possible," and to deliver it in bond at New Orleans. The vendee having refused to accept the iron, held, in suit for damages brought by the vendor, 1, that the words "as soon as possible" used in the contract required shipment as soon as possible by any of the ordinary modes of transportation, and that proof of a custom of merchants to ship by sail, unless specifically directed to ship by steam, was not admissible; 2, that the quality of the iron could not be shown by proof of a custom of the foundry as to examining and marking. Pope v. Filley, 3 McC., 190.

§ 143. A custom on the part of other vessels to yield to a ferry-boat on its approach, and to slacken their warps to permit it to pass, must be presumed to be founded on the supposition that the ferry-boat was in the rightful use of the water, and will not protect an unlicensed ferry from liability for injuries sustained by reason of a collision with a vessel rightfully using the water. The Maverick, 1 Spr., 23; Harding v. Maverick, 5 Law Rep., 106. § 144. It is a custom of London that consignees having liens on cargoes consigned to them insure them against fire. If the custom is intended for the benefit of the consignor the consignee is bound to insure, and if he do not he stands insurer himself, and is entitled to the premium; aliter, if the custom be merely for the protection of the interests of the consignee. Kingston v. Wilson, 4 Wash., 310.

§ 145. A vessel was chartered to go to Pictou for a cargo of coal, to be conveyed to New York, lay days to be allowed at Pictou "as customary in loading," and "the cargo to be received as customary." There being no custom as to lay days proved, but a custom as to the order of vessels in taking their turn in loading, the parties were bound by such latter custom. Nichols v. Tremlett, 1 Spr., 361.

§ 146. By the laws and ordinances of Spain, and the regulations and usages of the province of Louisiana, the survey of an open concession or grant was necessary to give it locality and to perfect the title in the grantee, and without which private was not separated from public property; nor was the grant valid as against the government which made it, and hence not valid against the United States. Winter v. United States, Hemp., 344.

$147. The laws and usages of foreign countries where contracts are made and to be executed, which respect the validity, construction and performance of those contracts, are regarded here as rules of decision. Willings v. Consequa, Pet. C. C., 301.

§ 148. No change of usage, even by authority, can have a retrospective effect, and must be limited to the future. United States v. Buchanan, Crabbe, 563.

§ 149. Where an action of deceit is brought by a citizen of Great Britain for using the plaintiff's trade-marks on defendant's goods, and selling them as and for the plaintiff's, evidence of a usage abroad and in England to use such marks of others when aliens, with impunity, is not a competent defense to the jury, and such usage being a bad one, and not in existence here, cannot affect the law here. Taylor v. Carpenter, 2 Woodb. & M., 1.

§ 150. By the laws of Spain" is to be understood the will of the king expressed in his orders, or by his authority, evidenced by the acts themselves; or by such usages and customs in the provinces as may be presumed to have emanated from the king, or to have been sanctioned by him, as existing local laws. Mitchell v. United States, 9 Pet., 711.

I. IN GENERAL.

SUMMARY- Reformation of deed, §1.- Vendees chargeable with notice of trust, § 2.— Trust for benefit of husband and wife; bankruptcy of husband, § 3.

§ 1. When it appears that land was purchased upon certain trusts, which by mistake were not declared in the deed, the deed will be reformed at the suit of the cestui que trust. Walden v. Skinner, §§ 4-6.

§ 2. By an ante-nuptial contract land was conveyed to S. in trust for the benefit of the prospective wife and her children. It was further provided that the trustee could sell the lands conveyed and purchase other lands if he should deem that to be for the interest of the beneficiaries, which lands should be held on the same trusts. S. was indebted to V. on a decree of foreclosure on certain lands owned by him, and sold the trust lands, taking a satisfaction of his indebtedness to V. in part payment. The husband of the beneficiary sanctioned the arrangement and removed to lands owned by S., but which were not conveyed or charged with the trust, and finally removed from them, and no lands were ever actually purchased. Held, that the lands in the hands of V. were chargeable with the trust, as part of the purchase price went to pay an individual debt of S., and as he knew of the terms of the trust and was chargeable with notice that no other lands were purchased with the proceeds. Held, also, that grantees of V., who were chargeable with notice, also held the lands charged with the trust. Wormeley v. Wormeley, §§ 7-10.

§ 3. W. deposited with a trust company a sum of money in trust to pay the income thereof, during the life of his son and his son's wife, to his son or his son's wife for their support, and the support and education of their children. Both principal and annuity were declared inalienable and not subject to the debts or control of the son or his wife. The son having become bankrupt, it was held that the son took as a sub-trustee, and that his assignee did not take any interest in the annuity, and that although he would have some benefit therefrom no aliquot part could be set apart for the use of the creditors. Durant v. Mass. Hospital Life Ins. Co., § 11-13.

[NOTES.-See §§ 14-52.]

WALDEN v. SKINNER.

(11 Otto, 577-590. 1879.)

APPEAL from U. S. Circuit Court, Southern District of Georgia.
Opinion by MR. JUSTICE CLIFFord.

STATEMENT OF FACTS.- Trusts are either express or implied, the former being such as are raised or created by the act of the parties, and the latter being such as are raised or created by presumption or construction of law. Cook v. Fountain, 3 Swanst., 585, 592. Implied trusts may also be divided into two general classes: First, those that rest upon the presumed intention of the parties. Secondly, those which are independent of any such express intentions, and are forced upon the conscience of the party by operation of law. 2 Story, Eq. Jur., sec. 1195.

Sufficient appears to show that Sarah S. Walden, the complainant, on the 6th day of May, 1874, filed her bill of complaint in the court below against the respondents, to wit, Darius S. Skinner and John N. Lewis and Charles S. Hardee, executors of Charles S. Henry, deceased, who in his life-time was the trustee of Penelope W. Tefft and her three children. Preliminary to the charging part of her complaint she alleges and states that on the 28th of October, 1847, she intermarried with William P. Tefft, who on the 9th of August, five years later, departed this life intestate and without children, leaving the complainant as his sole heir and legal representative; that on the 4th of June, six years subsequent to the death of her first husband, she intermarried with Charles C. Walden, who on the 8th day of December of the next year, departed this life testate, leaving no children by the complainant, and that he by his will bequeathed to her all the property and rights owned and possessed

by her at the date of their marriage; and that the father of her first husband died intestate on the 30th of June, 1862, but that no administration was ever had upon his estate, and that his widow, the mother of her first husband, departed this life testate on the 11th of September, eleven years later; that her first husband had two brothers at the date of her marriage, neither of whom ever married, and both of whom died without children; that at the death of the elder of the two he had a life policy of insurance for $5,000, which his administrator collected and paid to his two living brothers.

Allegations then follow in the bill of complaint which relate more immediately to the subject-matter of the controversy, from which it appears that Elias Fort, June 28, 1831, conveyed a certain tract of land to Charles S. Henry and Stephen C. Greene, as trustees and in trust for Penelope W. Tefft and her three sons, William P. Tefft, Henry D. Tefft and Charles E. Tefft, and it is therein declared that the said property is for the use of the mother during her life-time and the three sons, and that after the death of the mother it shall be for the use of the three sons alone as tenants in common, and that in case of sale "the proceed to be re-invested upon the same uses and trusts as aforesaid, and if not sold, then the property after the death of the mother was to be distributed by said trustees to each of the said sons as shall survive and attain the age of twenty-one years."

Greene, one of the trustees, subsequently died, leaving Charles S. Henry the sole surviving trustee under the trust deed, and she charges that on the 19th of July, 1848, the mayor and aldermen of the city of Savannah conveyed to him as such trustee a certain lot of land numbered 5, Monterey Ward, in said city, the lot being then subject to certain annual ground-rents, as specified in the conveyance, and the complainant avers that the conveyance is informal and incomplete, inasmuch as the trustee never signed it as it was intended, and that it fails to set forth and express the trust interests of the three children as it should do. Wherefore she alleges that it should be reformed and be made to conform to the purposes of the trust as created and set forth in the original trust deed.

Persuasive and convincing reasons in support of that request are alleged which will hereafter be reproduced when the merits of the controversy are considered. Relief specific and general is prayed, as is more fully set forth in the transcript. Process was served and the respondents appeared, and after certain interlocutory proceedings filed separate answers.

All of the defenses to the merits are set up in the answer of the first-named respondent, who admits all of the preliminary matters alleged in the bill of complaint. He also admits that there was in existence at the time of the first marriage of the complainant the trust estate held by the surviving trustee arising under the conveyance from Elias Fort to the said two trustees, which, as he alleges, was held for the sole and separate use of the mother during her life, and remainder at her death to her three sons as tenants in common.

Prior to that transaction there is no controversy between the parties as to the facts, and he also admits that the authorities of the city conveyed the lot called Monterey Ward to the surviving trustee, but he alleges that by terms of the conveyance the legal title to the lot vested in the trustee in trust for the sole and separate use of the mother, the trust being executory only so long and for such time as the cestui que trust should remain a feme covert; and he denies that the conveyance is informal and incomplete in any particular, or that it was ever expected or intended by any one that the trustee should sign

the same, and he avers that it was accepted by the trustee for the purposes therein set forth.

Attempt is also made to enforce that view by a specific denial of most of the reasons assigned in the bill of complaint in support of the request that the conveyance to the trustee of the lot called Monterey Ward may be reformed so as to conform to the trusts created and expressed in the antecedent trust deed. Both of the other respondents allege that they are citizens of the state where the suit is brought, and deny that the circuit court had any jurisdiction to make or execute any order, judgment or decree against them in the premises.

Proofs were taken, the parties heard, and the circuit court entered a decree in favor of the respondents, dismissing the bill of complaint. Prompt appeal was taken by the complainant to this court, and since the appeal was brought up she has filed the assignment of errors set forth in the brief of her council. They are ten in number, all of which will be sufficiently considered in the course of the opinion, without giving each a separate examination.

Before examining the questions presented in respect to the second deed, it becomes necessary to ascertain the true construction and meaning of the original trust deed so far as respects the second trust therein created and defined. Eight hundred dollars constituted the consideration of the conveyance, and it was made upon the trust that if, during the life-time of the mother of the three sons, it should be deemed advisable by her to sell and convey the premises, then upon this further trust that the trustees as aforesaid, or the survivor of them, upon her application and without her consent, signified by her being a party to the conveyance, will sell and convey the lot and improvements for the best price which can be obtained for the same, to any person or persons whatsoever, without applying to a court of law or equity for that purpose to authorize the same, and the proceeds thereof upon the same trusts as aforesaid to invest in such other property or manner as the mother of the sons shall direct and request for the same use, benefit and behalf.

Explicit and unambiguous as that provision is, it requires no discussion to ascertain its meaning; nor is it necessary to enter into any examination of the third trust specified in the conveyance, as it is conceded that the trust property was sold by the surviving trustee for re-investment during the life-time of the mother at her request, she joining in the conveyance as required by the terms of the instrument creating the trust.

Twenty-four hundred dollars were received for the conveyance of the trust property, and all of that sum, except $600 turned over to the mother, was invested in buildings then being erected upon lot numbered 5, called the Monterey Ward. Purchase of that lot had previously been made by the surviving trustee named in the original trust deed, and it appears that the parties understood that it was to be upon the same uses and trusts as were contained in the trust deed by which the title to the lot sold was acquired.

Proof that the new lot numbered 5, called Monterey Ward, was purchased by the father and the three sons during the life-time of the father seems to be entirely satisfactory, and it is equally well established that each contributed one-fourth part of the sum of $240 paid for the purchase money of the lot. Satisfactory proof is also exhibited that Henry D. Tefft, one of the three brothers, died August 13, 1849, unmarried and intestate, and that he had a valid subsisting insurance upon his life in the sum of $5,000, which his administrator collected and paid to his surviving brothers.

Eighteen hundred dollars of the proceeds arising from the sale of the property acquired by virtue of the first trust deed were appropriated towards erecting buildings on the new lot purchased by the father and the three sons while in full life, and when the one whose life was insured deceased, the two survivors appropriated each his proportion of the money received to the same purpose, with the understanding that the property was subject to the same uses and trusts as the property previously acquired and sold.

Competent proofs of a convincing character are also exhibited in the transcript that the first husband of the complainant contributed other sums towards completing the buildings, leaving no doubt that he paid his full proportion for the improvements as well as for the lot purchased of the city authorities.

Enough appears to show that the buildings were completed more than two years before the first husband of the complainant died intestate and without children, when it is obvious that she became the sole heir to all the interest he possessed in the said estate, whatever it might be. Two years elapsed after the buildings were completed before the father of the three sons died, and the proofs show that during that period the complainant resided with the parents of her husband, and that her rights as his heir-at-law were uniformly recognized by the family; that she continued to reside there with her mother-in-law after the death of the senior Tefft, until the decease of his widow, and that throughout that period she paid one-half of all repairs, taxes, insurance and other expenses of the property, as if she were equally interested in the same with her mother-in-law and was liable to bear an equal proportion of all such expenses.

Opposed to that is the proof that the mother-in-law, one year before her death, when in a low and depressed frame of mind, bequeathed the whole of the lot in question to the first-named respondent, who is her nephew, and on the same day executed a deed to him of the entire property, to take effect in possession after her death. Sole title to the premises in fee-simple is claimed by the respondent under those instruments, and he brought ejectment against the complainant to dispossess her of the premises, and it appears that she was at great disadvantage in attempting to defend the suit, because the trustee had omitted to see that the title was conveyed in trust for the benefit of the cestuis que trust as in the prior trust deed, as he should have done to carry into effect the understanding of all the parties to the sale of the prior trust premises and the purchase of the lot in question. What she alleges is that the purchase of the new lot was made for the same cestuis que trust as those described in the deed of the old lot, and that the understanding of all was that the deed of the new lot should contain and declare the same uses and trusts in favor of the same persons, and the proofs to that effect are full and entirely satisfactory.

Support to that view is also derived from the fact that the surviving trustee in the old deed is the grantee in the new deed, and that he is therein more than once described as trustee, and in the introductory part of the instrument is denominated trustee of Mrs. Penelope W. Tefft, wife of Israel K. Tefft, of the city and state previously mentioned in the same instrument.

Ten years before the suit was instituted the trustee in the new deed departed this life, and the other two respondents were appointed and qualified as his executors. Unable to obtain complete redress at law, the complainant prays that the deed of conveyance from the city of the lot and improvements in question may be reformed and be made to conform to the true intent and pur