ment by default against P. Afterwards P being about to move the court to scale the debt, the parties, with the assistance of their counsel, agreed that the debt should be scaled as of the value at the date of the bond, which was one for three, and this is entered of record on the judgment. Afterwards P files his bill to have the debt scaled as of the date the bond fell due. HELD: the agreement between the parties is conclusive, and the debt is not to be further scaled. Smith v. Penn, 402 3. A bond is given on the 14th of May 1863, payable on demand, by M and others to J, the administrator of their intestate, for the balance then due him on his administration account, and this is almost wholly made up of commissions on receipts and disbursements, prior to the 15th of November 1862. The bond having been given with reference to Confederate State treasury notes as a standard of value, is to be scaled as of its date. James & als. v. Johnston, 461 4. Though judgments have been recovered upon bonds given for purchases at a judicial sale made in October 1863, without any question as to the scaling of them, yet the cause being still pending, the claim to have them scaled may be made and adjudicated in that cause. 5. An agreement is entered into on the 1st of June 1863, for the purchase by M of E of one hundred head of cattle, for which M was to pay E $75 per head, in current funds, to be paid to E when he demanded the same; but the same is not to bear interest until after the ratification of peace between the United States and Confederate States governments. The proof is that Confederate States treasury notes were intended by both parties to be the medium of payment, whether the payment was made before or after the peace. Nothing was said as to the mode of payment if there was no such currency. This was a contract in præsenti, aud the debt should be scaled as of that date. McClung's adm'r v. Ervin, 519 6. Bond executed in October 1863, for a loan of Confederate notes, payable at any time called for upon three months notice, without interest, the provision for notice being inserted at the instance of the obligor, is a bond payable immediately; and though not called for until after the war, is to be scaled as of its date. Bowman v. McChesney, 3. Y brings an action of debt upon a bond against W and two others, W being the principal in the bond. The defendants seek to set off a judgment recovered by R against Y, which had been assigned to W. HELD: 1. Under the statute, Code, ch. 172, § 4, the judgment is a good set-off to the bond, though the debt sued for is against W and two others, and the judgment is assigned to W; and though the plaintiff's claim is legal, and the claim of W is equitable. Wartman & als. v. Yost, 595 2. In a suit for specific performance of a parol agreement for the sale of land, it must appear: 1st. That the parol agreement relied on, is certain and definite in its terms; 2d. The acts proved as part performance, must refer to, result from, or be made in pursuance of the agreement proved; 3d. The agreement must have been so far executed that a refusal of full execution would operate a fraud upon the party, and place him in a situation that does not lie in compensation. And no one of these conditions appears in 364 this case. 609 7. See Confederate Contracts, No. 1, and Sanders v. Branson, 5. R sets up the defence that the contract was made under duress-that he had been severely whipped by a mob and driven from the county. But it appears that T was in no way implicated in that outrage, though he had heard of it, and he gave R the price he asked for the land. The contract is valid. Idem, 888 6. T admitting in his evidence that he promised to pay A for R, $75, in addition to the sum stated in the contract, though this is not stated in the contract, or noticed in the pleadings, T should be required to pay it before specific performance is decreed. Idem, 888 7. See Equity Jurisdiction and Relief, No. 6, and Nagle v. Newton, 814 STATE GOVERNMENT. 2. An offer to give to a receiver of the court a check upon a bank, without proof that the party had the money in the bank at the time, though that was not doubted by the receiver, is not a good and valid tender. Poague v. Greenlee's adm'r & als., 724 3. A purchaser at a judicial sale cannot make a good and valid tender of the money due for his purchase, to the receiver of the Idem, court appointed to collect it. 1. Between May and November 1860, D deposited tobacco, for inspection and storage, in the public warehouse at Richmond, and paid the inspection fees. The tobacco remained in the warehouse until March 1863, when the warehouse was accidentally consumed by fire, and the tobacco was burned. The present State government is not responsi-currency, will not be discharged by a tender of Confederate money, though made on the day the note fell duc. See Confederate Con41 tracts, No. 11 and ble to D for the loss. De Rothschilds v. The Auditor, 724 4. When a purchaser of real estate, for 1. P by her will devised to T certain real estate, in trust for her daughter S, wife of F, with instructions to T, "to permit her said daughter to occupy and enjoy said property, should she prefer doing so ;" and should she survive her husband, T "shall convey the said property in fee simple to her and her heirs. S was put into possession of the property, and in the lifetime of her husband, conveyed the property to H, the husband not joining in deed; and after his death she re-acknowledges the deed, and H received possession of the property. H afterwards conveyed to C. And then T brings ejectment against C to recover the property. HELD: By the will of P, S acquired at once, on the death of P, an equitable estate in fee simple in the property, with the absolute right of possession for her own use; and on the death of her husband, to an absolute conveyance thereof to herself in fee simple, which it was a breach of trust in the trustee to withhold; and she could have enforced this right at any moment after the death of her husband. That her rights passed by her deed to H, and by the deed of H to C, who stood thereafter in the shoes of S; and he could no more be ejected at the suit of T, the trustee, than S could before her conveyance. 2. A resulting trust may be set up by parol | C with special warranty. On the same day testimony, against the letter of a deed; and W executes the deed, and hands it to C, who a deed absolute on its face, may, by like in a few days writes to W stating various testimony, be proved to be a mortgage. But objections to the title, and saying he cannot the testimony to produce these results must, have anything to do with the property in the in each case, be clear and unquestionable. state of the title. On the 15th of July, W Vague and indefinite declarations and admis- tenders C possession; and C refuses to take sions, long after the fact, have always been possession, and renounces the contract. regarded, with good reason, as unsatisfactory HELD: and insufficient. For comment on such evidence, see the opinion. 3. Bonds are given to S, secretary of, &c., a voluntary association, and a deed of trust executed to secure them. And S is directed by the association to proceed to collect all the debts belonging to them. Though by the by-laws the secretary was to be elected annually, yet as S continued to act as such, and was recognized by the association, it was competent for him to direct the enforcement of the deed of trust. Sangston, cor. sec., &c. v. Gordon & Reily, 755 1. In assumpsit by the contractor against a county, for the price contracted to be paid for building a jail, the declaration states that the county court appointed three commissioners, naming them, to let out the building of the jail; in the order of the county court offered in evidence by the plaintiff, only two of them are named. This is no material variance, and the order may be admitted as evidence. Carroll County v. Collier, 302 VENDOR AND PURCHASER. 1. M conveys a house and lot to W in trust for B for life, remainder to her children. On the 30th June 1870, B contracts in writing with C to sell to him the property for $10,000 on the terms of $2,000 when he received a good deed for the property, and the balance in five years, equal annual payments; possession to be delivered on the 15th of July. B to procure the approval of the contract by the proper court without cost to C. On the 9th of July W files his bill against B and her children, to have the contract approved, and by a decree of the same day, it is approved and W is directed to convey the house and lot to 1. This was a private, not a judicial sale, and C is not concluded by the decree from making objections to the title. Christian v. Cabell & als., 82 2. The undertaking to make "a good deed" is not confined to the form of the deed, but includes a good title. Idem, 82 3. If C had taken possession, and performed the contract on his part by paying the cash payment and executing his bonds, he would thereby have waived his objections to the title. Idem, 82 2. In this case the house and lot had been owned by G, who sold and conveyed it to M. Whilst G owned it, she being a member of a building fund association, borrowed from it $2,000, and gave her bonds in the penalty of $4,000, and a deed of trust to K to secure her liabilities to the association. She had paid up all dues until December 1863; but there was an uncertain amount to which the property was still liable; and this could only be ascertained by a suit in equity and an account; and this incumbrance was unknown to C at the time of the contract. The house had been consumed by fire before proceedings were instituted by W, against C, to inforce the contract. HELD: known to him or his attorney, at the time 6. Especially will such indulgence be denied to the vendor when, besides a failure to disclose the existence of incumbrances, an account is necessary to ascertain the state of the title, the extent, nature and amount of such incumbrances. Idem, 82 2. The sale to P having been at the instance of H, and with his concurrence, even if the contract could not be rescinded by a subsequent parol agreement, I would be estopped in equity, by his own acts, from setting up the written contract. Idem, 573 7. In April 1857, land is sold by a commissioner under a decree in a suit for partition, the one-third cash, and the balance in five 7. The purchaser of real estate is the annual payments, a lien to be reserved on owner from the date of the contract, when the land for the deferred payments, the parthe vendor is in no default, and is prepared ties entitled being the widow and several to convey a clear title. But he is not the children of B. At the sale I became the purowner till the vendor can make a title ac- chaser, and by the decree, or by the agreecording to the contract. Idem, 82 ment of the parties, I was allowed to retain 8. Any loss occurring to the property be- the one-third of the purchase money for the fore the vendor is in a condition to convey lifetime of the widow; he paying her interest a clear unincumbered title must fall on him thereon annually. Separate bonds were and not on the purchaser. Idem, 82 given for this one-third, and I paid up the 9. The house having been consumed by principal of his bonds for two-thirds, and the fire whilst the incumbrance on the prop-interest on the one-third until 1862; and he erty still existed, so that W could not make paid the interest then due and a part of the a good title to it, the loss must be borne principal of the two-thirds. At the October by B and her children, and not by C. term of the court, I, without giving notice to Idem, the parties, and without their knowledge, obtained from the court an order directing him to pay the balance of the purchase money in his hands, to E, the general receiver of the court, to be invested in State bonds. 992 He accordingly *payed the amount to E in Confederate treasury notes, and E invested the fuud in State bonds; but before making his report, sold them, and invested in Confederate State bonds. The papers in the suit being destroyed, the widow and children brought their suit in equity against I and E to recover the fund. HELD: 82 3. B claiming a part and H claiming the whole of a tract of land, and both claiming under W, who had sold to C, who owes part of the purchase money, to W, and H having paid it to W, the part of the land claimed by B is liable for its due proportion thereof. Higginbotham v. Brown, 323 4. I sold land to G, but made no conveyance; G sold the same land to E, and E sold it to J, taking his bonds for the purchase money; and J sold to D, the purchase money due to E being unpaid, of which D had notice, but was informed that any lien that E had upon the land had been released in consideration of J's giving additional personal security to the bonds; and under that belief I conveyed the land to D. E has a lien upon the land in the hands of D for the unpaid purchase money due to him from J; and this though E assigned to J the title bond, which he received from G. 6. By article of agreement under seal, S sells to H a lot of land which at the time H is in possession as tenant of S. Some time afterwards H informs S that he cannot pay for the lot, and proposes to rescind the contract, which S consents to; and H informs S that P will buy the lot at the same price. S thereupon agrees to sell to P, and with the assent and at the request of H, sells and conveys to P. HELD: 1. The written contract, whether delivered up or not, may be rescinded by a subsequent parol agreement, which has been fully carried into effect; and in this case, the contract was rescinded. Phelps v. Seely & als., 573 1. The order having been obtained by I without notice to the parties and without their knowledge, was null and of no effect as to them, and he is still liable for the purchase money; and the lien still exists. Beery &als. v. Irick & als., 614 2. The plaintiffs are entitled to an immediate decree against I; and are not to be delayed until the equities between I and E can be decided. Idem, 614 3. The cause going back for further proceedings, I and E or either of them, if they or he desire it, may litigate the question of the liability of E to I, and the extent of such liability, if there be any, in this case. Idem, 614 8. See Specific Performance, No. 3, and Ambrouse's heirs v. Keller, 769 9. See Specific Performance, No, 4, 5, 6, and Talley v. Robinson's ass'nee, 888 WASTE AND UNAPPROPRIATED LAND. By an order of council of the 12th of June, 1749, confirmed by a decree of the Court of Appeals in 1783, 800,000 acres of land was granted to the Loyal Company, and was surveyed in 1774. The rights under this grant acquired by entry and survey, stand upon no higher footing than rights acquired by entry and survey under a land-office of B, a party to an instrument, said he was treasury warrant; and in both cases, until not familiar with the handwriting of B, patented, the lands are waste and unap- never having seen her write but once, and propriated, and liable to location by other then only to make her signature; that he parties. would not be able, from his knowledge of her handwriting, to distinguish it from that of others; but that he was of opinion, from having compared the present signature with the one he had seen her make, it was her handwriting. M was a competent witness, and the evidence was admissible. Cline's heirs v. Catron, WILLS. 378 1. Of a will of a married woman, made under a power given her by her husband's will. See Husband & Wife, No. 1, 2, 3, 4, 5, 6, and Thorndike & als. v. Reynolds & als., WITNESSES. 21 1. Ma witness called to prove the signature 368 |