charity out of the hands of the trustees, but only declares the law which must be their guide in its administration. Shelf. Mortm. 651-654; Boyle, Char. 214—218. The case Is therefore to be referred to a master, with liberty to the attorney general and the trustees to sub- mit schemes for his approval; and all further d'ireetlons are rtvserved until the coming in of his report. Case referred to a master. The case was then referred to John Cod- man, Esquire, a master in chancery for this county, who, after notice to the trustees and th& attorney general, and hearing the parties, made his report, the results of which were approved by the attorney general; and upon exceptions to which the ease was argued by W. Phillips for himself and other excepting tiTistees, and by J. A. Andrew in support of the master's report, before Gray, J., with the agreement that he should consult the whole court before entering a final decree. No account was asked by any party of sums alTeady expended by the trustees. As to the bequest in the fifth article, the master reported that the unexpended balance (amounting to $1049.90) was so small that it was reasonable that it should be confined to a limited territory; and that it should there- fore be applied by the trustees, in accordance with their unanimous recommendation, to the use of necessitous persons of African descent in the city of Boston and its vicinity. This scheme M'as approved and confirmed by the court, with this addition: "Preference being given to such as have escaped from slavery." As to the sum bequeathed in the fourth arti- cle of the will, the master reported that a portion had been expended by the trustees before any question arose as to its validity; and that but two schemes had been suggest- ed to him for the appropriation of the residue, namely, first, (which was approved by four of the seven trustees who had accepted the trust,) in part to the support of the Anti- PBOPERTY IN EQUITY— TRUSTS. 109 Slavery Standard, and in part to the New England Branch of the American Freedmen's Union Commission; or, second, (which was approved by the remaining trustees,) that the whole should be applied to the last named ob- ject. The master- disapproved of the first of these schemes; and reported that the Anti-Slavery Standard was a weekly newspaper published in the city of New York with a circulation of not more than three thousand copies, which was established nearly thirty years ago for the purpose of acting upon public opinion in favor of the abolition of slavery; that in his opinion, since the abolition of slavery, and the passage of the reconstruction acts of con- gress, "the support of a paper of such limit- ed circulation as hardly to be sdf-sustainijig would do very little for the benefit of the col- ored people in their present status, and its direct influence would be almost impercepti- ble on the welfare of that class most nearly corresponding to those whom the testator had in view in making this bequest;" and that the argument, that it was evidently the intention of the testator to accomplish the object indi- cated in the fourth article of his will by means of which a newspaper like this might be considered an example, was answered by the fact that the object for which these means were to be used had been already accom- plished without them. The master returned with his report a few numbers of the Anti- Slavery Standard, (taken without selection as they were given to him by the chairman of the trustees,) by which it appeared that it was in large part devoted to urging the passage of laws securing to the freedmen^ equal political rights- with the whites, the keeping of the southern states under military government, the impeachment of the president, and other political measures. The master reported that he was unable to devise any better plan than the second scheme suggested; that this mode of appro- priation was in his opinion most in accord- ance with the intention of the testator as ex- pressed In the fourth article of the will, be- cause the intention nearest to that of eman- cipating the slaves was by educating the emancipated slaves to render them capable of self-government; and this could best be done bj' an organized society, expressly intended and exactly fitted for this function, and which, if the whole or any part of this fund was to be applied to the direct education and sup- port of the freedmen, was admitted at the hearing before him to be the fittest channel for the appropriation. The master returned with his report printed documents by which it appeared that the object of the American Freedmen's Union Commission, as stated in its constitution, was "the relief, education and elevation of the freedmen of the United States, and to aid and cooperate with the peo- ple of the South, without distinction of race or color, in the improvement of their condi- tion, upon the basis of industry, education, freedom and Christian morality;" and that the New England and other branches of the commission were now maintaining large num- bers of teachers and schools for this purpose throughout the southern states. The master accordingly reported that what remained of the fund bequeathed by the fourth article of the will should be "ordered to be paid over to the New England Branch of the Freedmen's Union Commission, to be employed and expended by them in promoting the education, support and interests generally of the freedmen (late siares) in the states of this Union recently Ln rebellion." And this scheme was by the opinion of the whole court accepted and confirmed, modified only by di- recting the esJecutor to pay the fund to the trustees, to be by them paid over at such times and in such sums as they in their dis- cretion might think fit to the treasurer of the branch commission; and by substituting for the words "recently in rebellion" the words "in which slavery has been abolished, either by the proclamation of the late President Lin- coln or the amendment of the constitution." Final decree accordingly. 110 PEOPERTY IN EQUITY— TRUSTS. HOLLAND et al. v. ALCOCK et al. (16 N. E. 305, 108 N. Y. 312.) Court 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 Oilman 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 or ascertainable living person has, or ever caib 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 i^evy v. Levy, 33; PBOPEKTT IN EQUITY— TRUSTS. Ill N. T. 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 tmst now under re- view is not Yoid according to the general rules of law for want of a defined beneflciaiy, be- cause the trust is for the purpose of having prayers offered 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 case 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 jnajority 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 the 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 ttf 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 difliculty 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; bj' 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 by 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- 112 PROPERTY IN EQUITY— TRUSTS. 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 indefl- 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 deci'ee 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- emnized 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 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 ariyes. 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 depfend 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 own 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 bold as trustee to withhold the property from the legal representatives of the alleged donor. A merely nominal ti'ust, in the performance of which no ascer- tainable person has any interest, and which PROPERTY IN EQUITY— TRUSTS. 113 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 rules of law upon this subject, and that the bequest now under consideration is of tliat 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-prSs 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 Ck)oke'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 HUTCH.EQ.JDH. — 8 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 charitiartner- ship's continuance. The property belonging to the firm, and which will be prejudiced by the prospect of disposing of it at a sacrifice at the close of the existing lease, is large and valuable. Common justice and a due regard to rules of public policy demand that the renewal lease should be declared to belong to the firm, and that the defendant should be re- quired to account to the plaintiff for his por- tion of its value. The clauses in the leases to Read that there shall be no assignment without the consent of the landlord do not stand in the way of the plaintiff's relief. This does not consist in an assignment in the ordinary sense of that term. On the con- trary, the ground of relief is that the defend- ant acted inequitably when he entered into the contract; that he must therefore be con- sidered as a trustee, while the assignment to the firm simply follows as an Incident to the giving complete effect to the trust relation declared by the court to exist between the parties. Featherstonhaugh v. Fenwick, su- pra. The judgment must be reversed, and a new trial ordered. All concur; KEYNOLDS, C, not sitting. Judgment reversed. 136 PROPERTY IN EQUITY— TRUSTS. NEWTON T. PORTER et al. (69 N. Y. 133.) Court of Appeals of New York. March 27, 1877. Action to recover proceeds of stolen bonds. There was a judgment for plaintiff, from which defendants appealed. M. Goodrich, for appellants. M. M. Wa- ters, for respondent. ANDREWS, J. This is an equitaWe action brought to establish the right of the plaintiff to certain securities, the proceeds of stolen bonds, and to compel the defendants to ac- count therefor. In March, 1869, the plaintiff was the owner of $13,000 of government bonds, and of a rail- road bond for $1,000, negotiable by delivery, which, on the 12th of March, 1869, were stol- en from her, and soon afterward $11,500 of the bonds were sold by the thief and his con- federates, and the proceeds divided between them. William Warner loaned a part of his share in separate loans and took the promis- sory notes of the borrower therefor. George Warner invested $2,000 of his share in the purchase of a bond and mortgage, which was assigned to his wife Cordelia without consid- eration. In January, 1870, William Warner, George Warner, Cordelia Warner and one Lusk were arrested upon the charge of stealing the bonds, or as accessories to the larceny, and were severally indicted in the county of Cort- land. The Warners employed the defendants, who are attorneys, to defend them In the criminal proceedings, and in any civil suits which might be instituted against them in re- spect to the bonds, and to secure them for their services and expenses, and for any lia- bilities they might incur in their behalf; Wil- liam Warner transferred to the defendants Miner and Warren promissory notes taken on loans made by him out of the proceeds of the stolen bonds, amounting to $2,250 or there- abouts, and Cordelia Warner, for the same purpose, assigned to the defendant Porter the bond and mortgage above mentioned. The learned judge at special term found that the defendants had notice at the time they received the transfer of the securities, that they were the avails and proceeds of the stolen bonds, and directed judgment against them for the value of the securities, it appear- ing on the trial that they had collected or dis- posed of them and received the proceeds. The doctrine upon which the judgment in this case proceeded, viz.: that the owner of negotiable securities stolen and afterward sold by the thief may pursue the proceeds of the sale in the hands of the felonious taker or his assignee with notice, through whatever changes the proceeds may have gone, so long as the proceeds or the substitute therefor can be distinguished or identified, and have the proceeds or the property in which they were invested subjected, by the aid of a court of equity, to a lien and trust in his favor for the purposes of recompense and restitution, is founded upon the plainest principles of jus- tice and morality, and is consistent with the rule in analogous cases acted upon in courts of law and equity. It is a general principle of the law of personal property that the title of the owner cannot be divested without his consent. The purchaser from a thief, how- ever honest and bona fide the purchase may have been, cannot hold the stolen chattel against the true proprietor, but the latter may follow and reclaim it wherever or in whoseso- ever hands it may be found. The right of pursuit and reclamation only ceases when its identity is lost and further pursuit is hope- less; but the law still protects the interest of the true owner by giving him an action as for the conversion of the chattel against any one who has interfered with his dominion over it, although such interference may have been innocent in intention and under a claim of right, and' in reliance upon the title of the fe- lonious taker. The extent to which the com- mon law goes to protect the title of the true owner has a striking illustration in those cases in which it is held that where a willful trespasser converts a chattel into a different species, as for example, timber into shingles, wood into coal, or corn into whisky, the prod- uct in its improved and changed condition be- longs to the owner of the original material. Silsbury v. McCoon, 8 N. Y. 380, and cases cited. The rule that a thief cannot convey a good title to stolen property has an exception in case of money or negotiable securities transferable by delivery, which have been put into circulation and have come to the hands of bona fide holders. The right of the owner to pursue and reclaim the money and securi- ties there ends, and the holder is protected in his title. The plaintifl: was in this position. The bonds, with the exception stated, had, as the evidence tends to show, been sold to bona fide purchasers, and she was precluded from following and reclaiming them. The right of the plaintiff in equity to have the notes and mortgage while they remained in the possession of the felons or of their as- signees with notice, subjected to a lien and trust in her favor, and to compel their trans- fer to her as the equitable owner, does not, we think, admit of serious doubt. The plain- tiff, by the sale of the bonds to bona fide purchasers, lost her title to the securities. She could not further follow them. She could maintain an action as for a conversion of the property against the felons. But this remedy in this case would be fruitless, as they are wholly insolvent. Unless she can elect to regard the securities in which the bonds were Invested as a substitute, pro tanto, for the bonds, she has no effectual remedy. The thieves certainly have no claim to the securities in which the proceeds of the bonds were invested as against the plaintiff. They, without her consent, have disposed of her property, and put it beyond PROPEUTY IN EQUITY— TRUSTS. 137 her reacli. If tlie avails remained In their hands, in money, the direct proceeds of the sale, can it be doubted that she could reach it? It is not necessary to decide that in the case supposed she would have the legal title to the money, but if that question was in- volved in the case I should have great hesi- tation in denying the proposition. That she could assert an equitable claim to the money I have no doubt. And this equitable right to follow the proceeds woiild continue and attach to any securities or property in which the proceeds were invested, so long as they could be traced and identified, and the rights of bona fide purchasers had not intervened. In Taylor v. Flumer, 3 JIaule & S. 562, an agent, intrusted with a draft for money to buy exchequer bills for his principal, re- ceived the money and misapplied it by pur- chasing American stocks and bullion, intend- ing to abscond and go to America, and ab- sconded, but was arrested before he quitted England, and surrendered the securities and bullion to his principal, who sold them and received the proceeds. It was held that the Iirincipal was entitled to withhold the pro- ceeds from the assignee in bankruptcy of the agent, who became bankrupt on the day he received and misapplied the money. Lord EUenborough, in pronouncing the opinion in that case, said: "It makes no difference. In reason or law, into what other form differ- ent from the original the change may have been made, whether it be into that of prom- issory notes for the security of money pro- duced on the sale of the goods of the princi- pal, as In Scott v. Surman, Willes, 400, or Into other merchandise, as in Whitecomb v. Ja- cob, Salk. 160, for the product or substitute for the original thing still follows the na- ture of the thing itself so long as it can be ascertained to be such, and the right only ceases when the means of ascertainment fails." If, in the case now under consideration, the plaintiff had Intrusted the Warners with the possession of the bonds, and they had sold them In violation of their duty, for the purpose of embezzling the proceeds, and in- vested them in the notes and mortgage in question, the plaintiff could, within the au- thority of Taylor v. Plumer, have claimed them while in their hands, or in the hands of their assignees with notice, and would be adjudged to have the legal title. In courts of equity the doctrine is well settled and is uniformly applied that when a person, standing In a fiduciary relation, misapplies or converts a trust fund into an- other species of property, the beneficiary will iDe entitled to the property thus acquired. The jurisdiction exercised for the protection ■of a party defrauded by the misappropria- tion of property, in violation of a duty, ow- ing by the party making the misappropria- tion, is exceedingly broad and comprehen- ■sive. The doctrine Is illustrated and applied inost frequently in cases of trusts, where trust moneys have been, by the fraud or violation of duty of the trustee, diverted from the purposes of the trust and converted into other property. In such case a court of equitj" will follow the trust fund into the property into which It has been converted, and appropriate it for the indemnity of the beneficiary. It Is immaterial in what way the change has been made, whether money has been laid out in land, or land has been turned into money, or how the legal title to the converted property may be placed. Eq- uity only stops the pursuit when the means of ascertainment fail, or the rights of bona fide purchasers for value without notice of the trust, have intervened. The relief will be moulded and adapted to the circumstan- ces of the case, so as to protect the inter- ests and rights of the true owner. Lane v. Dighton, Amb. 409; Mansell v. Mansell, 2 P. Wms. 679; Lench v. Lench, 10 Ves. 511; I-ewis V. Madocks, 17 Ves. 56; Perry, Trusts, § 829; Story, Eq. Jur. § 1258. It is insisted by the counsel for the defend- ants that the doctrine which subjects prop- erty acquired by the fraudulent misuse of trust moneys by a trustee to the infiuence of the trust, and converts It into trust property and the wrong-doer into a trustee at the elec- tion of the beneficiary, has no application to a case where money or property acquired by felony has been converted Into other prop- erty. There is. It is said, in such cases, no trust relation between the owner of the stol- en property and the thief, and the law will not imply one for the purpose of subjecting the avails of ttie stolen property to the claim of the owner. It would seem to be an anom- aly in the law If the owner who has been de- prived of his property by a larceny should be less favorably situated in a court of eq- uity. In respect to his remedy to recover It, or the property into which it had been con- verted, than one who by an abuse of trust has been injured by the wrongful act of a trustee to whom the possession of trust prop- erty has been confided. The law in such a case will raise a trust in invitum out of the transaction, for the very purpose of subject- ing the substituted property to the purposes of indemnity and recompense. "One of the most common cases," remarks Judge Story, "in which a court of equity acts upon the groui.d of implied trusts In invitum, Is when a party receives money which he cannot con- scientiously withhold from another party." Story, Eq. Jur. § 1255. And he states it to be a general principle that "whenever the property of a party has been wrongfully misapphed, or a trust fund has been wrong- fully converted into another species of prop- erty, If Its Identity can be traced, it will be held in Its new form liable to the rights of the original owner, or the cestui que trust." Id. § 1258. See, also, Hill, Trustees, p. 222. We are of opinion that the absence of the conventional relation of trustee and cestui que trust between the plaintiff and the War- 138 PROPERTY IN EQUITY— TRUSTS. ners is no obstacle to giving the plaintiff tlie benefit of the notes and mortgage, or the proceeds in part of the stolen bonds. See Bank of America v. Pollock, 4 Edw. Ch. 215. It is however strenuously Insisted that the defendants had no notice when they received tlie securities that they were the avails or proceeds of the bonds. That if they had no- tice they would stand in the position of their assignors, and that the property in their hands would be affected by the same equi- ties as if no transfer had been made, is not denied. Murray v. Ballou, 1 Johns. Ch. 566; Hill, Trustees, p. 259. The learned judge at special term found as has been stated, that the defendants had notice of the larceny of the bonds, and the use made of the money arising from their sale, at the time they re- ceived the notes and mortgage. The duty of this court upon the question of notice is limited to the examination of the case, with a view of ascertaining whether there was evidence to support the finding of fact. If such evidence exists, the finding of the trial judge is conclusive. We have examined with much care the voluminous record before us, and are of opin- ion that the finding is sustained by the evi- dence. The testimony was conflicting. The circumstances under which the defendants took the transfer of the securities were cer- tainly unusual, and the facts then known by the defendants were calculated to create a strong presumption that the notes and mort- gage came from investments of the stolen property. It was for the trial court to weigh the testimony, and in the light of all the facts developed on the trial, to determine the question of notice. It would be a use- less labor to collate the testimony on this subject, and we content ourselves with stat- ing our conclusion, that the finding was war- ranted by the evidence. The objection to the evidence, under a com- mission issued to William Jessup of Mon- trose, Pennsylvania, and which was execut- ed by William H. Jessup as commissioner was, we think, properly overruled. In sup- port of the objection, one of the defendants testified that he resided at Montrose in 1858, and that at that time two attorneys resided there, named respectively William and Wil- liam H. Jessup, and an offer was made to prove that the judge who granted the order for the commission consulted a register of at- torneys in which both names appeared, and selected the name of William Jessup, and in- serted it in the order. The commission was executed two years and a half before the trial. It does not appear at what time it was returned to the clerk, but the presump- tion is that it was returned within a reason- able time after its execution. The objection that the commission was not executed by the person intended was not made until the evidence taken under It was offered on the trial. That the defendants were apprised of the facts upon which the objection was founded before the trial is quite evident Prima facie a commission directed to a person, omitting any mention of a middle name, and returned executed by a person of the same name, with the addition of a mid- dle name, is executed by the person named in the order. Franklin v. Talmadge, 5 Johns. 84. The ruling of the judge, in respect to the objection made to the commission, was clearly in furtherance of justice. The de- fendant had ample opportunity to raise the objection to the commission before the trial by a motion to suppress, and it should not be permitted that a party may lie by, and spring an objection of this kind on the trial for the first time, when the other party may be unable to meet it by proof, and when there is no opportunity to issue a new com mission, or send it back to be executed by the proper person. It Is we think a whole- some rule that objections to the execution of a commission where the party has an op- portunity to make them before the trial, should be raised by motion, and if not raised in that way when such opportunity exists, they should be deemed to have been waived. Whether such objection is to formal defects merely, or as in this case goes to the right of the person who executed the commission to act as commissioner, makes, we think, no difference in the application of the rule, if the fact of disqualification is known to the party who seeks to exclude the evidence a sufficient time before the trial, to enable him to make his motion. See Kimball v. Davis, 19 Wend. 438; Sturm v. Atlantic Mut. Ins. Co.. 6.3 N. Y. 77; Drury v. Foster, 2 Wall. 3.3; Sheldon v. Wood, 2 Bosw. 267; Zellweger v. Gaffe, 5 Duer, 100. The judgment should be affirmed. All concur. Judgment affirmed. PROPEETY IN EQUITY— TRUSTS. 139 McLEOD V. EVANS, Assignee, etc. (28 N. W. 173, 214, 66 Wis. 401.) Supreme Court of Wisconsin. May 15, 1886. Appeal from circuit court, Grant county. A. W. & W. E. Bell, Bushnell & Watkins, and J. W. Murphy, for appellant, Robert E. McLeod. Caiter & Cleary, for respondent, Jonathan H. Evans, assignee, etc. COLE, C. J. This is a suit in equity to re- cover in full from the defendant, who is an assignee of one Hodges, the proceeds of a draft of $1,500. The first most serious ques- tion of law we have to consider arises upon these facts found by the leai-ned circuit court: The plaintiff had a draft for $1,500, drawn on the Ninth National Bank of New York City. Desiring to cash this draft, he went to the bank of Mr. Hodges, in the city of Platteville, on the thirtieth of January, 1884, to get the money upon it. Hodges told him that he was not in funds at the time so as to cash the draft, but said he would collect it for him. Thereupon the plaintiff left with Hodges the draft for collection, and took a receipt, which reads as follows: "Platteville, Wis. 1-30-84. By Robert B. McLeod, for collection. Cur- rency, ; coin, ; checks, . Ninth National, New York. $1,500. O. F. Griswold, Cashier." Mr. Hodges told the plaintiff to return in a week, when he ex- pected the money would be there for him; that at the end of the week the plaintiff came to the bank, but was informed by Hodges that the money had not yet come from the Xinth National Bank of New York; that it took some time to make collections of this kind; whereupon the plaintiff went away, and did not again return until after Hodges had suspended banking business, which was on the evening of the eighth of February, 1884; that as a matter of fact the draft was not sent by Hodges to the Ninth National Bank of New York for collection, but was sent to the National Bank of America, Chi- cago, with which bank Hodges did his busi- ness in that city. The Chicago bank did not, for such draft, send the cash to Mr. Hodges, but gave him credit for the amount on its books, and Mr. Hodges drew on that bank, after this, drafts, which were cashed by the bank; and that at the time Hodges suspend- ed banking business there was nothing due him from the Chicago bank. It is admitted that on the eleventh of February, 1884, Hodges assigned to the defendant all his property for the benefit of his creditors. Among the assets, there was $500 cash in Hodges' bank which came to the hands of the defendant, but it does not appear that this sum was a part of the proceeds of the $1,500 draft. Now, the first question upon this state of facts is, does the plaintiff stand upon the same ground as the other creditors of Hodges in respect to the estate in the hands of the assignee, or has he a paramount right to be paid first out of such assets? The argument of the plaintiff's counsel in support of his superior right in equity is briefly this: That the collection of the draft was a trust assum- ed by Hodges; that neither the draft nor its proceeds belonged to him; that it was his plain duty to collect it, and keep its proceeds separately, and deliver them to the plaintiff when demanded; that it was a gross fraud on his part not to do so; that he knew when he received the draft for collection he was in failing circumstances, and largely insolvent; that the testimony indisputably shows that it was a mere pretense that he had sent the draft to New York for collection; that he really had the avails of it when the plaintiff called for his money at the end of the week as he was directed to do, and was told that it had not come. It is said the relation be- tween Hodges and the plaintiff was not that of debtor and creditor, but that a fiduciary relation existed between them; that the pro- ceeds of the draft was a trust fund in his hands which did not belong to him, and which the assignee could not take as a part of his estate. Counsel says that "the gener- al proposition which is maintained, both at law and in equity, upon this subject is that if any property, in its original state and form, is covered with a trust in favor of the princi- pal, no change of that state and form can divest it of such trust, or give the agent or trustee converting it, or those who represent him in any right, (not being bona fide pur- chasers for a valuable consideration, without notice,) any more valid claim in respect to it than they respectively had before such change. An abuse of a trust can confer no rights on the party abusing it, or those who claim in privity with him." 2 Story, Bq. Jur. § 1258; Snell, Eq. Prac. 155. The counsel on the other side does not chal- lenge the correctness of this argument, or the soundness of the principle of law relied on, but he says they have no just application to the facts here, because the proceeds of the draft cannot be traced to, or identified in re- spect to, any property which has come to the hands of the assignee. Consequently, he says the plaintiff's claim is simply this: be- cause he left his draft for collection with the assignor, which the latter wrongfully conven- ed, that this gives him a lien in equity upon the general property of the wrong-doer for its value. The able counsel frankly admits if the proceeds of the draft had been found in the safe of Mr. Hodges when the assign- ment was made, with marks to identify the fund, that then such proceeds would not have passed to the defendant. He also concedes if the proceeds could be traced into any other property into which they had been con- verted, or had been mixed by Hodges with his own funds, that then the plaintiff could claim such property, or follow and reclaim the proper amount of money, as against the world. This would be so, because he was the real owner; Hodges holding the proceeds 140 PKOPERTY IX EQUITY— TRUSTS. only as bis agent, as trust funds; or the property into wliicli tlie proceeds had been •converted would be impressed with the trust. But it is said none of the proceeds of that draft are in the hands of the assignee, nor is there any security bought or obtained by the draft in his possession. Still, these facts are indisputable: The Chicago bank to which Hodges sent the $1,500 draft gave him cred- it for the amount on its books. Hodges drew against that credit in the regular course of his business as a banker, and his drafts were honored by the drawee. Presumably, Hodges obtained money for his drafts which he used in the transaction of his business, ■or applied to the payment of his debts. So, these funds which he obtained by his own drafts against the $1,500 credit were substi- tuted for the proceeds of the $1,500 draft, and went into his estate. The conclusion is ir- resistible, from the facts, that the proceeds of the trust property found its way into Hodges' hands, and were used by him either to pay off his debts or to increase his assets. In ei- ther case, it would go to the benefit of his estate. It is not to be supposed the trust fund was dissipated and lost altogether, and did not fall into the mass of the assignor's property; and the rule in equity is well es- tablished that so long as the trust property can be traced and followed into other prop- erty into which it has been converted, that remains subject to the trust. The authorities cited by plaintiff's counsel fully sustain this proposition. We do not understand that it is necessary to trace the trust fund into some specific property in or- der to enforce the trast. If it can be traced into the estate of the defaulting agent or trustee, this is suflScient. The decisions in Frith V. Cartland, 2 Hem. & M. 417; Pennell V. Defeell, 4 De Gex, M. & G. 372; Knatch- buU V. Hallett, 13 Ch. Div. 696; National Bank v. Insurance Co., 104 U. S. 54; Van Alen V. American Nat. Bank, 52 N. Y. 1; People V. City Bank of Rochester, 96 N. Y. 32; Farmers' & M. Nat. Bank v. King, 57 Pa. St. 202; Peak v. Ellicott, 30 Kan. 156, 1 Pac. 499, — in principle sustain this conclu- sion. The cases in 96 N. Y., 30 Kan., and 1 Pac, are directly in point. In People v. Bank of Rochester the head-note states the decision as follows: "The Bank of R. hav- ing discounted certain notes for the firm of S., H. & F., a depositor with it, and that firm wishing to anticipate payment, gave to the bank its checks for the amount of the notes, less rebate of interest, which checks the bank received and charged in the firm ac- count, and entries were made in the bank- books to the elfect that the notes were paid. The firm at the time supposed that the bank held the notes, but they had in fact been previously sold by it. Before the notes be- came due the bank failed, and, in an action brought by the attorney general in the name of the people, a receiver was appointed of Its property and effects. Held, that an order re- quiring the receiver to pay the notes out of the funds in his hands was properly granted; that the transaction between the bank and said firm was not in' their relation of debtor and creditor, nor in that of bank and depos- itor, but by it a trust was created, the viola- tion of which constituted a fraud by which the bank could not profit, and to the benefit of which the receiver was not entitled." The ruling in the Kansas case was to the same effect, upon a similar state of facts. The court say in the opinion, by Horton, C. J., that "the defendant, as assignee of the bank, succeeds- to all the rights of the bank, but as such assignee he has no lawful authority to retain a trust fund in his hands belonging to the plaintiff, and which the bank at the time of receiving the same promised and agreed to apply in payment of plaintifC's note. Aa the money was a trust fund, and never be- longed to the bank, its creditors will not be injured if it is turned over by the assignee to its owner." The case of People v. Merchants' & M. Bank, 78 N. Y. 269, to which we were re- ferred by defendant's counsel, as we under- stand it, contains nothing in conflict with the Rochester Bank Case, supra. In the former case the Chemical Bank of New York received a check on the M. & M. Bank of Troy, drawn by the T. & B. R. R. This check the Chemical Bank sent by mail to the M. & M. Bank for the purpose of being paid. The latter bank debited the railroad company in its account, which was good, with the amount of the check, and returned it to that company as paid. It also sent to the Chem- ical Bank a draft on a New York bank for the amount of the check. Two days after the M. & M. Bank closed its doors, and a re- ceiver of its assets was appointed. The draft on the New York bank was not paid. The Chemical Bank applied for an order di- recting the receiver to pay the amount of the check on the ground that the assets came to his hands impressed with a trust in its favor. On these facts the court held that "to au- thorize the relief prayed for it was necessarj, to trace into the hands of the receiver mon- ey or property belonging to the Chemical Bank, or which had before the receivership been set apart and appropriated to the pay- ment of the check; that charging said check, and returning it to the drawer, did not amount to a payment, and setting apart of sufficient of the drawer's deposit to cover it; nor did it impress a special trust on any part of the drawer's assets; but by the transac- tion the drawee simply reduced its indebted- ness to Its depositor to the amount of the check, and constituted itself a debtor to the holder to a corresponding amount." The case is clearly distinguishable from the one we have before us. The same counsel has referred us to nu- merous cases where the simple relation of creditor and debtor or bank and depositor existed, and where all preference of one cred- PROPEKTY IN EQUITY— TRUSTS. 141 itor over another for payment out of assets lias been denied. But this case stands on entirely different grounds. The evidence is entirely conclusive that the plaintiff left his draft with Hodges for collection, and for no other purpose. Hodges v?as merely his agent to perform that specific duty. He had no more right to use the proceeds of the draft in his business than a merchant or lawyer would have who had been intiiisted with it for a like purpose. Beyond all controversy the proceeds of the draft in Hodges' hands were a trust fund. He having used them in his business,— having benefited his estate by such use, — as we must assume, a trust at- taches to that estate which came to the de- fendant under the assignment. It appears that the plaintiff learned of the assignment which was made by Hodges, and in due time filed his claim as a creditor of the assignor to the amount of $1,500; that at the time he filed his claim he believed from reports that the bank of Hodges would pay dollar for dollar to its creditors; that subse- quently, when a 6 per cent, dividend was de- clared, he, as a creditor, took the 6 per cent, upon his claim allowed, and at that time had learned that the bank could not pay in full, but that there would be a large deficiency. The question is, has the plaintiff, by proving his claim as an ordinary creditor, waived or lost his right to insist upon his equitable lien? We think not. The plaintiff, doubt- less, acted not only in ignorance of his legal rights, but also under a mistake as to the solvency of Hodges' bank. He had a right to suppose from the schedule of its assets and liabilities that all debts would be paid in full. It is said he knew to the contrary when he received the dividend, which he re- tains. But he has only received a portion that was due him. The rights of no one have been prejudiced by this. No one has changed his position, or lost any advantage which the law gave him, in consequence of what the plaintiff did in the matter; and there are no facts upon which a waiver or equitable estoppel can be fairly predicated. There is no defect of parties. It follows from the views that we have ex- pressed that the judgment of the circuit court must be reversed and the cause remanded, with directions to grant the relief asked. CASSODAY, J. (dissenting). I fully indorse what is termed the "progressive" or "modern rule" of equity, as stated by Jessel, the late learned master of the rolls, in Re Hallett's Estate, 13 Ch. Div. 696, to the effect that if a person holding money as a trustee, or in a fiduciary character, pays it to his account at his banker's, where it is mixed with his own money, and thereafter draws out sums by checks in the ordinary manner, he must be taken to have drawn out his own money in preference to the trust money. In that case the trustee, HaUett, died, and the action was for the administration of his • estate. The question arose upon claims by several persons against moneys in the hands of Hallett's- bankers. There was no question as to the solvency of the estate. There was no dispute that the money received by Hallett for the bonds he improperly sold was deposited with his bankers to the credit of his account, and "that the money remained at his banker's mixed with his own money at the time of his death." It was simply held that the cestui que trust could take the proceeds of the sale if they could be identified, and, if not iden- tified, but traceable into other property, or a mixed fund, then she could have a charge or equitable lien upon such other property or fund for the payment of the amount which her money had increased the fund. Such seems to be the well-established rule. Here the draft did not go into the assets of Hodges' bank. He sent it to the Chicago bank, where it was credited to his general account. "Wheth- er his account with the Chicago- bank was then overdrawn or not does not appear, but when he failed, a few days later, it was overdrawn $1,200. At that time there was only $600 in the bank. The assets which went into the hands of the assignee included nothing dated within a month. It conclusively appears from the undisput- ed evidence, and is, in effect, found by the court, that the assets which came into the hands of the assignee neither include the draft nor the proceeds arising therefrom, nor anything taken in exchange for it, or any part of it, unless it was the $G00. Of course, the plaintiff has no right of action, against the assignee personally. He seeks to charge the assets in the hands of the- assignee only by reason of a supposed equi- table lien. Upon what theoiy was he enti- tled to it? If so, for what amount? The mere wrongful conversion of the draft by- Hodges certainly gave the plaintiff no equi- table lien upon property belonging to him prior to such conversion, nor upon assets- subsequently acquired from sources entirely outside and independent of, and wholly for- eign to, the draft, or the proceeds of it. To say that it does, is to hold that such wrong- ful conversion of itself gave the plaintiff a preference over all other creditors, regard- less of what became of the draft, or the pro- ceeds of it. I am not aware of any adjudi- cated case sanctioning such a preference. An equitable lien exists only when the trust money is directly or indirectly traceable to the fund sought to be charged. Such, as I understand, are the cases cited in the opin- ion of the chief justice. It is probable, as claimed, that the draft, or the proceeds of it, were used by Hodges prior to the assignment in payment of somfr of his debts. But this would in no way swell the volume or value of his assets which went into the hands of the assignee. It would merely diminish the amount of his indebtedness to the extent of such payment. That would, in a general way, benefit the 142 PEOPERTY IN EQUITY— TRUSTS. estate to the extent that It increased the per cent, that the other creditors would In consequence receive. But as this estate is badly Insolvent, the aggregate amount of such increase would necessarily be very much less than the amount of the draft. The amount of the equitable charge upon the assets ought not, upon any principle of equi- ty, to exceed the amount of benefit to the es- tate derived from the draft or its proceeds. None of the authorities cited, as it seems to me, go any further, and some of them not as far. In so far as the assets of the es- tate in the hands of the assignee are held chargeable beyond the amount of benefit which the estate derived from the draft or Its proceeds, the equitable doctrine of the cases cited, and many others which might be cited, has, as It seems to me, been mis- applied. I cannot join in sanctioning such a departure from a rule so well established and so thoroughly equitable. TAYLOR, J. I concur in the opinion of Justice CASSODAY. BY THE COURT. The judgment of the circuit court Is reversed, and the cause is re- manded, with directions to grant the relief asked. A motion for a rehearing was denied Septem- ber 21, 1886. PEOPERTT IN EQUITY— TEUSTS. 143 MYERS T. BOARD OF EDUCATION OF CITY OF CLAY CBNTKR. (32 Pac. 658, 51 Kan. 87.) Supreme Court of Kansas. March 11, 1893. Error from district court, Clay county; R. B. Spllman, Judge. Action by the board of education of the city of Clay Center against D. H. Myera, assignee of the estate of John Higinbotliam, to recov- er the amount of a trust fund belonging to plaintiff. There was judgment for plaintiff, and defendant brings error. Afarmed. The other facts fully appear in the follow- ing statement by JOHNSTON, J.: Action brought by the board of education of the city of Clay Center against D. H. Myers, as the assignee of the estate of John Higinbotham, to recover $3,265.71, alleged to be a trust fund in the hands of the as- signee, to which it was entitled. Upon the evidence submitted, the district court made the following findings of fact and conclusions of law: Findings of fact: "(1) For several years prior to the 8th day of June, 1889, John Hig- inbotham was doing business as a private banker at Clay Center, Kansas, and carrying on a private bank under the name of the Clay County Bank, and H. G. Higinbotham, was cashier of said bank and manager of said John Higinbotham's banking business, hav- ing full supervision and control of the same. (2) On the 8th day of June, 1889, and for ten years prior thereto, said H. G. Higinbotham had been treasurer of the board of education of the city of Clay Center, the plaintiff here- in, and, as such treasurer, had received and disbursed large sums of money belonging to said board of education, and during all the time he was such treasurer he was also cashier and manager of said private bank of John Higinbotham. (3) During all the time said H. G. Higinbotham was acting as such treasurer he had an account on the books of said Clay County Bank as 'H. G. Higin- botham, Treasurer,' and all moneys which came into his hands as treasurer of the board of education of the city of Clay Center were deposited by him in said bank, and credited to said account, and mingled with the general funds of the bank, and orders drawn on him as such treasurer were paid out of the gen- eral funds of the bank, and charged to said account. No other money except such as came into his hands as such treasurer was credited to said account, nor were any pay- ments, except such as were made on orders drawn on him as such treasurer, charged to said account. (4) During the time he was treasurer of the board of education of the city of Clay Center, and prior to the 8th day of June, 1889, the said H. G. Higinbotham, as such treasurer, had deposited in said bank, to the credit of said account, $3,265.71 more than had been paid out and charged to said account, which said sum $3,265.71 had been mingled with the general funds of said bank, and used in the ordinary course of the private banking business of said John Higinbotham, in the payment of the debts of the bank. (5) The last money coming into the hands of said H. G. Higinbotham, as such treasurer, which was so deposited in said bank and credited to said account, was deposited on the 3d day of April, 1889. On the 8th day of May, 1889, the total amount of cash in said bank was $544.15 and no more. After said 8th day of May, 1889, there was paid out of the funds of said bank, on orders drawn on said H. G. Higinbotham and charged to said account, $1,236.02; and on the 8th day of June, 1889, when the business was closed, the total amount of cash in said bank was $1,535.57. (6) Said John Higin- botham knew that said H. G. Higinbotham was depositing the money coming into his hands as such treasurer in said bank, and that such money was being used 'in the same manner as other funds of said bank, in the ordinary course of its business. (7) The board of education of the city of Clay Center never authorized said H. G. Higinbotham to deposit the funds coming into his hands as its treasurer in the Clay County Bank, and never consented thereto, but some of the members of said board of education had actu- al knowledge that said funds were so depos- ited for some time before the 8th day of June, 1889. (8) On the 8th day of June, 1889, said John Higinbotliam made an as- signment of all his property and assets of ev- ery kind, including said banking business, to D. H. Myers, for the benefit of his cred- itors, and on that day said Clay County Bank was closed, and thereafter no further busi- ness was done therein. (9) Said D. H. My- ers, who is the defendant in this action, took possession, as temporary assignee, of all the property and assets of every kind belong- ing to said John Higinbotham; and being afterwards duly elected permanent assignee of said John Higinbotham, and duly qualified as such assignee, he retained possession of said property and assets, and still has the same in his possession, or so much thereof as have not been paid out in the due course of the administi-ation of said estate; and there was at the time this suit was com- menced in his hands, as such assignee, be- longing to said estate so assigned to him, real estate of the value of $7,000 or more. (10) At the time said assignment was made, there was in said bank cash to the amount of $1,535.57, and no more; and said assignee has never received from the assets of said estate so assigned to him any cash other than said sum, except such as was derived from the sale of some of the assets of said estate; and all the cash so coming into his hands, including said sum of $1,535.57, had, prior to the commencement of this action, been used in paying a dividend on claims allowed against said estate, and other legitimate char- ges against the same. (11) On the 12th day of June, 1889, said H. G. Higinbotham re- 144 PEOPERTY IN EQUITY— TRUSTS. signed the office of treasurer of the board of education of the city of Clay Center, and at the time there was in his hands as such treasurer the sum of $3,265.71, which said sum had been by him deposited in the Clay County Bank, as heretofore stated in the fourth finding of fact, and which said sum he then, and has ever since, failed to pay over to his successor in ofiice, or to any one authorized by said board to receive the same, except $210 thereof, and of said sum there is still unpaid $3,055.71. (12) At the time said H. G. Higinbotham resigned said office of treasurer there was not, and for a long time prior thereto there had not been, in existence, any valid bond executed by him for the faith- ful performance of his duties as such treas- urer. (13) On the 14th day of June, 1889, said H. G. Higinbotham, in order to secure to said board of education payment of said sum of $3,265.71, executed to said board, pur- suant to a demand made by it upon said H. G. Higinbotham to secure the same, a chat- tel mortgage on certain personal property, and also a mortgage on his homestead, con- sisting of certain lots in the city of Clay Cen- ter, which lots were subject to two prior mortgages of $1,200 and $120. Aftei-wards said personal property so mortgaged was sold under said mortgage, and the proceeds aris- ing therefrom, amounting to $210, were ap- plied by said board in part payment of said sum of $3,265.71, and said real-estate mort- gage is still in full force, and no action has been taken by said board to realize anything thereon. (14) In said real-estate mortgage H. G. Higinbotham and Lillie G. Higinbotham, his wife, were the parties of the first part, and the board of education of the city of Clay Center was the party of the second part, and in said mortgage the following condi- tions were written, to wit: 'Provided, never- theless, and these presents are upon the fol- lowing conditions expressly made, to wit: that whereas, the said H. G. Higinbotham is justly indebted to the said party of the sec- ond part in the sum of thirty-two hundred and sixty-five and seventy-one one hun- dredths dollars, ($3,265.71), the same being the balance of the funds and moneys of the said party of the second part now remaining in the hands of said H. G. Higinbotham, de- posited with him as treasurer of the said par- ty of the second part; and whereas, said H. G. Higinbotham has resigned said office, and, upon legal demand made upon him for said funds and moneys by his duly-qualified suc- cessor in said office, said H. G. Higinbotham has failed and refused to pay over and de- liver said funds and moneys to his successor in office; and whereas, a claim for said funds and moneys, made in behalf of the treasurer of the said party of the second part, against the estate of John Higinbotham and D. H. Myers, assignee thereof, is pending, and may be paid in whole or in part by said assignee: Now, if the said first parties shall, on or be- fore the 14th day of June, 1890, pay or cause to be paid to the qualified treasurer of said party of the second part the funds and sums of moneys aforesaid, with interest thereon from the date hereof, at ten per cent, per annum, or such part thereof as shall not pre- vious to said 14th day of June, 1890, be paid by the assignee of John Higinbotham's estate, in that case this deed shall become void, and the premises hereby conveyed shall be released at the proper cost of the said par- ties of the first part or their legal representa- tives; and it is hereby agreed and under- stood that the execution and delivery of this instniment by said parties of the first part to said party of the second part does not and shall not in any way lessen the obligation of said H. G. Higinbotham respecting the funds and moneys of said second party heretofore delivered to him as treasurer as aforesaid, and this instrument is intended as security for the payment of said funds and moneys as aforesaid, in addition, and in no way affecting the rights of the said second par- ty under any bond or bonds which may have been heretofore given to said party of the second part or under any of the laws of the state of Kansas on and after June 14, 1890.' The conditions above recited are fol- lowed by a provision that, in case the parties of the first part shall fail to pay said funds and sums of money or the interest thereon or the taxes or insurance on the mortgaged premises, then the party of the second part might proceed to foreclose and mortgage and sell the mortgaged premises, and apply the proceeds of such sale to the payment of said sums of money. (15) Said D. H. Myers, as assignee of said John Higinbotham, gave no- tice by advertisement, published as required by law, of the time and place when he would hear and allow claims against said estate, and also notified by mail H. G. Higinbotham, treasurer of the board of education of Clay Center, as one of the creditors of said John Higinbotham, of the time and place when he- would hear and allow claims, but no notice of said time and place of hearing and allow- ing claims was given to the board of educa- tion of the city of Clay Center or any offi- cer or member thereof except as above stated, and, at the time said notice by mail was giv- en to H. G. Higinbotham, he was not treas- urer of said board of education. (16) Neither said H. G. Higinbotham nor any one for him, nor any one acting for the board of educa- tion of the city of Clay Center, presented any claim or demand for said sum of $3,265.71 to said assignee at the time and place fixed by him in said notices for hearing and al- lowing by said assignee as a claim by said estate, and said sum of $3,265.71 was not allowed by said assignee as a claim against- said estate. (17) On the 15th day of May, 1891, and before the commencement of this action, demand was made by the plaintiff up- on said D. H. Slyers, as assignee of John Hig- inbotham, for the payment of said sum of $3,265.71, as a trust fund in his hands as- PUOPERTY IN EQUITY— TRUSTS. 145 sucli assignee belonging to tlie plaintiff, and payment thereof -n-as refused; 'and no other demand was ever made by plaintiff or in its belialf on said D. H. ilyers, as such assignee, for the payment of said money as a trust fund or otherwise. (IS) W'heu said demand was made by plaintiff on the 15th day of Hay, 1891, said D. H. ilyers did not have in his hands, as such assignee, any of the money which was in the Clay County Bank on the 8th day of June, 1889, when said as- signment was made, and which he then re- ceived as such assignee." Conclusions of law: "(1) That money of the boai-d of education of the city of Clay Center deposited by H. G. Higinbotham, while treasurer of said board, in the private bank of John Higinbotham, was impressed with the character of trust funds, and was held as a trust fund by said John Higin- botham; (2) that the assets of John Higin- botham in the hands of D. H. ilyers, as his assignee, are subject to a charge of $3,055.71, as a trust in favor of the board of educa- tion of the city of Clay Center; (3) that the plaintiff Is entitled to a decree for the pay- ment to it by D. H. ilyers, assignee of John Higinbotham, of the sum of 53,055.71 out of the assets of said John Higinbotham, in his hands as such assignee." Judgment was accordingly given, and to reverse the same the .assignee brings this proceeding in error. Harkness & Godard, for plaintiff in error. C. C. Coleman, F. L. Williams, and B. B. Tuttle, for defendant in error. JOHNSTON, J. (after stating the facts). There is no doubt or question about the char- acter of the moneys, amounting to $3,055.71, sought to be recovered in this action. They were school funds, collected and held for specific public purposes, and the bank, its owners and manager, all knew of the trust character of the funds, and hence there is no excuse for their misappropriation. The treasurer of the board of education, who placed these trust funds in the bank, was its manager; and, without authority from the board of education, he mingled them with the funds of the bank, and used them in paying the creditors of that institution. At one time, subsequent to the last deposit of school money, the total amount of cash on hand in the bank was $544.15, and subse- quent to that time $1,236.08 was drawn from the funds of the bank upon the order of the board of education. When the bank closed, the whole amount of cash on hand was $1,- 535.57. It is said that no portion of this sum was the identical money received from the board of education, and that neither the mon- ey nor any specific property into which it had been converted can be clearly traced to the hands of the assignee. Under these cir- cumstances, has the board of education a preferred right over general creditors to the HUTCH. EQ. JUB. — 10 assets in the hands of the assignee? It is not denied that the school funds were impressed with a trust, and, if susceptible of identity, could be followed and reclaimed from the assignee. It is also admitted that, if they could be traced into any other specific prop- erty, the cestui que trust might claim such property or a lien upon it; but it is insisted that, unless the trust funds can be traced and identiiied, the cestui que trust is to be treated as a simple creditor, and not entitled to an equitable preference in the distribution of the assets of the estate. The view of the plaintiff in error is not without support, and many of the older cases, while holding that a trust fund wrongfully converted into another spe- cies of property, of whatever form, will be held liable to the rights of the beneficial own- er in its new form if its iden tity can possibly be traced, still adopt the old doctrine stated by Judge Story as follows: "The right to fol- low a trust fund ceases when the means of ascertainment fail, which, of course, is the case when the subject-matter is turned into money, and mixed and confounded in a gen- eral mass of property of the same descrip- tion." Story, Eq. Jur. § 1259. The modern doctrine of equity, and the one more in con- sonance with justice, is that the confusion of trust property so wrongfully converted does not destroy the equity entirely, but that. When the funds are traced into the assets of the unfaithful trustee or one who has knowl- edge of the character of the funds, they be- come a charge upon the entire assets with which they are mingled. This principle was fully recognized, and the question in the pres- ent case was substantially decided, in Peak V. BUicott, 30 Kan. 156, 1 Pac. 499. In that case it was said: "As the money was a trust fund, and never belonged to the bank, its creditors will not be injured if it is turned over by the assignee to its owner. Even if the trust fund has been mixed with other funds of the bank, this cannot prevent the plaintiff from following and reclaiming the fund; because, if a trust fund is mixed with other funds, the person equitably entitled thereto may follow it, and has a charge on the whole fund for the amount due." It would seem to be immaterial whether the property with which the trust funds were mingled Avas moneys, or whether it was bills, notes, securities, lands, or other assets. The bank which assigned in this case appears to have been engaged in a general business, and its assets consisted of moneys, securities, and lands; and, as the estate was augmented by the convei-sion of the trust funds, no reason is seen under the equitable principle which has been mentioned why they should not become a charge upon the entire estate. In McLeod V. Evans, 60 Wis. 410, 28 N. W. 173, 214, an unfaithful trustee made an assignment, and among the assets there was a small amount of cash, and it was not shown that it was a part of the proceeds of the draft or trust fund. The question was whether the owner of the 146 PROPEETT IN EQUITY— TRUSTS. trust fund stood upon the same ground as the general creditors of the trustee, or wheth- er he had a paramount right to toe first paid out of the assets of the estate. It was found that the proceeds of the trust property were used toy the trustee either to pay off his debts or to increase his assets, and it was held to be unnecessary to trace the trust fund into any specific property In order to enforce the trust; and that, if it could be traced into the estate of the defaulting agent or trustee, that was sufficient. It was further decided that, whether the trust funds were used to increase the assets or to pay off the debts, in either case it would be for the benefit of the estate; and, having been so used, it was held that a trust attached to the entire estate which came into the hands of the assignee. The court in that case cites Peak v. Ellicott, supra, and expressly approves the dictrine of that case. In Independent Dist. v. King, 80 Iowa, 497, 45 N. W. 908, the treasurer of a school dis- trict, as in this case, wrongfully deposited the funds of the district in a bank which knew the character of the funds. Subsequently the bank failed, and made an assignment for the benefit of its creditors. It was there insisted that, as none of the identical money deposited went into the possession of the assignee, no trust could be enforced against the estate of the assignor to the prejudice of other general creditors. Speaking of the bankers, the court said that they "were fully advised as to the material facts, and therefore could acquire no title to the deposit adverse to the plain- tiff. As to them, the money constituted a trust fund, which they had no right to con- vert to their own use; and the fact that they mingled it with other money, so that the identity of that deposited was lost, would not destroy the trust character of the deposits, nor prevent the enforcement of the trust against property to which they had contribu- ted. To hold otherwise would be to ratify a willful violation of law, at the expense of an innocent party, and thus perpetrate a wrong. The defendant [who was the assignee] ac- quired no property rights, as against plain- tiff, which the Cadwells [the bankers] could not have enforced, and he had no special in- terest which requires protection. The same is true of the general creditors. They are en- titled to only so much of the estate of the insolvents as remains after liens paramount to their claims and other preferred charges are satisfied." In Plow Co. v. Lamp, 80 Iowa, 722, 45 N. W. 1049, the supreme court of Iowa considered the same question in a case where the trust funds had been used, as in the pres- ent case, by the trustee for the payment of debts. The trustee having become Insolvent, and made an assignment, the assignee con- tended that the estate in his hands was not chargeable with the trust funds, but that the owner of the funds should be placed on an equal footing with general creditors, and only receive a pro rata payment out of the estate. The court said: "The money was used by the Globe Company in its business, and in pay- ment of its debts. It became liable to the plaintiff to replace the trust funds with other money in its possession or with money re- alized out of .other property. Of course the Globe Company and its stockholders can urge no equity nor reason against the enforcement of these rules. Can its creditors? We think not, for these reasons: The money was wrongfully mingled, as it were, with the as- sets of the company. The money did not be- long to the Globe Company. The creditors, if permitted to enforce their claims as against the trust, would secure the payment of their claims out of trust moneys. If they are not permitted to do this, they are simply denied the remedy of enforcing their claims against property acquired by the use of trust money. They are deprived of no right, for the prop- erty acquired by the trust money became sub- ject to the trust, and therefore could not have been subject to the claims." In Harrison v. Smith, 83 Mo. 210, where trust money was wrongfully mingled with the funds of a bank which became insolvent, and subsequently made an assignment, it was held that, al- though the trust money was not clearly trace- able to any particular asset of the bank, the fact that it went into and swelled the volume of its assets, gave the beneficial owner an equitable right to have his demand first paid out of the assets of the estate, and before dis- tribution was made to the general creditors. The same court, in a later case, held that, while it might "be impossible to follow the fund in its diverted uses, it Is always possible to make it a charge upon the estate or assets to the increase or benefit of which it has been appropriated. The general assets of the bank having received the benefit of the unlawful conversion, there is nothing inequitable in charging them with the amount of the con- verted fund, as a preferred demand." StoUer V. Ooates, 88 Mo. 514. This principle of equity was approved by the supreme court of the United States in National Bank v. Insurance Co., 104 U. S. 54, where it was held that, "if a man mixes trust funds with his, the whole will be treated as trust property, except so far as he may be able to distinguish what is his. This doctrine applies in every case of a trust relation, and as well to moneys de- posited in bank, and to the debt thereby cre- ated, as to every other description of prop- erty." See, also, KnatchbuU v. Hallett, 13 Ch. Div. 696; People v. Bank, 96 N. Y. 32; Bank v. Hummel, 14 Colo. 259, 23 Pac. 986; Smith v. Combs (N. J. Ch.) 24 Atl. 9; San Diego Co. V. California Nat Bank, 52 Fed. 59. These authorities are in line with Peak v. Ellicott, supra, and fully sustain the ruling of the district court in this case, making the trust fund a charge on the assets In the hands of the assignee. The court below held that the fact that the board of education sought and obtained some security from H. G. Hlginbotham who had been the treasurer of the board, for the pay- PROPERTY IN EQUITY— TRUSTS. 147 ment of the money which he had misappropri- ated, did not prevent the board from follow- ing and recovering the trust fund. In this we see no error. As treasurer of the board, he was personally liable for the wrongful con- version of the money intrusted to him. The collateral security for the payment of the money was talien soon after the assignment was made, and before it was linown whether the trust money could be reclaimed; and probably it was not then known whether there were sufilcient assets against which the trust might be enforced. The taking of col- lateral security for the whole of the trust fund which the board was seeking to find, or for that part which they might ultimately fail to recover, does not appear to us to be incon- sistent with the remedy sought in this action, and should not prevent it from insisting upon its equitable lien against the assets of the estate. The rights of no creditor of the bank have been prejudiced by the taking of the security, and it does not appear that any pro- ceeding to enforce the same has been begun. Another point made by plaintiff in error is that the board, having failed to present its claim to the assignee for special allowance, is precluded from availing itself of its equi- table lien against the assets of the estate. This contention is based on the provisions of section 21 of the assignment act. It provides that the assignee shall give certain notice to the creditors of the estate of the time for the presentation and allowance of demands; and, further, that all creditors who, after being notified, fail to attend and present the nature and amount of their demands, shall be pre- cluded from any benefit in the estate. This point cannot be sustained. Under the view which we have taken, the 'board of education can hardly be regarded as a "creditor," with- in the meaning of the statute. The funds sought to be recovered were never the prop- erty of the bank. The title and beneficiary interest in the same remained in the board of education, so that the relation of debtor and creditor never in fact existed between the bank and the board. Bank v. Hummel, supra. But, even if the board was to be treated as a creditor under this statute (which we need not decide now), it is not concluded by its fail- ure to present a claim for the trust money to the assignee. No written notice, as required by section 21, was given to the board of edu- cation or any officer or member thereof of the time when claims would be heard and al- lowed by the assignee. A notice was sent to H. G. Higinbotham, but at that time he was not the treasurer of the board. If the board of education is to be regarded as an ordinary creditor, it should have been notified; and, as the notice was not given, there can be no claim that it is estopped to avail Itself of the remedy which it is now seeking. The judgment of the district court will be affirmed. All the justices concurring. 14o PROPERTY IN EQUITY— TRUSTS. GAVIN V. GLEASON.i (11 N. E. 504, 105 N. Y. 256.) Court of Appeals of New York. April 19, 1887. J. B. Gleason, for appellant. W. H. John- son, for respondents. ANDREWS, J. It may properly be conced- ed that the $3,000, received by White from the petitioners on the third day of January, 1883, for investment in the Gould mortgage, constituted in his hands a quasi trust fund, which White was bound to use for the spe- cific purpose contemplated, and which he could not divert to any other use without commit- ting a breach of trust. The securities which formed the greater part of the fund were im- mediately convertible into money, and au- thority in White to make such conversion was implied, but only as a means of realizing the money with which to make the mortgage loan. The securities, while in the hands of White, remained the property of the petition- ers; and, when converted by him, their title attached to the proceeds of the converted property. White collected the securities actu- ally or constructively. He collected the notes against third persons, and drew the mor.ry deposited in the Delaware National Bank. The two certificates of deposit issued by him- self, amounting in the aggregate to $780, he accepted as money. It is material to a proper understanding of the question presented, to state a few other facts which appear in the record. White was a private banker. On the fifth of January, 1883, two days after the transaction with the petitioners to which we have alluded, he was taken sick, and on or about the ninth of Janu- ary a run commenced on the bank, and on the twelfth of January he made a general assign- ment to the defendant, Gleason, for the bene- fit of creditors, having at the time on hand in cash assets only the sum of $64.75. The Gould mortgage was never procured by White, and he made no investment for the petition- ers of the $3,000 received on the third day of January. On the contrary, it was found by the judge at special term that White, after receiving and collecting the securities, and prior to the eleventh day of January, in vio- lation of his trust, used the entire fund of $3,- 000 excepting the sum of $30, which came to the hands of the assignee, in paying his per- sonal debts and liabilities. But on the elev- enth of January, the day prior to the mak- ing of the assignment, for the purpose of se- curing the claim of the petitioners, he trans- ferred to them a land contract, from which and other sources the petitioners have real- ized sufficient to reduce their claim to the sum of $877.27. It was admitted on the hear- ing of the petition, which took place in Janu- ary, 1885, that the assignee had then on hand proceeds of the assigned estate sufficient to pay the said sum of $877.27, but it was con- 1 Modifying 39 Hun, 655. ceded by the petitioners that the assigned es- tate was insufficient to pay in full the debts of the assignor. The special term granted the prayer of the petitioner, and made an order directing the assignee to pay the claim of the petitioners out of the money in his hands, and this order was affirmed by the general term. The order in effect appropriates out of the assigned es- tate the sum of $877.27 to the payment of the claim of the petitioners, in preference to the claims of the general creditors. The petitioners, to maintain the order in question, rely upon the rule in equity that, as between cestui que trust and trustee, and all parties claiming under the trustee otherwise than by purchase for valuable consideration^ withgut notice, all property belonging to a trust, however much it may be changed or altered in its nature or character, and all the fruit of such property, whether in its orig- inal or altered state, continues to be subject to or affected by the trust. Pennell v. Deffell, 4 De Gex, M. & G. 387, Turner, L. J. Tliis settled doctrine of equity has its basis in the right of property. The owner of personal property which, by the wrongful act of his. agent or trustee, has been changed and con- verted into chattels of another description, may elect to treat the property into which the conversion has been made as his own. Upon such election the title to the substituted prop- erty is vested in him as fully as if he had originally authorized the wrongful act, which title he may assert in a legal action to the same extent as he could have asserted title in respect to the original property. The rea- son of the doctrine is stated by Lord Ellen- borough in the leading case of Taylor v. Plumer, 3 Maule & S. 562, in language often quoted: "For," he says, "the product or sub- stitute for the original thing still follows the nature of the thing itself, so long as it can be ascertained to be such, and the right only ceases when the means of ascertainment fail." The question in that case involved the legal title to certain stock and bullion which an agent of the defendant, intrusted by his principal with money to invest in exchequer bills, had wrongfully misapplied to the pur- chase of the stock and bullion, intending to abscond with it and go to America, and the court sustained the defendants' title. Courts go very far to protect rights of prop- erty as against a wrong-doer. They follow it through whatever changes and transmuta- tions it may undergo In his hands, and as against him, transferred to the changed and altered product the original title, however much the original property has been in- creased in value by his labor or expenditure, provided only that the product is still a chat- tel, and is composed of the original materials. Silsbury v. McCoon, 3 N. Y. 379. But a court of law, as a general rule, deals only with the legal title; and when the legal identity of the property is destroyed, or the property cannot be traced specifically into another thing, it is PROPERTY IN EQUITY— TRUSTS. i4y powerless to give relief, except by action for damages against the wrong-doer. The lan- guage of Lord EUenborough, already quoted, that the right to follow property only ceases when the means of ascertainment fail, is il- lustrated by what follows, "which," he adds, "is the case when the subject is turned into money and mixed and compounded in a gen- eral mass of the same description." It is not important to inquire whether later decisions have not established, even in re- spect to strictly legal actions, a somewhat less stringent limitation upon the right of pursuit than that Indicated in the language just quot- ed. But it is unnecessary to pursue this in- quiry here. It is clear that in this case the trust fund has been dissipated and lost by the act of the trustee. It is neither specific- ally in the hands of the trustee or of his as- signee, nor it is represented by other proper- ty into which it has been converted. The fund, according to the finding, (with the ex- ception of the sum of $30,) was paid out on the debts of White before the assignment. Plainly, there is no room for any contention that the petitioners have legal title to any of the assigned property. The sole inquiry is whether a case is made for equitable inter- vention in favor of the petitioners in the ad- ministration of the insolvent estate. It is clear, we think, that, upon an accounting in bankruptcy or insolvency, a trust creditor is not entitled to a preference over general cred- itors of the insolvent, merely on the ground of the nature of his claim; that is, that he is a trust creditor as distinguished from a gen- eral creditor. We know of no authority for such a contention. The equitable doctrine that, as between creditors, equality is equi- ty, admits, so far as we know, of no excep- tion founded on the greater supposed sacred- ness of one debt, or that it arose out of a vio- lation of duty, or that its loss involves great- er apparent hardship in one case than anoth- er, unless it appears, in addition, that there is some specific recognized equity founded on some agreement, or the relation of the debt to the assigned property, which entitles the claimant, according to equitable principles, to preferential payment. If it appears that trust property specifically belonging to the trust is included in the assets, the court doubtless may order it to be restored to the trust. So, also, if it appears that trust property has been wrongfully converted by the trustee, and con- stitutes, although in a changed form, a part of the assets, it would seem to be equitable, and in accordance with equitable principles, that the things into which the trust property has been changed, should, if required, be set apart for the trust, or, if separation is impos- sible, that priority of lien should be adjudged in favor of the trust-estate for the value of the trust property or funds, or proceeds of the trust property, entering into and constituting a part of the assets. This rule simply asserts the right of the true owner to his own prop- erty. But it is the general rule, as well in a court of equity as in a court of law, that, in order to follow trust funds, and subject them to the operation of the trust, they must be identi- fied. A court of equity, in pursuing the in- quiry and in administering relief, is less ham- pered by technical difiiculties than a court of law; and it may be suflicient, to entitle a party to equitable preference in the distribu- tion of a fund in insolvency, that it appears that the fund or property of the insolvent re- maining for distribution includes the proceeds of the trust-estate, although it may be impos- sible to point out the precise thing in which the trust fund has been invested, or the pre- cise time when the conversion took place. The authorities require at least this degree of distinctness in the proof before preference can be awarded. " See Van Alen v. American Nat. Bank, 52 N. Y. 1; Newton v. Porter, 69 N. Y. 133; Ferris v. Van Vechten, 73 N. Y. 113; Pennell v. Deffell, supra; Frith v. Cartland, 2 Hem. & M. 417. The facts in this case fall short of the proof required within any case which has come to our notice. The trust fund, with the single exception mentioned, was misappropriated by White to the payment of his private debts prior to the assignment. It cannot be traced into the property in the hands of the as- signee, for the plain reason that it is shown to have gone to the creditors of White in sat- isfaction of their debts. The courts below seem to have proceeded upon a supposed eq- uity springing from the circumstance that, by the application of the fund to the payment of White's creditors, the assigned estate was re- lieved pro tanto from debts which otherwise would have been charged upon it, and that thereby the remaining creditors, if entitled to distribution without regard to the petition- er's claim, will be benefited. We think this is quite too vague an equity for judicial cogni- zance, and we find no case justifying relief upon such a circumstance. In a very general sense, all creditors of an Insolvent may be supposed to have contributed to the assets which constitute the residuum of his estate. The case of People v. City Bank of Roches- ter, 96 N. Y. 32, seems to have been misun- derstood. The question considered in this case was not raised there, and it was not claimed in that case that the proceeds of the checks of Sartwell, Hough & Co., the petition- ers, had not gone into the general fund of the bank, or that they had not passed in some form to the receiver. The court did not de- cide that the petitioners would have been en- titled to a preference in case the proceeds of the checks had been used by the bank, and were not represented in its assets in the hands of the receiver. For the reasons stated, we are of opinion that the orders of the special and general terms should be modified by reducing the sum directed to be paid by the assignee to the sum of $80, with interest from April 19, 1883, but without costs to either pai-ty. All concur. Ordered accordingly. 150 PBOPEETY IN EQUITY— TRUSTS. RYAN V. DOX. (34 N. y. 307.) Court of Appeals of New York. Jan., 1866. Henry R. Selden, for appellants. Alexan- der S. Johnson, for respondent. DA VIES, 0. J. This action was tried by a referee who held as matter of law, that unless the agreement set out in the complaint in relation to the purchase by the defendant at the master's sale of the premises in ques- tion, or some note or memorandum thereof, expressing the consideration be in writing, the same was void, and created no interest in the plaintiffs in said premises, and could not be enforced against said defendant in law or equity. And he further reported, as matter of fact, that no proof was made or offered on said trial by or in behalf of the plaintiff of any such agreement in writing, or of any note or memorandum in writing of such an agreement, or of any deed, con- veyance or instrument in writing subscribed by the defendant or his lawful agent, creat- ing or declaring any trust or interest in said premises in favor of said plaintiffs, and that no proof was made or testimony or evidence offered on the part of the defendant. The judgment entered for the defendant upon the report of the referee was affirmed at the general term, and the plaintiffs now appeal to this court. We are at liberty to assume from this find- ing, that the agreement set out in the com- plaint was proven on the trial before the referee. To ascertain what that agreement was, we must have reference to the com- plaint and the offer made by the plaintil^s on the trial. The plaintiffs averred in the complaint that the plaintiff Michael Ryan, being seized of certain lands in the town of Seneca, made and executed a mortgage thereon in the year 1839, to secure the sum of $800, part of the purchase-money thereof, and that in the month of October, 1841, said plaintiff Ryan conveyed to the said Nev- ins, the other plaintiff, an equal undivided half of the said premises; that plaintiffs being unable to pay the installments on said mortgage as they became due, the said mort- gage was foreclosed, and said plaintiffs pro- cured of one Lewis the sum of $800, which was paid on account of said judgment of foreclosure, and a portion thereof, to the extent of $300, was assigned to said Lewis as his security for such advance; that said Lewis becoming importunate for his money, and the plaintiffs being unable to raise the same for him, Lewis proceeded to advertise said premises for sale on the 12th day of October, 1843, for the purpose of raising said sum of about $300, while said premises were worth the sum of $4,000. The complaint further averred that while said premises were thus advertised for sale, and before the day of sale had arrived, the plaintiffs being men of limited means, and unable to raise the money which would be needed to stop the said sale, and to pay up the amount due on the said decree for the debt and the costs which had accrued, applied to the defendant Dox, reported to be a man of ready money, and who had always professed to be inter- ested in their behalf, and asked him to assist them, and aid them to raise the money to pay the amount due on said decree and save the said premises from being sold away from them, and from being sacrificed for the small amount, compared with their value, which was claimed upon said decree. That said Dox did then profess and declare a will- ingness to help said plaintiffs for such pur- pose, and did then and there agree with the said plaintiffs that on the day of said sale, he, the said Dox, would attend the same and bid off and purchase the said premises at such sale, upon the express agreement and understanding, between the plaintiffs and said Dox, that such bidding and purchase, if made by the said Dox, should be for the benefit and advantage of these plaintiffs, and the plaintiffs upon such agreement and understanding agreed that they would not find any other one to go their friend at the said sale, and to bid in and purchase the said premises for them; and that it was expressly understood and agreed between the plaintiffs and said Dox, that if he became the purchaser of said prem- ises at said sale he should take the deed of the same from the said master in his own name, but only by way of and as security to himself for what money he should have to advance and pay on such purchase, ana with the agreement, promise and undertak- ing between said Dox and these plaintiffs, that whenever these plaintiffs should repay him the amount which he should pay to pro- cure and effect such purchase and to get the deed therefor, with the interest there- on, and a reasonable compensation for his services therein, he, the said Dox, should con- vey the said premises to these plaintiffs and again vest the title thereto in them, and should in the mean time hold the said prem- ises in his own name as security only for the said moneys, and always subject to the above agreement and defeasance. That in pursuance of said agreement, said Dox at- tended said sale and bid off the same for the sum of $100, he being the only bidder at said sale, and the same was strtfck off to him and he received the deed therefor. That at said sale it was talked about and understood by those present thereat, that said Dox was bidding for the benefit of these plaintiffs, and that said premises were struck off to him only as security to him for the repay- ment to him by these plaintiffs of the moneys he sh.ould advance and pay for the same and interest thereon, and his reasonable charges for his attention thereto. And the plaintiffs averred that such was the fact, and that in truth said Dox did bid off and purchase the said premises for these plain- PKOPEHTY IN EQUITY— TRUSTS. 151 tiffs, and to save tbe same for them, and took the deed in his own name, only as such security as aforesaid, and that in conse- quence of such understanding other persons abstained from bidding on said premises, and the same was struck off to said Dox without any opposing bid, although the plain- tiffs aver that the same were then worth $4,000 and upwards. And the plaintiffs also averred that if they had not relied upon said agreement, promise and undertaking of said Dox, they would not have allowed the said premises to have been struck off for the said sum of $100, but would have found other persons to have purchased the said premises, and saved the same from sacrifice, but that as said agreement was made more than a month before said sale, these plain- tiffs relied upon it and made no other effort to procure the money, or the assistance of friends to save and buy said premises. That at the time of said sale these plain- tiffs were in the possession of said premises, and continued in possession thereof and made payments on account of the incumbrances thereon until some time in the year 1849, with the knowledge, privity and consent of said Dox. And that during all that time said Dox never exercised any acts of own- ership over said premises, or interfered with the ownership, use, occupation or possession thereof by the plaintiffs, and that during all that time the assessments and taxes there- on were paid by the plaintiffs, with the knowledge, privity and assent of said Dox. That in the year 1849, the said plaintiffs were induced by said Dos to surrender the possession of said premises to him, and in the year 1851 he refused to come to a set- tlement with the plaintiffs, and denied that he held the said premises for their benefit, or that they had any interest therein. The referee excluded such evidence, and decided that he would not receive any parol evi- dence to establish, or tending to establish, the said agreement, and that upon the case made by the pleadings, assuming there was no agreement in writing as stated in the an- swer, there can be no recovery by the plain- tiffs. To this decision and ruling, the plain- tiffs' counsel duly excepted. This exception presents the main question for consideration and decision upon this ap- peal, and the referee in his report states the ground or reason of his decision to be that unless the agreement mentioned, or some note or memorandum thereof expressing the consideration be in writing the same was void, and could not be enforced against the defendant. If the referee was right in this conclusion, then the plaintiffs were properly nonsuited, and the judgment for the defend- ant should be affirmed. If in error then it follows that there must be a reversal and a new trial. The Revised Statutes declare that no estate or interest in lands, nor any trust or power over or concerning lands, or in any manner relating thereto, shall be created, granted or declared, unless by act or opera- tion of law, or by a deed or conveyance in writing, subscribed by the party creating, granting or declaring the same. 1 Rev. St. p. 134, § 6. It is manifest that the referee had this provision before him, and that his decision was based upon the assumption of its applicability to the case in hand. In ar- riving at this conclusion he entirely ignored all consideration of fraud or of part perform- ance, as elements of the transaction. Section 10 of the same title declares that "nothing In this title contained shall be construed to abridge the powers of a court of equity to compel the specific performance of agree- ments in cases of part performance of such agreements." 1 Rev. St. p. 135, § 10. It is well settled that courts of equity will en- force a specific performance of a contract within the statute when the parol agreement has been partly carried into execution. 2 Story, Eq. Jur. § 759. And ' the distinct ground upon which courts of equity interfere in cases of this sort is, that otherwise one party would be enabled to practice a fraud upon the other, and it could never be the Intention of the statute to enable any party to commit such a fraud with impunity. In- deed fraud in all cases constitutes an answer to the most solemn acts and conveyances, and the objects of the statutes are promoted instead of being obstructed by such a ju- risdiction for discovery and relief. And when one party has executed his part of the agreement in the confidence that the other party would do the same, it is obvious that if the latter should refuse it would be a fraud upon the former to suffer his refusal to work to his prejudice. In Fonblanque's Equity it is said: "If the contract be carried into execution by one of the parties, as by delivering possession, and such execution be accepted by the other, he that accepts it must perform his part, for when there is a performance the evidence of the bargain does not lie merely upon the words but the facts performed, and it is unconscionable that the party that received the advantage should be admitted to say that such contract was never made." Poubl. bk. 1, p. 181, c. 338. And the universal rule is correctly enunciated by Brown on Frauds, when he says: "The correct view appears to be that equity will at all times lend its aid to defeat a fraud, notwithstanding the statute of frauds." Brown, St Frauds, § 438. In the present case we are to assume that the agreement was made as set out in the complaint, and performed on the part of the plaintiffs as therein stated. We then have a distinct and unequivocal agreement established, and performance by one party of all that was to be done in pursuance of it on his part We find the other party, by reason of the acts and omissions of this par- ty, obtaining the possession and title to a large amount of real estate for a trifling sutn compared to its actual value, and refusing 152 PROPERTY IN EQUITY— TEUoTS. to fulfill the agreement on his part. He in- terposes the statute of frauds as a shield, thus using a statute designed to prevent frauds as an instrument whereby one can be perpetrated with impunity. This a court of equity cannot tolerate. Wetmore v. White, 2 Caines, Cas. 87, was au action brought in chancery to compel the specific performance of a contract by parol relating to lands. The chancellor dismissed the bill, but the court of errors unanimously reversed his decree. Thompson, J., in delivering the opinion of the court, says: "The appellant's claim resting altogether upon parol contract, it becomes necessary to examine whether any obstacle to relief is interposed by the statute for the prevention of fraud. I thinli there is not. It is an established rule in equity that a parol agreement in part performed is not within the provisions of the statute. Citing 1 Fonbl. Eq. 182, and cases there noted. To allow a statute having for its object the pre- vention of frauds to be interposed in bar of the performance of a parol agreement in part performed, would evidently encourage the mischief the legislature intended to pre- vent. * * * Possession delivered in pur- suance of an agreement is such a decree of performance as to take a contract out of the statute." The same doctrine was reafiirmed in Parkhurst v. Van Cortlandt, 14 Johns. 15, 35, 36. In Lowry v. Tew, 3 Barb. Ch. 407, 413, the chancellor said the principle upon which courts of equity hold that a part per- formance of a parol agreement is sufficient to take a case out of the statute of frauds is, that a party who has permitted another to perform acts on the faith of an agreement shaU not be allowed to insist that the agree- ment is invalid, because it was not in writ- ing, and that he is entitled to treat those acts as if the agreement, in compliance with which they were performed, had not been made. In other words, upon the ground of fraud in refusing to execute the parol agree- ment after a part performance thereof by the other party, and when he cannot be pla- ced in the same situation that he was before such part performance by him." See, also, Phillips v. Thompson, 1 Johns. Ch. 131; Mur- ray V. Jayne, 8 Barb. 612. In Hodges v. Tennessee Marine & Fire Ins. Co., 8 N. Y. 416, this court held that in eq- uity parol evidence was admissible to show that a deed absolute on Its face was in fact a mortgage, and so intended by the parties thereto. And in Despard v. Walbridge, 15 N. Y. 374, this court also held that an as- signment of a lease, absolute on its face, was in fact made for the purpose of securing a debt, and that such debt had been fully paid; and that under the Code of Procedure, parol evidence is admissible to show that such as- signment, though absolute in its terms, was Intended as a mortgage. The case of Brown v. Lynch, 1 Paige, 147, is so like to that now under consideration that it may be profitable to refer to It at length. A mortgage upon a farm was fore- closed in chancery and advertised for sale by a master. Before the sale. Brown, the defendant, made an arrangement with the plaintiffs, the Lynches, whereby he agreed to purchase the farm in for their benefit, for which he was to receive a stipulated compensation. The mortgagee, in order to favor the Lynches, agreed with Brown that he might bid off the property for about half the amount of the mortgage. Brown, at the sale, prevented others bidding by represent- ing that he intended to buy for the Lynches, and he purchased the farm at the master's sale for $1,500, about $1,000 below its value. Afterward Brown refused to convey the farm to the Lynches, or to account to them for the value, although they tendered to him the amount of his bid, with interest, and thp sum agreed for his services. And it was held by the com't of chancery that Brown was a trustee for the Lynches, and had no other interest in the farm than that of mort- gagee to secure the repayment of the pur- chase-money, and of the payment of the sum agreed to be allowed him for his services. And that the court of chancery would re- lieve against a fraud by converting the per- son guilty of it into a trustee for those who have been injured thereby. Emott, vice chancellor, decreed for the plaintiffs, holding the defendant had committed a fraud upon the plaintiffs by agi'eeing to purchase for their benefit, when, in truth, he meant to purchase for himself, and that he had com- mitted a fraud upon the plaintiffs, by his acts and representations, in preventing bid- ding at the sale. And he proceeds to show, by the citation of numerous authorities, that a court of equity can provide adequate re- lief by declaring the purchaser a trustee for the person defrauded. And he quotes with approbation the remarks of Lord Eldon, in Mestaer v. Gillespie, 11 Yes. 626, where he says: "Upon the statute of frauds, though de- claring that interest shall not be barred ex- cept by writing, cases in this court are per- fectly familiar, deciding that a fraudulent use shall not be made of that statute; when this court has interfered against a party meaning to make it an instrument of fraud, and said he should not take advantage of his own fraud, even though the statute has declared that in case these circumstances do not exist, the instrument shall be absolutely void." The chancellor affirmed the decree, and observed, that the Lynches had an in- terest in the premises which they had a right to protect and preserve, and it would have been a gross fraud for any one to hold out to them, under such cu'cumstances, that he was bidding off the property for their ben- efit, when he in fact intended to appropriate it to his own use. If the appellant did in fact bid it off for them, under the agreement, he held it in trust for them, and had no PROPEKTY IN EQUITY— TRUSTS. 153 other interest in it than that of a mort- gagee, to secui'e the repayment of the pur- chase-money and the $60 agreed to be paid him for his trouble. But if he had no such intention, and did not in fact Bid off the property in trust for them, he was guilty of a fraud which the court will relieve against. The cases referred to by the circuit judge (vice-cliancellor), fully establish the principle that this court has power to relieve against such fraud, and the means to be employed is to convert the person who has gained an advantage by means of his fraudulent act, into a trustee for those who have been in- jured thereby." This case was cited with approbation in Anderson v. Lemon, 8 N. Y. 239, and the principle of it adopted by this court in that case. Its principle was also adopted and ap- proved of in Sandford v. Norris, decided at special term of supreme court in May, 1859, and afhrmed at general term in the First district in June, 1861. 4 Abb. Dec. 144. In that case, certain premises were owned by the plaintiff's husband, and he made an as- signment thereof, and his assignees adver- tised the same for sale. The plaintiff was anxious to purchase them in at the sale, and made an arrangement with the defendant, Norris, by which he agreed to attend the sale and bid them off in his name for the plaintiff, and on payment of the sum bid convey the same to the plaintiff. In conse- quence of this arrangement, the plaintiff re- frained from bidding at the sale, and the premises were struck off to the defendant for the sum of $20, subject to the prior in- cumbrances. The defendant subsequently sold the premises so purchased for the sum of $2,000, of which the plaintiff had received one-half, and the action was brought to re- cover the residue. It was held that the plaintiff was entitled to recover, and that the defense of the statute of frauds, interposed by the defendant, was no bar to the relief sought by the plaintiff; that the agreement was established beyond controversy, and the defendant was bound as well by sound morals as established principles of law to the performance of it. On the hearing of that case, the opinion of Mr. Justice Emott, in the case of .Bergen v. Nelson (not report- ed), was read, distinctly affirming the doc- trine of Brown v. Lynch, supra. The case ■of Osborn v. Mason, before the vice-chan- cellor of the first circuit (not reported), also affirming the doctrine of that case, was also cited. Mason in that case agreed with Osborn to attend a sale of certain premises, Osborn be- ing either owner or a subsequent incum- brancer. Mason also having a claim upon the premises as an incumbrancer. Mason agreed to bid in the premises at the sale, and then to let Osborn have them for the ■amount at which they stood him in, includ- ing his own incumbrance. Mason bid off the premises and then refused to fulfill his agi-ee- ment which was by parol. The vice-chan- cellor held that the statute of frauds was no bar to the suit for a specific performance of the agTeement which was decreed, and on appeal to the chancellor the same was af- firmed. Voorhies v. St. John was argued and decided in this com't in December, 186i!. It was an action brought to recover moneys received by the defendant on a sale of a house and lot in the city of New York, and a leasehold estate in two buildings on other lots therein, and for an account of the rents and profits received therefrom. The prop- erty had formerly belonged to the husband of the plaintiff, and consisted of three par- cels, and upon a sale thereof by his as- signees, the plaintiff requested two of her friends to attend the sale and bid off two of said parcels for her benefit. They subse- quently, at her request, transferred their bids to the defendant, St. John, and he took the conveyance therefor to himself, and paid the assignee for the same, declaring at the time that the plaintiff wished him to buy that propei-ty for her. At the sale of the other parcel, St. John attended the assignee's sale and bid off the same himself, and the as- signments of the two bids and the titles to all the three pieces of property made out to him together in his own name. All these acts were done by St John for Mrs. Voor- hies, at her request and for her benefit. The referee reported in favor of the plaintiff, and the judgment thereon was affirmed at the general term of the First district, on the authority of Sandford v. Norris, supra. On appeal to this court, that judgment was af- firmed in December, 1863, and distinctly on the ground that the statute of frauds was no bar to the performance of the agreement. We must hold this case as decisive of that now under consideration. The same doc- trine has frequently been affirmed in other cases. In C!os V. Cox, 5 Rich. Eq. 365, the owner of land, in danger of being summarily dis- possessed by a sheriff's sale, agreed with his brother, the defendant, that the latter should bid off the land and pay the bid and make a reconveyance on repayment. This agree- ment was declared to the bystanders at the sale, and competition being thus prevented, the land was bought by the brother for one- tenth of its actual value. The whole trans- action was alleged to be "a fraudulent con- trivance on the part of the defendant to obtain his brother's land for one-tenth of its value." The court enjoined the defendant from proceeding at law under the title thus fraudulently obtained, saying: "This coiu-t has often repeated that the statute of frauds should never be perverted to an instrument of fraud. Thus, in a case of an agreement such as the statute plainly declares void, if not reduced to writing, yet if this was omit- ted by fraud, the defendant would not be permitted to avail himself of the statute. In Whitchurch v. Bevis, 2 Brown Ch. 565, 154 rKOPEllTY IN EQUITY— TKUSTS. Lord Thurlow says, If you interpose the medium of fraud, by which the agreement is prevented from being put in. writing, 1 agree the statute is inapplicable. See Keith V. Purvis, 4 Desaus. Eq. 114." In the case cited of Keith v. Purvis, a creditor induced his debtor's agent not to bid at a sale of his debtor's land by promis- ing to give the debtor time to pay the debt, and then to reconvey the land. This agree- ment was disclosed at the sale, and pre- vented other bids, whereby the creditor bought the land at one-third of its value, but afterward refusing to reconvey, the debtor brought his biU for relief. To this it was objected that the agreement was void by the statute of frauds; but the court held, "that if the agreement was void, the creditor must sm-render up his advantage under it and be liable to make good the loss sustained by the adverse party from his conduct." "Can it be tolerated," says the court at page 121, "that a creditor shall, at a sale of his debt- or's property, lull him to sleep and keep ofC other purchasers by an agreement under which he buys in the land for a small sum much below the value, and then that he should declare that the agreement was void under the statute of frauds, and that the other party should have no benefit from the agreement, whilst he reaped all the fruits? Surely not. Courts of justice would be blind indeed if they could permit such a state of things." In Peebles v. Reading, 8 Serg. & R. 492, the supreme court of Pennsylvania said: ''If by the artifice of the purchaser declaring he was to buy for the owner, others were pre- vented from bidding, and the land was sold at a great undervalue, this would make him a trustee." And in Trapnall v. Brown, 19 Ark. 49, property of the value of $5,000 was, by agreement similar to the one in the pres- ent case, bought in for $176, other persons declining to bid on being informed of the ob- ject of the agreement. "Under these cir- cumstances," the court said, "we think it would be a fraud In the purchaser to keep the property in violation of the agreement. That the statute which was designed to pre- vent fraud would be used as a shield and m the commission of fraud, which the courts of equity will not tolerate. We think there- fore that the court below did not ecr in treating the purchaser as a trustee." These observations, made in these cases, are as per- tinent to that now under consideration, as- they were in them. Many of these cases are Identical in all Important particulars with this, and there is no good reason why the same rules of law and morals enunciated in them should not govern and control the decision in this case. The fact that an agreement is void, under the statute of frauds, does not entitle either party to re- lief In equity, but other facts may; and when they do, it is no answer to the claim for relief, that the void agreement was one of the Instrumentalities through which the fraud was effected. Ormond v. Anderson, 2: Ball & B. 309. Where one of the parties to a contract, void by the statute of frauds, avails himself of its invalidity but uncon- sclentiously appropriates what he has ac- quired under it, equity will compel restitu- tion; and it constitutes no objection to the claim, that the opposite party may happen to secure the same practical benefit, through the process of restitution, which would have resulted from the observance of the void; agreement Floyd v. Buckland, 2 Freem. Oh. 268; Oldham v. Litchford, Id. 284; Dev- enish v. Balnes, Finch, Prec. 3; Thynn v.. Thynn, 1 Vern. 296; Reech v. Kennegal, 1 Ves. Sr. 125; Davis v. Walsh, 2 Har. & J. 329; Wilcox v. Morris. 1 Murph. 116; Stod- dard V. Hart, 23 N. Y. 560. It is very clear to my mind, both upon principle and authority, that the referee erred in excluding the evidence offered, ancj that the judgment must be reversed and a new trial ordered, with costs to abide the event PORTER, WRIGHT, LEONARD, and MORGAN, JJ., concurred. HUNT, J., dis- sented. Judgment reversed, and new trial ordered^ PKOPERTY IN EQUITY— TRUSTS. 155 HUN V. GARY. (82 N. Y. 65.) Court of Appeals of New York. 1880. E. Ellery Anderson, for appellants. Fran- sis 0. Barlow, for respondent. EARL, J. This action was brought by the receiver of the Central Savings Bank of the city of New York against the defendants, who were trustees of the bank, to recover damages which, it is alleged, they caused the bank by their misconduct as such trustees. The first question to be considered is the measure of fidelity, care and diligence which such trustees owe to such a bank and its de- positors. The relation existing between the corporation and its trustees is mainly that of principal and agent, and the relation between the trustees and the depositors is similar to that of trustee and cestui que trust The trustees are bound to observe the limits placed upon their powers in the charter, and if they transcend such limits and cause damage, they incur liability. If they act fraudulently or do a willful wrong, it is not doubted that they may be held for all the damage they cause to the bank or its depositors. But if they act in good faith within the limits of powers conferred, using proper prudence and diligence, they are not responsible for mere mistakes or errors of judgment. That the trustees of such corporations are bound to use some diligence in the discharge of their duties cannot be disputed. All the authori- ties hold so. What degree of care and dili- gence are they bound to exercise? Not the highest degree, not such as a very vigilant or extremely careful person would exercise. If such were required, it would be difficult to find trustees who would incur the respon- sibility of such trust positions. It would not be proper to answer the question by saying the lowest degree. Few persons would be willing to deposit money in savings banks, or to take stock in corporations, with the un- derstanding that the trustees or directors were bound only to exercise slight care, such as inattentive persons would give to their own business, in the management of the large and important interests committed to their hands. When one deposits money in a sav- ings bank, or takes stock in a corporation, thus divesting himself of the immediate con- trol of his property, he expects and has the right to expect that the trustees or directors who are chosen to take his place in the man- agement and control of his property, will ex- ercise ordinary care and prudence in the trusts committed to them — the same degree of care and prudence that men prompted by self-in- terest generally exercise in their own afCairs. When one voluntarily takes the position of trustee or director of a corporation, good faith, exact justice, and public policy unite in re- quiring of him such a degree of care and pru- dence, and it is a gross breach of duty— crassa negllgentia— not to bestow them. It is Impossible to give the measure of cul- pable negligence for all cases, as the degi-ee of care required depends upon the subjects to which it is to be applied. First Nat. Bank v. Oceaa Nat. Bank, 60 N. Y. 278. What would be slight neglect in the care of a quantity of iron might be gross neglect in the care of a jewel. What would be slight neglect in the care ex- ercised in the affairs of a turnpike corpora- tion or even of a manufacturing corporation, might be gross neglect in the care exercised in the management of a savings bank intrust- ed with the savings of a multitude of poor people, depending for its life upon credit and liable to be wrecked by the breath of suspi- cion. There is a classification of negligence to be found in the books, not always of prac- tical value and yet sometimes serviceable, in- to slight negligence, gross negligence, and that degree of negligence intermediate the two, attributed to the absence of ordinary care; and the claim on behalf of these trus- tees i^ that they can only be held responsible in this action in consequence of gross neg- ligence, according to this classification. If gross negligence be taken according to its or- dinary meaning— as something nearly ap- proaching fraud or bad faith— I cannot yield to this claim; and if there are any authori- ties upholding the claim, I emphatically dis- sent from them. It seems to me that It would be a mon- strous proposition to hold that trustees, in- trusted with the management of the property, interests and business of other people who di- vest themselves of the management and con- fide in them, are bound to give only slight care to the duties of their trust, and are lia- ble only in case of gross inattention and neg- ligence; and I have found no authority fully upholding such a proposition. It is true that authorities are found which hold that trus- tees are liable only for crassa negligentia, which literally means gross negligence; but that phrase has been defined to mean the ab- sence of ordinary care and diligence adequate to the particular case. In Scott v. De Pey- ster, 1 Bdw. 513, 543— a case much cited — the learned vice-chancellor said: "I think the question in all such cases should and must necessarily be, whether they (directors) have omitted that care which men of common pru- dence take of their own concerns. To re- quire more, would be adopting too rigid a rule and rendering them liable for slight neg- lect; while to require less, would be relaxing too much the obligation which binds them to vigilance and attention in regard to the inter- ests of those confided to their care, and ex- pose them to liability for gross neglect only— which is very little short of fraud itself." In Spering's Appeal, 71 Pa. St. 11, Judge Shars- wood said: "They [directors] can only be re- garded as mandataries — persons who have gratuitously undertaken to perform certain duties, and who are therefore bound to apply ordinary skill and diligence, but no more." In Hodges v. New England Screw Co., 1 R. 156 PliOPEKTY IN EQUITY— TKUSTS. I. 312, Jenckes, J., said: "The sole question is, whether the directors have or have not be- stowed proper diligence. They are liable on- ly for ordinary care; sucli care as prudent men take in their own affairs." And in the same case, Ames, J., said: "They should not therefore be liable for innocent mistakes, un- intentional negligence, honest errors of judg- ment, but only for willful fraud or neglect, and want of ordinary knowledge and care." The same case came again under considera- tion in 3 R. I. 9, and Green, O. J., said: "We think a board of directors, acting in good faith and with reasonable care and diligence, who nevertheless fall into a mistake, either as to law or fact, are not liable for the conse- quences of such mistake." In the case of Liquidators of Western Bank v. Douglas, 11 Sess. Cas. (Scot.) 112, it is said: "Whatever the duties (of directors) are, they must be dis- charged with fidelity and conscience, and with ordinary and reasonable care. It is not necessary that I should attempt to define where excusable remissness ends and gross negligence begins. That must depend to a large extent on the circumstances. It is enough to say that gross negligence in the performance of such a duty, the want of rea- sojiable and ordinary fidelity and care, will impose liability for loss thereby occasioned." In Charitable Corp. v. Sutton, 2 Atk. 405, Lord Chancellor Hardwicke said, that a per- son who accepted the office of director of a corporation "is obliged to execute it with fidelity and reasonable diligence," although he acts without compensation. In Litchfield v. White, 3 Sandf. 545, Sandford, J., said: "In general a trustee is bound to manage and employ the trust property for the benefit of the cestui que trust with the care and dili- gence of a provident owner. Consequently he is liable for every loss sustained by reason of his negligence, want of caution or mistake, as well as positive misconduct." In Spering's Appeal, Judge Sharswood said that directors "are not liable for mistakes of judgment, even though they may be so gross as to appear to us absurd and ridiculous, pro- vided they were honest, and provided they are fairly within the scope of the powers and dis- cretion confided to the managing body." As I understand this language, I cannot assent to It as properly defining to any extent the nature of a director's responsibility. Like a mandatary, to whom he has been likened, he is bound not only to exercise proper care and diligence, but ordinary skill and judgment. As he is bound to exercise ordinary skill and judgment, he cannot set up that he did not possess them. When damage is caused by his want of judgment, he cannot excuse him- self by alleging his gross Ignorance. One who voluntarily takes the position of director, and invites confidence in that relation, under- takes, like a mandatary, with those whom he represents or for whom he acts, that he pos- sesses at least ordinary knowledge and skill, and that he will bring them to bear in the discharge of his duties. Story, Bailm. § 1S2. Such is the rule applicable to public oflicers, to professional men and to mechanics, and such is the rule which must be applicable to every person who undertakes to act for an- other in a situation or employment requiring skill and knowledge; and it matters not that the service is to be rendered gratuitously. These defendants voluntarily took the posi- tion of trustees of the bank. They Invited depositors to confide to them their savings, and to intrust the safe-keeping and manage- ment of them to their skill and prudence. They undertook not only that they would dis- charge their duties with proper care, but that they would exercise the ordinary skill and judgment requisite for the discharge of their delicate trust. Enough has now been said to show what measure of diligence, skill, and prudence the law exacts from managers and directors of corporations; and we are now prepared to examine the facts of this case, for the pur- pose of seeing if these trustees fell short of this measure in the matters alleged in the complaint. This bank was incorporated by the act chapter 467 of the Laws of 1867, and it com- menced business in the spring of that year, in a hired building on the east side of Third avenue, in the city of New York. It remain- ed there for several years, and then re- moved to the west side of the avenue, be- tween Forty-Fifth and Forty-Sixth streets, where it occupied hired rooms until near the time of its failure in the fall of 1875. Dur- ing the whole time the deposits averaged on- ly about $70,000. In 1867, the income of the bank was .$942.12, and the expenses, includ- ing amounts paid for safe, fixtures, charter, current expenses and interest to depositors, were $5,571.34. In 1868, the income was $5,471.43, and the expenses including interest to depositors, $5,719.43. In 1869, the income was $3,918.27, and the expenses and Interest paid, $5,346.05. In 1870 the income was $5,- 784.09, and expenses and interest, $7,040.22. In 1871 the income was $13,551.14; which in- eluded a bonus of $4,000, or $6,000 obtained upon the purchase of a mortgage of $40,000, which mortgage was again sold in 1874 at a discount of $2,000, and the expenses, includ- ing interest paid, were $9,124.05. In 1872 the income was $5,100.51, and the expenses, including interest paid, were $7,212.49. Down to the 1st day of January, 1873, therefore, the total expenses, including interest paid, were $5,046 more than the income. To this sum should be added $2,000, deducted on the sale of the large mortgage in 1874, which was purchased at the large discount in 1S71, as above mentioned, and yet entered in the as- sets at its face. From this apparent deficien- cy should be deducted the value of the safe and furniture of the bank, from which the re- ceiver subsequently realized $500. At the same date the amount due to over one thou- sand depositors was about $70,000, and the TEOPEUTT IN EQUITY— TRUSTS. IS assets of the bank consisted of about $13,000 in casli and tlie balance mostly of mortgages upon real estate. While the bank was in this condition, with a lease of the rooms then occupied by it ex- piring May 1, 1874, the project of purchasing a lot and erecting a banking-house thereon began to be talked of among the trustees. The only reason put on record in the minutes of the meetings held by the trustees for pro- curing a new banking-house was to better the financial condition of the bank. In Feb- ruary, 1873, at a meeting of the trustees a committee was appointed "on site for new building;" and in March the committee en- tered into contract for the purchase of a plot of land, consisting of four lots, on the comer of Forty-Eighth street and Third ave- nue, for the sum of $74,500; of which $1,000 was to be paid down, $9,000 on the 1st day of May then next, and $64,000 to be secured by a mortgage, payable on or before May 1, 1875, with interest from May 1, 1873, at sev- en per cent.; and there was an agreement that payment of the principal sum secured by the mortgage might be extended to May 1. 1877, provided a building should, without unavoidable delay, be erected upon the cor- ner lot, worth not less than $25,000. This contract was reported by the committee to the trustees, at a meeting held April 7. On the 1st day of May, 1873, the real estate was conveyed and the cash payment was made, and four separate mortgages were executed to secure the balance, one upon each lot. The mortgage upon the lot upon which the bank building was afterward erected was for $30,500. At the same time the bank be- came obligated to build upon that lot a build- ing covering its whole front, twenty-flve feet, and sixty feet deep, and not less than five stories high, and have the same inclosed by the 1st day of November then next. Upon that lot the bank proceeded, in the spring of 1875, to erect a building covering the whole front, and seventy-six feet deep, and five stories high, at an expense of about $27,000. And the buiding was nearly completed when the receiver of the bank was appointed in November of that year. The three lots not needed for the building were disposed of, as we may assume, without any loss, leav- ing the corner lot used for the building to cost the bank $29,250; and we may assume that that was then the fair value of the lot. This case may then be treated as if the trustees had purchased the comer lot at $29,250, and bound themselves to erect thereon a building costing $27,000. When the receiver was ap- pointed that lot and building, and other as- sets which produced less than $1,000, con- stituted the whole property of the bank; and subsequently the lot and building were swept away by a mortgage foreclosure, and this ac- tion was brought to recover the damages caused to the bank by the alleged improper investment of its funds, as above stated, in the lot upon which the building was erected. At the time of the purchase of the lot tha bank was substantially insolvent. If it had gone into liquidation, its assets would have fallen several thousand dollars short of dis- charging its liabilities, and this state of things was known to the trustees. It had been in existence about six years, doing a losing business. The amount of its deposits, which its managers had not been able to increase, shows that the enterprise was an abortion from the beginning, either because it lacked public confidence, or was not need- ed in the place where it was located. It had changed its location once without any benefit. It had on hand but about $13,000 in cash, of which $10,000 were taken to make the first payments. The balance of its assets was mostly in mortgages not readily convert- ible. One was a mortgage for $40,000, which had been purchased at a large dis- count, and we may infer that it was not very salable, as the trustees resolved to sell it as early as May, 1873, and in August, 1873, au- thorized it to be sold at a discount of not more than $2,500, and yet it was not sold until 1874. In this condition of things the trustees made the purchase complained of. under an obligation to place on the lot an expensive banking-house. Whether imder the circumstances the purchase was such as the trustees, in the exercise of ordinary pru- dence, skill and care, could make; or wheth- er the act of purchase was reckless, rash, extravagant, showing a want of ordinary pru- dence, skill and care, were Questions for the jury. It is not disputed that, under the charter of this bank, as amended in 1868 (chapter 294), it had the power to purchase a lot for a banking-house "requisite for the transaction of its business." That was a power, like every other possessed by the bank, to be exercised with prudence and care. Situated as this moribund institution was, was it a prudent and reasonable thing to do, to invest nearly half of all the trust funds in this expensive lot, with an obliga- tion to take most of the balance to erect thereon an extravagant building? The trus- tees were urged on by no real necessity. They had hired rooms where they could have remained; or if those rooms were not ade- quate for their small business, we may as- sume that others could have been hired. They put forward the claim upon the trial that the rooms they then occupied were not safe. That may have been a good reason for making them more secure, or for get- ting other rooms, but not for the extrava- gance in which they indulged. It is infer- able however that the principal motive which influenced the trustees to make the change of location was to improve the financial con- dition of the bank by increasing its depos- its. Their project was to buy this corner lot and erect thereon an imposing edifice, to inspire confidence, attract attention, and thus draw deposits. It was intended as a sort of advertisement of the bank, a very expensive 158 PKOPEKTT IN EQUITY— TKUSTS. •one indeed. Savings banks are not organ- ized as business enterprises. Tliey have no stocliliolders, and are not to engage in specu- lations or money-maljing in a business sense. Tliey are simply to take the deposits, usu- ally small, which are offered, aggregate them, and I^eep and invest them safely, paying su9h Interest to the depositors as is thus made, after deducting expenses, and paying the principal upon demand. It is not legiti- mate for the trustees of such a iDank to seek ■deposits at the expense of present deposit- ors. It is their business to take deposits when offered. It was not proper for these trustees— or at least the jury may have found that it was not— to take the money then on deposit and invest in a banking- house, merely for the purpose of drawing ■other deposits. In making this Investment •the interests of the depositors whose money was taken, can scarcely be said to have been ■consulted. It matters not that the trustees purchased this lot for no more than a fair value, and that the loss was occasioned by the subse- quent general decline in the value of real estate. They had no right to expose their bank to the hazard of such a decline. If the purchase was an improper one when made. It matters not that the loss came from the unavoidable fall In the value of the real es- tate purchased. The jury may have found that it was grossly careless for the trustees ■to lock up the funds in their charge in such an investment, where they could not be reached In any emergency which was likely to arise in the affairs of the crippled bank. We conclude therefore that the evidence justified a finding by the jury that this was not a case of mere error or mistake of judg- ment on the part of the trustees, but that it was a case of improvidence, of reckless, un- reasonable extravagance, in which the trus- tees failed in that measure of reasonable pru- dence, care and slcill which the law requires. This case was moved for trial at a circuit •court, and before the jury was impaneled the •defendants claimed that the case was im- properly in the circuit, and that it should be tried at special term; and the court ordered that the trial proceed, and at the close of the evidence the defendants moved that the ■complaint be dismissed, on the ground that the action was not a proper one to be tried before a jury, and should be tried before the ■equity branch of the court. The motion was denied, and these rulings are now alleged for Terror. The receiver in this case represents the bank, and may maintain any action the bank could have maintained. The trustees may be treated as agents of the bank. In re German Min. Co., 27 Eng. Law \xt which the declaration would be defect- ive. The jurisdiction having been assumed and exercised on this ground, it is stiU 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 tmder 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 they 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 tliis 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 falling circumstances, in- solvent, or in any manner pressed by their creditors; for aught that appears they were at that time solvent, and responsible for aU 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. EQUITABLE EIGHTS. 169 but with, the design to 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 tliird parties. Henshaw v. Bryant, 4 Scam. 97. But tlie 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. 170 EQUITABLE RIGHTS. HUNT V. ROTJSMANIBR'S ADM'RS. (8 Wheat. 174.) Supreme Court of the United States. March 14, 1823. Appeal from circuit court of Rhode Island. The original bill, filed by ■ the appellant. Hunt, stated, that Lewis Rousmanier, the in- testate of the defendants, applied to the plaintiff, in January, 1820, for the loan of $1,450, offering to give, in addition to his notes, a bUl of sale, or a mortgage of his in- terest in the brig Nereus, then at sea, as collateral security for the repayment of the money. The sum requested was lent; and on the 11th of January the said Rousmanier executed two notes for the amount; and on the 15th of the same month, he executed a power of attorney, authorizing the plaintiff to malje and execute a bill of sale of three- fourths of the said vessel to himself, or to any other iserson; and in the event of the said vessel, or her freight, being lost, to col- lect the money which should become due on a policy by which the vessel and freight were insured. This instrument contained also, a proviso, reciting, that the power was given for collateral security for the payment of the notes already mentioned, and was to be void on their payment; on the failure to do which, the plaintiff was to pay the amount thereof, and all expenses, out of the proceeds of the said property, and to return the resi- due to the said Rousmanier. The bill fur- ther stated, that on the 21st of March, 1820, the plaintiff lent to the said Rousmanier the additional sum of $700, taking his note for payment, and a similar power to dispose of his Interest in the schooner Industry, then also at sea. The bill then charged, that on the 6th of May, 1820, the said Rousmanier died insolvent, having paid only $200 on the said notes. The plaintifC gave notice of his claim; and on the return of the Nereus and Industry, took possession of them, and offer- ed the intestate's interest in them, for sale. The defendants forbade the sale; and this bill was brought to compel them to join in it. The defendants demurred generally, and the court sustained the demurrer; but gave the plaintiff leave to amend his bill. Hunt v. Ennis, 2 Mason, 244, Fed. Cas. No. 6,889. The amended bill stated, that it was ex- pressly agreed between the parties, that Rousmanier was to give specific security on the Nereus and Industry; and that he offer- ed to execute a mortgage on them. That counsel was consulted on the subject, who advised, that a power of attorney, such as was actually executed, should be taken in preference to a mortgage, because it was equally valid and effectual as a security, and would prevent the necessity of changing the papers of the vessels, or of taking pos- session of them on their arrival in port. The powers were, accordingly, executed, with the full belief that they would, and with the intention that they should, give the plaintiff as full and perfect security as would be given by a deed of mortgage. The bill pray- ed, that the defendants might be decreed tc join in a sale of the interest of their intestate- in the Nereus and Industry, or to sell the same themselves, and pay out of the pro- ceeds the debt due to the plaintiff. To this- amended bill, also, the defendants demurred, and on argument, the demurrer was sustain- ed, and the bill dismissed. From this de- cree, the plaintiff appealed to this court. The cause was argued at the last term. Mr. Wheaton, for appellant. Mr. Hunter,, for respondents. MARSHALL, C. J., delivered the opinion of the court. The counsel for the appellant objects to the decree of the circuit court on two grounds. He contends, 1. That this power of attorney does, by its own opera- tion, entitle the plaintiff, for the satisfaction of his debt, to the interest of Rousmanier in the Nereus and the Industry. 2. Or, if this, be not so, that a court of chancery will, the- conveyance being defective, lend its aid to carry the contract into execution, according to the intention of the parties. 1. We will consider the effect of the power of attorney. This instrument contains nO' words of conveyance or of assignment, but is a simple power to sell and convey. As the power of one man to act for another, depends on the will and license of that other, the power ceases, when the will, or this per- mission, is withdrawn. The general rule,, therefore, is, that a letter of attorney may,, at any time, be revoked by the party who makes it; and is revoked by his death. But this general rule, which results from the na- ture of the act, has sustained some modifi- cation. Where a letter of attorney forms a part of a contract, and is a security for money, or for the performance of any act which is deemed valuable, it is generally, made irrevocable, in terms, or if not so, isJ deemed irrevocable in law. 2 Bsp. 565. Al- though a letter of attorney depends, from its nature, on the will of the person making it, and may, in general, be recalled at his will;. yet, if he binds himself, for a consideration, in terms, or by the nature of his contract, not to change his will, the law will not per- mit him to change It Rousmanier, there- fore, could not, during his life, by any act of his own, have revoked this letter of at- torney. But does it retain its efficacy after his death? We think, it does not. We think it well settled, that a power of attorney, though irrevocable during the life of the par- ty, becomes extinct by his death. This principle is asserted in Littleton (sec- tion 66), by Lord Coke, in his commentary on that section (52b), and in WUles' Re- ports (105, note, and 565). The legal reason of the rule is a plain one. It seems founded on the presumption, that the substitute acts by virtue of the authority of his principal, existing at the time the act is performedf EQUITABLE EIGHTS. 171 and on the manner in -which he must execute his authority, as stated in Combes' Case, 9 Colie, 766. In that case, it was resolved, that "when any has authority, as attorney, to do any act, he ought to do it in his name who gave the authority." The reason of this resolution is obvious. The title can, regular- ly, pass out of the person in whom it is vested, only by a conveyance in his own name; and this cannot be executed by an- other for him, when It could not, in law, be executed by himself. A conveyance in the name of a person, who was dead at the time, would be a manifest absurdity. This general doctrine, that a power must be executed in the name of a person who gives it, a doctrine founded on the nature of the transaction, is most usually engraft- ed in the power itself. Its usual language is, that the substitute shall do that which he is empowered, to do, in the name of his prin- cipal. He is put in the place and stead of his principal, and is to act in his name. This accustomed form is observed in the instrument under consideration. Hunt is con- stituted the attorney, and is authorized to make, and execute, a regular bill of sale, in the name of Rousmanier. Now, as an authority must be pursued, in order to malie the act of the substitute the act of the prin- cipal, it is necessary, that this bill of sale should be in the name of Rousmanier; and it would be a gross absurdity, that a deed should purport to be executed by him, even by attorney, after his death; for, the attor- ney is in lie place of the principal, capable of doing that alone which the principal might do. This general rule, that a power ceases with the life of the person giving it, admits of one exception. If a power be coupled with an "interest," it survives the person giving; it, and may be executed after his death. As this proposition is laid down too positively in the books to be controverted, it becomes necessary to inquire, what is meant by the expression, "a power coupled with an inter- est?" Is it an interest in the subject on which tlje power is to be exercised? or is it an in- terest in that which is produced by the ex- ercise of the power? We hold it to be clear, that the interest which can protect a power, after the death of a person who creates it, must be an interest in the thing itself. In other words, the power must be engrafted on an estate in the thing. The words them- selves would seem to import this meaning. "A power coupled with an interest," is a power which accompanies, or is connected with, an interest. The power and the inter- est are united in the same person. But if we are to understand by the word "interest," an interest in that which is to be produced by the exercise of the power, then they are never united. The power, to produce the interest, must be exercised, and by its ex- ercise, is extinguished. The power ceases, when the interest commences, and therefore, cannot, In accurate law language, be said to be "coupled" with it. But the substantial basis of the opinion of the court on this point, is found in the legal reason of the principle. The interest or title in the thing being vested in the person who gives the power, remains in him, unless it be conveyed with the power, and can pass out of him only by regular act in his own name. The act of the substitute, therefore, which, in such a case, is the act of the principal, to be legally effectual, must be in his name, must be such an act as the princi- pal himself would be capable of performing, and which would be valid, if performed by him. Such a power necessarily ceases with the life of the person making it. But if the interest, or estate, passes with the power, and vests in the person by whom the power is to be exercised, such person acts in his own name. The estate, being in him, passes from him, by a conveyance in his own name. He is no longer a substitute, acting in the place and name of another, but is a princi- pal, acting in his own name, in pursuance of powers which limit his estate. The legal reason which limits a power to the life of the person giving it, exists no longer, and the rule ceases with the reason on which it is founded. The intention of the instrument may be effected, without violating any legal principle. This idea may be in some degree illustrated by examples of cases in which the law is clear, and which are incompatible with any other exposition of the term "power coupled with an interest." If the word "interest," thus used, indicated a title to the proceeds of the sale, and not a title to the thing to be sold, then a power to A., to sell for his own benefit, would be a power coupled with an interest; but a power to A., to sell for the benefit of B., would be a naked power, which could be executed only in the life of the per- son who gave it. Yet, for this distinction, no legal reason can be assigned. Nor is there any reason for it in justice; for, a power to A., to sell for the benefit of B., may be as much a part of the contract on which B. advances his money, as if the power had been made to himself. If this were the true exposition of the term, then a power to A,, to sell for the use of B., inserted in a con- veyance to A., of the thing to be sold, would not be a power coupled with an interest, and, consequently, could not be exercised, after the death of the person making it; while a power to A., to sell and pay a debt to himself, tJaough not accompanied with any conveyance which might vest the title in him, would enable him to make the convey- ance, and to pass a title, not in him, even after the vivifying principle of the power had become extinct. But every day's ex- perience teaches us, that the law is not, as the first case put would suppose. We know, that a power to A., to sell for the benefit of B., engrafted on an estate conveyed to 172 EQUITABLE KTGHTS. A., may be exercised at any time, and is not affected by the death of the person who created it. It is, then, a power coupled with an interest, although the person to whom it is given had no interest in its exercise. His power is coupled with an interest in the thing, which enables him to execute it in his own name, and is, therefore, not depend- ent on the life of the person who created it. The general rule, that a power of attorney, though irrevocable by the party, during his life, is extinguished by his death, is not af- fected by the circumstance, that testamenta- ry powers are executed after the death of the testator. The law, in allowing a testa- mentary disposition of property, not only permits a will to be considered as a con- veyance, but. gives it an operation which is not allowed to deeds which have their effect during the life of the person who executes them. An estate given by will may take ef- fect at a future time, or on a future contin- gency, and in the meantime, descends to the heir. The power is, necessarily, to be ex- ecuted after the death of the person who makes it, and cannot exist during his life. It is the intention, that it shall be executed after his death. The conveyance made by the person to whom it is given, takes effect by virtue of the will, and the purchaser holds his title under it. Every case of a power given in a will, is considered in a court of chancery as a trust for the benefit of the person for whose use the power is made, and as a devise or bequest to that person. It is, then, deemed perfectly clear, that the power given in this case, is a naked power, not coupled with an interest, which, though irrevocable by Rousmanier himself, expired on his death. It remains to inquire, whether the appellant is entitled to the aid of this court, to give effect to the intention of the parties, to subject the interest of Rousmanier in the Nereus and Industry to the payment of the money advanced by the plaintiff, on the credit of those vessels, the instrument taken for that purpose having totally failed to effect its object. This is the point on which the plaintiff most relies, and is that on which the court has felt most doubt. That the parties intended, the one to give, and the other to receive, an effective security on the two vessels men- tioned In the bill, is admitted; and the ques- tion is, whether the law of this court will enable it to carry this intent into execution, when the instrument relied on by both par- ties has failed to accomplish its object. The respondents insist, that there is no defect in the instrument itself; that It contains precisely what it was Intended to contain, and is the instrument which was chosen by the parties, deliberately, on the advice of counsel, and intended to be the consumma- tion of their agreement. That In sucn a case the written agreement cannot be varied by parol testimony. The counsel for the appel- lant contends, with great force, that the cases in which parol testimony has been rejected, are cases in which the agreement itself has been committed to writing; and one of the parties has sought to contradict, explain or vary it, by parol evidence. That in this case, the agreement is not reduced to writing. The power of attorney does not profess to be the agreement, but is a collateral instrument, to enable the party to have the benefit of it, leaving the agreement still in full force, in its original form. That this parol agreement, not being within the statute of frauds, would be enforced by this court, if the power of attorney had not been executed; and not being merged in the power, ought now to be executed. That the power being incompetent to its object, the court will enforce the agreement against gen- eral creditors. This argument is entitled to, and has received, very deliberate considera- tion. The first inquiry respects the fact Does this power of attorney purport ' to be the agreement ? Is it an instrument collateral to the agreement? Or is it an execution of the agreement itself, in the form intended by both the parties ? The biU. states an offer on the pai-t of Rousmanier to give a mortgage on the vessels, either in the usual form, or in the form of an absolute bill of sale, the vendor taking a defeasance; but does not state any agreement for that particular se- curity. The agreement stated in the bill is, generally, that the plaintiff, in addition to the notes of Rousmanier, should have specific security on the vessel; and it alleges that the parties applied to counsel for advice re- specting the most desirable mode of taking this security. On a comparison of the ad- vantages and disadvantages of a mortgage, and an irrevocable power of attorney, counsel advised the latter instrument, and assigned reasons for his advice, the validity of which being admitted by the parties, the power of attorney was prepared and executed, and was received by the plaintiff as full secm'ity for his loans. This is the case made by the amended bill; and it appears to the court, to be a case in which the notes and power of attorney are admitted to be a complete con- summation of the agreement. The thing stipulated was a collateral security on the Nereus and Industry. On advice of counsel, this power of attorney was selected, and giv- en as that security. We think it a complete execution of that part of the agreement; as complete, though not as safe an execution of it, as a mortgage would have been. It is contended, that the letter of attorney does not contain all the terms of the agree- ment. Neither would a bill of sale, nor a deed of mortgage, contain them. Neither in- strument constitutes the agreement itself, but is that for which the agreement stipulat- ed. The agreement consisted of a loan of money on the part of Hunt, and of notes for its repayment, and of a collateral security on the Nereus and Industry, on the part of Rousmanier. The money was advanced, the EQUITABLE EIGHTS. Hi Botes were given, and tWs letter of attorney was, on advice of counsel, executed and re- ceived as tlio collateral security whicli Hunt required. The letter of attorney is as much an execution of that part of the agreement which stipulated a collateral security, as the notes are an execution of that part which stipulated that notes should be given. But this power, although a complete securi- ty, dm-ing the life of Rousmanier, has been rendered inoperative by his death. The le- gal character of the security was misunder- stood by the parties. They did not suppose, that the power would, in law, expire with Kousmanier. The question for the consid- eration of the com-t is this: If money be advanced on a general stipulation to give se- curity for its repayment on a specific article; and the parties deliberately, on advice of counsel, agree on a particular instrument, which is executed, but, from a legal quality inherent In its nature, that was unlmown to the parties, becomes extinct by the death of one of them; can a court of equity direct a new security of a different character to be given? or direct that to be done which the parties supposed would have been effected by the instrument agreed on between them? This question has been very elaborately argued, and every case has been cited which could be supposed to bear upon it. No one of these cases decides the very question now before tlie court It must depend on the principles to be collected from them. It is a general rule, that an agreement in writing, or an instrument carrying an agree- ment into execution, shall not be varied by parol testimony, stating conversations or cir- cumstances anterior to the written instru- ment. This rule is recognized in courts of equity as well as in courts of law; but courts of equity grant relief in cases of fraud and mistake, which cannot be obtained in courts of law. In such cases, a court of equity may carry the intention of the parties into execution, where the written agreement fails to express that intention. In this case, there is no ingredient of fraud. Mistake is the sole ground on which the plaintilf comes Into court; and that mistake Is in the law. The fact Is, in all respects, what It was sup- posed to be. The instrument taken, is the instrument intended to be taken. But It is, contrary to the expectation of the parties, ex- tinguished by an event not foreseen nor ad- verted to, and is, therefore, incapable of ef- fecting the object for which it was given. Does a court of equity, in such a case, sub- stitute a different instrument for that which has failed to effect its object? In general, the mistakes against which a court of equity relieves, are mistakes In fact The decisions on this subject, though not al- ways very distinctly stated, appear to be founded on some misconception of fact. Yet some of them bear a considerable analogy to that under consideration. Among these, is that class of cases in which a joint obliga- tion has been set up in equity against the representatives of a deceased obligor, who were discharged at law. If the principle of these decisions be, that the bond was joint, from a mere mistake of the law, and that the court will relieve against this mistake, on the ground of the pre-existing equity, arising from the advance of the money, it must be admitted, that they have a strong bearing on the case at bar. But the judges in the courts of equity seem to have placed them on mistake in fact, arising from the ig- norance of the draftsman. In Simpson v. Vaughan, 2 Atk. 33, the bond was drawn by the obligor himself, and under circumstances which induced the court to be of opinion, that it was intended to be joint and several. In Underbill v. Horwood, 10 Ves. 209, 227, Lord Eldon, speaking of cases in which a joint bond has been set up against the repre- sentatives of a deceased obligor, says, "the court has inferred, from the nature of the condition, and the transaction, that it was made joint, by mistake. That is, the instru- ment is not what the parties intended m fact. They Intended a joint and several ob- ligation; the scrivener has, by mistake, pre- pared a joint obligation." All the cases in which the court has sus- tained a joint bond against the representa- tives of the deceased obligor, have turned up- on a supposed mistake in drawing the bond. It was not until the case of Sumner v. Pow- ell, 2 Mer. 36, that anything was said by the judge who determined the cause, from which it might be Inferred, that relief in these cases would be aftorded on any other principle than mistake in fact. In that case, the court refused its aid, because there was no equity antecedent to the obligation. In delivering his judgment, the master of the rolls (Sir W. Grant) Indicated very clearly an opinion, that a prior equitable considera- tion, received by the deceased, was indis- pensable to the setting up of a joint obliga- tion against his representatives; and added,, "so, where a joint bond has. In equity, been considered as several, there has been a credit previously given to the different persons who have entered into the obligation." Had tliis case gone so far as to decide, that "the credit previously given" was the sole ground on which a court of equity would consider a joint bond as several, it would have gone far to show, that the equitable obligation re- mained, and might be enforced, after the legal obligation of the instrument had ex- pired. But the case does not go so far; it does not change the principle on which the court had uniformly proceeded, nor discard the idea, that relief is to be gi-anted, because the obligation was made joint, by a mistake in point of fact. The case only decides, that this mistake, in point of fact, will not be presumed by the court, in a case where no- equity existed antecedent to the obligation. 174 EQUITABLE BIGHTS. where no advantage was received by, and no credit given to, the person against whose estate the instrument is to be set up. Yet, the course of the court seems to be uniform, to presume a mistake, in point of fact, in ev- ery case where a joint obligation has been given, and a benefit has been received by the deceased obligor. No proof of actual mis- take is required; the existence of an ante- cedent equity is sufficient. In cases attend- ed by precisely the same circumstances, so far as respects mistake, relief will be given against the representatives of a deceased obligor, who had received the benefit of the obligation, and refused against the repre- sentatives of him who had not received it. Yet the legal obligation is as completely ex- tinguished in the one case as in the other; and the facts stated, in some of the cases in which these decisions have been made, would rather conduce to the opinion, that the bond was made joint, from ignorance of the legal consequences of a joint obligation, than from any mistake in fact The case of lansdown v. Lansdown, Mos. 364, if it be law, has no inconsiderable bear- ing on this cause. The right of the heir- at-law was contested by a younger member of the family, and the arbitrator to whom the subject was referred decided against him. He executed a deed in compliance with this award, and was afterwards relieved lagainst it, on the principle that he was igno- rant of his title. The ease does not sup- pose this fact, that he was the eldest son, to have been unknown to him; and if he was ignorant of anything, it was of the law, which gave him, as eldest son, the estate he had conveyed to a younger brother. Yet he was relieved in chancery against this con- veyance. There are certainly strong objec- tions to this decision in other respects; but, as a case in which relief has been granted on a mistake in law, it cannot be entirely disregarded. ; Although we do not find the naked prin- ciple, that relief may be granted on account pf ignorance of law, asserted in the books, we find no case in which it has been decided, that a plain and acknowledged mistake in law is beyond the reach of equity. In the case of Iiord Irnham v. Child, 1 Brown, Ch. 91, application was made to the chancellor to establish a clause, which had been, it was said, agreed upon, but which had been con- •sidered by the parties, and excluded from vthe written instrument, by consent. It is true, they excluded the clause, from a mis- taken opinion that it would make the con- tract usurious, but they did not believe that the legal efl;ect of the contract was precisely the same as if the clause had been inserted. They weighed the consequences of inserting and omitting the clause, and preferred the latter. That, too, was a case to which the statute applied. Most of the cases which have been cited were within the statute of frauds, and it is not easy to say, how much has been the influence of that statute on them. The case cited by the respondent's counsel from Precedents in Chancery, is not of this description; but it does not appear from that case that the power of attorney was intend- ed, or believed, to be a lien. In this case, the fact of mistake is placed beyond any controversy. It is averred in the bill, and admitted by the demurrer, that "the powers of attorney were given by the said Rous- manier, and received by the said Hunt, un- der the belief that tbey Tvere, and with the intention that they should create, a specifia lien and security on the said vessels." We find no case which we think precisely in point; and are unwilling, where the effect of the instrument is acknowledged to have been entirely misunderstood by both parties, to say, that a court of equity is incapable of affording relief. The decree of the circuit court is reversed; but as this is a case in which creditors are concerned, the court, in- stead of giving a final decree on the demur- rer, in favor of the plaintiff, directs the cause to be remanded, that the circuit court may permit the defendants to withdraw their de- murrer, and to answer the bill. Decree: This cause came on to be heard, on the transcript of the record of the cir- cuit court of the United States for the dis- trict of Rhode Island, and was argued by counsel: on consideration whereof, this court is of opinion, that the said circuit court erred, in sustaining the demurrer of the defend- ants, and dismissing the bill of the complain- ant. It is, therefore, decreed and ordered, that the decree of the said circuit court in this case be, and the same is hereby, re- versed and annulled. And it is further or- dered, that the said cause be remanded to the said circuit court, with directions to per- mit the defendants to withdraw their de- murrer, and to answer the bill of the com- plainants. EQUITABLE RIGHTS. 176 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- lord county; Talntor, Judge. Action by Park Bros. & Co., Limited, against the Blodgett & Clapp Company for damages for breacli of contract. Judgment lor defendant. Plaintiff appeals. Affirmed. Albert H. Walker, for appellant. Edward S. White, lor 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 lor the qualities of steel named therein. "Deliveries to be made 1. o. b. Pittsburgh, and New York freight al- lowed to Hartford. To be specified lor 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 foiu'th 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 pm-chase 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 ..^ked 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 com-t 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 fiu"ther 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 176 EQUITABLE RIGHTS. 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 plaintifE claims that the mistake in question is one of law, and is of such a nature that it cannot be corrected in a oourt of equity. That a court of equity, under certain circumstances, may reform a written 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 Blr. Mark- by, in his "Elements of Law" (sections 268 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 imder 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 com-t of equity will, and under others it will not, reform a writing founded on a mistake of fact; under certain circum- stances it will, and under others it will not, reform an insti-ument 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 much con- sequence; the more important question is whether it is such a mistake as a court of equity wiU 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 such 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, tlie 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 vTritten 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 muttial 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 wiU correct in a proper case. Sibert V. McAvoy, 15 111. 106. If, then, the oral agfeement in the case at bar had been for the sale and pui'chase 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 com-t 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 materi not made payable to him was due to theit mutual misapprehension of the legal effect of the language used in the certificate. * • * Equity requires an amendinent of the writing that will make the contract what the parties supposed it was, and intended it shoiild 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 a deed drawn professedly to carry out the 178 . EQUITABLE RIGHTS. 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 mistaiie 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 sirictness in the foUowing cases: Clayton v. Freet, 10 Ohio St. 544; Bush v. Hicks, 60 N. Y. 298; Andrews v. Andrews, 81 Me. 337, 17 Atl. 166; 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 elsewliere, 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. 248; and Haussman v. Burn- ham, 59 Conn. 117, 22 Atl. 1065. Indeed, since the time of Northrop v. Graves, sup'ra, 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.) § 269a; Steph. Dig. Ev. § 90. The view we have taken of this case ren- ders it unnecessary to notice at any Ijngth the cases cited by counsel for the plaintiff In his able argument before us. Upon hla brief, he cites five from Illinois, two froL" Indiana, and one from Arkansas. After an 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 coimsel 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 he 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 regardea as sup- porting the plaintiff's contention. There is no error apparent upon the record. In this opinion the other judges concurred. EQUITABLE EIGHTS. 179 RENARD V. CLINK et al. (51 N. W. 692, 91 Mich. 1.) Supreme Court of Michigan. JNIarch IS, 1892. Appeal from circuit court, Cliarlevoix coun- ty, in chancery; Jonathan G. Ramsdell, Judge. Suit to foreclose a mortgage by Louisa Renard against Alice A. Clink, Eliza S. Fogg, John Nichols, and Walter L. French. Bill dismissed. Complainant appeals. Reversed. Norton & Keat, for appellant. S. H. Clinlj, for appellees. MONTGOMERY, J. The bill in this cause was filed to foreclose a mortgage executed by the defendant Alice A. Clink to one A. H. Van Dusen, and by him assigned to com- plainant. The other defendants are subse- quent purchasers with notice, after the mort- gage became due. A foreclosure at law was attempted, a sale made, and a deed executed to complainant; but, owing to the fact that the assignment of the mortgage to complain- ant was not of record at the time of said attempted foreclosure, that proceeding proved ineffectual. After the complainant had ob- tained her deed on the foreclosure at law, and before the filing of the present bill, the de- fendant Clink tendered to complainant the amount due upon the mortgage, exclusive of the costs of such former foreclosure ; and in this proceeding it is claimed that such tender operated to discharge the lien of the mort- gage. The court below sustained this de- fense, and dismissed the bill. It is made clear by the testimony that the complainant, at the time she refused the ten- ■der, supposed that she had acquired title by her former foreclosure, and that, notwith- standing this, she was ready to accept the amount of the mortgage, interest, and costs. It also appears that she offered to take the money tendered so far as it would go, but that defendant refnised to permit this unless she would accept it in full payment and dis- charge of the mortgage. Under these circum- stances, we think the court below erred in dismissing the bill. Under the repeated rul- ings of this court, a tender of the full amount due upon the mortgage will operate to dis- charge the lien of the mortgage if the tender lie refused without adequate excuse. Moyna- han V. Moore, 9 Mich. 9; Eslow v. Mitchell, ^6 Mich. 500; Sager v. Tupper, 35 Mich. 134; Stewart v. Brown, 48 Mich. 383, 12 N. W. 499. But in the present case it appears beyond question that the complainant had no purpose •of exacting from the defendant any sum be- yond what she believed to be her legal due. While it is a general rule that equity will not relieve against a mistake of law, this rule Is not universal. Where parties, with knowl- edge of the facts, and without any inequita- ble incidents, have made an agreement or other instrument as they intended it should be, and the writing expresses the transaction as it was understood and designed to be made, equity will not allow a defense, or grant a reformation or rescission, although one of the parties may have mistaken or mis- conceived its legal meaning, scope, or effect. Martin v. Hamlin, 18 Mich. 354; Lapp v. Lapp, 43 Mich. 287, 5 N. W. 317. But where a person is ignorant or mistaken with respect to his own antecedent and existing private legal rights, interest, or estate, and enters in- to some transaction the legal scope and opera- tion of which he correctly apprehends and understands, for the purpose of affecting such assumed rights, interests, or estates, equity will grant its relief, defensive or affirmative, treating the mistake as analogous to, if not identical with, a mistake of fact. 2 Pom. Eq. § 849, p. 314; Beynell v. Sprye, 8 Hare, 222; Blakeman v. Blakeman, 39 Conn. 320; Whelen's Appeal, 70 Pa. St. 410; Hearst v. Pujol, 44 Cal. 230; Morgan v. Dod, 3 Colo. 551; Cooper v. Phibbs. L. R. 2 H. L. 149; Lansdowne v. Lansdowne, 2 Jac. & W. 205. In Myer v. Hart, 40 Mich. 517, the mort- gagor filed his bill to set aside a mortgage sale, and asked that the premises be relieved from the mortgage lien. The court found that the mortgagee was mistaken as to his legal rights, but was acting in good faith, and refused to enforce the statutory penalty, and decreed that the mortgagor pay the mortgage debt as a condition to relief. In Canfield v. Conkling, 41 Mich. 371, 2 N. W. 191, a bill was filed to set aside a mortgage, and to re- cover the penalty for refusal to discharge it on tender of the amount due. The court found that the tender was sufficient, and say: "He [defendant} was bound tp accept the ten- der, and complainant had made out a sufficient case for relief. But the question was one on which he might be mistaken without any serious fault, and we do not think it one where the mortgage ought to be held can- celed without payment; nor is it a case call- ing for the statutory penalty for a willful and knowing wrongful refusal to discharge the mortgage." The decree below should be re- versed, and a decree entered in this court providing for a sale of the mortgaged prem- ises to satisfy the amount due and unpaid up- on the mortgage. The defendant will recover the costs of the court below, and the com- plainant will be entitled to the costs incurred In this court. The other justices concurred. 160 EQUITABLE RIGHTS. JACOBS V. MOEANGE. (47 N. Y. 57.) Court of Appeals of New York. Dec, 1S71. Appeal from judgment of tlie 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 gi'ound 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 com-t 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 plaintiiS can take. This must be the "surprise" sometimes spoken of in the books. Jeremy Eq. .Tur. 360. What a flood of litigation would such a rule open? If this can be regarded as the "sm-prise" 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 sa:me 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 the manner were prescribed. This statute was wen 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 com't, 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 ease, 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. Gh. 166; 10 Am. Dec. 316, where ignorance of the law was set up as a gi-ound of defense, the court afiirmed 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 com-t of equity extend the time prescribed by the statute? JIany such cases have oc- ciu-red from a misapprehension of the law as to when a judgment is perfected. Com'ts of law could grant no relief, and I am not aware that any lawyer has supposed that a com't of equity had any more power to ex- tend the statute. In Champlin v. Laytin, 18 Wend. 407; 01 Am. Dec. 382, in the court of errors on appeal from chancery, Bronsou, J., review- ed the authorities in a sound opinion, show- ing as he claimed that there was really no EQUITABLE RIGHTS. 181 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 he aflh'med 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 diiSculty of proving the one or the other seems to constitute all the difference in the cases. Without any special review of authorities on this tiuestion 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 Uke these, and no soimd principle will authorize it. The decree must be reversed, with-out costs. All concur. 182 EQUITABLE RIGHTS. PETERSON V. GROVER et al. (20 Me. 363.) Supreme Judicial Court of Maine. July Term, 1841. Bill in equity, heard on bill, answer, and proof. Tbe facts are stated in substance in the opinion of the court. Mr. Thacher, for plaintiff. Mr. Hobbs, for defendants. SHEPLEY, J. The bill alleges, in sub- stance, that in the year 1821, the complainant made a mistalie in writing a deed of release of a lot of land in the township now called Cutler, by writing the word "south-east" in- stead of "south-west," in stating the first bound of the lot. That the effect of this mis- take was to describe the lot immediately east- erly and adjoining, which was owned by the complainant in fee, instead of the one in- tended to be conveyed, in which he owned only the improvements. That the lot intend- ed to be conveyed, or part of it, is now num- bered twenty-one, and that conveyed is num- bered twenty. That one of the grantees en- tered upon and has continued to possess the lot intended to be conveyed, while the com- plainant and his grantees have continued in the possession of the one conveyed. The mis- take is clearly proved by the testimony, and is admitted by the answers. The rule, that parol testimony is not to be admitted to vary an instrument in writing, prevails as well in equity as at law. Courts of equity admit an exception to it, where a mistake is alleged; and if it be clearly proved or admitted, they give relief. This is a case in which, accord- ing to the rules of equity, the deed should be reformed by correcting the mistake, unless the matters set forth in the answers vary the rights of the parties. The grievances alleg- ed by the respondents, and for which one of them claims to have compensation made be- fore the error is corrected, so far as they are proved by their own testimony, are in sub- stance these. That the complainant was em- ployed by Jones and others, the owners in fee of the lot intended to be conveyed, to sur- vey it, when, in the same year, 1821, one of the respondents purchased it of them. That he was Instructed to run out one hun- dred acres of good land exclusive of the heath, and that he did so run it out. That there were about fifty acres of heath found in the lot, not computed as part of It. That eight or nine years ago the complainant was again employed to run out the land lying northerly of the lot, and that he ran the southerly line of the lot, now partially des- ignated as lot numbered seven, so as to take off a large number of acres belonging to lot 21, as it was originally surveyed. That there was a large quantity of timber on the part so taken off, constituting the prin- cipal value of the whole lot. That when the fee of the lot was purchased of Jones and others, the deed was made by copying the boundaries of the lot described in the deed from the complainant. That Jones and oth- ers, in the year 1832, conveyed lot numbered seven to Marston and others, who prosecuted one of the respondents for cutting, where he alleges it should have been in his own lot, and that he was obliged to pay damages for it. The argument for the respondents is, that if the deed from the complainant had de- scribed and conveyed lot 21, they should have acquired by that deed and by the deed of the fee of the same, a good title as far northerly as the spotted tree, named in the deed as the north-east comer, although it might have stood more than two hundred and seventy- one rods from the first bound. That in con- sequence of the deed from Jones and others to Marston and others, they cannot, if the mistake in their deed be now corrected, hold the title to that extent against them; and must lose the most valuable portion of their land, through an error originating with the complainant. The allegations and proofs, out of which this argument arises, are many of them strongly controverted: but let them for this purpose be regarded as proved. The inquiry will then arise, how far the com- plainant is responsible for such a result It does not appear, that he made or had any connexion with the deed from Jones and oth- ers to one of the respondents. If the mis- take in his deed to them be corrected, it will still convey, whatever change may have tak- en place since, all that it was intended to convey, the improvements on the lot. If the respondent, who received the deed from Jones and others with warranty, obtained no title, it is to be presumed he will obtain a full indemnity for the loss of It. Or if by any process the error in that should also be attempted to be corrected, and it should be found, that by reason of subsequent grants made by them, it could not be so corrected as to operate as it would have done, had it been correctly made, it is to be presumed, that the court would give relief only upon the principle of making one who seeks equi- ty, do equity. It would be a hard rule to hold, that one who had committed an error, was responsible for all the remote and possi- ble consequences, which might arise out of its leading others to commit errors by placing confidence in its accuracy, instead of examin- ing for themselves. This would make him responsible not only for the consequences of his own errors, but for the negligence of oth- ers. There Is little occasion for It here, where there is apparently a sufficient remedy for all losses against the parties, who con- veyed the fee, and who are responsible for their own errors on their covenants. The complainant does not appear to have commit- ted any fraud in the original survey of the lot, for the proof is, that it was run out ac- cording to his instructions. The surveys. EQUITABLE RIGHTS. 183 which he has since made, cannot affect the title, and cannot therefore have occasioned any essential injury. The complainant is en- tled to have the mistake connected by a re- form of the deed so as to make It read as it should have done, and to a decree, that will secure the rights of the parties accordingly. As he made the mistake, which has brought difficulties upon the other parties as well as upon himself, he is not entitled to costs. Nor are either of the respondents, for they had an opportunity of relieving themselves from expense and trouble by a voluntary cor- rection of an admitted error. 184 EQUITABLE EIGHTS. RIDER V. POWELL. (28 N. Y. 310.) Court of Appeals of New York. Sept., 1863. Action to reform a bond and mortgage so as to conform to a previous oral agreement. There was a judgment for plaintiff, from which defendant appealed. A. J. Parker, for appellant. James B. 01- ney, for respondents. BALCOM, J. Rider and wife conveyed the farm to the defendant, and he took pos- session of it and also of the personal prop- erty he purchased with it. He paid Rider $1,100 in cash, and gave him an indorsed note for $500 in part payment of the pur- chase-money. The oral contract therefore was so far performed as to relieve it from the operation of the statute of frauds; and the defendant could not retain the farm and personal property without giving Rider such a bond and mortgage as their oral contract called for, unless the fact that there was no fraud or mistake on the part of the defend- ant, as to the terms of the bond and mort- gage he gave to Rider, justified him in so doing. Parsons says: "The question has often come before our courts, whether oral evi- dence can be received to show the mistake (in a written contract), and thereby make it in fact a new contract, when an oral contract would be void or not enforceable by the stat- ute of frauds. The course of adjudication is not uniform on this point. But while it can- not be denied that numerous authorities sup- port a disregard of the statute in such cases, others maintain its authority." 1 Pars. Oont. {3d Ed.) 555. Justice Story puts the case, ''where the party plaintiff seeks, not to set aside the agreement, but to enforce it, when it is reformed and varied by the parol evi- dence;" and then says: "A very strong In- •clination of opinion has been repeatedly ex- pressed by the English courts, not to decree a specific performance in this latter class of <;ases; that is to say, not to admit parol evi- dence to establish a mistake in a written agreement, and then to enforce it, as varied and established by that evidence. On vaxi- ous occasions such relief has, under such cir- cumstances, been denied. But it is extreme- ly difficult to perceive the principle upon which such decisions can be supported, con- sistently with the acknowledged exercise of jurisdiction in the court to reform written contracts, and to decree relief thereon. In America, Chancellor Kent, after a most elab- orate consideration of the subject, has not hesitated to reject the distinction as unfound- ed In justice, and has decreed relief to a plaintiff, standing in the precise predica- ment." 1 Story, Eq. Jur. (7th Ed.) § 161. Archer, J., in delivering the opinion of the court in Moale v. Buchanan, 11 Gill & J. 325, said: "Had the agreement been entirely by parol, and a part performance, the complain- ant would have been entitled to relief. Shall he be in a worse situation by having attempt- ed to reduce the whole agreement into the form of a conveyance, if he shall make an omission in the conves^ance, by mistake of an essential part of the agreement?" He then answers this interrogatory in the nega- tive, and refers to the opinions of Chancellor Kent, in Gillespie v. Moon, 2 Johns. Ch. 585, and Kelsselbrack v. Livingston, 4 Johns. Oh. 144. A judgment was given by this court in De Peyster v. Hasbrouck, 11 N. Y. 582, reform- ing a mortgage and enforcing it against premises not originally embraced therein. The supreme court was therefore justified by authority as well as principle in reform- ing the bond and mortgage in this case, un- less the fact that there was no fraud or mis- take on the part of the defendant in fixing their terms, or respecting their terms, ren- ders such decision erroneous. The decisions in Matthews v. Terwilliger, 3 Barb. 50, and Quick V. Stuyvesant, 2 Paige, Ch. 84, sup- port this conclusion instead of militating against it. I am not aware of any adjudged case, in which it has been held that there must be a mutual mistake of fact by the parties to a written contract or some fraud on the part of the party not mistaken, to entitle the party who made the mistake and who suf- fers by it, to have such contract reformed so that it will truly express the oral agree- ment of the parties which was to be carried Into efifect by the written contract; and such a doctrine would be contrary to good sense and sound principle. In Matthews v. Terwil- liger, supra, Gridley, J., said: "Now if by the actual agreement of the parties, Mat- thews was to pay interest on the purchase- price of the farm, how did it happen that the written contract which should have truly expressed the agreement of the parties, whol- ly omitted all mention of interest? Was it by the fraudulent design of the complainant, or by the mistake and inadvertence of the defendant? If it was owing to either of these causes, then the complainant is not en- titled to have the written contract, on which he has founded his bill, performed; but the defendant is entitled to have it reformed, and the mistake corrected." In that case the complainant endeavored to compel the defendant to specifically perform a contract for the sale of his farm, and the latter set up a mistake in the contract by the omission of an undertaking on the part of the com- plainant to pay interest on the portion of the purchase-money which was not to be paid down; and there was no mistake on the part of the complainant as to the terms of the contract as written and signed by the parties, and It was framed precisely as he intended it should be. See Haire v. Baker, 5 N. Y. 357. Also, see Walte v. Leggett, 8 Cow. 195; Mo watt v. Wright, 1 Wend. 355. It seems to me to be entirely clear, upon EQUITABLE EIGHTS. 185 principle, that Eider was entitled to have the bond and mortgage reformed so that they would conform to the oral agreement of the parties for the sale of the farm, although the defendant may have known, at the time they were executed, that they varied from such oral agreement, and did not say or do any thing to induce the scrivener to draw them differently from what they should have been drawn. And as there is no controlling au- thority to the contrary, I am of the opinion that this court should so hold, and affirm the judgment in the case, with costs. DAVIES, EOSEKEANS, MAEVIN, and SELDEN, JJ., concuri'ed for affirmance. WEIGHT, J. (dissenting). The action was to have the defendant's bond and mortgage reformed so as to conform to a parol con- tract between the parties, in pursuance of which it was alleged they were given. The bond and mortgage were to secure the pay- ment of $3,000 (a pai't of the purchase-money of the plaintiff's farm), in ten annual install- ments of $300 each. As drawn, interest was to be paid annually on the different install- ments; but there was no provision for the payment of the interest on the whole princi- pal remaining unpaid, at the time of the pay- ment of such annual installments. In the latter particular the reformation or correc- tion of the bond and mortgage was asked for. The pleadings admitted a parol conta-act between the plaintiff! and defendant, for the sale of the farm of the plaintiff, for the price of $4,600, of which sum $3,000 was to be paid in ten annual installments of $300 each; the first payment to be made on the 1st of De- cember, 1859, and the remaining payments on the 1st of December of each year there- after; and which sum of $3,000 was to be secured by the defendant's bond and mort- gage on the premises. The complaint al- leged the contract to have been that the plaintiff was to have Interest annually on the whole sum of $3,000; whereas the de- fendant, in his answer, averred that that sum was made payable in ten annual pay- ments of $300 each, with Interest on such annual payments. The judge who tried the cause found only the single fact, viz., that there was a mistake on the part of the plain- tiff as to- the Interest he was to receive by the bond and mortgage; and decided that as matter of law he was entitled to have his mistake corrected, and the bond and mort- gage amended or modified, so that he should recover annual interest on the whole sum unpaid, and directed a judgment accordingly. We can only review the case upon the pleadings and facts found by the judge; and the question Is, whether in a case where a contract between parties provides for the performance of a particular act by them, such contract is entitled to be reformed, in equity, because there has been a mistake on the part of one of the contracting parties, as to its terms, when such mistake is not occasioned by any fraud practiced by the other party. , I suppose the rule to be that when there is a mistake on one side (and not a mutual mistake), it may be a ground for rescinding a contract, or for refusing to enforce its specific performance, but not a ground for altering its terms. Adams, Eq. 171. A mis- take by the plaintiff when he made the con- tract, as to the interest he was to receive on the bond and mortgage, would not en- title him to have the contract so modified as to conform to his mistaken impression, though it might be a reason for rescinding the contract on the ground that the minds of the parties never met in making it. In Lyman v. United Ins. Co., 17 Johns. 875, Chief vTustice Spencer lays down the true rule of law to govern the case (whether the mistake found relates to the bargain or to the taking of the bond and mortgage) that "before a written contract can be amended or altered on the pretense of mistake, the proof must be entirely clear that that mis- take has occurred; and secondly, that the amendment sought would conform the con- tract to the intention of both parties." If we were to look, however, in this case, beyond the findings of fact by the court, it is clear that the deed, bond and mortgage constituted the true contract, and that all previous negotiations were merged in them. It would be a violation of the plainest ele- mentary principles to permit a party who has entered into a written contract to have the written contract altered so as to conform to his understanding of a previous negotiation, when the opposite party understood it dif- ferently, and as it was set forth in the writ- ten contract. The parol bargain was void by the statute of frauds; neither possession be- ing taken under it or consideration paid. It was after the deed, bond and mortgage were executed and delivered, and under them the money was paid and possession taken. The court was asked in the case not only to enforce an agreement void by the statute, but one that the parties did not understand alike. The judgment of the supreme court should be reversed and a new trial ordered, with costs to abide the event DENIO, 0. J., and EMOTT, J., concurred. Judgment affirmed on the ground that the judge's finding of facts must be construed as a finding of fraud or a mistake of fact on the part of the defendant Judgment affirmed. 186 EQUITABLE BIGHTS. LTJDINGTON et al. v. FOED et al. 133 Mich. 123.) Supreme Court of Michigan. Jan. Term, 1876. Appeal from circuit court, Mason county; in chancery. ^hubael F. White and Mariner, Smith & Ordway, for complainants. E. N. Fitch, Wil- liam L. Mitchell, and Kobert Rae, for defend- ants. MARSTON, J. The bill in this case was filed to correct a mistalie. It is claimed that at the time of the agreement of April 5, 1859, referred to in the case of Ford v. Loomis, 33 Mich. 121, a certain description of land which was not embraced in the tax deeds to Du- rand, but which was embraced in the deeds from Ford to Durand of November 16, 1858, was by mistake omitted from the deed made by Durand to complainants. In order for the complainants to obtain the relief sought, it must appear not only that there was an error on both sides, but the mistake must be admitted or distinctly proved. Tripp v. Haseeig, 20 Mich. 254; Case- V. Peters, Id. 298. The complainants have wholly failed io establishing either of these propositions. We are rather of opinion, on the contrary, that the only lands contracted to be conveyed by Durand to the complainants were those described in the tax deeds. None others are embraced in the deed from Durand, and it refers to the tax deeds "for a more full and perfect description of the lands and premises- hereln and hereby conveyed." The decree of the court below must be re- versed, and the bUl be dismissed, with costs- of both courts to defendants. The other justices concurred. EQUITABLE RIGHTS. 187 WELLES y. YATES. (44 N. Y. 525.) Commission of Appeals of New York. May, 1871. Appeal from an order of tlie general term of the supreme court in tlie Sixtli district, affirming a judgment of tlie special term in fa- vor of the plaintiff. The action was brought for the reformation of a deed executed hy the plaintiff, he claim- ing that a resei-vation of certain timber had been omitted, through mistake on his part; and also for an accounting by the defendant for timber taken from the premises conveyed. An accoimt was ordered to ascertain the value of the lumber taken since March 10, 1851. The referee found the value at $2,- 041.72. Upon the coming In of the referee's report, judgment was entered for the plaintiff that the deed be reformed and corrected, and that he have judgment for the value of the tim- ber removed by the defendant. This judg- ment was affirmed by the general term in the Sixth district, and the defendant appeals to the court of appeals. The facts appear from the opinion of the court. E. H. Benn, for appellant. Geo. Sidney Camp, for respondent. HUNT, C. It will not be necessary to con- sider in detail the fifteen points presented by the appellant, and so ably argued by his counsel. The discussion of a few of them will settle principles that may serve to decide the case. The complaint, in substance, alleged that on the 28th of May, 1846, the plaintiff was the owner of one hundred and ten acres of land, being lot No. 4; that on that day he sold the same by executory contract, with the timber thereon, to T. & T. Trevor, for $17 per acre. That on the 7th day of December, 1846, he was the owner of lot No. 5, containing one hundred and forty-one acres, and then entered into an agreement with the same parties, by which they undertook to cut the timber stand- ing thereon, manufacture the same into boards and planks, and to give the plaintiff one-half of the lumber thus manufactured. Certain other details were provided, which it is not necessary to specify. At the same time, the plaintiff entered into an executory contract with the same persons, for the sale of the one hundred and forty-one acres, at $4 per acre. That these two pieces of land were of the same value; that the timber growing on the latter piece was of the value of $5,000, and that such timber, in the understanding of the parties, was reserved to the plaintiff by the manufacturing contract mentioned, and that the price of $4 per acre was for the land simply, the timber reserved to the plaintiff. That, after proceeding for some time in the manufacture of the lumber, the purchasers became embarrassed, and the defendant took their place in the contract, and without new or further negotiations, a calculation was made of their payments, the balance found due paid by the defendant, and an absolute deed of the two pieces of laud, without res- ervation of the timber, made by the plaintiff to the defendant. That the defendant well knew all of the facts in the complaint recited. The plamtiff then avers "that through and by mistake he failed to insert in the said last-mentioned deed (of the one hundred and forty-one acres) any reservation of the timber mentioned and em- braced in the contract secondly above men- tioned;" and also avers demand and refusal to amend. The prayer is that the deed may be corrected, so as to be made to contain a reservation of the timber, and that the plain- tiff may have an accounting as to the timber taken and removed by the defendant. The judge found that there was an error and mistake on the part of the plaintiff, as averred by him. He found also that there was no mistake on the part of the defendant, but that he well understood the plaintiff's er- ror. He knew that the timber was not re- served, and he knew that the plaintiff sup- posed and understood that it was reserved. He received the deed, failing to correct the plaintiff's error, but Intending to reap the profits of it. He knew that he received of the plaintiff's estate $4,000 or $5,000 more than the plaintiff intended to give him, or than he supposed he had given him. The mistake was unilateral; on the part of the plaintiff only. On the part of the defendant, there was no mistake, but something worse. It was a fraud, as palpable as if he had made affirma- tive representations to induce the error; as gross as if he had put his hands In the plain- tiff's pocket and feloniously abstracted his money. 1 Story, Eq. Jur. §§ 187, 137, 140, 147, 152, 153, 167, 168, 191, 214-217; Waldron v. Stevens, 12 Wend. 100; Wiswall v. Hall, 3 Paige, 313; Hill v. Gray, 1 Starkie, 434; 2 E. C. L. 167. The point here arises, can there be a judg- ment to reform the contract, there not being a mutual error, but error on one part and fraud on the other? It is laid down in many authorities report- ed and elementary works, that there must be a mutual error, to authorize this interposition of a court of equity. See Story, Eq. Jur. § 155; Story v. Conger, 30 N. Y. 673; Nevius V. Dunlap, 33 N. Y. 670; Lyman v. United States Ins. Co., 17 Johns. 376. The cases where this general statement is made are very nu- merous, and it is well said that to exercise this power, where one party only has been in error and the other has correctly understood it, would be making a new contract for the par- ties, and would be doing Injustice to the party who made no mistake. On this point two dis- tinctions may be noticed. 1st. Those cases wUl be found to have in them the element of the honesty on the part of the one correctly understanding the contract. Where two par- ties enter into a contract, and an error is 1«8 EQUITABLE RIGHTS. claimed by one party to exist on an important point, whicli is claimed to be correct by the otber party, it cannot be amended, as against the party correctly understanding it, he acting in good faith, and supposing the other to have understood the contract as he did. This rule does not apply where there is fraud. Either fraud or mutual mistake will authorize the reformation. See authorities supra; De Pey- ster V. Hasbrouck, 11 N. Y. 582; and Gillespie V. Moon, 2 Johns. Ch. 585; Barlow v. Scott, 24 N. Y. 40; Rider v. Powell, 28 N. Y. 310. In his supplementary points the appellant ex- pressly concedes this proposition. 2. This is the consummation of an existing contract, about the terms of which there was no dispute. This contract it was attempted to perform. There has been a failure to per- form it, by the misunderstanding, on the part of the plaintiff, of the effect of the instrument by which performance was attempted. A ref- ormation is permitted in such case, although the mistake be not mutual. See the cases be- fore cited, and Coles v. Bowne, 10 Paige, 534. The result of the cases justifies a reforma- tion of a contract, when there is either a mu- tual mistake, that is, a mistake common to both parties, or when there is fraud. In his complaint, the plaintiff has simply stated the facts on which he claims relief. After set- ting forth the facts, he adds, that by mistake, he failed to insert in the deed a reservation of the timber. He does not charge that it was a mistake common to both parties. Nor does he charge it to have been a fraud. He gives no name to the conduct of the defendant. The facts, as found by the referee, and the judg- ment rendered by him, are in conformity to the allegations of the complaint. They estab- lish, not a mutual or common error, but an error on the part of the plaintiff and fraud on tlie part of the defendant. The defendant, by the judgment of the court upon the facts, occupied the place of the orig- inal contractors and undertook to perform their contract. This was the finding of the judge, and the evidence, with the circumstan- ces, justified this finding. The fraud was in the deceitful performance. If the judgment of the court below is carried out, he will not be made a party to a new contract, which he would never have assumed. He did assume the original contract. He therefore became bound by it. When the court now compel him to abandon his fraudulent contract, he is re- mitted to the original agreement. He has no ground therefore to say that by being con- victed of a fraud, he is compelled to enter into a new contract. Nor is he to be relieved by the rule that a party seeking to be relieved from fraud, must be ready, prompt and eager in his demand for redress. When a party seeks to rescind a contract, on the ground of fraud, he must undoubtedly be prompt and ready in his disatfirmance. He has the elec- tion to affirm or disaffirm. If he elects the latter he must do it at once. He is not per- mitted to hesitate and balance advantages. Masson v. Bovet, 1 Denio, 69; Beers v. Hen- drickson, 6 Rob. (N. Y.) 54; Tomllnson v. Miller, *42 N. Y. 517. In the present case the party does not ask to have the contract rescinded. He does not seek to have it declared void. On the contrary he insists that it is valid. He asks that it may read exactly as the parties originally agreed, and that all its parts may be complete- ly performed. In such case the rule is that the party must show himself ready and eager for its performance. 1 Story, Bq. Jur. § 776. The plaintiff has given sufficient evidence of his readiness and eagerness to perform. If there has been an unreasonable delay in seek- ing relief, the court will refuse it. Id., and 1 Fonbl. Eq. bk. 1, c. 6, § 2, note e. It is a question of discretion in the court whether under all the circumstances of time, repeated applications and refusals, the condition, knowledge, expectations and hopes of the par- ties, the relief should be granted. There is no positive or rigid rule, like that existing in the case of an attempted rescission. I am satis- fied with the decision on this point of the court below, and the judge trying the cause. 1 Story, Eq. Jur. § 529; Bidwell v. Insurance Co., 16 N. Y. 263. The court having jurisdiction of the cause to amend the contract, thereby acquired the right incidentally to give relief in damages, or in such mode as justice required. Rathbone v. Warren, 10 Johns. 587; Kempshall v. Stone, 5 Johns. Ch. 193; Woodcock v. Bennett, 1 Cow. 711; Bidwell v. Insurance Co., 16 N. Y. 263; Story, Eq. § 794; Rundle v. Allison, 34 N. Y. 180. The defendant contends further, that no damages can be recovered by the plaintiff for timber that was cut more than six years be- fore the commencement of the action. The argument of the defendant's counsel is that the reformation of the deed is merely a means by which the plaintiff seeks to recover dam- ages for the timber taken, and that its cor- rection is simply a part of the evidence to au- thorize him thus to recover; that his claim is therefore a legal one and cannot extend back beyond six years. The authorities cited by the defendant do not sustain this position. The most plausible is that of Borst v. Corey, 15 N. Y. 505, which was an action to enforce in equity a lien for the unpaid purchase-money of land. The court held that the action could not be sustained, for the reason that the debt sought to be enforced was barred by the stat- ute of limitations. The debt they held to be the principal, the lien the incident, and the principal being ended the incident could not be enforced. At the same time the court con- ceded that where a mortgage was given to se- cure the payment of a simple contract debt, the lapse of six years was no bar to an action to foreclose the mortgage. The authority of Mayor v. Colgate, 12 N. Y. 140, was conced- ed, where an assessment was attempted to be enforced more than six years after the assess- ment had become due and payable. In the present case the question is not what action can be sustained after the deed is reformed, EQUITABLE RIGHTS. 189 but what action could have been sustamed be- fore its refoi'mation? The reformation had not occurred when the suit was commenced, and the right of the parties was determined by the unrefoi-med deed. That deed conveyed to the defendant without reservation, the one hundred and forty-one acres in question. It carried with it complete title to the trees. The plaintiff could not have sustained an ac- tion for theii- conversion. He would have been told that defendant had a legal title. The reformation of the deed in the present case is the principal and not the incident. Dam- ages are the incident, not the principal. It is the title which tlie judgment of reformation gives that warrants the claim for damages; not the claim for damages that creates the legal title. Complete justice and nothing more is done by the judgment in this respect as it stands. The defendant also insists that in the view that the recoveiy against the defendant is sustained upon the ground of fraud and not of mutual mistake, the cause of action Is bar- red in six years from the discovery of the fraud. He further says that the judge has expressly found as a fact that the cause of action has not accrued within six years from the commencement of the suit. I have looked through the testimony carefully, and I do not find any evidence that the plaintiff discovered the fraud perpetrated upon him as early as six years before the commencement of the suit. He did undoubtedly discover his own error soon after its occurrence, and applied to the defendant's agents for its correction. He says that "he had confidence in them and expected all would have gone on as though it had been reserved." In other words, he had discovered his own mistake and believed it to be a mutual mistake, which the defendant would willingly rectify. He says further of the defendant's agent: "He seemed willing to do something. They proposed leaving it out. They never told me I could not have the tim- ber. They always gave me to understand that they would settle it in some way. They al- ways gave me to understand that they would do something about it. Neither of them ever told me I should not have so given the deed, if I did not mean to part with the timber." This evidence does not show a knowledge of the fraud. It does not show the plaintiff's knowledge that the defendant knew, when he took it, that the deed conveyed the absolute ownership of the trees, and that the plaintiff was ignorant of that fact, but supposed the trees were reserved, and that the defendant failed to correct his error. It does not even show that he supposed the defendant meant to insist upon retaining the benefits of the er- ror. It shows rather that the plaintiff was constantly deluded with the idea that the mis- take would be corrected. The judge has not found that the plaintiff discovered the fraud within more than six years before suit brought, and there was no evidence on which he could have been justified in so finding. When the cause of action accrued in this case is a question of law. It was either when the transaction occuiTed or when the fraud was discovered. The judge has found that the cause of ac- tion did not accrue within six years before suit brought. He states, in his opinion, that the action being to reform the contract, and the accounting being incidental, the action falls under the ninety-seventh section of the Code, which requires it to be brought within ten years after action accrued. He fixes the occurrence of the transaction as the time froxQ which by law the statute begins to run. The defendant now asks us to hold this as a conclusive finding of fact, that the fraud was discovered more than six years before suit brought. This we cannot do. Upon the theory that the running of the statute begins with the date of the occur- rence more than six years had elapsed, and such was the theory of the judge trying, the cause. On the theory that it runs from the discovery of the fraud, there is no such find- ing, nor is there evidence to prove it. All presumptions are in favor of the judgment, and the contrary must be taken to be the fact. I have thus considered the most important of the questions raised by the appellant. There are several other objections stated in the points, which I have also examined. They fm-nish no valid ground for asking a reversal of the judgment. A majority of the court concur in the opin- ion that the plaintiff is entitled to relief. A majority of the court do not concur with me on the question of damages, and are of the opinion that the recovery of damages for a period exceeding six years prior to the com- mencement of the suit was erroneous. The judgment of the court will therefore be, that the judgment of the general term be affirm- ed, without costs of the court of appeals to either party, provided that the plaintiff shall, within thirty days after the entry of this or- der, serve on the defendant's attorney a stipulation, deducting from the judgment of April 6, 1863, the sum of $2,407.45 as of that date. If such stipulation be not served, then the judgment shall be reversed and a new trial ordered, with costs to abide the event. In case the attorneys do not agree as to the details of the judgment, the same can be set- tled before one of the commissioners. EARL, C. (dissenting). As I cannot con- cur with my brethren in this case, I will briefly give the reasons for my dissent. No mistake is alleged in the contracts, and no reformation of them is claimed. And un- der no allegations or proof could the con- tracts be reformed, as a cause of action, for such purpose, would be barred by the stat- ute of limitations. If, as claimed by the plaintiff in his com- plaint, and by his counsel on the argument before us, the deed was given in pursuance 190 EQUITABLE RIGHTS. and in fulfillment of the contracts, then there can be no reformation of the deed, as it is in precise conformity to the contracts. If the two contracts of December 7, 1846, are construed together, they must be read as if embodied in one; and the timber is not re- served, and the contract does not provide for any reservation in the deed. The vendees were to get out certain lumber upon shares, and were to pay $4 per acre besides. The contract in reference to the lumber was a binding contract and, if performed as the parties contemplated, it would be fully per- formed before the deed was required to_ be given; and such was manifestly the inten- tion of the parties, and hence no provision was made for any reservation in the deed. The deed was given without any mention of the lumber, and hence the only claim the vendor could thereafter have, upon the lum- ber contract, was to sue for damages on ac- count of its non-performance. The only contract the defendant ever made orintended to make, as found by the referee. Is that which is embodied in the deed. He never intended or was willing to take a deed with any reservation in it. What right then has a court of equity to reform the deed, .so as to give him such a deed as he was never bound to take? There was never a time when, by action for specific perform- ance, he could have been compelled to take a deed with a reservation, and the court has no right to compel him to take such a deed by the reformation of the one he did take. If by fraud or mistake on his part, the plaintiff was induced to give this deed, the only reUef he could have was to set aside the deed; and to obtain this relief, it was his duty, on the discovery of the fraud or mistake, to proceed promptly and not ratify the deed by taking the money on the note given for the purchase-price, after he discov- .ered the mistake or fraud. As I understand the opinion in which my brethren have concurred, it sustains the re- lief granted to the plaintiff, upon the ground of fraud, and yet the complaint does not in :any way intimate even that the defendant was guilty of any fraud, nor does it allege that the defendant used any artifices to pro- cure the deed to be drawn with the reserva- tion omitted, or that he knew it was omitted. The charge of fraud should have been dis- tinctly made in the complaint, so that the de- fendant could have taken issue jpon it. And it does not appear that any claim was made, at the trial, that the defendant was guilty of fraud, and the case was manifestly not tried upon any such theory. The judge at special term did not put his decision upon the ground of fraud. If he had, he would certainly have decided against the plaintiff, under bia finding as to the statute of limita- tions, as follows: "That within a month after the execution of said deed, the plain- tiff discovered said mistake, and shortly thereafter applied to the defendant to cor- rect the same, which he neglected and re- fused to do; but proceeded to cut large quan- tities of said timber and appropriate the same to his own use; that the cause of action for which this suit is brought has not ac- crued to the plaintiff within six years before the commencement of this suit." The learned judge evidently proceeded and granted relief upon the ground that the scriv- ener made a mistake in drawing the deed, and this was the ground upon which the gen- eral term placed its decision of affirmance. The cause of action for the mistake was not barred by the statute of limitations, because the action was commenced within ten years from the time the alleged mistake occurred. A cause of action, for such a fraud as is now alleged in this case, is deemed to accrue, when the aggrieved party discovers the facts constituting the fraud, and it is barred in six years from that time. Code, § 91. All the fraud, if any, that was perpetrated in this case was in procuring and taking the deed without the reservation, and this was dis- covered, according to the finding of the judge, more than nine years before the suit was commenced, and hence I cannot be mistaken in saying that relief was granted at Special Term upon the ground of mistake alone, and not of fraud. And still further, the counsel for respond- ent in his argument before us, did not claim to sustain the judgment below upon the ground of fraud, but upon the ground of mis- take alone. Hence under all the circumstances I cannot consent to uphold this judgment, or any part of it, upon the ground of fraud, against the decisions of both courts below, the claims of plaintiff's counsel, and the explicit finding of the judge at special term, that the cause of action for fraud was barred by the statute of limitations. It was the duty of the plaintiff to show that he discovered the fraud within six years before the commencement of the suit, and there can be no pretense that he gave any evidence to show this. I concur with my brethren in holding that in any view of the case the plaintiff could re- cover only for timber cut within six years be- fore the suit was commenced. For afiirmance, as modified: LOTT, C. C, and HUNT and LEONARD, CC. For reversal: EARL and GRAY. CO.. not voting. Judgment affirmed without costs to either party in the court of appeals, provided the plaintiff within thirty days after the entry of this order, serves on the defendant's at- torney a stipulation reducing the judgment $2,407.45 and interest from the date of the judgment, April 6, 1863. If such stipulation be not served, then the judgment is reversed and a new trial ordered, costs to abide the event. Judgment affirmed. EQUITABLE RIGHTS. 191 GLASS V. HULBEKT. (102 Mass. 24.) Supreme Judicial Court of Massachusetts. Sept. Term, 1869. Bin in equity for the reformation of a con- veyance of lands, and for further relief. The ■case was reserved by the chief justice "for the consideration and decision of the full court upon the question whether, upon the allegations of the bill, the plaintiff is entitled to relief in equity, and whether the plaintiff has not a full, adequate, and complete rem- edy at law; the defendant also relying in his answer upon the statute of frauds." W. H. Swift and S. W. Bowerman, for plaintiff. M. Wilcox and W. T. FiUey, for defendant. WELLS, J. The plaintiff purchased cer- tain lots of land of the defendant, received a deed, and paid the whole amount of the pur- chase money. This suit is brought for relief or redress in several particulars, dissimilar in character, but all connected with the al- leged oral contract of purchase. He com- plains: First. That a proviso was inserted in his deed, imposing upon him the burden of supporting the whole fence upon the south line of the land conveyed; and that he was induced to assent to its insertion upon the consideration, and false representation of the defendant, that the whole fence upon the east side of said land was to be maintained by the adjoining proprietor, PatrlcK McDaniels, by virtue of a written obligation to that ef- fect, and that the plaintiff would be relieved from all liability to maintain any fence upon that side; as well as by certain other false representations of the defendant in relation thereto. Second. That he delivered to the defendant, in part payment of said purchase money, three bonds of the United States of $1,000 each, upon the agreement of the de- fendant that he would allow the full market value of the same. Including premium and ac- crued interest at the time of the transfer thereof; and that the defendant refuses to allow and pay him the value of such pre- mium and interest, amounting together to the sum of $315; that sum being in excess of the whole purchase money due to the de- fendant. Third. That during the negotiations for the sale and purchase of said lands the defendant pointed out the southeast corner of the premises proposed for sale, and repre- sented that the land of the adjoining propri- etor, McDaniels, extended to that point, and that the southerly line of the land sold would extend from the same corner to a point on the highway near a bridge; that the deed was accordingly written and accepted, de- scribing the land as bounded on the south by a line running from the southwest corner of land of said McDaniels, at right angles to the westerly line of said McDaniels, to the highway, the defendant representing said line to be the same line previously pointed out by him to the plaintiff, and that it would strike the highway within one rod of said bridge; whereas in fact the land of said McDaniels did not extend so far as to the southeast cor- ner of the defendant's land as pointed out by him, and the south line, running at right angles therefrom to the highway, did not strike the same within one rod of said bridge; and the deed so written and accepted did not Include a considerable part of the land so offered and represented to be sold, and in- tended and understood by the plaintiff to have been purchased by him; the part so excluded consisting of about 17 acres of land, comprising the greater part of the meadow land in the tract as pointed out by the defendant. The plaintiff, by his bill, does not seek to rescind the contract and conveyance, and does not otter to reconvey or release to the defendant the land conveyed, nor pray that he may be allowed to do so, and recover back the purchase money paid and bonds delivered in payment. The relief prayed for is that the defendant may be required to convey to the plaintiff the portion of the tract which was so by fraud or mistake omitted from the conveyance already made to release the plain- tiff from the proviso in his deed in regard to the fence, and to pay to the plaintiff the aforesaid amount of premium and interest upon said bonds. The argument of the plaintiff is addressed mainly to the question of the equity jurisdic- tion of this court in cases of fraud or mistake like that alleged in the present suit. There can be no doubt upon that point. There is no ground upon which jurisdiction in equity is so readily entertained and freely exercised, It is given to this court without restriction, if the parties have not a plain, adequate, and complete remedy at law. Gen. St. c. 113, § 2. Having jurisdiction, the question is as to the appropriate remedy. Jurisdiction in equity is often maintained, even when there is a remedy at law, for the sake of the great- er facility it attords for adapting the proper relief to the peculiar necessities of each case. If the party suing is entitled to no relief oth- er than that which may be had in an action at law, he is remitted to his remedy in that form. Even in a proper case for an appeal to equity the remedy must be sought in ref- erence to certain recognized rules and princi- ples of chancery jurisprudence, and is often restricted by provisions of positive law. It Is not administered arbitrarily. It must flow out of and accord with the agreements and obligations of the parties, and be adapted to the condition of facts to which it is to be applied. In the present case, the principal ground of action is the fraud or mistake by which an Important part of the subject-matter of the alleged contract of sale and purchase was omitted from the deed of conveyance. If the allegations of the bill should be sustained by 192 EQUITABLE EIGHTS. tlie proofs, they would show a clear right to have a rescission of the contract; and, upon reconveyance of the land covered by the deed, to have restoration of the bonds and money that were delivered in payment But this re- lief the plaintiff does not seek; and his bill contains no offer to reconvey, without which he cannot have such relief. The prayer of the bill, and its sole purpose in this particu- lar, is that the defendant may be compelled to convey to the plaintiff the 17 acres of land which he alleges were included in the oral contract of sale, or represented by the defend- ant to be so included, but omitted from the deed. If the case stood merely upon the oral con- tract of sale, with a conveyance of part and a neglect or refusal to convey another part of the land which was the subject of the al- leged contract, we do not think it would be contended that the plaintiff could compel a conveyance of the other land, against a party denying the contract and setting up the stat- ute of frauds. Courts are bound to regard that statute in equity as well as at law. The only remedy in equity, in such case, would be by a rescission of the entire contract, in which the aid of the court could be obtained. If necessary, upon proper grounds. There has been no part performance here, such as, according to the general practice in courts of equity, would be held to take the case out of the statute of frauds. 1. Payment of the whole consideration is not sufficient for that purpose. Hughes v. Mor- ris, 2 De Gex, M. & G. 356; Thompson v. Gould, 20 Pick. 134, 138; Browne, St. Frauds, § 461; Fry, Spec. Perf. § 403; Dale v. Hamil- ton, 5 Hare, 369; Clinan v. Cooke, 1 Schoales & L. 22, 41; Allen's Estate, 1 Watts & S. 383; Purcell v. Miner, 4 Wall. 513. 2. Possession by the purchaser, under such a deed as was given to the plaintifC, is pos- session according to the title thereby con- veyed; and is not such a possession as to afford ground for enforcing an alleged oral agreement to convey other land, claimed to have been embraced in the same oral agree- ment with that conveyed. Moale v. Buchan- an, 11 Gill & J. 314. The plaintiff does not appear to have been let into actual posses- sion of the 17 acres, nor to have been in- duced to do any acts thereon, as owner, un- der his supposed rights as purchaser. 3. The conveyance of a portion of the land is neither a part performance, nor is It a recognition of the alleged oral contract, so far as it relates to the remaining land not in- cluded in the deed. On the contrary, it is in distinct disregard and implied disavowal of such a contract. The deed was given and ac- cepted in execution of the entire contract of sale. Its terms are in literal conformity with the agreement as made. The plaintiff con- cedes that the southern boundary was stipu- lated to be described as it is written in the deed, to wit, running from the southwesterly corner of land of McDaniels, and at right angles with his westerly line, to the high- way. But the plaintiff claims that he in fact pur- chased the whole of a certain tract of land which included the 17 acres now in dispute; that the description of the boundaries, as agreed upon and inserted in the deed, was so agreed on and inserted upon the representa- tion of the defendant and the belief of the plaintiff that it did include said 17 acres; and that the failure of the deed to embrace and convey that part of the land was oc- casioned either by the mutual mistake of the parties as to the position of the southwest corner of land of McDaniels, or else by the misrepresentation, deceit, and fraud of the defendant in relation thereto. In either al- ternative, the plaintiff contends that he is entitled to a reformation of the deed, to make it conform to the sale actually con- tracted by the parties. Such a reformation not only requires a de- scription of the subject-matter of the sale, different from the express terms of the oral contract, but would enlarge the effect and operation of the deed as a conveyance. It involves the transfer of the legal title to land not covered by the deed already given. It requires a new deed to be executed and de- livered by the defendant to the plaintiff. Whether that deed shall embrace the entire subject of the alleged contract of purchase, with a corrected description to make it con- form to facts and abvittals as they were rep- resented to be, or merely convey the 17 acres omitted from the deed already given, the or- der for its execution wUl enforce the specific performance of a contract for the sale of lands, for which there exists no memoran- dum, note, or other evidence in writing sign- ed by the party to be charged therewith. As to the 17 acres in dispute, the obligation to convey them rests solely in the oral con- tract. The defendant denies any contract which includes them. The plaintiff seeks to establish such a contract by parol evidence, and enforce it. The deed itself furnishes no means of making the correction sought for, and no evidence of the contract relied on for this purpose; nor is it in any sense an ac- knowledgment of the substance of the al- leged oral agreement. The power to rectify deeds and other writ- ten instruments undoubtedly exists in this court, under the clauses of the statute giving equity jurisdiction in cases of fraud, acci- dent, and mistake, or the clause giving it gen- erally where there is no adequate remedy at law. It has been exercised in several cases. Canedy v. Marcy, 13 Gray, 373; Metcalf v. Putman, 9 Allen, 97. But the power will be exercised in subordination to other fixed prin- ciples of law, and especially to statute pro- visions. If the rules, restricting the admin- istration of judicial remedies, which are pre- scribed by the statute of frauds, were to be disregarded in this branch of equity pro- cedure, it would open the door to all the EQUITABLE RIGHTS. 193 foi-ms of fraud -wliioh that statute was in- tended to prevent. The statute is not a mere rule of evidence, but a limitation of judicial .authority to afford a remedy. It requires that contracts for the sale of lands, in order to be enforced by judicial proceedings, must be substantiated by some writing. This pro- vision of law cannot be dispensed with mere- ly for the reason that the want of such writing was occasioned by accident, mistake, or fraudulent representations, unless some other ingredient enters into the case to give rise to equities stronger than those which stand upon the oral contract alone, which estop the other party from setting up the statute. It makes no difference whether the want of a writing was accidental or intentional, by way of refusal or by reason of mutual mis- take; nor that there were false representa- tions, and a pretence of conveying the land, but a fraudulent evasion, by means whereof there was no conveyance in fact, and no proper written evidence of the agreement to convey. From the oral agreement there can be derived no legal right, either to have per- formance of its stipulations or written evi- dence of its terms. So long, therefore, as the effect of the fraud or mistake extends no fur- ther than to prevent the execution, or with- hold from the other party written evidence of the agreement, it does not furnish suffi- cient ground for the court to disregard the statute of frauds, and enter into the investi- gation of the oral agreement for the pur- pose of enforcing it. And we do not see that the present case stands otherwise in this re- spect than it would if there had been no con- veyance of any part of the land. As al- ready shown, that conveyance was not in ex- ecution or recognition of the contract which the plaintiff seeks, by this bill, to enforce; and does not furnish any reason for taking the case out of the statute, on the ground of part performance. Indeed, the rule seems to be that no part performance by the party sought to be charged will take an agreement out of the statute of frauds, except in those cases where the statute itself provides for such effect. It is part performance by the party seeking to enforce, and not by the oth- er party, to which courts of equity look, in giving relief from the statute. Caton v. Caton, 1 Ch. App. 137, L. R. 2 H. L. 127; Mundy v. Jolliffe, 5 Mylne & C. 167; Buck- master V. Harrop, 7 Ves. 369; Browne, St. Frauds, § 453. When the proposed reformation of an In- strument Involves the specific enforcement of an oral agreement within the statute of frauds, or when the term sought to be added would so modify the instrument as to make it operate to convey an interest or secure a right which can only be conveyed or secured through an instrument in writing, and for which no writing has ever existed, the stat- ute of frauds is a sufficient answer to such a proceeding, unless the plea of the statute can HUTCH. EQ. JOB. — 13 be met by some ground of estoppel to de- prive the party of the right to set up that defence. Jordan v. Sawkins, 1 Ves. Jr. 402; Osborn v. Phelps, 19 Conn. 63; Clinan v. Cooke, 1 Schoales & L. 22. The fact that the omission or defect in the' writing, by reason of which it failed to con- vey the land or express the obligation which' it is souffht to make it convey or express,, was occasioned by mistake, or by deceit and fraud, will not alone constitute such an es- toppel. There must concur, also, some change in the condition or position of the party seeking relief, by reason of being in- duced to enter upon the execution of the agreement, or to do acts upon the faith of it as if it were executed, with the knowledge and acquiescence of the other party, either express or implied, for which he would be left without redress if the agreement were to be defeated. Upon a somewhat extended examination of the decisions in regard to the effect of the statute of frauds upon the right to have eq- uitable relief where the writing is defective,, although many of them, where relief has been granted, hardly come within this defi- nition in the apparent character of the par- ticular facts upon which they were decided,, j'et we are satisfied that this principle of dis- crimination is the only one which can give- consistency to the great mass of authorities- upon this subject The case of Smith v. Underdunck, 1 Sandf. Ch. 579, is nearly like the present in its facts j and the opinion of the assistant vice-chan- cellor would seem to sustain the right of the plaintiff here. There was no fraud in the- preparation of the deed. The judgment was- based mainly upon the ground of part per- formance. It was held to be sufficient to- take the case out of the statute that the- plaintiffl had been let into possession as pur- chaser; and the opinion indicates that pos- session under and in accordance with a deed of part would be a sufficient possession or the whole for the purpose of requiring a deed: of the remainder. But the decision rests up- on the fact of possession by the plaintiff of the entire premises, including the part for which the bill was brought. The case arose upon demurrer to the bill, which of course admitted the contract, and the alleged pos- session of the whole tract. The question of the statute of frauds did not arise therefore. That the purchaser has been let into pos- session in pursuance of a parol agreement has been very generally recognized as suffi- cient to take it out of the statute. The rea- soning by which this result was reached i» far from satisfactory; and even where the rule prevails there are frequent intimations- that it is regarded as trenching too closely upon the spirit as well as the letter of the- statute. If it were now open to settle the- rule anew, we cannot doubt that it would be limited to possession accompanied witl* or followed by such change of position of the 194 EQUITABLE KIGHXS. purchaser as would subject him to loss for which he could not otherwise have adequate compensation or other redress; and that mere change of possession would not be held to take a case out of the statute. However it may be elsewhere, we are disposed to hold the rule to be so in Massachusetts. Previously to the Statutes of 1855, c. 194, and 1S56, c. 38 (Gen. St. c. 113, § 2), the power of the court to direct specific per- formance was confined to written contracts. Rev. St. c. 74, § 8. That power was held to be strictly limited to contracts in which the whole obligation to be enforced was ex- pressed in the writing. Dwight v. Pomeroy, 17 Mass. 303; Brooks v. Wheelock, 11 Pick. 4.39; Leach v. Leach, 18 Pick. 68; Buck v. Dowley, 16 Gray, 555; Park v. Johnson, 4 Allen, 259. The provision conferring that power specifically in case of written con- tracts is still retained in the Gen. St. c. 113, § 2. If the subsequent clauses, conferring jurisdiction generally, are to be construed, as we think they are, to extend the power of the court, so as to give relief by way of specific performance, either of contracts wholly unwritten, or of stipulations proved by parol and incorporated into a contract by judicial rectification of a written instrument, as in Metcalf v. Putman, 9 Allen, 97, still that power ought to be exercised with con- stant reference and in subordination to the condition that "the party asking relief has not a plain, adequate, and complete remedy at common law," which accompanied each enlargement of the equity power of the court, and which prefaces and closes the enumeration of those powers in the General Statutes. The force of this consideration is not lessened when applied to agreements within the statute of frauds. Mere possession of land does not expose -the party to loss or danger of loss without redress at law. The parol agreement of sale and purchase, with permission to enter, though not to be enforced as a valid contract of sale, will constitute such a license as will protect the party from liability for acts done before the license is revoked, and for all acts necessary to enable him to remove himself and his property from the premises after such revocation. If possession be taken without such permission, express or implied, it Is no foundation for relief in equity, ac- cording to any of the authorities. The argu- ment, for the admission of parol evidence to prove an agreement within the statute of frauds in order to enforce it in equity, drawn from the admissibility of such evidence to maintain a defence, either at law or in eq- uity, seems to be based upon a misconcep- tion of the purport and force of the statute, which reaches no farther than to deny the right of action to enforce such agreements. In this commonwealth, the possession of land by a purchaser is not even notice to a third party of an unrecorded deed. The w hole spirit of our laws in respect to real es- tate Is against the policy of enabling parties to acquire or confer title, either legal or eq- uitable, by mere parol and delivery of pos- session. The possession of the plaintiff, ' therefore, even if it extended to the tract in dispute, is not sufiicient to entitle him to re- lief against the statute. The principle, on which courts of equity rectify an instrument, so as to enlarge its operation, or to convey or enforce rights not found in the writing itself, and make it con- form to the agreement as proved by parol evidence, on the ground of an omission, by mutual mistake, in the reduction of the agreement to writing, is, as we understand it, that in equity the previous oral agree- ment is held to subsist as a binding contract, notwithstanding the attempt to put It in writing; and upon clear proof of Its terms the courts compel the Incorporation of the omitted clause, or the modification of that which Is inserted, so that the whole agree- ment, as actually intended to be made, shall be truly expressed and executed. Hunt v. Rousmaniere, 1 Pet. 1; Oliver v. Mutual Commercial Marine Ins. Co., 2 Curt. 277, Fed. Gas. No. 10,498. But when the omitted term or obligation is within the statute of frauds, there is no valid agreement which the court is authorized to enforce, outside of the writing. In such case, relief may be had against the enforcement of the contract as written, or the assertion of rights acquired under It contrary to the terms and Intent of the real agreement of the parties. Such re- lief may be given as well upon the suit of a plaintiff seeking to have a written contract, or some of its terms, set aside, annulled, or restricted, as to a defendant resisting Its specific performance. Canedy v. Marcy, 13 Gray, 373; Gillespie v. Moon, 2 Johns. Ch. 585; Keisselbrack v. Livingston, 4 Johns. Ch. 148. Relief in this form, although procured by parol evidence of an agreement differing from the written contract, with proof that the difference was the result of accident or mistake, does not conflict with the provi- sions of the statute of frauds. That statute forbids the enforcement of certain kinds of agreement without writing; but it does not forbid the defeat or restriction of written contracts; nor the use of parol evidence for the purpose of establishing the equitable grounds therefor. The parol evidence is in- troduced, not to establish an oral agreement Independently of the writing, but to show that the written Instrument contained some- thing contrary to or In excess of the real agreement of the parties, or does not prop- erly express that agreement. Higglnson v. Clowes, 15 Ves. 516; Clowes v. Higginson, 1 Ves. & B. 524; Squier v. Campbell, 1 Mylne & C. 459, 480. But rectification by making the contract Include obligations or subject-matter to which Its written terms will not apply Is a direct enforcement of the oral agreement, as EQUITABLE EiGHTS. 195 much in conflict with the statute of frauds as if there were no writing at all. Jloale v. Buchanan, 11 Gill & .1. 314; Osborn v. Phelps, 19 Conn. 63; Elder v. Elder, 10 Jle. 80. In Parkhurst v. Van Cortland, 14 Johns. 15, 32, it is said that, "where It is necessary to make out a contract in writing, no parol evi- dence can be admitted to supply any defects in the writing." Per Thompson, 0. J. Such rectification, when the enlarged operation in- cludes that which is within the statute of frauds, must be accomplished, if at all, under the other head of equity jurisdiction, namely, fraud. Irnham v. Child, 1 Brown, Ch. 92; 1 Story, Eq. Jur. § 770a; Davies v. i'itton, 2 Dru. & War. 225; Wilson v. Wilson, 5 H. L. Cas. 40, 65; Manser v. Back, 6 Hare, 443; Clarke v. Grant, 14 Ves. 519; Clinan v. Cook, 1 Schoales & L. 22. The fraud most commonly treated as tak- ing an agreement out of the statute of frauds is that which consists in setting up the stat- ute against its performance, after the other party has been induced to make expendi- tures, or a change ..of situation in regard to the subject-matter of the agreement, or up- on the supposition that it was to be carried into execution, and the assumption of rights thereby to be acquired; so that the refusal to complete the execution of the agreement is not merely a denial of rights which it was intended to confer, but the infliction of an unjust and unconscientious injm-y and loss. In such case, the party is held, by force of his acts or silent acquiescence, which have misled the other to his harm, to be estopped from setting up the statute of frauds. Hawkins v. Holmes, 1 P. Wms. 770; Parkhurst v. Van Cortlandt, 1 Johns. Ch. 274, 14 Johns. 15; Browne, St. Frauds, § 437 et seq.; Fry, Spec. Perf. §§ 384r-38S; Caton y. Caton, 1 Ch. App. 137, 147, L. E. 2 H. L. 127. In the last named case it is said that "the right to relief in such cases rests not mere- ly on the contract, but on what has been done in pursuance of the contract" Per Lord Chancellor Cranworth. See, also, 1 Story, Eq. Jur. § 759. But the present case, as we have already seen, does not come within the principle of this ground of equi- table relief. Fraud, which relates only to the prepara- tion, form, and execution of the writing, is sufficient to vitiate the instniment so made. It may be set aside either in equity or at law. If it is made to include land not the subject of the actual sale, it is inoperative as to such land; and the fraud may be shown, for the purpose of defeating its re- covery, in an action at law. Walker v. Swasey, 2 AUen, 312, 4 AUen, 527; Bartlett V. Drake, 100 Mass. 174. It has been ques- tioned whether any other effect can be given to such fraud than to defeat the operation of the instrument altogether; and whether a court of equity can reform by giving it a narrower operation, as modified by parol proof, In a case within the statute of frauds. Attorney General v. Sitwell, 1 Younge & 0. Exch. 559. The difficulty is that, if the fraud vitiates and defeats the instrament, then the modifled agreement to be enforced must be that which is proved by parol evi- dence; and this seems to violate the stat- ute. But the instrument, in such case, is not void. It is voidable only; and that not at the election of the party who committed the fraud. He is not entitled to control the extent of the effect that shall be given to his fraudulent conduct; and it is not for him to object that the fraud is availed of only to defeat the rights, which he has se- cured by fraud, beyond what he is fairly en- titled to by the terms of the real agreement between the parties. When those are sep- arable, and the natm'e of the case will ad- mit of it the court may enforce the written contract Ln accordance with its terms, giving relief against the fraudulent excess, or the clause improperly inserted. Parol testimony, used to defeat a title or limit an interest ac- quired under a written instrument, or to con- vert it into a trust, does not necessarily con- flict with the statute of frauds. .It has been held that an absolute deed may, in this mode, be converted, in equity, into a mort- gage. WashbiUTi V. Merrill, 1 Day, 140; Taylor v. Luther, 2 Sumn. 228, Fed. Cas. No. 13,796; Jenkins v. Eldredge, 3 Stoi-y, 181, 293, Fed Cas. No. 7,266; Morris v. Nix- on, 1 How. 118; 4 Kent, Comm. (6th Ed.) 143. >vheiuer this can be done in Massachu- setts has not yet been decided. Newton v. Fay, 10 Allen, 505. But if it were to be so held, it would not be upon the ground of en- forcing a parol agreement to reconvey; but upon the ground that such an agreement, to- gether with proof that the deed was given and accepted only as security for a debt, made out a case of fraud, or trust, which would warrant a decree vacating the title of the grantee, as far as he attempted to hold contrary to the purposes of the conveyance. In such cases the court acts upon the estate or rights acquired under the written instru- ment; and within the power over that in- strument which is derived from the fraud or other ground of jurisdiction. But when it is sought to extend that power to interests in land not included in the instrument, and in relation to which there is no agreement in writing, the case stands differently. Fraud may vitiate the writing which is tainted by it, but it does not supply that which the statute requires. It may destroy a title or right acquired by its means; but it has no creative force. It will not confer title. In the absence of a legal contract by the agreement of the parties, it will not es- tablish one, nor authorize the court to de- clare one, by its decree. This distinction is illustrated by the anal- ogous rule in regard to implied trusts. Gen. St c. 100, § 19. Parol evidence may charge the grantee of lands conveyed with a result- ing or Implied trust, which equity will en- 196 EQUITABLE RIGHTS. force. But such evidence ■will not create a trust in lands already held by an absolute title. A fraudulent misrepresentation, although sufficient to sustain an action for damages, cannot be converted into a contract to be enforced as such. Neither will it furnish the measure by which a written contract may be reformed. In this discussion we have as- sumed that there was a clear agreement be- tween the parties, which the deed fails to carry out, and to which it might properly be made to conform, but for the obstacle in the statute of frauds. It has been of ten asserted that where one by deceit or fraudulent contrivance prevents an agreement intended to be put in writing from being properly written or executed, he shall not avail himself of the omission, and shall not be permitted to set up the statute of fraud against the proof and enforcement of the parol agreement, or of the parol stipu- lation improperly omitted. But in our opin- ion this doctrine would practically annul the statute. The tendency of the human mind, when fraud and injustice are manifest, is to strain every point to compass its defeat; and to render full redress to the party upon whom it has been practiced. Mundy v. Jol- liffe, 5 Mylne & C. 167; Taylor v. Luther, 2 Sumn. 233, Fed. Cas. No. 13,796. This in- fluence has led to decisions in which the facts of the particular case were regarded more than the general considerations, of public pol- icy upon which the statute is founded and entitled to be maintained. Courts have some- times regarded it as a matter of judicial mer- it to wrest from under the statute all eases in which the lineaments of fraud in any form were discernible. But the impulse of moral reprobation of deceit and fraud, how- ever commendable in itself, is liable to mis- lead, if taken as the guide to judicial de- crees. We apprehend that in most instances where fraud occasioning a failure of written evi- dence of an agreement or particular stipula- tion has been held to take the case out of the statute of frauds, there was some fact of prejudice to the party, or change of situa- tion consequent upon the fraud, which was regarded as sufficient to make up the ele- ments of an equitable estoppel. In such case, the argument is transferred to the simple question of the sufficiency of the additional circumstance for that purpose. The cases most frequently 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, or the assurance that it would be, executed, the other party is held to make good the agreement, and not permit- ted to defeat it by pleading the statute. Max- well V. Mountacute, Prec. Ch. 526; Browne, St. Frauds, §§ 441^45. Another class of cases are those where a party acquires property by conveyance or de- vise secured to himself under assurances that he will transfer the property to, or hold and appropriate it for the use and benefit of, an- other. A trust for the benefit of such other person is charged upon the property, not by reason merely of the oral promise, but be- cause of the fact that by means of such promise he had induced the transfer of the property to himself. Brown v. Lynch, ] Paige, 147; Thynn v. Thynn, 1 Vern. 296; Oldham v. Litchfield, 2 Vern. 506; Devenish. V. Baines, Prec. Ch. 3; 1 Story, Eq. Jur. § 768. When these cases are cited in support of the doctrine that artifice or fraud in evading or preventing the execution of the writing is alone sufficient to induce a court of equity to disregard the statute and enforce the oral agreement, the subsequent change of situa- tion or transfer of property, without which the deceit would be innocuous, seems to be overlooked, because it is liot strictly in part performance of the agreement sought to be enforced. It must be manifest, however, that without such consequent act there would be no standing for the case in a court of equity. That which moves the court to a decree to enforce the agreement is not the artifice by which the execution of the writing has been evaded, but what the other party has been induced to do upon the faith of the agree- ment for such a writing. It is not that de- ceit, misrepresentation, or fraud, of itself, en- titles a party to an equitable remedy; but that equity will interfere to prevent the ac- complishment of the fraud which would re- sult from the enforcement of legal rights con- trary to the real agreement of the parties. Indeed, the fraud which alone justifies this exercise of equity powers by relief against the statute of frauds consists in the attempt to take advantage of that which has been done in performance or upon the faith of an agreement, while repudiating its obligations- under cover of the statute. When a writing has been executed, the courts allow the fraud or mistake by which an omission or defect in the instrument has been occasioned to defeat the conclusiveness of the writing, and open the door for proof of the real agreement. But the obstacle of the statute of frauds to the enforcement of obligations, or the security of rights not expressed in the instrument re- mains to be removed in the same manner as if there were no writing. Phyfe v. Wardell, 2 Edw. Ch. 47; Moale v. Buchanan, 11 Gill & J. 314. The power to reform the instrument is not an independent power or branch of eq- uity jurisdiction, but only a means of exercis- ing the power of the court under its general jurisdiction in cases of fraud, accident, and mistake. We are aware that the limitation which we EQUITABLE RIGHTS. 197 have undertaken to define has not been uni- formly obseiTed or recognized. In Wiswall y. Hall, 3 Paige, 313, Chancel- lor Walworth granted a perpetual injunction, and ordered a deed of release of title to land omitted from a deed by fraud and secret con- trivance. There was no discussion of the au- thorities, nor of the principles upon which the case was decided; and no reference to the statute of frauds; and the statute does not appear, by the report, to have been set up against the prayer for relief. In De Peyster v. Hasbrouck, 11 N. Y. 591, a similar decision was made in the court of appeals in New York. Here again there is no reference to the statute of frauds, no dis- cussion of the principles involved in the deci- sion, and no authority or precedent cited ex- cept that of Wiswall v. Hall. The mortgagor whose deed was reformed put in no answer whatever. The defence was made by parties claiming under him, and the statute of frauds does not appear to have been pleaded. De- nio, C. J., in giving the opinion, proceeds to say: "It is unnecessary to refer to cases to establish the familiar doctrine that when through mistake or fraud a contract or con- veyance fails to express the actual agreement of the parties, it will be reformed by a court of equity, so as to correspond with such ac- tual agreement. The English cases have been ably digested by Chancellor Kent, and the principle has been stated with his accus- tomed care and accuracy, in Gillespie v. Moon, 2 Johna Ch. 585." But in Gillespie v. Moon the relief sought and granted was by way of restricting, and not by enlarging, the operation of the deed. Such relief would not, as already shown, con- flict with the statute of frauds; and neither the discussion in that case nor the citation of authorities had reference to the bearing of the statute of frauds upon the question of af- fording relief upon contracts relating to land. Indeed, the English cases furnish but little aid upon that point, for the reason that the courts there have generally, without refer- ence to the statute of frauds, refused to en- force written contracts with a modification or variation set up by parol proof. Woollam V. Heam, 7 Ves. 211, and notes on the same in 2 Lead. Cas. Eq. 404; Nurse v. Seymour, 13 Beav. 254. The principle which was maintained by Chancellor Kent, and upon which the Eng- lish authorities were cited by him in Gilles- pie V. Moon, was that relief in equity against the operation of a written instrument, on the ground that by fraud or mistake it did not express the true contract of the parties, might be afforded to a plaintiff seeking a modification of the contract, as well as to a defendant resisting its enforcement. That proposition must be considered as fully es- tablished. 1 Story, Eq. Jur. § 161. It is quite another proposition, to enlarge the sub- ject-matter of the contract, or to add a new term to the writing, by parol evidence, and enforce it. No such proposition was present- ed by the case of GiUespie v. Moon, and it does not sustain the right to such relief against the statute of frauds. That Chancellor Walworth, in Wiswall v. Hall, did not intend to decide that the stat- ute of frauds could be disregarded if properly set up against such an enlargement of the operation of the written contract is apparent from the remarks of the same learned judge in the subsequent case of Cowles v. Bowne, 10 Paige, 535. He says: "Whether a party can come into this court for the specific per- formance of a mere executory agreement for the sale of lands, which in its terms is ma- terially variant from the written agreement between the parties that has been executed according to the statute, where there has been no part performance or other equitable circumstance sufficient to take the case out of the statute of frauds, as a mere parol con- tract between the parties, is a question which it will not be necessary for me to con- sider in this case." In Gouverneur v. Titus, 1 Edw. Ch. 480, there was a deed of land described as being in the northwest comer of a township by mis- take for the northeast corner. The grantor admitted the real contract, and had corrected the mistake by deed. The only question was whether equity would enforce the corrected deed against the lien of a judgment creditor, who had notice of the mistake. In the opinion it is said: "It is a case in which this court would interfere, as between the immediate par- ties, to correct the mistake." The judgment was clearly right. The dictum we are dis- posed to question, unless the deed itself con- tained some other description by means of which the land might be identified and the mistake corrected. In Newson v. Bufferlow, 1 Dev. Eq. 379, a deed was reformed, which was made, by fraud, to include land not sold; and the fraud- ulent grantee was required to execute a recon- veyance of the excess. The opinion contains a remark of the court that this power may be exercised as well by inserting what was omit- ted as by striking out what was wrong- fully included. But this remark is clearly obiter dictum, and is not sustained by the authority cited, namely, Gillespie v. Moon. In Blodgett v. Hobart, 18 Vem. 414, a mortgage was reformed by including other lands omitted by mistake. The statute of frauds was not set up in the answer nor re- ferred to in the opinion of the court, and the answer was considered by the court to be evasive in regard to the alleged agreement for security upon such other lands. In Tilton v. Tilton, 9 N. H. 385, the court controvert the doctrine of such a limitation, as declared in Elder v. Elder, 10 Me. 80; but the decision did not Involve the question so discussed. The case arose from an attempted partition between tenants in common of real estate. There was a written agreement for partition according to the award of certain 198 EQUITABLE RIGHTS. arbitrators named, and the only question was as to the effect of a substitution of other ar- bitrators by parol. Deeds had been executed, and the plaintiff had fully performed his part of the agreement. It was a case of part per- formance sufficient to take the case out of the statute of frauds, and was decided upon that ground. Besides, a partition of lands, though effected by mutual deeds of release, is not a contract for the sale of land. Craig V. Kittridge, 3 Fost. (N. H.) 231, arose upon a partition, and was decided upon the authority of Tilton v. Tilton. Smith v. Greeley, 14 N. H. 378, was a decree upon de- fault, without argument or opinion, against the executors and heirs of a party whose deed, by mutual mistake, failed to include certain land sold. It does not appear whether there was written evidence of the agreement, nor whether there was possession or acts of performance. It was sufficient, perhaps, that the statute was net pleaded, and the default admitted the agreement. Caldwell v. Carrington, 9 Pet. 86, was an agreement for exchange of lands, and stands entirely upon the ground of part performance. Notwithstanding contrary decisions and dic- ta, we are satisfied that upon principle the conveyance of land cannot be decreed in eq- uity by reason merely of an oral agreement therefor against a party denying the alleged agreement and relying upon the statute of frauds, In the absence of evidence of change of situation or part performance creating an estoppel against the plea of the statute. This rule applies as well to the enforcement of such an agreement by way of rectifying a deed as to a direct suit for its specific per- formance. We are satisfied also that this Is the rule to be derived from a great prepon- derance of the authorities. Whitchurch v. Bevis, 2 Brown, Ch. 559; Woollam v. Hearn, 7 Ves. 211; 2 Lead. Cas. Eq. (3d Am. Ed.) notes, [*414], Am. Notes, 691; Townshend V. Stangroom, 6 Ves. 328; Beaumont v. Bram- ley. Turn. & R. 41. See, also, Moale v. Bu- chanan, 11 Gill & J. 314; Osborn v. Phelps, 19 Conn. 63; and Elder v. Elder, 10 Me. 80, already cited above; Adams, Eq. 171, 172; Churchill v. Rogers, 3 T. B. Mon. 81; Purcell V. Miner, 4 Wall. 513. The prayer In regard to the fence stands differently. If that stipulation had been fraudulently inserted in the deed, the agree- ment being otherwise, the deed might be re- formed by striking out that provision, or re- quiring a release of it, so as to piake the writ- ing correspond with the actual agreement. But upon the allegations of the bill there is no other agreement by which to reform the deed, and to which to make it conform. The plaintiff admits that the stipulation In the deed is precisely in accordance with the ac- tual agreement The fraud which he alleges relates only to the consideration or induce- ment upon which he was led to make that agreement; not to the form of the agreement Itself. If that stipulation were to be stricken out, the writing would then not express the agreement actually made by the parties. The court cannot rectify an instrument otherwise than in accordance with the actual agree- ment. It cannot make an agreement for the parties. Hunt v. Rousmaniere, 1 Pet. 1, 14; Brooks v. Stolley, 3 McLean, 523, Fed. Cas. No. 1,962. If the subject-matter of this stipulation were of sufficient materiality, the fraud alleged might have the effect to defeat the whole instrument. But this effect is not sought. The plaintiff's remedy, there- fore, is at law, In damages for the deceit and false representation. The alleged agreement in regard to the pre- mium and accrued interest upon the bonds transferred in payment for the land will not sustain a bill In equity. If such an agreement was made and broken, we see no reason why an action of assumpsit will not lie upon the agreement, or for the oveipayment of the agreed price of the purchase. The remedy at law is as effectual as it can be in equity. The entry must therefore be, bUl dismissed. EQUITABLE RIGHTS. 199 HUNTER V. BILYEU et al. (30 111. 228.) Supreme Court of Illinois. Jan. Term, 1863. W. H. Herndon, and S. P. Moore, for ai)- peUant J. & D. Gillespie, for appellees. BREESE, J. John B. Hunter, as admin- istrator of Samuel W. Hunter, deceased, brought his action in the circuit court of Bond county, against Wesley A. and Finis Bilyeu, on a note executed by them to the intestate, dated March 30, 1850, and due March 30, 1855. Pending the action the de- fendants obtained an Injunction on their biU of complaint, to which the administra- tor, and the heirs-at-law of the Intestate, who were minors, and their guardian, to- gether with Joseph Smith, were made de- fendants. The biU alleges, that the note sued upon, to- gether with others which were paid, was one and the last of a number of notes they had executed to the intestate, for certain lands lying in Bond county, for which a bond for a deed was executed and delivered to them by the intestate. That they were put into possession of the lands, and made lasting and valuable improvements on some of the tracts, but have discovered that one or more tracts, which they supposed they had bought, were not included in the bond. One of those tracts is described as "the old field tract" lying south-east of Shoal creek, and being part of the west half of the north- west quarter of section twenty-three, in town five north, range four west, containing forty and nineteen-hundredths acres; and the other, the "GiUespie tract," being the east half of the north-west quarter of the north- east quarter of the same section, township and range, containing twenty acres; the un- divided half of both which tracts, the com- plainants allege, was purchased by them of the intestate, and was to have been included in the title bond, but by mistake was left out, and these tracts subsequently sold by the intestate to Joseph Smith. The bill also alleges, that some time an- terior to the commencement of this suit on the note, the administrator had filed a peti- tion in the circuit court, at the September term, 1855, praying the court for an order to authorize him to make a deed to complain- ants for the land described in the bond; that this petition contained the same errors and mistakes as are now complained of, with another error superadded in describing the lands as being in section "twenty-five." The complainants admit they were made defend- ants, and had due notice of the pending of the petition, but they did not appear to de- fend, supposing the lands were described as In the bond, and their being made defend- ants was a mere ceremony, and the proceed- ings consistent with their rights. That these errors and mistakes were carried into the decree rendered on this petition, and in the deed which the administrator tendered to them, and by them refused. No exhibit is made of these proceedings or of this deed. The title bond is alleged to have been writ- ten by the intestate, and delivered to the complainants and accepted by them without any objection, on the 30th of March, 1850. In the following year, 1851, the intestate left the state, and in 1852 died, leaving these in- fant defendants his only heirs at law. The prayer of the bill is, that the court would order and direct the defendants to convey to complainants all of the land agreed to be conveyed to them by the Intestate, and to annul and hold for naught the order of the circuit court in behalf of the administra- tor, or to amend and correct the decree so as to comport with justice and good conscience, and perpetually enjoin the collection of the note sued on, until they are able to comply with the understanding of Samuel W. Hun- ter, the intestate. The bond is made an exhibit, and describes the lands sold, and to be conveyed on pay- ment of the purchase money. They are: "The undivided half of a certain lot, begin- ning at the south corner of the south-west quarter of section 14, town 5 north, of range 4 west of the third principal meridian; thence running north fifty poles; thence west to the middle of the channel of Shoal creek; thence down the channel of Shoal creek, to the sec- tion line; thence east to the beginning cor- ner, containing thirty-eight acres, more or less. Also, the undivided half of so much of the west half of the north-west quarter of section 23, town 5 north, range 4 west of the third principal meridian, lying on the west side of Shoal creek. Also, twenty poles south from the creek on the east line of said half; thence west to said creek; thence up said creek to the beginning. Also, the undivided half of twelve acres, more or less, of the south-west quarter, town 4 west of the third principal meridian, commencing at the south- west corner of said section; thence north fifty; thence east to the middle of the chan- nel of Shoal creek; thence down said creek to the section line; thence west to the be- ginning. Also, two acres and a half of the west half of the north-west quarter of section 23, in same township and range, commencing at a stake on the east line of said land at the south-east corner of the mile post; thence south twenty poles; thence west twenty poles; thence north twenty poles; thence east twenty poles, to the beginning." This last tract was in a separate bond to Finis Bilyeu, one of the complainants, made at the same time and on the same conditions, as the bond to complainants jointly, and for convenience, no question being made on it, both bonds are considered as one. There is a slight apparent ambiguity in the description of the undivided half of twelve acres, which is explained by the plat sworn to by the witnesses, and is the tract on the west side of the creek, contained within the •200 EQUITABLE BIGHTS. nortli and south lines of the tract of thirty- eight acres, if extended west to the section line. There is no dispute about this tract. The tract described as "also twenty poles south from the creek on the east line of said half; thence west to said creek; thence up said creeli to the beginning," is understood to describe the mill yard, having the shape of a rectangular triangle, the south line be- ing the perpendicular, the west line the base, land the creek the hypothenuse. About this tract there is no dispute. The administrator demurred to the bill, which was afterwards withdrawn, and his answer filed, not admitting the mistake al- leged, to which there was a replication. At a subsequent term, he also filed a plea of the statute Qf frauds and perjuries. Smith also answered, denying any knowledge when he ■purchased, of any sale of the tract south-east of Shoal creek, in section twenty-three. On the hearing, the bill was dismissed as to him. Much testimony was introduced on behalf of complainants, for the purpose of showing by the declarations of the intestate, that an undivided half of other tracts besides these, namely, the tracts known as the "old field" tract, sold to Smith, and the "Gillespie" tract, were bargained for and sold, but, for some •cause not fully explained, omitted from the title bond. The lasting and valuable improvements were made by comxjlainants on other tracts, about which there is no dispute. The bill is. in effect, a bill to reform by parol, this title bond by incorporating into It the part lying south-east of the creek, called the "old field" tract, and the "Gillespie" tract, and when reformed, to decree a specific performance. The contract must be reform- ed before such a decree can pass. This presents a question which has been much discussed in the courts of this coun- try and of England, and on which there Is great contrariety of opinion. The question is, in a bill to reform a writ- ten instrument, in the absence of any allega- tion or proof of fraud, and on the ground of raccident and mistake alone, is parol evi- dence admissible to prove an agreement to ■do something further than is contained in the writing, the statutes of frauds and per- juries being relied on in the defense, and •which that statute requires to be proved by •writing? ■Whilst in England, the weight of adjudica- *ions seems to be opposed to the admission ■of parol evidence, in this country, it appears to be the other way. One of the leading cases in England, is that of 'Woollam v. Hearn, 7 Ves. 211. It is prominent among the I^eading Cases of 'White & Tudor (pt. 1, vol. 2), with copious notes by Hare & 'Wal- lace, 510. In this case the bill filed by 'Wm. Woollam against Hearn, stated that the rent of seven- ty-three pounds ten shillings was inserted in tlie written lease by mistake, or with some unfair view; the real agreement being that the plaintiff was to have the lease upon the same rent as the defendant paid to his lessor, and that he did not pay more than sixty pounds. The prayer was for a specific per- formance, and that the defendant may be decreed to execute a lease according to the agreement, at the rent of sixty pounds, or such other rent as the defendant paid his lessor. The defendant, in his answer, denied that seventy-three pounds ten shillings was inserted by mistake, or with any unfair view; or that the agreement was that the plaintiff should pay the same rent as the defendant paid, which he admitted was sixty-three pounds. The bill was proved by depositions. Sir Wm. Grant, M. R., said: "By the rule of law, independent of the statute (of frauds and perjuries), parol evidence cannot be re- ceived to contradict a written agreement. To admit it, for the purpose of proving that the written instrument does not contain the real agreement, would be the same as receiving it for every purpose. It was for the purpose of shutting out that inquiry, that the rule of law was adopted. When equity is called up- on to exercise its peculiar jurisdiction by de- creeing a specific performance, the party to be charged is let in to show, that, under the circumstances, the plaintiff is not entitled to have the agreement specifically performed; and there are many, cases in which parol evidence of such circumstances has been ad- mitted, as in Buxton v. Lister, 3 Atk. 383. There on the face of the instrument, a spe- cific sum was to be given for the timbers, but it was shown, by parol, that the defend- ants were induced to give that, upon the representation that it was valued by two timber merchants which was not true. If this had been a bill brought by this defendant for a specific performance, I should have been bound by the decisions to admit the parol evidence, and to refuse a specific per- formance. But this evidence is offered, not for the purpose of resisting, but of obtaining a decree, first to falsify the written agree- ment, and then to substitute in its place a parol agreement to be executed by the court. There is no case in which the court has gone the length now desired. The evidence offered is to vary an agreement in a material part, and having varied it, to procure it to be ex- ecuted in another form. There is nothing to show that ought to be done; and my opin- ion being that it ought not, I must dismiss the bill." In the case of Rogers v. Earl, 1 Dickson, 294, which was a bill to rectify a mistake of the solicitor in drawing a marriage settle- ment; in Thomas v. Davis, Id. 801, to rectify a mistake In a conveyance by the omission of one of the parcels of land intended to be con- veyed; in Sims v. Urry, 1 Oh. Gas. 225, to prove a mistake In the penal sum of a bond, by writing it forty instead of four hundred pounds,— verbal evidence was admitted. In Hardwood v. Wallace, cited in Targus v. EQUITABLE RIGHTS. 201 Puget, 2 Ves. Sr. 195, where It was proposed to prove a mistake in drawing a settlement; and in Attorney General v. Sitwell, 1 Young ■& C. 559, etc., where it was proposed to show, by parol, that in a contract with the crown for the sale of a certain manor, with the appurtenances, the advowson was omit- ted by mistake,— such evidence was rejected, or deemed inadmissible. In this case Baron Alderson said: "I cannot help feeling that in the case of an executory agreement, first to reform and then to decree an execution of It, would be, virtually, to repeal the stat- ute of frauds." In cases within the statute of frauds, verbal evidence was held inadmissible, as in Dwight V. Pomeroy, 17 Mass. 303, where the plaintiff, being creditor of an insolvent debt- or who had executed a deed of assignment in trust, for the benefit of his creditors, filed his bill against the trustees to reform an al- leged mistake in the ti'usts expressed in the ■deed. And in Elder v. Elder, 10 Me. SO, where the written agreement was for the con- veyance of a lot of land in Windham, for- merly owned by J. E., and the plaintiff pro- posed to prove by parol that it was intended to include the adjoining land in Westbrook, under the same ownership, but that this was omitted by mistake. In Osborn v. Phelps, 19 Conn. 63, an agreement for the sale of land was drawn in two separate instruments, one to be signed by the vendor, and the other by the purchaser, and neither of the instruments contained any reference to the other, but each was signed by the wrong ■party by mistake. This the plaintiff sought to prove by parol evidence, but the court held it inadmissible. In other American cases, such evidence has been held admissible. In Gillespie v. Moon, 2 Johns. Oh. 583, which was a bill for relief And for the reconveyance of a tract of land, which had been included by mistake or fraud in a deed of conveyance, verbal evi- ■dence of the mistake, on a review of all the ■cases, was admitted, and a reconveyance de- creed. In Tilton v. Tilton, 9 N. H. 385, where tenants in common agreed to make partition pursuant to a verbal award, and executed ■deeds accordingly; but, in the deed to the plaintiff, a parcel assigned to him was omit- ted by mistake; in a bill for relief, verbal evidence was held admissible, and relief thereupon decreed. So in Langdon v. Keith, ■9 Vern. 299, where upon the transfer of a part of several promissory notes, secured by mortgage, an assignment of the mortgagee's Entire interest in the mortgage was made, by mistake, instead of a part, relief was decreed upon verbal proof. In De Riemer v. Gan- tillon, 4 Johns. Ch. 85, where a portion of the land purchased at sheriff's sale was by mis- take omitted in his deed to the purchaser, upon parol evidence of the fact the judgment debtors were decreed to convey to the pur- chaser the omitted parcel. Several other cases are referred to in this note. It does not appear that tbo statute of frauds and perjuries was pleaded in any of these cases, though referred to in the argument, and in the opinion of the court. In Woollam v. Hearn, and in many of the cases referred to in Hare & Williams' notes to that case, a distinction is made between seeking and resisting specific performance, as to the admission of evidence. It is said, though a defendant resisting a specific per- formance, may go into parol evidence to show that by fraud the written agreement does not express the real terms, a plaintiff can- not do so for the purpose of reforming the agreement and obtaining a specific perform- ance of it as reformed. This doctrine is critically examined in Gil- lespie V. Moon, 2 Johns. Ch. 585, before cit- ed. In that case the bill was filed to rectify a mistake in the conveyance which, by an error in the description of the land, convey- ed the whole lot, or two hundred and fifty acres, instead of two hundred acres, parcel of the same. The mistake is positively denied in the an- swer, and the point was, is parol proof of this mistake admissible, in opposition to the plain language of the deed, and especially in opposition to the defendant's answer? It will be seen the statute of frauds and perjuries was not set up in the case. After entering minutely into the parol proof of the fact of the mistake, Chancellor Kent says: "The rule in courts of law is, that the written instrunjent does, in con- templation of law, contain the true agree- ment of the parties, and that the writing fur- nishes better evidence of the sense of the parties, than any that can be supplied by parol. But equity has a broader jurisdic- tion, and will open the written contract to let in an equity arising from facts perfectly distinct from the sense and construction of the instrument itself. I have looked into most, if not all the cases on this branch of equity jurisdiction, and it appears to me to be established on great and essential grounds of justice, that relief can be had against any deed or contract in writing, founded in mis- take or fraud. The mistake may be shown by parol proof, and the relief granted to the injured party, whether he sets up the mis- take affirmatively by bill, or as a defense." After reviewing many of the decisions on this question, the chancellor decides that parol proof was admissible, and that it estab- lished the mistake as charged in the bill. It will be observed, the contract in this case was an executed contract, a deed of conveyance having been made; there was no prayer for a specific performance of a contract, but to correct a mistake in the deed. The chancellor remarks: "Whether such proof be admissible on the part of a plaintiff, who seeks a specific performance of an agreement in writing, and at the same time seeks to vary it by parol proof, has been made a question. Lord Hardwicke, In 202 EQUITABLE RIGHTS. Jacques v. Statliam, 3 Atk. 388, seemed to think it might be done, but such proof was rejected in WooIIam v. Hearn, 7 Ves. 211 (which we have cited at length) ; and in Hlg- ginson v. Clowes, 15 Ves. 516; and when Lord Redesdale said, in Clinan v. Cooke, 1 Schoales & L. 39, that he could find no deci- sion in which a plaintiff bad been permitted to show an omission in a written agreement, by mistake or fraud, he must be understood to refer to the cases of bills for a specific per- formance of an agreement, which was the case then before him." This case would seem to decide nothing more than this: that in a bill to correct a mis- take in an executed contract, parol proof of the mistake is admissible, and that such proof is as available for one party, or for one purpose, as for another, — as available for the plaintiff in setting up a claim, as for the defendant in resisting it. It is nowhere said, that a bill to reform an executory contract, and then decree a specific performance when reformed, against a denial, in the answer, of any mistake, and the plea of the statute of frauds and perjuries, can be sustained by parol evidence. This decision, so far as It goes, has been followed by the courts of many other states. The cases are referred to by Hare & Wallace, on pages 539, 540, but in none of them was the denial in the answer accompanied by a plea of the statute of frauds and perjuries. Nor do these cases go farther than to assert the general principle, that Independent of this statute, where it Is not set up as a de- fense, parol evidence will be received to cor- rect an alleged mistake in a written executed contract, when asserted by a plaintiff, and is as available for him, as for defendant. The cases go to the extent of declaring, that parol evidence shall be admissible to correct a writing as well for a plaintiff as against him, thus establishing mutuality and equality in the operation of the doctrine. In 1 Story, Eq. Jur. § IGl, in commenting on the distinction set up, the learned author says, in a note, that it is of a very artificial character, and difBcult to be reconciled with the general principles of courts of equity. He says: "The ground is very clear, that a court of equity ought not to enforce a con- tract, when there is a mistake, against the defendant insisting upon and establishing the mistake; for it would be inequitable and unconscientious. And If the mistake is vital to the contract, there is a like clear ground, why equity should interfere at the instance of the party as plaintiff, and cancel it; and if the mistake is partial only, why, at his in- stance, it should reform it. In these cases, the remedial practice is equal; and the parol evidence to establish it, is equally open to both parties to use as proof. Why should not the party aggrieved by a mistake in an agreement, have relief in all cases when he Is plaintiff, as well as when he is defendant? If the doctrine be founded upon the Impro- priety of admitting parol evidence to con- tradict a written agreement, that rule is not more broken in upon by the admission of It for the plaintiff than it is by the admission of It for the defendant. If the doctrine had been confined to cases arising under the stat- ute of frauds, it would, if not more intelligi- ble, at least have been less inconvenient in. practice." In a subsequent case, — Kelsselbrack v. Liv- ingston, 4 Johns. Ch. 145,— which was a bill for the specific performance of an agreement in writing to execute a lease for lives "con- 'taining the usual clauses, restrictions and reservations contained in the leases given by defendant," the bill stated that a lease was offered, containing a provision that upon ev- ery sale of the demised premises, one-fifth of the purchase or consideration money should be taken by the defendant to Jiis own use, which complainant refused to receive, alleg- ing, that at the time of the execution of the writing, it was agreed no such quarter or fifth sales should be demanded or paid. The defendant did not, in direct and clear terms, deny any such agreement, but denied any other or different contract than the one set forth made in writing, and as to the va- lidity of the supposed verbal agreement, he pleaded the statute of frauds. The point in the case was, whether this verbal agreement could be established by pa- rol. The learned chancellor says, it did not appear to him, that the statute of frauds had any bearing on the case. "The agree- ment for the three life lease is In writing, and It has been partly performed, by possessiorn taken and transferred, and rent paid. The right of the plaintiff rests upon the contract. In writing, and the only inquiry is, whether there is not a mistake in the generality of the expression, that the lease was to contain the 'usual clause,' etc., and whether the par- ties did not intend an exception in respect to the quarter sales. There Is no doubt of their declared intention to make such an ex- ception at the time the agreement was drawn r and I am inclined to think that the writing Is, and ought to be, susceptible of amend- ment and correction in that particular." The proof was admitted, and the mistake corrected, partly upon the ground, that the writing itself let In parol proof, to show which were "the usual clauses," etc., and such, proof being let In by the contract Itself, it might, on the principle of the agreement it- self, be applied to correct any mistake mani- festly shown to exist, in the general and un- qualified terms of that part of the written agreement which depended for Its explana- tion upon external proof. This court has held, as a general proposi- tion, that the terms of a written agreement cannot be changed by parol. Baker v. White- side, Breese, 132; Penny v. Graves, 12 111. 298. And so It is held by all courts. At the- same time, we have said, that whatever cov- enants an absolute deed may contain, paroli EQUITABLE EIGHTS. 203 evidence may be admitted to show that it was intended as a mortgage, or mere security for the payment of the debt, and the gran- tor can have relief in equity, and tins, where mistake is not alleged. Purviance v. Holt, 3 Gilman, 405; Ferguson v. Sutphen, Id. 547. And it is also held, in Harlow v. Boswell, 15 111. 57, where parties commit their contracts to writing, this forms the only evidence of its terms. In Scott V. Bennet, 3 Gilman, 254, this court said, it is a familiar principle that you may give evidence to explain, but not to vary, add to, or alter a written contract. Courts cannot make a new contract for the parties. But if there is doubt and uncertainty, not about what the substance of the contract is, but as to its particular application, it may be explained, and properly directed. As a general principle, where a contract is reduced to writing, the writing affords the only evidence of the terms and conditions of the contract; all antecedent and contempora- neous verbal agreements are merged in the written contract. There is an apparent contradiction in these several opinions, but we think a few familiar considerations will serve to reconcile them, or show that it is not real. The subjects pecul- iarly proper for the jurisdiction of courts of equity, are well understood to be, fraud, trusts, accident and mistake, and these courts are vested with the power to afford relief in all cases, wherein, by reason of the universal- ity and rigor of the rules of the common law, a remedy cannot otherwise be had. The power to correct a mistake in a writing, is as much within the scope of this jurisdiction as any other mistake. The whole realm of mistake is laid open to the court, and its pow- ers are limitless to correct, on a proper case made. That it should be dormant, when in- voked to correct a mistake in a written con- tract, would be strange indeed. It is no an- swer to say, that within the rigid rule of law, the power may be exercised, but not outside of it, as that would destroy the rule. In our judgment, it has no such effect The juris- diction of a court of chancery to correct mistakes, is no less important to the due ad- ministration of justice, and the safety of the citizen, than the rule of the common law, that parol evidence cannot be received to add to, or vary a written contract, and in a court of equity, it must be determined, on the circum- stances of each case, which shall prevail, the exercise of an unquestioned power of the court, or the rule of the common law. The doctrine is undisputed and incontesta- ble, that a deed, absolute on lis face, may be shown, by parol, to have been intended by the parties to it, as conditional, merely, and a court of equity, on proper proof, will so hold. This contract is explained by parol evidence, and if it is made to speak a language its words do not import, who will deny that it is within the competency of that court to as- certain the real contract of the parties, and then enforce It, according to the intention of the parties? If a court of equity has not the power to correct mistakes in a deed, or other writing, on convincing proof of the existence of the alleged mistake, great injustice would be perpetrated with impunity. A man sells a vacant lot adjoining the lot on which he has a costly residence, but by the mistake of the scrivener, the deed describes the lot of his residence. An ejectment is brought — the purchaser claiming under his deed— and if no power exists in a court of equity to cor- rect the mistake, he must surrender that which he never sold, and the purchaser re- cover a property he never bought. A court of chancery should not hesitate to receive pa- rol evidence of this mistake, and on sufficient proof, correct it, else the most flagrant injus- tice would be perpetrated, and an undoubted power of that court be rendered ineffectual and worthless. There can be no danger in exercising this power, since the court has before it all the facts, and if they are not con- vincing, the stern rule of law will prevail. The court has, in many cases, acknowl- edged and exercised this power, and we do not know that it has been questioned by the bar here or elsewhere. The doctrine is fully recognized in the case of Broadwell v. Broadwell, 1 Gilman, 599, that a court of chancery will always correct any mistakes of fact which have occurred In drawing up a paper, when a proper case Is presented and clearly proved, and then carry Into effect the instrument when thus correct- ed. And herein is found the safeguard for those so litigating, a proper case must be presented and clearly proved. If It be clear- ly proved, who shall say that a court of eq- uity transcends its powers, or violates the rule of law. In declaring the contract to be as the parties have made It? We cannot think the statute of frauds and perjuries has any application to such cases. Here the bill is filed to reform this contract, by inserting in it several tracts of land, al- leged to have been omitted from it by mis- take, and parol evidence is relied on for such purpose; and when reformed, then the prayer is, to decree a specific performance of the con- tract. This proof makes the contract dif- ferent from what Its words import, and adds to it, and varies it very materially. It, in fact, makes a new and different contract; yet if the mistake is clearly established, which should give way, that rigid rule of the common law, or that power residing in a court of equity, to correct mistakes? The strongest and most convincing evidence will be required, before the common law rule is postponed, and the power of the court exer- cised. Now, what is the testimony In this case? It consists, in great part, of loose conversa- tions held by one Gillespie and others, with the intestate, in which he said, there was a mistake In the bond; that the tract lying south-east of Shoal creek, being part of the 204 EQUITABLE RIGHTS. west half of the north-west [guarter] of [section] twenty-three was not in the bond, or not in right, and the Bilyeus had found it out. This witness states nothing in positive terms, but "thinlis" the facts were so and so, as he details them. He "thinks" all the lands claimed by complainants were included in the bond, except the Gillespie ti-act, and thinks that intestate told him some of the numbers were wrong, and some of the land was not named in the bond. He spoke of the west half of the north-west [quarter of sec- tion] twenty-three lying south-east of Shoal creek, as not included in the bond, and that he would not rectify the mistake because they could not agree upon a division of the lands according to his understanding of the con- tract. This witness says that he can neither read nor write, and details only such parts of the conversation, as he "thinks" was had with the intestate. He does not say in pos- itive terms, that the intestate admitted to him he had sold this tract to complainants, or that it was left out of the bond by mis- take. No testimony could be more unsatis- factory than his, taking the whole of it to- gether. Fenton says he "thinks" Hunter told him he drew the bond himself and that there was a mistake in it, but does not recol- lect what the mistake was. He says It was his understanding a bond was given by Hunt- er to complainants, and notes given for the payment of the money — does not say he ever saw the bond or notes— says the complainants never took possession of the Gillespie tract— on the tract south-east of the creek; they cut some timber off, put a blacksmith shop upon, and pastured the field on it while they and Hunter were in partnership; there was some money paid on the general contract, but don't know how much. Paine states that Hunter told him com- plainants were to have half of this tract, when he. Hunter, sold or left, according to the contract as made with complainants, in the sale of the mill, which was in 1850. He had this conversation in the winter after the sale of the mill property; that complainants have cut and hauled saw logs, and Hunter and complainants built a blacksmith shop on this land; and "thinks" complainants re- paired the fences some, but is not certain, and they used it as a pasture in connection with Hunter. Hunter also said he had sold the Gillespie tract to them, and that David Hunter was to make a deed to it. Don't know that complainants ever exercised any acts of ownership over this tract. Hunter said there was a mistake in the bond, and if his health would permit, he was coming to town to get it fixed; "thinks" the mistake ap- plied to the tract south-east of Shoal creek, on which there was an old field. Does not know of complainants exercising any acts of ownership over this "old field tract," since they and Hunter dissolved partnership; don't know the numbers of the land. The testimony of Clouse, and of L. G. Bil- yeu, does not differ, substantially, from that of other witnesses. Smith says. Hunter told him, that all the lands the complainants were to get, were in- cluded in the bonds; that half of the timber on the tract lying on the south-east side of Shoal creek, on which there was an old field, was included in the contract with complain- ants, and that they had got their share off, and that he had not sold the land to them. Wesley Bilyeu had stated to witness that he had an interest in this tract, and' Hunter then told him as above stated. Hunter had pos- session of this tract when witness bought it, and had corn standing in the field on it. George Smith stated that Hunter told him that complainants had no right to the tract lying south-east of Shoal creek, but as soon as he could buy a piece from John Clouse, he would make it right, but they were to have it when he sold or left; understood this same tract was included in the original contract. This is the substance of the evidence to prove the mistake in the bond, and part per- formance, which, it is very clear, is wholly insufficient for either purpose. It would be relaxing too much those salutary rules of ev- idence, which require a contract to be clearly proved, before a specific performance of it will be decreed. It is discretionary with the court, in all such cases, to decree or not a specific performance of a contract, and that discretion will not be exercised except in a very clear case. This contract was made in March, 1850, and the intestate remained in the state until 1851, during a part of which time he was in partnership with complainants, in using the mill property. They paid their notes as they became due, and not a word of complaint is heard of any mistake. They were implead- ed, by the administrator of the intestate, in a petition in chancery, for the purpose of ob- taining an order of court, authorizing him to make a deed to them in performance of the covenant; in which suit, it was fully compe- tent for the complainants to have litigated all these matters, but which they neglected to do. Though these proceedings are not pleaded, or set up in bar by the defendants, they might have been, successfully, and the case thus disposed of, rendering unnecessary the examination we have been compelled to give it on the issues made. We are satisfied nothing has been shown to establish a mistake, its nature, or extent, so clearly, as to leave no doubt on the mind of the actual existence of the alleged mistake. The decree, as to the old field tract, being a part of the west half of the north-west quar- ter of section twenty-three, lying north-east of Shoal creek, and as to the Gillespie tract, is reversed, and the decree so modified as to exempt those tracts from its opei'ation. The injunction will be dissolved, and the adminis- trator, the appellant here, will be allowed to proceed with his action at law. Decree modified. EQUITABLE BIGHTS. 205 SWIMM T. BUSH. (23 Mich. 99.) Supreme Court of Michigan. April Term, 1871. Appeal from circuit court, Shiawassee county; In chancery. The facts appear in the opinion. Gould & Lyon, for complainant. L. Walls- er and A. Russell, for defendant. CAMPBELL, C. J. The bill is filed to en- force the specific performance of a written contract for the sale of a farm in the city of Owosso. The defense rests on the ground that the contract was obtained fraudulent- ly and is unconscionable. The facts, as we deduce them from the testimony, were La substance these: Bush is a clergyman, residing in Eastern Pennsyl- vania. He had owned property for many years, and it was in the hands of a tenant. Not far from the end of May, 1868, four persons had written to Bush to negotiate for the purchase of the farm, but nothing had been done to close with them. Early in June, Swimm ascertained that various per- sons were desirous of buying it, and im- mediately left home and went down to see Bush, and obtained the contract sued upon, June 8th. He then returned home and got upon the land, although the tenant also re- mained there and objected. The conti-act was in consideration of three thousand dol- lars, viz.: four hundred dollars paid down, and one hundred dollars to be paid on the exchange of deed, and securities for the bal- ance, whch was to be in thirty days. Noth- ing was said in it about possession. A few days after the contract was made. Bush re- ceived letters satisfying him that the prop- erty was worth more than he had sold it for, and he wrote.two consecutive letters to Swimm desiring to be released, to which Swimm paid no attention beyond hastening to take possession. In July, Bush visited Owosso, and this suit was commenced on the 13th, not very far from the time of his ar- rival. "We leave out of consideration many minor facts which 'do not affect the rights of the parties. The defense rests uijon the claim that Swimm, being in possession of better knowl- edge of the value and surroundings of the property than Bush, took means to secure the confidence of the latter, and by his mis- representations and urgency induced him to make the sale at an under value, and there- by defrauded him. The facts are within a narrow compass, and we are not compelled to pass upon any very complicated questions, either of law or fact. It is not claimed that a sale will be dis- regarded merely because of an undervalua- tion. And it is not claimed that the ordinary banter and abating of prices between buyer and seller, when acting on an equal footing, can usually have much weight in such a con- troversy. The decision must rest upon the presence or absence of such a state of facts as, under all the circumstances, renders the bargain unconscionable. We think such facts existed here. There is a good deal of difference of opinion among the witnesses as to the value of the property. We have no doubt it was worth at least a thousand dollars more than Swimm paid for it, and we think it clear he thought so. His hasty and clandestine jommey to an- ticipate the other purchasers, and his haste to seize a foothold on the land, go to corroborate strongly the other proofs of value. It is evi- dent he expected to make a very advantage- ous bargain. It is also evident that Bush had no adequate knowledge of the present value of the farm, or of its prospective value. A visit to Owosso, or ever a full knowledge of the value of the land three years before, would give no means of testing its present value, and it is quite clear he did not know it. Swimm had, then, all the advantage of superior knowledge, and knew that he had it. His statements and his conduct must all be view- ed from this standpoint. And a willful mis- statement of facts or opinions of value, made under such circumstances, and made with a design to deceive, and actually deceiving Bush to his prejudice, would be fraud in law. Pickard v. McCormick, 11 Mich. 68. We think the course taken by Swimm was such that it was eminently calculated to de- ceive Bush, and that the latter cannot be re- garded as at fault in believing him. He ob- tained from a reputable member of the bar, who wrote it in good faith, a letter of intro- duction, stating that the writer, at the reques-t of Bush's sister, had been looking for a pur- chaser of the farm, and that Swimm would, as he thought, buy it and pay its value, and he recommended him as a man of wealth and reliability. Swimm also took a letter from Mr. Bloss, a brother-in-law of Bush. Upon presenting these letters of introduc- tion, Swimm inquired the price of the land, and was answered, four thousand dollars. He said if that was the price there was no use talking; that he hoped to buy it for twenty- six or twenty-eight hundred dollars. Bush then showed him the four letters of inquiry, and asked him about the writers. One of them he said he did not know ; which appears to be true. One he gave Bush to understand was not responsible. The other two letters, he said, were written in his own behalf. The statements concerning these three were not correct. Bush went on to question him about the farm and about Owosso. He thereupon gave Bush to understand that Owosso was- not flourishing, but was being Injuriously af- fected by Corunna; that property was de- clining, and that the farm itself was in a very bad condition, as he described it; which was not a very great exaggeration. He, when asked concerning the value of the land, said it was not worth four thousand nor three thou- sand dollars, and that he had not expected to 20S EQUITABLE EIGHTS. pay more than twenty-eight hundred dollars, but that he would give three thousand, as his wife was born on it and had an affection for it, and an offer of three thousand had been made for it by one of the letters writ- ten by a Mr. Martin, the person he said he did not know. Bush desired to take the mat- ter of sale into consideration, and said he would taUi it over with his wife (who was then in New Jersey) on her return. Swimm urged him to go at once with him and he would bear the expense. They went at once and saw Mrs. Bush, . and the bargain was concluded the same day. In all of this transaction it is very plain, from a review of the evidence, that Bush was induced by the letters he brought to regard Swimm as a reliable and veracious man, who was acquainted with the facts necessary to form a judgment upon, and would not de- ceive him. It is just as clear that Swimm knew this, and gave him the answers and made the representations in order to induce him to believe he was getting the outside value of the land, and that it would not be safe to lose a good offer. The representations were of the greatest materiality, and referred to the matters on which any sensible man would found his conclusions. The sale was the result of nothing but the urgency and de- ceit of Swimm, and such statements coming from a man of undoubted character (as Swimm was naturally assumed to be under the circumstances), might have deceived a man of more experience than Bush. This rea- son he gave for being willing to pay a larger price than his real estimate of the value, was one which appealed very naturally to the bet- ter feelings, and would have considerable weight In confirming the veracity of the pur- chaser. This reason was without any founda- tion, as Mrs. Swimm was not born there. Except as to the condition of the land— which was mainly important on the supposi- tion that the dead state of Owosso rendered the land valueless except for farming — the whole tenor of the representations was con- trary to fact. _ Owosso was improving rapidly, and not stagnant or retrograding. The land was in demand and was worth more than four thou- ;sand dollars, and the purchaser knew this, and went down to Pennsylvania on purpose to pre- vent other offers from reaching Bush, and used such arguments and made such state- ments as he found were best adapted to force him into hasty action, for fear of the danger of delay. He induced Bush to abstain from that deliberation which would have inevi- tably defeated the scheme. And where a par- ty is induced to abstain from informing him- self, even material concealment is often suffi- cient to create fraud, without active misrep- resentation. It does not avail in such a case that sharp business men might not have been so readily deceived. Possibly they might not. But the law does not seek to encourage the practice of cuiming arts upon those who are not well qualified to resist them. The character and business capacity of the person operated on form a very important element in fraud. If the effect is produced, and Is intended to be produced, that is enough. There can be no splitting of hairs to sustain unconscionable action. Every one is expected to use reason- able diligence in resisting deceit, but each case must depend on its own facts, and this case shows no fault in Bush. He was obliged to depend on information, and he sought it from what he had reason to believe was a reliable source. No man of sense would have done as he did without being deceived. We do not feel called upon to lay down any rule as to how far smartness may go without crossing the legal boundaries of fraud. Nei- ther are we disposed to consider the some- what unprofitable subject of the impeachment of witnesses. The circumstances which are most important are not left at all in doubt, and there can be no reason for refusing relief in this cause to the defendant, except upon the theory that he was in fault in allowing himself to be overreached in the bargain. We do not think he contributed enough to his own loss to be subject tb this criticism. The decree below mus+ be reversed, and the bill dismissed, with costs of both courts. If, after the taxation of costs, any balance of the four hundred dollars advanced by Swimm re- mains in excess of the taxation, defendant must pay over such balance within thirty days after demand, or may deposit it with the clerk of this court for the benefit of complain- ant. The other justices concurred. EQUITABLE KIGHTS. 207 STIMSON T. HELPS et al. (10 Pao. Rep. 290, 9 Colo. 33.) Supr^-uie Court of Colorado. Feb. 26, 1886. Appeal from county com-t, Boulder county. The complaint sets out that on the sixth day of October, 1881, William Stimson leased to the defendants in en-or the S. W. ^4 of sec- tion 21. in township 1, range 70 west, in said county, for the period of fom- years and six months, for the pm'pose 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 botmding said land, and their exact locality, went then and there with plaintifEs, and showed and pointed out to them what he said was the leased land, and the boimdary 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 performcJ and improvements made on the land pointed out by defendant to plaintifCs as the leased land, and that plaintifEs, 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 plaintifCs 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 gi'ound 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 ti-ue 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 oftier contracting party, where the representations were false, and the other party, relying upon them, has been misled to his injm-y. 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; KeiT, 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 \vhich this appeal is taken. The judgment of the com-t 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- 208 EQUITABLE KIGHTS. 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. 361. 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. 487. 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 matei-ial 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. 486. 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, aud not merely a matter of opinion, open to the inquiry and examination of both parties. Buckner v. Street, 15 Fed. Rep. 865. 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. 482. 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, 756, 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. Xocum, 11 Xeb. 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, 16 N. W. Rep. 552. Evidence of fraudulent representations must be clear and convincing. AVickham y. More- house, 16 Fed. Rep. 324. Where a man sells a business, and the eon- 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. Saurmau, 110 Pa. St. 8, 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. EQUITABLE BIGHTS. 203 MITCHELL et al. v. McDOUGALL. (62 111. 49S.) Supreme Court of Illinois. Jan. Term, 1872. Appeal from circuit court, McLean county; Tliomas F. Tipton, Judge. Bill in equity to rescind a conveyance of lands on tlie ground of misrepresentation and fraud. R. B. Williams, for appellants. Benjamin & Weldon, for appellee. BREESE, J. In Lockridge v. Foster, 4 Scam. 509, which was a bill in chancery pray- ing, in the alternatiTe, for the rescission of an executed contract for the sale of land, on the ground of fraudulent representations by the vendor, this court said, on the principles of equity and justice, a contract, to be ob- ligatory, must be justly and fairly made. The contracting parties are bound to deal honestly, and act in good faith with each oth- er. There should be a reciprocity of candor and fairness. Both should have equal knowl- edge concerning the subject-matter of the contract; especially ought all the facts and circumstances which are likely to influence their action to be made known. If they have not mutually this knowledge, nor the same means of obtaining it, it is then a duty in,- cumbent on the one having the superior in- formation to disclose it to the other. In mak- ing the disclosure, he is bound to act in good faith and with a strict regard to truth. If Le makes false representations respecting material facts, or intentionally conceals or suppresses them, he acts fraudulently, and renders himself responsible for the conse- quences which may result. Ifraud may con- sist as well in a suppressio veri as in a sug- gestio falsi, for, in either case, it may operate to the injury of the innocent party. A false representation by the vendor, which in- fluences the conduct of the other party, and Induces him to make the purchase, will vitiate and avoid the contract. And in making the representation. It is immaterial whether he knows it to be false or not, fqr the conse- quences are the same to the vendee. If he re- lies on the truth of the declaration, he Is equally imposed on and injured, and ought to have redress from the one who has been the cause of the injury. So a suppression or concealment by the vendor of facts, which, if known to the vendee, would have the ef- fect to prevent him from making the pur- chase, will, in equity, equally vitiate the con- tract. ■ A court of equity will not enforce and carry into effect contracts thus unfairly and fraudulently made; and when the injured party invokes its aid in proper time, and the circumstances of the case will permit it to be done, the contract will be rescinded and the parties restored to their original rights. The court refers to 1 Story, Bq. Jur. §§ 191- 197, 204-207, and 2 Kent, Comm. 482, 490. Sections 191-197, inclusive, treat of false suggestions, and fully support the doctrine of HDTCH.EQ.JUE. — 14 the case cited, on that point. Sections 204 to 207, inclusive, treat of the doctrine of suppressio veri, a doctrine which, though true in morals, is not the doctrine recognized by courts of equity, except under certain cir- cumstances. The extreme doctrine of some courts is, that undue concealment of a fact resting in the knowledge of one contracting party, which, if known to the other, would have prevented the contract, will vitiate the contract. The true definition is found in section 207, supra, where it is said undue concealment which amounts to a fraud in the sense of a court of equity, and for which it will grant relief, is the non-disclosure of those facts and circumstances which one party is under some legal or equitable obligation to communicate to the other, and which the latter has a right, not merely in foro conscientise, but juris et de jure, to know. Under such circumstances, the concealment ' of an important fact would be improper and unjust; it would be an undue concealment on account of the fiduciary relation existing; but where two parties, in the .absence of any such relation, are treating for an estate, and the purchaser knows, from surface indica- tions, or otherwise, by actual boring, there is a valuable mine upon the land, the pur- chaser is not bound to disclose that fact to the owner, for the means of mformation on the subject were as accessible to the owner of the land as to the purchaser. The rale stated by Chancellor Kent, at page 482, referred to in the opinion in 4 Scam., su- pra, is that each party is bound to communi- cate to the other his knowledge of the ma- terial facts, provided he knows the other to be Ignorant of them, and they be not open and naked, or equally within the reach of his observation. This, we admit, is a rule of moral obligation, but not enforced in the courts. It is by them qualified, as we have stated above, that the party in possession of the facts must be un- der some special obligation, by confidence re- posed, or otherwise, to communicate them truly and fairly, and this is the doctrine of this court in the cases of Fish v. Cleland, 33 111. 243, and Cleland v. Fish, 43 111. 282, re- ferred to by appellee's counsel. It is qualified by Beach v. Sheldon, 14 Barb. 72; Laidlaw v. Organ, 2 Whart. 178; Knitzing V. McElrath, 5 Pa. St. 467. In Fox V. Mackeath, 2 Brown, Ch. 400, Thurlow, Lord Chancellor, in delivering the opinion in the case where undue concealment of an important fact was charged, said: "The doubt I have is, whether this case af- fords facts from which principles arise to set aside this transaction, which will not, by nec- essary application, draw other cases into haz- ard. And, without insisting upon technical morality, I don't agree with those who say,, that where an advantage lias been taken in a contract, which a man of delicacy would not have taken, it must be set aside. Sup 210 EQUITABLE BIGHTS. pose, for instance, that A, knowing there to be a mine in the estate of B, of which he knew B was ignorant, should enter into a contract to purchase the estate of B for the price of the estate without considering the mine, could the court set it aside? Why not, since B was not apprized of the mine and A was? Because B, as the buyer, was not obliged, from the na- ture of the contract, to make the discovery. It is, therefore, essentially necessary, in order to set aside the transaction, not only that a great advantage should be taken, but it must arise from some obligation in the party to make the discovery." Not, as Justice Story says (1 Story, Bq. Jur. § 148), from an obli- gation in point of morals only, but of legal duty. In such a case he says, a court of equity will not correct the contract merely because a man of nice morals and honor would not have entered into it. Lord Eldon, in Turner v. Har- vey, Jac. 178, approved the doctrine of Lord Thurlow and the illustration of the mine, and so does Justice Story in 1 Eq. Jur. § 207. But we are dealing in this case with the doctrine of suggestio falsi and not of suppres- sio veri, as the charge in the bill is, false rep- resentations made by appellee of the value of the land and lots in Missouri. There Is much testimony in the record, from which we derive the knowledge that appellee represented to appellant, who had never been in Missouri (appellee having resided there be- fore coming to Bloomipgton), that the land was good land, and was the land occupied by one Judge Smith, before the Rebellion, and im- proved by him. This land was the south part of section eighteen and the north part of sec- tion twenty-four, in all one hundred and sixty acres, and was worth, probably, fifteen dollars per acre. The land conveyed was in section fifteen, stony, poorly timbered, and compara- tively worthless. The house in Montevallo, instead of being a desirable residence, and worth one thousand dollars, as represented by appellee, proved to be a mere shell, one story high, occupied by hogs and goats, bring- ing not eight dollars a month rent "right along," as represented, but unfit for human abode, and worth, with the "lot and a half," not over two hundred and fifty dollars, and, as we should judge, not at all saleable. So soon as appellant, by personal inspection on a visit to the locality, discovered the facts, he came to the conclusion appellee had imposed upon him, and at once, on his return to Bloomington, demanded a rescission of the contract and a reconveyance of the Blooming- ton property, and tendering deeds for the Mis- souri property, together with appellee's note for three hundred dollars, part of the pur- chase money. This being refused by appellee, this bill was filed by appellants, and pending the bill the house was consumed by fire, on which, however, appellee had effected an in- surance of three thousand dollars. The court dismissed the bill and complain- ants appealed. There is no question of law made except the one we have discussed, and there is some conflict in the testimony, but a careful exami- nation of it, as we find it in the record, satis- fies us appellant has not received from appel- lee what he contracted for, and which con- tract he made wholly on the representations of appellee, which have proved to be untrue. It is said by appellee, there was a mistake in conveying the land as in section fifteen — that he supposed the "Smith farm" was on that section, but is willing and offers to con- vey the land in fact occupied by Smith In sec- tions eighteen and twenty-four, and he in- sists, that a mistake being made is no ground for the rescission of the contract, as the court can and will correct the mistake. But this consideration should not prevail in this case, because appellee represented the land he was selling to be worth twenty dollars per acre, which he had purchased but a short time pre- viously for four dollars per acre, and he as- serted to appellant that such land was selling for twenty dollars an acre in that neighbor- hood. This he based upon a letter said to have been received by him from one Selsor, a land agent in that county. Selsor in his depo- sition says, the lands he referred to in that letter were among the best improved farms in that portion of Cedar and Vernon counties; he says he had no idea of fixing the price of raw lands by these figures, and did not sup- pose any one would be so foolish as to at- tempt it. That letter, which appellee says was burnt up in the building when it was destroyed, was to this effect: "We have sold within the last two weeks ten thousand dollars worth of land, from fifteen to twenty-five dollars an acre." This was so construed by appellee to appellant as to induce the latter to believe they were lands in the neighborhood of those he was about to purchase. The town property was of small value. Now, under such circumstances, it would not be Just to allow appellee to correct the mis- take in the land and claim the contract as made, but it would be just, as a mistake was made by appellee in the deed, to permit the injured party to avail of it, and, through that, repudiate the entire contract. In a case where false representations have been made, it is the province of a court of equity, if applied to for that purpose, to rescind the contract, put- ting the parties in statu quo. It is claimed by appellee that the Blooming- ton property was taken at a very high valua- tion, and that he ought to be permitted to show that appellant has received from him its full value. This we do not consider as the question be- fore us. The question is, did appellant get what he bargained for? That he did not we think the evidence satisfactorily shows. Appellant's right to the insurance money will hardly be questioned, as the building up- on the lot when sold, is now represented by that money, and after deducting the premium paid by appellee and the cost of the addition EQUITABLE BIGHTS. 211 to the building which he erectecl, and was covered by the insurance, we are of opinion the company should pay the balance to appel- lant. On the point that Mrs. Mitchell, appellant's wife, was improperly rejected as a witness, we think the court ruled correctly; the case was in no correct legal sense her own case. The views here expressed reverse the de- cree of the circuit court dismissing the bill. The cause is remanded for further proceedings consistent with this opinion. Decree reversed. SCOTT, J., did not hear the argument In this case, and ga^e no opinion. 212 EQUITABLE RIGHTS. ALLORB V. JEWELL. (94 U. S. 506.) Supreme Oonrt of the United States. Oct., 1876. Appeal from the circuit court of the United States for the Eastern district of Michigan. The facts are stated in the opinion of the court Alfied Russell, for appellant. A. B. May- nard, contra. Mr. Justice FIELD deli\ ered the opinion of the court. This is a suit brought by the heir at law of Marie Genevieve Thibault, late of Detroit, Mich., to cancel a conveyance of land alleged to have been obtained from her a few weeks before her death, when, from her condition, she was incapable of understanding the na- ture and effect of the transaction. The deceased died at Detroit on the 4th of February, 1S64, intestate, leaving the com- plainant her sole surviving heir at law. For many years previous to her death, and until the execution of the conveyance to the de- fendant, she was seised in fee of the land in controversy, situated in that city, which she occupied as a homestead. In November, 1863, the defendant obtained from her a con- veyance of this property. A copy of the con- veyance is set forth in the bill. It contains covenants of seisin and warranty by the gran-' tor, and immediately following them an agreement by the defendant to pay her $250 upon the delivery of the instrument; an an- nuity of $500; all her physician's bills during her life; the taxes on the property for that year, and all subsequent taxes during her life; also, that she should have the use and occupation of the house until the spring of 1864, or that he would pay the rent of such other house as she might occupy until then. The property was then worth, according to the testimony In the case, between $6,000 and $8,000. The deceased was at that time between sixty and seventy years of age, and was confined to her house by sickness, from which she never recovered. She lived alone, in a state of great degradation, and was with- out regular attendance in her sickness. There were no persons present with her at the exe- cution of the conveyance, except the defend- ant, his agent, and his attorney. The $250 stipulated were paid, but no other payment was ever made to her; she died a few weeks afterwards. As grounds for cancelling this conveyance, the complainant alleges that the deceased, during the last few years of her life, was afflicted with lunacy or chronic insanity, and was so infirm as to be incapable of transact- ing any business of Importance; that her last sickness aggravated her insanity, greatly weakened her mental faculties, and still more disqualified her for business; that the de- fendant and his agent knew of her infirmity, and that there was no reasonable prospect of her recovery from her sickness, or of her long surviving, when the conveyance was taken; that she did not understand the nature of the instrument; and that it was obtained for an Insignificant consideration, and in a clandes- tine manner, without her having any inde- pendent advice. These allegations the defendant controverts, and avers that the conveyance was taken upon a proposition of the deceased; that at the date of its execution she was in the full possession of her mental faculties, appreci- ated the value of the property, and was capa- ble of contracting with reference to it, and of selling or otherwise dealing with it; that since her death he has occupied the premises, and made permanent improvements to the value of $7,000; and that the complainant never gave him notice of any claim to the property until the commencement of this suit. The court below dismissed the bill, where- upon the complainant appealed here. The question presented for determination is, whether the deceased, at the time she execut- ed the conveyance in question, possessed suf- ficient intelligence to understand fully the na- ture and effect of the transaction; and, if so, whether the conveyance was executed under such circumstances as that it ought to be up- held, or as would justify the interference of equity for its cancellation. Numerous witnesses were examined in the case, and a large amount of testimony was taken. This testimony has been carefully an- alyzed by the defendant's counsel; and it must be admitted that the facts detailed by any one witness with reference to the condi- tion of the deceased previous to her last ill- ness, considered separately and apart from the statements of the others, do not show in- capacity to transact business on her part, nor establish insanity, either continued or tempo- rary. And yet, when all the facts stated by the different witnesses are taken together, one is led irresistibly by their combined effect to the conclusion, that, if the deceased was not afflicted with insanity for some years be- fore her death, her mind wandered so near the line which divides sanity from Insanity as to render any important business transac- tion with her of doubtful propriety, and to justify a careful scrutiny into its fairness. Thus, some of the witnesses speak of the deceased as having low and filthy habits; of her being so imperfectly clad as at times to expose immodestly portions of her person; of her eating with her fingers, and having vermin on her body. Some of them testify to her believing in dreams, and her imagining she could see ghosts and spirits around her room, and her claiming to talk with them; to her being incoherent in her conversation, passing suddenly and without cause from one subject to another; to her using vulgar and profane language; to her making immodest gestures; to her talking strangely, and mak- ing singular motions and gestures Id her neighbors' houses and in the streets. Other EQUITABLE BIGHTS. 213 witnesses testify to further peculiarities of life, manner, and conduct; but none of the p3culiarities mentioned, considered singly, show a want of capacity to transact business. Instances will readily occur to every one where some of them have been exhibited by persons possessing good judgment in the management and disposition of property. But when all the peculiarities mentioned, of life, conduct, and language, are found in the same person, they create a strong impression that his mind is not entirely sound; and all transactions relating to his property will be narrowly scanned by a court of equity, when- ever brought under its cognizance. The condition of the deceased was not im- proved during her last sickness. The testi- mony of her attending physician leads to the conclusion that her mental infirmities were aggravated by it. He states that he had stud- ied her disease, and for many years had con- sidered her partially insane, and that in his opinion she was not competent in November, 1863, during her last sickness, to understand a document like the instrument executed. The physician also testifies that during this month he informed one Dolsen, who had in- quired of the condition and health of the de- ceased, and had stated that efforts had been made to purchase her property, that in his opinion she could not survive her sickness, and that she was not in a condition to make any sale of the property "in a right way." This Dolsen had at one time owned and managed a tannery adjoining the home of the deceased, which he sold to the defendant. After the sale, he carried on the business as the defendant's agent. Through him the trans- action for the purchase of the property was conducted. The deceased understood English imperfectly, and Dolsen undertook to explain to her, in French, the contents of the paper she executed. Some attempt is made to show that he acted as her agent; but this is evi- dently an afterthought. He was in the em- ployment of the defendant, had charge of his business, and had often talked with him about securing the property; and in his in- terest he acted throughout. If the deceased was not in a condition to dispose of the prop- erty, she was not in a condition to appoint an agent for that purpose. The defendant himself states that he had seen the deceased for years, and knew that she was eccentric, queer, and penurious. It is hardly credible that, during those years, carrying on business within a few yards of her house, he had not heard that her mind was unsettled; or, at least, had not inferred that such was the fact, from what he saw of her conduct. Be that as it may, Dolsen's knowledge was his knowledge; and, when he covenanted to pay the annuity, some inquiry must have been had as to the probable dura- tion of the payments. Such covenants are not often made without inquiries of that na- ture; and to Dolsen he must have looked for information, for he states that he conversed with no one else about the purchase. With him and with his attorney he went to the house of tlie deceased, and there witnessed the miserable condition in which she lived, and he states that he wondered how anybody could live in such a place, and that he told Dolsen to get her a bed and some clothing. Dolsen had previously informed him that she would not sell the property; yet he took a conveyance from her at a consideration which, under the circumstances, with a cer- tainty almost of her speedy decease, was an insignificant one compared with the value of the property. In view of the circumstances stated, we are not satisfied that the deceased was, at the time she executed the conveyance, capable of comprehending fully the nature and effect of the transaction. She was in a state of phys- ical prostration; and from that cause, and her previous infirmities, aggravated by her sickness, her intellect was greatly enfeebled; and, if not disqualified, she was unfitted to attend to business of such importance as the disposition of her entire property, and the securing of an annuity for life. Certain it is, that, in negotiating for the disposition of the property, she stood, in her sickness and in- firmities, on no terms of equality with the de- fendant, who, with his attorney and agent, met her alone in her hovel to obtain the con- veyance. It is not necessary, in order to secure the aid of equity, to prove that the deceased was at the time insane, or in such a state of mental imbecility as to render her entirely in- capable of executing a valid deed, :^t is suf-' ficient to show that, from her sickness and in- firmities, she was at the time in a condition of great mental weakness, and that there was gross inadequacy of consideration for the con- veyance. From these circumstances, imposi- tion or undue influence will be inferred. In the case of Harding v. Wheaton, 2 Mason, 378, Fed. Gas. No. 6,051, a conveyance executed by one to his son-in-law, for a nominal consid- eration, and upon a verbal arrangement that it should be considered as a trust for the main- tenance of the grantor, and after his death for the benefit of his heirs, was, after his death, set aside, except as security for actual advances and charges, upon application of his heirs, on the ground that it was obtained from him when his mind was enfeebled by age and other causes. "Extreme weakness," said Mr. Justice Story, in deciding the case, "will raise an almost necessary presumption of imposi- tion, even when it stops short of legal inca- pacity; and though a contract, in the ordinary course of things, reasonably made with such a person, might be admitted to stand, yet if it should appear to be of such a nature as that such a person could not be capable of measur- ing its extent or importance, its reasonable- ness or its value, fully and fairly, it cannot be that the law is so much at variance with com- mon sense as to uphold it." The case subse- quently came before this court; and, in de- 214 EQUITABLE EIGHTS. ciding it, Mr. Chief Justice Marshall, speak- ing of this, and, it would seem, of other deeds executed by the deceased, said: "If these deeds were obtained by the exercise of undue influence over a man whose mind had ceased to be the safe guide of his actions, it is against conscience for him who has obtained them to derive any advantage from them. It is the peculiar province of a court of conscience to set them aside. That a court of equity will interpose in such a case is among its best- settled principles." Harding v. Handy, 11 Wheat. 125. (The same doctrine is announced in adjudged cases, almost without number; and it may be stated as settled law, that whenever there is great weakness of mind in a person executing a conveyance of land, arising from age, sick- ness, or any other cause, thougn not amount- ing to absolute disqualification, and the con- sideration given for the property is grossly in- adequate, a court of equity will, upon proper and seasonable application of the injured par- ty, or his representatives or heirs, interfere ^and set the conveyance aside. And the pres- ent case comes directly within this principle. In the recent case of Kempson v. Ashbee, 10 Ch. Cas. 15, decided in the court of appeal in chancery in England, two bonds executed by a young woman, living at the time with her mother and step-father,— one, at the age of ttventy-one, as surety for her step-father's debt, and the other, at the age of twenty-nine, to secure the amount of a judgment recovered on the first bond, — were set aside as against her, on the ground that she had acted in the transaction without independent advice; one of the justices observing that the court had endeavored to prevent persons subject to in- fluence from being induced to enter into trans- actions without advice of that kind. The prin- ciple upon which the court acts in suh cases, of protecting the weak and dependent, may al- ways be invoked on behalf of persons in the situation of the deceased spinster in this case, of doubtful sanity, living entirely by herself, without friends to take care of her, and con- fined to her house by sickness. As well on this ground as on the ground of weakness of mind and gross inadequacy of consideration, we think the case a proper one for the inter- ference of equity, and that a cancellation of the deed should be decreed. The objection of the lapse of time— six years —before bringing the suit cannot avail the de- fendant. If during this time, from the death of witnesses or other causes, a full presenta- tion of the facts of the case had become im- possible, there might be force in the objection. But as there has been no change in this re- spect to the injury of the defendant, it does not lie in his mouth, after having, in the man- ner stated, obtained the property of the de- ceased, to complain that her heir did not soon- er bring suit against him to compel its sur- render. There is no statutory bar in the case. The improvements made have not cost more than the amount which a reasonable rent of the property would have produced, and the complainant, as we understand, does not ob- ject to allow the defendant credit for them. And as to the small amoimt paid on the ex- ecution of the conveyance, it is sufficient to observe, that the complainant received from the administrator of the deceased's estate only $113.42; and there is no evidence that he ever knew that this sum constituted any portion of the money obtained from the defendant. A decree must, therefore, be entered for a can- cellation of the deed of the deceased and a surrender of the property to the complainant, but without any accounting for back rents, the improvements being taken as an equiva- lent for them. Decree reversed, and cause remanded with directions to enter a decree as thus stated. Mr. Chief Justice WAITE and Mr. Justice STRONG, concur. Mr. Justice BRADLEY (dissenting). I can- not concur in the judgment given in this case. Were there no other reason for my dissent, it would be enough that the complainant has been guilty of Inexcusable laches. He knew every thing of which he now complains, in February, 1864, when the grantor of the de- fendant died, and when his rights as her heir vested; and yet he waited until six years and nine months thereafter before he brought this suit, and before he made any complaint of the sale she had made. Meanwhile, he accepted the money the defendant had paid on account of the purchase, and he stood silently by, as- serting no claim, while the defendant was making valuable improvements upon the lot, at a cost of $6,000 or $7,000, a sum about equal to the value of the property at the time of the purchase. To permit him now to as- sert that the sale was invalid, because the vendor was of weak mind, is to allow him to reap a profit from his own unconscionable si- lence and delay. I cannot think a court of equity should lend itself to such a wrong. EQUITABLE EIGHTS. 215 TATE v. WILLIAMSON. (2 Ch. App. 55.) Court of Appeals in Chancery. Dee. 17, 1866. This was an appeal by the defendant, Robert AVilliamson, 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 malie a full disclosure to him of all material facts witliin 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 asidei, upon tlie 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 infiuence which nat- urally grows out of that confidence is pos- sessed by the other, and this confidence is abused, or the infiuence 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 can 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 ofBce 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 imcle 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- 216 EQUITABLE RIGHTS. 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 imdertake. In the answer to this letter, dated the 30th of July, 1859, which is set 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 2Gth 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 Sir. 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 intesta,te on the 26th of August, 1859, the letter, which Is set out in paragraph 58 of the bill, in ^•hich 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. HoUoway expects to have paid immediately; and adds, "I will meet yon in the course of a few days in Loudon, 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 can 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 it 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 EQUITABLE RIGHTS. 217 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 iWhitfleld 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. Cope 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 'ntestate, 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 affoifi 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 tliat 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 pricu 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. 218 EQUITABLE EIGHTS. COWEE V. CORNELL. (75 N. Y. 91.) Court of Appeals of New York. Nov. 12, 1878. Appeal from order of the general term of tlie supreme court in the Third judicial de- partment, reversing a judgment entered upon the report of a referee. PlaintifC made a claim against the estate of Latham Cornell, of v?hose will defendants were the executors, for interest upon a prom- issory note executed by the deceased. This claim was rejected, and was referred by stip- ulation. The facts, as stated by the referee, are In substance as follows: Latham Cornell, the deceased, was the grandfather of Latham C. Strong. He was possessed of large property, consisting of real estate and of personal property invested in stocks, bonds and other securities. He died in 1876 at the age of ninety-five. For four years prior to his death he was partially blind. From July, 1871, until the time of his death, his grandson at his request at- tended to his affairs, writing his letters, look- ing after his banking business and Ms rents, making out his bills, cutting off his coupons, reading to him, and on occasions going away from home to transact other business. In July, 1871, Cornell gave to Strong a deed of two adjoining houses in the city of Troy, valued at about $32,000, in one of which houses the grandfather lived until the time of his death. The gi'andson moved into the adjoining house in the spring of 1872, and resided there until after his grandfather's death. During the time that the two thus lived in adjoining residences, they were in daily conference upon business matters of the old gentleman, in the house occupied by the grandson. The grandson with his family consisting of five persons, during all this time lived at the sole expense of the grandfather, and claims to have received, in addition to the note in suit, as gifts from his grand- father, $30,000 in government bonds and the assignment of a mortgage for about $1,700. At what particular time it is claimed these gifts were made is not in evidence. Mr. Cor- nell made his will in 1871, providing a legacy of $10,000 for Mr. Strong. In the fall of 1872, Mr. Strong expressed a desire to go in- to business for himself and to be independent of his grandfather, and actually was in ne- gotiation with different persons in Troy and New York with a view of forming business associations. Mr. Cornell became uneasy at the prospect of losing the services of his grandson and caused him to be written for to come home. Mr. Strong came back to Troy, and his grandfather said to him then, as he had previously said, that he wanted him to give up his ideas of leaving and to devote his whole time to the business of his grandfather. Mr. Cornell further said that he had no one else to loolc after his business, and frequently said that there was money enough for all of them. Mr. Strong imme- diately abandoned his business projects and devoted his whole time and attention to his grandfather's business, until the death of the latter. After this Mr. Cornell sent for his. legal advisers and proposed to alter his will so as to make provision to compensate his grandson for having devoted himself to his business. What provision was intended is not disclosed by the evidence. The lawyers advised that his will be left unaltered, and that he take some other way of compen- sating his grandson. Mr. Cornell gave to Mr. Strong the note in question. It is as follows: "$20,000. Troy, April 1, 1873. Five years after date I promise to pay Latham L. C. Strong, or order, $20,000, for value received, with interest yearly. L. Cornell." The note was on a printed form, the name of the payee being printed "Latham Cornell." The note was filled up in the handwriting of the maker, but in striking out with his pen the name of the payee he left the word "Latham" and afterwards interlined the full name, "L. C. Strong." Annexed to the note was a stub with some printed forms, on which Mr. Cornell wrote: "Troy, April 1st, 1873, L. C. Strong, $20,000 at five years, to make the amount the same as Chas. W. Cornell." The stub was on the note when it was delivered to the payee, but was torn off by him before it was transferred to the plain- tiff; and there is no evidence that the plain- tiff ever knew of the existence of the stub. The stub and note were taken from a blank book which belonged to decedent. No pay ment of interest was made upon the note during the lifetime of the maker. The ref- eree found that the note was given for a valualjle consideration. Mr. Strong sold the note to the plaintiff for $19,000, taking his note, payable in one year after date. What that date was has not been disclosed. Mr. Strong testified at the trial that he still held tlie note. Mr. Strong was one of the execu- tors. Further facts are stated in the opinion. Irving Browne, for appellant. John Thomp- son, for respondents. HAND, J. The counsel for respondents suggested at the close of his argument be- fore us that there was no evidence of a de- livery of the note to Strong, the payee, and the finding of delivery by the referee was entirely unsupported. He does not however make this a point in his printed brief, and did not present it strenuously or with any emphasis in his oral remarks. It is true that the evidence In this respect was not very satisfactory. Ordinarily the possession and production of the note by the payee will raise a presumption of delivery to him. But tills presumption must be very much weakened when the possession is shown not to precede the possession of all the maker's papers and effects by the payee EQUITABLE EIGHTS. 219 as executor, when the note appears to have been all In the handwriting of the maker and to have heen taken with a stub attached, also in his handwriting, from a bank book belonging to him, and when installments of interest falling due in the maker's life-time were not paid and although years elapsed after they so became due before his death there is no proof of any demand of them by the payee or recognition of liability by the deceased. I am not prepared to say however that these circumstances absolutely destroy the presumption from possession and produc- tion of the instrument. While some evidence on the part of the plaintiff, showing that the note had been delivered to Strong in his grandfather's life-time, or at least negativ- ing the idea that Strong found it in the bank- book or among the papers of the deceased when he took possession of them as executor, could probably have been easily produced if consistent with the fact, yet we cannot hold its absence conclusive against the plaintiff upon this point, upon the record as it stands. No motion for judgment or to dismiss was made on this ground by the respondents al- though the Trial was in other respects treated by the counsel on both sides as one before a referee appointed in the ordinary way to hear and determine and direct judgment as in an action, and we cannot say but that if the plaintiff had been notified of such an ob- jection, the evidence would have been sup- plied. The finding of the delivery by the referee was not even excepted to, although there were exceptions to the finding of con- sideration. Under these circumstances we must, I think, assume an acquiescence in the truth of the finding by the respondents for reasons known to them, and which if dis- closed would probably be entirely satisfac- tory. The majority of the general term put their reversal of the judgment upon the ground that it conclusively appeared from the stub attached that the note was intended as a gift and was without consideration. In this I am unable to concur. The referee's finding that the note was de- livered not as a gift but for a valuable con- sideration has some evidence to support it. In the proof of the services rendered by Strong to the deceased, and his abandonment of a profession at the request of the deceased, in the intentiou expressed by the latter to make some compensation for those services, and the conversation had with his counsel not very long before the date of this note, in which he was dissuaded from making this compensation by will and advised to do it while alive, to which he assented. What ap- pears upon the stub is not in my opinion conclusive against this result. There is perhaps difficulty in giving any entirely satisfactory construction to this memorandum made by the deceased; but the interpretation of the general term seems to my mind inconsistent with the known facts of the case. Strong certainly had had and the deceased knew that he had had property of the value of $32,000 given him before the date of this note, and perhaps $30,000 more in bonds. The $20,000 note could not have been therefore as the general term supposes, a gift to make him equal in gifts with his cousin Charles, to whom only $20,000 had been given in all. But not only do the circumstances show that the memorandum could not mean that this gift of the $20,000 to Strong would make him equal in gifts to Charles, but the memorandum itself does not say so. Its language is "to make the amount the same as Chas. W. Cornell." While, as has al- ready been said, there is probably insuper- able difficulty , in discovering precisely all that the deceased meant by this expression, its intrinsic sense is merely that the amount of this note, $20,000, is so fixed to make it the same as an amount possessed in some way by Charles, and this is consistent with both amounts being gifts, or the one being fixed upon in the testator's mind as a fair com- pensation for Strong's services and at the same time equal to an amount he had given or intended to give to Charles. On the whole I think this memorandum was a piece of evidence to be submitted with the other evi- dence to be considered by the referee on the question of fact. His decision upon all this evidence cannot be disturbed by this court. The same may be said of the proof of large gifts to Strong either all before, or some before and some after the date of the note. The reversal by the general term is not stated to be upon the facts, and on the argu- ment it was conceded by the counsel for the respondents to be upon the law merely. It may be that a finding upon all the evidence that the note was without consideration and a gift would not be disturbed, and would be held by us as not unauthorized by the evi- dence. On the other hand, we cannot accede to the proposition that a finding to the con- trary, such as Las been made by the referee here, must by reason of the contents of this stub or other testimony be reversed as er- roneous in law. It follows that except as bearing upon un- due influence, and the relations of parties hereafter considered, the inadequacy of the services or the extravagance of the compen- sation are not material. That was a matter purely of agreement between Strong and the deceased, and with which the court will not interfere under ordinary circumstances. Earl V. Peck, 64 N. Y. 597; Worth v. Case, 42 N. Y. 362; Johnson v. Titus, 2 Hill, 606. Although the consideration of a promissory note is always open to investigation between the original parties (and we agree with the court below that the plaintiff here has no better position than Strong himself), yet as pointed out by the chief judge in Earl v. Peck, supra, mere inadequacy in value of the 220 EQUITABLE EIGHTS. thing bought or paid for is never intended by the legal expression, "want or failure of consideration." This only covers either total worthlessness to all parties, or subsequent destruction, partial or complete. Assuming then, as I think we must, that there was no error as matter of law in the finding of the referee that this note was given for a valuable consideration, and that the adequacy of that consideration is some- thing with which we have no concern if the parties dealt on equal terms, the only point remaining to consider is the relations exist- ing between the deceased and Strong at the date of the note. It is insisted strenuously by the learned counsel for the respendents that these were such as to call for the application of the doc- trine of constructive fraud, and threw upon the plaintiff the burden of proving not only that the deceased fully understood the act, but that he was not induced to it by any un- due influence of Strong, and that the latter took no unfair advantage of his superior in- fluence or knowledge. The court below were hardly correct in the suggestion that the plaintiff conceded this burden to be upon himself, and for that rea- son, instead of resting upon the statement of consideration in the note, gave evidence in opening his ease of an actual consideration; for this may have been done to show in the first instance that the note was not a gift and hence void under the law applicable to gifts. Indeed it appears from the findings and refusals to find, and the opinion of the referee, that such was not the theory upon which the action was tried or decided. We return then to the question whether this case was one of constructive fraud. It may be stated as universally true that fraud vitiates all contracts, but as a general thing it is not presumed but must be proved by the party seeking to relieve himself from an obligation on that ground. Whenever, how- ever, the relations between the contracting parties appear to be of such a character as to render it certain that they do not deal on terms of equality, but that either on the one side from superior knowledge of the matter derived from a fiduciary relation, or from overmastering infiuence, or on the other from weakness, dependence or trust justifiably re- posed, unfair advantage in a transaction Is rendered probable, there the burden is shift- ed, the transaction is presumed void, and it is incumbent upon the stronger party to show aflirmatively that no deception was practiced, no undue influence was used, and that all was fair, open, voluntary and well under- stood. This doctrine is well settled. Hunt, J., Nesbit V. Lockman, 34 N. Y. 167; Story, Eq. Jur. § 311; Sears v. Shafer, 6 N. Y. 268; Huguenin v. Basely, 13 Ves. 105, 14 Ves. 273, and 15 Ves. 180; Wright v. Proud, 13 Ves. 138; Harris v. Tremenheere, 15 Ves. 40; Edwards v. Myrick, 2 Hare, 60; Hunter v. Atkins, 3 Mylne & K. 113. And this is I think the extent to which the well-consider- ed cases go, and is the scope of "constructive fraud." The principle referred to, it must be re- membered, is distinct from that absolutely forbidding a purchase by a trustee or agent for his own benefit of the subject of a trust, and charging it when so purchased with the trust. That amounts to an incapacity in the fiduciary to purchase of himself. He cannot act for himself at all, however fairly or inno- cently, in any dealing as to which he has duties as trustee or agent. The reason of this rule is subjective. It removes from the trustee, with the power, all temptation to commit any breach of trust for his own bene- fit. But the principle with which we are now concerned does not absolutely forbid the dealing, but it presumes it unfair and fraud- ulent unless the contrary is affirmatively shown. Tills doctrine, as has been said, is well settled, but there is often great difficulty in applying it to particular cases. The law presumes in the case of guardian and ward, trustee and cestui que trust, at- torney and client, and perhaps physician and patient, from the relation of the parties itself, that their situation is unequal and of the character I have defined; and that rela- tion appearing itself throws the burden upon the trustee, guardian or attorney of showing the fairness of his dealings. But while the doctrine is without doubt to be extended to many other relations of trust, confidence or inequality, the trust and con- fidence, or the superiority on one side and weakness on the other, must be proved in each of these cases; the law does not pre- sume them from the fact for instance that one party is a grandfather and old, and the other a grandson and young, or that one is an employer and the other an employe. The question as to parties so situated is a question of fact dependent upon the circum- stances in each case. There is no presump- tion of inequality either way from these rela- tions merely. In the present case it cannot be said that the fact that the deceased employed Strong as his clerk to read and answer his letters and cut ofE his coupons, and make out his bills, or as his bailifC to collect his rents, or that at this time he was old and of defective vision, or that Strong lived near him and was his grandson, taken separately or to- gether raise a conclusive presumption of law that their situation was unequal, and that dealings between them as to compensation for these services were between a stronger and a weaker party, a fiduciary in hac re and the party reposing confidence. These relations as a matter of fact may have led to or been consistent with controlling influ- ence on the part of the grandson, or childish weakness and confidence on the part of the grandfather, but this was to be shown, and is not necessarily derivable or presumable EQUITABLE EIGHTS. 221 from the relations themselves, as In the case of trustee, attorney or guardian. From these relations and the large gifts shown from the deceased to Strong, and from the extravagant amount of the com- pensation in the note. It Is very possible the referee might have found as a fact the ex- istence of weakness on the one side, or un- due strength on the other, which rendered applicable the doctrine of constructive fraud, and threw upon the plaintiff the burden of disproving such fraud. These circumstances may have well been of a character, if not sufficient to shift the presumption, at least to authorize a setting aside of a contract without any decisive proof of fraud, but up- on the slightest proof that advantage was taken of the relation, or of the use of "any arts or stratagems or any undue means or the least speck of imposition." Whelan v. Whelan, 3 Cow. 538, Lord Eldon, L. C; Har- ris V. Tremenheere, 15 Ves. 40, Lord Brough- am; Hunter v. Atkins, 3 Mylne & K. 135. But the referee not only has not found as fact any inequality in the situation of the deceased and Strong, but refused to find as a matter of law its existence, and there is really no evidence whatever of any arts or stratagems or "speck of Imposition" on the part of Strong as to this note. We are not permitted to supply these find- ings even if we thought them proper for the referee to make, nor can we sustain a re- versal of the original judgment upon facts not found and not necessarily inferable from uncontradicted evidence in the case, the gen- eral term not having in any way interfered with the findings of the referee. On the whole therefore we reach the con- clusion that there was no good reason for disturbing the judgment of the referee. This large claim upon the estate of the de- ceased is not so clearly justified and explain- ed in the evidence as we could have wished, and the circumstances are such as to compel this court to look upon the case, if not with suspicion, certainly with anxiety, yet after careful examination we can find no material error In the original decision. The order granting a new trial must be reversed and judgment for plaintiff affirmed, with costs. All concur, except MILIjER and EARL, .TJ., absent. .Judgment accordingly. 222 EQUITABLE RIGHTS. ROSS V. CONWAY et al. (No. 13,341.) (28 Pac. 785, 92 Cal. 632.) Supreme Court of California. Jan. 6, 1892. Department 2. Appeal froin superior court, Sonoma county; S. K. Dougherty, Judge. Suit by James E, Eosa against John M. Conway et al. to annul, on the ground of undue influence, a trust-deed made by his mother, Elizabeth G. Ross, for, the benefit of defendanls. Plaintiff had judg- ment, and defendants appeal. Affirmed. Georffe D. Collins and George A. John- son, (/>. M. Delmas, of counsel,) for ap- pellants. John A. Wright, for respondent. HARRISON, J. The plaintiff, as thesolo 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 8he 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 thesame, the last onehaving beenexecuted 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 lmr)rovement 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, 575 per month was to be paid tothei)la!n- tlff, and the remainder monthly "to the pastor of the Roman Catholic church in ■Santa Rosa, to be disbursed by him in euch manner as he may deem charitable. " Other provisions contingent upon the death or change in circnmstances of the plaintiff are unnecessary to be repeated here. The issues before the court were, in substance, whether Mrs. Ross was, at the respective dates on which the deeds of trust were executed, of weak mind, or able to comprehend the provisions of the instruments; and whether the defendant €onway 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 ofher 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, and 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 tor 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 20rh 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 he took an unfair advantage of this infinence, 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 tor the defendants, other than the defendant Conwa.y, were without any consideration from them, but were made solely through the influence of Conway. The rule is inflexible that no one who holds a confidential relation towards anothnr 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 Iransaction between persons standing in that relation the law will presume that he whoheld aninfluence over the other exercised it unduly to his own advantage; or, in the words of Lord Langdale 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 he 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, by the ties of nature, would be its natural recip- ients, to the person through whose influ- EQUITABLE RIGHTS. 223 ence the diversion Is made, whether such divt-rsiou be lor his own personal advan- tage, or lor 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 Eldoin "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 S.4.muel, Romii.ly in his Argument in Huguenin v. Baseley, 14 Ves. 300, that " the relief stands upon a genoral principle applying to all the variety ol relations in which dominion may be exer- cised by one person over another," — a principle which was afterwards affirme() by Lord Cottenham in Dsnt v. Bennett, 4 Mylne & C. 277, saying that he had re- ceived so much pleasure from hearing it 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 han 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. Heffernau, 4 Dru. & War. 291; Dent v. Bennett, 4 Mylne & C. 269; In re Welsh, 1 Redt. Sur. 246; Richmond'h Appeal, 59 Coun. 226, 22 Atl. Rep. 82; P'ord V. Hennessj', 70MO.580; Pironiv. Corrigan, 47 N. J. Eq. 135, 20 Atl. Rep. 218; Connor V. Stanley, 72Cal. 556, 14 Pac. Rep. 306; 1 Bigelow, Fraud, 352; Story, Eq. Jur. § 311. The finding of the court that Mrs. Ross did not have any independent adviceupon 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 SHme, were this at- torney and the defendant Conway, On the 9th of August she had expressed to Conway a desire to make a testamentary disposition ot 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 vvas then made between him and Collins to meet that afternoon in theroomof Mrs. Ross at the hospital. After their arrival at the hospital, Conway made a sugges- tion to her that she execute a deed ol 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 during this 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 virtue of his relation to her, he had acquired an infiuence over her, it must be held that in the transaction under investigation there was an undue exercise of such infiuence; 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-don in Huguenin v. Baseley, 14 Ves. 300, "not whether she knew what she was doing, had done, or proposed to do, but how the intention was produced; whether 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- nying a new trial are affirmed. We concur: LAND, J. DE HAVEN, J.; MoFAR- Hearing in bank denied. 224 EQUITABLE EIGHTS. SOLINGER T. EARLB. (82 N. Y. 393.) Court of Appeals of New York. Nov. 9, 1880. Appeal froin judgment entered upon an or- der reversing a judgment for plaintiff upon an order overruling a demurrer to the com- plaint. The judgment of the general term sustained the demmTer and dismissed the complaint. The facts appear in the opinion. Abram Kling, for appellant. William M. Ivens, for respondents. ANDREWS, J. The complaint alleges in substance that the plaintiff, to induce the de- fendants to unite with the other creditors of Newman & Bernhard in a composition of the debts of that firm, made a secret bargain with them to give them his negotiable note for a portion of their debt, beyond the amount to be paid by the composition agree- ment. He gave his note pursuant to the bar- gain, and thereupon the defendants signed the composition. The defendants transferred the note before due to a bona fide holder, and the plaintiff having been compelled to pay it, brings this action to recover the mon- ey paid. The complaint also alleges that the plaintiff was the brother-in-law of Newman, and entertained for him a natural love and affection, and was solicitous to aid him in effecting the compromise, and that the de- fendants knowing the facts, and taking an unfair advantage of their position, extorted the giving of the note as a condition of their becoming parties to the composition. We think this action cannot be maintained. The agreement between the plaintiff and the defendants to secure to the latter payment of a part of their debt in excess of the ratable proportion payable under the composition was a fraud upon the other creditors. The fact that the agreement to pay such excess was not made by the debtor, but by a third person, does not divest the transaction of its fraudulent character. A composition agreement is an agreement as well between the creditors themselves as between the creditors and their debtor. Each creditor agrees to receive the sum fixed by the agreement In full of his debt. The sign- ing of the agreement by one creditor is often an inducement to the others to unite in it. If the composition provides for a pro rata payment to all the creditors, a secret agree- ment, by which a friend of the debtor under- takes to pay to one of the creditors more than his pro rata share, to induce him to unite in the composition, is as much a fraud upon the other creditors as if the agreement was directly between the debtor and such creditor. It violates the principle of equity, and the mutual confidence as between cred- itors, upon AYhich the agreement is based, and diminishes the motive of the creditor who is a party to the secret agreement, to act in view of the common interest in making the composition. Fair dealing and common honesty condemn such a transaction. If the defendants here were plaintiffs seeking to en- force the note, it is clear that they could not recover. Cockshott v. Bennett, 2 Term R. 763; Leicester v. Rose, 4 East, 372. The ille- gality of the consideration upon well-settled principles would be a good defense. The plaintiff, although he was cognizant of the fraud, and an active participator in it, would nevertheless be allowed to allege the fraud to defeat the action, not, it is true, out of any tenderness for him, but because courts do not sit to give relief by way of enforcing illegal contracts, on the application of a party to the illegality. But if he had voluntarily paid the note, he could not, according to the gen- eral principle applicable to executed contracts void for illegality, have maintained an action to recover back the money paid. The same rule which would protect him in an action to enforce the note, protects the defendants in resisting an action to recover back the money paid upon it. Nellis v. Clark, 4 Hill, 429. It is claimed that the general rule that a party to an illegal conti'act cannot recover back money paid upon it does not apply to the case of money paid by a debtor, or in his behalf, in pursuance of a secret agreement, exacted by a creditor in fraud of the compo- sition, and the cases of Smith v. Bromley, 2 Doug. 696, note; Smith v. Cuff, 6 Maule & S. 160; and Atkinson v. Denby, 7 Hurl. & N. 934,— are i-elied upon to sustain this claim. In Smith v. Bromley the defendant, being the chief creditor of a bankrupt, took out a com- mission against him, but afterward finding no dividend likely to be made, refused to sign the certificate unless he was paid part of his debt, and the plaintiff, who was the bank- rupt's sister, having paid the sum exacted, brought her action to recover back the money paid, and the action was sustained. Lord Mansfield in his judgment referred to the statute 5 Geo. II. e. 30, § 11, which avoids all contracts, made to induce a creditor to sign the certificate of the bankrupt, and said: "The present is a case of a transgression of a law made to prevent oppression, either on the bankrupt or bis family, and the plaintiff is in the case of a pei'son oppressed, from whom money has been extorted and advan- tage taken of her situation and concern for her brother." And again: "If any near rela- tion is induced to pay the money for the banknipt, it is taking an unfair advantage and torturing the compassion of his family." In Howson v. Hancock, 8 Term R. 575, Lord Kenyon said that Smith v. Bromley was de- cided on the ground that the money had been paid by a species of duress and oppression, and the parties were not in pari delicto, and this remark is fully sustained by reference to Lord Mansfield's judgment. Smith v. Cuff was an action brought to recover money paid by the plaintiff to take up his note given to EQUITABLE RIGHTS. 225 the defendant, for the balance of a debt owing by the plaintiff, which was exacted by the latter as a condition of his signing with the other creditors a composition. The de- fendant negotiated the note and the plaintiff was compelled to pay it. The plaintiff recov- ered. Lord Ellenborough said: "This is not a case of par delictum; it is oppression on the one side and submission on the other; it never can be predicated as par delictum where one holds the rod and the other bows to it." Atkinson v. Denby was the case of money paid directly by the debtor to the creditor. The action was sustained on the authority of Smith v. Bromley and Smith v. Cuff. It is somewhat difficult to understand how a debtor who simply pays his debt in full can be considered the victim of oppression or extortion because such payment is exacted by the creditor as a condition of his signing a compromise, or to see how both the debtor and creditor are not in pari delicto. See re- mark of Parke, B., in Higgins v. Pitt, 4 Exch. 312. But the cases referred to go no further than to hold that the debtor himself, or a near relative who out of compassion for him pays money upon the exaction of the creditor, as a condition of his signing a composition, may be regarded as having paid under duress and as not equally criminal with the creditor. These decisions cannot be upheld on the ground simply that such payment is against public policy. Doubtless the rule declared in these cases tends to discourage fraudulent transactions of this kind, but this is no legal ground for allowing one wrongdoer to recov- er back money paid to another in pursuance of an agi-eement, illegal as against public poUcy. It was conceded by Lord Mansfield in Smith v. Bromley, that when both parties are equally criminal against the general laws of public policy, the rule Is "potior est con- ditio defendentis," and Lord Kenyon in How- son V. Hancock, said that there is no case where money has been actually paid by one of two parties to the other upon an illegal contract, both being particeps criminis, an ac- tion has been maintained to recover it back. It is laid down in Cro. Jac. 187, that "a man shall not avoid his deed by duress of a stran- ger, for It hath been held that none shall avoid his own bond for the imprisonment or danger of any one than himself only." And HUTCH. KQ.JUR. — 15 in Robinson v. Gould, 11 Cush. 57, the rule was applied where a surety sought to plead his own coercion as growing out of the fact that his principal was suffering illegal im- prisonment as a defense to an action brought upon the obligation of the surety given to se- cure his principal's release. But the rule im Cro. Jac. has been modified so as to allow a father to plead the duress of a child, or a- husband the duress of his wife, or a child the- duress of the parent. Wayne v. Sands, 1 Freem. 351; Baylie v. Clare, 2 Brownl. & G. 276; 1 RoUe, Abr. 687; Jacob, Law Diet. "Duress." We see no ground upon which it can be held that the plaintiff in this case was not in par delictum in the transaction with the de- fendants. So far as the complaint shows he was a volunteer in entering into the Iraudu- lent agreement. It is not even alleged that he acted at the request of the debtor. And in respect to the claim of duress, upon which Smith V. Bromley was decided, we are of opinion that the doctrine of that and the sub- sequent cases referred to can only be asserted in behalf of the debtor himself, or of a wife or husband, or near relative of the blood of the debtor, who intervenes in his behalf, and that a person in the situation of the plaintiff, remotely related by marriage, with a debtor who pays money to a creditor to induce him to sign a composition, cannot be deemed to have paid under duress by reason simply of that relationship, or of the interest which he might naturally take in his relative's affairs- The plaintiff cannot complain because the defendants negotiated the note, so as to shut out the defense, which he would have had to it in the hands of the defendants. The nego- tiation of the note was contemplated when it was given, as the words of negotiability show. It is possible that the plaintiff while- the note was held by the defendants, might have maintained an action to restrain the- transfer, and to compel its cancellation. Jackman v. Mitchell, 13 Ves. 581. But it is unnecessary to determine that question in. this case. The plaintiff having paid the note, although under the coercion resulting from, the transfer, the law leaves him where the transaction has left him. The judgment should be affirmed. All concur. Judgment affirmed. 226 EQUITABLE REMEDIES. PAGE y. MARTIN. (20 Atl. 46, 46 N. J. Bq. 585.) Court of Errors and Appeals of New Jersey. June 21, 1890. Appeal from court of chancery; Bird, Vice-(.'hancellor. 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. E. 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 five 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 an.v 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 otherimprovements 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] Ezra G. Tolman. " Witness : Geo. Shepard Page. "James McGtiine." Thos. N. McC'ai'fer, for appollant. Theo- dore RuD.vou, for respondent. GARRISON, J., (after stating the facts as above.) This bill was for the specific per- formanceof an agreement to convey lands. The attitude of courts of equity upon ap- plications of this character may be sum- marized in two propositions: First, that the relief invoked is not a matter exdebito JiistitieB, tiut rests in The sound discretion of the court; and, secoud, 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 view of all the circumstances, it ought to do, is a distinction which is of little orno 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 permauentim- provement. Resistance comes, not from the owner, but from one who, with full notice of the above tacts, purchased the lands, and is based solely upon the alleged incapacity of the owner to make a valid 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. Tlie defense, being a purel.v 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. Tfiis 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, and 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 hie bill in the court of chan- cery. The evidence as to Tolman's general in- capacity to transact business in 1SS4 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 reflnement EQUITABLE KEMEDIES. 227 of technicality to say that all of hiB 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, tlie terms of the lease are before us only as ev- idence of mental incapacity on the one hand, or of mala Bdes on the other. For all other purposes, that portion of the contract is excliiiled anil 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 iu changing a piece of land, valueless to iw 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 hdes 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. I cannot 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 acq uiretheland 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 not shown; that Page.iniiona iicie reliaiice 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 oi 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 suijport 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 Zabeiskie 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 between the parties that may be the true consideration for it." Tliis case was afterwards cited by Chancellor EUNYON in Scott v. Shiner, 27 N. J. Eq.l87, as 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. 228 EQUITABLE BEMEDIES. BLANCHARD t. DETROIT, L,. & L. M. R. CO. (31 Mich. 43.) Supreme Court of Michigan. .Ian. Term, 1875. Appeal from circuit court, Ionia county; in chancery. Clute & Smith, for complainant. Bell & Hutchinson and G. V. N. Lothrop, for defendant. GRAVES, C. J. The court below having dismissed the complainant's bill after hear- ing on pleadings and proofs, he has appealed to this court. He sets up a conveyance made by himself and wife to the Ionia & Lansing Railroad Company in June, 1870, of certain ground on his farm, for a tracli and depot, the subse- quent consolidation of that company with the Detroit, Howell & Lansing Railroad Compa- ny, and the assumption by the resulting or- ganization of the name ascribed to defend- ants in the title of the cause. The consideration clause of this deed stated that the conveyance was made "in considera- tion of five hundred dollars and the covenant to build a depot hereinafter mentioned," and following the description and preceding the habendum was the following clause: "But this conveyance is made upon the express condition that said railroad company shall build, erect and maintain a depot or station house on the land herein described, suitable for the convenience of the public, and that at least one train each way shall 'Stop at such depot or station each day when trains run on said road, and that freight and pas- sengers shall be regularly taken at such de- pot." Apart from these passages the deed was in common form, and silent in regard to a depot. Together with other matters not necessary to be mentioned, the bill alleged ac- ceptance of the deed, and that the company built the road over the land granted, and that for some time past the consolidated or- ganization has used and occupied the road for running trains; that complainant, in granting to the Company, was largely influ- enced by his expected accommodations, in having a depot at his place, and the rise in value which it would cause to his surround- ing property; that by accepting the grant the company became bound to perfonn as specified in the second of the foregoing claus- es, but have totally refused to comply with, or abide by it, and that complainant is enti- tled to insist on specific performance, or if that be found improper, then to such compen- sation as will indemnify him. The answer asserts, and this is admitted, that the deed was wholly prepared by com- plainant's legal adviser, and that complain- ant refused to convey on any other terms. The answer then avers that the clause con- cerning a depot, and now assumed by com- plainant to oijerate as a covenant, is not one, nor entitled to operate as one, but is simply and purely a condition subsequent, and that the company, having become satisfied that compliance with it would be detrimental to the public interest and their own, decided not to observe it, and had therefore refused to abide by It. The answer also claims the benefit of a demurrer for want of equity. A peculiar feature of this clause is, that it is tbe grantee, and not the grantor, as is al- most invariably the case, who maintains that the important clause in the grant which the grantor relies upon as a covenant, is a con- dition, and one, too, wWcli the grantee has distinctly violated. This is the more notice- able since one of the settled rules for decid- ing in doubtful cases that the writing is a covenant, and not a condition, is based on the idea that a condition, as tending to de- stroy the estate, would be less favorable to the grantee. 4 Kent, Comm. 129, 132. The position of these parties confounds the reason of this rule, and would dispense with the rule itself if the case were a doubtful one. Catlin v. Springfield Fire Ins. Co., 1 Sumn. 434, 440, Fed. Cas. No. 2,522. Tbe real questions necessary to be decided will hardly admit general reasoning or nice deductions. Aside from reasons very mani- fest, they depend upon authority, and can only be lawfully determined in accordance with principles which have been fully recog- nized and adjudged. And the circumstance, that one of the parties is a natural and the other an artificial person, gives no signifi- cance whatever to the legal merits, nor does it in any manner bear upon the proper expo- sition and application of the controlling prin- ciples. The complainant and the other party to the grant, being both competent, and able to act independently and look after their respective Interests, voluntarily bargained with each other, and complainant, being assisted by counsel, caused a provision couched in terms of his own choice to be incorporated in the grant, and the grantee deliberately accepted the grant so drawn, and the defendant, as successor of the grantees, expressly and final- ly refuses to execute the provision in ques- tion. After insisting that this provision was bind- ing on them in no other sense or extent than as a condition subsequent, and as a neces- sary consequence that it affords no basis whatever for any relief exclusively depend- ent upon promissory undertaking, the defend- ant further insists that if the controverted clause, or rather the clause of which the na- ture is controverted, were to be regarded as promissory, still its positive enforcement must be declined in equity, first, on the ground of public policy, and second, on the ground that Its requirements are on the one hand posi- tively unsuitable to be enforced by chancery, and on the other hand that in many indis- pensable particulars the subject matter is left EQUITABLE REMEDIES. 229 too much at large, too vague, and too mucb in want of detail, to admit of execution by tbe court. The first question for consideration appears naturally to be, whether the particular clause in the deed is a covenant or mere condition subsequent, having no promissory force; and this is purely a question of authority. The language of the clause itself is plain and un- ambiguous, and the grant must have effect according to the legal interpretation and meaning of its terms, and not according to any erroneous impression either party may have formed respecting its operation. Fur- bush V. Goodwin, 5 Fost. (N. H.) 425. Much stress was placed by complainant's counsel upon the phrase in the consideration clause, which speaks of an after-mentioned covenant to build a depot. Now this expres- sion must be taken to refer to the subsequent clause about whose operation the parties dif- fer, or it must otherwise be taken as a mere purposeless expression. The reasonable opinion would seem to be, that this statement in the consideration clause was actually intended to refer to the later provision respecting the depot, and to expressly mark that the right it evidenced was part of the consideration. It is hardly admissible to suppose that the grantor carefully introduced this phrase, and then omitted to insert anything to satisfy what he considered the phrase called for. But, conceding the expression was meant to apply to the subsequent passage, it is anoth- er and very different question, whether it is entitled to control the proper meaning and nature of that passage. It may be fully ad- mitted that if the terms of the main clause were not clear and strong to fix its legal character, or if the other portions of the in- strument were such as to cause the mind to hesitate q.bout its legal significance, the words of the consideration clause might be resorted to, to help to a conclusion in harmony with the literal import of these words. But this is not the case. Apart from the expression in the consideration clause, the subsequent provision, as well as the residue of the in- strument, is too perfectly worded and too precise, to admit of any doubt whatever. Independently of such first expression, there is no ambiguity, and no obscurity. Now, in alluding as they did, when writing down the statement of consideration, to the positive provision as a covenant, we may sup- pose that at the most the parties manifested their opinion of the legal nature of the stip- ulation. But as this clause was precisely in the form desired, their opinion of the char- acter the law impressed upon it, or their idea of the name belonging to it, whether indicat- ed by giving it a specific designation, or in some other way, cannot alter its necessary legal nature. The books are full of illustra- tions of this point. When an instrument or provision is clearly and distinctly so drawn and consummated that the law at once at- taches, and determines that It possesses a specific legal nature, and exclusively belongs to a given class of transactions, the par- ties cannot, by arbitrarily assigning a name to it wholly foreign to its true character, succeed in transforming it, and so cause it to stand and operate in a manner wholly alien to it. To conclude otherwise would be to reject the legal criteria of certainty in written transactions. RadclifE v. Rhah, 5 Denio, 234; Scudder v. Bradbury, 106 Mass. 422; Pearce v. Grove, 3 Atk. 522; Rice v. Ruddiman, 10 Mich. 125; Railroad Co. v. Trimble, 10 Wall. 367; 1 Cow. & H. Notes, 211 et. seq. Even when the legislature holds a mistaken opinion concerning the law, it , does not change it. Postmaster General v. Early, 12 Wheat. 136; Talbot v. Seeman, 1 Cranch, 1; Mersey Docks v. Cameron, 11 H. li. 443, per Lord Chelmsford, page 518; Mur- ray's Lessee v. Hoboken Land & Improve- ment Co., 18 How. 272, 285. A plain condi- tion cannot be converted into a perpetual covenant by calling it one. This sentence, then, cannot be allowed to alter the intrinsic nature of the main provision. In noticing the position that the consideration clause in the deed ought to help to an opinion that the second clause constituted a covenant, and not a mere condition subsequent, we have as- sumed that the terms of this second clause are so clear and explicit that there is no room for any real question touching its intrinsic legal nature and true denomination. A few words may be now proper to sustain the va- lidity of this assumption. We have seen the language of the provision; and its position in the instrument, as well as its authorship, has been explained. How do the authorities apply to it? An es- tate upon condition is one which has a quali- fication annexed, by which, on the happen- ing of a particular event, it may be created, enlarged or destroyed. If set forth, the condi- tion is express; and if it allows the estate to vest, and then to be defeated in consequence of non-observance of the requirement, it is a condition subsequent. 2 Bl. Comm. c. 10; 4 Kent, Comm. "Of Estates on Condition"; Co. Litt. 201a, 215a, 215b, 233b, 234b, 251b; Bac. Abr. tit. "Conditions"; Com. Dig. tit. "Conditions"; Shep. Touch, c. 6, "Of Condi- tions." The author of the Touchstone says: "Con- ditions annexed to estates are sometimes so placed and confounded amongst covenants,— sometimes so ambiguously drawn, — and at all times have in the drawing so much affinity with limitations, that it is hard to discern and distinguish them. Know, therefore, that for the most part conditions have conditional words in their frontispiece, and do begin there- with; and that amongst these words there are three words that are most proper, which, in and of their own nature and efficacy, without any addition of other words of re-entry in the con- clusion of the condition, do make the estate con- ditional, as: proviso, ita quod, and sub condi- 230 EQUITABLE REMEDIES. tione. And, therefore, if A grants lands to B, to have and to hold to him and his heirs, provided that,— or so as,— or under this condition,— that B do pay to A ten pounds at Easter next; this is a good condition, and the estate is con- ditional without any more words." Page 121. See, in addition to the boolis last cited, Washto. Real Prop., and Hil. Real Prop. The question whether there is a lipaitation or a condition, or whether there is a condition pre- cedent or subsequent, or whether what is to be expounded is a condition or covenant, or something capable of operating both ways, frequently becomes very perplexing in con- sequence of the uncertain, ambiguous, or con- flicting terms and circumstances involved; and the books contain a great many cases of the kind, and not a few of which are marked by refinements and distinctions which the sense of the present day would hardly tolerate. Where, however, the terms are distinctly and plainly terms of condition, where the whole provision precisely satisfies the require- ments of the definition, and where the trans- action has nothing in its nature to create any incongruity, there Is no room for refinement, and no ground for refusing to assign to the subject its predetermined legal character. In such a case the law attaches to the act and ascribes to It a definite significance, and the parties cannot be heard to say, where there is no Imposition, no fraud, no mistake, that, although they deliberately made a condition, and nothing but a condition, they yet meant that it should be exactly as a covenant. Among the numerous cases serving to illus- trate the subject, which have been examined, the following may be referred to: Michigan State Bank v. Hastings, 1 Doug. (Mich.) 225, 229, 230, 249-256; Merritt v. Harris, 102 Mass. 320; Tilden v. Tilden, 13 Gray, 103; Gray V. Blanchard, 8 Pick. 284; Attorney General V. Merrimack Manuf'g Co., 14 Gray, 586; Allen V. Howe, 105 Mass. 241; Jackson v. Florence, 16 Johns. 47; Jackson v. Allen, 3 Cow. 220; Livingston v. Stickles, 8 Paige, 398; Stuyvesantv. Mayor, 11 Paige, 414; Palm- er v. Ft. Plain & C. Plank-Road Co., 11 N. Y. 376; Hefner v. Yount, 8 Blackf. 455; Cross V. Carson, Id. 138; Sperry's Lessee v. Pond, 5 Ohio, 387; Wheeler v. Walker, 2 Conn. 196; Willard v. Henry, 2 N. H. 120; Doe v. Asby, 10 Adol. & E. 71; Churchward v. Queen, L. K. 1 Q. B. 173, per Shee, J., 211; Mead v. Bal- lard, 7 Wall. 290. The cases are of course numerous where, on controversy about the meaning or opera- tion, the writing has been held either to create a limitation or a covenant, or to work both as a condition and covenant. But on exam- ination it will appear that in all the cases in which it has been deliberately determined that the writing, though possessing many or all of the characteristics of a condition, was still susceptible of operating as a covenant, there were grounds for claiming that prom- issory words existed, or at least words which, In the light of pertinent facts, were fairly capable of a promissory sense. Among the cases of this class, are the following: Spaul- ding V. Hallenbeck, 35 N. Y. 204; Stuyvesant V. Mayor, ubi supra; Doe v. Watt, 8 Bam. & C. 308. And it is believed that no considered case can be shown, that assumes to decide that a writing which, like that before the court, pre- cisely answers. In verbiage, position, and rela- tive facts, to all the requirements of an ex- press condition subsequent, and stands with- out any thing except the hasty opinion of the grantor to gainsay its apparent legal nature, is either a covenant, or susceptible of being proceeded on as a covenant, in opposition to a claim by the grantee that it is a bare condi- tion, and which by his non-observance has en- titled the grantor to forfeiture. The result, upon the whole, is, that the pro- vision relied on by complainant as a covenant to be specifically enforced against the defend- ants, must be considered an express condition subsequent, and not a covenant, and not specifically enforceable against defendants as one. Having reached this conclusion, this opinion might here end. But, as the case was fully argued in another aspect, it is deemed admissi- ble to go further. Supposing it to be admitted that the provi- sion in the grant is susceptible of being under- stood in a promissory sense, and is capable of being considered as in the nature of an agreement by the defendants with the com- plainant, is it capable of specific enforcement by the court? Setting aside the objection founded on public policy, which is not ex- amined, are the requirements in the writing of such a nature, and so fully and clearly marked out, defined, identified, or ' indicated, as to make specific execution by the court practicable? We had occasion in the recent case of Buck v. Smith, 29 Mich. 166, to sub- mit some observations respecting the power and duty of the court to execute agreements for the performance of an indefinite number and variety of future acts within the scope of a business not distinctly and exactly map- ped out and particularized, and what was there stated has some application here. The jurisdiction of equity in specific per- formance proceeds on the supposition that the parties have not only agreed, as between them- selves, upon very material matter, but that the matters so agreed on are of such a nature, and the subjects of enforcement so delineated or indicated, either directly or by reference to something else, or so raised to view by legiti- mate implication, that the court cau and may collect, and in their proper relations, all the essential elements, and proceed intelligently and practically in carrying into execution the very things agreed on and standing to be per- formed. If, however, it appears, either that the things to be performed are in their nature Incapable of execution by the court, or that needful specifications are omitted, or that EQUITABLE REMEDIES. 231 material matters are left by tbe parties so ob- scure or undefined, or so in want of details, or tbat tbe subjects of the agreement are so conflicting or incongnious, that tbe court can- not say whether or not the minds of the par- ties met upon all the essential particulars, or if they did, then can not say exactly upon what substantial terms they agreed, or trace out any practical line where their minds met, the case is not one for specific performance. As the court does not make contracts for parties, so it never undertakes to supply ma- terial ingredients which they omit to mention, and which cannot be legitimately considered as having been within their mutual contem- plation. And where the party to perform is left by the agreement with an absolute dis- cretion respecting material and substantial details, and these are therefore indeterminate and unincorporated until by his election they are developed, identified, and fixed as constit- uents of the transaction, the court cannot substitute its own discretion, and so by its own act perfect and round out the contract. If the court were to do this, it would be to assume a right not belonging to it, but one which the parties reserved to themselves. Now what is it that the complainant in this cause asks the court to execute? It is— First, that defendants shall make and maintain on the premises a depot or station- house, suitable for the convenience of the public. Second, that during all future time, when trains run on the road, at least one train each way shall every day stop thereat; and Third, that in all future time freight and passengers shall be regularly received and discharged at such depot. It is extremely plain that the requirements for stopping trains and receiving and dis- charging freight and passengers were leading objects, and that the building a station-house was of secondary consideration. The put- ting up of such a building could be of little consequence if no trains stopped there. The other requirements should therefore be re- garded as the chief subjects of complainant's equity. Supposing all other objections removed, is it practicable for the court to execute them? May it take upon itself for all the future to supervise the daily running and stopping of trains, both of passengers and freight, and the regularity of action in regard to the re- ception and discharge of passengers and freight? If the writing embodies any promissory agreement at all, it is that when and so long as trains run on the road, one train each way shall eveiy day stop at this place, and also that passengers and freight shall be there regularly received and discharged. Waiving all considerations of possible fu- ture action by government under the postal, war, police, or other power, inconsistent with any particular decree which might now be made, can the court see that in all coming time these requirements are carried out? Can it know or keep informed whether trains are running, and what accommodations are suitable to the public interest? Can it see whether the proper stoppages are made each day? Can it take notice, or legitimately and truly ascertain from day to day, what amounts to regularity in the receipt and dis- charge of passengers and freight? Can it have the means of deciding at all times whether the due regularity is observed? Can it superintend and supervise the business, and cause the requirements in question to be carried out? If it can, and if it may do this in regard to one station on the road, it may with equal propriety, upon a like showing, do the same in regard to all stations on the road, and not only so, but in regard to all stations on all the present and future roads in the state. That any such jurisdiction is impracticable, appears plain, and the fault lies in the cir- cumstance that the objects of the parties, as they were written down by them, are by their very nature insusceptible of execution by the court. In this connection we may refer to a few cases. Raynor v. Stone, 2 Eden, 128, was a case for specific performance of several stipulations by the defendant in a lease. Among others, were agreements to mend hedges and fences, and keep the mansion house and other buildings in repair. The de- fendant having demurred. Lord Northington allowed the demurrer, and in the course of his opinion observed, that the remark of counsel, that he had no officer to see to per- formance, was very strong. "How," he re- marked, "can a master judge of repairs in husbandry? What is a proper ditch or fence in one place, may not be so in another. How can a specific performance of things of this kind be decreed? The nature of the thing shows the absurdity of drawing these ques- tions from the proper trial and jurisdiction." In CJervais v. Edwards, 2 Dru. & War. 80, specific performance of an agreement be- tween the parties for straightening a crooked river which divided their lands was sought, and the contract contained stipulations for mutual compensation for the soil which might be shifted from one to the other, and in re- gard to the contingent damages which might afterwards happen. The complainant waived all right on his part to future and contingent damages. The chancellor, Sir Edward Sug- den, refused to decree performance, however, and some of his observations are so explicit and appropriate, that a somewhat extended quotation will not be deemed objectionable. He said: "As far as the merits of the case go, I would decree the specific execution of this contract; but I do not see how it is pos- sible. If I execute it at all, I must execute it in toto; and how can I execute it prospec- tively? The court acts only on the principle of executing it in specie, and in the very terms in which it has been made; therefore. 232 EQUITABLE EEMEDIES. when you come to the specific execution of a contract containing many particulars, you may see that it is possible to execute it ef- fectively. The court cannot say that when an event arises hereafter, it will then exe- cute it. In the case of a decree for the execu- tion of a contract for the sale of timber, it is no objection that it is to be cut at intervals; that is certain, and there mere delay will not prevent the court from executing it; there the agreement is executed in specie; the court decrees to one the very timber contract- ed for, to the other the very price. If I am called on now to execute this agreement, I can only speciflcally execute a portion; whereas I am bound to execute it all." He afterwards added, "No precedent has been cited; but, indeed, none is necessary. It is a question of principle; and I am clearly of opinion that if I gave a decree now, it would not be a specific execution of the contract, but only a declaration that there ought to be a specific execution of it hereafter. I must therefore leave the plaintiff to his remedy at law." Blackett v. Bates, 1 Ch. App. 117, was where an award required that the defendant should execute to the plaintiff a lease of the right of such part of a railway made by the plaintiff as was on the defendant's land, the lease to be in the words set out in the award; and that the defendant should be entitled to run carriages on the whole line, on certain terms, and might require the plaintiff to sup- ply engine power, while the latter should have an engine on the road; and that the plaintiff, during the whole time, should keep the entire railway in good repair. Differen- ces having arisen about carrying out the award, a bill was filed for specific perform- ance, which was demurred to generally, for want of equity. In support of the demurrer it was pertinently observed by counsel that "whether if the court had legislative power it would be desirable to make parties perform in specie all manner of contracts, was not then the question. That the court only de- creed specific performance when it could dis- pose of the matter by an order capable of being enforced at once, and did not decree a party to perform a continuous duty extending over a number of years, but left the party to his remedy at law." Lord Cranworth acced- ed to this view, and observed, "that the court had no means of enforcing the performance of daily duties during the term of the lease; that it could do nothing more than punish the party by imprisonment or fine, in case of failure to perform them, and might be called on for a number of years to issue repeated attachments tor default." He cited Gervals V. Edwards with approbation. In Marble Co. v. Kipley, 10 Wall. 339, the court acted on the same principle. The con- tract concerned the use and mode of enjoy- ment of a quarry, and contained particular stipulations as to the future rights and priv- ileges of the parties. Among other things. the court remarked, that "if performance be decreed, the case must remain in court for- ever, and the court to the end of time may be called upon to determine, not only whether the prescribed quantity of marble has been delivered, but whether every block was from the right place, whether it was sound, or whether it was of suitable size or shape or proportion. It is manifest that the court can- not superintend the execution of such a de- cree. It is quite impracticable, and it is cer- tain that equity will not interfere to enforce part of a contract, unless that part is clearly severable from the remainder." Port Clinton K. Co. v. Cleveland c& T. E. Co., 13 Ohio St. 544, is cited with approval. Among other au- thorities which tend to illustrate the subject, see Baldwin v. Society for Diffusion of Use- ful Knowledge, 9 Sim. 393; Hamblin v. Din- neford, 2 Edw. Ch. 529; De Rivaflnoli v. Corsetti, 4 Paige, 264; Sanquirico v. Benedet- ti, 1 Barb. 315; Dodd v. Seymour, 21 Conn. 476; Waters v. Taylor, 15 Ves. 10-25. Without going further into this view of the case, it is only needful to say, that it seems obvious that the very nature of the provision sought to be enforced is such as to render the remedy impracticable. But if this objection were not insuperable, there would be still another in the want of de- tails and lack of particularity and specifica- tion. The specific location is not given for the building, nor is there anything certain as to the plan, size, shape, materials or arrange- ment of the building. All this appears to have been left, by the assent of the parties, sub- stantially to the judgment and discretion of the grantees. The only specification, the only limit upon such judgment and discretion, the parties saw fit to make, was that it should be suitable for the convenience of the public. For many purposes this might be considered definite enough. It would be in a charter In which the end to be obtained would be presented as the object of the legislature, whilst everything in regard to details and means would be right- ly and purposely left to the company. But for a building contract, or an agreement to be executed by the court, it is not so. If the court were to attempt to decree, what direction could It give as per contract, In re- gard to the plan, size, shape, materials, ar- rangement and cost? If what would now sat- isfy the interest of the public were known, it might guide as to the present size and ar- rangement; but It could go no further. What Is needful now may be otherwise In time, and future changes In the state of the country or in business may wholly disappoint all pres- ent calculations. The public interest may re- quire many alterations. But the reference to the public convenience gives no clue what- ever as to the materials, or in regard to other essential matters. The other parts of the provision are also marked by similar difficulties; but It Is need- EQUITABLE REMEDIES. 233 less to d'ft'ell upon tbem. Among many oth- ers we cite the following authorities as going to explain this feature of the case: McClin- tocli V. Laing, 22 Mich. 212; Tatham v. Piatt, 15 Eng. Law & Eq. 190; Harnett v. Yielding, 2 Schoales & L. 549; Colson v. Thompson, 2 Wheat. 336; Boston & M. R. Co. v. Bartlett, 3 Cush. 224; German v. Machin, 6 Paige, 288; McMurtrie v. Bennette, Har. (Mich.) 124; Webb V. Direct London & P. R. Co., 1 De Gex, M. & G. 521, 9 Eng. Law & Eq. 249; Stuart V. London & N. W. Ry. Co., 1 De Gex, M. & G. 721, 11 Eng. Law & Eq. 112, and comments on these cases in Hawkes v. East- ern Counties Ry. Co., 1 De Gex, M. & G. 757, 15 Eng. Law & Eq. 858, and 5 H. L. 831; South Wales Ry. Co. v. Wythes, 1 Russ. & J. 186, 5 De Gex, M. & G. 880, and 31 Eng. Law & Eq. 226. Also 8 Pars. Cont 354 et seq.; Fry, Spec. Perf. cc. 1, 3, 4. On this phase of the case, then, the diffi- culties are insurmountable. The alternative request for an allowance of damages, or something in the nature of com- pensation, by the court, must of course fail. If the case stood upon any final ground which would permit such an appeal to the jurisdiction of chancery, it could not be just- ly sustained. In the first place, the imcertainties and lack of details which mark the case, the want of land-marks, boundaries, and specifications, the absence of proper data, and the aptness of the subject for a jury, would Induce the court to decline. Pratt v. Law, 9 Cranch, 456; Morss V. Elmendorf, 11 Paige, 277; Fry, Spec. Perf. "Compensation," §§ 818, 814; 3 Pars. Cont. 402, 403, and notes. But again, if the writing is treated as a promissory undertaking which is binding on the defendant, what it stipulates for is chiefly and mainly a series of daily acts to extend through all the future, and a fuU and com- plete award, which, according to the settled course of the court and the principles on which alone it intervenes, is the only admis- sible one, would be utterly impossible upon any data now afforded, or which can now be afforded. So many changes of a nature to affect the question are not only possible but probable, that any attempt by the court to adjudge specific compensation in money, in lieu of per- formance for all future time of the require- ments in the writing, would be wild and ab- surd. A partial award, one for present dam- ages, would not only be futile, but would be an unwarranted departure from principle. The ground of equitable interference, or at least one ground, is, to do at once and in one case final and complete justice. The court always seeks to avoid piece-work determina- tions. In the introduction to Adams, Eq. it is said: "The equity for performance with compensa- tion may be enforced by either the vendor or purchaser, but is of course more readily grant- ed to the latter; in either case the defect must be one admitting of compensation, and not a mere matter of arbitrary damages, and the compensation given must be really compensa- tion for a present loss, and not Indemnity against a future risk." Page 68. See, also, the body of the work, page 109, margin, and cases cited. For the reasons given the decree below must be affirmed, with costs. The other justices concurred. 234 EQUITABLE EEMEDIES. WM. ROGERS MANUF'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; Fenn, Judge. This was a suit to enjoin the violation of a contract between P>ank 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 be done by said companies, according to the stipulations of said agreement, for the pe- riod of twenty-five years therein named, if 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 of the business will be thereby promotr" (2) The said companies agree to pay said Rogers fur such services so to be rendered, at the rate of f 1,000 per year for the first five years of such services, and thereafter the same or such larger salary as may be 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 sf^ller, 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 maj' be agreed upon between him and said general agent." The complaint was held insufficient, and the plaintiffs appealed. F. Chawberlin and E. S. White, for ap- pellants. C. E. IngersoU and F. L. Hun- gerford, for appellee. ANDREWS, C.J. Contracts forpersonal service are matters for courts of law, and equity will not undertake a specific per- formance. 2 Kent, Comm. 258, note b; Hamblin v. Dinnef ord , 2 Ed w . 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 X'eculiar 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; SPom.Eq. Jur.§1343: California Bank V.Fresno Canal, etc., Co., 53 Cal.201; Singer Se wing-Machine Co, v. Union Button- Hole Ccj., 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 ojmplaint. 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 be devolved upon him bythegen- 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 otherofficerofeither or both of said companies as said compa- nies may desire to have him perform." These services, while they may not be ma- 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. It 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 EQUITABLE REMEDIES. 235 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 his name to be used or employed in connection with such business as a stamp on the ware manufactured; :.nd 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 wholl.y 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 plaintiffs manufacture is of no more value than the names of Smith or Stiles or John Doe. There is nothing from w^hich 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 name of 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 shovfn 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 tlie course of his employment, and which he has con- tracted not to divulge. Peabody v. Nor- folk, 98 Mass. 452. There is no errorin the judgment of the superiorcourt. The other indges concurred. 236 EQUITABLE HEMEDIES. DANFORTH et al. v. PHILADELPHIA & CAPE MAY S. L. RY. CO. (30 N. J. Bq. 12.) 'Court of Chancery of New Jersey. Oct. Term, 1878. Bill for specific performance. Heard on bill and answer. J. W. Griggs, for complainants. W. A. House, for defendants. RUNYON, Ch. The bill is filed to obtain a decree for specific performance, by the de- fendants, of a contract entered into between the complainants, partners in business, and them, on the 19th of December, 1877, by which the former agreed to construct, equip and finish, for the latter, a single-traclc, nar- row-gauge railroad, and telegraph line in con- nection therewith, from the terminus of the Camden, Gloucester & Mount Ephraim Rail- way to high-water mark in the city of Cape May, with stations, engine and freight houses, machine and repair-shops, turn-tables, water- stations, &c., &c., and all necessary terminal facilities, for $2,000,000, payable in the capital stock and first mortgage bonds of the com- pany. By the contract, the complainants were to complete the work within five months after the bonds -were negotiated and sold at a price not less than ninety cents on a dollar of the par value thereof; and it was stipulated that they should not be sold at less than that price without the consent of both parties. The bill states that the complainants entered •on the work, and proceeded with it from the •date of the contract to the 20th of February following; that there was, at the latter date, due to them, under the . contract, the sum o'f $40,000, or thereabouts; that they were then entitled to have an estimate made, but the defendants refused to make it, or to pay them, or to carry out the contract, -which the com- plainants allege would be of great value to them if performed; and, further, that the de- fendants cannot respond in damages for their refusal to carry out the agreement; and that the complainants could profitably dispose of the bonds and stock stipulated for as payment. The bill prays that the defendants may be de- creed to specifically perform the contract gen- erally, and, also, that they may be required to make the estimate before mentioned, and de- liver bonds and stock to the complainants for the amount which may be found due them ' thereon. The defendants' answer admits the con- tract and declares their willingness to perform it, but alleges their inability to do so by rea- son of the provisions of an act of the legisla- ture of this state (a supplement to the general railroad law), approved on the 19th of Feb- ruary, 1878. By one of those provisions the provision of the original act requiring that the articles of association should not be filed until at least $2,000 of stock for every mile of the proposed railroad should have been subscribed and ten per cent, paid thereon, was altered so as to require that the entire amount of $2,000 per mile shall be paid to the treasurer of this state, to be repaid by him to the di- rectors or treasurer of the company in the manner specified in the supplement, as the work of constructing the railroad shall pro- gress. By the other, the provision of the orig- inal act which authorized the mortgaging of the road, &c., of the company, to secure the payment of their bonds to an amount not ex- ceeding the amount of the paid-up capital stock, was altered by adding a provision that if any person or persons shall issue such bonds to any greater amount than the amount which at the time of such Issue shall have been actually paid up on the capital stock of the company, he, she or they shall be guilty of a misdemeanor, and, on conviction, be punished by fine of not more than $5,000 or imprison- ment at hard labor for not more than three years, or both, at the discretion of the court. These provisions of the supplement were there- in expressly made applicable to corporations already organized under the original act. The defendants state that they have expended all the money received by them on account of their capital stock in the work on the road, and that they are not able to comply with the provisions of the supplement, and that, by the terms of the supplement, their charter Is for- feited, by reason of their failure to comply with the provisions of that act. There are several considerations which for- bid the granting of the relief prayed for in this suit. If this court would undertake the performance of such a contract as that stated in the bill, a contract for building and equip- ping a long line of railroad, building station, freight and engine houses, &c., &c. (and the current and great weight of authority is de- cidedly against it,— Stoi-y, Eq. Jur. § 726; Ross v. Union Pac. R. Co., 1 Woolw. 26, Fed. Cas. No. 12,080; Fallon v. Railroad Co., 1 Dill. 121, Fed. Cas. No. 4,629; South Wales R. Co. V. Wythes, 5 De Gex, M. & G. 880), the dis- ability of the defendants would be a sufficient reason for refusing. Courts of equity will never undertake to enforce specific perform- ance of an agreement where the decree would be a vain or imperfect act. Tobey v. County of Bristol, 2 Story, 800, Fed. Cas. No. 14,065. And the incapacity of the defendant to carry the contract into execution afCords a ground of defence in a suit for specific performance. Fi-y, Spec. Pert § 658. In this case the defendants are willing to perform their part of the contract If they can lawfully do so. They have never refused to issue their bonds and stock to the complain- ants in accordance with the terms of the con- tract, except because of the provisions of the supplement above referred to, under which, they apprehend they may have lost their cor- porate existence, and by which, If their cor- porate existence be not lost, their directors and officers who should act in the matter EQUITABLE EEMEDIES. 237 would be liable to severe and ignominious punishment for so doing. P. L. 1878, p. 23. They have not complied with the provisions of the supplement in reference to the amount to be paid in on their capital stocis;, and have not been able and are not able to do so. Only- ten per cent, of the amount of their capital stocis has been paid in. Their corporate pow- ers are, according to the supplement, extinct, and the corporation is dissolved. P. L. 1878, p. 22. The complainants, however, insist that the supplement is an unconstitutional law; that it destroys their contract, which existed when it was passed, and which was founded on the faith of the original act; that It deprives them of their vested rights thereunder, and that it should be declared to be unconstitu- tional, and its provisions, so far as they are subject to that objection, disregarded. But it is in nowise necessary to consider that ques- tion; for, if there were no other valid objec- tion, this court would not, under the circum- stances of the case, declare that the appre- hensions, or doubts at least, of the defendants, as to the validity of the supplement, are whol- ly groundless, and direct them to proceed, not- withstanding the penalties above mentioned, to issue bonds according to the contract and in violation of the prohibition of the supplement; to subject themselves to indictment for mis- demeanor and the consequences of conviction. It is enough that the legislature has forbidden them to issue the bonds to induce this court to refuse to order them to issue them. But, further, there is at least doubt whether the company still has a corporate existence. Though the court might, if the case were free from these difficulties, direct the defend- ants to make the estimate of work already done prayed for In the bill (Waring v. Rail- way Co., 7 Hare, 482), yet, for the considera- tions already presented, that relief must also be denied. The bill will be dismissed!. 238 EQUITABLE REMEDIES, BECK V. ALLISON. (56 N. Y. 366.) Court of Appeals of New York. April 21, 1874. Action for specific performance of cove- nants to repair contained in a lease executed by defendant to Luke Poole & Co., of prem- ises 44 Vesey street. New York, ■which lease was held by plaintiff as assignee. The facts are stated in the opinion. Andrew Boardman, for appellant. Wm. W. MacFarland, for respondents. GROVER, J. This action was brought by the plaintiff as assignee of a lease made by the defendant of the premises known as 44 Vesey street, in the city of New York, for two years, containing a provision for a re- newal, at the option of the lessees, for a fur- ther term of three years, by giving the lessor notice as therein provided, which notice had been given as therein provided, for the spe- cific performance of an agreement made by the lessor to repair damages caused by fire. The lease provided that all other repairs were to be made by the lessees, and the case shows that this agreement of the lessor was inter- lined after the preparation, but before the ex- ecution of the lease. The case shows that the premises were nearly destroyed by fire while in the occupation of the plaintiffs, under the lease, so as substantially to require rebuild- ing; but the trial judge found that they could be repaired, and the defendant must, after af- firmance of the judgment by the general term, be held in this court concluded by this finding. The judge further found that a rea- sonable time for doing the requisite repairs was four months. The question is thus presented whether equity will enforce the specific performance of an agreement for making repairs of this character. The learned chief justice who gave the opinion of the general term, after an elaborate and learned examination of the English authorities, arrived at the conclusion that equity would specifically enforce" the agreements for making repairs. In this he differs from Judge Storj', who after an ex- amination and citation of some of the lead- ing cases relied upon by the learned judge, adopts precisely an opposite conclusion. 1 Stoiy, Bq. Jur. 726, §§ 720, 727. The ac- curacy of the conclusion of Judge Story is strongly corroborated by the fact that in this state, and so far as I am aware, in this coun- try, no court of equity has ever attempted the exercise of any such power. The same conclusion is substantially adopted by a learned English author of a work upon this particular branch of equity jurispradence, who refers to most of the cases relied upon by the learned judge. Fry, Spec. Perf. 19, § 48. I shall refer to only a few of the cases cited by the judge, although I have examined nearly all. City of London v. Nash, 1 Ves. 11, more fully reported, 3 Atk. 512, decided by Lord Hardwicke, is much relied upon in the opinion. In this case the chancellor stat- ed that equity would enforce the performance of a building contract, for the reason that it was an entire thing, but not a contract for re- pairs. While I am unable to see if the former is thus enforced, why the latter should not be, for the reason that the former would be at- tended by about the same difficulties as the latter, and a legal remedy would be equally applicable to both, yet the case is authority against the conclusion of the general term in the present ease, as this is an agreement for making repairs. It may be further remark- ed, that a specific performance of the con- tract to rebuild was not decreed, the chancel- lor being of opinion that that would be in- equitable under the circumstances, and the party injured by the breach of the contract was left to his legal remedy for the recovery of damages. The judgment given is no au- thority for enforcing the specific performance of contracts to build. In the subsequent case of Lucas V. Commerford, 3 Brown. 16G, it was expressly held by Chancellor Thurlow, that there could not be a decree to rebuild, as the court could no more undertake the con- duct of a rebuilding than of a repair. I think the soundness of the reason given a full an- swer to the criticism of this chancellor con- tained in the opinion with a view to impair the authority of the judgment given in this case. In Rayner v. Stone. 2 Eden, 128, a demurrer to a bill for the specific perform- ance of covenants contained in a lease to re- pair hedges and the mansion house, was sus- tained by Lord Worthington. Among the reasons assigned for the judgment was that the court had no officer to see to the per- formance, which the chancellor said was to him very strong. He asks, how can a master judge of repairs in husbandry, etc.? He adds that it is said that this is an equitable right, and that it was insisted that he should put the plaintiff in a better state than what he could be at law, but the court had no juris- diction to strip the defendant of the right to try the supposed breach of covenant at law. Besides, how can a specific performance of things of this kind be decreed? The nature of the thing shows the absurdity of drawing these questions from their proper trial and jurisdiction. These reasons apply with all their force, to an attempt to enforce the spe- cific performance of the contract in question. The court must first adjudge what repairs are to be made and the time within which they are to be done. When this is accomplished more serious difficulties remain. The idea that a court can appoint a receiver to take possession of the property and cause the work to be done, with money furnished by the defendant, would be, in the language of Lord Worthington, absurd. The mode, if un- dertaken, must be for the court first specific- ally to determine what shall be done, and when and how, and then to enforce perform- ance by attachment, as for contempt in case of alleged disobedience. Then will arise not EQUITABLE REMEDIES. 239 only the question, whether there has been substantial performance, and if found not, whether the defendant had any such excuse therefor as will exonerate him from the con- tempt charged, and in case of performance, but not in as beneficial a manner as ad- judged, the compensation that should be made for the deficiency. It is obvious that the execution of contracts of this description under the supervision and control of the court would be found very difBcult if not im- practicable, while the remedy at law would in nearly If not in all cases afford full re- dress for the injury. It is for these reasons that such powers have never been exercised in this country. It \^•as for these reasons that the court in South Wales R. Co. v. Wythes, 5 De Gex, M. & G. 880, refused to decree the specific performance of a contract to construct a branch railway. The case en- forcing the specific performance of an agree- ment made by a railway company with a land-owner, to construct an arch under their road for his use, does not militate against this doctrine. Damages in an action at law would not, in such a case, afford adequate redress. The same may be said of the case enforcing a contract for the construction of a wharf, etc. The want of an adequate remedy at law has always been regarded as a proper ground for sustaining a bill in equity. See Wilson v. Furness R. Co., 9 Eq. Cas. 28. What was said by Lord Hardwicke irt Rook v. Worth, 1 Ves. Sr. '460, was intended to ap- ply to the particular facts of that case, which related to questions as to the rights of tenant in tail and the reversioner, which could not well be protected in a legal action. But I do not deem it necessary further to piu-sue the investigation. As I understand the English cases, the power of enforcing the specific performance of contracts for repairs is not now exercised by courts of equity there, and there is no authority for its exer- cise by the courts of this state. This being so, a court of equity had no jurisdiction as such of the action. But under the Code a plaintiff may unite in the same complaint several causes of ac- tion, both legal and equitable, arising out of the same transaction. Code, § 167, subd. 1. In the present case the rights of the plaintiff under the agreement were stated in the com- plaint, and the failure of the defendant to perform the same was also set out. The par- ties proceeded to trial upon the claim made by the plaintiffs for a specific performance of the contract. The trial judge found that the facts were not such as to authorize the grant- ing of this relief, but as some evidence show- ing the value of the plaintiffs' interest in case of a prompt repair of the premises had been given, the judge proceeded to give judgment, that the lease should be canceled, and the plaintiffs should recover of the defendant the value of his interest in the premises, upon the basis of the repairs to the building having been completed in a reasonable time after the fire. To this the defendant's counsel except- ed. When the judge found that the plaintiffs were not under the facts of the case entitled to the equitable relief demanded (specific per- formance), the case as an action in equity was terminated. It then appeared that the plaintiffs never had any equitable cause of action against the defendant, adjudging a cancellation of the lease was wholly imma- terial. This was the necessary result of a recovery by the plaintiffs of their damages for the unexpired term, consequent upon the refusal of the defendant to perform his agree- ment to make the repairs. The plaintiffs could not recover these and retain any rights under the lease. Such a judgment in favor of the plaintiffs would bar an action brought by the defendant against them for rent. Under a system vesting equity and legal ju- risdiction In different tribunals, the former after determining that the complainant had no equitable cause of action, did not retain jurisdiction for the purpose of giving such relief as he would be entitled to at law. Kempshall v. Stone, 5 Johns. Ch. 193, and cases cited. It was only where the plaintiff was entitled to equitable relief upon the case made by him, but which could not he award- ed, for the reason that it was not in the pow- er of the defendant to perform the judgment granting it, or that such relief would be harsh and inequitable under all the circum- stances of the case, that the court, as a sub- stitute therefor, awarded an equivalent in damages, thus ending the controyersy, in- stead of sending the parties to a court of law for that purpose. That was not this case. There was no incapacity of the defendant to specifically perform the contracts if the plain- tiffs were entitled to such relief. The court should have held that they were not so en- titled upon the case made by them. This as before remarked terminated the case as a suit In equity; and under a system vesting equitable and legal jurisdiction in different tribunals, the complaint should have been dis- missed. But jurisdiction of both classes of action is now vested in the same tribunal, the mode of trial only being different. If the complaint contains an equitable and also a legal cause of action, if the plaintiff upon the trial of the former fails in establishing a case entitling him to relief, he has still a right to a trial of the legal cause of action set out. The defendant is not therefore entitled to a dismissal of the complaint until the latter has been tried. In the present case, the com- plaint stated the agreement of the defendant to make the repairs, and the neglect of the defendant to perform it; it failed to state §ome other facts essential to the right of the plaintiffs to recover the damages there- by sustained. The complaint might therefore have been properly regarded as setting out an equitable cause of action only, and upon the failure of the plaintiffs in establishing such a cause, properly dismissed. But it was in the power of the court, upon terms deem- 240 EQUITABLE REMEDIES. ed just, to allow an amendment of the plead- ings, so that a legal remedy might be had in the action, as from the lapse of time the stat- ute of limitations may bar another action. I think an opportunity should be given to the plaintiffs to obtain a legal remedy in this by the proper amendment, and securing to the defendant his right of trial by jury. The judgment appealed from must be re versed, and a new trial ordered. All concur. Judgment reversed- EQUITABLE KEMEDIES. 241 LEAR V. CHOUTEAU et al. (23 HI. 89.) Supreme Court of Illinois. Nov. Term, 1859. Error to circuit court, St. Clair county; W. H. Underwood, .Judge. This was a bill in chancery, by Pierre Chou- teau, Jr., James Harrison and Felix Valle, against Ferdinand Lear, to compel a convey- ance to the complainants of certain coal and coal lands, and privileges connected there- with, purchased by the defendant, as was al- leged, in trust for the complainants. The attorney for the complainants testified that he took down the notes from which the exhibit was drawn from the directions of Charles P. Chouteau and the defendant, when together in his office; that he read the same to the defendant, and said he believed It em- bodied the whole agreement, and all that was necessary; that the defendant replied, he be- lieved it did; that the defendant was slightly deaf; that when the agreement was drawn, the "defendant expressly desired that some time should be limited in it, in which he should be required to commence operations, and they fixed upon a month, that is to say, this is what I understood Lear's wish at the time." The agreement or exhibit contained the fol- lowing clause: That it "should not take ef- fect until after one month's notice given to said Lear, by Chouteau, Harrison and Valle, to that effect, unless the parties should mu- tually consent to a shorter time for the com- mencement of operations." Lear never signed this agreement. The opinion states the other material facts. Koerner & Niles, John M. Krum, and E. W. Decker, for plaintiff in error. George Trum- bull, for defendants in error. CATON, C. J. (after stating the facts). There is no pretense for a resulting trust in this case. The interests in the lands in con- troversy were purchased by Lear not for cash down, but on time, to be paid for as the coal should be taken out, and Lear gave his per- sonal obligations for the payment of the pur- chase money, and took whatever title was taken to himself. The agreement under which these purchases were made could not create a resulting trust, which can alone arise from the fact, that a purchase is made in the name of one, while the purchase money belongs to another. Here no part of the purchase money has been paid, and hence it is impossible that a resulting trust could arise. The subject matter of this controversy is coal in lands, with the right to take and re- move it therefrom. This is an interest in lands, and by the statute of frauds all con- tracts concerning it are required to be in writing, in order to be binding on the parties, yet the well settled rules of both law and equity require that those who would avoid the obligations of such parol contracts by rea- son of the statute, must set up the statute by way of defense, or rely upon it by pleading in some way, and if they will not do this, they thereby impliedly waive the objection, that the contract was not in writing. Here the defendant has not relied upon the statute in his answer, and it is now too late for him to> say that it was not in writing. We must now consider this case as if no such statute exist- ed. We shall assume, for the purposes of this decision, that the testimony of Mr. Hill shows that Lear assented to the paper exhibit A, as- containing the terms of the agreement between the parties under which these lands were pur- chased, and for which he agreed to assign> the contracts to the complainants, while we confess that we are by no means satisfied that such admission was understandingly made, or that Mr. Lear fully understood the effect of the paper. But we shall place our decision upon the terms and provisions of the paper as exhibited. It shows such an agreement as no court of chancery ever ought to enforce specifically, even though the de- fendant agreed to all its terms. It is not ev- ery contract, although fairly and even under- standingly made, which a court of chancery will decree to be specifically performed. Shall we compel Lear to assign these purchases for the consideration of the covenants and obliga- tions which the complainants propose to as- sume by the execution of this paper? It is a paper by which Lear agrees to superintend the opening and working these mines and to devote all his time thereto, for which serv- ices the complainants are to pay him seventy dollars per month till the mines are open, and after that, two mills per bushel for the coal which shall be taken out and marketed. Even if the contract stopped here, we cannot say that it should be specifically performed. This- contract makes no provision for the payment of the purchase money. By the original con- tracts to be assigned by Lear to the com- plainants, Lear had boimd himself in personal covenants to pay fifteen dollars per acre for all the coal in all these lands, and this paper- leaves him still obliged to pay this rent or purchase money. Was such the intention of the parties? Did Lear intend to bind himself still to pay this money? Probably not, al- though such is the effect of the papers which we are called upon to compel him to execute. But the last clause in this exhibit "A," leaves it without the least particle of value to Lear, and places him Entirely at the mercy of the complainants. It is this: "This agreement is not to take effect until after one month's no- tice given to said Lear by Chouteau, Harri- son & Valle to that effect, unless the parties hereto shall mutually consent to a shorter time for the beginning of operations." Here then the contract which constitutes the sole consideration for these assignments is to re- main a dead letter, till the complainants choose to impart to it vitality by giving the^ notice specified. Till then, it is not to take effect; it is to have no existence; it is as if HUTCH. E(5.JUR.- -16 242 EQUITABLE KEMEDIES. It had never been written, except that Lear is forever bound to hold himself in readiness on one month's notice to enter into the serv- ice of the complainants on the terms speci- fied. Of vchat wortb is such a paper to Lear— what consideration is it for the assign- ment of these purchases, which had cost him, no doubt, considerable labor and scientific skill as a collier, as the case shows, and also for which he had executed his obligations amounting in the aggregate to a very large sum? Nothing; absolutely nothing, and even worse than nothing, for by it his hands would be tied up so that he could not engage in other enterprises of a permanent character, but must ever stand with his hands folded, await- ing the pleasure of these gentlemen. In such a contract as this there is neither reciprocity, fairness nor good conscience, and if the de- fendant was simple enough to consent to such an agreement, a court of equity will not com- pel him to execute it specifically, but leave the parties to their remedies at law, which has no conscience and knows no mercy. In order to induce a court of equity to enforce specifical- ly a contract, It must be founded on a good consideration. It must be reasonable, fair and just. If its terms are such as our sense of justice revolts at. this court will not enforce it, though admitted to be binding at law. Such Is the character of this agreement- there is not one reciprocal feature in it. Lear is required to pertorm every thing on his part, and binds himself to the performance of future acts unconditionally, while the com- plainants are absolutely bound to nothing. Some men delight in holding all the strings in their own hands— holding others entirely at their mercy, that they may make a merit of justice and call it generosity, or crush down their victim with a heavy hand and plead the letter of the bond for a justification. Such traits of character and such transac- tions are as abhorrent to equity as they are detestable to the common appreciation of mankind, and will look in vain for favor at the hands of this court. "We will not say that these complainants are fully obnoxious to this censure, but this transaction looks very like it if they fully comprehend the scope of the agreement which they pro- pose to give the defendant and the position in which they are seeking to place him. The decree is reversed and the bill dismiss- ed. Decree reversei EQUITABLE EEMEDIES. 243 JONES V. NEWHALL, (115 Mass. 244.) Supreme Judicial Court of Massachusetts. Suffolk. June 20, 1874. Bill by Leonard S. Jones against Benjamin B. Newball 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; Hil- liard v. Allen, 4 Cush. 532, 535; Pratt v. Pond, 5 Allen, 59; Glass v. Hulbert, 102 Mass. 24, 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 difCerence 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 afCord 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 plaintifC 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 plaintifC 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- 244 EQU1TA13LK BEMEDIES. ment due. In equity he can have no decree beyond that. He cannot come into equity to obtain precisely what he can have at lavp. Howe V. Nickerson, 14 Allen, 400, 40G; Jacobs V. Peterborough & S. R. Co., 8 Cush. 223; Gill V. Bicknell, 2 Cush. 355; Eussell 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. § 64i; 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. Wms. 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 Ky. 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. 245 5 Allen, 59. It has also been repeatedly beld that, in reference to the range of jurisdic- tion conferred, the several statutes were to be construed strictly. Black v. Black, and Chax-Ies 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 plaintifC 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, 5-t-j; Baker V. Biddle, Baldw. 394, Fed. Cas. No. 7G4. Bee, also. Woodman v. Freeman, 25 Me. 531; I'iscataquis 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; Blspi 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. WooUaston, 2 P. Wms. 154, and Gvpen 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 Gush. 181, 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. Smith, 10 Allen, 448; Bassett V. Brown, 100 Mass. 355, 105 Mass. 551, 500. The demurrer, therefore, must be sustain- ed, and the bill dismissed. 246 EQUITABLE REMEDIES. MARGRAF v. MTJIR. (57 N. Y. 155.) Commission of Appeals of New York. Jan. Term, 1874. Appeal from order of the general term of the supreme court in the Second judicial de- partment, reversing a- judgment in favor of plaintiff, entered upon the report of a ref- eree and granting a nev? trial. This action was against the vendor for spe- cific performance of a contract to convey a lot of land, situate in Westchester county, and for damages for breach of the contract in case it could not be specifically performed. The defendant is the widov7 of Alexander Muir, who died intestate in 1858, seized of a lot of land in Westchester county. He left six children, three of whom were yet minors, when the contract in question was made. The defendant, with her children, resided in Brooklyn, and the plaintiff resided in West- chester county, near the lot in question. She did not know what the lot was worth, but he knew it was worth $2,000 in consequence of its recent rise in value. This knowledge he concealed from the defendant and con- tracted with her to purchase it for $800. She contracted in her own name, expecting that those of her children who were of age would unite with her in the conveyance, and that she could get from the court the right to con- vey on behalf of her minor children. Before the making of the contract, the lot had been sold for taxes, and a lease thereof given in pursuance of such sale. At the time of mak- ing the contract, the plaintiff knew that the lot belonged to defendant's children, and that proceedings would have to be taken in some court to give her the right to convey; and he also knew that the land had been sold for taxes, and this latter fact she did not know. The referee found that the lot was worth $2,000, and ordered judgment for the plain- tiff for $1,200, the difference between the con- tract price and the value of the lot. Fur- ther facts appear in the opinion. John Flanders, for appellant. Samuel J. Glassey, for respondent. EARL, 0. This was an unconscionable contract and could not be specifically enforced on the ground of the inadequacy of the con- sideration. The plaintiff lived near the lot and knew its value. The defendant lived at a distance and did not know its value. While the plaintiff did not make any misrepresenta- tions, he concealed his knowledge of the re- cent rise in value of the lot and took advan- tage of her Ignorance, and thus got from her a contract to convey to him the lot for but a little more than one-third of its value. Such a contract, it is believed, has never yet been enforced in a court of equity in this country. When a contract for the sale of lands is fair and just and free from legal objection, it is a matter of course for courts of equity to specifically enforce It. But they will not de- cree specific performance in cases of fraud or mistake, or of hard and unconscionable bargains, or when the decree would produce injustice, or when such a decree would be inequitable under all the circumstances. 2 Story, Eq. Jur. § 769; Will. Eq.- Jur. 262; Osgood V. Franklin, 2 Johns. Oh. 1, 14 Johns. 527; Seymour v. Delancy, 6 Johns. Oh. 222, 3 Oow. 531. Formerly, in case courts of equity refused specific performance on the ground of mere inadequacy of consideration, the party claim- ing performance still had his remedy by a new action in the courts of law for damages for the breach of contract, and in such courts mere inadequacy of consideration, not so great as to be evidence of fraud, was never a defense. Hence if this action had been brought before the Oode in the court of chan- cery, the equity of the bill being denied, ju- risdiction of the action would not have bee-j retained to award such damages for a breach of the contract as could be recovered in a court of law. But the plaintiff would have been obliged to commence a new action at law to recover his damages. This practice has however been changed by the Code; ana now, equitable and legal jurisdiction being united in the same court, a party can unite in the same complaint both legal and equita- ble causes of action arising out of the same transaction. Code, § 167. I suppose it is perfectly competent for a party to set forth in his complaint a cause of action for specific performance of a contract to convey land, and also a cause of action for damages for breach of the contract, in case for any reason it cannot be performed. If upon the trial, it turns out that for any reason the equitable relief cannot be granted, the plaintiff can yet recover his damages if he is entitled to any. Barlow v. Scott, 24 N. Y. 40; Bradley V. Aldrich, 40 N. Y. 504; Pumpelly v. Phelps, Id. 59. In this case the referee denied the equita- ble relief, but awarded damages for the breach of the contract, and In this he did not err, provided he adopted the proper rule of damage. The referee allowed the plaintiff as damages the difference between the con- tract-price and the value of the land, thus placing him in the position he would have been if the contract had been performed. In this I think he erred. The general rule in this state, in the case of executory contracts for the sale of land, is that in the case of breach by the vendor, the vendee can recover only nominal damages, unless he has paid part of the purchase-money, in which case he can also recover such purchase-money and interest. Mack v. Patchin, 42 N. Y. 167; Bush V. Cole. 28 N. Y. 261; Pumpelly v. Phelps, supra. See, also. Lock v. Furze, L. B. 1 0. P. 441; Engle v. Fitch, L. R. 3 Q. B. 314. But to this rule there are some ex- ceptions based upon the wrongful conduct of the vendor, as if he is guilty of fraud or caa EQUITABLE REMEDIES. 247 convey, but will not either from perverseness or to secure a better bargain, or if lie has covenanted to convey when he knew be had no authority to contract to convey; or where it is in his power to remedy a defect in his title and he refuses or neglects to do so, or when he refuses to incur such reasonable ex- penses as would enable him to fulfill his con- tract. In all such cases, the vendor is liable to the vendee for the loss of the bargain, un- der rules analogous to those applied in the sale of personal property. Here no fraud was perpetrated on the vendee. He knew that the vendor did not have title to the lands, and that she could not convey to him without authority from some court; and he knowing that the land was worth $2,000, may be presumed to have known that no au- thority could be obtained to convey the land for $800, without in some way nracticing an imposition upon the court. This latter knowl- edge she did not have. Believing, as she did, that $800 was a fair price for the land, she had no reason to doubt that she could ob- tain authority to convey. Further than this, he knew that the land had been sold for taxes and a lease given. This she did not know. Under these circumstances, she could not get authority from the court to make a convey- ance upon behalf of her minor children, and it appears that she could not procure the tax title. Hence, there is no ground for imput- ing to her any blame for not making such a conveyance as her contract called for. These facts do not caU for the application of an ex- ceptional rule of damages in this case. The case of Pumpelly v. Phelps, supra, is the widest departure from the general rule of damages in such case that is to be found in the books. In that case it was held, that where the vendor, in an executory contract for the conveyance of land, knew at the time he made the contract that he had no title, although he acted in good faith, believing that he could procure and give the purchaser a good title, he was yet liable for the differ- ence between the contract-price and the val- ue of the land. But there are two featm-es which distinguish this case from that. In that case, the vendee did not know that the vendor had no title. Here, he did know it, and he knew also that she could get no title without imposing upon some court. Here al- so, even if she could have procured the au- thority of some court to convey, she still would have been unable to give such a title as her contract called for, on account of the outstanding tax title which was unknown to her when she contracted and which she could not procure. The plaintiff agreed, subsequently, to the making of the contract, if defendant would abate $100 from the contract-price, that he would, at his expense, conduct the proceed- ings to procure from the court authority to convey, she co-operating with him and would take a conveyance subject to the tax title. This did not alter the position of the parties so as to affect this case. She was in no sense culpable in not co-operating with him in im- posing upon some court, and to shield her from the damages claimed in this case, she was not obliged to allow him any thing on accoimt of the tax title. I am therefore of opinion that the referee erred in the rule of damages applied. The recovery should have been confined to the purchase-money paid ($25) and the interest thereon. The general term did not therefore err in reversing the judgment, and its order should be affirmed and judgment absolute ordered against the plaintiff, with costs. All concur. Order affirmed and judgment accordingly. 248 EQUITABLE REMEDIES. BIRD V. HALL et al. (30 Mich. 374.) Supreme Court of Michigan. Oct. Term, 1874. Appeal from circuit court, Marquette coun- ty; in chancery. Parks & Hayden and Mitchel & Pratt, for complainant. Ball & Black and C. B. Grant, for defendants. COOLEY, J. A short statement of this case, as it is set forth in the bill, is, that Bird contracted to purchase a lot of land of Hall, and has partly paid for it; that he then contracted to sell the same land to McPee, who also paid for it in part and was put in possession, the balance of the purchase price not being yet due; that Hall then, in disre- gard of complainant's rights, has given Mc- Fee a conveyance; that McFee is irresponsi- ble, and complainant by this conveyance is deprived of his security for the balance which is to become due to him hereafter from McFee; and the Dill prays that McFee be de- creed to convey to complainant in specific performance of the contract of Hall, in whose shoes as his assignee he now stands. It seems clear that a conveyance as pray- ed by the bill would be strictly equitable, as it would place the parties where they have agreed to place themselves by their contracts. Complainant was entitled to a conveyance from Hall on payment of the balance due him, which he has offered to make, and he was then entitled to hold the title until he is paid in full by McFee. This is conceded by defendants, but they insist that complainant has at law an ample remedy against Hall, if he suffers a loss in consequence of Hall's conveyance to McFee, and that as it is not alleged that Hall is irresponsible, there is no sufficient ground for equitable interference. What complainant loses by this convey- ance is his security for the ultimate payment by McFee. Whether a loss of the security would result in loss of the debt cannot yet be determined, and any present right of ac- tion at law against Hall would give him nominal damages only. A right of action against him at a future day, after the per- sonal remedy against McFee had proved in- effectual, might or might not find him in condition to respond, even if it be conceded that at present he is entirely responsible. Complainant cannot justly be compelled to run this risk. These parties cannot be allow- ed to deprive him of his security and turn him over to the contingencies of successive suits at law after his demand has matured. He has a right to be protected against the suits and the contingencies by having ample and effectual security in his own hands, and the remedy in equity was alone adequate to the case. The decree must be reversed with costs, and the cause remanded, with directions to the court below to overrule the demurrer and allow the defendant McFee to answer. The other justices concurred. EQUITABLE REMEDIES. 249 MERCHANTS' BANK v. THOMSON. (55 N. Y. 7.) Coxirt of Appeals of New York. Nov. 11, 1873. Appeal from order of general term of the supreme court in the Fourth judicial depart- ment, affirming conditionally an order of spe- cial term directing Theodore F. Tuttle, a pur- chaser at a foreclosure sale, to complete his purchase. This action was to foreclose a mortgage ex- ecuted by the defendant, William P. Thomson, to Guevera M. Waite, conditioned for the payment of $1,070 in one year from date. Helen A. Thomson, the wife of the mortgagor, was made a nominal party defendant. There were, however, no averments in the complaint relating to her. She did not join in the mort- gage, which was upon the undivided one- fourth part of certain real estate situate in the city of Watertown. Fersonal service was had upon all the defendants, and no defence was interposed by any of them. The whole amount of the mortgage was due. The usual decree of foreclosure was entered May 10, 1872. A. W. Wheelock, sheriff of Jefferson county, was directed by the decree to conduct the sale, which took place June 6, 1872. The premises were struck off to Theodore F. Tuttle, for $3,350, he being the highest bid- der. The purchaser requested a delay for a short time; this was granted, and at the sug- gestion of the sheriff that a speclfled time should be stated by the terms of sale, it was agreed to be completed on the tenth of June. After the sale Tuttle requested to be released, upon the ground that his bid was too high, but this plaintiff refused and Tuttle was repeat- edly urged to complete the sale. On the twen- ty-fifth of June, the sheriff formally tendered to him a deed of the premises and demanded payment. On the 5th of July, 1872, an order was made by Mr. Justice Mullin, requiring Tuttle to show cause at an adjourned special term, on the tenth of the same month, why he, Tuttle, should not pay the amount of his bid, and receive from the sheriff a deed. On that 4ay a hearing was bad at said special term; Tuttle appeared and opposed on the ground of •defect of title, because of the Inchoate dower right of Helen A. Thomson. An order of ref- erence was granted to a referee to inquire as to the facts and circumstances occurring at the sale, etc., and report the same, with his opinion. Pursuant to this order, the testi- mony of Tuttle and others was taken by said referee, who reported the same, with his opin- ion that Tuttle should be required to receive the sheriff's deed and pay the amount of his bid. Pending the taking of the testimony be- fore the referee, Helen A. Thomson, for the purpose of relinquishing her contingent dower Tight, executed a quit-claim deed of the prem- ises to J. F. Moffatt, who, with his wife, also ■executed a quit-claim deed to Tuttle. Upon motion to confirm the report, the special term •ordered that Tuttle complete his purchase by Teceiving the sheriff's deed of the premises and the quit-claim deeds, and paying the pur- chase-price, with interest from day of sale. Upon appeal to the general term it was or- dered that such order be reversed, unless plaintiff should, within thirty days, deliver to Tuttle a valid release of the dower right of the mortgagor's wife, together with the sher- iff's deed; if such release and deed were so delivered, then order affirmed. L. J. Dorwin, for appellant. Samuel Hand, for respondent. FOLGER, J. When Thomson executed the mortgage which was foreclosed, he was mar- ried. The mortgage was not given for the pur- chase-money, nor did his wife join in execut- ing it. Hence it did not affect her inchoate right of dower in the premises. Though she was made a party to the action of foreclosure, she was not barred of that right by the judg- ment therein. There is no allegation in the complaint that the mortgage was prior, or su- perior, or hostile, to her right or interest. There is the general clause in the judgment that the defendants be foreclosed of all right in the premises. But her inchoate right of dower was not in issue, and there could be no valid adjudication adverse to it. Moreover a foreclosure action is not the proper mode to litigate rights claimed in priority or hostility to the mortgage. A judgment passing upon them is erroneous. A person claiming dower by title paramount to the mortgage cannot be brought into court in such a suit to contest the validity of her dower. Lewis v. Smith, 9 N. Y. 502. The position is the same as if she had not been made a party to the fore- closure action. The title made by the referee's sale in the action was subject then to this inchoate right of dower. And that was the sole objection to the title, made by the purchaser. It is or- dinarily a good objection. AVhere there is an outstanding inchoate right of dower in the premises, unknown to the purchaser at the time of the sale, the court will not compel him to take a deed and complete his purchase. Fltts v. Hoitt, 17 N. H. 530; Mills v. Van Voorhies, 20 N. Y. 412. And see Simar v. Cau- aday, 53 N. Y. 298. And this is so in judicial sales when the sale is not made at the risk of the purchaser. McGown v. Wilkins, 1 Paige, 120; Spring v. Sandford, 7 Paige, 550. The attempt to obviate this objection by the exe- cution and tender of the quit-claim deed from the wife to Moffatt, and of that from him to the purchaser, though it showed the willing- ness of the vendor to meet the requirements of the referee and of the court at special term, was futile. Moffatt was a stranger to the title. A quit-claim or release, by a married woman to a stranger to the title, is ineffectual, to di- vest her of an inchoate right of dower. Mal- loney v. Horan, 49 N. Y. Ill; Marvin v. Smith, 46 N. Y. 571. But a release from the wife, executed directly to the purchaser, in connection with the sheriff's deed to him, will free the premises and give him a good 250 EQUITABLE REMEDIES. title thereto. The order of the general term directs this. There is no suggestion but that this direction has been or will be followed, and we must treat the case as if it had been done. Then the only ground upon which the pur- chaser now stands, in declining to complete his contract, is that so much time has elapsed since the sale, that he may not be compelled to take the premises, although the title be free from objection. Doubtless the later tendency of courts of equitable jurisdiction Is to hold that time is material, and is in many eases of the essence of the contract. Inexcusable laches and delay will debar a party from the relief which, they being absent, he might have by a judgment for specific performance. This ques- tion has been much considered of late in this court. Delavan y. Duncan, 49 N. Y. 485; Finch V. Parker, Id. 1; Hubbell v. Von Schoening, Id. 326; Peters v. Delaplaine, Id. 362. It seems that whether specific perform- ance shall be adjudged depends much upon the circumstances of each case, of which the lapse of time unexcused is one. It is not yet the rule however that the time fixed In a con- tract for the performance of it, is necessarily of its essence. The mere efflux of time will not of itself always lead to a denial of relief. When the lapse of time is occasioned or ac- companied by a refusal or a failure to claim or act under the contract, and is so great or of such characteristics as to amount to a waiver or abandonment of the contract, the party who comes not into court until after such delay will have forfeited all claim to eq- uity. Can this be said of the vendor in this case? The sale was made on the 6th day of June, 1872. Bjr the conditions of sale the time for the completion was, at the request of the purchaser for delay, stated to be on the 10th day of that month. It is evident however that this day was not deemed essential. The sher- iff wished a memorandum of the sale, that there might be no misunderstanding of the ■ terms, and the 10th day of the month was named in it but not as peremptory. A few days after the day of sale the purchaser made known a desire to be relieved from his bid, but put his wish upon the ground of his bid being too large. He was not relieved nor was he in anywise led to suppose that he would be. On the contrary, frequent claims were made upon him to complete his contract. On the 2oth day of that month a formal tender was made to him of a deed by the sheriff, and a demand for perfoi-mance. On the 5th day of July, 1872, on his refusal to perform, these proceedings were commenced to compel performance by him and they have been pending ever since. Certain- ly there is no delay here which from its length or other characteristic indicates an intention in the vendor to waive or abandon the contract. Rather the vendor showed himself in the oft-quoted language of Lord Alvanley (Mil- ward V. Earl of Thanet, 5 Ves. 720, note), "de- sirous, prompt and eager." The vendor to be sure was not "ready," which is a part of the phrase in that case. But it is noteworthy, that it was not until after compulsory proceedings- were begun against the purchaser, that he raised the objection to the title that it was in- cumbered with an inchoate right of dower. Before that his refusal was put only upon the- excess of his bid over the real value of the lands; a claim which is not shown to be well founded. It thus appears that up to the com- mencement of proceedings to compel perform- ance and for a time after that all delay arose from either the indecision of the purchaser in determining whether he would or would not take the land or from an untenable ohjection. taken by him. In such case and whenever the delay is attributable to the party resisting per- formance, he will not be allowed it as a de- fense. Monro v. Taylor, 3 Macn. & G. 713- 723; Morse v. Merest, 6 Madd. 26; Spurrier V. Hancock, 4 Ves. 667. Nor does it appear from the papers that the lapse of time which has occurred since the commencement of the proceeding is to be laid at the door of the- vendor alone. The order of reference to take proofs seems to have been granted on the re- quest of the purchaser, and to enable him to establish his objections. If there has been de- lay in executing that order before the referee- (and there seems to have been a greater lapse of time there than elsewhere), the purchaser is not more exempt from blame therefor than the vendor. And besides that, had the true- and at that time the only reliable objection of the purchaser, that made to the title, been put forth in the fijst instance as the ground for a refusal to perform, the vendor is not to be de- feated if within a reasonable time thereafter he takes proceedings to test the validity of the objection. Southworth v. Bishop, etc., 8 Hare, 212; Paton v. Rogers, 6 Madd. 256. Still less can a vendor be said to be dilatory who by the- prompt initiation of compulsory proceedings forestalls and provokes an objection to his title, which when made he at once sets about to obviate and does obviate to the satisfaction of each tribunal in turn before which the mat- ter comes. If a party comes recenti facto, for- a specific performance, the suit is treated with indulgence and generally with favor by the court. Marquis, etc., v. Boore, 5 Ves^ 719, and cases cited in note. See, also, 2 Sugd. "\^end. 30 et seq.; 1 Story, Eq. Jur. § 777. We do not think that the vendor is to be barred of its relief by reason of the mere efflux of time since the sale. It is stated in the text-books and in the- cases, that if by reason of delay arising from an imperfection of title, the circum- stances of the transaction and of the parties- have materially changed, so that equal jus- tice may not be done to both by adjudging: specific performance, judgment therefor will not be given. See Taylor v. Longworth, 14 Pet. 172, per Story, J. And it is intimated in one of the points of the appellant that by reason of the defect of title he has been un- able to secure a loan upon the premises with which to pay the purchase-money; that the- EQUITABLE REMEDIES. 251 property lias greatly depreciated in value; that at the time of the sale he could have re- sold without loss, and that now the property is unsalable. There are no facts presented in this case v^hich sustain the intimations of the appellant's point and afford a basis upon which he may rest the application of this rule in his behalf. Nor is any authority cited that without such facts shown there will be a presumption that the circumstances have materially changed in the time elapsed, so that It will be of evil to the defendant to now hold him to his contract. It is said by Bronson, J., in Jackson v. Edwards, 22 Wend. 498-510, to the effect that it needs not proof of a change of circumstances, to show that delay in perfecting the title must be inju- rious to the purchaser, but that the bare fact of delay. Inasmuch as that it of necessity prevents a purchaser from dealing with the property as his own, excuses him from ac- cepting the title when at last it is perfected. it Is to be observed however that there was in that case proof put in of a serious change in the circumstances subsequent to the sale. The remarli of the learned judge was obiter. Sentor Verplanck, the only other member of the court who delivered an opinion, concurred in the result arrived at by Bronson, J., as to the effect in that case of the material change of circumstances which had taken place. But he puts his conclusion upon the facts as shown by the proofs, and holds that from these the court below vras warranted in con- cluding that the delay had injuriously af- fected the purchasers. I am unable to find that the dictum of Bronson, J., has ever been cited with approval; though in McKay v. Carrlngton, 1 McLean, 50-60, Fed Cas. No. 8,841, it is said that it may be presumed that the embarrassment of the title, and the fail- ure to obtain possession of the land for a number of years, essentially injured the in- terests of the purchaser by preventing a sale by him. If the dictum In Jackson v. Edwards is to be adopted as a rule, it will be applicable to every case, where there has been any lapse of time occasioned by a remediable defect of title, and the purchaser resists performance. And this would be to set aside a current of authority, that where the vendor comes in a reasonable time to enforce the contract, prepared to obviate the objections made to his title, he shall have relief. 1 Story, Eq. Jur. § 777. It Is well recognized as one of the grounds on which a court of equity adjudges a spe- cific performance, that by lapse of time It has become impossible to strictly perform the contract, and so the party has lost his remedy at law. But if the very lapse which gives occasion for the court to interfere may be used to prevent its action, without any proof that the lapse has been of detri- ment, this ground of Interference is effectu- ally done away with. Time, though not or- dinarily of the essence of the contract, may become so if, by its effluxion, a change of value, or other material change of circum- stances, has been produced. Certainly it should be made to appear that such effect has in fact followed. If the court, without facts shown, might speculate as to the effect of delay upon the interests of parties, it Is quite as reasonable, at many periods of our history, to surmise that in the lapse of time circumstances have changed to the benefit of the purchaser, as otherwise. Some of the cases above cited (from 49 N. Y.) show this. The true rule must be that if the delay of Itself is unreasonable and unexcused, it is enough to relieve the unwilling party from the contract; and that delay, though not in Itself unreasonable, if It has made way for an intermediate and material change of circum- stances, detrimental to the interests of de- fendant if obliged to perform, will have the same effect; but that in the latter case it must so appear to the court from the facts shown in the case. These views would lead to a simple af- firmance of the order of the general term, but for another consideration. The order of the special term directed that the pur- chaser pay his bid, with interest from the day of the sale. It gave no direction as to rents and profits. In the meantime, of the lands sold. It does not appear either who had in the meantime the possession of the lands, though it may be inferred that the purchaser had not. The order of the gen- eral term affirmed that of the special term, on condition that the plaintiff should, within thirty days thereafter, deliver to the pur- chaser the sheriff's deed of the premises, and a release by the wife of the mortgagor of her Inchoate right of dower. We have as- sumed that this deed and this release have been ready for the purchaser, and would have been delivered to him within the specified time, had he been ready to receive them and pay the purchase-money. Bvf is not accord- ing to the rules governing such cases to com- pel the purchaser, who is out of possession, and is not under an especial contract, so stringent in its terms as of itself to lead to that result, to pay interest on the purchase- money, when the vendor has not been ready to make a good title. In such case the pur- chaser is bound to pay interest, and to take the rents and profits of the lands in lieu thereof, only from the time when a good ti- tle is first shown. Forteblow v. Shirley, cited in Binks v. Lord Rokeby, 2 Swanst. 222; Baton v. Rogers, 6 Madd. 256; Jones V. Mudd, 4 Russ. 118. Indeed, it is at the option of the purchaser whether to take the rents and profits and pay interest, or to relinquish the rents and profits and to be ex- empt from the payment of interest Dias v. Glover, 1 Hoff. 71. And see Worrall v. Munn, 53 N. Y. 185. The order of the special term and that of the general term are erroneous, then, so far as they direct the payment of interest by the purchaser from the date of the sale up 252 EQUITABLE REMEDIES. to the time of the readiness to deliver the deed and release, provided for by the order of the general term. And though the order of the general term should be affirmed in its general scope, it should be modified in this particular to agree with the facts. As the exact state of the facts does not yet ap- pear, the terms of the judgment of this court vs^ill have to be settled on the presentation of them by the parties. Neither party should have costs against the other in this court. All concu?. Ordered accordingly. EQUITABLE REMEDIES. 253 HUBBKLL V. VON SCHOENING et al. (49 N. Y. 326.) Court of Appeals of New York. May 3, 1872. Action to compel the specific performance of a contract for the sale of three lots on One Hundred and Twenty-First street in the city of New York. There was a judgment for defendant, from wtiich plaintiff appealed. The following are the principal facts in the case: Defendants, husband and wife, con- tracted to convey to plaintiff premises in New York belonging to the wife, the pur- chase-money to be paid and deed delivered January 24, 1S68. On the 23d, plaintiff ap- plied to defendants' attorney, at whose office the contract was to be performed, for an ex- tension of time to enable him to complete searches. The attorney promised to send him word when the defendants arrived next day, so that he could see them about it. Not receiving any word, plaintifC waited until four p. m. the next day, and then went to the office, where he found the husband, who in- formed him the wife had been there at noon, and had gone home, and would have noth- ing more to do with it; he was also inform- ed he could not see her that night. TTie next morning plaintiff sought the defend- ants at their house, with the money to make the tender, but was told they were not at home. He thereupon tendered the money to the attorney at his office. This was Satur- day. On Monday, plaintiff again sought the defendants, but was unable to find the wife. Thereupon he brought suit for specific per- formance. Samuel Hand, for appellant. A. Lansing and George W. Van Slyck, for respondents. ALLEN, J. There were no laches on the part of the plaintiff', nor any delay in the assertion of his rights. He has shown him- self, in the language of the cases, "ready, desirous, prompt, and eager" to carry out the contract and have a performance of it. The brief delay of a few hours in making a formal tender of the purchase-money and demanding a conveyance of the property, was explained and excused. He had not, for some reason, completed his searches, and satisfied himself as to the title, and the day before that appointed for the performance of the contract he applied to the attorney of the defendants, at whose office the parties were to meet, for an extension of the time to enable him to complete his searches, and the attorney promised him that he would send him word as soon as the defendants came to his office, if they arrived the next day, so that he might see them about it. Not receiving any message from the attor- ney the next day, he had reason to believe, either that the parties had not arrived or that they had assented to his request. He might reasonably and properly rely upon this promise of the attorney, and it should not be imputed to him as laciies or as evidence of an Indifference to, or an unwillingness to perform the contract, that he did so. The plaintiff had all of the 24th of .Januai-y with- in which to perform the contract, as no hour was named for that purpose. He did not wait for the promised notice from the defendants' attorney, but during the business hours, and late in the afternoon of that day, went to the office and there found Mr. Von Schoening, one of the contracting parties, and was told by him that he would have nothing more to do with him, that he did not pay the money that same day, he did not fulfill his agreement and he would have nothing more to do with it. The feme de- fendant had been there in the earlier part of the day but had left, and the plaintiff was told he could not see her that night. The next morning the plaintiff sought the de- fendants early at their own house at Har- lem, with the money to make the tender of the purchase-money and was told they were not at home. He then tendered the money to the attorney at his office, and this being Saturday, on the Monday following he again sought the defendants to tender the money to them personally, but was unable to find Mrs. Von Schoening, who was the owner of the property. She evidently kept out of the way, and the complaint was verified on the same day. In Duffy v. O'Donovan, 46 N. Y. 223, we held the plaintiff entitled to a specific performance against the vendor and the per- son to whom he had conveyed the premises with notice of the contract, although the money was not paid or tendered at the hour, the purchaser acting in good faith and in- tending to perform, and supposing, from the acts and declarations of the agent and attor- ney of the seller, that the money would be received at a later hour in the day. Time, in the performance of an agreement either for the sale or purchase of real prop- erty, is always material, and a court of eq- uity will not, any more than a court of law, excuse laches and gross negligence in the as- sertion of a right to a specific performance. But time is not of the essence of the con- tract, unless made so by the terms of the contract; and therefore, although there may not, when time has not been made essential, be performance at the day, if the delay is excused and the situation of the parties or of the property is not changed so that injury will result, and the party is reasonably vigi- lant, the court will relieve him from the con- sequences of the delay and grant a specific performance. Kadcliffe v. Warrington, 12 Ves. 326; More v. Smedburgh, 8 Paige, 600; Edgerton v. Peckham, H Paige, 352. Each case must be judged by its own circumstan- ces. A party may not trifie with his contracts and still ask the aid of a court of equity. Neither will the law be administered in a spirit of technicality, and so as to defeat the ends of justice. In this instance there is no vexation, no room for suspicion of any trick 254 EQUITABLE EEMEDIES. on the part of the plaintiff; at most, it was a mistake in depending upon the promise of the defendants' attorney to advise him when the defendants arrived, if they should ar- rive on the day fixed for the performance of the contract. It was assumed by the learned judge on the trial that one of the parties could, by notice to the other, make time of the essence of a contract, when by its terms it was not made so. This may be questionable, but need not be considered. The party in such case, if the operation and effect of the con- tract are to be essentially changed so as to vary his rights or duties at the volition of the other, should have reasonable notice in advance of the time when he will be called upon to act. Here no such notice was given, but, on the contrary, the plaintiff was put at ease by the promise of the attorney of the defendants. Doubtless a party may be held to a strict performance as to time and put in default for non-performance— that is, a default in law; and whether equity would relieve would depend on circumstances. But to do this the party seeking to put the other In default must not only be ready and willing to perform, but he must tender performance at the time and demand performance from the other. Von Schoening testified that a deed had been prepared and was ready, but the plaintiff was not notified of the fact, and it was not shown or offered to him. The de- fendants took especial pains to prove by the feme defendant, the owner of the premises, that she had never authorized any one to complete the contract or to receive the money for her, and she was not at the place of per- formance when the plaintiff called. The plaintiff was not in default, and was not put in default by any acts or offers of the de- fendants. The judge before whom the cause was tried has not found that the defendants put the plaintiff in default by an offer and a demand of performance, and the evidence would not have justified such a finding. But he has found that the plaintiff had failed to perform, and therefore was not entitled to relief merely by reason of a casual and jus- tifiable delay of a few hours In making a formal tender of performance. In this we think there was error. The judgment should be reversed and a new trial granted. All concur. Judgment reversed. EQUITABLE REMEDIES. 255 LAMB V. HINMAN et al. (8 N. W. 709, 46 Mich. 112.) Supreme Court of Michigan. April 27, 1881. Appeal from Berrien. Edward Bacon, for complainant. Henry F. Severens, for defendants. COOLEY, J. Specific performance is pray- ed in this case of an oral contract alleged to toave been made by complainant with Hugh Lamb, his father, now deceased. The defend- ants are the administrator and heirs at law of Hugh Lamb. The case made by the bDl is that on or about October 12, 1872, Hugh Lamb owned a certain 80-acre lot of land in the township of Warsaw, of the value of about $2,400, upon which he lived alone; that he was then 72 years of age, and very infirm; that among his infirmities was an ungovern- able temper which rendered it difficult for others to live with him; that he had been let- ting his land on shares and had not succeeded well in so doing; that he had no team, little live stock and few farming utensils; that complainant was then a married man, living with his wife and two children about a mile from his father; that his father went to see bim, and after talking over his affairs and cir- cumstances, entered into a verbal agreement with him in substance and effect, as follows: On the part of complainant it was agreed that as soon as suitable preparations could be made, complainant with his wife and family should remove to his father's dwelling-house on the land aforesaid, and live with him dur- ing the remainder of his life, and should give him suitable care and attention, and should farm the land, rendering to bis father annual- ly two-fifths of all the wheat and one-half of all the corn raised on the land, all to be de- livered on the land, the wheat iu the half bushel and the corn in the shock or row; that complainant should furnish the seed, farming utensils and team for use on the farm, and supply his father with suitable board, lodging, washing and mending, and on the part of said Hugh Lamb it was agreed that he should pay annually to complainant ?75, and let com- plainant have the south 40 acres of the land and give him a good and sufficient deed there- of; that this agreement was fully performed on his part to the satisfaction of his father; that complainant took possession of the south 40 as his own in July, 1873, and has since cul- tivated and improved the same; that his fath- er often promised to give complainant a deed of said south 40, but neglected to do so, and died without having given a deed, in Sep- tember, 1878, and that since his death the heirs at law and the administrator appointed to settle his estate refuse to recognize and per- form the agreement; wherefore complainant prays the aid of the court. The (Jefendant answered, denying that Hugh Lamb ever made such an agreement, and the case was brought to a hearing on pleadings and proofs. We are convinced by the proofs that a contract substantially as set up in the bill was made by the parties, and that com- plainant has strong equities in his favor which should be recognized if no inflexible rules of law forbid. The evidence that proves the con- tract discloses little discrepancies in the un- derstanding of particulars, but not such as to make us doubt the parties having agreed up- on the terms of an arrangement as complain- ant now describes them. If there is any doubt as to the precise terms of the contract, it concerns the time when the deed was to be given. The complainant seems to have expected his father would give him a deed without any great delay; but the agreement fixed no time; and as the re- tention of the title constituted the father's se- curity for the performance by complainant, it was not unnatural that he should delay put- ting the security out of his hands. If the con- tract had been in writing, Hugh Lamb would have bad the legal right to decline to part with the title so long as he lived; and it is no reason for declining specific performance of the oral contract that complainant had ex- pected his father would so far confide in him as to make the deed in person instead of leav- ing It to be made by his heirs. We think, therefore, that so far as proof of the contract is concerned, the case is sufficiently made out to answer the requirements of cases relied up- on by defendants. Case V. Pelers, 20 Mich. 298; Wright v. Wright, 31 Mich. 380. But it is said there has been no such part performance as can take the case out of the statute of frauds. The most important act of part performance was the taking possession of the land, occupying and cultivating it dur- ing the father's life. But this it is said was not In fact the complainant's possession, but the possession of the father; so that on this branch of the case there is substantial failure to make out any recognizable equity. The reason why taking possession under an oral contract is recognized as a ground for specific performance when payment of the purchase price is not, is that in one case there is no standard for the estimate of damages when the contract is repudiated, and in the other there is a standard that is definite and cer- tain. A purchaser who takes possession of land under an oral purchase is likely in so doing to change very considerably— perhaps wholly — the general course of his life as pre- viously planned by him; and if he Is evicted on a repudiation of the contract, any esti- mate of his loss by others must in many cases be mere guess-work. The rule, therefore, rests upon the element of uncertainty, and not upon any technical ground of excluslveness in the possession. And upon this point no caseon its equities could be plainer than this. Com- plainant abandoned one home and made a new one in reliance upon the oral contract; occupied the land bargained for and cultivated it for six years in confidence that the con- tract would be performed; and it Is not too I much to say that the whole course of his snti- 256 EQUITABLE REMEDIES. sequent life was probably changed in conse- quence. To deny relief under such circum- stances for no other reason than that he did not occupy exclusively, would be to make the whole ease turn upon a point in itself unim- portant as afEecting the real equities. The case is within Kinyon v. Young, 44 Mich. 339, 6 N. W. 835. The decree of the court of chancery was la favor of complainant, and it must be affirroed with costs. The other justices concurred. EQUITABLE REMEDIES. 257 STEWARD V. WINTERS et al. (4 Sandf. Ch. 5S8.) Court of Chancery of New York. May, 1847. ilotiou to dissolve au injuuction, restrain- ing tlie defendants from carrying on tlie auc- tion business, or selling goods at public auc- tion, in the store number eighteen William street, in the city of Aew York; and from conducting therein any business other than the regular dry goods jobbing business. On the 2d day of February, 1S47, the com- plainant, being the owner of that store, leased to the defendant. Winters, the first floor and cellar, for two years- from the first day of Jlay then next, at the yearly rent of fifteen hundred dollars, payable quarterly. The lease, executed by both parties, contained the following stipulation next following the de- mising clause, viz.: "The store to be occu- pied for the regular dry goods jobbing busi- ness, and for no other kind of business; and the store is not to be relet, without the writ- ten consent of the party of the first part; there is to be no marking or lettering on the granite, and no alteration in the shelving, or in the store otherwise, unless by the consent of the party of the first part." On the first of iXay, 1S47, Winters entered into possession of the premises, and imme- diately, in connection with the defendant Sayres, under the firm of Sayres & Winters, commenced selling goods there at auction, and continued to sell at auction daily, till the service of the injunction, suspending over the door the customary auctioneer's flag. Adver- tisements of their sales were published daily in the moi-ning papers, in the columns of auc- tions, with the heading: "J. B. Sayres, Auc- tioneer. By Sayres & Winters, Store No. 18 AVilliam Street. This day, at 10 o'clock, at the auction rooms. Dry goods," &c. &c. On the sixth of May, the complainant noti- fied Winters in writing, that he was violating the stipulation in the lease by selling at auc- tion, and that the complainant would insist on its being enforced; but Winters continued the auction sales as before. The complainant owned several stores ad- joining to and in the Immediate neighbor- hood of the premises let to Winters, most of which were let to tenants carrying on the regular dry goods jobbing business; Winters' doings annoyed those tenants, and they com- plained of it to the complainant. The occu- pants of the lofts over Winters, who were al- so tenants of the complainant were annoyed by the auction sales; and those sales were thereby, as he insisted, injuriously affecting his interests in respect to his stores as tene- ments, to prevent which was one reason for his inserting the restriction. The bill stated that the auction business is not the regular dry goods jobbing business, and the conduct- ing of the former in the demised premises, was a violation of the stipulation in the lease. The defendants, in support of the motion in- sisted in affidavits, that the business conduct- HUTCH.EQ.JUR. — 17 ed by them was within the terms contained in the lease; and they showed that the com- plainant owned a store opposite the demised premises In the same street, which he had leased for an auction store; and that several other auction stores were close by. J. Slosson, for complainant. E. Sandf ord, for defendants. SANDFORD, V. O. I have no doubt that the business of selling goods at auction, is prohibited by the terms of the covenant in the lease, and that the lessee when he exe- cuted the lease, knew perfectly well that the lessor intended to exclude the auction busi- ness. The philological authority cited by the defendants, does not bear them out. Dr. Webster defines a "jobber" to be, "a mer- chant who purchases goods from Importers and sells to retailers." An auctioneer does not purchase at all. He sells the goods of others for a commission. Without wasting time upon the well estab- lished distinction between a dry goods jobber and an auctioneer, which is too clearly marked to be confounded or obliterated by affidavits, I will proceed to the only question in the cause, that of jurisdiction. It is said, that the remedy at law for dam- ages is adequate, and that so far from there being an irreparable injury by the continu- ance of the breach of this covenant, it is shown that there can be no injury at all. I apprehend that we are not to regard this subject in the manner indicated by the latter proposition. The owner of land, selling or leasing it, may insist upon just such cove- nants as he pleases, touching the use and mode of enjoyment of the land; and he is not to be defeated when the covenant is bro- ken, by the opinion of any number of persons, that the breach occasions him no substantial injury. He has a right to define the injuiy for himself, and the party contracting with him must abide by the definition. In the case of the bakery (Macher v. Found- ling Hospital) in 1 Ves. & B. 188, hereafter cited, I have no doubt a great many wit- nesses might have been found, who would have testified, that the bakery was not an an- noyance to them, or to any but over sensitive persons. And in Hills v. Miller, 3 Paige, 254, the injury to the complainant, if tested by the opinions of witnesses, would scarcely have resulted in even nominal damages, in an action at law. It is not necessary that the act complained of, should amount to a nuisance in law, either public or private. Nor is the court to enter into a comparison, and permit a tenant to carry on some trades as less offensive than others, where the covenant prohibits the for- mer. Per Lord Eldon, in Macher v. Found- ling Hospital, 1 Ves. & B. 188. So far as the Injury is concerned, it is therefore unnecessary for the complainant to establish that it wUl be irreparable; or on a 258 EQUITABLE EEMEDIES. continuing covenant, that It will be substan- tially injurious. The question remains, is there an adequate remedy at law? In the first place, it is manifest that at law a new cause of action will arise every day that the defendants sell at auction. If ihe lessor avail himself of his full rights at law, he will sue daily for damages. This would lead to a multiplicity of suits, harass- ing to both parties,, and highly obnoxious to the censure of a court of equity. Then if the suits were brought, how is it possible to estimate the actual damages? A jury might enter into a wide field of conjec- ture, without any certainty of coming out of it at the point of justice to the parties. The jurors might infer that the continuance of an auction business in the demised premises, would for j^ears diminish the rent of the ad- joining property, and render the premises less desirable to good tenants. But any estimate of damages on that basis, however well founded, would be wholly conjectural. A different jury might imagine that the con- ducting of an auction business, would en- hance the value of the adjoining premises, and refuse to give any damages. And wit- nesses could undoubtedly be produced, whose opinions would sanction a finding in either of these modes. I think that in a case where the parties by an express stipulation, have themselves determined that a particular trade or busi- ness conducted by the one, will be injurious or offensive to the other, and there is a con- tinuing breach of the stipulation by the one, which this court can perceive may be highly detrimental to the other, although on the facts presented, it is not clear that there is a serious injury, and it is manifest that the extent of the injury is difficult to be as- certained or measured in damages; it is the duty of the court by injunction, to restrain further infractions of the covenant, thereby preventing a multiplicity of petty suits at law, and at the same time protecting the rights of the complainant. The principles to be extracted from the fol- lowing authorities, in my judgment, sanction this jurisdiction. I refer to Hills v. Miller, 3 Paige, 254; Barrow v. Richard, 8 Paige, 351; Rankin v. Huskisson, 4 Sim. 13; Bar- ret V. Blagrave, 5 Ves. 555 (same case, 6 Ves. 104, where the jurisdiction was virtually con- ceded on the motion to dissolve the injunc- tion) ; Lord Grey de Wilton v. Saxon, 6 Ves. 106; Macher v. Foundling Hospital, before cited; 2 Story, Eq. .Tur. § 928. As I remarked at the outset, the legal right is entirely free from doubt, so that the ob- jection frequently made; previous to a trial of the right at law, does not exist. There- fore, the argument of Sir James Wigram, V. C, in Rigby v. Great Western R. Co., is ex- ceedingly applicable; and in this respect, his argument is not impaired by the judgment of the Chancellor of England in the same case, on dissolving the injunction. 4 Railway & Can. Cas. 175, 1 Coop. t. Cott. 8. The motion to dissolve the injunction must be denied, with costs. EQUITABLE REMEDIES. 259 MANHATTAN MANUFACTURING & FER- TILIZING CO. y. NEW JERSEY STOCK- YARD & MARKET CO. et al. (23 N. J. Eq. 161.) Court of Chancery of New Jersey. May Term 1872. Bill for an Injunction. Heard on a rule to show cause why an injunction should not is- sue. Mr. McCarter, for complainant I. W. Scudder and Mr. Winfleld, for defendants. ZABRISKIE, Ch. The complainant is a corporation of the state of New York, doing business at Communipaw. The defendant, the stock yard company, a corporation of this state, owns a large and extensive abattoir or slaughter-house at Communipaw. It has not, for some years, slaughtered animals there, but let to butchers the privilege of slaugh- tering their animals in the abattoir. Pre- vious to August, 1870, the blood and other re- mains of animals thus slaughtered there by the butchers, not being removed or properly cared for, had created a stench which became a nuisance to the adjoining country, and the company was restrained by an injunction from permitting the business to be carried on there, unless on condition of having the blood and offal perfectly cared for. The butchers paid for the privilege of slaughtering there, and left the blood and offal on the premises, to be cared for by the stock yard company. These difficulties became a serious embar- rassment in the enterprise. The complainant undertook to manage this, and to remove and manufacture the blood and other abandoned refuse left on the premises by the butchers, so as to prevent any public or private nui- sance that might else arise from them. To effect the objects of this arrangement, the stock yard company, on the 5th of Au- gust, 1870, made a lease to the complainant of certain premises adjoining the abattoir, for the specified business of manufacturing and preparing fertilizers and manures, and the materials for that purpose. The term was for twenty years from April 20th, 1867, with privilege of renewal, and the rent to be paid was fifteen per cent, of the net profits of the business. The lease contained this provision: "The parties of the second part shall also have the refusal and exclusive right of sav- ing and taking all the blood of animals slaughtered in the abattoir and sheep-house of the parties of the first part, and of saving and taking the animal matter and ammonia from the rendering tanks of the parties of the first part, and of using the same in their business;" and also this agreement on part of the complainant: "Said parties of the sec- ond part hereby bind themselves to save all that is possible of the blood from the ani- mals slaughtered, and the animal matter and ammonia from the tanks, to prevent any ef- fluvia or stenches from escaping, and to pre- vent any and all nuisance from being cre- ated in any manner whatsoever, either in sav- ing the blood, animal matter, or ammonia, or in converting the same into articles of com- merce." The lease was executed by the president of the stock yard company, in the name of the company, by aflixing Its common seal and his signature. The execution was duly proved, and the lease recorded in Hudson county clerk's office, August 20th, 1870. The complainant, on faith of the lease, erected on the demised premises expensive buildings and machinery for the purpose of the manufacture. These were completed by January 9th, 1871. In the meantime ar- rangements had been made by the complain- ant with the stock company and its employes for coagulating the blood on the premises, and for preventing nuisances arising from slaughtering in the abattoir. Part of this coagulated blood had, with complainant's ac- quiescence, been delivered to John J. Craven, one of the defendants, for making experi- ments or manufacturing it. In April, 1871, the stock yard company leased its abattoir to Henry R. Payson and David H. Sherman, two of the defendants, who have since carried on the business un- der the name of D. H. Sherman & Co. The defendant, Isaac Freese, who was in the em- ploy of the stock yard company as superin- tendent, and continued in the employ of D. H. Sherman & Co. in the like capacity, en- tered into partnership with the defendant Craven, who was also in the employ of the stock yard company at the making of its lease to the complainant, and with the de- fendfint Sherman, under the name of "The Bergen Manufacturing Company," for the purpose of manufacturing albumen and fer- tilizers. After January 9th, 1871, the complainant demanded all the blood of the animals slaugh- tered at the abattoir, but Craven made an ar- rangement with certain butchers who slaugh- tered there, for saving and taking the blood of the animals slaughtered by them, and this was permitted by Sherman & Co., and Freese, their superintendent; and a large part of the blood is thus taken and delivered to Sher- man, Freese and Craven, and is lost to the complainant. By the record of the lease to the complain- ant, Sherman, Craven and Freese had con- structive notice of its contents, and also it is clear that they, as well as Payson, had ac- tual notice. They do not deny this, but take the ground that the blood, like all other parts of the animal slaughtered, belongs to the butcher, and that they or the stock yard com- pany can no more control or deliver it than they could control the flesh or hides. That the butchers having discovered that the blood has a merchantable value, have a right to dispose of it for their own benefit; and that 260 EQUITABLE REMEDIES. when they had determined to sell it, and not to abandon it, Craven was under no obliga- tion not to buy it, and his firm might receive it through him without breach of faith. This defence, at first sight, is seemingly good; but it wholly rests upon the correct- ness of the premises, to wit, that the stock yard company had not the right or power to control the disposition of the blood. It is not claimed that it had, before the complain- ant's lease, granted to any one the privi- lege of slaughtering there. If it had, for a term unexpired, it would have lost the con- trol. Before that, they had permitted butch- ers to slaughter there without any provision about disposing of the blood or offal. It may, by custom, have been the effect of such contract, that the butcher might leave the blood and offal to be removed by the com- pany. If left, the company was liable for any nuisance occasioned by it. It cannot be doubted that the company could have requir- ed, as a condition, that the butcher should re- move the blood and offal. It had the right to prevent any one from using the abattoir who would not comply. Before the lease to the complainant, this condition would have been deemed a burden on the butchers, and might have injured the business of the company. It was in difficulty by reason of the nuisance caused by leaving these matters, and the injunction growing out of it. It was re- lieved by this lease. The consideration was the exclusive right to take the blood and offal which was secured by covenant to the complainant. After that, the company had the same right to demand of every one using the abattoir that he should leave these mat- ters for the complainant, as It had to require him to remote them. This could have been annexed as a condition to every permission to use the abattoir, as well as the condition to pay for the use. And this, by its cove- nant, the company was bound to do. D. H. Sherman & Co., as the lessees, are bound by the same covenant. And Freese, Craven and Sherman having notive of this obligation be- fore they commenced their business, are bound to refrain from interfering with these rights of the complainant, and from taking the blood and other matters which it is enti- tled to take. Tulk v. Moxhay, 2 Phila. 7Ti; De Mattos v. Gibson, 4 De Gex & J. 2T6. The facts that Freese and Craven transfer- red to the complainant their claim to a pat- ent for making albumen from blood, and took part in the arrangements for the lease by the company in whose employ they were, and that Craven intei-fered by these negotia- tions with the butchers after he was repulsed in his attempt to get into the employ of the complainant, do not give greater validity to the complainant's right; they may show bad faith and vindictiveness, and that they are not entitled to any favorable considera- tion beyond their legal rights. The injunction applied for Is not a manda- tory injunction; it is not to require the de- livery of the blood, but to restrain Craven from taking it, and the other defendants from suffering or permitting any other person than the complainant to take it. For this injury there is a remedy at law, but it is not an adequate remedy. The value of the blood is no measure of the injury, and it is hardly possible to compute the damages which the injury may occasion. And redress at law could only be obtained by a continued series of suits through the twenty or forty years of the complainant's term. It Is a case peculiarly proper for the preventive remedy by injunction. Shreve v. Black, 4 N. J. Eq. 177. The defendants, in their answers, deny that the seal of the stock yard company was affixed to the lease by authority of the di- rectors. The bill alleges that the stock yard company made and executed the lease under its corporate seal, and sets out a lease with the seal affixed, and signed by the president. The answer of the company is not verified by any one who has knowledge of the facts. The present secretary swears that he be- lieves the facts to be true. Any deed of a corporation, under its corporate seal and signed by the proper officer, is presumed to have been executed by authority of the cor- poration, until the contrary is clearly shown. Leggett V. New Jersey Manuf'g & Banking Co., 1 N. J. Eq. 541. There is no proof hert to ovei'come this presumption. The Injunction must issue as prayed for. EQUITABLE REMEDIES. 261 TRUSTEES OF OOLTJMBIA COLLEGE V. LYNCH. (70 N. Y. 440.) Court of Appeals of New York. Sept. 1877. Action to restrain the carrying on of busi- ness on premises situate on the north-east corner of Fiftieth street and Sixth avenue in the city of New York, upon the ground that the premises were subject to a covenant re- serving the property exclusively for dwell- ing-houses. The westerly portion of the block in ques- tion, prior to 1860, belonged to Joseph D. Beers, from whom defendant Lynch acquired title, and the portion adjoining on the east belonged to the plaintiffs. In July, 1859, an agreement was executed whereby Beers, in consideration of similar reciprocal covenants therein contained on the part of the plaintiffs, did for himself, his heirs and assigns, in respect to the lands which he then owned, covenant with the plaintiffs, their successors and assigns, that his lands above mentioned should be subject to the following covenants: That Beers, his heirs or assigns, his or their tenants, and others occupying his said lands, should not permit, grant, erect, establish or carry on in any manner on any part of said lands any stable, school-house, engine-house or manu- factory or business whatsoever; or erect or build, or commence to erect or build, any building or edifice, with intent to use the same, or any part thereof, for any of the pur- poses aforesaid. The agreement was recorded, and defend- ant Lynch took her lot expressly subject to the conditions and restrictions of the agree- ment of Beers and the plaintiffs. The trial court found that the opposite side of Sixth avenue, between Fiftieth and Fifty- First streets, was entirely occupied by the Broadway railroad stables; there was a gro- cery store on the south-east corner and a liquor store on the south-west corner of Sixth avenue and Fiftieth street; and Sixth ave- nue, in that vicinity, was occupied as a busi- ness street. There was judgment for defend- ant, from which plaintiffs appealed. S. P. Nash, for appellants. Samuel Hand, for respondents. ALLEN, J. It was competent for the plain- tiffs and Mr. Beers, from the latter of whom the defendants derive title, while they were the owners of adjoining tracts or parcels of land in the city of New York, by mutual covenants to regulate the use and enjoyment of their respective properties, with a view to the permanent benefit and the advancement in value of each. The mutual and reciprocal covenants of the contracting parties consti- tuted a good consideration for the covenants and agreements of both. All that is re- quired, when the undertaking of one of two contracting parties gives the consideration tor the undertaking of the other, is that there should be mutuality; covenants or undertak- ings by each, that each should come under some obligation, or release some right to the other; but a perfect reciprocity in the under- takings, or equality in the obligations as- sumed or rights released, is not involved in or essential to the sufficiency of the consid- erations. Equality is not of the essence of mutuality. It suffices that some promise or covenant has been made, or some right given up ; and the adequacy of the same, as a con- sideration to support the undertaking of the other party, in the absence of fraud, is for the parties to determine. A covenant is well supported in law and in equity by apy con- sideration, however slight. In this case it is not material to inquire whether the covenant of the plaintiff's Is, as viewed from our stand- point, the perfect equivalent of that of Mr. Beers. It was accepted by the latter as a sufficient consideration for the covenant made by him, and there is no evidence before us to impeach the agreement as one not fairly and honestly made. The agreement itself is not void, as in re- straint of trade or as imposing undue re- strictions upon the use of property. Cove- nants, conditions and reservations, imposing like restrictions upon urban property, for the benefit of adjacent lands, having respect to light, air, ornamentation, or the exclusion of occupations which would render the entire property unsuitable for the purposes to which it could be most advantageously de- voted, have been sustained, and have never been regarded as impolitic. They have been enforced at law and in equity without question. The restrictions are deemed wise by the owners, who alone are interested, and they rest upon and withdraw from gen- eral and unrestricted use but a small por- tion of territory within the corporate lim- its of any city or municipality, and neither public or private interest can suffer. It is not alleged in the answer, nor was it proved upon the hearing, that there has been any change in the character of the locality, the surroundings of the premises, or the occupa- tion of contiguous property, or the business of the vicinage, which has rendered it inex- pedient to observe the covenant, or made a disregard of it indispensable to the practical and profitable use and occupation of the premises, so that it might be inequitable to compel a specific performance of the agree- ment If such a defense could avail, it has not been interposed, so that the facts found by the learned trial judge, in respect of the character of the buildings, and the busi- ness carried on at this time in the Sixth av- enue, are immaterial and cannot affect the result. The purpose and intent of the parties to the agreement is apparent from its terms preceded by the recital. The agreement re- cites the ownership by the respective parties of adjacent premises particularly described, and these constitute the subject-matter of 262 EQUITABLE REMEDIES. the mutual covenants. There was no priv- ity of estate or community of interest be- tween the parties, but each could, by grant, create an easement in his own lands for the benefit of the lands owned by the other, and the purpose of the agreement was to create mutual easements, negative in their char- acter, for the benefit of the lands of each. It was the design to impose mutual and cor- responding restrictions upon the premises belonging to each, and thus to secure a uni- formity in the structm-e and position of buildings upon the entire premises, and to reserve the lots for, and confine their use to, first-class dwellings, to the exclusion of trades and all business, and all structures which would derogate from their value for private residences. The purpose clearly dis- closed was, by the restrictions mutually im- posed by the owners respectively upon the use of their several properties, to make the lots more available and desirable as sites for residences, and the agreement professes to, and does in terms, impose, for the common benefit, the restrictions in perpetuity, and to bind the heirs and assigns of the respec- tive covenantors. This should be construed as a grant by each to the other in fee of a negative easement in the lands owned by the covenantors. An easement in favor of. and for the benefit of lands owned by third persons, can be created by grant, and a covenant by the owner, upon a good con- sideration, to use, or to refrain from using, his premises in a particular manner, for the benefit of premises owned by the cove- nantor, is, in effect, the grant of an ease- ment, and the right to the enjoyment of it will pass as appurtenant to the premises in respect of which it was created. Reciprocal easements of this character may be created upon the division and conveyances in sev- eralty to different grantees of an entire tract, and they may be created by a reser- vation in a conveyance, by a condition an- nexed to a grant, or by a covenant, and even a parol agreement of the grantees. Curtiss V. Ayrault, 47 N. Y. 73; Tallmadge V. Bast River Bank, 26 N. Y. 105; Gibert v. Peteler, 38 Barb. 488, affirmed, 38 N. Y. 165. The right sought to be enforced here is an easement, or, as it is sometimes caUed, an amenity, and consists in restraining the owner from doing that with, and upon, his property which, but for the grant or cove- nant, he might lawfully have done, and hence is called a negative easement, as dis- tinguished from that class of easements which compels the owner to suffer some- thing to be done upon his property by an- other. Washb. Easem. 5. Easements of aU kinds may be created and exist in favor of any third person, irrespective of any privi- ty of estate or community of interest be- tween the parties; and, in this respect, tjiere Is no distinction between negative easements and those rights that are more generally known as easements, as a way, etc. A covenant by the owner with A. B., his heirs and assigns, that it should be lawful for them at all times afterward to have and to use a way by and through a close, etc., was held to be an actual grant of a way and not a covenant only for the enjoy- ment of such right. Holms v. Seller, 3 Lev. 305; Gibert v. Peteler, supra; Washb. Easem. 22, 28, and cases cited in note 1. A negative easement, by which the owner of lands is restricted in their use, can only be created by covenant in favor of other lands not owned by the grantor and covenantor. The covenant made by Beers was valid and binding upon him, and had he retained the ownership of the premises, it would have been specially enforced by a court of equity. Upon a distm'bance of the easenaent by him, it was capable of being enforced by the ap- propriate remedies at law or in equity at the suit of the owner of the dominant tene- ment, at the time of the violation of the covenant. The plaintiffs appear to retain the ownership of the premises to wliich the easement is appurtenant, and therefore this action is properly brought by them. Equity has jurisdiction to compel the observance of covenants made for the mutual benefit and protection of all the owners of lands, by those owning different parcels of the lands, and to secure to those entitled the enjoyment of easements or servitudes annexed by grant, covenant, or otherwise to private es- tates. 2 Story, Eq. Jur. 926a, 927; Barrow V. Richard, 8 Paige, 351. It is strenuously urged, in behalf of the defendants and respondents, that there was no privity of estate between the mutual covenantors and covenantees, in respect of the premises owned by them respectively, and which were the subjects of the cove- nants and agreements, and that the cove- nants did not therefore run with the lands, binding the grantees, and subjecting them to a personal liability thereon. This may be conceded for all the purposes of this action. It is of no Importance whether an action at law could be maintained against the gran- tees of Beers, as upon a covenant running with the land and binding them. Whether it was a covenant running with the land or a collateral covenant, or a covenant in gross, or whether an action at law could be sus- tained upon it, is not material as affecting the jm-isdiction of a court of equity, or the right of the owners of the dominant tene- ment to relief upon a disturbance of the easements. The covenantor Beers bound himself, and in equity charged the premises with the ob- servance of the covenant, and thus im- pressed this easement upon the lands then owned by him in favor of the lands then and now owned by the plaintiffs. A right in respect of the defendant's lands, and affecting the use in behalf of the plaintiffs EQUITABLE REMEDIES. 263 and their lands existed, wlilch while Beers continued the owner, equity would have enforced, and this right was a right in per- petuity, going with and attaching to the lands in the hands of all subsequent gran- tees taking title with notice of its existence. An owner may subject his lands to any serv- itude, and ti-ansmit them to others charged with the same; and one taking title to lands, with notice of any equity attached thereto, or any outstanding right or claim affecting the title or the use and enjoyment of the lands, takes subject to such equities and such right or claim, and stands in the place of his grantor, bound to do or forbear to do whatever he would have been bound to do or forbear to do. Lord Cottenham uses this language: "If an equity is attach- ed to property by the owner, no one pur- chasing with notice of that equity can stand in a different situation from the party from whom he purchased." Tulk v. Moxhay, 2 Phila. 774. In the case cited a covenant be- tween grantor and grantee in respect to the use of the granted premises was enforced against subsequent grantees thereof, with notice. The rule is of universal application, as stated by Lord Cottenham. Tallmadge v. East River Bank, supra; Story, Bq. Jur. §§ 395, 397. Here each successive grantee from Beers, the covenantor, down to and Includ- ing the defendant Lynch, the present own- er, not only had notice of the covenant and all equities growing out of the same, but took their title in terms subject to it, and impliedly agreeing to observe it. It would be unreasonable and unconscientious to hold the grantees absolved from the covenant in equity for the technical reason assigned that it did not run with the land, so as to give an action at law. A distinguished judge an- swered a like objection in a similar case by saying in substance, that if an action at law could not be maintained, that was an ad- ditional reason for entertaining jurisdiction in equity and preventing injustice. The ac- tion can be maintained for the establish- ment and enforcement of a negative ease- ment created by the deed of the original pro- prietor, affecting the use of the premises now owned and occupied by the defendants, of which they had notice, and subject to which they took title. There is no equity or reason for making a servitude of the char- acter of that claimed by the plaintiffs in the lands of the defendant, an exception to the general rule which charges lands in the hands of a purchaser with notice of all exist- ing equities, easements and servitudes. The rule and its application does not depend up- on the character or classification of the eq- uities claimed, but upon the position and eq- uitable obligation of the purchaser. The lan- guage of courts and of judges has been very uniform and very decided upon this subject, and all agi'ee that whoever purchases lands upon which the owner has imposed an ease- ment of any kind, or created a charge which would be enforced in equity against him, takes the title subject to all easements, eq- uities and charges however created, of which he has notice. Parker v. Nightingale, 6 AUen, 341; Catt v. Tourle, L. R. 4 Ch. App. 654; Carter v. Williams, 18 Wkly. Rep. 593, before Vice Chancellor James; Wolfe V. Frost, 4 Sandf. Ch. 72; Talk v. Moxhay, supra; Whiting v. Union R. Co., 11 Gray, 359; Gibert v. Peteler, supra; Barrow v. Richard, supra; Greene v. Creighton, 7 R. I. 1; Bronner v. Jones, 23 Barb. 153. The grantees from Beers became entitled to the benefits of the corresponding covenants on the part of the plaintiffs, and of the ease- ment in their lands, and in the purchase had recompense for any diminution in the value of their own lands by reason of the restrictions upon their use. Should it ap- pear that the plaintiffs had parted with their title, it might be questionable whether they could maintain the action. The right exists for the benefit of the owners of the lands for the time being, and it may be waived or released by them, and it would seem they would be the proper parties to bring the action. At most, the plaintiffs would be but the dry trustees of the cove- nant for the benefit of their grantees, and in equity and in all cases under the present system of practice, the real party in interest should bring the action. But the plaintiffs' right of action, if a cause of action exists, does not appear to have been questioned, so that no question as to parties is in the case. The cases In which it has been held that an action at law will not lie, upon a cove- nant restricting the use of the lands against the grantees of the covenantor, when there was no privity of estate between the cove- nantor and covenantee, do not aid us in de- termining whether there may not be relief in equity for a violation of the equitable^ right resting upon and growing out of the covenant treated as in substance a grant, and the consideration upon which it was made. The author of the American note to Spen- cer's case, 1 Smith, Lead. Cas. (6th Am. Ed.) 167, recognizes the distinction between the binding obligation at law of covenants not running with the lands and the equitable rights recognized and enforced in equity in such cases. He says, speaking of such a covenant: "But although the covenant, when regarded as a contract, is binding only between the original parties, yet, in order to give effect to their intention, it may be construed by equity as creating an incor- poreal hereditament (in the form of an ease- ment) out of the uncouveyed estate, and ren- dering it appurtenant to the estate convey- ed; and when this is the case, subsequent assignees will have the right and be subject to the obligations which the title or liability to such an easement creates." 264 EQUITABLE REMEDIES. In Hills y. Miller, 3 Paige, 254, and Trus- tees of Watertown v. Oowen, 4 Paige, 510, and Barrow v. Richard, 8 Paige, 351, there could have been no recovery at law, or ac- tions on the covenants; but upon the deeds and instruments in writing, under seal, it was held that easements had been granted out of the property sought to be charged, which had come by assignment to the hands of the defendants, which were intended by the parties to be appurtenant to lands own- ed by the plaintiffs; and the observance of the easements was enforced. Barrow v. Richard, although differing in circumstances from the present case, was decided upon the ground that is controlling here, that the parties intended to create mu- tual easements for the benefit of the owners of the whole tract, and that the want of a remedy at law would sustain, rather than defeat, the jurisdiction of equity, and that the covenant should consequently be en- forced by injunction against those who held the land to which it related. The lands of the defendants are equitably chargeable with the easement created by Beers, and the objection that the easement is not ob- ligatory upon the defendants as a contract, cannot avail as a defense to a suit in equity to restrain the defendants by injunction from its violation and a destruction of the ease- ment. There is no waiver of the covenant and consequent surrender of the easement, al- leged in the answer, proved upon the trial, or found by the judge. The building was of the class of buildings permitted by the ease- ment and suitable for' occupation as a pri- vate residence. It was not specially adapt- ed to any other use, and the plaintiffs were not bound to foresee, before its completion, that it could or would be appUed to any purpose prohibited by the covenant. So far as appears, their objecUon was reasonable. The plaintiffs did not stand by and keep silence when it was their duty to speaJi, and the defendants have a building which they may use for purposes contemplated by the parties. It was assumed by the judge at the trial, and does not appear to have been questioned that the businesses carried on by the defendants Yates and Blaisdells were violations of the covenants and forbidden by it. If they were not, that was a proper question to be litigated upon the trial, and may be tried upon the new trial which must be had. There is nothing in the record from which we can determine, that if permitted, such businesses will not defeat the object and purpose of the agreement of the par- ties, and deprive the plaintiffs of the sub- stantial benefit of the covenant If the oc- cupation and use of the premises by the de- fendants in the manner reported by the judge is in contravention of the spirit, as well as the letter of the covenant, the ques- tion of damages is wholly immaterial. Up- on that question men might differ, and it might be thought that the damages, if any, were so trifling as to be inappreciable, but the parties had the right to determine for themselves in what way and for what pur- poses their lands should be ^occupied irre- spective of pecuniary gain or loss, or the effect on the market value of the lots. Doubtless another trial will, upon other facts, present other questions, and there may be objections to a recovery not disclosed by the record, but upon the record before us the judgment must be reversed and a new trial granted. All concur, except RAPALLO and MIL- LER, JJ., absent Judgment reversed. EQUITABLE REMEDIES. 265 HENDEICKSON v. HINCKLEY. (17 How. 443.) Supreme Court of th^ United States. Dec. Term, 1S54. The facts are stated in tlie opinion of tbe 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. Rofbins, 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 propei-ty, 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 efCect, 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 ilso, 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- bell, 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 266 EQUITABLE KEMEDIES. an original Jurisdiction In cases of set-off, and that this jurisdiction is not talsen 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 xo be restored to the right which he has once voluntarily waived. Barker v. Elkins, 1 Johns. Ch. 465; Greene v. Darling, 5 Mason, ^01, Fed. Gas. 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 haye 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 EEMBDIES. 267 GRII' FITH V. HILLIARD. (25 Atl. 427, 64 Vt 643.) Supreme Court of Vermont, General Term. Nov. 5. 1892. Appeal from chancery oourt, Rutland county; T.^ft, Choncollor. Action by Silas L. Griffith against John H. Billiard. From a decree sustaining a demurrer to plaintiff's bill for an injunc- tion and dismissing the bill pro foifim, orator appeals. Reversed and modified. J. C. Baker, for orator. H. A. Barman, for defendant. START, J. The defendant, John H. Bil- 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, Hilliard, have entered upon the land, are engaged in euttinganrt drawing tinil:er therefrt)m, and threaten to continue to do so. For the purpose of determining the question now before the court, these al- legation.s 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, Hilliard, 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 SuD. Ct. Rep. ^DS; Iron Co. v. Rey- mert, 45 N. Y. 703: Power Co. v. Tibbetts, 31 Conn. 165; Irwin v. Dixion, 9 How. 28; Livingston v. Livingston, 6 .Johns. Ch. (Law Ed.) 496; High, Inj. 724-727; Shipley v. Ritter, 7 Md. 408; Scudder v. Trenton Delaware Falls Co., ] 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 trespasses by the defendants by drawing wood and logs across the orator's land. The defendants claimed a right of way. The court ifound 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 Judge Story in his work on Eqult.v Juris- prudence, (volume 2, §§ 928, 929:) "If the trespass be fugitive and tempor£^ry, and adequate compensation can be obtained in an action at law, there is no ground to justify the interposition of courts of e(iuity. 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.Reyraert, supra, it is said that mines, quarries, and timber are protected by 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 miglit 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 the 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 pending legal proceedings for the determiuatioE 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 iias 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; Iiigraham v. Bunnell, 5 Mete. (Mass.) ns; Rooney v. Soule, 45 Vt. 303; Wing v. Hall, 44 Vt. 118; Lyon v. McLaug.hlin, 32 Vt. 423- 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 Cottenbam says: "The jurisdiction of this court is founded upon legal right. The plaintiff cominginto 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- 268 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 siinpficiter, without more,— a course which, though perfectly competent to the t;ourt,is not verylikelyto betaken where the defendant raises a question as to the valid- ity of the plaintiff's title; or it may follow the more usnal, and, as I apprehend, more wholesome, practice in such a case, of either granting an injunction, and at the same time directing the plain tiff to proceed to establish his title at law, and suspend- ing the grant of the injunction until the result of 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- tuurse to a trial at law. 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 to producesuch a result, although this is certainly not very likely to happen, and I am not aware of any case in which it has happened. Nevertheless it is a course unquestionably competent to the court, provided a case be presented wl.'ich 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 circnni- 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 &ny 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 thatthe 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 foreqnitable 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 do so. These acts, if continued, will work a destruction of the estate, and render it of no value for the purpose for which it has been 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 uf the court of chancery is reversed ; the demurrer contained in the answer of the defendant, John H. Hilliard, is overruled; the orator's bill is adjudged sufficient, and 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. 269 CARLISLE et al. v. COOPER. COOPER V. CARLISLE et al. (21 N. J. Eq. 576.) Court 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. ■S^'hatever 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. § 92.5; Society for Estab- lishing Useful Manufactures v. Morris Ca- nal & Banking Co., 1 N. J. Bq. 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 efEect 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 triore 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 Bng. 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. § 02od. In our own state it has been somewhat relaxed. The mere denial of th& 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, 1844. 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 270 EQUITABLE BEMEDIES. 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. Bq. 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. E. 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. J. Eq. 419. In Holsman y. Boiling Spring Bleaching Co. the blU 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 ^nd 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 aU 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 iDrescriptlve 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- scendants' 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 him 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. v. 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 p;-:a EQUITABLE EEMEDIES. 271 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. Bq. 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; €ornelius v. Post, 9 N. J. Eq. 196; Wolcott V. Melick, 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. Bq. 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 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 Bug. 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-Towtt- & 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- 274 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 1852 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, 87; 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. 275 to the prejudice of others. Aug. Water Courses, §§ 228-230; Hale v. Oldroyd, 14 Mees. & W. 789; Baxendale v. McMurray, 2 Ch. App. 790; easier v. Shlpman, 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 Creen in the Holsman Case, thus: "Where an action is brought for ovei-flowing the plain- tifE'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- ttcient 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, 3G9. 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. ¥. 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, «ach 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- late^^ 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. WlUet, 2 H. Bl. 224; Gray's Case, 5 Coke, 79; Lovelace v. Reynolds, Cro. Eliz. 276 EQUITABLE llEMEDIES. 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 be 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, Oh. 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 REMEDIES. 277 ROBINSON et al. t. BAUGH. (31 Mich. 290.) Supreme Court of Michigan. Jan. Tenn, 1875. Appeal from superior court of Detroit; in chancery. Walker & Kent, for complainants. Gart- ner & Burton and Alfred Russell, for defend- ant. GRAVES, C. J. The complainants, nine- teen in number, being separate owners and occupants of valuable residences in a small specified district in Detroit, substantially used for dwellings, have united in a complaint against the defendant, in which they maintain that he uses certain premises he occupies, not far off on Woodbridge street, in such man- ner as to be a nuisance, and specially and greatly injurious to them in property, com- fort and health. His business Is that of forging, which he conducts in low, wood buildings, and on a large scale. He employs steam and consumes a large amount of bituminous coal. He works four steam hammers, one of which weighs thirty-five hundred pounds. The smoke and soot from his works are often borne by the wind in large amounts to the premises of complainants, and sometimes enter then: dwellings by the chimneys and the slight cracks by the doors and windows, in such measure as to be extremely offensive and harmful, and the noise from his steam ham- mers is frequently so great at complainants' places as to be disagreeable and personally hurtful, whilst the jar produced by the largest greatly annoys complainants and their fam- ilies, and seriously disturbs the sick, and In some cases causes substantial damage to dwellings. The complainants pray that defendant may be enjoined from carrying on his works in a way thus wrongful and injurious. Upon answer and proofs, the court below made a decree in accordance with the prayer of the bill, and the defendant appealed. He objects first, that the case is not rightly constituted, on the ground that complainants are separate owners with distinct property in- terests, and the attorney general is not a party. Upon the circumstances of this case, we think the objection not maintainable. The rights asserted by complainants, and for which they ask protection, are alike, and the grievance stated in the bill and charged against defendant has one source, and op- erates in the same general manner against the agreeing and equivalent rights of all the complainants. If his works as conducted are a nuisance to complainants, they are a nui- sance to all in the same way. The case pre- sents no diversity to cause embarrassment in dealing with it, and we should only sacrifice substance to useless form by giving any sanc- tion to the point, if there was no authority to favor its rejection. But without going far, we are able to cite such authority. Scofield V. Lansing, 17 Mich. 437; Middleton v. Flat River Booming Co., 27 Mich. 533; Peck v. El- der, 3 Sandf. 126, and opinion of the chancel- lor in a note; Reid v. Gifford, Hopk. Ch. 416. It is next objected, that the bill should have been sworn to. It was framed as a mere pleading, and was not constructed upon the theory that it might be requisite to use it as a sworn statement on which to base an appli- cation for preliminary relief. The only relief contemplated was such as would be grantable on final hearing, and the case exhibited is within the ordinary juris- diction, and stands on no peculiar ground which might call for a verification of the bill. The point is not warranted by reason, or the course of the court. Moore v. Cheeseman, 23 Mich. 332; At water v. Kinman, Har. (Mich.) 243. A further objection is, that a trial at law was needful before seeking the aid of equity. This position is not maintainable. The leg- islature have expressly declared that equity shall have jurisdiction "in all matters concern- ing nuisances where there is not a plain, ade- quate and complete remedy at law, and may grant injunctions to stay or prevent nuisan- ces." Comp. Laws 1871, § 6377. And this language implies that the jurisdiction may not be merely assistant, but is independent and ample in those cases where a remedy at law would not be plain, adequate and complete. That the law could afirord no such remedy here, is manifest. Even before this declara- tory provision, the chancellor asserted the ju- risdiction fully. White v. Forbes, Walk. Ch. 112. See, also, Soltau v. De Held, 9 Eng. Law & Eq. 104. When the cause is thus within the jurisdic- tion, the authority of the court is plenary, and is not dependent upon steps at common law. If, on a view of the circumstances, the court feeijuthat there ought to be a finding, it may in its discretion require one, but is not bound to do so. The defendant further urges that some of complainants have establishments not far away, which are liable to objections similar to those made against his, and that therefore he ought not to be enjoined at their instance. Assuming the fact to be as supposed, it af- fords no valid answer for him. That com- plainants are distinct wrong-doers in the same way, neither lessens his wrong or disables them from making legal complaint of it. . Their wrongdoing must be tried by itself. It cannot be investigated and decided in the pro- ceedings against him. The point is also taken, that complainants so far acquiesced in defendant's operations, that the court ought not to listen to their ap- plication to enjoin him. His operations which are objected to, were commenced only about two years before the suit, and, the large hammer was not pur- chased until a year later. 278 EQUITABLE REMEDIES. And It appears from the case that com- plaint was made to the common council, on the part of some of complainants, and, as I infer, some months before the suit, of the injurious character of defendant's business, and that he was informed of it, and more- over, that one of complainants, Mr. Robin- son, complained in person, a considerable time before the bill was filed. Indeed, the evidence is clear, that de- fendant knew at an early day, that his oper- ations were regarded by complainants, or some of them, as wrong and hurtful, and that they were not assenting. The facts, as to time and circumstance, are strong to show that there was no ac- quiescence, either in the sense of conferring a right on him to continue, or in the sense of depriving complainants of the right to seek and obtain equitable interference. Looking into the record, we notice that as a further ground of defense, the answer specifies several establishments in the vi- cinity which are claimed to be as detrimental in their operations as that of defendant. But this, if true, cannot aid him. If others in the same neighborhood are maintaining nui- sances, and even uuisances of similar char- acter, it is no reason for refusing to stop one maintained by him, or, what is the same thing, for allowing him to continue his nui- sance because other independent parties are doing wrong in the same way. When nuisances, or establishments alleged to be nuisances, exist in separate hands, they must be proceeded against separately, and it Is a matter of no legal moment which is taken first, and which last; nor is it of any legal consequence that prosecution is carried on only against one at the same time. Meigs v. Lister, 23 N. J. Eq. 199; St. Helen's Smelting Co. v. Tipping, 11 H. L. Cas. 642; Thorpe v. Brumfitt, 8 Ch. App. 650, 6 Eng. R. 554. Coming to the main controversy, and con- sidering the locality, character and value of defendant's works, and the way they" are used, and considering the locality, value and character of complainants' dwellings, and the effect produced by defendant's operations, does the proof clearly establish the charge made by complainants? We think it does. The general principle is that every person must so use his own as not to cause injury to his neighbors, and this principle is intel- ligible enough. But there is often consid- erable difficulty in its application; and where the question relates to the uses to which near proprietors choose to put their separate and respective holdings, and especially in places where the population is dense, and pursuits and tastes are various, or in manufacturing and mining districts, the difficulty sometimes becomes serious. In such instances, the question can be sat- isfactorily solved in no other way than by taking a fair practical view. The subject cannot be safely dealt with by resorting to subtle refinements and nice theories. Extreme claims must give way, and men must yield somewhat in a spirit of ac- commodation and concession, and measurably recognize and respect the actual exigencies of time, place and circumstances. One living in the country must accept country life, and one living in a city must accept city life. Those activities which are right in themselves and belong to the neighborhood and are reason- able in their mode, may not be quite agree- able to the fastidiousness of some, or the special or peculiar susceptibilities of others, but those thus affected must bear their little discomforts if they choose to stay where they are so caused, and a resident of a trading or manufacturing neighborhood must submit t6 such ordinary personal annoyances as are fairly Incidental to such legitimate trading and manufacturing as is there carried on in a reasonable way; and of course the existence of these slight personal annoyances can afford no ground for saying that the concerns caus- ing them are not suitably situated, and are therefore nuisances. But the requirement to bear thus much, may not be extended to extraordinary per- sonal hurts or discomforts caused by means which, beyond "fair controversy, ought to be regarded as exceptive and unreasonable," and It cannot "apply to circumstances the imme- diate result of which is sensible injury to the value of the property." It Is not appropriate to say that the injurious work Is fitly and rightly located, and that the business Is law- ful In Itself, when the ground of complaint is, that It causes a real and serious direct in- jury to the property of another. However lawful the business may be In Itself, and however suitable in the abstract the location may be, they cannot avail to authorize the conductor of the business to continue It In a way which directly, palpably and substantial- ly damages the property of others; unless, indeed, the operator is able to plant himself on some peculiar ground of grant, covenant, license or privilege, which ought to avail against complainants, or on some prescriptive right, and which in this country can rarely happen. There is nothing of the kind here. In the present case, the proof is clear that the defendant's works are so situated and conducted as to cause wrong and injury in regard to both person and property, and to an extent which justifies the complainants in objecting as they do. The grievances shown, are not such in their cause, nature and ob- jective effects, as to warrant the court in saying they must be borne in deference to practical exigencies. The case of Gilbert v. Showerman, 23 Mich. 448, is, however, cited as authority against the decree made by the court below. But the governing facts there were entirely differ- ent. The complainant's residence was situ- ated in the very heart of a quarter substan- tially, and, indeed, almost wholly abandoned as a spot for living, and devoted to diverse trades and noisy occupations. He resided In EQUITABLE EEMEDIES. 279 the upper story of liis building, and had been accustomed to rent the lower floor as a store or warehouse, thus himself recognizing that the locality was so completely a business one that he might naturally and properly derive profit from the use of his own rooms under him as a noisy business establishment. The mill of which he complained was In an ad- joining building, and the evidence conduced to prove that it was well constructed, and that the machinery was jun with care, and was really less noisy than some other near occupations. The mode of working was in itself unexceptionable, and the substantial matter of complaint, as shown by the evi- dence, was the personal discomforts experi- enced by complainant and his family, in the chambers where they resided adjacent to the mill. As he chose to stay in a building partly given up to business, and in the midst of a trading and manufacturing district, he was not entitled to enjoin the legitimate occupa- tions, reasonably and fairly conducted about him, because their natural incidents were an- noying and unpleasant to him and his family. Here the circumstances are wholly differ- ent. The defendant's works have been go- ing but a short time, are not very expensive, and not of a permanent character. They are placed on leased ground, under a short term, and are practicably removable without very great inconvenience or cost. Other sites rea- sonably eligible in respect to the profitable prosecution of the business may be had, and where surrounding proprietors would not be wronged. On the other hand, the complainants' dwell- ings are in a part of the eity appropriated almost whoUy to residences, and the place is among the most suitable and desirable for the purpose. The buildings are generally costly and substantial, and some of them have grounds expensively improved. The to- tal value is very large, and in comparison with it the value of defendant's establish- ment proper is a mere trifle. The case of Gil- bert V. Showerman cannot apply. On the whole, as already stated, we think the complainants have clearly made out their rights to the relief prayed, and that the de- cree below must be affirmed, with costs. COOLBY and CAMPBELL, JJ., concurred. CHRISTLiN.OY, J., did not sit In this case. ^80 EQUITABLE REMEDIES. DUNCOMBE V. FELT. (45 N. W. 1004, 81 Mich. 332.) Supreme Court of Michigan. June 6, 1890. Appeal from circuit court, Van Buren county, in chancery; Geurgb M. Buck, Judge. F. J. Atwell, for appellant. Spafford Tryon and A. J. Mills, lor complainant. LONG, J. The bill was filed inthiscaiise tor 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 him by the aefendant, 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, tit tor sawing and lumbering purposes, and that said timber constitutes a large portion of thevalue 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 (growing thereon, and threatens to continue so to do, and has already cut about five acresof 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 tliat if the said Horatio O. Felt is permitted to continue to cut down said timber and lumber, and commit waste Tjpon said premises, as aforesaid, and is mot restrained from 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 icutting 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 «etoutin thebill of complaint was executed before thecomplainant derived his tltleun- 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, w^hile they or either of 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 for complainant making the injunction perpetual. Defendant appeals. The claim of counsel forthe 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- ing * « * 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 con.sid- eration whatever, except as they miglit 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 such 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 propertyinthe 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, 69 EQUITABLE REMEDIES. 281 Mich. 2fi0, 37 N. W. Epp. 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 vi'aste. His claim is not sustained by that case. It vsras there held that the words "to have and to hold, and to use and control as the leesee thinks proper for his benefit during his natural life, " clearly import a lease without im- peachment forwaste,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 case it is conceded that there are only 9 acres of timber on rhe whole 160-a ere 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. 4CS, 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 cutdowna great number of trees, and had threatened to cut down and destroy them all. Lord Hardwioke granted an injunction to restrain the vsraste. 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, w^hich is called 'equitable waste,' for in tliat 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 impeacliment 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 terra, 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. Buhli, 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 be granted without impeachment of waste. 4 Kent, Comm. (13th, Ed.) 78; Perrot v. Perrot, 3 Atk. 94 ; Aston v. Aston, 1 Ves. Sr. 264; Vane v. Barnard, 2 Vern. 73S; Kane v. Vanderburgh, 1 Johns. Ch. 11. In the case of Kane v. Vanderburgh, su- pra, it was said: "Chancery goes greater lengths thaa 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 ]-emedy, 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 wa.v 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. Thisstatutegivingaright of 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. Hpcannot pulldownthe 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.andseilit a way from the inheritance. It is not claimed that the timber is being used for betterments on the premises, butitisadmitted thatthelife- tenant is selling it for his own gain and prof- it. The demurrer was properly overruled. The decree of the court belnw will be af- firmed, with costs. The other justices concurred. 282 EQUITABLE REMEDIES. WILSON V. CITY OF MINERAL POINT et al. (39 Wis. 160.) Supreme Court of Wisconsin. Aug. Term, 1875. Bill for an Injunction. A demurrer to the bill was overruled, and the defendants ap- pealed. M. M. Cothren, for appellants. Wilson & Jones, for respondent. LYON, J. It is sufficiently averred In the complaint that the defendant Weidenfeller, acting under the authority and orders of the regularly constituted authorities of the de- fendant city, is about to destroy fences, fruit and ornamental trees and shrubbery standing and growing upon premises owned by the plaintiff and occupied by him as his residence and homestead; that the pretense for so doing is that such fences, trees and shrub- bery are within the limits of public streets; but that such pretense is unfounded In fact, and the defendants have no lawful authority to do the threatened acts. On the facts averred it is clear that the plaintiff is entitled to an injunction as pray- ed In the complaint. It is quite true that the courts will not interfere by injunction to restrain the committing of a mere trespass, for which, if committed, the recovery of dam- ages in an action at law would be an ade- quate remedy. It is also true that the courts will interfere by injunction and prevent a threatened injury, which, if inflicted, will be irreparable. An injury is irreparable when it Is of such a nature that the injured party cannot be adequately compensated therefor in dam- ages, or when the damages which may result therefrom cannot be measured by any cer- tain pecuniary standard. High, Inj. § 460, and cases cited. It is said by Judge Story that: "If the trespass be fugitive and tem- porary, and adequate compensation can be obtained in an action at law, there is no ground to justify the interposition of courts of equity. Formerly, indeed, courts of equity were extremely reluctant to interfere at all, even in regard to cases of repeated tres- passes. But now there is not the slightest hesitation, if the acts done or threatened to be done to the property would be ruinous or ir- reparable, or would impair the just enjoy- ment of the property In future." 2 Story, Bq. Jur. § 928. That the threatened injuries which this ac- tion was brought to prevent, would, if in- flicted, be Irreparable, in the legal accepta- tion of that term, and would greatly impair the just enjoyment of the plaintiff's property, is perfectly well settled. No one will serious- ly contend that a money compensation is an adequate remedy for the loss of the trees and shrubbery which the complaint avers the defendants threaten to destroy; and it would be a denial of justice were the courts to re- fuse the plaintiff the protection he asks, and thus permit his home to be permanently de- spoiled. See High, Inj. § 467, and cases cited. We think the complaint states a cause of action against both defendants, and that there is no misjoinder of causes of action, and no defect of parties. We do not decide whether or not the complaint states facts sufficient to entitle the plaintiff to recover damages, but only, that if the averments therein contained are true, he is entitled to the injunction prayed. Order affirmed. WEST PUBL/ISHING CO., PKINTBBS AND 8TEREOTYPERS, ST. PAUL, MINN. iT-^Jlk-iMJ.S .tltiWifflllfiWwtllfflltHtatuiHitlilAfllB^mil)^