Thompson et al. v. Scott et al.

Though the decision in Lewis v. Graves is apparently against appellants, yet when we consider the two together as parts of one whole, the reasoning is rather the other way.

In Lewis v. Graves, the declared intent in writing is treated as non-existing. In Morrison v. Brown, as creating the lien, the former is treated as a case of declaring a lien on real estate by decree in equity to secure an unsecured note. The latter treats the written statement placed on record as creating a lien to be enforced in equity, and notice of the writing by recording, is notice of the lien in equity. In the former, as well as in the latter, the writing was recorded, and if the writing in either case created the equity, there was constructive notice. In the case at bar, it was both actual and constructive. It seems to us that the fallacy in Lewis v. Graves, if there be one, is in not considering the writing as creating the lien, because it was not merely a contract in writing, but because it was also in a deed. In this regard the two cases conflict. There was a distinction between Lewis v. Graves and Bressler v. Kent, not noticed in the opinion on page 205 of the 84th Ill. There was a question whether Mrs. Winters, whose husband lived in Iowa, was a sole trader, according to our decisions, and capable to contract as such. Anderson v. Jackson, 66 Ill. 522; Love v. Moynehan, 16 Ill. 277; Prescott v. Fisher, 22 Ill. 390.

The case at bar is infinitely stronger for appellants than Morrison v. Brown was for Mrs. Brown. There is no mistake in this case about the writing having been intended to create a lien for the unpaid purchase money, and that appellees not only so understood it, but that they actually deducted the amount from the price they paid, and agreed to pay it as a part of their purchase money. Can it be that under such circumstances they can keep the land and not pay the agreed price? Are courts of equity established to foster, protect and encourage the very converse of the name they bear? The case of Hatch v. Morris, 3 Ed. Ch. (N. Y.) 313, is one like Morrison v. Brown, and the latter seems to us just like the one under consideration, except not as strong for appellants as this, for the reasons above stated. The mortgage in the New

Thompson et al. v. Scott et al.

York case was that of a married woman, invalid as a conveyance of real estate, because her husband did not join in its execution, but upheld as a contract by her, creating an equitable lien, because, to use an expression found in Lewis v. Graves, she had expressed her desire to create such a lien by her act in signing the mortgage.

The vice chancellor very justly says: "Indeed, in equity there is a lien for unpaid purchase money as between vendor and vendee and all subsequent purchasers and mortgagees with notice." Whether the doctrine of Bressler v. Kent and Lewis v. Graves may be sound or not, is perhaps a question which we ought not to consider too curiously. Be that as it may, it would be monstrously inequitable to say in this case to appellees, alleged to be insolvent, keep your land and the main portion of the price you actually agreed to pay for it; that if there be any remedy for such injustice, it is not to be found in a court of equity and good conscience.

We think there are distinguishing features enough between this case and those of Cole v. Van Riper, Bressler v. Kent and Lewis v. Graves, not to render it necessary to shock our sense of justice by an affirmance of the decree in this case.

If, however, the decisions were just in point, we would feel bound by them, knowing full well that a general principle ofttimes operates unjustly in a particular case, and that it is the yielding to the pressure in bad cases which makes bad law. Appellees Ward and Pulver having actual notice of the unpaid purchase money, and having assumed to pay it, whether the mortgage is a good contract in equity, or an absolute nullity, there is a vendor's lien here for an amount which appellees Ward and Pulver have agreed to pay. Equity and good conscience require that they should do as they agreed to.

The decree is therefore reversed and the cause remanded. Reversed and remanded.

INDEX.

ACCEPTANCE.

WHAT CONSTITUTES.

1. Must correspond with offer.-An acceptance, to be good, must in
every respect meet and correspond with the offer made, neither falling
within nor going beyond the terms proposed, but exactly meeting them
at all points and closing with them just as they stand. Fox v. Tur-
153

ner,

2. Time of, when made by letter.-The acceptance of a proposition
communicated by letter, is complete on the delivery of such accept-
ance to a messenger to be carried to the proposer, and the contract is
binding from that point of time and not from the date of its delivery
to the proposer. Fox v. Turner,

ACTIONS.

VENUE.

153

1. In Local.-Where an injury has been caused by an act done in
one county to land situated in another, the venue may be laid in either,
in an action before a justice of the peace. Pilgrim v. Mellor,
WHEN TO BE BROUGHT.

448

2. Premature performance of condition precedent.- Where the
money, which formed the subject matter of this suit, was to be paid upon
the dismissal of a suit then pending, an action begun before dismissal
of such former suit, is premature. Fabbri v. Cunio,

ADMINISTRATION OF ESTATES.

SURVIVING PARTNER.

240

1. Statute relating to duties of.-The statute of this State relating
to the duties of a surviving partner in the management of the partner-
ship estate, is but declaratory of what the law was before its enactment.
It provides some additional remedies, but does not change the rights or
duties of the parties, only the mode of performing them. Forrester,
Ex. v. Oliver, Adm'r, et al.,

259

2. Liable for losses-Common law rule.-The death of one mem-
ber of the firm works a dissolution of the partnership, and terminates the
power of the surviving partner to carry on the business, or to engage in
new transactions, contracts or liabilities on account thereof. If he contin-
ues the business, it is at his own risk, and he will be liable to account
for the profits made, or to be charged with interest on the deceased part-
ner's share of the surplus, besides bearing all losses. Forrester, Ex. v. Oli-
ver, Adm'r, et al.,

259

ADMINISTRATION OF ESTATES.

SURVIVING PARTNER. Continued.

3. Relation of surviving partner to the legal representatives of deceased partner. On the death of one member of the firm, the relation of trustee and cestui que trust is created between the surviving partner on the one hand, and the legal representatives of his deceased partner and the creditors of the firm on the other; the terms of the trust being, that he will, without delay, proceed to close up the business of the firm as required by statute. Forrester Ex. v. Oliver, Adm'r, et al., 259 EXECUTION AGAINST EXECUTRIX.

4. General execution cannot be awarded.—It is irregular to award a general execution against an executrix; the judgment should be made payable in due course of administration. Rauh, Exr., v. Ritchie, Exr.,

ADULTERY.

CONDONATION.

188

1. Subsequent cohabitation.-Condonation of the adulterous act will not be inferred from the fact of subsequent cohabitation, where it appears that at the time of such cohabitation the former adulterous act was unknown. Phillips v. Phillips, 245

ADVANCING CAUSE.-SEE PRACTICE.

AFFIDAVIT.

OF PLAINTIFF'S CLAIM.

1. Insufficiency.-An affidavit of plaintiff's claim, "that there is due to the plaintiff after allowing all just deductions and set-offs, $584.62, with interest from December 28, 1877," does not state the amount due, nor such facts as furnish the basis for a calculation of the amount due, and is insufficient. Gottfreid v. German Nat. Bank, 224

AGENCY.

DECLARATION OF AGENT.

1. Made in the course of employment.-Where an agent, employed in negotiating the sale of a promissory note, makes statements regarding the purpose for which the same was executed, the making of such statements will be considered fairly within the scope of his agency, and will bind his principal; the general power to negotiate will by implication include the power to give such information as would ordinarily be be called for. McBean v. Fox et al., RATIFICATION.

177

2. Acting with full knowledge. Before a person can be held to have ratified, by his conduct, the voluntary act of another, done for his benefit, it must appear that he acted with full knowledge of all the material facts and circumstances connected with the assumed agency. Stein v. Kendall,

103

3. By silence.-While the mere silence of a principal may, under some circumstances, be deemed a ratification of the acts of a pretended agent, yet a mere failure to disavow such acts instantly upon being