'.V ■.«iXS-CC^^^-' ((ornfll ICam ^rl^onl ICihtary Cornell University Library KF 398.H97 Cases on equity jurisprudence ... :print 3 1924 018 814 958 Cornell University Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924018814958 UNIVERSITY OE MICHIGAN ILLUSTRATIVE CASES EQUITY JURISPRUDENCE, selected by Professor H B. HUTCHINS, Of the Law Department. WEST PUBLISHING CO., St. Paul, Minn. Cornell University Law Library. THE aiFT OF LILLIAN HUFFCUT BINGHAMTON, N. Y. NOVEMBER 27, 1915 ^i8i 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. ST. PAUL WEST PUBLISHING CO. 1895 Copyright, 1895, BY WEBT PUBLISHING COMPANY. TABLE OF CONTENTS. Principles Limiting Jurisdiction. Page Teft v. Stewart 3 'Greeu t. Spring 5 Frue V Loring 6 Watson V. Sutherland 8 Pai^e LjDch V. Metropolitan El. Ry. Co 10 Morss V. Elmendorf 14 Rees V. City of Watertown 17 Maxims of Equity. Berry v. Mutual Ins. Co 21 Shiiras v. Caig 23 •City of St. Louis v. O'Neil Lumber Co 26 ■Comstock V. Johnson 30 McLaughlin t. McLaughlin 31 Bleakley's Appeal 34 Plummer v. Keppler 35 Ellison V. Moffatt 36 Russell V. Failor 37 Craig V. Leslie 38 Stinchfield v. Milliken 43 Ames V. Richardson 45 Haughwout V. Murphy 47 Clements v. Tillman 50 Property in Equity — Trusts. Tlrann v. Coates 52 Bates V. Hurd 54 Patton T. Chamberlain 56 Crissman t. Oi-issman 57 Steere v. Steere 60 Tobias v. Ketchum 67 Young T. Young 70 Ellison T. Ellison 75 Richardson v. Richardson 78 Morgan v. Malleson 80 Richards v. Delbridge 81 Martin v. Funk 83 Delaney y. MeCormack 86 ..Tackson v. Phillips 89 Holland v. Alcock 110 Fisher v. Fobes 119 Dyer v. Dyer 121 Ocean Bank of New York v. Olcott 12-i Mitchell T. Read 128 Newton v. Porter 13() McLeod V. Evans 139 Myers v. Board of Education of City of Clay Center 14,'l Cavin v. G-leason 148 Ryan v. Doi l.")() Hun v. Gary Ifi.T King T. Talbot l.iO Ogden T. Murray Ifi3 In re Schell me Equitable Bights. Patton V. Campbell 168 Hunt V. Rousmanier 170 Park Bros. & Oo. v. Blodgett & Clapp Co. . 175 Renard v. Clink 179 ..Tacobs T. Morange 180 Peterson t. Grover 182 Kider v. Powell 184 Ludington v. Ford 186 Welles T. Yates 187 'Glass T. Hulbert 191 Hunter v. Bilyen 199 Swimm v. Bush 20."> Stimson v. Helps 'JOT Mitchell V. McDougall 209 AUore T. .Jewell 212 Tate V. Williamson 21.") Cowee V. Cornell 218 Ross V. 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 Beck V. Allison 238 Lear v. Chouteau 241 ..Tones v. Newhall 243 Margraf v. Muir 24(1 Bird V. Hall 248 Merchants' Bank v. Thomson 249 '.Hubbell V. Von Schoening 253 HUTCH. BQ.JUR. (iii Lamb v. Hinman 25.') Steward 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 C'iirlisle v. Cooper 269 Robinson v. Baugh 277 Dimcombs v. Felt 280 Wilson V. CSty of Mineral Point 282 )* CASES REPORTED. Pags Allore V. Jewell (94 TJ. S. 506) 212 Ames V. Richardson (13 N. W. 137, 29 Minn. 330) 45 ■ Bates V. Hurd (65 Sle. 180) 54 Beck V. Allison (56 N. Y. 366) 23S Perry 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) 228 Bleakley's Appeal (66 Pa. St. 187) 34 Carlisle v. Cooper (21 N. J. Eq. 576) 269 Cavin v. Gleason (11 N. E. 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 Comstocli V. Johnson (46 N. Y. 615) 30 Cooper V. Carlisle (21 N. J. Bq. 576) 26!) Cowee V. Cornell (75 N. Y. 91) 218 Craig V. Leslie (3 Wheat. 563-576) 38 Crlssman v. Crissman (23 Mich. 217) 57 Danforth v. Philadelphia & Cape May S. L. R. Co. (30 N. J. Eq. 12) 2:i(i Delaney v. McCormack (88 N. Y. 174). . . 86 Buncombe v. Felt (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 III. 280) 5 Griffith V. Hilliard (2.-5 A. 427, 64 Vt. 643) 267 Haughwout V. Murphy (22 N. J. Eq. 531) 47 Hendrickson v. Hinckley (17 How. 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 V. Bousmanier'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. Newhall (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 Ludington 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. Eyans (28 N. W. 173, 214, 66 Wis. 401) 139 Manhattan Manufacturing & Fertilizing Co. V. New Jersey Stock-Yard & Market Co. (23 N. J. Bq. 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. Jlurray (39 N. Y. 202) 163 Page V. Martin (20 A. 46, 46 N. J. Eq. 585) ^26 Park Bros. & Co. v. Blodgett & Clapp Co. (29 A. 133, 64 Conn. 28) 175 Patton V. Campbell (70 111. 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 Micli.l) 179 Richards v. Delbridge (L, R. 18 Bq. 11). 81 Richardson v. Richardson (K R. 3 Eq. 686) 78 Rider v. Powell (28 N. Y. 310) 184 Robinson v. Baiuh (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. (;32) . 222 Russell V. Failor (1 Ohio St. 327) 37 Ryan v. Dox (34 N. Y. 307) 150 Schell, In re (53 N. Y. 20.1) 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) CASES REPORTED. Page Stimson v. Helps HO P. 290, 9 Colo. 33). 207 Stinchfield v. Mllliken (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) 3 Tobias v. Ketchum (32 N. Y. 319) 67 Trustees of Columbia College v. Lynch (70 N. Y. 440) 261 Page Drann 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, HDTCB.EKl.JDR.— 1. (1)* PKINCIPLES LIMITING JURISDICTION. y TEFT T. 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. Clapp 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 doUars, 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 difCer- 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 sale 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 CarroU 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 apjjropriated 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 bill. 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 bill 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. PRINCIPLES LIMITING JUBISDICTION. If tbe riglit contended for and carried out by the 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 sufficient, may not at his election proceed to sue in chancery for damages, and preclude an investigation be- fore a jury. The principles and course of practice of the court are, however, not in harmony with any such procedure. It is admitted that the boots 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- ei-y, and no discovery was sought, as the bill waived an answer on oath. No claim was set up to have the deed from Sherwin to Stewart set aside, or to have the land conveyed to complainant, and no case is made to warrant such a claim, since the bill •contains nothing to show that third persons may not have acquired interests on the faith lof 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 his election to try in chancery, and prevent an investigation l)y jury, the point made by appellant must be sustained, and in my judgment It should be. Story, Eq. Jur. §§ 72-74; 1 Spence, Bq. Jur. 691-700; Adams, Eq. Introduction, pp. 5?, 58; Shepard v. Sanford, 3 Barb. Ch. 127; Bradley v. Bosley, 1 Barb. Oh. 125; Monk v. Harper, 3 Edw. Ch. 109; Pierpont v. Fowle, 2 Woodb. & M. 23, Fed. Oas. No. 11,152; Vose V. Philbrook, 3 Story, 335, Fed. Cas. No. 17,- 010; Insurance Co. 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 Oh. App. 562, 3 Eng. R. 509; Hoare v. Bremridge, L. B. 14 Eq. 522, 3 Eng. R. 824, cited by Lord Hatherly with approbation in Ochsenbein v. Papelier, 8 Ch. App. 695, 6 Eng. B. 576; Kemp v. Tucker, 8 Ch. 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 afCair 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 him the complainant may think proper to take. CAMPBELL and COOLEY, JJ., concurred. CHRISTIANCY, J., did not sit in this case. PKJNCIPLES LIMITING JURISDICTION. GREEX^ 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, 186J:, 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 by 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 eveiT 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 thei'e 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. PRINCIPLES LIMITING JURISDICTION. FEUB 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 Wll for want of eq- uity, and on the ground that there was an adequate remedy at law. The case was re- served by Wells, J., for the consideration of the full court. B. F. Thomas, for plaintiff. 0. 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 stociv 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 coutrovei'sy is the plaintiif'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 discoveiy, 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 cases 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. 148; Bm-- 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 true 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 one side; or where there is a single mattei- 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 eases cited; Adams, Eq. 222. See, also, Locke v. Bennett, 7 Gush 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 recenUy given under other heads of equity jurisdiction Thus a bill to redeem a mortgage of per- PBINCIPLES LIMITJNG JUllISDiCTION. sonaX property was dismissed 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 amount 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 v. 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 plaui and ade- quate remedy at law. See, also. Ward v. Peck, 114 Mass. 121. Demun'er 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 & 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, iiTeparable 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 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, 18G2; 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 lOtl^ 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, 1802, they had sold the greater portion of their goods, and collectsd 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. AVallis & Alexander, conti-a. Mr. Justice DAVIS delivered the opinion of the court. There are, in this record, two questions for consideration, '^^'as 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 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 Ex'rs v. Grundy, 3 Pet. 210. PRINCIPLES LIMITING JURISDICTION. 9 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 compensation 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 injimction 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. 3 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. TaJiing advantage of this provision of lawr the answer charges that Wroth & Fullerton, after their failure, collected a large portions 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 aU 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- unnecessai"y to discuss 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, aflarmed. 10 PKINCIPLES LIMITING JUKISDICTION. LYNCH T. METROPOLITAN EL. RT. 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 cit.y, 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 Blythe Rogers and Jullen T. Da- Yies, for appellants. Charles Gibson Ben- nett, for respondent. GRAY. J. This action was brought to restrain the maintenance and operation of the defendants' roads in front of the plaintiff's premises, and the prayer for such a judgment included also a demand for the amount of loss and damage which might be ascertained 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- quire or til make (•omr)ensation for them • the injuries sustained, and that they will be constant and continuous; and, finally, that, to prevent a multiplicitj' of suits, to protect against irreparable damages, and to afford complete relief, the nlaintitf 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 cases 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 1846, 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. By sec- tion 970 of the Code of Civil Procedure, which was a now enactment, it is provid- ed that "where a party is entitled hy 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 plainly stated for tri- al accordingly," whereupon the court must so Older, 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 a pplication 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 187-, 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 within the purvievp oE the constitutional guaranty. The action was one purely for a court of equity, for thi main relief sought was an injunctioi 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 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 JURISDICTION. 11 equity gains jurisdiction of a cause before it Jor one purpose it may retain it gener- ally. To do complete justice between the parties, a court of equity will lurther re- tain tbe cause for the purpose of ascer- taining and awarding the apparent dam- ages, as sometliing 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, talving 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 remarlied by Judge Earl in the case of Madison Avenue Baptist Church, 73 N. Y. 82, 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 Finch, 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 by 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 fefiruredoes 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 Seldkn. That was a suit in equity, brought to restrain the defend- ants from using the street with 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 defendants, in constructing 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- plicltv oi suits, and can, oi course, recover his damages as incidental to this equita- ble relief. There may 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 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 already 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 wliioh had been sold, 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 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, 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. '1 his 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 Iiave 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 Danfoejth, 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 tbe 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 of these actions 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 them the complainante 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 Williams 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 by au- thority. It is true that in these cases the right to demand a jury trial as to past 12 PEINCIPLES LIMITmG JUKISDICTION. cIumaKes was not precisely or In terms stated as the proposition advanced ; but that, as it seems to me, would be a very narrow evasion of 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 JSi. 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 the defendant had obligated himself in a certain agreement. Chief Judge KuGER delivered the opinion of this court in affirmance of the judgment, and said: "This principle has been applied in many eases in awarding judgment for pecuniary damages, even when the party had an adequate remedy at law, it 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- ous cases. I think some confusion of thonght 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 i)roceedings in the courts, as it was held by the chancel- lor in the case of Beekman v. Railroad, 3 Paige, 45. Where the trial of a civil pro- ceeding presents for determination a ques- tion of fact the right of trial by jury is proper, and can be invoked. But an ac- tion brought to restrain the commission of trespasses which are continuous in their nature is necessarily in equity, and the court interferes to prevent multiplici- ty of 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, up(m the facts to be established upon the tripl, 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 fix its amount; and I do not think the con- stitutional provision was aimed at such a proceeding. As defined by the chancellor in the case 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 N. Y. 319, 11 N. E. Rep. 518: "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 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. 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 of 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 tliis 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 of compensation for injury sustained. In Watson V. Hunter, 5 Johns. Ch. 169, the bill was filed to enjoin the cutting of tim- ber and to restrain the removal of that which had already been cut. Chancellor Kent confined the relief of 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 conimissiou of waste, and the remedy for waste already committed is merely incidental to the jurisdiction in the other case, assumed to prevent multiplici- ty of suits, and to save the party the ne- cessity of resorting to trover at law."' The chancellor's exposition of the princi- ple upon which equity acts in cases of waste obviously is as applicable to cases of trespass. If the action at law in tro- ver was deemed unnecessarj' 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. LordHAKDwiCKE,in Garth v. Cotton, 1 "Ves. Sr. 528, had held that the decree for 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 for an ac- count and satisfaction for waste in cut- ting ti-ees, and no injunction was prayed for, Lord Hardwiokb saidthatthe bill was improper, and that an action of trover was the remedy. He asserted the rule, however, that where the bill was 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 a complete decree, and give the injured party a satisfaction PRmCIPLES LIMITING JURISDICTION. 13 for wliat had been done, and not oblise him to bring another action at law. In the subsequent case of Smith v. Cooke, Id. i5!sl. the same lord chancellor declared 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, 2Ch. Cas. 201, that -when a court of chancery has once grained 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) Kent held, in Armstrong v. (lilchrist, 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 injunction, will, in most cases of account, whenever it is in full possession of the merits, and has snffi- •cient materials 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 i-euover 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 intavorof 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. Ch. 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 which was a common, but not a joint, in- jury to both complainants. The objec- tion to the prayer for an account and compensation for 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 c(jmpel 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 €ode 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 T. Caryl spoke obiter in his re- marks upon the general right of trial by jury, as his opinion indicates, for he says BPUE, J. The bill of complaint filed in tills cause, after setting out the proceedings iu the suit in chancery between Haughwout and Boisaubln, charges that the deed of con- veyance from Boisaubln to Murphj', though bearing date on the 7th of August, lS(;.j, was not actuary delivered until the 5th day of October of that year, and after the filing of the bill of complaint by Haughwout against Boisaubln, 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 Boisaubln, 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- bln, be declared invalid and of no effect 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 subject 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 fi-om 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 paity, and will be bound by the decree which shall be made. 1 Story, Eq. Jur. § 406; Story, 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, Tnistees, *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 aifect 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 subpoena 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. Prom 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. Boisaubln. 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 AVeud. 442. A person 1 Revision, p. 114, § 57. 2 18 N. J. E(i. 3t-j. ■48 MAXIiMS OP EQUITY. wliose interest existed at the comnienceiiient of the suit is a necessity party, and will not be bound by the proceediugs unless he be made a party to the suit. Ensworth 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 entitled to re- lief. In this aspect the bill is to be taken to have been tiled 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 puiposes, 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. Eq. 460; Hoag- Jand 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 hell's 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 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 Spenee, 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. 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 much a trustee as he was. 1 Eq. Gas. Abr. oS4; 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. Ballou, 1 Johns. <>h. 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 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. 17,951. 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 Plagg 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 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 lie who asks equity must do equity. The cases are collected in 2 lioad. Gas. 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- tioiL 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- her, 1863. In Febniary, 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- pcuted and delivered in August, 186.5. The 1)111 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 iiill was filed. Boisaubin, in his answer, HUTCH. EQ. JUR. — 4 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, 1866, 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 ijrose- 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 seclirity 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 MAXJMS or EQUITY. CLEMENTS v. TILLMAX et al. (5 S. E. 194, 79 Ga. 451.) Supreme Court of Geoi-gia. February 13, 1888. 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, defendant and plaintiff in error, for an account and settle- ment of a legacy due said Hattie B. Till- man undei' 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 E. 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. (Elements, 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 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 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 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 eflScacious equitable remedies, while presenting 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 Bland ford. J., being disqualified. Judge Kib- bee, of the Oconee circuit, was designated to preside in his stead. MAXIMS OF EQUITY. 5] 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 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 PROPERTY IN EQUITY— TRUSTS. 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, 1865. 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 the 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 incun-ed 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, P. French & J. B. Maynadier, for plain- tiff. E. D. Sohier & C. 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 tmst 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 suf- 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 aU been held suflicient, 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 nondellvei-y of the instru- ment is a significant fact, of greater or less weight according to the circumstances. If 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 facts bearing upon the question of inten- tion, and it has been held that if a party ex- ecute a voluntary settlement, and the deed PKOPBKTY IN EQUITY— TRUSTS. 53 recites that it is sealed and delivered, it will be binding on the settlor, even if he never parts with it and keeps it in his possession until, his death. Bunn v. Winthiop, 1 Johns. Oh. 329; Perry, Trusts, § 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 trust 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 significance. 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, c. 37, § 3), and they remained until the first 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, Trusts, § 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 necessai'y, 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 effect of the memorandum in establishing the trust. That results, as matter of law, from the proof. We are taclined 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 adminis- tering the tnists. Decree for the plaintiff. 54 PROPERTY IN EQUITY— TRUSTS. 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 his brother Thomas, the plaintiff, a bond conditioned for the con- veyance of certain parcels of land (estimated at about tvFo hundred and fifty acresj upon payment of the obligee's notes. In I8.3I, be- fore the maturity of all the notes, an adjust- ment was made, by which, in satisfactian 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. e. 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; Barren v. Joy, 16 Mass. 221; Pinnock V. Clough, 17 Vt. 508. Prom 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 theii- 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, 1866, 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 plaintiff 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 plaintiff 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 plaintiff on this score with her. The testimony establishes the fact that the plaintiff 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 PBOPERTY 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. APPLETON, C. J., and WALTON, DAN- PORTH, and PETERS, JJ., concurred. ss PROPERTY IN EQUITY— TRUSTS. PATTON et al. v. CHAMBERLAIN et al. (5 N. W. 1037, 44 Mich. 5.) Supreme Court of Michigan. Juue llj 1880. Appeal from Detroit. Joslyn & Freeman, for complainants. At- liinsou & Atliinson, for defendants. COOLEY, J. We bave 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 -wife 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 daughter , 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 some $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 lU. 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. PHOPERTY 12Sr EQUITY— TRUSTS. 67 ORISSMAN V. CRISSMAN et al. (23 Mich. 217.) Supreme Court of Michigan. July Term, 1871. Appeal from circuit court, Macomb coun- ty; in chancery. Gr. Hubbard and Ashley Pond, for complaiu- ant. E. F. Mead and A. B. Maynard, for de- fendants. COOLBY, 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, who 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, 1863 ; 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 dtiring 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, 186G, said Frederick S. Criss- man was appointed by the probate com-t of Macomb county, administrator upon his es- tate, and took upon himself that tnist; 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 his 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 further 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 conti'olled by said Day; that she had, at the time of her death, about four 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 blE 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 Frederick S. Criss- man, may be declared to be a legal, equitable and bona fide conveyance to said Freuerick, in trust for complainant, without 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 contrary 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 enjoined from transferring, expending or disposing of 58 PKOPEllTY IX EQUITY— TKUSTS. any of the money, property or tlie proceeds thereof so received by them through, and by, said Dinah Smith, or since her death, except as they shall return the same to Frederick S. Crissman, and that said Frederick 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 relied 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 afllrming 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 veiy <;lear and satisfactory, 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 affau's 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 incredible 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 case." It was PROPEKTY IN EQUITY— TRUSTS. 59 only after it was ascertained tliat Francis Smith's widow was entitled of light to a por- tion of his property, and might dispose of it by will, that Crissman 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 the death of Francis Smith, and inconsistent also with the only writing which evidenced any part of the ti-ansaction. 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 aflBrmed, with costs. The other justices concurred. 60 PliOPEKTY IN EQUITY— TEUSTS. STEERS 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 plaintifCs, 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- tlplace 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, t'jse Cole and Glover farms. " That Asel Steere conveyed the same farms to Richard and Mark Steere. That the purchase was made pursuant to an agreement with Stephen Steere, and that Asel Steere acted merely as the agent of Richard and Mark Steei-e, and the land was to be held in trust for 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 trust; 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 PROrERTY'IS" EQUITY— TRUSTS. 61 tnist, were set forth at large and several spe- cial Interrogations added. The defendants, Richard and Hark Steere, in tlieir answers, the whole of which it is un- necessary to state, denied the trusts alleged in the bill, or any agreement wliatever, 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 Mark Steere, would give a share of the prop- erty to them. That Richard and Jlark 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 iXark 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 dollars, 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 ilark, admitted the account of the 2Sth of January, 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, pro- 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 private memorandum, untU 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 trustee, 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 wiU 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 smns 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 Smithfield, Februaiy 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 46 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 PKOPERTY m 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 White'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 pS.rt 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 wholly 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, Ch. 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 profits, 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 their PItOPEliTY IN EQUITY— TRUSTS. 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 disti-ibute 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 la^ 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 iis trouble, or else to engage that all the prof- its of the purchase should be applied justly, md equitably, to the common benefit of the 'ainily. 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 Kames, Is much more lim- ited than the virtue. "Sanguinis conjuncti'O' benevolentia devincit homines et carltate." The fii-st item of testimony from whence the plaintiffs undertake to show the trust, ia 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 declai'es, 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 him^olf as holding the land In the first place, for his reimbui-sement, 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- €4. PHOPERTY IN EQUITY— TRUSTS. says, therefore, lie 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 TJha- ■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 JIark 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 Tsill. 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 Ijill 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 evidence 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 hands ot the defendant JIark Steere, and there v\as never any free and voluntary delivery for the pm-pose to which they have been applied. The only part of the letter PEOPEETT IN EQUITY— TEUSTS. 65 which shows that the defendants considered themselves as acting In the purchase and management of the estate, as trustees for tiieir father, the testator, Is the expression that "the old account had been agreed to by fa- tier." This probably referred to the account of 1809; 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 were 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 1811: was partly executed by the defendants, and the several voluntary transfers to the chlldien, 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. 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 sheriff's 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 shej'ifC's sale was absolute, with- out any trust or qualiflcation 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 such 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 Jlr. 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 Mm to convey the estate to you, because that would be directly in the teeth 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. ^. PROPERTY m EQUITY— TRUSTS. 67 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 the widow to elect. There 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. 002; Church v. Bull, 2 Denio, 430; Jackson v. Churchill, 7 Cow. 287; Savage v. Burn- liam, 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- hold 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 unequivocally the inten- tion of the parties to create a trust will have that effect. It was said by Lord Eldon, that the word 'trust' 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. 05) and cases there cited. We are in this case to determine the ques- tion by the authority conferred 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 68 PKOPEliTY IN EQUITY— TRUSTS. 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 pereon or persons once in six months dming 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 insm-e, with the duty that rests somewhere to pay aU 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 malie the ultimate division, and consequently to retain for that purpose 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 insure 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 deeds 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 hfe 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, 2i8; 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 ia 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 Bedesdale 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 conti'ol 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 impUcation may so lease that rents will come to his hands out of whidi to pay repairs and insurance, 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. Perldns, 2 N. Y. 297, the testator constituted his ex- ecutors trustees of the estate devised to his daughters for life, and authorized them to take charge of, manage and improve the same, and pay over to them from time to PROPEKTr IN EQUITY— TRUSTS. 6» time the rents, interest and income thereof. 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 ti'usts (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 wiU, and took, by implication, the legal estate during 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 plaintifE 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- pose 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 pa '■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 PJiOPERTY IN EQUITY— TRUSTS. YOUNG V. YOUNG. (80 N. Y. 422.) Court of Appeals of New York. 1880. Appeal from judgment of tbe 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 tovi^n 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 pacljages inclosed in envelopes, upon which were indorsed memo- randa signed by him, one dated ilarch 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 resei-ved 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 ''espondent. 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 if 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 purpose 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 form 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 the 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 instrument 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 boiids 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. But if an absolute delivery of the bonds to the donee, with intent to pass the title, was made out, the donor reserving only the right to look to the donee for the interest, the transaction 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 memoranda, 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 he- PROPEKTT m 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 m pui-suance 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 affixing 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 keist 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 were made on the 14th March, 1874. The testator died November 12, 1875. In the meantime installments of interest on the bonds became due. The deceased cut ofC the coupons, and on some occasions William H. Young assisted him in so doing, but Wil- liam H. testified that 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, altliousli William H. Young and his son, James V. YduuK. 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 memo- 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 all 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 respectivelj', 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 PROPERTY m 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 keep 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 i 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 malie. 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 futuro. 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. C.) 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 Bx'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 difliculty 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 effectuated its intent by compelling the execution of a declaration of trust, or by chai-ging the bonds, while in his hands, with a trust in favor of the equitable owner. Day v. Roth, 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 Yes. 39, 43; Edwards v. Jones, 1 Mylne & C. 226; 7 Sim. 325; Price v. Price, 8 Eng. Law & Eq. 281; Hughes v. Stubbs, 1 Hare, 476. It PKOPEBTY IN EQUITY— THUSTS. 7S established as unquestionable law that a ui-t of equity cannot by its authority uder that gift perfect which the donor has ft imperfect, and cannot convert an imper- ct gift into a declaration of trust, merely 1 account of that imperfection. Heartley v. icholson, 44 L. J. Ch. 279. It has in some ses been attempted to establish an excep- )u in favor of a wife and children on the ound that the moral obligation of the donor provide for them constituted what was .lied a meritorious consideration for the ft, but Judge Story (2 Eq. Jur. § 987, and 1 ' q. Jur. § 433) says that that doctinne seems )w to be overthrown, and that the general ■inciple Is established that in no case what- -er will courts of equity interfere in favor ' mere volunteers, whether it be upon a )luntary contract, or a covenant, or a set- ement, however meritorious may be the con- deration, and although the beneficiaries and in the relation of a wife or child. Hol- way V. Headington, 8 Sim. 32.5; Jeffreys v. ;ffreys, 1 Craig & P. 138, 141. These positions are sustained by many au- lorities. To create a trust, the acts or words !lied upon must be unequivocal, implying lat the person holds the property as trustee )r another. Martin v. Funk, 75 N. Y. 134, 3r Church, C. J. Though It is not necessary lat the declaration of trust be in terms ex- licit, the donor must have evinced by acts hich admit of no other interpretation, that ich legal right as he retains is held by him 5 trustee for the donee. Heartley v. Xich- son, 44 L. J. Cb. 277, per Bacon, '\'. C. he settler must transfer the property to a ustee, or declare that he holds it himself in ■ust Milroy v. Lord, 4 De Gex, F. & J. 264, 3r Lord Knight Bruce. In cases of volun- iry settlements or gifts, the court will not apute a trust where a trust was not in fact le thing contemplated. The distinction be- veen words importing a gift and words cre- ;ing a trust is pointed out by Sir Geo. Jessel I Richards v. Delbridge, L. R. 18 Eq. Cas. L, as follows: "The making a man trustee ivolves an intention to become a trustee, hereas words of gift show an intention to ve over property to another, and not to re- in it in the donor's hands for any purpose, luciary or otherwise." The words of the donor in the present case •e that the bonds are owned by the donees. It that the interest to accrue thereon is vned and reserved by the donor for so long 1 he shall live, and at his death they belong jsolutely to the donees. No intention Is here :pressed to hold any legal title to the bonds trust for the donees. Whatever interest as intended to be vested in them was trans- rred to them directly, subject to the reser- ition in favor of the donor during his life, id free from that reservation at his death. Dthing was reserved to the donor, to be held trust or otherwise, except his right to the cruing Interest which should become pay- tie during his life. It could only be by re- forming or supplementing the language used, that a ti-ust 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. JIalleson, L. R. 10 Eq. Cas. 475, and Richardson v. Richardson, L. R. 3 Eq. Cas. 686. In the firat 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 th& 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 instniment 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 declaiation of trust. Both of the cases cited are now placed among overruled cases. Fisher, Ann. Dig. (1873 and 1874) 24, 23. In Moore v. Moore, 43 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 ti-ust. Milroy v, Lord, 4 De Gex, P. Si J. 204. The case of JIartin 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— TKUSTS. 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. t^ I'llOPERTY IN EQUITY— TRUSTS. 75 ELLISON r. ELLISON. (G Ves. 656.) High Court ot Chancery. 1802. By indentures, dated the 1st of July, 1791, reciting a lease, dated the 6th of Juue pre- ceding, of collieries at Hehburn and .Tar- 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 tnist for Na- thaniel EUison 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 Jlay 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 FuiTe, the clear yearly sum of £180; and after the decease of Anne Fuiye 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 then 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 Ellison during the life of Margaret Clavering the yearly sum of £22. 10s. 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 ti'ust 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 alike; 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, administrators, 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, 76 PROPEHTY IN EQUITY— TUUSTS. 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 £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 Claverlng 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 1708; leaving his wid- ow and ten children sui-viving; one of whom, Cliarles Ellison, died in 1799, an Infant, Wren also died in that year. The bill was filed by the testator's widow and Margaret Claver- lng; 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. LOltD 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 distlnc-i 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 trusty 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 trans- 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. Claverlng was an annuitant, and not a mere volunteer. But It was put for the defendants thus; that though tlie 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 PEOPEKTY IN EQUITY— TKUSTS. 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 Tub 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 difliculty 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- €cutors 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, up"on 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, I the second deed does not sufficiently mani- I! fest an intention to revoke all the benefits l( given by the first deed to the children; and/) it is not Inconsistent that he might intend to^i revoke some and not all. I 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 tmsts, &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 ; \feich 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 wMe then vested in the person of Wren. 78 PllOFKKTY IN EQUJTY— TRUSTS. RICHARDSON v. RICHARDSON. (L. R. 3 Bq. 686.) February 26, 1876. Mr. G. M. Giffard and ilr. Kay, Q. C, for plaintiff. Jlr. Willeocli, Q. C, and Mr. Faber, for defendants. WOOD, V. C. The sole question in this case is whether a legatee, under the will of the testator, Richard Richardson, of a sum of £1250, ought or ought not to submit 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 the 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 his legacy so much of the as- sets of'the testator as his debt amounted to. Whether 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, the tes- tator, and in the 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 the personal estate and effects, 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 the testator as trustee or in his own right. After the 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 this instrument, because the rule laid down in that case, the decision in which 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 the argument in that case, and the judgment of Lord Justice Knight Bruce, without seeing that his mind was directed to Meek v. Kettlewell, 1 Hare, 464; on appeal, 1 Phil. Ch. 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 was 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 often 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 tlie assignor's equitable Interest, and that such a declaration of trust Is as good a form as any that can be devised. The 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 instrument." In that case reference was made in the argument principally to the case of Ex parte Pye, 18 Ves. 140, which was a decision of Lord Eldon to the same effect. 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 assignment. But that is not the sound doctrine on which the case rests; for if there be an actual declaration of trust, al- though the assignor has not done all that he 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 pui-chase. The agent, finding the lady was a married woman, exercised his own dls- PROPERTY IN EQUITY— TKUSTS. 7y cretlon, and bought the annuity in the name of the testator. Then, shortly before his death, 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 transfen'ed. 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 in Ms 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, perliaps with- out sufficient authority, or sufficient inquiry into the effect 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 pereonal 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 pei-iod, 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 effectually assign- 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 efCec- 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 create 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 tliought 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 186-1, 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 executoi-s 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 executoi-s 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 tlie 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 testa^tor 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 vei-y 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 PKOFEllTY IJS' -EQUITY— TKUSTS. MORGAN V. MALLESON. (L. R. 10 Eq. 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 EOMILLY. 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 amciants to the same thing; and Dr. Morris is entitled to the bond, and to all interest accrued due thereon. U' .^y PROPERTY IK EQUITY— TRUSTS. 81 ; .RICHARDS V. DELBRIDGE. (L. E. 18 Bq. 11.) Chancery Division. April 16, 1874. Demurrer. Tlie 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 21;th of .Tune, 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 memorandum^ delivered the lease on his behalf to Elizabeth Ann Richards, the plain- tiff's mother, who -n-as still in possession thereof. That John Delbridge died in April, 1873, having executed several testamentary instruments which did not refer specifically to the said mill and premises, but he gave his furniture and effects, after his wife's death, to be divided among his family. That the testator's widow, Elizabeth Richards, took " out administration to his estate, with the testamentary papers annexed. The bill, which was filed against the defendants Elizabeth Delbridge, Elizabeth Ann Richards, and the testator's two sons, who claimed under the said testamentary instruments, prayed a dec- laration that the indorsement upon the lease by John Delbridge and the delivery of the lease to Elizabeth Ann Richards created a valid trust in favor of the plaintiff of the lease and of the estate and interest of John Delbridge in the property therein comprised, and in the good will of the business carried on there, and in the implements and stock- in-trade belonging to the business. The de- fendants demurred to the bill for want of equity. Fry, Q. C, and Mr. Phear, in support of the demurrer. W. R. Fisher (Mr. Southgate, Q. C, with him), and T. D. Bolton, for plain- tifC. Gregory, Rowcliffes •& Rawle, for de- fendants. JESSEL, M. R. This bill is wan'anted by the decisions in Richardson v. Richardson, L. R. 3 Eq. 686, and Morgan v. Malleson, L. R. 10 Bq. 475, but, on the other hand, we have the case of MUroy v. Lord, 4 De Gex, F. & J. 264, before the court of appeals, and the more recent case of Waniner v. Rogers, L. R. 16 Eq. 340, 348, in which Vice Chancellor Bacon said: "The rule of law HUTCH.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 wliich had been his up to the time of the declaration, should have effectvially 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 court of appeal. It is true the judges appear to have taken different views of the constmction 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 may, 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 constiiie 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 insufiicient 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. 47.5, the words were: "I hereby give and make over to Dr. Morris an India bond"; and in Richardson v. Richardson, L. R. 3 Eq. 686, the words were, "grant convey, and assign." In both cases the judges held that the words were effectual 83 PEOPEKTY IN EQUITY— TRUSTS. declarations of trust. In the former case, Lord Romilly considered that tlie 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 appears 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 tnistee, where- as words of present gift shew an intention to give over property to another, and not re- tain it in the donor's own bauds for any purpose, 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 converted 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 expres.sion of a present gift would not amount to an effectual dec- laration of trusi, which would be candying 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 \oluntary 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 cost* must follow the result PROPERTY IN EQUITY— TRUSTS. 83 MARTIN V. FUNK. (75 N. ¥. 134.) Court of Appeals of New York. Nor. 12, 1878. Nehemiah Jlillard, for appellants. M. W. Divine, for respondent. CHURCH, C. J. The facts in this case are substantially undisputed, as found by the judge before whom the case was tried. The intestate Mrs. Boone, in 1866, deposited in the Citizens' Savings Bank $500, declar- ing at the time that she wanted the account to be in trust for Lillie Willard, who is the plaintiff. The account was so entered, and a pass-book delivered to the intestate, which contained these entries: "The Citizens' Sav- ings Bank in account with Susan Boone, in trust for Lillie Willard. 1866, March 23, $500." A deposit of the same amount and in the same manner was made in trust for Kate Willard, now Mrs. Brown. This money be- longed to the intestate at the time of the de- posits. The plaintiff and Mrs. Brown are sisters, and were at the time of the age re- spectively of eighteen and twenty, and were distant relatives of the intestate, their moth- er being a second cousin. The Intestate re- tained possession of the pass-books until her death in 1875, and the plaintiff and her sister were ignorant of the deposits until after that event. The money remained in the bank with its accumulated interest until the death of the intestate, except that she drew out one year's interest. Mrs. Brown assigned to the plaintiff her interest in the deposit purporting to have been made for her benefit, and the action is brought against the administrator of the intestate and the bank for the delivery of the pass-books and the recovery of the money. The question involved has been very much litigated, and many refinements may be found in the books in respect to it. Many cases have been found diflacult of solution, not so much on account of the general principles which should govern, as in applying those prin- ciples to a particular state of facts. It is clear that a person sui juris, acting freely and with full knowledge, has the power to make a voluntary gift of the whole or any part of his property, while it is well settled that a mere intention, whether expressed or not, is not sufficient, and a voluntary prom- ise to make a gift is nudum pactum, and of II binding force. Kekewich v. Manning, 50 Eug. Ch. 175, and cases cited. The act con- stituting the transfer must be consummated, and not remain incomplete, or rest in mere intention, and this is the rule whether the gift is by delivery only, or by the creation of a trust in a third person, or in creating the donor himself a trustee. Enough must be done to pass the title, although when a trust is declared, whether in a third person or the donor, it is not essential that the prop- erty should be actually possessed by the ces- tui que trust, nor is it even essential that the latter should be informed of the trust. In Milroy v. Lord, 4 De Gex, F. & J. 204, Lord Chief Justice Turner, who adopted the most rigid construction of trusts, in delivering an opinion against the validity of the trust in that case, laid down the general principles as accurately perhaps as is practicable. He said: "I take the law of this court to be well settled, that in order to render a volun- tary settlement valid and effectual the set- tler must have done every thing which ac- cording to the nature of the property com- prised in the settlement was necessary to be done in order to transfer the property, and render the settlement binding upon him. He may of course do this by actually trans- fen-ing the property to the persons for whom he intended to provide, and the provision will then be effectual, and it will be equally ef- fectual if he transfer the property to a trus- tee for the purpose of the settlement, or de- clare that he himself holds it in trust for those purposes, and if the property be per- sonal, the trust may I apprehend be declared either in writing or by parol." The contention of the defendant is that the transaction did not transfer the prop- erty, and that there was no sufficient dec- laration of trust and that by retaining the pass-books the intestate never pai-ted with the control of the property. If what she did was sufficient to constitute herself a trustee, it must follow that whatever con- trol she retained would be exercised as trus- tee, and the right to exercise it would not be necessarily inconsistent with the com- pleteness of the trust. The question involv- ing substantially the same facts has been several times before different courts of the state, and in every instance the transaction has been sustained as a good gift. The Case of Wetzel before Surrogate Brad- ford, and Millspaugh v. Putnam, 16 Abb. Prac. 380, were deposits in the same form, and in the former the cestui que trust had no notice of the deposit, and in both cases the gift was held effectual. In Smith V. Lee, 2 Thomp. & C. 591, money was de- posited with the defendant, and a note taken payable to the depositor for another person, and it was held that the depositor consti- tuted himself a trustee. The case of Kelly V. Manhattan Inst, for Savings (not report- ed) was a special term decision of the New York common pleas before Robinson, J., where precisely such a deposit was made as in this, and it was upheld as an absolute gift. These decisions although not control- ling upon this court are entitled to respect, and they show the tendency of the judicial mind to give these transactions the effect which on their face they import. So in Minor v. Rogers, 40 Conn. 512, a similar de- posit was upheld as a declaration of trust. Park, J., noticed the point urged there as here of the retention of the pass-book, and said: "She retained possession therefore be- «4 PROPERTY IN EQUITY— TRUSTS. cause the deposit was made in her uame as trustee, and not because she had not given the heneficial interest of the deposit to the plaintiff," and in that case the depositor had drawn out the deposit, and the action was sustained against her administrator. So in Ray V. Simmons, 11 E. I. 266; the facts were precisely like the case at bar, except that the cestui que trust was informed of the gift, and the court held the trust valid. But the supreme court of Massachusetts In two cases (Brabrook v. Boston Five Cent Sav. Bank, 104 Mass. 228, and Clark v. Clark, 108 Mass. 522) seem to hold a differ- ent doctrine. In the first case the circum- stances were deemed controlling, adverse to an intent to create a trust, and in the last, which was similar in its facts to this, the court express the opinion that the trust was not complete, but without giving any rea- sons for the opinion. The last decision, al- though entitled to great respect, is excep- tional to the general current of authority in this country. In the English courts I do not find any case where these precise facts appeared, but the cases are numerous where the general principles have been elaborately discussed and applied to particular facts. It is only deemed necessary to refer to a few of them. In Richardson v. Richardson, L. R. 3 Eq. Cas. 684, it was held that an instrument executed as a present and complete assign- ment (not being a mere contract to assign at a future day) is equivalent to a declara- tion of trust. Morgan v. Malleson, L. R. 10 Eq. Cas. 475, was decided upon this prin- ciple, and is an extreme case in support of a declaration trust. It appeared that the testator gave to his medical attendant the following memorandum: "I hereby give and make over to Dr. Morris, an Indian bond No. D 506, value £1,000, as some token for all his very kind attention to me during my illness." This was held to constitute the testator a trustee for Dr. Morris of the bond which was retained by him. These cases are commented upon, and the latter some- what criticised in Warriner v. Rogers, L. R. 16 Eq. 340, but Sir James Bacon, in deliver- ing the opinion, substantially adheres to the general rule before stated. He requires on- ly "that the donor or grantor, or whatever he may be called, should have absolutely parted with that interest which had been his up to the time of the declaration— should liave effectually changed his right in that respect, and put the property out of his pow- er, at least in the way of interest." This case was decided against the validity of the trust, mainly upon the ground that the memoi'anda produced were upon their face testamentary in character. In Pye's Case, 18 Ves. 140, money was transmitted to an agent in France to purchase an annuity for a lady. Owing to circumstances which the agent supposed prevented its purchase in her name, he purchased it in the name of the principal. When the latter learned this fact, he executed and transmitted to the agent a power of attorney to transfer the annuity, but before its arrival the principal died. Lord Eldon held that a declaration of trust was established. Wheatley v. Purr, 1 Keen, 551, is quite analogous to the case at bar. A testatrix directed her brokers to place £2,000, in the joint name of the plaintiffs, and herself as a trustee for the plaintiffs. The sum was placed to the account of the testatrix aloue, as trustee of the plaintiffs, and a promis- sory note was given by them to her as such trustee. The note remained In her posses- sion until her death, when her executor re- ceived the money. It was held that the transaction amounted to a complete declara- tion of trust. Mr. Hill, in his work on Trustees, after saying "that it is extremely difficult, in the present state of authorities, to define with accuracy the law affecting this very intri- cate subject," lays down the following as the result: "When the author of the vol- untary trust is possessed of the legal inter- est in the property, a clear declaration of trust contained in or accompanying a deed or act which passes the legal estate wiU cre- ate a perfect executed trust, and so a dec- laration or direction by a party that the property shall be held in trust for the object of his bounty, though unaccompanied by a deed or other act divesting himself of the legal estate, is an executed trust." Hill, Trustees, 130. If there is a valid declaration of trust, that is sufficient of itself, I apprehend, to transfer the title, but the difficulty is in de- termining what constitutes such a declara- tion, and whether a mere formal transfer of the property, as in the case of the medical attendant, is sufficient, is a question upon which there is some difference of opinion. No particular form of words is necessary to constitute a trust, while the act or words relied upon must be unequivocal, implying that the person holds the property as trustee for another. Let us now consider the case in hand. In form at least the title to the money was changed from the intestate individually to her as trustee. She stated to the bank that she desired the money to be thus deposited. It was so done by her direction, and she took a voucher to herself in trust for the plain- tiff. Upon these facts what other intent can be imputed to the intestate than such as her acts and declarations imported, and did they not import a trust'.' There was no con- tingency or uncertainty iu the circumstan- ces, and I am unable to see wherein it was incomplete. The money was deposited un- qualifiedly and absolutely In trust, and the intestate was the trustee. It would scarce- ly have been stronger if she had written in the pass-book: "I hereby declare that I have deposited this money for the benefit of the PROPERTY IN EQUITY— TRUSTS. 85 plaintiff and I liold the same as trustee for her." This would have been a plain declaration of trust, and accompanied as it was with a formal transfer to herself in the capacity of trustee, would have been deemed sufficient under the most rigid rules to he found in any of the authorities. It seems to me that this was the necessary legal intendment of the transaction, and that it was sufficient to pass the title. The retention of the pass- hook was not necessarily inconsistent with this construction. She must be deemed to have retained it as trustee. The book was not the property, but only the voucher for the property, which after the deposit con- sisted of the debt against the bank. There are many cases where the instru- ment creating the trust has been retained by the author of it until his death, especially when he made himself the trustee, and yet the trust sustained. Exton v. Scott, 6 Sim. 31; Fletcher v. Fletcher, 4 Hare, 67; Souver- bye V. Arden, 1 Johns. Ch. 240; Bunn v. Winthrop, Id., 329. This circumstance, among others, has been considered upon the question of intent, but is never deemed de- cisive against the validity of the trust. Id. See, Hill, Trustees, supra. Some confusion has been created by judicial expression, that the author of such a trust must do all in his power to carry out his intention, that the nature of the property will admit of. This general proposition requires some qualifica- tion. In this case the intestate might have notified the objects of her bounty, but this is not regarded as indispensable by any of the authorities, and she might have made the deposits in their name, and delivered to them the books, or delivered to them the money. The rule does not require that the gift shall be made in any particular way, it only requires that enough shall be done to transfer the title to the property, and one of the modes of doing this is by an unequivocal declaration of trust. In Richardson v. Rich- ardson, supra, the court, in noticing this point, said: "Reliance is often placed on the circumstance that the assignor has done all he can, and 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 effectual assignment. But that is not the sound doctrine on which the case rests; for if there be an actual declara- tion of trust, although the assignor has not done all that he could do, for example, al- though he has ' not given notice to the as- signee, yet the interest is held to have ef- fectually passed as between the donor and donee. The difference must be rested sim- ply on this: aye or no, has he constituted himself a trustee." As notice to the cestui que trust was not necessary, and as the retention of the pass- books was not inconsistent with the com- pleteness of the act, the case is peculiarly one to be determined by this test: did the intestate constitute herself a trustee? After a careful consideration of the case in con- nection with the established i-ules applicable to the subject, and the authorities, I think this question must be answered in the af- firmative. It was not done in express for- mal terms, but such is the fair legal import of the transaction. I have considered the case thus far upon what appears from the face of the transaction, without evidence ali- unde, bearing upon the intent. It is not necessary to decide that surrounding cir- cumstances may not be shown to vary or ex- plain the apparent character of the acts, and the intent with which they were done. The facts developed may not be so unequivocal as to be regarded as conclusive. It is suf- ficient to say that there is no finding of an intent contrary to the creation of a trust, and the facts found do not establish such an adverse intent. But looking at the evidence it is fairly inferable that the intestate de- signed that the plaintiff and her sister should have the benefit of these deposits, and there are some circumstances from which an in- ference may be drawn that she regarded the gifts as fixed and complete. The circum- stance that she did not intend that the ob- jects of her bounty should know of her gift until after her death is not inconsistent with It, and the most that can be said is that she may have believed that the deposits might be withdrawn during her life, and the mon- ey converted to her own use. It is not clear that she entertained such a belief, but if she did, it would not change the legal effect of her acts. The judgment must be affirmed. All concur except JIILLER and EARL, JJ., absent at argument. Judgment affirmed. 86 PliOPERTY IN EQUITY— TRUSTS. DELANBY v. McCORMACK et al. (88 N. Y. 174.) Court of Appeals of New York. Feb. 28, 1882. Appeal from judgment of the general term of the supreme court, in the Second judicial department, entered upon an order made the second Monday of December, 1881, which atflrmed a judgment in favor of plaintiff, en- tered upon a decision of the court on trial at special term. Reported below, 25 Hun, 574. This action was brought to obtain a con- struction of the will of .John Walsh, late of the city of New York, deceased. The clauses of the will as to which there was any contro- versy are as follows: "Thirdly. I give, devise, and bequeath unto my said son James, during his natural life, all the rents, issues, and profits of my real estate, and in case he marries and has lawful issue, then and in the last-mentioned event and thereupon I give, devise, and bequeath to my said son James all and singular my i-eal estate, whatsoever and wheresoever, to have and to hold, the same to my said son, liis heirs and assigns forever. "Fourthly. I desire my executors to keep the buildings on my real estate insured ;i gainst loss or damage by fire, and in repair, and to pay all taxes, assessments, and other charges thereon, and also the interest on in- (•umbrances by mortgage thereon; and, if necessary, they are authorized to receive suf- ficient of the rents to enable them so to do; and in case of damage or loss by fire they are to receive the avails of the insurance, and to repair or rebuild; but this clause of my will is only to have effect until my said son James shall have lawful issue; and 1 also authorize my said executors, until that event, to raise, by mortgage of my real es- tate, or any part thereof, whenever and as often as shall be necessary, a similar amount as is now on mortgage of my said estate, wherewith to discharge the present mortgage if necessary. "Fifthly. In case of the death of my son James without ever having had any lawful issue, I desire my executors who shall then be surviving, or the last survivor, to sell all my real estate, and to distribute the proceeds thereof amongst my next of kin as personal estate, according to the laws of the state of New York for the distribution of intestate personal estate; and for that purpose I au- thorize my said surviving executors or the last survivor to execute good, valid, and suf- ficient conveyances in the law to transfer said estate, and vest the same In the pur- chaser and purchasers in fee simple. "Liastly. I appoint my beloved wife, and my beloved son James, and my friend Tighe Davey to be the executors of this my last will and testament." The testator died in 1830, leaving, surviv- ing him, his son James, one nephew, the plaintiff herein, and four nieces. James died in 1880, unmarried, and having had no lawful issue. The two other executors died before him, as did also the four nieces of the testator. The defendants are the chil- dren of said nieces. John W. Goff, for appellant McCormack. Luke F. Cozans and J. Woolsey Shephard, for appellants Walker et al. John R. Kuhn, for respondent. FINCH, J. The testator gave to his son James the whole of his real estate for life, and absolutely and in fee, in case the son married and had issue; but if he died with- out having had lawful issue, the testator di- rected his executors who should then be sur- vlvingj or the last survivor of them, to sell his real estate and distribute the proceeds among the testator's "next of kin, as per- sonal estate, according to the laws of the state of New York, for the distribution of intestate personal estate." The executors named were the testator's wife, his son James, and his friend Tighe Davey; all of whom are dead. James died without hav- ing had lawful issue. At testator's death his next of kin were his son James, four nieces, and a nephew, who is the present plaintiff. The four nieces died during the lifetime of James, but leaving children who are defend- ants here, and claim an interest in the pro- ceeds of the real estate, or in the real estate itself. At the date of the death of James the plaintiff" was the sole next of kin of the testator, and claiming the entire proceeds ot the real estate, brought an action for a con- struction of the will and the appointment of a trustee to carry out its unexecuted pro- visions. The trial court determined that it had jurisdiction to appoint a trustee, and made such appointment, and that the plain- tiff was entitled to the entire proceeds of the real estate after payment of the liens there- on. That judgment was affirmed, and the children of two of the nieces bruag this ap- peal. It is contended in their behalf that the de- vise to James, before marriage and the birth of issue, was but a life estate; that the re- mainder in fee vested at the death of testa- tor in his heirs at law; that the four nieces and plaintiff took such remainder in fee as tenants in common, subject to be divested by the marriage of James and birth of law- ful issue; that this contingency not having occurred the fee was not divested; and that it cannot be divested by a sale of the real estate and disposition of the proceeds as per- sonalty because the power of sale given to the executors was a mere naked power, not coupled with any interest; died with the do- nees to whom it was given; and cannot he executed by a court of e ,- ) 92 PllOPEKTY JjST EQUITY— trusts. { ing V. Emery, 16 Pick. 107; Sohier v. St. / Paul's Church, 12 Jletc. (JIass.) 250; Brown , T. Kelsey, 2 Gush. 243; Barle v. Wood, 8 I Cush. 445. It is not necessary in this connec- ' tion to speculate whether the admission of V pious uses into the rank of legal charities in / modern times is to be attributed to the influ- ' ence of the civil law; to their having been J mentioned in the earlier English statutes; to a more liberal interpretation, after religion had become settled in England, of the words } "repair of churches," or, possibly, of the I clauses relating to gifts for the benefit of ed- \ ucation, in St. 43 Eliz. ; or to the support giv- / en by the court of chancery to public charita- ( ble trusts, independently of any statute. It f is sufficient for our present purpose to observe I that pious and religious uses are clearly not \ within the strict words of the statute, and can f only be brought within its purview by the largest extension of its spirit. The civil law, from which the English law of charities was manifestly derived, consid- ered wills made for good and pious uses as privileged testaments, which were not, like other wills, void for uncertainty in the ob- jects, and which must be carried into effect even if their conditions could not be exactly observed; and included among such uses (which it declared to be in their nature per- petual) bequests for the poor, orphans, wid- ows, strangers, prisoners, the redemption of captives, the maintenance of clergymen, the benefit of churches, hospitals, schools and col- leges, the repairing of city walls and bridges, the erection of public buildings, or other or- nament or improvement of a city. Poth. Pand. lib. 30-32, Nos. 57-62; Code, lib. 1, tit. 2, cc. 15, 19; Id., tit. 3, cc. 24, 28, 42, 46, 49, 57; Godol. Leg. pt. 1, c. 5, § 4; 2 Kent, Comm. (6th Ed.) 257; 2 Story, Eq. Jur. §§ 1137-1141; McDonough v. Murdoch, 15 How. 405, 410, 414. Charities are not confined at the present day to those which were permitted by law in Eng- land in the reign of Elizabeth. A gift for the advancement of religion or other charitable purpose in a manner permitted by existing laws is not the less valid by reason of having such an object as would not have been legal at the time of the passage Of the statute of charitable uses. For example, charitable trusts for dissenters from the established church have been uniformly upheld in Eng- land since the toleration act of 1 Wm. & M. e. 18, removed the legal disabilities under which such sects previously labored. Attor- ney General v. Hickman, 2 Eq. Cas. Abr. 193, W. Kel. 34; Loyd v. Spillet, 3 P. Wms. 344, 2 Atk. 148; Attorney General v. Cock, 2 Ves. Sr. 273. And in this country since the Revo- lution no distinction has been made between charitable gifts for the benefit of different re- ligious sects. Gifts for purposes prohibited by or opposed to the existing laws cannot be upheld as char- itable, even if for objects which wouM other- wise be deemed such. The bounty must, in the words of Sir Francis Moore, be "accord- ing to the laws, not against the law," and "not given to do some act against the law." / Duke, Char. Uses, 126, 169. So Mr. Dane- defines, as undoubted charities, "such as are calculated to relieve the poor, and to promote' such education and employment as the laws of the land recognize as useful." 4 Dane, Abr. 237. Upon this principle, the English courts have refused to sustain gifts for print- ing and publishing a book inculcating the j absolute and inalienable supremacy of the ) pope in ecclesiastical matters; or for the sup- j port of the Roman Catholic or the Jewisbi ' religion, before such gifts were countenanced! ) by act of parliament. De Themmines v. De 1 Bonneval, 5 Russ. 288; Tudor, Char. Trusts, 21-25, and cases cited. And a bequest "to- ) wards the .political restoration of the Jews I to Jerusalem and to their own land," has ) been held void, as tending to create a politi- I eal revolution in a friendly country. Haber- shon V. Vardon, 4 De Gex & S. 467. In a free I republic. It is the right of every citizen to" \ strive in a peaceable manner by vote, speech or writing, to cause the laws, or even the ' constitution, under which he lives, to be re- I formed or altered by the legislatm-e or the | people. But it is the duty of the judicial de- I partment to expound and administer thfe laws i as they exist. And trusts whose expressed ) purpose is to bring about changes in the laws or the political institutions of the country ' are not charitable in such a sense as to be entitled to peculiar favor, protection and per- ' petuation from the ministers of those laws which they are designed to modify or sub- ; vert. A precise and complete definition of a legal^Mu, charity is hardly to be found in the books!^'^|^ ITie one most commonly used in modern >fM^ cases, originating in the judgment of Sir William Grant, confirmed by that of Lord Eldon, in Morice v. Bishop of Durham. 9* Ves. 405, 10 Ves. 541— that those purposes are considered charitable which are enumer- ated in St. 43 Eliz. or which by analogies are deemed within its spirit and intendment —leaves something to be desired in point of certainty, and suggests no principle. Mr. Bin- ney, in his great argument in the Girard Will ) Case, 41, defined a charitable or pious gift! to be "whatever is given for the love of God, \ or for the love of your neighbor, in the cath- olic and universal sense — given from these! motives, and to these ends— free from the stain or taint of every consideration that is' personal, private or selfish." And this defi- nition has been approved by the supreme court of Pennsylvania. Price v. Maxwell, 28; Pa. St. 35. A more concise and practical rule is that of Lord Camden, adopted by Chancellor Kent, by Lord Lyudhurst, and by the supreme court of the United States— "A gift to a general public use, which extends; j to the poor as well as the rich." Jones v. i Williams, Amb. 652; Coggeshall v. Pelton, T i Johns. Ch. 204; Mitford v. Reynolds, 1 Phil- ' PROPEUTY IN EQUITY— TRUSTS. 9J5 191, 192; Perin v. Carey, 2i How. 506. A charity, in the legal sense, may be more fully defined as a gift, to be applied consistently with existing laws, for the benefit of an in- definite number of persons, either by bring- ing their minds or hearts under the influence of education or religion, by relieving their bodies from disease, suffering or constraint, S Ijy assisting them to establish themselves in ! life, or by erecting or maintaining public S T)uildings or works or otherwise lessening the Vbm-dens of government. It is immaterial } -whether the purpose is called charitable in i the gift itself, if it is so described as to show / that it is charitable in its natm'e. If the words of a charitable bequest are ambiguous or contradictory, they are to be so construed as to support the charity, if possible. It is an established maxim of in- terpretation, that the court is bound t(i carry the will into efCect, if it can see a general intention consistent with the rules of law, •even if the particular mode or manner pointed out by the testator is illegal. Bartlet v. King, 12 Mass. 543; Inglis v. Sailor's Snug Harbor, 3 Pet. 117, 118. If the testator uses a word which has two meanings, one of which will effect and the other defeat his object, the first is to be adopted. Saltonstall v. San- ders, 11 Allen, 455. When a charitable intent appears on the face of the will, but the terms used are broad enough to allow of the fund Ijelng applied either in a lawful or an unlaw- ful manner, the gift will be supported, and its application restrained within the bounds of the law. The most frequent illustrations of this in the English courts have arisen Tinder St. 9 Geo. II. c. 36 (commonly called the "Statute of Mortmain"), prohibiting de- vises of land, or bequests of money to be laid out in land, to charitable uses. In the leading case. Lord Hardwicke held that a direction to executors to "settle and secure, lay purchase of lands of inheritance, or other- "wise, as they shall be advised, out of my per- gonal estate," two annuities to be paid yearly forever for charitable objects, was valid, be- cause It left the option to the executor to make the investment in personal property, which was not prohibited by the statute; and said, "This bequest is not void, and there IS no authority to construe it to be void, if l)y law it can possibly be made good," or ^( The doctrine of our law, upon this subject, -as stated by Chief Justice Shaw in deliver- ing the judgment of the court in Com. v. Aves, just cited, is that slavery is a relation founded in force, contrary to natural right and the principles of justice, humanity and sound policy; and could exist only by the -effect of positive law, as manifested either by direct legislation or settled usage. The -same principle has been recognized by Chief Justice Jlarshp 1 and Mr. .Justice Story, speaking for the supreme court of the United States. The Antelope, 10 AA'heat. 120, 121; Prigg V. Pennsylvania, 10 Pet. 611. The constitution of the United States uni- foi-mly speaks of those held in slavery, not as property, but as persons; and never con- tained anything inconsistent with their peace- able and voluntary emancipation. As be- tween master and slave, it would require the most explicit prohibition by law to restrain the right of manumission. M'Cutchen v. Marshall, 8 Pet. 238. We cannot take judi- cial notice of the local laws of other states of the Union except so far as they are in proof. Knapp V. Abell, 10 Allen, 488. But it appears by cases cited at the bar that bequests of manumission were formerly favored in Vir- ginia; and that it was more recently decided in Mississippi that a trust created by will for paying the expenses of transporting the tes- tator's slaves to Africa and maintaining them In freedom there was lawful. Charles v. Hunnicutt, 5 Call, 311; Wade v. American Colonization Soc, 7 Smedes & M. <>'i3. A state of slavery, in which manumission was wholly prohibited, has never been known .among civilized nations. Even when slavery prevailed throughout the world, the same -common law of nations, jus gentium, which justified its existence, recognized the right -of manumission as a necessary consequence. -Just. Inst. lib. 1, tit. .5. We fully concur with the learned counsel for the heirs at law that if this trust could not be executed according to the intention of the testator without tending to excite serv- ile insurrections in other states of the Union, it would have been unlawful; and that a trust which looked solely to political agitation and to attempts to alter existing laws could not be recognized by this coMrt as charitable. P.ut such does not appear to us to be the necessary or tlie reasonable in- terpretation of this bequest. The manner stated of putting an end to slavery is not by legislation or political action, but by cre- ating a public sentiment, which rather points to moral influence and voluntary manumis- sion. The means specified are the usual means of public instruction, by books aud newspapers, speeches and lectures. Other means are left to the discretion of the trus- tees, but there is nothing to indicate that they are not designed to be of a kindred nature. Giving to the bequest that favorable -construction to which all charitable gifts are entitled, the just inference is that lawful means only are to be selected, and that they are to be used in a lawful manner. It was further objected that "to create a public sentiment" was too vague and indefi- nite an object to be sustained as a charita- ble use. But "a public sentiment" on a moral question is but another name for pub- lie opinion, or a harmony of thought— idem sentire. The only case cited for the heirs at law in support of this objection was Browne V. Yeall, 7 Ves. .50, note, in which Lord Thur- low held void a perpetual trust for the pur-( chase and distribution in Great Britain and its dominions of such books as might have a tendency to promote the interests of virtue and religion and the happiness of mankind. But the correctness of that decision was doubted by Sir William (jlrant and Lord Eldon in Morice v. Bishop of Durham, 9 Ves. 406, 10 Ves. 534, .530; and it is incon- sistent with the more recent authorities, here and in England. The bequest now be- fore us is quite as definite as one "for the increase and improvement of Christian liuowledge and promoting religion," and tlie purchase from time to time of such bibles and other religious books, pamphlets and tracts as the trustees should think fit for that purpose, which was upheld by Lord Eldon in Attorney General v. Stepney, 10 Ves. 22; or "to the cause of Christ, for the benefit and promotion of true evangelical piety and religion," through the agency of trustees, to be by them "appropriated to the cause of religion as above stated, to be dis- tributed in such divisions and to such so- cieties and religious charitable purposes as they may think fit and proper," which was sustained by this court in Going v. Emery, 16 Pick. 107; or "for the promotion of such religious and charitable enterprises as shall be designated by a majority of the pastors composing the Jliddlesex Union Association," as in Brown v. Kelsey, 2 Cush. 243; or to be distributed, at the discretion of trustees, "in aid of objects and purposes of benevolence or charity, public or private," as in Salton- stall V. Sanders, 11 Allen, 446; or "for the cause of peace," to be expended by an unin- corporated society, whose object, as defined in its constitution, was "to illustrate the in- consistency of war with Christianity, to show its baleful influence on all the great Interests of mankind, and to devise means for insuring universal and permanent peace," as in Taijpan v. Deblois, 45 Me. 122; or to found "an establishment for the increase and diffusion of knowledge among men;" or "for the benefit and advancement and propaga- tion of education and learning in every part of the world, as far as circumstances will permit;" as in Whicker v. Hume, 7 H. L. Cas. 124, 155. and President of U. S. v. Drununoud, there cited. See, also, McDon- ough v. ilurdoch. 15 How. 405. 414. The beques:! itself manifests its immediate PROPERTY IN EQUITY— TRUSTS. 97 purpose to be to educate the -whole people upon the sin of a man's holding his fellow- man in bondage; and Its ultimate object, to put an end to negro slavery in the United States; in either aspect, a lawful charity. It is universally admitted that trusts for the promotion of religion and education are charities. Gifts for the instruction of the public in the cure of the diseases of quad- rupeds or birds useful to man, or for the pre- vention of cruelty to animals (either by pub- lishing newspapers on the subject, or by providing establishments where killing them for the market might be attended with as little suffering as possible), have been held charitable in England. London University v. Yarrow, 23 Beav. 159, 1 De Gex & J. 72; Marsh v. Means, 3 Jur. (N. S.) 790; Tatham v. Drummond, 11 L. T. (N. S.) 325. To deliver men from a bondage which the law regards as contrary to natural right, humanity, justice and sound policy, is surely not less charitable than to lessen the suffer- ings of animals. The constitution of Mas- sachusetts, which declares that all men are born free and equal, and have the natural, essential and unalienable rights of enjoying and defending their lives and liberties, of ac- quiring, possessing and protecting property, of seeking and obtaining their safety and happiness; also declares that a frequent re- currence to the fundamental principles of the constitution, and a constant adherence to those of piety and justice, are absolutely necessary to preserve the advantages of lib- erty and to maintain a free government; that '•the encouragement of arts and sciences, and all good literature, tends to the honor of God, the advantage of the Christian religion, and the great benefit of this and the other United States of America;" and that "wis- dom and knowledge, as well as virtue, dif- fused generally among the body of the peo- ple, being necessary for the preservation of their rights and liberties, and as these de- pend on spreading the opportunities and ad- vantages of education in the various parts of the country, and among the different or- ders of the people, it shall be the duty of leg- islatures and magistrates, in all future pe- riods of this commonwealth," besides cher- ishing the interests of literature and the sciences, "to countenance and inculcate the principles of humanity and general benevo- lence, public and private charity," "and all social affections and generous sentiments among the people." Declaration of Rights, arts. 1, 18; Const. Mass. c. 5. This bequest directly tends to carry out the principles thus declared in the fundamental law of the commonwealth. And certainly no kind of education could better accord with the re- ligion of Him who came to preach deliver- ance to the captives, and taught that you should love your neighbor as yourself and do unto others as you would that they should do unto you. The authorities already cited show that the HUTCH. BQ.JUB. — 7 peaceable redemption or manumission of slaves in any manner not prohibited by law is a charitable object. It falls indeed within the spirit, and almost within the letter, of many clauses In the statute of Elizabeth. It would be an anomaly in a system of law, which recognized as charitable uses the re- lief of the poor, the education and prefer- ment of orphans, marriages of poor maids, the assistance of young tradesmen, handi- craftsmen and persons decayed, the relief of prisoners and the redemption of captives, to exclude the deliverance of an indefinite num- ber of human beings from a condition in which they were so poor as not even to own themselves, in which their children could not be educated, in which marriages had no sanc- tion of law or security of duration, in which all their earnings belonged to another, and they were subject, against the law of nature, and without any crime of their own, to such an arbitrary dominion as the modern usages of nations wiU not countenance over cap- tives taken from the most barbarous enemy. III. The next question arises upon the be- quest in trust for the benefit of fugitive slaves who might from time to time escape from the slaveholding states of the Union. The validity of this bequest must be de- termined according to the law as it stood at the time when the testator died and from which his will took effect. It is no part of the duty of this court to maintain the con- stitutionality, the justice, or the policy of the fugitive slave acts, now happily repeal- ed. But the constitution of the United States, at the time of the testator's death, de- clared that no person held to service or labor in one state should be discharged therefrom by escaping into another. It may safely be assumed that, under such a constitution, a bequest to assist fugitive slaves to escape from those to whom their service was thus recognized to be due could not have been upheld and enforced as a lawful charity. The epithets with which the testator accom- panied this bequest show that he set his own ideas of moral duty above his allegiance to his state or his country; and warrant the conjecture that he would have been well pleased to have the fund applied in a man- ner inconsistent with the constitution and laws of the United States. But he has used no words to limit its use to illegal methods, and has left his trustees untrammelled as to the mode of its application. Whether this bequest is or is not valid, is to be ascertained from a fair construction of its language, in the light of the maxims of interpretation stated in the earlier part of this opinion, by which the court is bound to cany into effect any charitable bequest in which can be seen a general intention consistent with the law, even if the particular mode pointed out is illegal; and there is no author- ity to construe it to be void if it can be ap- plied in a lawful manner consistently with the intention of the testator as manifested in 98 TROPEBTY IN EQUITY— TRUSTS. the words by which it is expressed. One il- lustration of these maxims may be added in this connection. In Isaac v. Gompertz, Amb. (2d Ed.) 228, note, the will contained one bequest for the support and maintenance of a Jews' syna- gogue; and another bequest of an annuity "to the gabas of the said synagogue," who were found, upon inquiiy by a master, to be treasurers of the synagogue, whose office it was to collect and receive the annual sub- scriptions for the support of poor Jews be- longing to the synagogue, and to apply the same to the expenses of supporting the syna- gogue and to the maintenance of such poor Jews. This last bequest was upheld, and re- ferred to a master to report a scheme, al- though the support of the synagogue was ad- judged to be an unlawful use; and thus a bequest manifestly intended for the benefit of persons professing a religion not tolerated by law, and which might, according to its terms, be applied either in an unlawful or a lawful manner, was sustained as charita- ^ ble, and its application confined to the lawful mode. / A bequest for the benefit of fugitive slaves / is not necessarily unlawful. The words "re- lief or redemption of prisoners and captives" have always been held in England to include ' those in prison under condemnation for crime, as well as persons confined for debt; and : to support gifts for distributing bread and meat among them annually, or for enabling poor imprisoned debtors to compound with their creditors. Duke, Char. Uses, 131, 156; Attorney General v. Ironmongers' Co., Coop. Prac. Oas. 285, 290; Attorney General v. Painterstainers' Co., 2 Cox, Ch. 51; Attorney General v. Drapers' Co., Tudor, Char. Trusts, 591, 592, 4 Beav. 67; 36th Report of Charity Commissioners to Parliament, pt. 6, pp. 856- 868. It would be hardly consistent with char- ity or justice to favor the relief of those un- dergoing punishmept for crimes of their own committing, or imprisonment for not paying debts of their own contracting; and yet pro- hibit a like relief to those who were in equal need, because they had withdrawn them- selves from a service imposed upon them by local laws without their fault or consent. It was indeed held in Thrupp v. Collett, 26 Beav. 125, that a bequest to be applied to pur- chasing and procuring the discharge of per- sons committed to prison for non-payment of fines under the game laws was not a law- ful charity. But such persons were convict- ed offenders against the law of England, who would by such discharge be wholly released from punishment. A fugitive slave was not a criminal by the laws of this commonwealth or of the United States. To supply sick or destitute fugitive slaves with food and clothing, medicine or shelter, or to extinguish by purchase the claims of those asserting a right to their service and labor, would in no wise have tended to im- pair the claim of the latter or the operation of the constitution and laws of the United States; and would clearly have been withia the terms of this bequest. If, for example, the trustees named in the will had received this fund from the executor without question, and had seen fit to apply it for the benefit of fugitive slaves in such a manner, they could not have been held liable as for a breach of trust. This bequest therefore, as well as the pre- vious one, being capable of being applied ac- cording to its terms in a lawful manner at the time of the testator's death, must, upon the settled principles of construction, be held a valid charity. — w i It is hardly necessary to remark that thp Irii direction of the testator that his trustees I'm* shall not be accountable to any one is simply ''I M void. No testator can obtain for his bequests that support and permanence which the law gives to public charities only, and at the same time deprive the beneficiaries and the public of the safeguards which the law provides for their due and lawful administration. As the trustees named in the will are not a corporation established by law, and these two bequests are unlimited in duration, and by their terms might cover an illegal as well as a legal appropriation, it is the duty of the court, before ordering the funds to be paid to the trustees, to refer the case to a master to settle a scheme for their application in a lawful manner. Isaac v. Gompertz, Amb. 228, note; Attorney General v. Stepney, 10 Ves. 22; Boyle, Char. 100, 217. IV. It is quite clear that the bequest in trust to be expended "to secure the parage of laws granting women, whether maiWed or unmanned, the right to vote, to hold office, to, hold, manage and devise property, and all other civil rights enjoyed by men," cannot be sustained as a charity. No precedent has been cited in its support. This bequest differs from the others in aim- ing directly and exclusively to change the laws; and its object cannot be accomplished without changing the constitution also. Whether such an alteration of the existing laws and frame of government would be wise and desirable is a question upon which we cannot, sitting In a judicial capacity, proper- ly express any opinion. Our duty is limited to expounding the laws as they stand. And those laws do not recognize the purpose of overthrowing or changing them, in whole or in part, as a charitable use. This bequest therefore, not being for a charitable purpose, nor for the benefit of any particular persons, and being unrestricted in point of time, is inoperative and void. For the same reason, the gift to the same object, of one third of the residue of the tes- tator's estate after the death of his daughter Mrs. Eddy and her daughter Mrs. Bacon, is also invalid, and will go to his heirs at law as a resulting trust. It is proper to add that the conclusion of the court upon this point, as well as upon the V^'i PROPERTY IN EQUITY— TRUSTS. 99 ^ gift to create a public sentiment whlcli would put an end to negro slavery In the United States, had the concurrence of the late Mr. Justice Dewey, whose judicial experience and large acquaintance with the law of charitable uses give great weight to his opinion, and whose lamented death, while this ease has been under advisement, has deprived us of his assistance In determining the other ques- tions in controversy. i V. The validity of the other residuary be- ' quests and devises depends upon the law of perpetuities as applied to private trusts. The principles of this branch of the law have been so fully considered by the court in recent cases as to require no extended statement. The general rule is that if any estate, legal or equitable, Is given by deed or will to any person in the first instance, and then over to another person, or even to a public charity, upon the happening of a contingency which may by possibility not take place within a life or lives in being (treating a child in its mother's womb as in being) and twenty-one years afterwards, the gift over is void, as tending to create a perpetuity by making the estate inalienable; for the title of those tak- ing the previous interests would not be per- fect, and until the happening of the con- tingency it could not be ascertained who were entitled. Brattle Square Church v. Grant, 3 Gray, 142; Odell v. Odell, 10 Allen, 5, 7. If therefore the gift over Is limited upon a single event which may or may not happen within the prescribed period, it is void, and cannot be made good by the actual happening of the event within that period. But if the testator distinctly makes his gift over to depend upon what is sometimes call- ed an alternative contingency, or upon either of two contingencies, one of which may be too remote and the other cannot be, its valid- ity depends upon the event; or, in other words, if he gives the estate over on one contingency which must happen, if at all, withm the limit of the rule, and that con- tingency does happen, the validity of the dis- tinct gift over in that event will not be af- fected by the consideration that upon a dif- ferent contingency, which might or might not happen within the lawful limit, he makes a disposition of his estate, which would be void for remoteness. The authorities upon this point are conclusive. Longhead v. Phelps, 2 W. Bl. 704; Sugden and Preston, arguendo, in Beard v. Westcott, 5 Barn. & Aid. 809, 813, 814; Minter v. Wraith, 13 Sim. 52; Evers v. Challis, 7 H. L. Gas. 531; Arm- strong V. Armstrong, 14 B. Mon. 333; 1 Jarm. Wills, 244; Lewis, Perp. c. 21; 2 Spence, Eq. Jur. 125, 126. By the ninth and tenth articles of the will, the Income of one third of the residue of the testator's estate, real and personal, is to be paid to his son James and to his daughter Mrs. Palmer, respectively, during life. Each of these articles contains a distinct direction that, in case such son or daughter shall die leaving no child surviving, the principal of his or her share shall be paid and conveyed to the board of trustees named in the fourth article, to be expended for the intent and pur- pose therein directed. As the first tenant for life in each bequest is living at the death of the testator, the event of such tenant's dying, leaving no child then living, must happen within the period of a life in being, if at all; and, if it does happen, the gift over to the charity will be valid. Neither James Jack- son nor Mrs. Palmer therefore is entitled to a present equitable estate in fee. But as James, though now unmarried, may marry and have children who survive him, and as Mrs. Palmer's children may sui-vive her, in either of which cases half of the income of the share would by the will go to such chil- dren during their lives and the bequest over to the charity be too remote, the validity and efCect of that bequest over cannot be now de- termined. If the contingency upon which it is valid should hereafter occur, namely, the death of the testator's son or daughter, re- spectively, leaving no children surviving, the whole remainder of the share will then go to the charity established by the fourth ar- ticle, and be paid, after the settlement of a scheme for its lawful application, to the trus- tees therein named. VI. By the thirteenth amendment of the\ constitution of the United States, adopted since the earlier arguments of this case, it is declared that "neither slavery nor involun- tary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States or any place subject to their jurisdic- tion." The effect of this amendment upon the charitable bequests of Francis Jackson is the remaining question to be determined; and this requires a consideration of the na- ture and proper limits of the doctrine of cyf ^ pres. It is contended for the heirs at law, that the power of the English chancellor, when a charitable trust cannot be administered ac- cording to its terms, to execute it so as to carry out the donor's intention as nearly as possible— cy pres— is derived from the royal prerogative or St. 43 Eliz. and is not an ex- ercise of judicial authority; that, whether this power is prerogative or judicial, it can- not, or, if it can, should not, be exercised by this court; and that the doctrine of cy pres, even as administered in the English chan- cery, would not sustain these charitable be- quests since slavery has been abolished. Much confusion of ideas has arisen from the use of the term "cy pres" in the books to describe two distinct powers exercised by the English chancellor in charity cases, the one under the sign manual of the crown, the other under the general jurisdiction in equity; as well as to designate the rule of construc- tion which has sometimes been applied to executory devises or powers of appointment to individuals, in order to avoid the objec- lUO PROPERTY IN EQUITY— TRUSTS. tion of remoteness. It was of this last, and not of any doctrine peculiar to charities, that Lord Kenyon said, "The doctrine of cy pres goes to the utmost verge of the law, and we must take care that it does not run wild;" and Lord Bldon, "It is not proper to go one step farther." Brudenell v. Elwes, 1 East, 451, 7 Ves. 390; 1 Jarm. Wills, 261-263; Sugd. Powers, c. 9, § 9; Coster v. Lorillard, ::~-...^14 Wend. 309, 348. ^~'" The principal, if not the only, cases in \l, J-Jif ; which the disposition of a charity is held to I ,• he in the crown by sign manual, are of two •' t ';■ classes; the first, of bequests to particular ,1 , uses charitable in their nature, but Illegal, as 1 j for a form of religion not tolerated by law; - -^ ,1 and the second, of gifts of property to char- , ity generally, without any trust interposed, , and in which either no appointment is pro- / vided for, or the power of appointment is delegated to persons who die without exer- cising it. It is by the sign manual and in cases of the first class, that the arbitrary dispositions have been made, which were so justly con- demned by Lord Thurlow in Moggridge v. Thaekwell, 1 Ves. Jr. 469, and Sir William Grant in Gary v. Abbot, 7 "Ves. 494, 495; and which, through want of due discrimination, have brought so much discredit upon the whole doctrine of cy pres. Such was the ; case of Attorney General v. Baxter, in which i a bequest to Mr. Baxter to be distributed by I him among sixty pious ejected ministers, (not, 1 as the testator declared, for the sake of their / nonconformity, but because he knew many of \ them to be pious and good men and in great / want,) was held to be void, and given under / the sign manual to Chelsea College; but the \ decree was afterwards reversed, upon the I ground that this was really a legacy to sixty i individuals to be named. 1 Vern. 248; 2 Vern. 105; 1 Eq. Gas. Abr. 96; 7 Ves. 76. Such also was the case of Da Costa v. I>e , Pas, in which a gift for establishing a jesuba or assembly for reading the Jewish law was applied to the support of a Christian chapel at a foundhng hospital. Amb. 228; 2 Swanst. 489, note; 1 Uickens, 258; 7 Ves. 76, 81. This power of disposal by the sign manual of the crown in direct opposition to the de- clared intention of the testator, whether it is to be deemed to have belonged to the king as head of the church as well as of the state, "intrusted and empowered to see that noth- ing be done to the disherison of the crown or the propagation of a false religion" (Rex v. Portington, 1 Salk. 162, 1 Eq. Cas. Abr. 96); or to have been derived from the power exer- cised by the Roman emperor, who was sov- ereign legislator as well as supreme Interpre- ter of the laws (Dig. 33, 2, 17; 50, 8, 4; Code, lib. 1, tit. 2, a 19; Id., tit. 14, c. 12); Is clear- ly a prerogative and not a judicial power, and could not be exercised by this court; and it is difficult to see how it could be held to ex- ist at all in a republic, in which charitable bequests have never been forfeited to the use or submitted to the disposition of the gov- ernment, because superstitious or illegal. 4 Dane, Abr. 239; Gass v. Wilhite, 2 Dana, 176; Methodist Church v. Remington, 1 Watts, 226. The second class of bequests which are dis- Ik. posed of by the king's sign manual is of gifts to charity generally, with no uses specified, no trust interposed, and either no provision made for an appointment, or the power of appointment delegated to particular persons who die without exercising it. Boyle, Char. 238, 239; Attorney General v. Syderfen, 1 Vern. 224, 1 Eq. Cas. Abr. 96; Attorney Gen- \ eral v. Fletcher, 5 Law J. Ch. (N. S.) 75. / This too is not a judicial power of expound- ing and carrying out the testator's Intention, but a prerogative power of ordaining what the testator has failed to express. No in- / stance is reported, or has been discovered in the thorough investigations of the subject, of an exercise of this power in England be- \ fore the reign of Charles II. Moggridge v. j Thaekwell, 7 Ves. 69-^1; Dwight's Argument in the Rose Will Case, 272. It has never, so far as we know, been introduced into the practice of any court in this country; and, if it exists anywhere here, it is in the legisla- ture of the commonwealth as succeeding to the powers of the king as parens patriae. 4 Kent, pomm. 508, note; Fontain v. Ravenel, 17 How. 369, 384; Moore v. Moore, 4 Dana, 365, 366; Witman v. Lex, 17 Serg. & R. 93; Attorney General v. Jolly, 1 Rich. Eq. 108; Dickson v. Montgomery, 1 Swan, 348; Le- page V. Macnamara, 5 Iowa, 146; Bartlet v. King, 12 Mass. 545; Sohier v. Massachusetts General Hospital, 3 Cush. 496, 497. It cer- tainly cannot be exercised by the judiciary of a state whose constitution declares that "the judicial department shall never exercise the legislative and executive powers, or either of them: to the end it may be a government of laws and not of men." Declaration of Rights, art. 30. The jurisdiction of the court of chancery to superintend the administration and decree the performance of gifts to trustees for chari- table uses of a kind stated in the gift stands upon different grounds; and is part of its equity jurisdiction over trusts, which is shown by abundant evidence to have existed before the passage of the statute of charita- ble uses. Sir Francis Moore records a case/ in which a man sold land to another upon] confidence to perform a charitable use, which I the grantor declared by his last will that the | grantee should perform; "the bargain was ' never enrolled, and yet the lord chancellor decreed that the heir should sell the land to be disposed according to the limitation of the use; and this decree was made the 24th of Queen Elizabeth, before the statute of chari- table uses, and this decree was made upon i ordinary and judicial equity in chancery." Symon's Case, Duke, Char. Uses, 163. About the same time the court of chancery enter- , tained a suit between two parties, each claim- A rf- C^i ,U PKOPEBTY IN EQUITY— TRUSTS. 101 ing to be trustee, to determine how bequests for the weekly relief of the poor of certain towns, for the yearly preferment of poor chil- dren to be apprentices, and for the curing of divers diseased people lying by the high- way's side, should be "employed and bestow- ed according to the said will." Reade v. Silles (27 BUz.) Act. Can. 559. A decree in 16 Eliz., confirming a report of the master of the rolls and others to whom a suit for en- forcing a charitable trust founded by will had been referred, is cited in 1 Spence, Eq. Jur. 588, note. For years before St. 43 Eliz., or the similar act of 39 Eliz., suits in equity by some in behalf of all of the inhabitants of a parish were maintained to establish and enforce bequests for schools, alms or other charitable purposes for the benefit of the par- ish, which would have been too indefinite to be enforced as private trusts. Parker v. Browne (12 Eliz.) 1 Gal. Pro. Ch. 81, 1 Mylne & K. 389, 390; Dwight, Char. Cas. 33, 34; in which the devise was in trust to a corpora- tion incapable at law of taking. Parrot v. I'awlet (21 Eliz.) Gary, 47; Elmer v. Scot (24 Eliz.) Cho. Cas. Ch. 155; Matthew v. Marow (32-34 Eliz.); and Hensman v. Hackney (38 Eliz.) Dwight, Char. Cas. 65, 77; in which the decrees approved schemes settled by masters in chancery. Many other examples are col- lected in the able and learned arguments, as separately printed in full," of Mr. Binney in the Case of Girard's Will, and of Mr. Dwight in the Kose Will Case. And the existence of such a jurisdiction anterior to and independ- ent of the statute is now generally admitted. Vidal V. Girard, 2 How. 194-196, and cases cited; Perin 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, Eq. 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 to 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 accordingly," 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 the 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 exercise through his attorney general in bringing the case before the court of chancery for a judi- cial determination. This has been well ex- 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. Prom 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 officer 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 Eyre 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- eral V. Carroll, Act Can. 729; Dwight's Ar- 102 PROPERTY IN EQUITY— TRUSTS. gument in the Rose Will Case, 259-268. 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 Gush. 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 tlie 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 vs'hich 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 chancei-y without the aid of the sign manual, the prerogative of the king acting through the chancellor has uot 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 he 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. 802-804, 820, 822. In 1693 the cause came on for further directions before PKOPERTY IN EQUITY— TRUSTS. 103 Lord Keeper Somers, who, acting upon the Uocti-ine that 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 sis 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 CoUy. G70, 671, 1 H. L. Cas. 804, 805, 824. In 1744 Lord Htirdwicke, 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 same into effect 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 Yes. 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 jEngland, 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, Higlmi. Mortm. 336-354, 3 Brown, Ch. 166, uote. Sir John Romilly, JI. 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 circumstances, but will be applied by the court according t« 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 t. Ravenel, 17 How. 387, 388; Moore v. Moore, 4 Dana, 366. i In most of the cases cited at the argument, in -which 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. Williams, 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, Oh. 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 & 0. 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 ease 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 forbidr'ing 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. R., 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. R. (afterwards Lord Cottenham,) accordingly ordered it to be so referred. On the return of the master's report, Lord Langdalt, M. E., 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 affirmed in the house of lords with the concurrence of Lord Chancellor Lynd- hurst, and Lords Brougham, Cottenham and Campbell. 10 Clark & F. 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 us is that of Lady Mice'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. 105. 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 surplus rents to the support of any other schools, and generally in promoting educa- tion in the British Colonies. Sir Christopher Pepys, M. 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 wMch 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 Ex'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- tice 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 Baptist 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 Ellz. has been expressly repealed, and chari- ties are not recognized as entitled to any 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. Grilfln v. Graham, 1 Hawks, 96; McAuley v. Wilson, 1 Dev. Eq. 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. AI- 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 riiOPEHTY IN EQUITY— TEUSTS. judicial doctrine, except in one liind 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 effectuate 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 t. 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 receut 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 pai-ticular mode in which it is to be effectu- ated does not destroy the charity; for equity ■s\'ill substitute another mode, so that the sub- stantial intention shall not depend ion 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 ihe 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, 16 111. 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- najQced or left an open question in all the New England states except Connecticut, BiuT 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 li. I. 439; Tappan v. Deblois, 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. ZanesviUe, 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 substance and principle, has al- ways been considered as part of our common law. 4 Dane, Abr. 6, 239; Earle v. Wood, 8 Cush. 445. Under the Colony charter, chari- ties wei'e 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. c. 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 unincoi-porated society here, to a foreign corporation or society, or to a particular re- ligious denomination in a certain contty, have been carried into effect, even where uo trustees iiave 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; Universalist Sec. v. Fitch, 8 Gray, 421. See, also. Wells v. Doaue, 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 chai'- 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 vai'- 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 tie 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 rilOPEllTY 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 biU being filed, and it appearing that it had become impriicticablo 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 corpora lion to apply the sui-plus income, after paying such pre- miums, to purchasing books, papers and pliil- osophical apparatus, and making such pub- lications or 1 'curing 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 tliat 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 practicable. 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 pai-ens pa- tri£e." "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. 204, 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. Cunimings, 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 oijinion 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. Tlieir duration 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 PROPERTY IN EQUITY— TRUSTS. under advisement cannot affect the question. Tlie 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 weight 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 familiar 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 education of the people only, the case is 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 tne 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; Wilkinsott 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, t* 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 those 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 be 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 administi-ation. 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 directions are reserved 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 the 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 case was argued by W. Phillips for himself and other excepting trustees, 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 already 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 was 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- PROPERTY 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 he 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 Kew 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- «d circulation as hardly to be self-sustaining 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 m-ging 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 by 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 he 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 siaves) in the states of this Union recently in rebellion." And this scheme was by the opinion of the whole court accepted and confirmed, modified only by di- recting the executor 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 ot the branch commission; and by substituting for the words "recently in rebelUon" 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 PROPERTY 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 $10,500, and to apply the resi- due as directed in the third clause, before recited. That clause must therefore be re- garded as creating, or attempting to create, a trust of personal property for the purpose specified. The plaintiffs claim that the trust thus attempted to be created is void; that as to the residuary estate the testator died in- testate; and that distribution thereof should be made among the next of kin, etc. The defendant Alcock, one of the executors, de- murred to the complaint. At special term the demurrer was overruled, and the plain- tiffs had judgment. On appeal to the gen- eral term the judgment was reversed, and judgment was rendered in favor of the de- fendant Alcock, thus affirming the validity of the third clause of the will. The plain- tiffs now appeal. Some of the points involved in the case now before us were passed upon in the late case of Gilman v. McArdle, 99 N. Y. 451, 2 N. B. 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 proturing 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 defl- 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 can have, any temporal interest in its perform- ance; nor Is any incorporate church desig- nated so as to entitle it to claim any portion of the fund. The absence of a defined ben- eficiary is, as a general rule, a fatal objec- tion to any attempt to create a valid trust. It Is said by Wright, J., in Levy v. Levy, 33 PROPERTY IN EQUITY— TRUSTS. Ill N. Y. 107, that, "if there is a single postu- late of the common law established by an unbroken line of decision, it is that a trust without a certain beneficiary, who can claim its enforcement, is void, whether good or bad, wise or unwise." It is only in regard to the class of trusts known as "charitable" that a different rule has ever prevailed in equity in England, and still prevails in some of our sister states. Whether the English doctrine of charitable uses and trusts prevails in this state will be consid- ered hereafter. In all otlier cases the rule as stated by Judge Wright is universally recognized, both in law and in equity. It is claimed that the trust now under re- view is not void according to the general rules of law for want of a defined beneficiary, be- cause the trust is for the pui-pose 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 tlie money to be expended for the masses would, according to the usage, be payable to the church or cliurches 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 majority of the executors should decide, and in such proportions as they might think proper. The opinion of the court by Miller, J., holds that giving full force and effect to the rule that the object of the trust must be certain and well defined; that the benefici- aries must be either named, or capable of be- ing ascertained, within 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 to in the will, and that a portion of these had been designated by a majority of the execu- tors; that none but incorporated institutions could lawfully have been selected, and that, even if the executors had failed to make a selection or apportionment, the court would have had power to decree the execution or the trust, there being no difficulty in deter- mining what institutions came within the class described by the testator. It must be observed that in the case cited the benefici- aries were confined to Roman Catholic insti- tutions of a certain class in the city of New York. These were necessarily limited in num- ber. By 1 Rev. St. p. 734, § 97, it is provided that a trust power does not cease to be im- perative when the grantee has the right to select any, and exclude others, of the persons I designated as the objects of the trust; by 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 trast 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 sufBciently 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 deto'mine. Th's bequest was held void because of the indefi- jiiteness of the designation of the benefi- ciaries. The opinion was written by the same learned judge who delivered the opin- ion in Power v. Cassidy, and by him distin- guished from that case on the ground that in Power V. Cassidy the class of beneficiaries was specially designated and confined to the limits of a single city, and to a single reli- gious denomination, so that each one could readily be ascertained, and each had an in- herent right to apply to the court to sustain And enforce the trust; while in the case at bar every charitable and educational institu- tion within two states was included. This case (Prichard v. Thompson) also establishes that the power to the executors to select the beneficiary or beneficiaries does not obviate the objection of the omission of the testator to designate them in the will, unless the per- -sons or corporations from among whom the selection is to be made are so defined and lim- ited that a court of equity would have power to enforce the execution of the trust, or, in default of a selection by the trustee, to decree jin 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- ^■mnized 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 tieen 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 complamt alleges that the defendant Alcock, together with Frederick Smyth, were named as executors in the will; that the defendant Alcock did not qualify, and has never acted, as executor or as trus- tee of the alleged trust sought to be created by the third clause, nor participated in any form in carrying out the same; but that his co-executor, Frederick Smyth, has taken pos- session of the whole estate, as such executor and trustee. Smyth is not a party to this appeal. It comes up on the demurrer of Al- cock alone, and there is nothing in the com- plaint to show that he is willing to execute the trust; but, on the contrary, it shows that he has in no manner acted, or qualified him- self to act, therein. But, aside from these considerations, I do not think that the validi- ty or invalidity of the trust can depend upon the will of the trustee. If the trust is valid, he can be compelled to execute it; if invalid, he stands, as to personal property undisposed of by the will, as trustee for the next of kin, and the equitable interest is vested in them immediately on the death of the testator, sub- ject only to the payment of his debts and the expenses of administration. When a trust is attempted to be created without any benefi- ciary entitled to demand its enforcement, the trustee would, if the trust property were in his possession, have the power to hold it to his 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 hold as trustee to withhold the property from the legal representatives of the alleged donor. A merely nominal trust, in the performance of which no ascer- tainable person has any interest, and which PROPERTY IK 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- ei'al rules of law upon this subject, and that the bequest now under consideration is of that class. The distinguishing features of this class of trusts, as administered in Eng- land from an early period, were that they might be established through trustees, who might consist either of individuals or a cor- poration; and, in the case of individual trustees, they might hold in indefinite suc- cession, and be self-perpetuating, and the funds might be devoted in perpetuity to the charitable purposes indicated by the donor; while private trusts were not permitted to continue longer than a life or lives in being and 21 years and a fraction afterwards. The persons to be benefited might consist of a class, though the individual members of the class might be uncertain. The scheme of the charity might be wanting in sufficient deflniteness or details to admit of its practical administration, and, in such cases, a court of equity would order a reference to a master in chancery to devise a scheme for its ad- ministration, which should as nearly as pos- sible conform to the intentions of the found- er of the charity; and thus was called into operation what was known as the "cy-prgs doctrine." These charitable trusts were re- garded as matters of public concern, and were enforceable by the attorney general, although, In many cases, the court would compel their performance without his inter- vention, at the instance of a town or parish, or of Its inhabitants, or of an individual of the class Intended to be benefited, such as one of the poor or maimed, etc. In a com- paratively recent case argued in this court, many instances of ancient charities were cit- ed which had been enforced by the court of chancery in England, such as Cooke's Char- ity, decided A. D. 1552, whereby the testator ordered the purchase of lands, and the erec- tion of a free grammar school; Bond's Char- ity, decided A. D. 1553, in which the testa- tor's will, dated in 1506, directed that there should be established a Bede house at Bab- lock, and there should be built a chapel, and therein one mass to be said on Sunday, and therein to be ten poor men, and a woman to dress their meat and drink,— the priest to be a brother of Trinity guild and Corpus Christ! 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 referi'ed to numerous other char- ities for the support of the poor, for erec- tion of almshouses, hospitals, maintaining HUTCH. BQ. JOB. — 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 150S, 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 rehgion prevailed in England, recognized as charities. In 1434, Henry Barton devised to the rector of St. Mary's, and the church'-war- dens, and their successors, certain lands, at a perpetual rent, payable to the guild of Corpus Christi, etc., so that said rector of St. Mary's and his successors, or their par- ish priests, when they should say prayers in the pulpit of the church, should pray for the souls of Richard Barton, the testator's father, of Dionesia, his mother, and for the souls of their children, and all the faithful de- ceased, and, in case they should neglect to do so for two days after the proper time, tliat the master and wardens of said guilds, etc., should levy a distress upon said lands for 12 pence by way of penalty, and retain such distress until such prayers should be said. This property appears to have been after- wards seized by the crown, under the stat- utes of chauntries (1 Edw. VI.), and granted by Edward VI. to one Stapleton; but the rector, etc., of St. Mary's having re-entered, it was made to appear in a litigation between them and the successors in interest of Staple- ton that no prayer for souls had been made, nor had the rents of the premises been de- voted to any manner of superstitious use within the space of six years and more next before the first year of the reign of King Edward VI., since which time the rents and profits had been employed by the parson and church-wardens of the parish in good uses and purposes. The case was tried in the 22d and 23d Eliz., and the parish was allow- ed to retain the land for general charitable purposes. The purposes for which charities were es- tablished in England were so numerous and varied, and the learning contained in the books on that subject is so vast, that It would be futile to attempt to go into it In detail, or to do more than briefly refer to their history, so far as Is necessary to de- termine whether the English doctrine of charitable uses and trusts, as distinguished from private trusts governed by the general rules of law, still has any place in the juris- prudence of this state. The statute of 1 Edw. VI., A. D. 1547, known as the "Statute of Chauntries," recited that a great part of superstition and errors In Christian re- ligion had been brought Into the minds of men by reason of their ignorance of their true and perfect salvation through the death 114 PKOPEETY IN EQUITY— TKUSTS. of Jesns Christ, and by devising vain opin- ions of purgatory, and masses to be done for tliose who are departed, which doctrine is maintained by nothing more than by the abuse of trentalles, chauntries, and other provisions for the continuance of such blind- ness and ignorance; that the amendment of the same, and converting them to good and godly uses, such as the erection of gram- mar schools, the education of youth, and bet- ter provision for the poor, cannot in the pres- ent parliament conveniently be done, nor be committed to any person than to the king, who by the advice of his most prudent coun- cil can and will most wisely alter and dis- pose of the same. It then recites the act of 37 Hen. VIII. for the dissolution of colleges, chauntries, etc.. and enacts that all colleges, free cliapels, and chauntries not in the actual possession of the late or present king, (with certain specified exceptions,) and all their lands and revenues, are declared to be in the actual seizure and possession of the present king, without oflSce found; and that all sums of money, etc., which by any conveyance, wiU, devise, etc., have been given or apijointed in perpetuity towards the maintenance of priests, anniversaries, or obits, be vested in the king. Certain colleges, free chapels, and chauntries, such as those within the universities of Ox- ford and Cambridge, and others specified in the statute, were exempted from its provi- sions; but the king ivas empowered to alter the chauntries in the universities. In this man- ner property which had been devoted by the donor to uses which had come to be regarded as superstitions were, through the king, put to charitable uses which were deemed lawful; and this policy was carried out by many de- crees of the court of chancery. The statute of 39 Eliz., A. D. 1597, authorized persons owning estates in fee-simple dm'iug 20 years next ensuing the passage of the act, by deed enrolled in the high court of chancery, to found hospitals, houses of correction, alms- houses, etc., to have continuance for ever, and place therein a head and members, and such number of poor as they pleased; and such institutions were declared to be corporations, with perpetual succession. It will be observ- ed that this was but a temporary act, which gave power only for 20 years next ensuing its passage, to found the chauntries mentioned. This statute also contained a provision enti- tled "An act to reform deceits and breaches of trust touching lands given to charitable uses," which recited that divers institutions had been founded, some by the queen and her progeni- tors, and some by other godly and well-dis- posed people, for the charitable relief of poor, aged, and impotent people, maimed soldiers, schools of learning, orphans, and for other good, charitable, and lawful purposes and in- tents, and that lands and goods given for such purposes had been unlawfully converted to the lucre and gain of some few greedy and covetous persons; and then proceeds to pro- vide for the issue of commissions out of chan- cery to inquire into those wrongs, and decree the observance of the trusts according to the intent of the founders thereof. This statute was followed by that of 43 Eliz. c. 4, "To re- dress the misemployment of lands, goods, and stocks of money heretofore given to charitable uses." This act is known as the "Statute of Charitable Uses," and was at one time, to- gether with that of 39 Eliz., regarded as the foundation of the law of charitable uses, and of the jiu-isdiction of chancery in cases of charities. But the reports of the record com- mission established in 1819 have disclosed that the jurisdiction had been exercised, and char- ity laws administered, by the courts of chan- cery from a much earlier period. The act, however, throws light upon what were at the time considered and recognized as charitable uses, for they are enumerated in the pream- ble as follows, viz.: The relief of the poor, the maintenance of the sick and maimed sol- diers and mariners, schools of learning, free schools, and schools in universities; the re- pair of bridges, ports, havens, causeways, churches, sea-banks, and highways; the educa- tion and preferment of orphans; the mainte- nance of houses of correction; the marriage of poor maidens; the aid of young tradesmen, handicraftsmen, and persons decayed; the re- lief or redemption of prisoners or captives; the aid of poor persons in the payment of taxes. The act then provides for the issuing of commissions by the lord chancellor of Eng- land or the chancellor of the duchy of Lan- caster, and the redress of breaches of trust, as in the statute 39 Eliz. In this enumera- tion of charitable uses there is none which would cover the present case; and indeed, under the statute of chauntries and other stat- utes prohibiting superstitious uses, it would not have been recognized m England as vaUd as a charity or otherwise. But assuming, as perhaps we ought to assume, that before gifts for the support of priests, chauntries, etc., came to be regarded as superstitious uses, they were within the principles of charity, and that they became illegal only by virtue of the statutes against superstitious uses; in this state, where all religious beliefs, doctrines, and forms of worship are free, so long as the pub- lic peace Is not disturbed, the ti-ust in ques- tion cannot be impeached on the ground that the use to which the fund was attempted to be devoted was a superstitious use. The ef- ficacy of prayers for the dead is one of the doctrines of the Roman Catholic Church, of which the testator was a member; and those professing that belief are entitled in law to the same respect and protection in their re- ligious observances thereof as those of aay other denomination. These observances can- not be condemned by any court, as matter of law, as superstitious, and the English statutes against superstitious uses can have no effect here. Amend. Const. U. S. art. 1; Const. N. Y. art. 1, § 3. If, in other respects, the he- quest was by the law of England valid as a "charitable" use, and the English doctrine of PROPERTY IN EQUITY— TRUSTS. 115 charitable uses prevails In this state, the ob- jections to its validity on the ground of in- definiteness of the trust, perpetuity, and the absence of an ascertainable beneficiary can be overcome; otherwise, they must prevail, at least so far as relates to the absence of a ben- eficiary, which is sufficient to dispose of the case without refennce to the other points. We will therefore treat the bequest as a char- itable use. The principal cases in this state in which the doctrine of charitable uses has been dis- cussed are Williams v. Williams, 8 N. Y. 527; Owens v. Missionary Soc, 14 N. Y. 380; Beeliman v. Bonsor, 23 N. Y. 298; Downing v. Marshall, Id. 366; Levy v. Levy, 33 N. Y. 97; Rose v. Rose (1863) 4 Abb. Dec. 108; Bascom v. Albertson, 34 N. Y. 584; Burrlll V. Boardman, 43 N. Y. 254. These cases were argued by counsel of eminent ability, and in the arguments and opinions display a depth of learning and thorough- ness of research which render it useless to attempt a discussion of the question here as an original question, or to do more than summarize the main points upon which the arguments turned, and ascertain how the case stands upon those authorities. So late- ly as the case of Burrill v. Boardman, 43 N. T. 254, the question was argued as still an open one; and that case was decided on the ground that the trust was valid without re- sorting to the doctrine of charitable uses. Comstock, J., in a note to the eleventh edi- tion of Kent's Commentaries (volume 4, p. 305, note 2), states that the essential requi- sites of a valid trust are (1) a sufficient ex- pression of an intention to create a trust; (2) a beneficiary who is ascertained, or ca- pable of being ascertained; that the appoint- ment or non-appointment of a trustee of the legal estate is not material; that if the trust or beneficial purpose be well declared, and if the beneficiary is a definite person or corporation capable of taking, the law Itself will fasten the trust upon him who has the legal estate, whether the grantor, testator, heir, or next of kin, as the case may be; and that, outside of the domain of char- itable uses, no definiteness of purpose will sustain a trust if there be no ascertained beneficiary who has a right to enforce it. And in delivering the opinion of this court in Beekman v. Bonsor, 23 N. Y. 310, the same learned judge says that the joint au- thority of the cases of Williams v. Wil- liams, 8 N. Y. 527, and Owens v. Missionary Soc, 14 N. Y. 308, establishes the proposi- tions (1) that a gift to charity is maintain- able in this state if made to a competent trustee, and If so defined that it can be exe- cuted, as made by the donor, by a judicial decree, although it may be void, according to general rules of law, for want of an as- certained beneficiary; (2) that in other re- spects the rules of law applicable to char- itable uses are within those which apper- tain to trusts in general; (3) that the cy-pr6s power which constitutes the peculiar feature of the English system, and Is exercised In determining gifts to charity where the do- nor has failed to define them, and In fram- ing schemes of approximation near to or from the donor's true design, Is unsuited to our institutions, and has no existence in the jurisprudence of this state on this subject. But he declined to re-examine these cases, as he concludes that the law of charities could not be invoked in the case then under consideration. The same learned judge, however. In the subsequent case of Bascom V. Albertson, 34 N. Y. 584, in which he act- ed as counsel, reviewed at length the ques- tion whether the English law of charitable uses prevailed to any extent whatever in this state. His argument was preserved in print, and was used in Burrill v. Boardman, 43 N. Y. 254, and In that argument, refer- ring to what he had said In his opinion in Beekman v. Bonsor as to the proposition that a gift to charities, if well defined, and made to a competent trustee, was main- tainable In this state, although it might be void, according to general rules of law, for want of an ascertained beneficiary, and to the similar remark in his opinion in Down- ing V. Marshall, 23 N. Y. 382, characterizes his own remarks in those two cases as a most inconsiderate repetition, as a dictum, of a proposition laid down by another judge; calling attention to the fact that the repe- tition was a mere dictum, because In the two cases in which it was made the trusts were held void. The case of Williams v. Williams, 8 N. Y. 524, Is the leading case In the court of last resort of this state in support of the doc- trine that the English law of charitable uses Is In force in this state, and it fully supports the proposition that it is. In that case the testator after making a bequest to an Incorporated church, bequeathed the sum of $6,000 to Zophar B. Oakley and other In- dividual trustees, with power to perpetuate their successors, as a perpetual fund for the education of the children of the poor who should be educated in the academy of the village of Huntington, with directions to ac- cumulate the fund up to a certain point, and apply the income in perpetuity to the education of the children whose parents' names were not upon the tax-lists. The opinion was delivered by Denio, J., and con- curred In by four of the other judges, three judges dissenting. The opinion held that this bequest, by the general rules of law, would be defective and void, as a convey- ance in trust for the want of a cestui que trust in whom the equitable title could vest, and could be sustained only by force of that peculiar system of law known in England under the name of the "Law of Charitable Uses;" that the objection that the bequest assumed to create a perpetuity would also be fatal If the Revised Statutes applied to gifts for charitable purposes. But the learned 116 PROPERTY IN EQUITY— TRUSTS. judge held that according to the laws of England as understood at the time of the American Revolution, and as it still existed, devises and bequests for the support of charity or religion, though defective for want of such a grantee or donee as the rules of law required in other cases, would, when not within the purview of the mortmain act, be supported in the court of chancery; that the law of charitable uses did not originate in, and was not created by, the statute 43 Bliz. c. 4, but had been known and recog- nized and enforced before that statute, and was ingrafted upon the common law, and consequently was not abrogated by the re- peal in this state of the statute 43 Eliz. in 1788 (Laws 1788, c. 46, § 37) ; that the provi- sions of the Revised Statutes did not affect property given in perpetuity for religious or charitable purposes; and that consequently the bequest to Zophar B. Oakley and others, in trust for the children of the poor, was valid. In Owens v. Missionary Soc, 14 N. T. 380, the testator bequeathed the residue of his estate to the "Methodist General Missionary Society," an unincorporated association ex- isting when the will was made, and when it took effect, in 1834, but which, subsequent to the testator's death, became incorporated. In a suit between the incorporated society and the next of kin of the testator, the be- quest was held void, and that the next of kin were entitled to the residue. Opinions were delivered by Selden, 0., and Denio, J. Judges A. S. Johnson, T. A. Johnson, Hub- bard, and Wright concurred in the opinion of Selden, J., which held that the bequest was not valid as one made to the associa- tion for its own benefit, because of its inca- pacity to take; nor could it be sustained as a charitable or religious use, as it was not accompanied by any trust as to the applica- tion of the fund. Also that, where there was no trustee competent to take, our court of chancery had no jurisdiction to uphold a trust for a charitable or religious purpose; and it distinguished the case from Williams V. Williams on the ground that there the be- quest was to trustees competent to take. Al- though the tenor of the opinion is against following the example of the English chan- cellors in applying a peculiar and partial system of rules to the support of charitable gifts. Judge Selden disavows the intention of denying the power of courts of equity in this state to enforce the execution of trusts created for public and charitable purposes in cases where the fund is given to a trustee competent to take, and where the charitable use is so far defined as to be capable of be- ing specifically executed by the authority of the court, even although no certain benefi- ciary other than the public at large may be designated. Denio, J., while reaffirming the decision in Williams v. Williams, placed his vote upon the ground that the trust was not one which could be executed by the court as a charitable use, the purposes of the so- ciety being "to diffuse more generally the blessings of education, civilization, and Christianity throughout the United States and elsewhere;" that although trusts in fa- vor of education and religion had always been considered charitable uges, and were recognized as such in the statute of Eliza- beth, the advancement of civilization gener- ally was not classed among charities, and the whole fund might be disposed of for pur- poses promotive of universal civilization, which still would not be charitable objects in the understanding of the law. Six of the judges were of opinion that the charity was not suflBciently defined by the terms of the will, and that the judgment in favor of the next of kin should be affirmed on that ground. The next case in order Is Beekman v. Bon- sor, 23 N. Y. 298. In that case the^mount to be given to the charitable purpose, as well as the manner in which the fund was to be applied, was left to the discretion of the executors. They renounced, and it was held that the trust was incapable of execu- tion, that the cy-prSs power, as exercised in England In cases of charity, had no exist- ence in this state, and that the next of kin were entitled to the fund. Numerous points were discussed in the opinion, which was by Comstock, J., and he there made the dictum, which he afterwards recalled, that a gift of charity which would be void, by the general rules of law, for the want of an ascertained beneficiary, will be upheld by the courts of this state if the thing given was certain, if there was a competent trustee to administer the fund as directed, and if the charity itself was precise and definite. Downing v. Marshall, 23 N. Y. 366, held that a devise and bequest to an unincorpo- rated missionary society was void, on the same grounds as In the case of Owens v. Missionary Soc, supra. Up to this time the doctrine of the case of Williams v. Williams as to the validity of trusts for charities, even in the absence of a definite beneficiary, had been acquiesced in. But in Levy v. Levy, 33 N. Y. 97, it was vigorously assailed by Wright, J., who dis- cussed the question anew whether the Eng- lish doctrines of trust for charitable uses were law in this state. That learned judge expressed a decided opinion that they were not (page 105 et seq.); that that peculiar system of jurisprudence proceeded in disre- gard of rules deemed elementary and funda- mental in other limitations of property, in upholding indefinite charitable gifts, by the exercise of chancery powers and the royal prerogative; that it was not the exercise of the ordinary jurisdiction of chancery over trusts, but a jurisdiction extended and strengthened by the prerogative of the crown and the statute of 43 Eliz. over pub- lic and indefinite uses defined In that statute as "charities;" that even In England It liad PROPERTY IN EQUITY— TRUSTS. 117 been deemed necessary to restrain and regu- late by act of parliament the creation of these Indefinite charitable trusts, by the stat- utes of mortmain and other restrictions, and it cannot be supposed that the system was deliberately retained in this state freed from all legislative restriction. He calls attention to the fact that in 1788 the legislature of this state repealed the statute of 43 Eliz., the statute against superstitious uses, and the mortmain acts. That at that time it ■was supposed that the law for the enforce- ment of charitable trusts had its origin only in the statute of Elizabeth; and argues that the legislature of 1788, in thus sweeping away all the great and distinctive land- marks of the English system, must have in- tended that the effect of the repeal should be to abrogate the entire system of indeti- nite trusts, which were understood to be supported by that statute alone; and that the whole course of legislation in this state indicates a policy not to introduce any sys- tem of public charities except through the medium of corporate bodies. That in 1784 the general law for the incorporation of re- ligious societies had been enacted, and that before, and contemporaneously with, the re- peal of the statute of Elizabeth and the stat- utes of mortmain, special acts incorporating such societies were passed, and other acts have been passed creating or authorizing corporations for various religious and chari- table purposes, in all of which are to be found limitations upon the amount of prop- erty to be held by such societies; thus in- dicating a policy to confine within certain limits the accumulation of property perpetu- ally appropriated, even to charitable and re- ligious objects. That the absolute repeal of the statute of Elizabeth and of the mort- main acts was wholly inconsistent with the policy thus indicated, unless it was intended to abrogate the whole law of charitable uses as understood and enforced in England. The opinion then refers to the course of leg- islation in this state following the repeal of the English statutes authorizing corporations for charitable, religious, literary, scientific, and benevolent purposes, and in all cases limiting the amount of property to be en- joyed by them. This legislation is claimed to disclose a policy differing from the Brit- ish system, and absolutely inconsistent with the supposition that uses for public or in- definite objects, and of unlimited duration, can be created and sustained without legis- lative sanction. Since the case of Williams V. Williams, decided 35 years ago, there has been no adjudged case in this court which supports a charitable gift on the principles enunciated by Judge Denio in pronouncing that decision. Of course, this observation applies only to the indefinite charity which the case included, and not to the gift in favor of a religious corporation. After the decision of that case the struggle in this court for the overthrow of charitable uses began in the case of Owens v. Mission- ary Soc, 14 N. Y. 380. The opponents of such trusts had for their justification the repeal in 1788 in this state of all the BrAtish statutes which upheld such trusts in Eng- land, and the substitution of a charity sys- tem maintained by our statute laws in the form of corporate charters containing, by legislative enactment, power to receive, hold, and administer charitable gifts of every va- riety known in the practice of civilized com- munities and our statute of uses and trusts, defining the trusts which may lawfully be created. This statute has been held binding on the courts, although, of course, it ceases to operate when the legislature charters a corporation for a charitable purpose, with power to take and hold property in perpe- tuity for such purpose. From the case of Owens V. Jlissionary Soc, 14 N. Y. 380, through the cases of Downing v. Marshall, 23 N. Y. 366; Levy v. Levy, 33 N. Y. 97; Bascom v. Albertson, 34 N. Y. 584; Burrill V. Boardman, 43 N. Y. 254; and Holmes v. Mead, 52 N. Y. 332 (decided in 1873),— the struggle was continued, and the announce- ment definitely made, in the latest of those cases, that the controversy was closed by the adoption of the principles enunciated in the said last-mentioned case. In Williams V. Williams, Judge Denio, whose great learn- ing and ability are universally acknowl- edged, maintained, as the basis of his con- clusion in favor of charitable trusts as the law of this state, that they came to us by inheritance from our British ancestors, and as part of our common law. That iparticular postulate being finally overthrown, and the British statutes having been repealed at the very origin of our state government, we should be a civilized state without provision for charity if we had not enacted other laws for ourselves. But charity, as a great in- terest of civilization and Christianity, has suffered no loss or diminution in the change which has been made. The law has been simplified, and that is all. Instead of the huge and complex system of England, for many generations the fruitful source of liti- gation, we have substituted a policy which offers the widest field for enlightened benev- olence. The proof of this is in the great number of charitable institutions scattered throughout the state. It is not certain that any political state or society in the world of- fers a better system of law for the encour- agement of property limitations in favor of religion and learning, for the relief of the poor, the care of the insane, of the sick and the maimed, and the relief of the destitute, than our system of creating organized bodies by the legislative power, and endowing them with the legal capacity to hold property which a private person or a private corpora- tion has to receive and hold transfers of property. Under this system, many doubt- ful and obscure questions disappear, and give place to the more simple inquiry wheth- 'l-f 118 PEOPERTY IN EQUITY— TRUSTS. er the grantor or devisor of a fund designed for charity Is competent to give; and wheth- er the organized body is endowed by law with capacity to receive, and to hold and administer, the gift. In Williams v. Wil- liams, supra, in maintaining a gift for pious uses to an incorporated religious society, Judge Denio assigned the reasons which have been universally approved since that tiLdie; and they are summed up by saying that charitable limitations of property in favor of corporations competent, by statute law, to hold them, are valid or invalid on the same grounds as other limitations of property between natural persons, and are referable to the general system of law which governs in the ordinary transactions of man- kind. From his reasoning in the other branch of the case before him, it appears that he had not reached the conclusion es- tablished in the later cases, namely, that with us charity is found in our corporation laws, general and special, which have been extended so as to embrace the purposes here- tofore known and recognized as charitable, and which are continually extending and improving, so as to meet the new wants which society in its progress may develop. As the result of the foregoing views, the judgment of the supreme court at general term should be reversed, and that of the special term affirmed. All concur, except EARL, J., not voting. Judgment accordingly. PKOPERTY IN EQUITY— TRUSTS. 119 FISHEE T. FOBES. (22 Mich. 454.) Supreme Court of Michigan. April Term, 1871. Bill in equity to establish a resulting trust. There was a decree for complainant, from which defendant appealed. A. C. Baldwin, for complainant. Crofoot & Brewer, for defendant. COOLEY, J. The facts in this case are few and simple, and in regard to most of them there is no dispute. In the fall of 1854, complainant resided in Bennington, New York, upon a parcel of land which he had purchased of the Holland Land Com- pany, and upon which he was then owing about thirteen hundred dollars, which he was unable to pay. The company were de- manding payment, and had sent an officer, whether with legal process or simply as their agent, we are not informed, to remove him from the premises, when one Stillman Good- enough, complainant's brother-in-law, inter- vened, and succeeded in obtaining two weeks' time, in which to make some arrangement if possible. Complainant seems to have been quite discouraged, and put himself entirely into the hands of Goodenough, telling him to go on and make a saving for the family if he could do so. Goodenough did go on as agent for complainant, and succeeded in making an arrangement with one Patchin, then residing in Steuben county. New York, to exchange the interest of complainant in the Bennington land for an eighty-acre lot owned by Patchin in Milford, Oakland coun- ty, Michigan. Complainant signed some writing expressing his satisfaction with this arrangement, and it would seem to have been closed up at once, so far as complainant was concerned, but the deed from Patchin was executed at his home, and was not sent on until some weeks afterwards. It does not distinctly appear that there was any under- standing between complainant and Good- enough, as to who should be named as gran- tee in the deed from Patchin, but the deed, when received, named Goodenough as gran- tee, and complainant does not appear to have expressed any dissatisfaction with it. He, however, took possession of the Milford land, claiming it as his own, and has ever since been in possession under the like claim, and made valuable Improvements. Stillman Goodenough, it appears, conveyed the Milford land to his brother, John R. Goodenough, in 1855, on an understanding, as he claims, that the title should still be held for complainant, and there have been several subsequent conveyances, until the le- gal title has become vested in the defendant, who claims to be a grantee In good faith, and for value. It is not claimed, however, that defendant or any of the intermediate grantees has or had any greater equities than were possessed by Stillman Goodenough, and as the complainant's continuous possession must be regarded as notice of his actual rights (McKee v. Wilcox, 11 Mich. 358), we need not consider the merits of any of the alleged subsequent purchases. The bill in this case avers that Stillman Goodenough took the title to the Milford land in his own name without the consent of complainant, and in fraud of his rights; and its purpose is to compel the defendant to re- lease to the complainant the title which, it is claimed, is held for him under an implied or constructive trust. The defendant insists that the conveyance to Stillman Goodenough was made with the full approval of com- plainant, and that consequently under our statute he is entitled to no relief. As the consideration for the conveyance to Stillman Goodenough was furnished by complainant, there can be no doubt that at the common law there would have been a re- sulting trust in complainant's favor. But our statute provides that, "when a grant for a valuable consideration shall be made to one person, and the consideration therefor shall be paid by another, no use or trust shall re- sult in favor of the person by whom such payment shall be made; but the title shall vest in the person named as the alienee in such conveyance, subject only" to a trust in favor of creditors, when the effect would otherwise be to defraud them: Comp. Laws, §§ 2637, 2638. This provision, however, must be under- stood as applicable only to those cases in which the deed has assumed the form it has by consent of the party furnishing the con- sideration. It has no application to a case where one has taken a deed in his own name in fraud of the rights of another, nor to a case where, though no fraud was designed, the conveyance has been made to some per- son other than the purchaser without his consent. The purpose is to preclude parties from asserting equitable interests in land where they must rest upon parol evidence, in opposition to the written instruments of title, which have been made with their con- sent and approval. If, therefore, it shall ap- pear that complainant assented to the con- veyance to Stillman Goodenough, without de- manding or receiving any written declaration or other evidence of a trust in his own favor, no such trust can be declared, however clear- ly It may appear from the parol evidence that the transaction was entered into for his benefit, and that, between the parties, it was understood that the title was to be held in trust for him. If he has trusted himself entirely to the good faith of Good- enough, and suffered an arrangement to rest in parol which the statute declares shall be evidenced by writing only, it will not be in our power to relieve him even if we were disposed so to do. It has already been seen that there is no direct evidence of any understanding be- tween complainant and Goodenough as to 120 PliOPERTY IN EQUITY— TEUSTS; ■n-lio was to be made the grantee in Patchin's deed, and we must therefore see wbat legal luferences are deducible from the situation of the parties, or may fairly be drawn from the facts whicli appear. The following facts, as we have before said, are unquestioned: 1, That in the arrangement Goodenough acted as agent for complainant; 2, that he was in- trusted with the whole management of the negotiation with Patchin; and, 3, that it was distinctly understood between him and com- plainant that the conveyance made by Pat- chin was to be for the benefit of complainant. Supposing this to be the whole of their un- derstanding, the duty of Goodenough was plain. It was to have the conveyance made directly to complainant, or, if made to him- self for any other person, then to have a trust in favor of complainant distinctly de- clared in the conveyance, so that it might be legally enforced; and if he failed to have conveyance made in proper form for the pro- tection of complainant's interests, he would have been chargeable with constructive fraud, and a court of equity would have given complainant the proper relief. We cannot infer, in the absence of evi- dence to that effect, that complainant un- derstood Goodenough was to take the deed to himself and without expressing therein any trust in favor of complainant. The con- trary is the only reasonable inference. When it distinctly appeare that the conveyance was to be for his benefit, we must suppose that he expected it to be in such form that the law would protect his enjoyment of the premises under it. We cannot assume that his agent, into whose hands he placed him- self, was understood to be empowered to take conveyance in a form which would defeat the very purpose of the arrangement, or that complainant, without any occasion whatever, so far as the evidence shows, was to trust his interests for an indefinite period solely to the continued good will, good faith, and sense of honor and justice of the agent who was negotiating for him. Goodenough testifies that after the arrange- ment with Patchin was agreed upon, com- plainant was informed of it, and expressed his satisfaction. But he does not state that complainant was then told to whom the deed was to be made, and we have no reason to infer that the information went any further than that an even exchange was to be made of the Bennington interest for the MUford land; but after the deed was made by Pat- chin, it was shown to complainant, and he read it and made no objection, and this is claimed to be very conclusive evidence that it was in accordance with his expectation and desire. Of this evidence it is to be observed, that if complainant had not previously as- sented, this failure to object to the deed after it had been made, could not operate as a waiver of his rights. If a constructive trust existed in his favor when the deed was first taken, by reason of its being taken in Goodenough's name, without his consent, he was under no such obligation to assert his rights immediately on learning the facts, as to be baiTed of his equities by failure to do so. An inference of assent may be drawn from his silence, but there is nothing in the case in the nature of an estoppel. And we think any such inference of assent is not very conclusive. Goodenough had been giving his services to complainant, and though he had taken the deed in his own name, he had evinced no disposition to ap- propriate the property. He allowed complain- ant to take possession and appropriate the profits without account. His possession would preclude any bona fide purchase by strangers, and if we suppose complainant to be fully aware of his legal rights, we must assume that he Icnew he had nothing to gain or lose by demanding or failing to de- mand an immediate conveyance. His si- lence, consequently, after the transaction was completed does not seem to us such evi- dence of previous assent as to warrant our finding that an understanding Is proved that the arrangement Goodenough was engaged to make for the benefit of complainant, might be put in such form as to Inure ex- clusively to the benefit of Goodenough him- self. After careful consideration of this record, we are of opinion that the decree was cor- rect, and that it should be affirmed. The other justices concurred. PROPERTY IN EQUITY— TRUSTS. 121 DYER V. DYER. 2 Oox, Ch. 92. Court of Chancery. Nov. 27, 1788. In 1737 certain copylaold premises Lolden of the manor of Heytesbury, in the county of Wilts, were granted by the lord, accord- ing to the custom of that manor, to Simon Dyer (the plaintiff's father), and Mary, his wife, and the defendant William (his other 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 plaintiff, his younger son. The present bill stated tliese 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 trestees for the father, and the bill therefore prayed that the plaintiff, as devisee of tbe father, might be quieted in the pos- session of the premises during the life of the defendant. The defendant insisted that the insertion of bis name in the grant operated as an ad- vancement to him from his father to the ex- tent of the legal interest thereby given to him. And this was the whole question in the cause. This case was very fully argued by Mr. Solicitor General and Ainge for plain- tiff, and by Burton & Morris, for defend- ant The following cases were cited, and very particularly commented on: Smith v. Baker, 1 Atk. 385; Taylor v. Taylor, Id. 386; Jlumma v. JIunlma, 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, 1T7S; Bow 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. 67; Back V. Andrew, Id. 120; liundle v. Bundle, Id. 264; Lamplugh v. Lamplugh, 1 P. Wms. Ill; Stileman v. Ashdown, 2 Atk. 480; Pole v. Pole, 1 Ves. Sr. 76. LOBD CHIEF BABON, after directing the cause to stand over for a few days, delivered the judgment of the court. Tlie 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 differ- ence of opinion seems to have prevailed at the bar. And I have met with a case in ad- dition to those cited, which is that of Rum- boll V. BumboU, 2 Eden, 15, on the 20th, April, 1761. The clear result of all the cases, without a single exception, is that the trust of a legal estate, whether freehold, copyhold,, or leasehold; whether taken in the names- of the purchasers and others jointly, or in the name of others without that of the pur- chaser; whether in one name or several;, whether jointly or successive,— results to the man who advances the purchase money. Tills is a general proposition, supported by- all the cases, and there is nothing to con- tradict it; and it goes on a strict analogy to the rule of the common law that, where a feoffment is made without consideration, the use results to the feoft'er. 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 int» a very wide sea, without very certain guides. In the most simple case of all, which is that of a father purchasing in the name of his son, it is said that this shews the father in- tended an advancement, and therefore the resulting trust is rebutted; but then a cir- cumstance is added to this, namely, that the son happened to be provided for. Then the question is, did the father intend to ad- vance a son already provided for? Lord Not- 122 PROPEKTY IN EQUiTY— TRUSTS. tingham could not get over this, and he ruled that in such a case the resulting trust was not rebutted; and in Pole v. Pole, 1 Ves. Sr. 76, Lord Hardwicke thought so too; and yet the rule in a court of equity as rec- ognized in other cases is that the father is the only judge as to the question of a son's provision. That distinction, therefore, of the son being provided fpr or not, is not very solidly taken or uniformly adhered to. It is then said that a purchase in the name of a son is a prima facie advancement, and, indeed, it seems difficult to put it in any way. In some of the cases some circumstan- ces have appeared which go pretty much against that presumption, as where the father has entered and kept possession, and taken the rents; or where he has surrendered or ilevised the estate; or where the son has given receipts in the name of the father. The answer given is that the father took the rents as guardian of his son. Now, would the court sustain a bill by the son against the father for these rents? I should think it pretty difficult to succeed in such a bill. As to the surrender and devise, it is answered that these are subsequent acts; whereas the intention of the father in taking the pur- chase in the son's name must be proved by •concomitant acts; yet these are pretty strong acts of ownership, and assert the right, and coincide with the possession and enjoyment. As to the son's giving receipts In the name of the father, it is said that, the son being under age, he could not give re- ceipts in any other manner; but I own this reasoning does not satisfy me. In the more complicated cases, where the life of the son is one of the lives to take in succession, other ■distinctions are taken. If the custom of the manor be that the first taker might surren- •der the whole lease, that shall make the other lessees trustees for him; but this cus- tom operates on the legal estate, not on the equitable interest; and therefore this is not a very solid argument. When the lea- sees are to take successive, it is said that, as the father cannot take the whole in his own name, but must insert other names in the lease, then the children shall be trustees for the father; and to be sure, if the cir- cumstance of a child being the nominee is not decisive the other way, there is a great deal of weight in this observation. There may be many prudential reasons for putting in the life of a child in preference to that of any other person; and if in that case it is to be collected from circumstances wheth- er an advancement was meant, it will be •difficult to find such as will support that idea. To be sure, taking the estate In the name of the child, which the father might have taken in his own, affords a strong ar- gument of such an intent; but where the estate must necessarily be taken to him in succession, the inference is very different. These are the difficulties which occur from considering the purchase in the son's name as a circumstance of evidence only. Now, if it were once laid down that the son was to be taken as a purchaser for a valuable consideration, all these matter of presump- tion would be avoided. It must be admitted that the case of Dick- inson V. Shaw is a case very strong to sup- port the present plaintiff's claim. That came on in chancery, on 22d May, 1770. "A copy- hold was granted to three lives to take in succession, the father, son, and daughter. The father paid the fine. There was no custom stated. The question was whether the daughter and her husband were trustees during the life of the son, who survived the father. At the time of the purchase the son was nine and the daughter seven years old. It appeared that the father had leased the premises from three years to three years to the extent of nine years. On this case Lords Commissioners Smythe and Aston were of opinion that, as the father had paid the purchase money, the children were trus- tees for him." To the note I have of this case it is added that this determination was contrary to the general opinion of the bar, and also to a case of Taylor v. Alston, in this court. In Dickinson v. Shaw there was some little evidence to assist the idea of its being a trust, namely, that of the leases made by the father. If that made an in- gredient in the determination, then that case is not quite in point to the present; but I rather think that the meaning of the court was that the burthen of proof laid on the child; and that the cases which went the other way were only those in which the estate was entirely purchased in the name of the children. If so, they certainly were not quite correct in that idea, for there had been cases in which the estates had been taken in the names of the father and son. I have been favoured with a note of Rum- boll V. Rumboll, before Lord Keeper Henley on the 20th April, 1761, where a copyhold was taken for three lives in succession, the father and two sons. The father paid the fine, and the custom was that the first taker might dispose of the whole estate (and his lordship then stated that case fully). Now, this case does not amount to more than an opinion of Lord Keeper Henley, but he agreed with me in considering a child as a purchaser for good consideration of an estate bought by the father in his name, though a trust would result as against a stranger. It has been supposed that the case of Taylor v. Alston in this court denied the authority of Dickinson v. Shaw. That cause was heard before Lord Chief Baron Smythei myself, and Mr. Baron Burland, and was the case of an uncle purchasing in the names of himself and a nephew and niece. It was decided in favour of the neph- ew and niece, not on any general idea of their taking as relations, but on the result of much parol evidence, which was admit- ted on both sides, and the equity on the PROPEUTY IN EQUrrY— TRUSTS. 123 side of the nominees was thought to pre- ponderate. Lord Kenyon was in that cause, and his argument went solely on the weight of the parol evidence. Indeed, as far as the circumstance of the custom of the first tak- er's right to suiTender, it was a strong case In favom* of a trust. However, the court determined the other way on the parol evi- dence. That case, therefore, is not material. Another case has been mentioned, which is not in print, and which was thought to be materially applicable to this (Bedwell v. Froome, before Sir T. Sewell) ; but that was materially distinguishable from the present. As far as the general doctrine went, it went against the opinion of the lords commis- sioners. His honour there held that the copy- holds were part of the testator's personal estate, for that was not a purchase in the name of the daughter. She was not to have the legal estate. It was only a contract to add the daughter's life in a new lease to be granted to the father himself. There could be no question about her being a trustee, for it was as a freehold in him lor his daughter's life. But in the course of the argument his honour stated the common principles as applied to the present case, and ended by saying that, as between father and chUd, the natural presumption was that a provision was meant. The anonymous case in 1 Freem. Ch. 123, corresponds very much with the doctrine laid down by Sir T. Sewell, and it observes that an advance- ment to a chUd is considered as done for valuable consideration, not only against the father, but against creditors. Kingdon v. Bridges, 2 Vem. 67, is a strong case to this point,— that is, the valuable nature of the consideration arising on a provision made for a wife or for a child; for there the ques- tion arose as against creditors. I do not find that there are in print more than three cases which respect copyholds where the grant is to take successive,— Run- die V. Rundle, 2 Vern. 264s which was a case perfectly clear; Benger v. Drew, 1 P. Wms. 781, where the purchase was made partly with the wife's money; and Smith v. Baker, 1 Atk. 385, where the general doctrine as applied to strangers was recognized; but the case turned on the question whether the in- terest was well devised. Therefore, as far as respects this particular case, Dickinson V. Shaw is the only case quite in point; and then the question is whether that case is to be abided by. With great reverence to the memory of those two judges who decided it, we think that case cannot be followed; that it has not stood the test of time, or the opinion of learned men; and Lord Kenyon has certainly intimated his opinion agamst it. On examination of its principles, they seem to rest on too narrow a foundation, namely, that the inference of a provision b'iiug Intended did not arise, because the purchase could not have been taken wholly in the name of the purchaser. This, we think, is not sufficient to turn the presump- tion against the child. If it is meant to be a trust, the purchaser must shew that intention by a declaration of trust; and we do not think it right to doubt whether an estate in succession is to be considered as an advancement, when a moiety of an es- tate in possession certainly would be so. If we were to enter into all the reasons that might possibly influence the mind of the purchaser, many might perhaps occur in every case upon which it might be argued that an advancement was not intended. And I own it is not a very prudent conduct of a man just married to tie up his property for one child, and preclude himself from providing for the rest of his family. But this applies equally in case of a purchase in the name of the child only, yet that case is admitted to be an advancement; indeed, if anything, the latter case is rather the strongest, for there it must be confided to one child only. We think, therefore, that these reasons partake of too great a degree of refinement, and should not prevail against a rule of property which is so weU estab- lished as to become a landmark, and which, whether right or wrong, should be carried throughout This bill must therefore be dismissed; but, after stating that the only case in point on the subject is against om- present opinion, it certainly will be proper to dismiss it with- out costs. 124 PROPERTY IN EQUITY— TEUSTS. OCEAN BANK OF NEW YORK v. OL- COTT. (46 N. Y. 12.) Court of Appeals of New York. Sept. 2, 1871. Appeal from judgment of the general term of the First department, reversing an order of the special term overruling demurrer to plaintiff's reply and sustaining demurrer to the fourth and fifth counts of defendant's an- swer. This action is in the nature of a creditors' bill on a judgment recovered by the plaintiff against the defendant, Cornelius Olcott, on the 15th of April, 1861. And the allegations in the complaint are that since the judgment said defendant has paid, of his own moneys, for certain real estate, the conveyance of which was taken by and in the name of the defendant, Kate G. Olcott, the wife of the other defendant, in fraud of his creditors. The answer denies all these allegations of fraud, and sets up the defence that since the judgment, and before this action was com- menced, the defendant, Cornelius Olcott, ob- tained a discharge in bankruptcy, under the act of congress of 1867, and was thereby fully discharged from all his debts, the aforesaid judgment included. The plaintiff replied to the defence of the discharge in bankruptcy, alleging that said discharge was fraudulently obtained, and set- ting forth the frauds complained of. The defendant demurred to the reply that it does not state facts sufficient to constitute a reply. P. J. Gage, for appellant. Richard H. Hunt- ley, for respondent. CHURCH, C. J. The two principal ques- tions in this case are: 1. Whether a cer- tificate of discharge in bankruptcy, issued under the bankrupt act of 1867, can be im- peached in a state court, on the ground that it was improperly granted? and, 2. Whether the plaintiff can enforce the judgment, against the property conveyed to the defendant, Kate G. Olcott, wife of the other defendant, Cor- nelius Olcott, notwithstanding his discharge in bankruptcy? The constitution of the United States con- fers upon congress power to establish uni- form laws on the subject of bankruptcies throughout the United States. This, like all other powers, is exclusive when exercised by congress. By the thirty-fourth section of the bankrupt act of 1867, a mode of attacking the discharge is prescribed in the court wiiich issued it, on the ground that it was fraud- ulently obtained. A creditor therefore seek- ing to invalidate the discharge for that rea- son, must pursue the remedy prescribed in the act. Otherwise the certificate is declared to be "conclusive evidence" in favor of such bankrupt of the fact, and the regularity of the discharge. It follows that neither in any other mode, nor in any other court can the discharge be questioned, on the ground that it was improperly granted. Besides the plain- tiffs have alleged in the reply, that they have made application to the United States court to set aside the discharge for the frauds al- leged to invalldiate it in this case, and if the state court should entertain concurrent juris- diction to try the' same questions, a conflict of judgment and authority might result in a case clearly vyithin the cognizance of the fed- eral courts. In this respect the act of 1867 is unlike the act of 1841, which contained no provision for setting aside the discharge, but permitted its impeachment whenever it was interposed as a defense. We must therefore regard the discharge as valid for the purposes of this action. The second point represents the important question in the case. It comes up on de- murrer to the reply, and the plaintiff seeks to attack the answer, setting up the discharge, on the ground that it constitutes no defense to the action. In determining this question, we must take the allegations in the compa nt as true. It is alleged in substance that after the plaintiff's debt was contracted, the de- fendant, Cornelius Olcott, purchased and paid the consideration for a large quantity of real estate, which was conveyed to his wife, and which by this action, the plaintiffs seek to reach, for the purpose of satisfying their de- mand. Judgment was obtained against Ol- cott before the bankrupt discharge was ob- tained, but this action was not commenced until after that time. A discharge in bank- ruptcy extinguishes the debt against the bankrupt. The judgment becomes extinguish- ed, and the demands upon which it was ren- dered. Ruckman v. Cowell, 1 N. Y. 505; De- puy V. Swart, 3 Wend. l.>j; Baker v. Wheat- on, 5 Mass. 509. In the language of the act, the discharge releases "the bankrupt from all debts, claims, liabilities and demands which were or might have been proved against his estate in bankruptcy, and may be pleaded ■* * * as a full and complete bar to all suits brought on any such debts, claims, liabilities or demands." It is claimed by the plaintiffs, that as cred- itors they had, by virtue of the fifty-first and fifty-second sections of the statute of uses and trusts, a lien upon the property held by the wife, the consideration for which was paid by the debtor, and that such lien exist- ed at the time the discharge was granted and was not affected by it. Prior to the Revised Statutes, where the consideration for land was paid by one per- son, and the land was conveyed to another, a trust resulted to the person paying the con- sideration, and the interest of such person might be taken and sold on execution, and the legal title thereby transferred to the pur- chaser. 1 Rev. St 74; Guthrie v. Gardner, 19 Wend. 414; Jackson v. Walker, 4 Wend. 462. The Revised Statutes changed this rule, by providing in the fifty-first section that no PHOPEKTY IN EQUITY— TRUSTS. 125 use or trust shall result in favor of the person by whom the payment is made, but that the title shall vest in the person named as alienee in such conveyance, subject only to the pro- visions of section 52, which declares that every such conveyance "shall be presumed fraudulent as against the creditors, at the time, of the person paying the consideration, and that when a fraudulent intent is not dis- proved, a trust shall result in favor of such creditors to the extent that may be necessary to satisfy their just demands." This change was probably made to prevent an evasion of the general policy of the statute prohibiting trusts, except for a few specified purposes. It is obvious that the interest or right, or whatever it may be termed, secured to cred- itors by this statute, is an equitable interest, enforceable only in equity. A trust results, not of the whole property, but suflBcient only to satisfy the just claims of creditors; not of one creditor only, but of all creditors. Ex- cept as against creditors, the title is perfect in the grantee, and as against them it is per- fect, if the grantee can disprove a fraudulent intent. The rights of both creditors and gran- tee can only be properly adjusted and en- forced, in a proceeding in equity, where all interested persons can be made parties, and a sale and proper distribution of the proceeds can be made. That this is an equitable and not a legal interest, to be enforced in a court of equity, was decided in this court in Gar- field V. Hatmaker, 15 N. Y. 475. The bankrupt act preserves the rights of creditors by mortgage, pledge or other lien upon the property of the bankrupt, and the assignee takes the property subject to it (sec- tions 14, 20), and of course a valid lien against the property of a third person would not be affected by the discharge. Although there may be some apparent con- fusion from the use of terms, I do not think the interest of the creditors constitutes a lien, within the meaning of the bankrupt act; nor in any such legal sense as to give creditors a priority, except by means of the usual equitable remedies. A lien is not a property in the thing itself, nor does it con- stitute a mere right of action for the thing. It more properly constitutes a charge upon the thing. 1 Story, Eq. Jur. § 506; 1 Burrill, Law Diet. tit. "Lien." In some general sense creditors have an equitable lien upon the property thus situated. So they would have, if a general liability instead of a resulting trust had been declared. So debts are an eq- uitable lien upon property fraudulently trans- ferred by a debtor; and it may be said that every debtor is a trustee for his creditors and bound to use his property for their benefit, and that creditors have an equitable lien upon the property of the debtor. But in all these cases the usual remedies are to be pursued to create and enforce the lien before a specif- ic charge constituting an incumbrance is cre- ated. There is no mystery in the term "re- sulting trust." After adopting the fifty-first section, It was indispensable to make some provision to preserve the rights of creditors, otherwise the grantee w6uld have held the title absolutely against creditors and all oth- ers. Hence the fifty-second section was adopt- ed, which placed the property in the same relation to creditors as it would have been if the debtor himself had fraudulently ti'ans- ferred it, and the words used were appro- priate for that purpose. The object of the statute was to cut off all interest in the pei-- son paying the consideration, and then to de- clare property liable for his debts; but this liability can only be enforced in the usual mode. A creditor at large cannot enforce the liability without a preliminary judgment and execution. When the legislature transformed this from a legal into an equitable interest, we must presume that they intended to apply equitable rules and principles existing at the time for its enforcement. One of them is that before the equitable interests of a debtor can be reached in equity all available legal remedies must be exhausted. It is not nec- essary to hold that such an action is in strictness a creditor's bill, and that jurisdic- tion depends upon a technical compliance with the statute. The general powers of a court of equity over trusts and frauds may be conceded as sufficient to confer jurisdic- tion, but this concession does not dispense with the rule of equity which existed prior to and independently of the statute, that creditors must exhaust available, legal reme- dies before resorting to courts of e(juity to reach equitable interests. In Beck v. Bur- dett, 1 Paige, 305, the chancellor laid down the rule of equity established before the Re- vised Statutes, as follows: "There are two classes of cases where a plaintiff is per- mitted to come into this court for relief after he has proceeded to judgment and execution at law, without obtaining satisfaction of his debt. In one case the issuing of an execu- tion gives to the plaintife a lien upon the property; but he is compelled to come here for the purpose of removing some obstruc- tion, fraudulently or inequitably interposed, to prevent a sale on the execution. In the other, .the plaintiff comes here to obtain, sat- isfaction of his debt, out of property which cannot be reached by execution at law. In the latter case, his right to relief here depends upon the fact of his having exhausted his legal remedies without being able to obtain satisfaction of his judgment." Wiggins v. Armstrong, 2 Johns. Ch. 144, 283; Brinker- hofC V. Brown, 4 Johns. Ch. 671, and cases there cited. The foundation of courts of equity is to exercise jurisdiction "in cases of rights rec- ognized and protected by municipal jurispru- dence, where a plain, adequate and complete remedy cannot be had in courts of law." 1 Story, Eq. Jur. § 33. Legal remedies are the cheapest and most expeditious for creditors, 126 rHOPEUTY JN EQUITY— TRUSTS. and in this class of cases they protect both creditor and the person holding the title. As between the grantor and debtor, the lat- ter is bound, both in law and equity, to pay his debts from other property if he has it; and the dictates of propriety, as well as the established rules of equity, require that re- sort should in the first instance be had to such other property, if it can be reached by the ordinary process of law. This question is only pertinent in this case, as an argument to elucidate the nature of the interest of creditors under this statute. Although the indorsement of the execution "nulla bona" was not filed, it was actually made, which, with the other facts alleged, may be regarded a substantial compliance with the equity rule referred to. But neither the judgment nor execution constituted a lien upon equitable Interests. The commencement of the equi- table action and the filing of the lis pendens was necessary for that purpose. This is well settled in analogous cases. In Edgell v. Hay- wood, 3 Atk. 357, Lord Chancellor Hardwicke held that a bona fide assignment of such property after Judgment and execution would be valid, and added: "But after a bill brought, and a lis pendens created, as to this thing, such assignment could not prevaU." Weed V. Pierce, 9 Cow. 722; Coming v. White, 2 Paige, 567; Spader v. Davis, 5 Johns. Ch. 280; Edmeston v. Lyde, 1 Paige, 687. Judge Story lays down the general rule that "courts will also enforce the security of a judgment creditor against the equitable in- terest in the freehold estate of his debtor, treating the judgment as in the nature of a lien upon such equitable interest. But in all cases of this sort, the judgment creditor must have pursued the same steps as he would have been obliged to do to perfect his lien, if the estate had been legal." Story, Eq. Jur. § 1216; Neate v. Duke of Marlborough, 3 Mylne & C. 407, 415. The nature of the interest of creditors un- der this statute, and the remedy to enforce such interest, have not been definitely set- tled by the courts of this state. Brewster v. Power, 10 Paige, 562, was a case where the only point involved, and the only one de- cided, was whether the plaintiff was and must be a creditor at the time of the convey- ance, in order to avail himself of the interest secured to creditors under the statute. The chancellor dismissed the bill, but in the course of his opinion, made the following re- mark: "I am not prepared to say that a judgment for such a debt would not create a preferable lien in equity upon such real property, except as against a purchaser for a valuable consideration." In McCartney v. Bostwick, 32 N. Y. 53, the plaintiff had prosecuted the defendant to judgment and execution in Minnesota, where he resided, and then commenced an action In this state, to reach property which had been paid for by the debtor and transferred to his wife. I infer from the opinions that the court de- clined to decide whether in such a case it was necessary to exhaust the legal remedies. At all events, such is the most favorable con- struction of the case for the plaintiffs. Porter, J., who delivered one of the opinions, said: "The case presented being one of pure trust, we are not prepared to say that the action might not have been maintained with- out recourse in the first instance to all attain- able legal remedies against the principal debtor; but it is unnecessary to determine this question, as the fact is admitted that all remedies at law were exhausted against the debtor in the state in which he resided, and that in this state no legal remedy was avail- able." Davis, J., who also delivered an opin- ion, said: "The case is an anomalous one. There exists concededly in the farm held by the respondent a pure trust in favor of the appellants. But to reach and apply this trust estate a general rule of equity requires that they should have exhausted their legal remedy." The case was decided upon the ground that the plaintiffs had exhausted all available legal remedies, and that the court would entertain jurisdiction by virtue of its inherent equitable powers. The opinions of the learned judges in the two cases referred to, although not at all de- cisive, and not very explicit upon the main point, are not antagonistic to the views above expressed. The most that can be said is that one or two of them entertained an undefined impression that the words "result- ing trust," as used in this statute, meant something more than a declaration that the property was liable for existing debts to be enforced in the mode prescribed for reaching other equitable interests. The learned chancellor was not prepared to say but a judgment might constitute a "pref- erable lien;" but as it was unnecessary to de- cide it, he refrained from expressing an opin- ion, and Porter, J., was not prepared to say but the claim might be enforced without re- sort to any legal remedies, but he expressly declined on behalf of the court any intention to determine the question, while Davis, J., held that although the court could exercise jurisdiction independently of the statute, the general rules of equity required that the legal remedies should be exhausted. The decision in both cases was undoubtedly right, and it is quite unnecessary in this case to criticise any of the intimations. The question of a lien was not involved in either case. If it should be conceded that it was not indis- I)ensable to exhaust the legal remedies, and that an action would lie by a creditor at large, no lien would exist until an action was actually commenced for that purpose. The statute does not restrict the creditor to this property. It gives him a right to pursue the property in the hands of the fraudulent gran- tee, but he is not obliged to do so; and until he takes some decisive legal step evincing his purpose to do so no lien is created any more PROPERTY IN EQUITY— TRUSTS. 127 than would have been upon property fraudu- lently transferred by the debtor himself. The harmony and analogies of the law are better preserved by requiring all available legal remedies to be resorted to as a prelimi- nary requisite to an action for the applica- tion of the trust property. It is difficult to perceive any distinction, or any reason for it, between the rights of creditors as to proper- ty fraudulently transferred by the debtor himself, and property paid for by him and transferred to a third person. Why should creditors have difEerent and superior rights to enforce their debts in the latter case to those enjoyed in the former? I can see no reason for any distinction, and I do not be- lieve the statute has created any. But in either case the commencement of an equi- table action is necessary to constitute a lien or charge, in any legal sense, upon the land. These views dispose of the plaintiffs' case. The judgment or debt is the foundation of this action. Both were extinguished before the action was commenced. The plaintiffs sought to enforce and secure a lien against this property by virtue of their rights as- creditors. The debt having been discharged, they were not creditors, and could not avail themselves of the resulting trust, which was secured to creditors only. The relation must exist at the time of the conveyance, and at the time when the action is commenced, tO' establish the lien. The judgment must be affirmed. All concur, except GROVER, J., dissenting. Judgment affirmed. .128 PKOi'EUTY IN EQUITY— TRUSTS. MITCHELL T. READ. (61 N. y. 123.) Court of Appeals of New York. May 21, 1874. Appeal from judgment of the general term of the supreme court in the First judicial de- partment, affirming a judgment in favor of defendant, entered upon decision of the court at special term. Reported below, 61 Barb. 310. This action was brought to have certain leases, obtained by the defendant during the existence of a copartnership between him and plaintiff, for terms to commence at its termination, of premises leased and occupied by the firm, declared to have been taken for the partnership, and to have it adjudged that the uetenuant held them as trustee for the partnership. The facts found were substan- tially as follows: The plaintiffs veere copartners, conducting and carrying on the Hoffman House, in the city of New York. The copartnership, by its terms, expired May 1, 1871; it owned vari- ous leases of premises which were used for the partnership business. All of the leases expired at the same time with the copartner- ship. The firm had spent large sums of money in making valuable improvements and in fitting up the leasehold premises so tha1i they coiild be beneficially used in connection, and also in fixtures and furnishing, and by their joint efforts had built up a profitable business, and largely enhanced the rental val- us of the premises. In 1S69 the defendant, without any notice of his intent to apply therefor, and without the knowledge of plain- tiff, procured renewal leases, in his own name, of the premises, for terms commencing at the termination of the partnership leases and of the partnership, which, upon discovery there- of having been made by plaintiff, defendant claimed were his property exclusively, and refused to recognize or acknowledge that the partnership or plaintiff had any right or in- terest therein. Other facts appear in the opinion. The court found as conclusions of law that the defendant Read was the sole owner of the leases executed to him as aforesaid, and that the plaintiff had no right, title, nor in- tei'est in or to them, or either of them, and that the defendants have judgment accord- ingly, to which plaintiff duly excepted. Judgment was rendered accordingly. The plaintiff commenced this action soon after he ascertained that the defendant had taken the new leases, to wit, in March, 1870, and the cause was brought to trial in Febru- ary, 1871. A. J. Vanderpoel and J. E. Burrill, for ap- pellant. John K. Porter and Willard O. Bart- lett, for respondents. EARL, O. The relation of partners with each other is one of trust and confidence. Bach is the general agent of the firm, and is bound to act in entire good faith to the oth- er. The functions, rights and duties of part- ners in a great measure comprehend those both of trustees and agents, and the general rules of law applicable to such characters are applicable to them. Neither partner can, in the business and affairs of the firm, clan- destinely stipulate for a private advantage to himself; he can neither sell to nor buy from the firm at a concealed profit to him- self. Every advantage which he can obtain in the business of the firm must inure to the benefit of the firm.' These principles are ele- mentary, and are not contested. Story, Partn. §§ 174, 175; Colly. Partn. 181, 182. It has been frequently held that when one partner obtains the renewal of a partner- ship lease secretly, in his own name, he will be held a trustee for the firm as to the re- newed lease. It is conceded that this is the rule where the partnership Is for a limited term, and either partner takes a lease com- mencing within the term; but the conten- tion is that the rule does not apply where the lease thus taken is for a term to com- mence after the expiration of the partner- ship by its own limitation, and whether this contention is well founded is one of the grave questions to be determined upon this appeal. It is not necessary, in maintaining the right of the plaintiff in this case to hold that in all cases a lease thus taken shall inure to the benefit of the firm, but whether, upon the facts of this case, these leased ought to in- ure to the benefit of this firm I will briefly allude to some of the prominent features of this case. These parties had been partners for some years; ' they were equal in dignity, although their interests differed. The plaintiff was not a mere subordinate in the firm, but so far as appears, just as important and effi- cient in its affairs as the defendant. They procured the exclusive control of the leases of the property, to terminate May 1, 1871, and their partnership was to terminate on the same day. They expended many thousand dollars in fitting up the premises, a portion thereof after the new leases were obtained, and they expended a very large sum in fur- nishing them. By their joint skill and in- fluence they built up a very large and profit- able business, which largely enhanced the rental value of the premises. More than two years before the expiration of their leases and of their partnership, the defend- ant secretly procured, at an increased rent, in his own name, the new leases, which are of great value. Although the plaintiff was in daily intercourse with the defendant, he knew nothing of these leases for about a year after they had been obtained. There is no proof that the lessors would not have leased to the firm as readily as to the de- fendant alone. The permanent fixtures, by the terms of the leases at their expiration, belonged to the lessors. But the movable PROPERTY IN EQUITY— TRUSTS. 129 fixtures and furniture were worth vastly more to be kept and used In the hotel than to be removed elsewhere. Upon these facts I can entertain no doubt, both upon princi- ple and authority, that these leases should be held to inure to the benefit of the firm. If the defendant can hold these leases, he could have held them if he had secretly ob- tained them immediately after the partner- ship commenced, and had concealed the fact from the plaintifC during the whole term. There would thus have been, during the whole term, in making permanent improve- ments and in furnishing the hotel, a conflict between his duty to the firm and to his self- interest. Large investments and Extensive furnishing would add to the value of his lease, and defendant would be under constant temptation to make them. While he might not yield to the temptation, and while proof might show that he had not yielded, the law will not allow a trustee thus situated to be thus tempted, and therefore disables him from making a contract for his own benefit. Terwilliger v. Brown, 44 N. Y. 237, and cases cited. It matters not that the court at spe- cial term found upon the evidence that the improvements were judicious and prudent for the purposes of the old term. The plaintiff was entitled to the unbiased judgment of the defendant as to such improvements, unin- fluenced by his private and separate interest. But, further, the parties owned together a large amount of hotel property in the form of furniture and supplies, considerably exceed- ing, as I infer, $100,000 in value. Assuming that the partnership was not to be continued after the 1st day of May, 1871, this property was to be sold, or in some way disposed of for the benefit of the firm, and each partner owed a duty to the firm to dispose of it to the best advantage. Neither could, without the violation of his duty to the fii'm, place the property in such a situation that it would be sacrificed, or that he could purchase it for his separate benefit, at a great profit. Much of this property, such as mirrors, carpets, etc., was fitted for use in this hotel, and it is quite manifest that all of it would sell better with a lease of the hotel, than it would to be re- moved therefrom. It is clear that one or both of these parties could obtain advantageous leases of the hotel for a term of years, and hence, if the parties had determined to dis- solve their partnership, it would have been a measure of ordinary prudence to have ob- tained the leases and transferred the prop- erty with the leases as the only mode of real- izing its value. This was defeated by the act of the defendant, if he is allowed to hold these leases, and thus place himself in a position where the proprty must be largely sacrificed or purchased by himself at a great advantage. This the law will not tolerate. The language of Lord Eldon. in Featherstonhaugh v. Fen- wick, 17 Ves. 311, a case in many respects resembling this, is quite in point. He says: "If they [the defendants] can hold this lease HUTCH. EQ. JUB. — 9 and the partnership stock Is not brought to sale, they are by no means on equal terms. The stock cannot be of equal value to the plaintiff, who was to carry it away and seek some place in which to put it, as to the de- fendants who were to continue It in the place where the trade was already establish- ed, and if the stock was sold the same con- struction would give them an advantage over the bidders. In effect they would have se- cured the good-will of the trade to themselves in exclusion of their partner." For these rea- sons, independently of the consideration that the leases themselves had a value to which the firm was entitled upon other grounds and upon authorities to be hereafter cited, the plaintiff, who commenced his suit about one year before the term of the partnership ex- pired, was upon undisputed principles and au- thorities applicable to all trustees and per- sons holding a fiduciary relation to others, entitled to the relief he prayed for. It has long been settled by adjudications, that generally when one partner obtains the renewal of a partnership lease secretly, in his own name, he will be held a trustee for the firm, in the renewed lease, and when the rule is otherwise applicable, it matters not that the new lease is upon different terms from the old one, or for a larger rent, or that the lessor would not have leased to the firm. The law recognizes the renewal of a lease as a reasonable expectancy of the tenants in pos- session, and in many cases protects this ex- pectancy as a thing of value. I will briefly notice a few of the cases upon this subject. In Holridge v. Gillespie, 2 Johns. Ch. 30, Chancellor Kent says: "It is a general prin- ciple pervading the cases, that if a mortgagee, executor, trustee, tenant for life, etc., who has a limited interest, gets an advantage by being in possession, 'or behind the back' of the party interested in the subject, or by some contrivance or fraud, he shall not re- tain the same for his own benefit, but hold it in trust." That was a case where a lease was assigned as security, and the assignees surrendered it to the lessor and took a new lease for an extended term of years. In Phyfe V. Warden, 5 Paige, 268, Chancellor Walworth lays down the general rule: "That if a person who has a particular or special in- terest in a lease obtains a renewal thereof from the circumstance of his being in posses- sion as tenant, or from having such particu- lar interest, the renewed lease is in equity considered as a mere continuance of the orig- inal lease, subject to the additional charges upon the renewal, for the purpose of protect- ing the equitable rights of all parties who had any interest, either legal or equitable, in the old lease." That case was followed in Gibbes V. Jenkins, 8 Sandf. Ch. 131, where it was held that one purchasing a leasehold which was subject to a mortgage and contained no covenant of renewal, could not escape the lien of the mortgage by suffering the lease to ex- pire and afterward obtaining a new lease of 130 PEOPERTY IN EQUITY— TRUSTS. the premises; that the new lease in such case, though not a renewal, was a continuance of the original lease for the purpose of protecting the rights of the parties interested in the orig- inal lease, both legal and equitable. In these two cases church leases were involved, and some stress was laid upon that fact, as the continuance of such leases was expected as a matter of course, without any covenant of renewal. But the fact that they were church leases could malie no real difference in the principle upon which the decisions were based. The fact that a renewal or continuance of a lease is more or less certain can malse no dif- ference with the principle; that springs from the fact that the party obtained a new lease from the position he occupied, being in pos- session and having the good-will which ac- companies that, or being connected with the old lease in some way, and thus enabled to talje an inequitable advantage of other par- ties also interested, to whom he owed some duty. In Struthers v. Pearce, 51 N. Y. 357, it was held that when during the existence of a continuing copartnership of undetermined du- ration, three or tour copartners, without the knowledge of the other, obtained a new lease in their own names, of premises leased and used by the firm, the same became partner- ship property, and upon dissolution the other partner was entitled to his proportion of the value. In that case the defendants Intended to dissolve the copartnership as early as Au- gust, and gave written notice on the 18th day of September, 1865, for the dissolution on the 31st day of December following. On the 11th day of September, the defendants secretly ob- tained a new lease, in their own names, of the same premises, for a term of five years, to commence May 1, 1866. I thinli that case is fairly decisive of this. It is true that a period for a dissolution of the partnership had not been fixed when the new lease was taken, but negotiations were pending for its dissolu- tion, and a few days after the new lease was taken, a time for its dissolution was fixed by a written notice. But it can make no differ- ence that the partnership might have been continued by the parties until after the new term commenced. So it might here, if the parties had so willed. There they had the right to dissolve it at any time. The principle which lies at the foundation of the decision of that and all similar cases must be the one above stated, that the defendants in posses- sion took advantage of their position to pro- cure the new lease, and thus deprived the plaintiff of a benefit to which he, with them, was equally entitled. In a note to Moody v. Matthews, 17 Ves. (Sumn. Ed.) 185, the learn- ed editor says, as a deduction from adjudged cases, that "with a possible exception in favor of a bona fide purchaser, it seems to be an universal rule that no one who is in posses- sion of a lease or a particular interest in a lease, which lease is affected with any sort of equity in behalf of third persons, can renew the same for his own use only; but such re- newal must be construed as a graft upon the old stock." In Clements v. Hall, 2 De 6ex & J. 173, where one partner in a mining part- nership died in 1847, and the surviving part- ner thereafter worked the mine without a new lease thereof, claiming to do so for his own benefit, until 1850, when the lessor gave him notice to quit in March, 1851, when he entered into new negotiations with the lessor for a new lease, and obtained one of the greater part of the mine, on terms much more burdensome than those of the old tenancy, it was held that those who claimed under the will of the deceased partner were entitled to a share of the benefit of the new lease. In Clegg V. Fishwick, 1 Macn. & G. 294, one of several partners working a mine under a lease died, and the firm business was there- after carried on for several years between the surviving partners and the plaintiff, widow of the deceased partner. Finally the old lease expired, and some of the partners took a new lease of the mine without the privity of the plaintiff. It was held that the estate of the deceased partner was interested in the new lease. The lord chancellor says: "The old lease was the foundation of the new lease, and the tenant's right of renewal arising out of the old lease giving the partners the benefit of this new lease; at least, the law assumes it to be so. Without saying at all what cir- cumstances there may be to interfere with that ordinary right, we know that the rule of equity is that parties interested jointly with others in a lease cannot take to themselves the benefit of a renewal to the exclusion of the other parties interested with them." In Clegg V. Edmondson, 8 De Gex, M. & G. 787, the managing partners of a mining partner- ship at will gave notice of dissolution to the rest, and intimated their intention, after the dissolution, to apply for a new lease for their own exclusive benefit, and did so and obtain- ed a lease, and it was held to inure to the benefit of the partnership. See, also, the lead- ing cases of Featherstonhaugh v. Fenwick, 17 Ves. 298, and Keech v. Sandford, 2 Eq. Gas. Abr. 741, and notes to the latter case in 1 Lead. Cas. Eq. 32, where the whole doctrine is discussed, and conclusion reached in har- mony with the views above expressed. I therefore conclude that it makes no difference that these leases were obtained for a term to commence after the partnership, by its own limitation, was to terminate. I can find no authority holding that it does, and there is no principle sustaining the distinction claimed. The defendant was in possession as a member of the firm, and the firm held the good-will for a renewal, which ordinarily . attaches to the possession. By his occupancy, and the payment of the rent, he was brought into inti- mate relations with the lessors; he became well acquainted with the value of the prem- ises, and he took advantage of his position, during tlie partnership, secretly to obtain the new leases. He must hold them for the firm. PROPERTY IN EQUITY— TRUSTS. 131 I am therefore of opinion tliat the judg- ment should be reversed, and new trial grant- ed, costs to abide the event. DWIGHT, C. The question at issue in this case is, whether a member of a commercial partnership, during its continuance, and with- out the consent or knowledge of his associate, can talse a renewal of a lease of property used in the business, in his own name and for his own benefit, the partnership having a definite termination, and the renewal lease commencing at its expiration. The general power of a partner to take a lease of such property for his own benefit must be considered as settled in this court by the decision in Struthers v. Pearce, 51 N. Y. 357. In that case the lease was taken during the existence of the partnership, which was of indefinite duration. No notice had been given of its termination when this lease was taken. The facts presented the case of a lease taken during the existence of tha part- nership, and to begin in enjoyment during that time. The court expressely distinguished it from the present case, which had then been decided in the supreme court. Page 362. The only point now open for discussion is, whether the fact that when Read took the renewal of the lease the partnership had a precise limit, and was to terminate before the lease commenced, is material. Before considering that point, it may fairly be claim- ed that this case comes within the precise decision in Struthers v. Pearce, on a ground not mentioned in the argument. Read, though his lease was not to commence in pos- session until after the expiration of the orig- inal lease, acquired an immediate interest by way of an interesse termini. This precise point was decided in Smith v. Day, 2 Mees. & W. 684, 699 ; 2 Piatt, Leas. 60. This, it is time, is not an estate, but a right. Still it is the subject of grant before ontry. 1 Steph. Comm. 268; Burt. Real Prop. 18, pi. 61; 2 Crabb, Real Prop. 22T. If the partnership had acquired this interesse termini, it might, as the facts of the case show, have been dis- posed of for a largo sum of money. If the doctrine of Struthers v. Pearce establishes that the partner cannot acquire a lease in his own behalf, to commence while the partner- ship lasts, by parity of reasoning he cannot obtain an interesse termini under the same circumstances. If however this view is not correct, the main question must be disposed of. Can a partner take a lease for himself, to commence in possession after the partnership has ex- pired? In order to settle this point it is essential to give the subject a more full ex- amination than was requisite in Struthers v. Pearce, and to consider more at large the prin- ciples on which this branch of the law rests. It grows out of the relation of trust and con- fidence between partners, and is a branch of the rule that a trustee cannot profit from the estate for which he acts. It largely has its roots in a principle of public policy, as shown in one of the early decisions. Keech v. Sand- ford, Sel. Cas. Ch. 61; Griffin v. Griffin, 1 Schoales & L. 352, per Lord Redesdale. The general rule is so well settled that it would be a waste of time to refer to authorities. The text-writers on the law of partnership, without exception, assert the applicability of this rule of law to partnership transactions. Lindl. Partn. 495; Story, Partn. §§ 174, 175; Parsons, Partn. §§ 224^226; CoUy, Partn §§ 281, 282. The special rule that a trustee cannot take, for his own benefit, a renewal of a lease which he holds in trust, is enforced in a great number of cases. The principle on which it rests is nowhere more fully or clearly stated than in the argument of Su- Francis Har- grave in Lee v. Yernon, 5 Brown, Pari. Cas. (10th Eng. Ed.) 1803. Although the passage is somewhat long, it is quoted aS shedding much light on a subject, the principle of which has in course of time, become somewhat obscure. He said: "It has long been an established practice to consider those who are in posses- sion of lands under leases for lives or years as having an interest beyond the subsisting term, and this interest is usually termed the tenant right of renewal, which though accord- ing to language and ideas strictly legal, is not any certain or even contingent estate; but only a chance, theie being no means of compelling a renewal, yet is so adverted to in all transactions relative to leasehold proper- ty, that it influences tbe price in sales, and is often an inducement to accept of it in mortgages and settlements. This observation is more especially applicable to leases from the crown, the church, colleges or other cor- porations, and indeed from private persons, where the tenure is of ancient date. * * * This 'tenant right' of renewal as it is termed, however imperfect or contingent in its na- ture, being still a thing of value, ought to be protected by the courts of justice, and when those who are entitled to its incidental advantages, whether by purchase or other der- ivation, are disappointed of them by fraud, imposition, misrepresentation, or unfair prac- tice of any kind, it is fit and reasonable that this injury should have redress. Accordingly courts of equity have so far recognized the tenant right of renewal as frequently to in- terpose in its favor by decreeing that new or reversionary leases gained by means or sup- position of the tenant right of renewal should be for the benefit of the same persons as were interested in the ancient lease, and those who procured such new leases and were le- gally possessed of them, should be trustees for that purpose. Thee is a great variety of authorities on this head, but the cases which have hitherto occurred have been principally of two kinds, some being cases of persons not having any beneficial interest in the old lease, as guardians and executors, and others being cases of persons having only partial and limited interests, as tenants for life, mort- 132 PKOPEETY IN EQUITY— TRUSTS. gagees and mortgagors, and in cases of both descriptions tliose who have procured a new lease in such situations have been uniformly declared trustees for the persons beneficially interested in the ancient lease, either wholly or in part, according to the particular circum- stances, the court ever presuming that the new lease was obtained by means of a con- nection with and a reference to the interest in the ancient one, without in the least re- garding whether the persons renewing intend- ed to act as trustees, or for their own emolu- ment." From this exposition so luminous and judi- cial in its tone, which is fully sustained by the authorities, it is clear that the rule un- der consideration is not confined to crown, church or college leases, but embraces those of every kind. The same principle apper- tains to all. The cestui que trust has a right to the chance of renewal. Though this is termed a "tenant right" as between the les- see and the landlord, that is a mere phrase. It is a hope, an expectation, rather than a right. Such as it is the trustee shall not take it to himself, but if it results in any substantial benefit he shall hold it for his beneficiary. Phyfe v. Wardell, 5 Paige, 268; Bennett v. Van Syckel, 4 Duer, 162; Gibbes V. Jenkins, 3 Sandf. Ch. 130; Davoue v. Fanning, 2 Johns. Ch. 252; Armour v. Alex- ander, 10 Paige, 572; Dickinson v. Codwise, 1 Sandf. Ch. 226. Some of these were in- stances of church or other corporation leases, and others were not. In no case has it been held that the rule is confined to these, as it certainly cannot be on principle. The whole doctrine is extended to the case of partners in Featherstonhaugh v. Fenwick, 17 Ves. 298; Clegg v. Edmondson, 8 De Gex, M. & G. 787; Clements v. Hall, 2 De Gex & J. 173; Clegg v. Fish wick, 1 Macn. & G. 294; Struthers v. Peai-ce, supra. The principle cannot depend on the fact whether the lease is made to begin during the continuance of the partnership or at its close. Once admit the general principle, and it must result in this. While the rela- tion lasts, one partner cannot clandestinely and exclusively profit by the trust relation. There may perhaps be cases where the act is openly done by the trustee and acquiesced in by the beneficiary that would admit of different considerations. It is not now nec- essary to decide that in no case can "a part- ner take a lease for his own benefit. What is now to be decided is, whether he can do so behind the back of his associate and with- out his consent. The bad consequences of making any such distinction as the defend- ant seeks to maintain in the present case is easily shown by a reference to the relation of a guardian and his ward. A guardian, we may suppose, holds a lease in his official character which is to expire at his ward's majority. While the relation of guardian and ward exists, he takes a lease to himself to commence at the termination of the ex- isting lease. Could that be sustained? Has he not profited by the trust relation? When he takes a lease to himself, can a tenable distinction be taken between one commenc- ing immediately and one beginning at a future day, even though that day be post- poned until the trust relation expires? The sound rule is that he cannot make any profit to himself from a secret transaction initiat- ed while the relation of trustee and cestui que trust exists, no matter when it springs into active operation. It must never be for- gotten that on general principles of the law of contracts his right to the lease, as between him and his landlord, commences as soon as he has made his agreement for it. This is an immediate subject of sale, and if the trustee can hold it he wiU be allowed to profit by the trust relation which, as has been shown, he cannot do. The cestui que trust may accordingly say: "All the value of this lease you hold in trust for me. Grant that it is not yet an estate but only a right- make it over to me in the condition in which you hold it." While no case has been found presenting the precise facts in the case at bar, the principles which should govern it may be derived from the result in Feather- stonhaugh V. Fenwick, supra, Clegg v. Ed- mondson, and Clegg v. Fishwick, supra. In the first of these cases the partnership was for an indefinite period, and might be dissolved at the pleasure of either party, on notice. It was dissolved November 22, 1804, the day on which the lease expired. Two of the partners, without communication with the plaintiff, had applied for a renewal of the lease, ajid obtained it before giving notice of the dissolution of the partnei-ship. The new lease was to run for eight years from the expiration of the old one. On October 19 they gave notice to dissolve the partnership. The court held that the new lease belonged to the partnership and was assets of the firm. Much stress was laid on the fact that the transaction was a clandestine one, and the court thought if notice had been given the case might have admitted of different consideration. The case is not in aU respects parallel in its facts with the case at bar, for at the time the lease was taken the pe- riod for the termination of the partnership had not been fixed, and only became subse- quently ascertained by notice. In the case of Clegg v. Edmondson, which was also an instance of a partnership to he dissolved at the pleasure of the parties, the effect of a notice to dissolve, preceding the execution of the renewal lease, came before the court. In that case five managing part- ners had determined to dissolve their part- nership, and had communicated their intent in June, 1846, and their determination to take a renewal to themselves. To this two other partners objected, claiming that the renewal should be for the benefit of all. For- mal notice of dissolution was given in July, to take effect on September 30. On the sue- PROPERTY IN EQUITY— TRUSTS. 133 ceeding 11th of December a new lease was executed for twenty-one years to the man- aging paitners, to taJie effect from Septem- ber 29, 1846. The defendants endeavored to distinguish this case from that of Feather- stonhaugh v. Fenwlck, on the ground of the openness and fairness of the transaction. The court however held that the mere com- munication of an Intent on the part of the managing partners to apply for a lease for their own benefit was not sufllcient to give them an exclusive right to it. This case, on the point of time, is stronger than the case at bar, for the new lease was taken after the partnership was dissolved, though some stress was laid upon a point which does not appear here, that the act was that of man- aging partners. On principle, in many cases. It is of but lit- tle consequence whether the partnership is dissolved or not before the renewal, since, if the former partners become tenants in com- mon, the result Is the same. Clements v. Hall, 2 De Gex & .T. 1T3; Van Home v. Fonda, 5 Johns. Gh. 388; Baiier v. Whiting, 3 Sumn. 475, Fed. Gas. No. 787. The case of Clegg V. Fishwlck is still nearer to the one under consideration. In this instance, the renewal lease was obtained during the exist- ence of the partnership, and the lease com- menced at its expiration. This lease was de- clared to be held in trust for the firm. Without further collation of authorities, the fair deductions from the principles on which they rest may be summed up as fol- lows: 1. A trustee holding a lease, whether cor- porate or individual, holds the renewal as a trustee, and as he held the original lease. 2. This does not depend upon any right which the cestui que trust has to the re- newal, but upon the theory that the new lease is, in technical terms, a "graft" upon the old one; and that the trustee "had a fa- cility," by means of his relation to the estate, for obtaining the renewal, from which he shall not personally profit. 3. This doctrine extends to commercial partnerships, and one of several partners cannot, while a partnership continues, take a renewal lease clandestinely, or "behind the backs" of his associates, for his own benefit. It Is not material that the landlord would not have granted the new lease to the other part- ners, or to the firm. 4. It is of no consequence whether the partnership is for a definite or an indefinite period. The disability to take the lease for individual profit grows out of the partner- ship relation. While that lasts, the renewal cannot be taken for individual purposes, even though the lease does not commence until after the expiration of the partnership. 5. It cannot necessarily be assumed that the renewal can be taken by an individual member of the firm, even after dissolution. The former partners may still be tenants In common; or there may be other reasons, of a fiduciary nature, why the transaction can- not be entered into. The authorities cited on behalf of the de- fendant do not disprove these conclusions. In Lee v. Vernon, supra, there was no trust. The question arose between a stran- ger to the lease and the claimant. The point made by the plaintifC was that the "tenant right" of renewal had become strictly a right, so that even a stranger could not take' a re- newal and hold it for his own benefit. It was an extraordinary claim, having no foundation in principle, and was rejected. In Van Dyke v. Jackson, 1 B. D. Smith, 419, the party had made a special contract with his partner to abandon the place where the business was carried on. The case turn- ed on the special coilti-act to leave the busi- ness in the hands of the other party. Musselman's Appeal, 62 Pa. St. 81, does not raise the question. It was not sought there to charge a partner with the value of a re- newal lease which he had taken to himself during the existence of the partnership, but rather with that of the good-will as it exist- ed after the partnership was dissolved. In fact the place where the business was car- ried on was sold for the benefit of the firm, and it was held. In substance, that the good- will had been realized in the enhanced value of the property sold. It is said, in the present case, that Read was not authorized, by the articles of part- nership, to contract for Mitchell after the ex- piration of the firm; and that therefore Mitchell cannot take advantage from the re^ newal lease. The answer Is that he made the contract while the firm was in existence, and Mitchell may adopt and ratify it. The objection also proves too much, as it applies to all the cases in which the partner, acting clandestinely, has been declared a trustee. In Phillips V. Reeder, 18 N. J. E'q. 95, one of the partners, R., prior to the partnership, owned the lease, exclusively, of certain stone quarries. He entered into a partnership with P. for three years, and so much longer as R. should continue lessee of the quarries. In the lease, there was a covenant of renewal at the option of R. He having declined to renew, it was held that the partnership ex- pired; or, in other words, that R. was un^ der no obligation to renew, and thus to con- tinue the partnership. There could be no pretense in this case that the doctrine under the review applied, since the original lease did not itself belong to the firm. It was the private property of one of the partners, which he was under no obligation to preserve for the firm's benefit. In Achenson v. Fair, 3 Dm. & War. 512, the point decided was, that the doctrine was not to be extended to additional lands pur- chased by trustee; in other words, the rule was fully recognized, but nothing was to be governed by it except that which could be fairly regarded as a graft on the former lease. 134 PROPERTY IN EQUITY— TRUSTS. In Nesbitt v. Tredennick, 1 Ball & B. 29, 48, a mortgagee, not in possession, obtained a renewal, the original lease having been for- feited, both in law and equity, for nonpay- ment of rent. Here there was no violation of trust. The rule under discussion was ful- ly recognized, but its application to the ex- isting case denied. The court said: "'In all the cases upon this subject, either the party, by being in possession, obtained the renewal, or it was done behind the back, or by some contrivance in fraud of those who were in- terested in the old lease; and there was ei- ther a remnant of the old lease, or a tenant right of renewal, on which a new lease could be engrafted." There could be no plainer recognition of the general principle maintain- ed by the plaintiff. In Munsell v. O'Brien, 1 Jones, Ir. 184, the facts were, that there was an under-tenant who took a new lease from the original land- lord without advising his own immediate landlord. The court held that there was no fiduciary relation between these parties. The principle was fully admitted, but the facts did not raise a case for its application. Joy, C. B., said: "It is admitted that there is no authority which can be produced where such a lease as the present has been declared to be a trust; and that we are now called upon to go further than any decision has ever gone before, and to make an authority for future decisions. We are called upon to do this on what are called the principles of a court of eauity; namely, that where a per- son is clothed with a fiduciary chai'acter, and in that character becomes possessed of an in- terest in land, held under a determinable lease, any acquisition by him of a new inter- est in those lands is a continuation of the old lease, and a 'graft' upon it. This however is the first time that I have heard it asserted that if an under-tenant obtains a lease of his lands from the head landlord without con- sulting his own immediate landlord that lease is a trust for his immediate landlord, because that person had a tenant right of renewal. But there is no fiduciary character imposed on an under-tenant, in reference to his landlord, by the creation of the relation of landlord and tenant, which would entitle the plaintiff to the relief he seeks, on the ground of his having a tenant right of re- newal. A cestui que trust Is entitled to the benefit of a new lease, obtained by a trustee by means of a tenant right of renewal, which the latter became entitled to as trustee, but there is no such person in the present case.'" This language plainly shows that the court was but following In the wake of Lee v. Vernon; and holding that the doctrine of tenant right of renewal, and that the new lease is a graft on the old stock, are not to be extended to strangers, but confined to per- sons acting in a fiduciary character. The only other case that will be noticed is Anderson v. Lemon, 8 N. Y. 236, which holds, that one partner may in good faith purchase and hold, for his own us€, the reversion of real estate occupied by the copartnership, un- der a lease for years, with the qualification that if he secretly makes such purchase in his own name while the other partner with his concurrence Is negotiating with the own- er to obtain the property for the use of the firm, the purchaser will be declared a trustee. This decision carefully admits the general doctrine, but considers It not applicable to the case where one of the partners purchases in good faith the landlord's Interest as dis- tinguished from taking a new lease. It is simply a case of an exception to a general rule. It can scarcely be considered as a de- cision in favor of a partner's right to pur- chase, since he was, under the circumstances, a trustee. Should the question be distinctly presented, it will deserve consideration whether the view in Anderson v. Lemon, that one partner may even in good faith buy the reversion for himself. Is correct. There is a great cogency in the remarks of Sir Wil- liam Grant, that the partner may in this way Intercept and cut off the chance of future re- newals and consequently make use of his situation to prejudice the Interests of his as- sociates. Randall v. Russell, 3 Mer. 190, 197. There appears to be no direct decision allow- ing the partner thus to purchase, and the right to do so is treated as doubtful by ap- proved text-writers. 1 Lead. Cas. Eq. (3d. Am. Ed.) 43, 44, marg. paging. The application of the principles discussed in this opinion to the case at bar Is obvious. The plaintiff and defendant were owners, as partners, of a lease of premises In the city of New York, on which a hotel business was carried on, yielding a large profit. These consisted of Nos. 1111, 1113, 1115 Broadway and Nos. 1 and 3 West Twenty-fourth street The leases of the Twenty-fourth street prop- erty were made directly to them, November 17, 1866. The Broadway property, through a series of ti'ansactions not necessary to be detailed, becames vested, according to the fair construction of the various agreements respecting it, in the partnership. The leases expired on the same day. May 1, 1871, when the partnership terminated. While the part- nership continued, both parties thought it necessary to provide a place for a bar-room, and with this view the premises No. 3 West Twenty-Fourth street were connected witli the rear of the premises fronting on Broad- way, known as the "Hoffman House," and the first story fitted up and used for that purpose. A considerable expenditure was made with this view, and large profits were realized, as the course taken was judicious. While all of the leases owned by the firm were still in existence, viz. April 20, 1869, and on January 21, 1869, the owners of tlie hotel property made leases to the defendant, to commence from May 1, 1871, and to con- tinue as to part of the property for five years, and as to another portion for ten years from that date, at specified rents. The leases PROPERTY IN EQUITY— TRUSTS. 135 were obtained by Read without notice to the plaintiff, and he now claims that they are his exclusive property. They are of great value, and the hotel at the commencement of the action, March, 1870, was still in opera- tion. The furniture, fixtures, stock, etc., were valuable, and the business carried on was profitable. The case has in it every element of the equity which has been already considered. The partnership is undisputed; the leases were in existence when the renewal was made. The act of renewal was clandestine, or occurred "behind the back" of the plain- tiff. It took place while the partnership was in force. The right to renewal was imme- diate and vested in Read during the partner- 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 SMise of that term. On the con- trarj', 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; REYNOLDS, C, not sitting. Judgment reversed. 133 PROPEBTY IN EQUITY— TRUSTS. NEWTON V. 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 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, 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 prmciple 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, 3 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 iu 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 PROPERTY IN EQUITY— TRUSTS. 137 her roach. 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. That 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 fide purchasers had not intervened. In Taylor v. Plumer, 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 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 principal was entitled to withhold the pro- ceeds from the assignee in bankruptcy of the agent, who became bankrupt on the day he leceived 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 trust 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 comprehen- sive. The 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 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 purchasei-s 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. 40f); Mansell v. Mansell, 2 P. AVms. 670; Lench v. Lench, 10 Ves. 511; Lewis V. Madocks, 17 Ves. 56; Perry, Trusts,. § 821); 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 subjectiuir the avails of tlie stolen property to the claimi 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 ground 9f 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 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, 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 the 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 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, 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 e.xecuted 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 sutficient time before the trial, to enable him to make his motion. See Kimball v. Davis, 19 Wend. 438; Sturm v. Atlantic Mut. Ins. Co.. 63 N. Y. 77; Drury v. Poster, 2 Wall. 33; Sheldon v. Wood, 2 Bosw. 267; Zellweger v. Caft'e, 5 Duer, 100. The judgment should be aflflrmed. All concur. Judgment affirmed. PROPERTY 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. B. Bell, Bushnell & Watkins, and J. W. Murphy, for appellant, Robert E. McLeod. Carter & Cleary, for respondent, Jonathan H. Evans, assignee, etc. COLE, G. 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 nret most serious ques- tion of law we have to consider arises upon these facts found by the leai-ned circuit court: The plaintifC 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 E. 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 Ninth National Bank of New York; that it took some time to make collections of this kind; whereujKm 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 creditoi-s. Among the assets, thei-e 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. Coimsel 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 argjment, 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 convert- 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 Sir. 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 PEOPERTY IN EQUITY— TRUSTS. only as his agent, as trust funds; or tlie property into which the 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 Hodgas 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 trust If it can be traced • into the estate of the defaulting agent or trustee, this is sufficient. The decisions in Frith V. Cartland, 2 Hem. & M. 417; Pennell V. Deffell, 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. EUicott, 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 effect 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 plaintiff's note. As 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 cheek 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 necessary 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- PKOPERTY IN EQUITY— TRUSTS. 141 Itor over another for payment out of assets has 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 veas 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 intrusted 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 plaintifC 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 light 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 iave 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. GASSODAY, 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. G96, 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 (}rawn out his own money in preference to the trust money. In that case the trustee, Hallett, died, and the action was for the administration of bis 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 $000. 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 aU 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 some 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 PKOPERTY JN EQUITY— TEUSTS. 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 eases 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. ^ 1<1 ,y PROPERTY IN EQUITY— TRUSTS. 143 MYERS V. BOARD OF EDUCATION OF CITY OF CLAY CENTER. (32 Pac. 658, 51 Kan. 87.) Supreme Court of Kansas. March 11, 1893. Error from district court, Clay county; R. B. Spilman, Judge. Action by the board of education of the city of Clay Center against D. H. Myers, assignee of the estate of John Higlnbotham, to recov- er the amount of a trust fund belonging to plaintiff. There was judgment for plaintiff, and defendant brings error. Affirmed. 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- lnbotham 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. Higlnbotham, 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 treasm-er he had an account on the books of said Clay County Bank as 'H. G. Higln- 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 8tli 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 di-awn 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 Higinbotham 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 administration 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— TEUSTS. signed the ofBee 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 office, 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. 6. 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. Afterwards 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 l5e 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 instrument 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. Myers, as assignee of John Hig- inbotham, for the payment of said sum of $3,265.71, as a trust fund in his hands as PROPERTY IN EQUITY— TRUSTS. 145 such assignee belonging to tlie plaintifC, and payment tliereof was refused; and no other demand was ever made by plaintiff or in its behalf on said D. H. Myers, as such assignee, for the payment of said money as a trust fund or otherwise. (18) When said demand was made by plaintiff on the loth day of May, 1891, said D. H. Myers did not have in his hands, as such assignee, any of the money which was in the Clay County Bank on the Sth 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. Hig'inbotham, while ti-easurer of said board, in the private bank of John Higintiotkam, was impressed with the character of trust funds, and was held as a trust fund by said John Hlgin- botham; (2) that the ajssets of John Higin- 1 I botham in the hands of D. H. Myers, 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. Myers, assignee of John Higinbotham, of the sum of $3,055.71 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, P. 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 pxuTposes, 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 Tjoard 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 Tiand 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 t)oard 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 HUTCn.EQ.JUK. — 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 ti-ust funds can be traced and identified, 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 tlie 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. EUicott, 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 was 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 conversion 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, 66 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 PROPERTY 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 be first paid out of the assets of the estate. It was found that the proceeds of the trust property were used by 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. EUicott, supra, and expressly approves the dlctrine 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. Coates, 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. X. 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. Higinbotham 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 hoard 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 taken soon after the assignment was made, and before it was known whether the trust money could be reclaimed; and probably it was not then known whether there were sufficient 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. 14 J PROPERTY m EQUITY— TRUSTS. GAVIN f. 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. Jolm- 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 moi;;y 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 whi^ch 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 eash 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- euring 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 aflirmed 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, without 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, JI. & G. 387, Turner, L. J. This 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 PROPEUTY IN EQUITY— TRUSTS. 149 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 banliruptcy 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 specificall/ 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 difficulties than a court of law; and it may be sufficient, 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. DefCell, 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 $30, with interest from April 19, 1883, but without costs to either party. All concur. Ordered accordingly. 150 PKOPERTY IN EQUITY— TRUSTS. EYAN 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. DAVIES, C. 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 Qo 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 plaintiffs 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 1889, 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 $300, 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 S'.ich 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, and 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 strutk 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 should 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- PUOPEUTY IN EQUITY— TKUSTS. 151 tiffs, and to save the 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, arid 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 Dox 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." Ponbl. 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 sum compared to its actual value, and refusing 152 PllOrEllTY IN EQUITY— TEUSTS. 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 Gaines, Cas. 87, was an 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 thinii 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 reaflirmed in Parkhurst v. Van Cortlandt, 14 Johns. 15, 35, 3G. 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 sufiicient 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 shall not be allowed to insist that the agree- ment is invahd, 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 secm-ing 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 the sum agreed for his services. And it was held by the court 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 agreeing to pmxhase 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 Ves. 626, where he says: "Upon the statute of frauds, though de- claring that interest shaU 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 talie 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 circumstances, that he was bidding ofE 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 agi-eement, he held it in tnist for them, and had no PHOPEETY JN EQUITY— TRUSTS. 15a other Interest in it tlian that of a mort- gagee, to secure the repayment of the pur- chase-money and the $60 agreed to be paid him for his ti'ouble. 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 fraiid which the court will relieve against. The cases referred to by the circuit judge (vice-chancellor), 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 tnistee 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 com-t 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 affirmed at general term in the First disti-ict 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 plaintifC, 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 boimd 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 affirmiug 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 agree- ment which was by pai'ol. The vice-chan- cellor held that the statute of frauds was no bar to the suit for a specific performance of the agreement 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, 1863. 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 property 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 t» aU 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 plaintiCf,. 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 n* 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 Cox v. Cox, 5 Rich. Eq. 36o, 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 court 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 Oh. 565,. 154 rKOPEKTY IN EQUITY— TRUSTS. Lord Thurlow says, if you interpose the medium of fraud, by which the agreement Is prevented from being put in writing, 1 agi-ee 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 bill 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 surrender 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 comt at page 121, "that a creditor shall, at a sale of his debt- or's property, lull him to sleep and keep off 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? Sm'ely 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 agi-eemeut 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 agi'eement. "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 in. the commission of fraud, which the courts of equity will not tolerate. We think there- fore that the court below did not err 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 aU 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 instrumentahties 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- scientiously 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. Ch. 268; Oldham v. Litchford, Id. 284; Dev- enish v. Baines, Finch, Prec. 3; Thynn v. Thynn, 1 Vern. 296; Reech v. Kennegal, 1 Ves. Sr. 12.j; Davis v. Walsh, 2 Har. & J. 329; Wilcox v. Morris, 1 Murph. 116; Stod- dard V. Hart, 23 N. Y. 500. It is very clear to my mind, both upon principle and authority, that the referee erred in excluding the evidence offered, and 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 ti-ial ordered. PKOPEKTY IN JiQUlxr— TRUSTS. 155 r^i- HUN V. GARY, '' (82 N. Y. 65.) Court of Appeals of New York. -1880. B. Ellery Anderson, for appellants. Fran- cis O. Barlow, for respondent. EARL, J. TUis action was brought by the receiver of the Central Savings Bank of the <:ity 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 ti-anscend 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 affairs. When one voluntarily takes the position of trustee or director of a corporation, good faith, exact justice, and public policy unite in re- :ecuted 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, tiough 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 eveiy 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 EIGHTS. 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 Kousmanier 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 floubt. 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 part 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 security for his loans. This is the case made by the amended bUl; 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, ajid giv- en as that security. TVe 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 constitTites the agreement itself, but is that for which the agreement stipulat- ed. The agi-eement 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 BIGHTS. 173 notes were given, and this letter of attorney was, on advice of counsel, executed and re- ■ceived as the collateral security whieli 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, during 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 Rousmanier. The question for the consid- eration of the court 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 unknown 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 eifected 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 the 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 vsritten agreement fails to express that intention. In this case, there is no ingredient of fraud. Mistake is the sole ground on which the plaintiff 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 sti-ong bearing on tlie case at bar. But the judges in the coui'ts 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 Underhill v. Hoi-wood, 10 Ves. 209, 22T, Lord Bldon, 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 la 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 afforded 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 this 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 granted, 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 RIGHTS. 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. 3(34, 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 against it, on the principle that he was igno- rant of his title. The case 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 I'elieved 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 of 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 liOrd 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 the 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 effect 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 they were, and with the intention that they should create, a specifio 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 plaintifC, 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. lib PARK BROS. & CO., Limited, v. BLOD- GBTT & CLAPP CO. (29 Atl. 133, 64 Conn. 28.) Supreme Court of Errors of Connecticut. Feb. 8, 1894. Appeal from court of common pleas, Hart- ford county; Tain tor. Judge. Action by Park Bros. & Co., Limited, against the Blodgett & Clapp Company for damages for breach of contract. Judgment for defendant. Plaintiff appeals. Affirmed. Albert H. Walker, for appellant. Edward S. White, for appellee. TORRANCE, J. This is an action brought to recover damages for the breach of a writ- ten contract, dated December 14, 1888. The contract is set out in full in the amended complaint. It is in the form of a written proposal, addressed by the plaintiff to the defendant, and is accepted by the defend- ant in writing upon the face of the con- tract. Such parts of the contract as appear to be material are here given: "We propose to supply you with fifteen net tons of tool steel, of good and suitable quality, to be furnished prior to January 1, 1890, at" prices set forth in the contract for the qualities of steel named therein. "Deliveries to be made f. o. b. Pittsburgh, and New York freight al- lowed to Hartford. To be specified for as your wants may require." The contract was made at Hartford, by the plaintiff through its agent A. H. Church, and by the defendant through its agent J. B. Clapp. After filing a demurrer and an answer, which may now be laid out of the case, the defendant filed an "answer, with demand for reformation of contract," in the first paragi-aph of which it admitted the execu- tion of said written contract The second, third, and fourth paragraphs of the answer are as follows: "The defendant avers that on or about December , 1888, it was agreed by and between the plaintiff and de- fendant, the plaintiff acting by its said agent, A. H. Church, that the plaintiff should supply the defendant prior to January 1, 1890, with such an amount of tool steel, not exceeding fifteen tons, as the defendant's wants during that time might require, and of the kinds and upon the terms stated in said contract, and that the defendant would purchase the same of the plaintiff on said terms. (3) That by the mistake of the plaintiff and defendant, or the fraud of the plaintiff, said written contract did not em- body the actual agreement made as afore- said by the parties. (4) That the defendant accepted the proposal made to it by the plaintiff, and contained in- said written con- tract, relying upon the representations of the plaintiff's said agent, then made to it, that by accepting the same the defendant would only be bound for the purchase of such an amount of tool steel of the kinds named therein as its wants prior to Janu- ary 1, 1890, might require, and the de- fendant then believed that such proposal embodied the terms of the actual agreement made as aforesaid by and between the plain- tiff and defendant." The fifth and last paragraph of the answer is not now mate- rial. The answer claimed, by way of equi- table relief, a reformation of the written contract. In reply the plaintiff denied the three paragraphs above quoted; denied spe- cifically that the written contract did not embody the actual agreement made by the parties; and denied the existence of any joint mistake or fraud. Thereupon the court below, sitting as a com-t 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 dm-ing the trial with reference to the reformation of the con- tract. Upon that hearing the agent of the defendant was a witness, on behalf of the defendant, and was ..jked to state "what conversation occurred between him and A. H. Church in making the contract of De- cember 14, 1888, at and before the execution thereof, and relevant thereto." The plain- tiff "objected to the reception of any parol testimony, on the ground that the same was inadmissible to vary or contradict the terms of a written instrument, or to show any oth- er or different contract than that specified in the instrument, or to show anything rele- vant to the defendant's prayer for its refor- mation." The 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 further question, which will be first considered, whether the mis- take was one which, under the circumstan- ces disclosed by the record, a court of equity will correct. The finding of the court be- low is as follows: "The actual agreement between the defendant and the plaintiff was that the plaintiff should supply the defend- ant, prior to January 1, 1890, with such an amount of tool steel, not exceeding fifteen tons, as the defendant's wants during that time might require, and of the kinds and upon the terms stated in said contract, and that the defendant would purchase the same of the plaintiff on said terms. But by the mutual mistake of said Church and said Clapp, acting for the plaintiff and defendant respectively, concerning the legal construc- tion of the written contract of December 14, 1888, that contract failed to express the actual agreement of the parties; and that said Church and said Clapp both intended to 176 EQUITABLE RIGHTS. iiave the said written contract express tlie actual agreement made by tliem, and at the time of its execution believed that it did." No fraud is properly charged, and certainly none is found, and whatever claim to relief the defendant may have must rest wholly on the ground of mistake. The plaintiff claims that the mistake in question is one of law, and is of such a nature that it cannot be corrected in a court of equity. That a court ■of equity, under certain circumstances, may reform a 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 Mr. Mark- by, in his "Elements of Law" (sections 268 and 269), well says: "There is also a pecu- liar class of cases in which courts of equity have endeavored to undo what has been done under the influence of error and to re- store parties to their former position. The courts deal with such cases in a very free manner, and I doubt whether it is possible to bring their action under any fixed rules. But here again, as far as I can judge by what I find in the text-books and in the cases referred to, the distinction between errors of law and errors of fact, though very em- phatically announced, has had very little .practical efCeot upon the decisions of the courts. The distinction is not ignored, and it may have had some influence, but it is -always mixed up with other considerations, which not unfrequently outweigh it. The distinction between errors of law and errors of fact is therefore probably of much less importance than is commonly supposed. There is some satisfaction in this, because the grounds upon which the distinction is made have never been clearly stated." The distinction in question can therefore afford little or no aid in determining the question under consideration. Under certain circum- stances a court of equity will, and under others it wiU not, reform a writing founded on a mistake of fact; under certain circum- stances it will, and imder others it wiU not, reform an instrument founded upon a mis- take of law. It is no longer true, if it ever was, that a mistake of law is no ground for relief in any case, as wiU 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 will correct; and this perhaps can only, or at least can best, be determined by seeing whether it falls within any of the well-recognized classes of cases in which 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, the plaintiff, with- out either party Intending it, gained a de- cided advantage over the defendant, to which it is in no way justly entitled, or at least ought not to be entitled, in a court of equity. The written agreement certainly fails to express the real agreement of the parties in a material point; it fails to do so by rea- son of a mutual mistake, made, as we must assume, innocently, and without any such negligence on the part of the defendant as would debar him from the aid of a coiu"t 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 com-t of equity will correct In a proper case. Sibert V. McAvoy, 15 lU. 106. If, then, the oral agreement in the case at bar had been for the sale and pm-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 materially from the only one they made. There is perhaps a distinc- tion between the supposed case and the actu- al case, but it is quite shadowy. They dif- fer not at aU in their unjust consequences. In both, by an Innocent mistake mutually entertained, the vendor obtains an uncon- scionable advantage over the vendee, a re- sult which was not intended by either. There exists no good, substantial reason, as it seems to us, why relief should be given in the one case and refused in the other, other things being equal. It is hardly nec- essary to .'a.y that, in cases like the one at bar, courts of equity ought to move with EQUITABLE BIGHTS. 177 great caution. Before an instrument is re- formed, under such circumstances, the proof of tlie mistake, and that it really gives an un- just advantage to one party over the other, ought to be of the most convincing character. "Of course the presumption in favor of the written over the spolien agreement is almost resistless; and the court has veearied itself in declaring that such prayers (for relief of this kind) must be supported by overwhelm- ing evidence, or be denied." Palmer v. In- sui-ance Co., 54 Conn. 501, 9 Atl. 248. We are not concerned here, however, with the amount or sufficiency of the proofs vipon which the court below acted, nor with the sufficiency of the pleadings; we must, upon this record, assume that the pleadings are sufficient, and that the proofs came fully up to the higliest standard reqiiirements in sucli oases. Upon principle, then, we think a com't of equity may correct a mistake of law in a case like the one at bar, and we also think the very great weight of modern authority is in favor of that conclusion. The case clearly falls within that class of cases where there is an antecedent agreement, and, in re- ducing it to writing, the instrument executed, by reason of the common mistake of the par- ties as to the legal effect of the words used, fails, as to one or more material points, to express their actual agreement. It is per- haps not essential in all cases that there should be an antecedent agreement, as ap- pears to be held in Benson v. Markoe, 37 Minn. 30, 33 N. W. 38; but we have no oc- casion to consider that question in the case at bar. The authorities in favor of the con- clusion that a com-t of equity in such cases will correct a mistake, even if it be one of law, are very numerous, and the citation of a few of the more important must suffice. In Hunt V. Rousmanier's Adm'rs, 1 Pet. 1, decided in 1828, it is said: "Where an in- strument is drawn and executed which pro- fesses, or is intended, to cany into execu- tion an agreement, whether in writing or by parol, previously entered into, but which by mistake of the draftsman, either as to fact or law, does not fulfill, or which violates, the manifest intention of the parties to tho agreement, equity will correct the mistake so as to produce a conformity of the instru- ment to the agreement." It was said in the argument before us that this was a mere obiter dictum, but that is hardly correct. It is true the case was held not to fall within the principle, but the principle was said to be "incontrovertible" (page 13), and was ap- plied to the extent at least of determining that the case then before the court did not come within it. In Snell v. Insurance Co., 98 U. S. 85, the court applied the principle so clearly stated in the case last cited, and re- formed a policy of insurance, though the mistake was clearly one as to the legal ef- fect of the language of the policy. In nu- merous other decisions of that court the same principle has been cautiously but re- peatedly applied, but it is not necessary to HUTCH. EQ. JUK. — 13 cite them. On the general question, wheth- er a court of equity will relieve against a mistake as to the legal effect of the language of a writing, the case of Griswold v. Hazard, 141 U. S. 260, 11 Sup. Ct. 972, 999, is a strong case, though perhaps hardly an authority upon the precise question in this case. Can- edy V. Marcy, 13 Gray, 373, was a case where the oral contract was for the sale of two-thirds of certain premises, but the deed, by mistake of the scrivener, conveyed the en- tire premises. The words used were ones intended to be used in one sense, the error being that all concerned supposed those words would carry ovit the oral agreement. This was clearly a mistake "concerning the legal construction of the written contract," but the court, by Chief Justice Shaw, said: "We are of the opinion that courts of equi- ty in such cases are not limited to affording relief only in cases of mistake of fact, and that a mistake in the legal effect of a de- scription in a deed, or in the use of technical language, may be relieved against upon prop- er proof." In Goode v. Riley, 153 Mass. 585. 28 N. E. 228, decided in 1891, the court says: "The only question argued is raised by the defendant's exception to the refusal of a rul- ing that, if both parties intended that the description should be written as it was writ- ten, the plaintiff was not entitled to a refor- mation. It would be a sufficient answer that the contrary is settled in this common- wealth," — citing a number of cases. In Ken- nard v. George, 44 N. H. 440, the parties, by mistake as to its legal effect, supposed a mortgage deed to be valid when it was not. The court relieved against the mistake, and said: "It seems to us to be a clear case of mutual mistake, where the instrument given and received was not in fact what all the parties to it supposed it was and intended it should be; and in such a case equity will interfere and reform the deed, and make it what the parties at the time of its execu- tion intended to make it; and in this re- spect it makes no difference whether the defect In the instrument be in a statutory or common-law requisite, or whether the par- ties failed to make the instrument in the form they intended, or misapprehended its legal effect." In Eastman v. Association, G5 N. H. 176, 18 Atl. 745, decided in 1889, the mistake was as to the legal effect of an in- surance certificate, but the court granted re- lief by way of reformation. The com't says: "Both parties intended to make the benefit payable to Cigar's administrator. That it wao not made payable to him was due to thei? mutual misapprehension of the legal effect of the language used in the certificate. * * * Equity requires an amendment of the writing that will make the coatract what the parties supposed it was, and intended it should be, although their mistake is one of law, and not of fact." In Trusdell y. Lehman, 47 N. J. Eq. 218, 20 Atl. 301, 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 imder the misapprehension that it really embodies the agreement, where- as, by mistake of the draughtsman either as to fact or law, it falls to fulfill that purpose, eqtuity will correct the mistalie 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 ffifictness in the following cases: Clayton v. Freet, 10 Ohio St. 544; Bush v. Hicks, 60 N. Y. 298; Andrews v. Andrews, 81 Me. 337, 17 Atl. 166; May v. Adams, 58 Vt. 74, 3 Atl. 187; Grifiith 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. E. 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. Insui'ance Co., 54 Conn. 488, 9 Atl. 248; and Haussman v. Bm-n- ham, 59 Conn. 117, 22 Atl. 1065. Indeed, since the time of Northrop v. Graves, supra, it is difficult to see how our law could have been otherwise. We conclude then that by our own law, and by the decided weight of authority elsewhere, the defendant was en- titled to the relief sought. If this is so, then clearly he was entitled to the parol evidence which the plaintiff objected to; for in no other way, ordinarily, can the mistake be shown. "In such cases parol evidence is admissible to show that the party is entitled to the relief sought." Wheaton v. Wheaton, 9 Conn. 96. "It is settled, at least in equity, that this particular kind of evidence, that Is to say, of mutual mistake as to the meaning of words used, is admissible for the negative purpose we have mentioned. And this prin- ciple is entirely consistent with the rule that you cannot set up prior or contemporaneous oral dealings to modify or override what you knew was the effect of your writing." Goode V. Riley, 153 Mass. 585, 28 Atl. 228; Reyn. Theory Ev. § 09; 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 his 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 counsel seems to place great reliance. The case is a some- what peculiar one. Even in that case, how- ever, the court seems to recognize the princi- ple governing the class of cases within which we decide the case at bar faUs, 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 mistake^ 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 sufilcient to say that it is not a correct statement of our law, at least since the decision of Northrop v. Gi'aves, supra. On tlie 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 KIGIITS. 179 RENARD T. CLINK et al. (51 N. W. C02. 91 Mich. 1.) Supreme Court of ilichigim. jSIarch 18, 1892. Appeal from circuit court, Cliarlevoix coun- ty, in chancery; Jonatlian 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. Clink, 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 iittempted 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 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 «f 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 witliin 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 pait 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 offer 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 hke 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 aft'ords 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 RIGHTS. tlie proofs, they Avould 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 tliat 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 of 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 projfer 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. ooO; Thompson v. Gould, 20 Pick. 184, 138; Browne, St. Frauds, § 4G1; Fry, Spec. Pert. § 403; Dale v. Hamil- ton, 5 Hare, :i(>!J ; Clinan v. Cooke, 1 Schoales & L. 22, 41; Allen's Estate, 1 "Watts & S. 3S3; Purcell v. Jliner, 4 Wall. .")i;!. 2. Possession by the purchaser, 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 plalntifC 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 paitles. 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 17 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 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 fiaud, 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, 07. 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 forms of fraud -wMoh that statute was In- tended to prevent. The statute Is not a mere rule of evidence, but a limitation of judicial authority to afCord 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 conti-act alone, which estop the other party from setting up the statute. It makes no difCerence 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. Cs^on, 1 Ch. App. 137, L. R. 2 H. L. 127; Mundy v. Jollifee, 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. JUB. — 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; Osbom V. Phelps, 19 Conn. 63; Olinan 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 sought to make it convey or express, was occasioned by mistake, or by deceit and fraud, will not alone constitute such an es- toppel. Thei'e 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 wduld 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 suflicient to take the case out of the statute that 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 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 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, we cannot doubt that it would be limited to possession accompanied with or followed by such change of position of the 194 EQUITABLE RIGHTS. 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 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, 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 1^ 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 sufllclent 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. Cas. 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 ujwn 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 dififerlng 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 Idnds 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 equita\ile 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. Higglnson, 1 Ves. & B. 524; Squler 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 KiGHTS. 195 much in conflict with tlie statute of frauds as if there were no writing at all. Moale v. Buchanan, H Gill & J. 314; Osborn v. Phelps, 19 Conn. 63; Elder v. Elder, 10 Me. 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, C. 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; Da vies v. H'itton, 2 Dru. & War. 225; Wilson v. Wilson, 5 H. Ii. 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 agxeement 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. 15; Browne, St. Frauds, § 437 et seq.; Fry, Spec. Perf. §§ 384^388; Caton y. Caton, 1 Ch. App. 137, 147, L. R. 2 H. L. 127. In the last named case it is said that "the right to relief in such cases rests not mer'e- 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 & C. Exch. 559. The difficulty 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 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- cm-ed 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 natui'e of the case will ad- mit of it, the court may enforce the written contract in 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 moue, be converted, in equity, into a mort- gage. Washbm-n v. Merrill, 1 Day, 140; Taylor v. Luther, 2 Sumn. 228, Fed. Cas. No. 13,796; Jenkins v. Eldredge, 3 Stoiy, 181, 293, Fed Cas. No. 7,266; Morris v. Nix- on, 1 How. 118; 4 Kent, Comm. (6th Ed.) 143. ivhemer 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 grormd tiat such an agreement, to- gether with proof that the deed was given and accepted only as secm-ity 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 I'elation to which there is no agreement in writing, the case stands differently. Fraud may vitiate the vmting 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 EIGHTS. force. But such evidence win not create a trust in lands already held by an absolute title. A fraudulent misrepresentation, altbough sufficient to sustain an action for damages, cannot be converted into a contract to be enforced as such. Neither wUl 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- Uffe, 5 Mylne & C. 107; 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 ease 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 aU 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 talien 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, 1 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 not 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 BIGHTS. 197 have undertaken to define has not heen 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- f oi'ding 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 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 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 sufl[icient 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. BufCerlow, 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. arlDitrators named, and tlie only question was as to tlie 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 not pleaded, and the default admitted the agreement. Caldwell v. Oarrington, 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, Oh. 559; Woollam v. Hearn, 7 Ves. 211; 2 Lead. Gas. 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 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, 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 ovei-payment 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. EQUITABLE EIGHTS. 199 HUNTER T. BILYEU et al. (30 HI. 228.) Supreme Court of Illinoia. Jan. Term, 1S63. W. H. Herndon, and S. P. Moore, for ap- pellant J. & D. Gillespie, for appellees. BRBESE, 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 bill 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 bill 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 "Gillespie tract," being the ea^t 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; thenco 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 EIGHTS. north 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 creek 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, and 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 of 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 complainants on other tracts, about which there is no dispute. The bill is, in efCect, 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 accident 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- tions 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 Leading 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 the 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. Tlie 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 plaintifC 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. 38S. 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. 301, 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 Ch. 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 Tuget, 2 Yes. Sr. 195, where it was proposed to prove a mistake in drawing a settlement; and in Attorney General v. Sit well, 1 Young & 0. 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 plaintiCC, 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 trusts expressed in the deed. And in Elder v. Elder, 10 Me. 80, 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 Osbom v. Phelps, 19 ConB. 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. 585, 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 mistalvC, on a review of all the rases, 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 Rlemer v. Can- 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 thf> 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 AVoollam 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- plaln language of the deed, and especially la opposition to the defendant's answer? It will be seen the statute of frauds an(J 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 instrument 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 afiirmatively 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. Statham, 3 Atk. 388, seemed to think it miglit be done, but sucti proof was rejected in Woollam v. Hearn, 7 Ves. 211 (wliich we liave cited at length) ; and in Hig- ginson v. Clowes, 15 Ves. 516; and when Lord Redesdale said, in Olinan v. Cooke, 1 Schoales & L. 39, that he could find no deci- sion in which a plaintiff had been permitted to show an omission in a written agreement, "by mistake or fraud, he must be understood to refer to the eases 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 equahty in the operation of the doctrine. In 1 Story, Eq. Jur. § ISl, in commenting on the distinction set up, the learned author says, in a note, that it is of a very artificial chai'acter, and difficult 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 jiioof. 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 brolcen 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,— Keisselbrack 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 his 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 possession 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; 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 tho terms of a written agreement cannot be changed by parol. Baker v. White- side, Breese, l.J2; 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, parol EQUITABLE RIGHTS. 203 evidence may be admitted to show tliat 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 this, 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 conti-adiction 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 its 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 sulBcient proof, correct it, else the most flagrant injus- tice would be perpetrated, and an imdoubted 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 wiU 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 coi'rect 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 EIGHTS. west half of the north-west [quarter] 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 tei-ms, but "thinks" 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 tract, 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 oft, 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 tovra 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. Bll- 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, h& 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 proTed, 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 operation. The injunction will be dissolved, and the adminis- trator, the appellant here, will be allowed to proceed with his action at law. Decree modified. ^^' r ^ EQUITABLE EIGHTS. 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. Walk- 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 in 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, Jime Sth. He then returned home and got upon the land, although the tenant also re- mained there and objected. The contract 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 upon the claim that Swimm, being in possession of better knowl- edge of the value and sm'roundings 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 diflference of opinion among the witnesses as to the value of the property, ■\^'e 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 jom'ney 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 nonduct 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 j design to deceive, and actually deceiving Bush I 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 request 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 I was not responsible. The other two letters, | he said, were written in his own behalf. The I j statements concerning these three were not/ correct. Bush went on to question him about I 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 206 EQUITABLE RIGHTS. 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 talk 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 cunning 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 som'ce. 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 aUowing himself to be overreached in the bargain. We do not think he contributed enough to his own loss to be subject to 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. C' EQUITABLE EIGHTS. 207 STIMSON V. HELPS et al. (10 Pao. Rep. 290, 9 Colo. 33.) Suprfiue Court of Colorado. Feb. 26, 1SS6. Appeal from county court, Boulder county. The complaint sets out that on the sixth day of October, 18S1, William Stimson leased to the defendants in error the S. W. Vi of sec- tion 21, in township 1, range 70 west, in said county, for the period of four years and six months, for the piupose of mining for coal, under the conditions of said lease; that they had no knowledge of the location of the boundary lines of said tract at the time of the leasing, and that they so informed Stim- son, the defendant in the case; that they re- quested Stimson to go with them and show them the boundary lines; that the defendant, pretending to know the lines bounding said land, and their exact locality, went then and there with plaintiffs, and showed and pointed out to them what he said was the leased land, and the boundary lines thereof, es- pecially the north and south lines thereof; that plaintiffs not then knowing the lines bounding said land, nor the exact location thereof, and relying upon what the defendant then and there pointed out to them as the leased land, and the lines thereof, then and there proceeded to work on the land pointed out, and sank shafts for mining coal thereon, and made sundry improvements thereon,— made buildings, laid tracks, etc. ; that all the said work was done and labor performcJ and improvements made on the land pointed out by defendant to plaintiffs as the leased land, and that plaintiffs, relying upon the statements of defendant as aforesaid, and not knowing otherwise, believed they were performing the work, and making all the im- provements on the land they had so leased, which they did by direction of the defend- ant; that while they were working on the said land Stimson was frequently present, and told the plaintiffs they were on his land, and received royalty from ore taken there- from; that about April 10, 1882, they were notified to quit mining on said gi-ound by the Marshall Coal Mining Company; that the laud belonged to said company; that none of the said improvements were put on said leased land; and that they were compelled to quit work and mining thereon; that the improvements made by them were worth $2,- 000; that Stimson falsely represented to them other and different lines than the true boundaries of said premises, and showed and pointed out to them other and different lands than the lands leased them, and thereby de- ceived them, and damaged them, in the sum of $2,000. Issue joined, and trial to the com-t. Motion by defendant's counsel for judgment on the pleadings, and evidence overruled. Judgment for the plaintiffs in the sum of ?2,000, and costs. Wright & Griffin, for appellant. G. Berk- ley, for appellees. ELBERT, J. The law holds a contracting party liable as for fraud on his express rep- resentations concerning facts material to the treaty, the truth of which he assumes to know, and the truth of which is not known to the other contracting pai'ty, 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- olow, Fraud, 57, 60, 63, 67, 68, 87; Kerr, Fi-aud & M. 54 et seq.; 3 Wait, Act. & Dof. 436. This is the law of this case, and, on the evidence, wari'auted 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 malves 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 com-t in refusing to aUow the appellant to appeal to the dis- trict court after he had given notice of an ap- peal to this com-t, 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 court below is af- firmed. [Note from 10 Pac. Rep. 292.] A contract secured by false and fraudulent representations caiuiot 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, wheu it satis- factorily appears that the party seeking the rescission has been misled iu regard to a ma- "208 EQUITABLE BIGHTS. -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- eusly affect the right of the party complaining under the contract, or prevent him from obtain- ing and receiving all the benefit contemplated by it, and to which he is entitled under it. See- ley V. Reed, 25 Fed. Rep. 301. When, by false representations or misrep- resentations, a fraud has been committed, and l)y it the complainant has been injured, the gen- eral principles of equity jurisprudence afford a remedy. Singer Manuf'g Co. v. Yarger, 12 Fed. Rep. 4S7. See Chandler v. Childs, 42 Mich. 128, 3 N. W. Rep. 297; Cavender v. Tloberson, 33 Kan. 626, 7 Pac. Rep. 152. V/hen no damage, present or prospective, can result from a fraud practiced, or false repre- sentations or misrepresentation made, a court •of equity will not entertain a petition for relief. Dunn V. Remington, 9 Neb. 82, 2 N. W. Rep. 230. A person is not at liberty to make positive assertions about facts material to a transaction unless he knows them to be true; and if a statement so made is in fact false, the as- sertor cannot relieve himself from the imputa- tion of fraud by pleading ignorance, but must respond in damages to any one who has sus- tained loss by acting in reasonable reliance upon such assertion. Lynch v. Mercantile Trust Co., 18 Fed. Rep. 4SG. Equity will not relieve a,gainst a misrepre- sentation, unless it be of some material matter constituting some motive to the contract, some- thing in regard to which reliance is placed by ■one party on the other, and by which he was actually misled, and not merely a matter of opinion, open to the inquiry and examination -of both parties. Buckuer v. Street, 15 Fed. Rep. 365. False representations may be a ground for relief, though the person making them believes them true, if the person to whom they were mg.de 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- «er, 54 Mich. 232, 19 N. W. Rep. 965. Where the vendor honestly expresses an in- 1 correct opinion as to the amount, guality, and value of the goods he disiposes 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 aflfecting the character, quantity, quality, value, or title of such chattel. Bank v. Yocum, 11 Neb. 328, 9 N. W. Rep. 84. A statement recklessly made, without knowl- edge of its truth, is a false statement knowing- ly made, within the settled rule. Cooper v. Schlesinger, 111 U. S. 148, 4 Sup. Ct. Rep. 360. Whether or not omission to communicate known facts will amount to fraudulent repre- sentation depends upon the circumstances of the particular case, and the relations of the parties. Britton v. Brewster, 2 Fed. Rep. 160. Where a vendor conceals a material fact, which is substantially the consideration of the contract, and which is peculiarly within his knowledge, it is fraudulent misrepresentation. Bowling V. Lawrence, 58 Wis. 282, 16 N. W. Rep. 552. Evidence of fraudulent representations must be clear and convincing. AVickham v. More- house, 16 Fed. Rep. 324. Where a man sells a business, and the con- tract of sale contained a clause including all right to business done by certain agents, evi- dence that the seller was willing to engage in the same business with such agents is not proof of fraud in making the contract. Taylor v. Saurman, 110 Pa. St. 3, 1 Atl. Rep. 40. It was recently held by the supreme court of Indiana, in the case of Cook v. Churchman, 104 Ind. 141, 3 N. E. Rep. 759, that where money is obtained under a contract, any fraudulent representations employed by a party thereto as a means of inducing the loan to be made, if otherwise proper, are not to be excluded be- cause of the statute of frauds; also that where parol representations are made regarding the credit and ability of a third person, with the in- tent that such third person shall obtain money or credit thereon, the statute of fraud applies, and no action thereon can be maintained, al- though the party making the representations may have entered into a conspiracy with such person with the expectation of obtaining some incidental benefit for himself. I-Up^c tvi. i- VV--'"."' ^• EQUITABLE EIGHTS. 209 MITCHELL et al. v. McDOUGALL. (62 111. 498.) Supreme Court of Illinois. Jan. Term, 1872. Appeal from circuit court, McLean county; Thomas F. Tipton, Judge. Bill in equity to rescind a conveyance of lands on tlie ground of misrepresentation and fraud. R. E. 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 alternative, 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. Fraud may con- sist as well In a suppressio veri as in a sug- gestlo 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, for 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, Eq. Jur. §§ 191- 197, 204r-207, and 2 Kent, Comm. 482, 490. Sections 191-197, inclusive, treat of false suggestions, and fully supijort the doctrine of HUTCn.BQ.JUR. — 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 conti-act, 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 infoi-mation on the subject were as accessible to the owner of the land as to the purchaser. The i-ule stated by Chancellor Kent, at page 482, refeiTed 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 has 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, Eq. Jur. § liS), from an obli- gation in point of morals only, but of legal duty. In such a case he says, a court of equity win not correct the contract merely because a man of nice morals and honor would not liave 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 Bloomington), 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 bouse in iloutevallo, instead of being a desirable residence, and worth one thousand dollars, as represented by appellee, provetl 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 whoUy 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- vej' 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 con-ect the mis- take in the laud and claim the conti-act 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 it? 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 additiOD EQUITABLE RIGHTS. 211 to the building which he erecterl, 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 Court of the United States. Oct., 1876. Appeal from the circuit court of the United estates for the Eastern district of Michigau. The facts are stated in the opinion of the <'ourt Alfied Kussell, for appellant. A. B. May- nard, contra. Mr. Justice FIELD deli^ eied the opinion of the court. This is a suit brought by the heir at law of Marie Grenevieve 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 coatroversy, 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 iund $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 m her sickness. There were no persons present with her at the exe- cution of the conveyance, except the def end- .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 refei-ence 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 in her neighbors' houses and in the streets. Other EQUITABLE RIGHTS. 213 witnesses testify to further peculiarities of life, manner, and conduct; but none of the p3culiantles 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, a"nd 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 the 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. It 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 t^ere 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. Cas. 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 RIGHTS. elding it, Mr. Chief Justice Marsliall, speali- ing of ttiis, 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 pecuhar 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, though 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 steji-father,— one, at the age of twenty-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 ft-om 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 amount 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 RIGHTS. 215 TATE T. WILLIAMSON. (2 Ch. App. 55.) Court of Appeals In Chancery. Dec. 17, 1866. This was an appeal by the defendant, Robert 'Williamson, from a decree of Vice Chancellor Wood, setting aside a sale, on the ground that the purchaser stood in a fiduciary relation to the vendor, and did not make a full disclosure to him of all material facts within his knowledge relating to the value of the property. The facts of the case fully appear in the report of the case before the vice chancellor (L. R. 1 Eq. 52S) and the Judgment of the lord chancellor. Mr. W. M. James, Q. C, and Mr. Little, in support of the decree. Attorney General (Sir J. Rolt), and Mr. Bristowe, for the ap- pellant. Solicitors for the plaintiff: Messrs. N. C. & C. Milne. Solicitors for the appellant: Messrs. Clowes & Hickley. LORD CHELMSFORD, L. C. In this case the vice chancellor has made a decree that an agreement for the sale by the intestate, William Clowes Tate, to the defendant, Rob- ert Williamson, of the undivided moiety of an estate called the "Whitfield Estate," in the county of Stafford, consisting of mes- suages, lands, and coal mines, ought to be set aside, upon the ground of the defendant not having communicated to the intestate all the information which he had acquired with reference to the value of the property, and, in particular, of his not having communicat- ed an estimate of the value of the mines which was obtained by the defendant pend- ing the agreement. The question raised by the appeal is whether any such relation existed between the defendant and the intestate as to render it the duty of the defendant to make the eommunication. The jurisdiction exercised by courts of equity over the dealings of person.s standing in certain fiduciary relations has alwaj-s been regarded as one of a most salutary descrip- tion. The principles applicable to the more familiar relations of this character have been long settled by many well-known decisions, but the courts have always been careful not to fetter this useful jurisdiction by defining the exact limits of its exercise. Wherever two persons stand in such a relation that, while it continues, confidence is necessarily reposed by one, and the influence which nat- lu'ally 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 propt-rty 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 ti-ustee 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 supiiose that he was not altogether ignorant of its character, and must have foi-med 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 ti'ust, 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 oflice which he undertook after his trusteeship expired which would have preveuted his dealing with the intes- tate upon the same terms as a mere stran- ger. Much less could the mere receipt of the rents for his uncle have placed Robert Williamson in a different position from that of any ordinaiy 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 fatlier, 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 offlce which Mr. Williamson was asked to undertake. 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 26th of August following, when Mr. H. H. Williamson received a list of the intestate's debts due to Oxford cred- itors, amounting, as already mentioned, to £1,000. The defendant, in his answer, says "that the list was given to him by Mr. H. H. Williamson, and that he, after perusing the same, remarked that the charges were excessive, and that the bills might probably be settled for half the amount; that Mr. H. H. Williamson thereupon requested him to see the intestate, and ascertain upon what terms he could be relieved from his debts, and, if this could bo done for £500 or a little more, he authorized the defendant to ■ advance the intestate that amount on fur- ther security of the property." The defend- ant accordingly wrote to the intestate on the 26th of August, 1859, the letter, which is set out in paragraph 58 of the bill, in which he states that his uncle is not suffi- ciently well to attend to business; that the list of debts owing forms a very heavy amount, which Mr. HoUoway expects to have paid immediately; and adds, "I wUl meet you in the course of a few days in London, upon having a couple of days' notice, and, after hearing your views on the subject, will talk over the matter, and see in what way it 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 if he refused to reduce the amount the whole must be paid. It does not appear 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 tl\e 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 iwsition. 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 morlgage, 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 KIGHTS. 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 Whitfield estate, as represented by the defendant or not, it is quite clear to my mind that the confi- dential relation between the parties had not terminated when the negotiation for the pur- chase of the property by the defendant com- menced, and that he did not then, or at any time afterwards, stand in the situation of an ordinary purchaser. This being so, the defendant, pending the agreement, was bound to communicate all the information he acquired which it was material for the intestate to know In order to enable him to judge of the value of his property. It was admitted that the valuation of Mr. 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 intestate, it seems unnecessary to pursue the case further. The fair dealing, in other respects, of the defend- ant during the negotiation, and before the agreement was signed, becomes almost irrel- evant. The refusal of the solicitors to pro- ceed with the agreement unless the young man had some legal assistance, the recommen- dation of the defendant that the intestate should apply to his father for advice, the op- portunity afforded him pending the negotia- tion of consulting any friends who were capable of advising him, the reference to Mr. Payne whether merely for the purpose of completing the agreement, or to afford the in- testate an opportunity of obtaining his opinion as to the value, all these considerations are of no consequence, when once it is established that there was a concealment of a material fact, which the defendant was bound to dis- close. Nor, after this, is it of any Importance to ascertain the real value of the property. Even if the defendant could have shewn that the price which he gave was a fair one, this would not alter the case against him. The plaintiff, who seeks to set aside the sale, would have a right to say, "You had the means of forming a judgment of the value of the property in your possession, you were bound, by your duty to the person with whom you were dealing, to afford him the same op- portunity which you had obtained of determin- ing the sufficiency of the price which you offered; you have failed in that duty, and the sale cannot stand." But, in truth, there are strong grounds for thinking that the price agreed to be paid by the defendant is quite inadequate to the value of the property. There- is no occasion to weigh the opposite opinion of the engineers and surveyors, 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 piu-chase, 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 JIarch, 1860, and the residue by year- ly instalments in the four following years. It appears to me, upon a careful review of the whole case, that it would be contrary to. the principles upon which equity proceeds, in. judging of the dealings of persons in a fiduci- ary relation, to allow the purchase by the de- fendant, Robert Williamson, to stand. I am satisfied that the defendant had placed himself in such a relation of confidence, by his undertaking the office of arranging the In- testate's debts by means of a mortgage of his. property, as prevented him from becoming a purchaser of tiiat property without the fullest communication of all material information which he had obtained as to its value; that this openness and fair dealing were the more necessary when he was negotiating with an extravagant and necessitous young man, de- prived at the time of all other advice, eager to raise money, and apparently careless in what manner it was obtained; and the de- fendant having, by concealment of a valua- tion which he had privately obtained, pro- cured a considerable advantage In the price which the seller was induced to take, and which even the defendant's witnesses prove to be grossly inadequate, he cannot be per- mitted so to turn the confidence reposed in him to his own profit, and the sale ought to be set aside. Decree affirmed. Petition of appeal dismissed, with costs. 218 EQUITABLE RIGHTS. COWEE V. CORNELL. (75 N. Y. 9].) Court of Appeals of New York. Nov. 12, 1878. Appeal from order of the general term of the supreme court in the Third judicial de- partment, reversing a judgment entered upon the report of a referee. Plaintiff made a claim against the estate of Ijatham Cornell, of vyhose "svill defendants were the executors, for Interest upon a prom- issory note executed by the deceased. This <-laim w'ds rejected, and was referred hy 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 187G at the age of ninety-five. For four •years prior to his death he was partially blind. From July, 1871, until the time of liis death, his grandson at his request at- tended to his affaii's, writing his letters, look- ing after his banking business and his 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 imtil the time of his death. The grandson moved into the adjoining house in the spring of 1872, and I'esided 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 live 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- uell made his will in 1871, providing a legacy of $15,000 for Mr. Strong. In the fall of 1872, Mr. Strong expressed a desire to go in- to business for himself and to be indei^endent of his grandfather, and actually was in te- 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 look 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 paj'ee, but was torn oft 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 valuable consideration. Jlr. 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 the note. Mr. Strong was one of the execu- tors. Further facts are stated in the opinion. Irving Browne, for appellant. John TTiomp- son, for respondents. HAND. .7. 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 prodiiction of the note by the payee will raise a presumption of delivery to him. But this 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 RIGHTS. 219 as executor, when the note appears to have been all In the handwriting of the maker and to have been taken with a stub attached, also in his handwriting, from a bank book belonging to him, and wlien 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- hook 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 stauds. No motion for judgment or to dismiss was- made on this ground by the respondents al- though the trial was in other respects treated ty 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 tliere were exceptions to the finding of con- sideration. Under thiese 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 intention expressed by the latter to make some compensation for those services, and the conversation had with his counsel not very long liefore the date of this note, in whicli lie was dissuaded from making this compensation by will and advised to do it while aUve, 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 difliculty 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. 302; 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 wortlUessness 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 case 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 influence, 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 afiirmatively that no deception was practiced, no undue infiuence 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. ilyrick, 2 Hare, f»; 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. This 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 im 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 ai 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 off his coupons, and make out his bills, or as his bailiff 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 fi-aud, 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 compSl 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 JIILIjBR and EARL, ,T.I., absent. .Tudgment accordingly. 222 EQUITABLE RIGHTS. ROSS V. CONWAY et al. (No. 13,341.) (28 Pac. 785, 92 Gal. 632.) Supreme Court of California. Jan. 6, 1892. Department 2. Appeal from superior court, Sonoma county; S.K. Doughekty, Judge. Suit by James E. Ross against John M. Conway et al. to annul, on the ground of undue influence, a trust-deed made by his mother, Elizabeth G. Ross, for the benefit of delendanls. Plaintiff had judg- ment, and defendants appeal. Affirmed. Georffe D. Collins and Genrffe A. John- son, (/). M. Delmas, of counsel,) for ap- pellants. John A. Wright, for respondent. HARRISON, J. The plaintiff, as the sole heir of his mother, Elizabeth G. Ross, brought this action to cancel and annul two certain deeds of trust conveying cer- tain real estate in Santa Rosa, executed by his mother, August 11, 1888, and Au- gust 18, 1888, respectively, alleging that at the time of their execution his mother was weak in body, and that her mind was impaired, and that the defendant Con- way, who was the pastor of the Roman Catholic church of Santa Rosa, of which she had been for many years a member, and who was also her spiritual adviser, had thereby acquired great influence over her, and, taking advantage of such in- fluence and of her mental weakness, had caused her to execute the said deeds of trust for the benefit of himself aud 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 tbe 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 one having been executed merely for the purpose of correcting an erroneous description in the first. Under the trust created by the deeds the trus- tees are directed to sell one of the parcels of land "as soon as practicable," and out of the proceeds thereof apply $8,000 in the improvement of the other parcel, and pay the remainder of the proceeds to the de- fendant Conway. Out of the income to be derived from the parcel to beimproved, $75 per month was to be paid to the plain- tiff, and the remainder monthly "to the pastor of the Roman Catholic church in Santa Rosa, to be disbursed by him in such manner as he may deem charitable. " Other provisions contingent upon the death or change in circumstances of the plaintiff are unnecessary to be repeated here. The issues before the court were, in substance, whether Mrs. Ross was, at the respective 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 Conway used the influence whicd he had acquired over her, by virtue of being her spiritual adviser, for the purpose of pro- curing her to make such disposition of her property. Upon these issues there was much conflicting evidence before the court, both in the testimony of the witnesses who were examined, as well as in the cir- cumstances under which the instruments were executed, aud the purposes held by Mrs. Ross with reference to her son and to the church. Upon the evidence before it the court found in favor of the plain- tiff. This finding was in accordance with the verdict of the jury, and upon a mo- tion for a new trial, in which the evidence was again brought before the court for consideration, it adhered to its former conclusion. Under these circumstances we cannot disregard its finding. Inas- much, however, as counsel have elabo- rately argued the facts, we have examined the record, and are of the opinion that the evidence fully justifies the findings of the court. The court finds that at the dates of the execution of the deeds of trust Mrs. Ross was of weak mind, and in a dying condi- tion, and that she died on the 20th of Au- gust; that the defendant Conway was, and had for a long time previously been, the pastor of the Roman Catholic church at Santa Rosa, and the spiritual adviser of Mrs. Ross; that a confidence was re- posed in him by her, and that there ex- isted on his part an influence and appar- ent authority over her arising out of his relation to her as her spiritual adviser, and that lie took an unfair advantage of this influence, and used this confidence and authority for the purpose of procur- ing her to execute the two deeds of trust. The court also finds that Mrs. Ross had in December, 1887, executed a will of all her estate, with the exception of some minor legacies, in favor of the plaintiff herein, and that the provision in the deeds of trust for the defendants, other than the defendant Conwa.v, 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 another shall 'cake advantage of that re- lation in favor of himself, or deal with the other upon terms of his own making; that in every such transaction between persons standing in that relation the law will presume that he whoheld aninfluence over the other exercised it unduly to his own advantage: or, in the words of Lord Langdai.k in Casborne v. Barsham, 2 Beav. 78, the inequality between the trans- acting parties is so great "that, without proof of the exercise of power beyond that which may be inferred from the nat- ure of the transaction itself, this court will impute an exercise of undue influ- ence;" that the transaction will not be upheld unless it shall be shown that such other had Independent advice, and that his act was not only the result of his own volition, but that he both understood the act he was doing and comprehended its result and effect. This rule finds its application with peculiar force in a case where the effect of the transaction is to divert an estate from those who, by the ties of nature, would belts natural recip- ients, to the person through whose influ- EQUITABLE RIGHTS. 223 ence the diversion is made, whether such divtrsion be for his own personal advan- tage, or for the advantage of some inter- eMt of which he is the repreHentative. It has been more frequently applied to trans- actions between attorney and client or gnardian and ward than to any othei relation between the parties, but the rule itself has its source in principles whicli underlie and govern all confidential rela- tions, and is to be applied to all transac- tions arising out ot any relation in which the principle is applicable. It is termed by Lord Ei-don " that great rule of the court that he who bargains in any matter of advantage with a person placing con- fidence in him is bound to show that a reasonable use has been made of that con- fidence. " Gibson V. Jeyes, 6 Ves. 278. It was said by Sir Samuel Romilly in his Argument in Hiiguenin v. Baseley, 14 Ves. 300, that " the relief stands upon a g^encral principle applying to all the variety of relations in which dominion may be exer- cised by one person over another, " — a principle which was afterwards affirmed by Lord Cottknh.^m 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 bad 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 a«ide as contrary to all principles of equity, whether the beneflt accrue to the adviser, or to some other recipient who, through such influeuce, may have been made the beneficiary of the transacti(m. These principles have been so invariably announced whenever the question has arisen that a mere reference to theauthor- Ities will suffice. Norton v. Relly, 2 Eden, 286; Huguenin v. Baseley, 14 Ves. 273; Thompson v. Heffernan, 4 Dru. & War. 291; Dent v. Bennett, 4 Mylne & G. 269; In re Welsh, 1 Redf. Sur. 246; Richmond's Appeal, 59 Conn. 226, 22 Atl. Rep. 82; Ford V Hennpssy,70Mo.580; Pironiv.Corrigan, 47 N. J. Eg. 135, 20 Atl. Rep. 218; Connor V. Ntauley, 72 Cal. 556, 14 Pac. Rep. 306 ; 1 Bigplow, Fraud, 352; Story, Eq. Jur. § 311. The finding of the court that Mrs. Ross did not have any independent advice upon the subject of making the deeds of trust is fully sustained by the evidence. It ap- pears from the record that the attorney who prepared the instruments was intro- duced to her by Conway, and that the on- ly persons with whom she had any inter- view, or from whom she could receive any edvice respecting the same, were this at- torney and the defendant Conway. On the 9tli of August she had expressed to Conway a desire to make a testamentary disposition or her property, and, upon his suggestion that Mr. Collins was a suito- 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 tiie hospital. On their way he told Collins of the mode in which she proposed to dispose of her property, and, after their arrival, re- mained in the room with them while she was giving directions about the will, go- ing out. however, occasionally, for short intervals to visit other people in the hos- pital, and leaving the building before the will was formally executed. Two days later he visited Collins at his office, and, after hearing the will read, he made to- Collins a suggestion of some changes, and whether a deed of trust would not be preferable to a will. An appointment was then made between him and Collina to meet that afternoon in the room of Mrs. Ross at the hospital. After their arrival at the hospital, Conway made a sugges- tion to her that she execute a deed of trust instead of a will, and also other sug- gestions in reference to her disposition of the property. Only him.self and Collins were in the room duringtbis 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 influence over her, it must be held that in the transaction under investigation there was an undue exercise ot such influence; that by not insisting that she should have independent advice, and by continu- ing to remain in her presence during the- interview with the only other person whom he permitted to see her, he exer- cised an influence over her actions which, though unseen and inaudible, was non& the less effective in its results. "The ques- tion is, " said Lord Eldon 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- clude 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 cases 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 v. Duncan, 4& N. Y. 485; Finch V. Parker, Id. 1; Hubbell v. Von Schoening, Id. 326; Peters t. Delaplaine, Id. 362. It seems that whether specific perform- ance shall be adjudged depends much upon the circumstances of each ease, 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. Tlie 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. By 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 25th day of that month a formal tender was made to Mm of a deed by the sherifC, 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 objection 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. & Gr. 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 first 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 coiues 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. Vend. 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 ee 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 January 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 plaintifC 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. Kadclifte v. Warrington, 12 Ves. 326; More v. Smedburgh, 8 Paige, 600; Edgerton v. Peckham, 11 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 rpom for suspicion of any trick 254 EQUITABLE KEMEDIES. on the part of tlie plaintifC; 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 tlie 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, 18S1. 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 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 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 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 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 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 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 udant 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- cm-ity for the performance by complainant, it was not unnatural that he should delay put- ting the security out of Ms 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 Iq 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- much to say that the whole course of his sub- 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 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 costs. The other justices concurred. EQUITABLE REMEDIES. 257 STEWARD V. WINTERS et al. (4 Sandf. Ch. 588.) Court of Chancery of New York. May, 1847. Motion to dissolye an injunction, restrain- ing tlie defendants from carrying on the auc- tion business, or seUing goods at public auc- tion, in the store number eighteen William street, in the city of New 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 May then next, at the yearly rent of fifteen hundred doUai-s, 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 May, 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 morning papers, in the columns of auc- tions, with the heading: "J. B. Sayres, Auc- tioneer. By Sayres & Winters, Store No. 18 William 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.JUB. — 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 complamant E. Sandford, 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 Impoi-ters 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 u-reparable 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 injury 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 Bldon, 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 REMEDIES. continuing covenant, that it will be substan- tially injurious. The question remains, is there an adequate remedy at law? In the first Tjiace, it is manifest that at law a new cau«e of action will arise every day that the defendants sell at auction. If the 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 years 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 fjom the fol- lowing authorities, in my judgment, sanction this jurisdiction. I refer to HiUs v. Miller, 3 Paige, 254; Barrow v. Richard, 8 Paige, 351; Ranliin v. HusJiisson, 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. Jur. § 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. 3. The motion to dissolve the injunction must be denied, with costs. EQUITABLE REMEDIES. 259 MANHATTAN MANUFACTURING & FER- TILIZING CO. V. NEW .lERSEY 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. AYinfield, for defendants. ZABRISKIE, Ch. The complainant is a corporation of the state of New Yorli, 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 resti'ained 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 affixing 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 Jolm 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- fendant Sherman, under the name of "The Bergen Manufactm-ing 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 otlier 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 receiye 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 stocli 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 tuay, by custom, have been the effect of such contract, that the butcher might leave the blood and ofCal 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 ofCal. 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 talie 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 remove 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. 7T4; De Mattos v. Gibson, 4 De Gex & J. 276. 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 interfered 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 here to overcome this presumption. The injunction must issue as prayed for. EQUITABLE BEMED1E3. 261 TRUSTEES OP COLUMBIA 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 tlie north-east corner of Fiftieth street and Sixth avenue in the city of New Yorls, 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 |)elonged 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 occuijled 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 for 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 sulfices 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 any con- sideration, however slight. In this case it is not material to inquire whether the covenant of the plaintiffs 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 tliere 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 pm-pose 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 particulai-ly described, and these constitute the subject-matter of 262 EQUITABLE REMEDIES. tlie 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 pui'pose 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 structure 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 covenantoi's. 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 thu-d 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. East River Bank, 26 N. Y. 10.5; 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 ealled, 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 all 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, there is no distinction between negative easements and those rights that are more generally known as easements, as a vray, 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 disturbance of the easement 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 which 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 nm 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 distm'bance 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 plaiutiflis EQUITABLE REMEDIES. 263 aiifl their lands existed, whicli 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 gi-an- tees taking title with notice of its existence. An owner may subject his lands to any serv- itude, and transmit 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 sucli 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, Eq. 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 aU 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 agree 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 Allen, 341; Catt v. Tourle, L. R. 4 Ch. App. 654; Carter v. WiUiams, IS Wkly. Rep. 593, before Vice Chancellor .Tames; Wolfe V. Prost, 4 Sandf. Ch. 72; Tulk 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 pm'chase 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 liabiUty to such an easement creates." 264 EQUITABLE REMEDIES. In Hills V. 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- jnent 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 applied to any purpose prohibited by the covenant. So far as appears, their objection was reasonable. The plaintiffs did not stand by nnd 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 wUl, 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 KEMEDIES. 265- HENDRICKSON v. HINCKLEY. (17 How. 443.) Supreme Court of the United States. Dec. Term, 1S54. The facts are stated in the opinion of the court. Mr. Hart, for appellant. Mr. Mills, contra. CURTIS, J., delivered the opinion of the court. The complainant filed his bill in the cir- cuit court of the United States for the district of Ohio, and, that court having ordered the bill to be dismissed, on a demurrer, for want of equity, the complainant appealed. The object of the bill is to obtain relief against a judgment at law, founded on three promissory notes, signed by the complainant, and one Campbell, since deceased. A court of equity does not Interfere with judgments at law, unless the complainant has an equitable defence, of which he could not avail himself at law, because it did not amount to a legal defence, or had a good de- fence at law, which he was prevented from availing himself of by fraud or accident, unmixed with negligence of himself or his agents. Marine Ins. Co. v. Hodgson, 7 Cranch, 333; Creath v. Sims, 5 How. 192; "Walker v. Robbins, 14 How. 584. The application of this rule to the case stated in the bill leaves the complainant no equity whatever. The contract under which these notes were taken was made in December, 1841. One of the notes is dated in December, 1841, and the others in January, 1842. In April, 1848, suit was brought on the notes. In October, 1850, the trial was had and judgment re- covered. The reasons alleged by the bill for enjoining the judgment are: 1. That the consideration of the notes was the sale of certain property, and the com- plainant and Campbell were defrauded in that sale. But this alleged fraud was plead- ed, in the action at law, as a defence to the notes, and the jury found against the de- fendants. Moreover, upwards of six yea-s elapsed after the sale, and before the suit was brought; and the vendees, who do not pretend to have been ignorant of the alleged fraud during any considerable part of that period of time, did not offer to rescind the contract, nor did they, at any time, either return or offer to return the property sold. 2. The bill alleges certain promises to have been made by an agent of the defendant, con- cerning the time and mode of payment of the notes when they were given. These prom- ises could not be availed of in any court, aa a defence to the notes; for, to allow them such effect, would be to alter written con- tracts by parol evidence, which cannot be done in equity any more that at law, in the absence of fraud or mistake. Sprigg v. Bank , of Mount Pleasant, 14 Pet. 201. But whatever substance there was In this defence, it was set up, at law, and upou this also, the verdict was against the defend- ants; and the same is true of the alleged partial failure of consideration. 3. The next ground is, that on the trial at law, letters from the joint defendant, Camp- 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 aption 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 liEMEDIES. an original jurisdiction in cases of set-off, and that this jurisdiction is not taken away by the statutes of set-off, which have given the right at law. This may be admitted, though it has been found exceedingly difficult to determine what was the original jurisdic- tion in equity over this subject. 2 Story, Bq. 656, 664. But whatever may have been its exact limits, there can be no doubt that a party sued at law has his election to set off his claim, or resort to his separate action. And if he deliberately elects the last, he cannot come into a court of equity and ask to be allowed to make a different determination, and to be restored to the right which he has once voluntarily waived. Barker v. Elkins, 1 Johns. Ch. 465; Greene v. Darling, 5 Mason, ^1, Fed. Cas. No. 5,765. Similar considerations are fatal to the plain- tiff's claim for relief, on the ground that the defendant resides out of the state, and that therefore he should have the aid of a court of equity, to subject the judgment at law to the payment of the complainant's claim. When the complainant elected not to file these claims in set-off in the action at law, he knew that defendant, who was the plaintiff in that action, resided out of the state. If that fact was deemed by the complainant in- sufficient to induce him to avail himself of his complete legal remedy. It can hardly be supposed that it can induce a court of equity to interpose to create one for him. The ques- tion is not merely whether he now has a legal remedy, but whether he has had one and waived it. And as this clearly appears, equity will not interfere. The decree of the court below is affirmed. EQUITABLE REMEDIES. 267 GRI]' I'^ITII V. HILLIARD. (25 Atl. 427, G4 Vt. 643.) Supreme Court of Vermont, General Term. Nov. 5. 1892. Appeal from cliancery pourt, Rutland county; Taft, ChancoUor. Action by Silas L. Griffitli against John H. Hilliard. From a decree sustaining a demurrer to plaintiff's bill for an injunc- tion and dismissing the bill pro fomia, orator appeals. Reversed and modified. J. C. Baker, for orator. H. A. Barman, for defendant. START, J. The defendant, John H. Hil- 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 cutting and drawing timlier therefrom, and threaten to continue to do so. For the purpose of determining the question now beforH 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, 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 injuuction 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 ease, repeated acts are done or threatened, although each of such acts, taken by itself, may not be destructive to the estate, or inflict ir- reparable injury, and the legal remedy may, therefore, be adequate for each sin- gle act if it stood alone, the entire wrong may be prevented or stopped by injunc- tion. Smith V.Rock, 59 Vt. 232.9 Atl. Rep. 551; Langdon v. Templeton, 61 Vt. 119, 17 Atl. Rep. 839; Erhardt v. Boaro, 113 U. S. 539, 5 Sup. Ct. Rep. ^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 .Tohns. Ch. (Law Ed.) 496; High, Inj. 724-727; Shipley V. Ritter, 7 Md. 408; Scudder v. Trenton Delaware Falls Co., 1 N.J. Eq.694; 1 Pom. Eq. Jur. § 245; 3 Pom. Eq. Jur. § 1357; Murphy v! Lincoln, 63 Vt. 278, 22 Atl. Rep. 418. In the case of Murphy v. Lincoln, supra, the bill charged the committing of several trespasses by the defendants by drawing wood and logs acros.H the orator's land. The defendants claimed a right of way. The court ftjund the is.sue 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 Equity Juris- prudence, (volume 2, §§ 928, 929:) '"If the trespass be fugitive and temporary, and adequate compensation can be obtained in an action at law, there is no ground to justify the interpositiou 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 it 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 n 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. Rey mert, 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 might accrue from continuous violations of the rights of the owners; and that it is not necessary that the right should be first established in an action at law. In Erhardt v. Boaro, su- pra, Mr. Justice Fikld says: "It is now a common practice in cases where irre- mediable misclilet 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 ils preventive writ, to preserve the property from destruction pending legal proceedings for the determinatiOB of the title." Wlien it appears that the title is in dis- pute, the court may, in its di.scretion, 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 injunctiim perpetual when the orator has thus established his title; or the court may proceed and determine which party has the better title; or it may dismiss the bill, and leave the orator to his legal rem- edy. Bacon V. Jones, 4 Mylne & C. 433; Diike of Beaufort v. Morris, 6 Hare, 340; Campbell v. Scott, 11 Sim. 31; Kerr, Inj. 209; Ingraham v. Dunnell, 5 Mete. (Mas.^;.) US; Rooney v. Soule, 45 Vt. 303; Wing v. Hall, 44 Vt. 118; Lyon v. McLaughlin, 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 Cuttenham 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. ins; 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 siinpliciter, without raore,— a course which, though perfectly competent to the court, is not very likelylo be taken where the defendant raises a question as to the valid- ity of the plaintiff's title; or it may follow the more usual, and, as I apprehend, more wholesome, practice in such a case, of either granting an injunction, and at the same timedirectingtheplaintiff to proceed to establish his title at law, and suspend- ing the grant of the injunction until the result 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 ari^e 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 very likely to happen, and I ara uot aware of any case in which it has happened. Nevertheless it is a course unquestionably competent to the court, provided a case be presented 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 circum- stances of the case, — that of dismissing the bill at once." Although BacouT. Jones was a case relative to a oatent right, the re- marks of the lord chancellor are applicable to any case in which the orator's title is in dispute. The case of the Duke of Beau- fort V. Morris, supra, was a bill for an in- junction toprotect the orator'sooal 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 th& court possesses. The orator, by his hill, makes out a strong case forequitable con- sideration. The sole value of the prem- ises in question is in the wood and timber growing tliereon. 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 valne 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 of 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 benecessary to establish bis title in a conrt 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.,dld not sit. EQUITABLE REMEDIES. 269 CARLISLE et al. v. COOPER. COOPER T. 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. Whatever contention there is at the bar, or disagreement among judicial minds, as to the principles on which that jurisdiction should be administered, there is no room for controversy that such jurisdic- tion pertains to courts of equity. It is a settled principle that courts of equity have concurrent jurisdiction with courts of law in cases of private nuisances; the interfer- ence of the former in any particular case being justified, on the ground of restraining irreparable mischief, or of suppressing inter- minable litigation, or of preventing multi- plicity of suits. Ang. Water Courses, § 444; 2 Story, Eq. Jur. § 925; Society for Estab- lishing Useful Manufactures v. Morris Ca- nal & Banking Co., 1 N. J. Eq. 157; Scudder V. Trenton Del. Falls Co., Id. 694; Burnham V. Kempton, 44 N. H. 79. The doctrine of the English courts is that the jurisdiction of courts of equity over nuisances, not being an original jurisdiction for the purpose of trying a question of nui- sance, but being merely a jurisdiction in aid of the legal right for the purpose of pre- serving and protecting property from injury pending the trial of the right, or of giving effect to such legal right when it has been established in the appropriate tribunal, the court will not, as a general rule, entertain jurisdiction to finally dispose of the case, where the right has not been previously es- tablished and is in any doubt, and the de- fendant disputes the right of the complain- ant or denies the fact of its violation. Un- der such circumstances the court will, ordi- narily, do nothing more than preserve the property in its present condition, if that be necessary, until the question of right can be settled at law. Semple v. London & B. R. Co., 1 Eng. Ry. Cas. 120; Blakemore v. Glamorganshire Canal Navigation, 1 Mylne 6 K. 154; Broadbent v. Imperial Gas Co., 7 De Gex, M. & G. 4.36; 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. § 92od. In our own state it has been/ somewhat relaxed. The mere denial of theS 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, hut 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 KEMEDIES. in which cham,ery 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 hill 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 & B. Canal Co. v. Camden & A. R. Co., 16 N. J. Eq. 321; Same Case on appeal, 18 N. J. Eq. 546; Morris Canal & Banlsing Co. V. Central R. Co., 16 N. ,T. Eq. 419. 'In Holsman y. Boiling Spring Bleaching Co. the bill was filed to enjoin the defendants from polluting a stream, which flowed in its accustomed channel through the lands of the complainant. The defendants were incorpo- rated in the year 1859 for the purpose of car- rying on the business of bleaching and finish- ing cotton and woolen goods, and soon after became the owners of a tract of land, pond, and mill -premises above the lands of the com- plainants, and erected thereon a large mill and works, which were put in operation in the summer of 1860. The bill charged that in the fall of 1860, in consequence of large quan- tities of chemical matter and other impurities discharged from the defendants' works into the stream, the water was filled with offen- sive matter, discolored and polluted, and ren- dered unfit for domestic purposes, producing offensive odors, which infected the air of the neighborhood, and penetrated the dwellings, so that the complainants were compelled to refrain from aU use of the water for famUy or other purposes; by reason whereof they were unable to use or enjoy their said prop- erty as they had been accustomed and of right ought to do, or to sell the same at a fair price. The bill was filed on the 5th day of February, 1861. The defendants, in their answer, did not deny the erection of their works, or the discharge of chemicals and oth- er matter therefrom into the stream, but in- sisted that the nuisances of which the com- plainants complained were not occasioned thereby, but by other causes. They further alleged that the lands and mill site used and occupied by them had been used and occu- pied as a mill site for more than twenty years, and that the business of fulling and dying had been there carried on for more than that period of time, and that they had thereby acquired a prescriptive right to use said stream for manufacturing purposes, al- though the same might taint and discolor the water. The cause was brought to a hearing on the pleadings and evidence, and the chan- cellor decreed a perpetual injunction. That the water in the stream upon the complain- ants' land had, since the erection of the de- fendants' works, become discolored, polluted, and unfit for domestic or ornamental pur- poses, and that the complainants' premises had thereby been rendered uncomfortable, in- convenient, and undesirable, for the purposes for which they were designed and used, were not denied by the answer, and were fully established by the evidence. The chancellor decided that where a complainant seeks pro- tection in the enjoyment of a natural water course upon his land, the right will ordinarily be regarded as clear, and that the mere fact that the defendant denies the right by his answer or sets up title in himself by adverse user will not entitle him to an issue before the allowance of an injunction. With respect to the defendants' claim of a prescriptive right to pollute ihe 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, theie 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 cliancellor 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 prin EQUITABLE REMEDIES. 271 ciple by which the com.! of chancery is guided in exercising its undoubted jurisdiction over the subject of private nuisances. Scudder v. Trenton Del. FaUs Co., 1 N. J. Eq. 604; South- ard v. Morris Canal & Banliing Co., Id. 519; Shreve v. Voorhees, 3 N. J. Eq. 25; Outcalt V. Disborough, Id. 214; Hulme v. Shreve, 4 N. J. Eq. 116; Shi-eve v. Black, Id. 177; Cornelius v. Post, 9 N. J. Eq. 196; Wolcott V. Melick, 11 N. J. Eq. 204; Haisht v. Morris Aqueduct, 4 Wash. C. C. 601, Fed. Cas. No. 5,902. The principle supported by these eases was not impaired by the decision of this coui't in Morris & E. R. Co. v. Prudden, 20 N. J. Eq. 530. In that case the appeal was from an order of the chancellor for a preliminary injunction, on depositions talien under a rule to show cause. The premises on which the defendants were about to lay their track were within the limits of an old turnpike, which had been vacated under legislative authority to enable the defendants to use a part of the same for their purposes, on the faith of which they acquired the title to the fee, and for twenty years had occupied it for a single track, and other purposes connected with their business. The right of the complainant for the protection of which the bill was llled was not at all clear, and the injury on which he based his claim to equitable relief was slight, and the injunction stopped an impor- tant public work. As already observed, the jurisdiction of courts of equity over the sub- ject-matter of nuisances is not an original jurisdiction. It does not arise from the fact that a nuisance exists, but results from the circumstance that the equitable power of the court is necessary to protect the party from an injury, for which no adequate redress can be obtained by an action at law, or its in- terference is necessary to suppress intermin- able litigation for the recovery of damages for an actionable wrong. As a condition to the exercise of that power, it is essential that the right shall be clearly established, or that it should previously have been determined by the action of the ordinary tribunals for the adjudication of the rights of the parties; and the injury must be such in its nature or extent as to call for the interposition of a court of equity. In the case now under consideration the defendant had been in the use of his dam, as it was at the time of the filing of the bill, since 1853, unmolested by the complainants or their ancestor, until 1861, when the first of the actions at law was brought. It is therefore insisted by the defendant's coun- sel, that the suit is prosecuted not for relief in aid of a legal right, but for establishing a legal right, the appropriate tribunal for the determination of which is a court of law. But the decisive answer to this position of counsel lies in the fact that the right of the complainants at the time of the filing of the bill, and the invasion of those rights by the defendant, are admitted by the answer. The bill alleges the seisin of the farm in question by the complainants, and that the same bounds on Black river, which from time im- memorial had been used and accustomed to flow and run by and along the said farm in its natural and accustomed channel, free and clear of all obstructions whatever; and that prior to 1846 the flow of the said river along the complainants' said farm was not in any wise affected by the defendant's dam, or the pondage thereof. The charge is that the defendant, in October or November, 1846, increased the height of his dam and its ap- pendages, the exact amount of such increase being unknown to the complainants, and that since that time the farm of the com- plainants has been overflowed by water backed upon it by the defendant's dam. The bill was filed on the 17th of September, 1866. The answer was filed on the 28th of Novem- ber, 1866. In it the seisin of the complain- ants of the farm was admitted. It was also admitted that the efficient height of the dam was increased in 1846, and that thereby the backwater on the complainants' farm was increased. The insistment was that the in- crease in the height of the dam in 1846 was only nine inches, and that on the 23d of No- vember, 1866 (two months after the filing of the bill), the defendant had reduced his dam nine inches, whereby its efficient height was made what it was before 1846. Upon this branch of the case the defendant put his defence on the ground that, having complied with the object of the bill, there was no rea- son for continuing the litigation. Furthermore, at the time of the filing of the bill two suits at law, brought by Eliza Carlisle, one of the complainants, and who was in possession, were pending against the defendant, to recover damages for injuries sustained by reason of the overflow of these lands by the raising of the dam in 1846. One of these suits was brought in 1861, the other in 1866. These causes having been taken down for trial to the Morris circuit, at the term of January, 1867, the defendant relinquished his plea to one of the courts of the declaration in each case, in which such injury was complained of, and confessed the cause of action, and submitted to pay sub- stantial damages. Judgments were accord- ingly entered for the plaintiff in those suits on the 6th of June, 1867, transcripts whereof were made exhibits in this cause. The extent to which the complainants were entitled to have the defendant's dam re- duced in order to effect an entire abatement of the nuisance could not be settled by an ordinary action at law for overflowing the complainants' land. The facts necessary to fix tlie proper measure of such relief could only be ascertained by the verdict of a jury upon an issue specially framed for that pur- pose. The complainants' right to such relief as is sought by the bill being admitted by the answer, and also having been established -272 EQUITABLE REMEDIES. in the suit at law, tlie sole question of fact in controversy was wliether the defendant Tiad effected an abatement of the admitted nuisance by lowering his dam to its level Taefore the increase of 1846. The inquiry necessary to decide that controversy may toe made in the court of chancery; at least there is nothing in the subject-matter of that investigation, that by established rules of equity procedure would entitle the party to an issue as of course. Even in the case of an heir at law, who is entitled to an issue as a matter of course when the controversy is as to the factum of a will, if he does not dispute the will, but merely denies that cer- tain portions of the land passed by the words of description, a court of equity has full jurisdiction to determine the question thus raised without granting an issue, or may grant such issue, at its discretion. Ricketts V. Turquand, 1 H. L. Cas. 472. A court of equity has jurisdiction to ascertain and de- termine the rights of parties under a res- ervation, in a grant of a water privilege, of so much water "as is necessary for the use of a forge and two blacksmith's bel- lows," without requiring the right to be set- tled at law. Olmstead v. Loomis, 9 N. Y. 423. In Broadbent v. Imperial Gas Co., which was before Vice Chancellor Wood (2 Jur. '[N. S.] 1132), and afterwards before Lord •Chancellor Cranworth (3 Jur. [N. S.] 221, 7 De Ges, M. & G. 436), and subsequently be- fore the house of lords (5 Jur. [N. S.] 1319, 7 H. L. Cas. 600), the complaint was that the complainant, who was a market garden- er, was injured by a nuisance arising from the manufacture of gas by the defendants on the premises adjoining his garden. The ■complainant, in 1854, brought his action at law to recover damages for such nuisance. The cause came on for trial' before Lord Chief Justice Jervis, and by consent was re- ferred to Sergeant Channel to settle the «,mount of damage (if any) which had been occasioned, with power to order what, if anything, should be done between the par- ties. In January, 1856, the arbitrator re- ported the amount of damages, for which judgment was entered, but he failed to make any report as to what should be done by the defendants to obviate the injury to the plaintiff. In May, 1857, a bill was filed by Broadbent to enjoin the company from con- tinuing the nuisance. The vice chancellor decrefed a perpetual injunction. This de- cree was affirmed on appeal by Lord Chan- cellor Cranworth, and was sustained on ap- peal by the house of lords. It appeared in evidence that after the submission in 1854, and before the date of the award, altera- tions had been made in the works, which, it was insisted, made the award as to the state of things in 1854 no longer conclusive as to the state of things in 1S56; and the objec- tion was taken that no relief could be ob- tained by injunction 'until the fact whether, under the existing condition of the defend- ants' works a nuisance was created, was ascertained by the verdict of a jury. The objection was overruled. In moving the judgment of affirmance. Lord Chancellor Campbell says: "It is said that a new trial was necessary here, because there had been some alterations. That there had been some alterations after the submission is proved. I consider that that is a point upon which it is for an equity judge to form his opin- ion. If there has once been a trial at law, and the plalntifiE's right has been established at law, I think it is for the equity judge to determine, when the application is made for the injunction, whether the nuisance con- tinues or whether it has been abated; and if he is of opinion that it has not been abated, but that it still continues, then it is his duty to grant an injunction. It seems to me very strange to contend that because a party who commits a nuisance chooses to make some alteration, even although he may do it bona fide, it is to be laid down as a rule that there must be another trial, and that toties quoties as often as the parties shall make any alteration there must still be another trial. I think the vice chancellor did well in investigating whether the nui- sance continued, and that it was quite un- necessary for him to order a second trial in order to try a fact which had been already investigated and established." Lord Kings- down, in expressing his concurrence, is equal- ly explicit. His language is: "I perfectly admit that if it could have been shown upon the application for the injunction that alterations had been made which had had the effect of removing the evil which the plaintiff had complained of in the action, he would, of course, not have obtained any in- junction. But I am not at all prepared to admit that the court was bound to ascertain that fact by directing the trial of an action at law. It remained for the party who re- sisted that application to show that those alterations had been made which were ef- fectual for the purpose; and if the court, upon the evidence, had reasonable doubt up- on that subject, it might, for the informa- tion of its conscience, have directed a trial; but it was equally competent to do it, and in my opinion it was its duty, if it saw, upon the examination of that evidence, that the evil had not been diminished, to act upon that conviction, and to grant the injunction which it actually did grant." The case, from the opinions in which these extracts have been taken, is the same as that now before the court, except that this case is strengthened by the fact that the nui- sance complained of is admitted by the an- swer, and the alterations which are claimed to have removed it were made after the bill was filed. It was further urged upon the argument with much earnestness that although it might be competent for the court to de- EQUITABLE EEMEDIES. 273 termine the question in controversy, yet that, under the circumstances of this case, an issue should have been allowed for the determination of the disputed facts by the I verdict of a jury. A/ The power of courts of equity to order the V /trial of an issue of fact which the court is XT / itself competent to try, ought to be sparing- \ / ly exercised, and a practice of sending or- ¥ dinary matters to the decision of a jury, ought not to be established. Where the truth of facts can be satisfactorily ascer- tained by the court without the aid of a jury, it is its duty to decide as to the facts, and not subject the parties to the expense and delay of a trial at law. But in cases where the evidence is so contradictory as to leave the decision of a question of fact in serious doubt, and superior advantages of testing the credit of witnesses by viva voce examina- tion in open court, and of applying the facts and circumstances proved in the cause to the decision of disputed points, may be obtain- ed by means of a trial before a jury, it is proper that an issue should be awarded. Trenton Banking Co. v. Woodruff, 2 N. J. Eq. 118; Miller v. Wack, 1 N. J. Eq. 205; Bassett v. Johnson, 3 N. J. Eq. 417; Hildreth V. Schillenger, 10 N. J. Eq. 196; Lucas v. King, Id. 277; Fisler v. Porch, Id. 243; Black V. Lamb, 12 N. J. Eq. 108; same case nomine; Black v. Shreve, 13 N. J. Eq. 455; 2 Daniell, Gh. Prac. 1086, 1285; Short v. Lee, 2 Jac. & W. 465; Dexter v. Providence Aq- ueduct Co., 1 Story, 387, Fed. Cas. No. 3,864; Dale V. Roosevelt, 6 Johns. Ch. 255; Ham- mond v. Puller, 1 Paige, 197; Apthorpe v. Gomstock, 2 Paige, 482; Townsend v. Graves, 3 Paige, 453. The granting or refusing an issue is a matter of discretion, and no application was made to the chancellor for an issue. The case of Carlisle v. Cooper, 18 N. J. Eq. 241, in which the question of jurisdiction was raised, was not between these parties. The subject matter of the controversy there, was the dam complained of in this case, but the complainant in that cause was John D. G. Carlisle, and the application to the chancel- lor was not an application for a feigned issue. In the answer in this case, the defend- ant, after stating the abatement of his dam nine inches, submits and insists "that if the complainant shall insist that the de- fendant has not reduced his dam to the height it was prior to the year 1846, and insists upon trying that question in this honorable court, that this honorable court is not the appropriate tribunal in which to try and decide that question." A replication was filed, and the parties proceeded to take their evidence. A court of equity is an ap- propriate tribunal to decide that question. The case was submitted to the chancellor for decision on its merits, without objection to the mode of trial. The submission of it to him without applying for an issue, concludes the parties from objection now to the mode HUTCH. BQ. JUK. — 18 of trial. Belknap v. Trimble, 3 Paige, 577. The position was also taken that the com- plainants had lost their right to relief by long delay. Mere delay in applying to the court is frequently a ground for denying a preliminary injunction, and is also a rea- son for courts of equity refusing to take cognizance of a case where there is a rem- edy at law. But where the legal right is settled, and the more efficacious remedy of a court of equity is necessary to complete relief, delay is no ground for a denial of its aid, unless it is coupled with such acquies- cence as deprives the party of all right to equitable relief. A person may so encourage another in the erection of a nuisance, as not only to be deprived of the right of equitable relief, but also to give the adverse party an equity to restrain him from recovering damages at law for such nuisance. Williams V. Earl of Jersey, 1 Craig & P. 91. So a par- ty who knowingly, though passively, encour- ages another to expend money under an er- roneous opinion of his rights, will not be permitted to assert his title, and thereby de- feat the ■ just expectation upon which such expenditure was made. Dann v. Spurrier, 7 Yes. 231; Rochdale Canal Co. v. King, 2 Sim (N. S.) 78; Same Case, on final hearing, 21 Eng. Law & Eq. 178; Eamsden v. Dyson, L. R. 1 H. L. 140; Dawes v. Marshall, 10 C. B. (N. S.) 697; Wendell v. Van Rensselaer, 1 Johns. Ch. 354; Ross v. Elizabeth-Town & S. R. Co., 2 N. J. Eq. 422; Hulme v. Shreve. 4 N. J. Eq. 116; Morris & E. R. Co. V. Prudden, 20 N. J. Eq. 531; Raritan Wa- ter-Power Co. v. Veghte, 21 N. J. Eq. 463. The defendant's case is not within either of these principles. He did not make his ex- penditure in erecting his dam, and increasing the capacity of his mill, either upon the en- couragement of the complainants' ancestor, or under an impression that he had the right to cast the water back to the extent it was held by his dam. He knew that by so do- ing he would interfere with the complain- ants' farm. He claims that he obtained that privilege from the complainants' ancestor, under a vei'bal 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 i-ate 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, IS 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. B'or such injuries an actiqn at law furnishes no adequate remedy, and the party enjoined is entitled to the protection of a court of equity hy abatement of the nuisance. Hols- man V. Boiling Spring Bleaching Co., 14 N. J. Eq. 335; 2 Story, Eq. Jur. § 92(3. As the facts wei-e 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 i 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 shaE 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 sUl 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 18.52 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 siU 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, siU, 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 ae- c:ount 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 structm-e, 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 fiowage is at aU 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 KEMEDIES. 275 to the prejudice of others. Ang. Water Courses, §§ 228-230; Hale v. Oldroyd, 14 Mees. & W. 789; Baxendale v. McMurray, 2 Ch. App. 790; easier v. Shipman, 35 N. Y. 533; AVhittier v. Cocheco Co., 9 N. H. 455; Washb. Easem. p. 279, § 38; JHulme v. Shreve, 4 N. J. Eq. lie. This rule is clearly stated by Chancellor Green in the Holsman Case, thus: "Where an action Is brought for overflowing the plain- tiff's lands by backwater from the defend- ant's mill dam, it establishes no title by ad- verse enjoyment to prove ^that the defend- ant's mill has been in existence over twenty years, or that the dam has been in existence for that period. The question is not how high the dam is, but how high the water has been held, whether it has been held for twenty years so high as to affect the land of the plaintiff as injuriously as it did at the time the action was brought." As a general rule the height of the dam when in good repair and condition, including such parts and appendages as make its ef- ficient height in its ordinary action and opera- tion, fixes the extent of the right to flow, witiout 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; Co well 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 X. J. Law, .'509. Occasional use of flash boards for short periods, when little or no injury may be done, as an exception to the general rale not to keep them on, does not amount to the open, uninternipted, and notorious adverse use necessary to establish a prescriptive right. Pierce v. Travers, 97 Mass. 306. If used for the full period of twen- ty years, only during times of low water, a prescriptive right will not be acquired there- by to keep the water up to the height of such boards during the whole year. Marcly v. Schults, 29 N. Y. 346. There may be such continuity of use of flash boards as that they, in efCect, are part of the permanent structure, and by such user a right to flow by means of a permanent dam, to the height of such boards may be acquired. Whether the user has been such as to establish the right, is a question of fact for the jury. Noyes v. Sillman, 24 Conn. 15. In the dam of 1828 there were two gates, each fourteen feet long, and the solid plank- ing between the mudsill and the cap piece occupied four feet at each end. The dif- ference between the superstructure of the dam of 1828, in Its efCect 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 deflnite manner, or at certain fixed times or occasions, as to establish a quali- fied right to use them, when they operate to raise the water to any extent on the land of the complainants, and that the right to maintain the permanent structure of the dam, and to raise the water upon the com- plainants' lands by the use of the gates, is such as I have mentioned as the substance of the decree. It is not proposed to examine the evi- dence in detail; a portion of it has been referred to by the chancellor in his opinion. It is sufficient to say that his conclusions on all these points are supported by direct testimony, and are consistent with the col- lateral facts proved, and in my judgment are sustained by the weight of the evidence in the cause. Objection was made to that portion of the decree which provided for the raising of the gates in times of freshets and high wa- ter. As the prescriptive right to the use or flow of water originates from its accustom- ed use, the right may be qualified as to times, seasons, and mode of enjoyment, by the character of the use from which the right has originated. Ang. Water Courses, §§ 222, 224, 382; Bolivar Manuf'g Co. v. Neponset Manuf'g Co., 16 Pick. 241; Marcly V. Schults, 29 N. Y. 346; Burnham v. Kemp- ton, 44 N. H. 78. Prescriptions may be up- on condition in restraint of the mode in which the prescriptive I'ight 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. 2.-)H, 1 W. Bl. 49; Brook V. Willet, 2 H. Bl. 224; Gray's Case, 5 Coke, 70; Lovelace v. Keynolds, Cro. Bliz. 276 EQUITABLE REMEDIES. 54G, 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 apperidages, to control the height of the water in the pond in times of high water by raising the gates, and permitting it to [i^lt-i.- EQUITABLE REMEDIES. 277 KOBINSON et al. v. BAUGH. (31 Mich. 290.) Supreme Court of Michigan. Jan. Tei-m, 1875. Appeal from superior court of Detroit; in •chancery. Walker & Kent, for complainants. Gart- ner & Burton and Alfred Russell, for defend- .ant. GRAVES, O. J. The complainants, nine- teen In number, bemg 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 neatly 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 their 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 liurtful, 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 "he enjoined from carrying on his works in a ■way thus wrongful and injurious. Upon answer and proofs, the com't 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 rare 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 lights 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 sane- lion 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 Itiver Booming Co., 27 Mich. 533; Peck v. El- der, 3 Sandf. 126, and opinion of the chancel- lor in a note; Reid v. Gitford, Hopk. Ch. 416. It is next objected, tliat 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 afford 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 feels that 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 ease 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 nuisances 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. Gas. 642; Thorpe v. Brumfitt, 8 Ch. App. 650, 6 I5ng. 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 ettect produced by defendant's operations, dues 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. Thosfr 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 tO' such ordinaiy 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 tfie 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- jui-y 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 ta 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 t* 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 REMEDIES. 279 the upper stoiy of his building, and liad 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 machlneiy was run 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 famUy, in the chambers where they resided adjacent to the mill. As he chose to stay in a building partly ^iven up to business, and in the midst of a trading and manufacturing district, he was mot 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 difCer- .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 veiy great inconvenience or cost. Other sites rea- sonably eligible in respect to the protitable 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 city 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 I'ights to the relief prayed, and that the de- cree below must be afflrmed, with costs. COOLBY and CAMPBELL, JJ., concurred. GHRISTIANCy, J., did not sit in this case. 280 EQUITABLE EEMEDIES. 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; George M. Buck, Judge. F. J. Atwell, for appellant. Spafford TryoB and A. J. Mills, tor complainant. LONG, J. The bill was filed inthiscaiiae for an injunction to restrain the defendant from cutting and removing any of the timber or trees standing or growing upon the premises described in the bill, and from committing or permitting any waste of said premises. The bill alleges that com- plainant is the owner in fee of the prem- ises, containing about 160 acres subject to a life-estate in the defendant. That the complainant derived his title through a sheriff's deed, upon an execution sale to satisfy a judgment against Seth H. Felt. That said Seth H. Felt derived his title through a deed made and executed to him by the defendant, Horatio O. Felt, and his wife. That at about the time of convey- ance of said premises to Seth H. Felt he made, executed, and delivered a lease in writing to Horatio O. Felt and wife. This lease is set out in full in the record. The bill also alleges that said Horatio O. Felt is in actual possession and occupancy of the premises under and by virtue of said lease, and that his wife is now deceased. That upon about nine acres of said prem- ises is growing and standing a large amount of valuable oak and other timber, fit for sawing and lumbering purposes, and that said timber constitutes a large portion of the value of said premises. The bill then states: "Your orator further shows that the said Horatio O. Felt has caused to be cut, and is causing to be cut, and is cutting, lumbering, and removing from said premises, a large portion of said timber and trees (growing thereon, and threatens to continue so to do, and has already cut about five acres of said timber. Your orator further shows that thereby the said Horatio O. Felt is committing waste upon said premises and irreparable injury thereto, and materially lessening the value thereof. Your orator further shows that if the said Horatio O. Felt is permitted to continue to cut down said timber and lumber, and commit waste upon said premises, as aforesaid, and is not restrained 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 cutting and removing ot 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 hiswislies 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 set out in thebill of complaint was executed before thecomplainant derived his title un- der the sheriff's deed, and contains the fol- lowing clause. "To have and to hold the said demised premises, with the appurte- nances, unto the said parties of the second part, their executors, administrators, and assigns, for and during and until the full end and term of their natural lives, bo long aa either of them shall live, yielding and pay- ing therefor, durina 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 asfull and com- plete control of said premises, while 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 constructicm 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 tern> 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 consid- 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 sucb conve.yance 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 eave defendant the same Interest or property in the estate as he 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 ot 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 tor waste. Counspl for defendant insists that the doctrine laid down in Stevens v. Rose, 6l> EQUITABLE REMEDIES. 281 Mich. 2m, 37 N. "W. Kep. 205, fully sustains las claim tbat the defendant has the right to remove this timber, and do all other acts that he could have done as owner in tee, and that the defendant's estate is not impeachable for waste. His claim is not sustained by that case. It was there held that the words "to have and to hold, and to use and control as the lessee thinks proper for his benefit during his natural life, " clearly import a lease without im- peaclinient 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 reasona.ble 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-acre 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 lor waste" never was extended to allow the very destruction of the estate itself, but only to excuse permissive waste. 10 Bac. Abr. p. 468, tit. " Waste. " In Packington V. Packington, decided in 1744, and cited by Bacon, (reported 3 Atk. 215,) the plain- tiff alleged that the defendant. Sir H. Packington, had cut down a great number of trees, and had threatened to cut down and destroj- them all. Lord Hakdwicke granted an injunction to restrain the waste. The lease in the case was made without impeachment of waste. Mr. Greenleat in his Cruise on Real Property, (volume 1, p. 129,) lays down the rule thus: "The clause without impeachment of waste, is, however, so far restrained in equity thatit does not enable a tenant for life to commit malicious waste so as to de- stroy theestate, which 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 impeachment of waste, of land that had many trees upon it, and the tenant cut down none of the trees till about half a ytar before the ex- piration of his term, and then began to fell the trees, the court granted an injunc- tion ; tor, though he might have felled trees every year from the beginning of his term, and 'then they would have been growing up again gradually, yet it is un- reasonable that he should let them grow till towards the end of his term, and then sweep them all away; for, though he had power to commit waste, yet this court will model the exercise of that power;" citing Abraham v. Bubb, Freem. Ch. o3. 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- nned to those tenants who derived their mterest from the act of the law, but the timber cut was, at common law, the prop- erty of the owner of the inheritance, and the words in the lease " without impeach- ment of waste" had the effect of transfer- ring to the lessee the property of the tim- ber. Bowles' Case, 11 Coke, 79; Co. Litt. 220a. The modern remedy in chancery by injunction is broader than at law, and eq- uity will interpose in many cases, and stay waste where there is no remedy at law. Chancery will interpose when the tenant affects the inheritance in an unreasonable and unconscientious manner, even though the lease begranted without impeachment of waste. 4 Kent, Comm. (13th, Ed.) 78; Perrot v. Perrot, 3 Atk. 94; Aston v. Aston, 1 Ves. Sr. 2(J4; Vane v. Barnard, 2 V-ern. 738; Kane v. Vanderburgh, 1 Johns. Ch. 11. In the case of Kane v. Vanderburgh, su- pra, it was said: "Chancer.v goes greater lengths than the courts of "law in staying waste. It is a wholesome jurisdiction, to be liberally exercised in the prevention of irreparable injury, and depends on much latitude of discretion in the court. " In this state an action on the case for waste is authorized by chapter 271, How. St. This has superseded the common-law reuiedy, and relieves the tenant from the penal consequences of waste underthe stat- ute of Gloucester, as the owner now recov- ers no more than the actual damages which the premises liave sustained, wliile that statute gave by way of penalty the forfeit- ure of the place wasted, and treble dam- ages; and this harsh rule was adopted by many of the American states by the early statutes. Thisstatutegivinga rightot 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 pull down the build- ings or destroy them, or cut and destroy fruit trees, or those planted for ornament and shelter; neither can he be permitted to entirely strip the land of all timber, and convertitiutolumber,and8ellit a way from the inheritance. It is not claimed that the timber is being used tor 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 below will be af- firmed, with costs. The other justices concurred. 28^ EQUITABLE EEMEDIES. 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 wiis overruled, and the defendants ap- pealed. M. JI. 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 evened by the plaintifC and occupied by him as his residence and homestead; that the pretense for so doing is that such fences, trees and shnab- beiT 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 iiTeparable. 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, Eq. 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. WKST PUBLISHING CO., PBINTKRS AND BTKBEOTYPERS, BT. PjLUL. MINN. 'SSiSSj" , ■ . ^K«a!33«3t:;