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allowed in mitigation of damages, even though identical bank bills were sent to
plaintiff. Morgan v. Kidder, 693. TRUST AND TRUSTEE. Sce AssignMENT, 10. Equity, 2. Gift, 3. LIM
ITATIONS, STATUTE OF, 12. MORTGAGE, 4. PARTNERSHIP, 14. WILL, 1, 5, 6, 12, 15.
1. If one person purchases land with money of another, and takes deed in his own name, though done by verbal agreement, a resulting trust arises, enforceable in court of equity. McNamara v. Gurrity, 624.
2. If legatee and cestui que trust fraudulently receives from executor and trustee part of principal, and converts it to his own use, subsequent trustee may retain, out of income afterwards coming to cestui que trust, the amount so converted. Crocker v. Dillon, 218.
3. Where power of sale is given to raise particular charge only, and purpose can be answered better by mortgage than by sale, and that method is not violative of intention of grantor, the former mode of raising the money should be preferred. Lobenthil v. Raleigh, 282.
4. Will creating trust contained following clause : “My said trustee shall have power to invest, and change the investment of said moiety, and for that purpose to sell, convey and dispose thereof, or any part thereof, as often as he may think proper." Held, 1. That this did not authorize trustee to mortgage property, to secure repayment of loan. 2. That cestui que trust, on arriving at age, could, with full knowledge of law and facts, confirm such a mortgage. Wilson v. Life Ins. Co., 817.
5. Words in will " at the decease of my wife, Esther, I give and bequeath all my estate, real and personal, for the preaching of the gospel of the blessed Son of God, as taught by the people known now as Disciples of Christ. The preaching to be well and faithfully done in Lorain county, in Birmingham, and at Berlin, in Erie county, Ohio, and I nominate and appoint John Cyrenius, Silas Wood and Samuel Steadman, executors of this item of my last will and testament, and I request them to do the business without remuneration,” create a valid trust. Sowers v. Cyrenius, 350.
6. One cannot settle property in trust to pay income to himself for life with provision against alienation by anticipation, so as to prevent creditors reaching the income by bill in equity, and this rule applies to married woman settling her separate property after marriage, where she has the right to make contracts as if sole. Pacific Nat. Bank v. Windram, 350.
7. Donor may settle property in favor of third person with provision against alienation of income by anticipation or subjection of same to creditors in advance of payment, although there is no cesser or limitation in such an event. Broadway Nat. Bank v. Adams, 350.
8. Widow set apart portion of husband's insurance money, in trust for infant daughter, to be paid her on reaching majority, and loaned same, the notes and mortgages running to herself as trustee for daughter. With portion of fund she afterwards purchased land, taking deed in same way. This real estate was by her procurement conveyed, through third person, to her second husband (who had full knowledge of the trust) without consideration. On bill filed by daughter after ariving at full age, held, 1. That mother was trustee for child ; 2. That trust of personal property is not within Statute of Frauds ; 3. That trust was not revocable ; 4. That trustee of personal property cannot rightfully change same into real estate ; but when so changed the property will be subject to trust in hands of grantee without consideration and with notice. Cobb v. Knight, 287.
9. Orator was trustee under deed of trust, acting from 1865 to 1880. He boarded his ward, who was non compos mentis, acting as his guardian, though not legally appointed, and owed him note of $800, given in 1864. Trust property consisted of real estate, which on death of beneficiary, without children, was to be divided between heirs of grantor, of whom trustee was one. Beneficiary having deceased, in settlement of administration in chancery between trustee and other heirs, Veld, 1. Trustee cannot plead statute of limitations as to note. 2. Only income of trust property could be appropriated to support of ward until his other property was used up. 3. Annual balance TRUST AND TRUSTEE.
of trustee's appropriations in behalf of ward above income of trust property law will apply on said note. Chamberlin v. Estey, 817.
10. Testator willed both realty and personalty to each of two sons : afterwards he added following, in codicil : “I do hereby revoke the said legacies by my said will given to my said son, Jerome C. Bacon, and I do give to my son, Delos M. Bacon, all of said legacies in trust, as follows: That the same be kept by the said Delos M., until in the judgment of the said Delos M., the said Jerome C. shall prove himself worthy of receiving the same, and then and not till then to deliver the same to the said Jerome C. Bacon. It is further my will that if my said son, Delos M. shall not at any time judge it best to deliver said property to my said son Jerome C., that the same shall be and remain the property of my said son, Delos M., and his heirs forever.” Held, that there was an express trust for benefit of Delos M., on condition that he proves himself worthy, of which trustee is made judge, but that court will control his judgment and discretion to extent of compelling an honest exercise thereof. Bacon v.
Bacon, 694. UNDUE INFLUENCE.
To influence weak-minded person to do what is just and for his best
good, is not unlawful. Dailey v. Kastel, 288. UNITED STATES. See INTOXICATING LIQuors, 1. National Banks, 7.
1. Subject to same exemptions as private persons in executions in civil actions. Fink v. O'Neil, 223.
2. Under schedule D. of sect. 2504, Rev. Stat., bottles in which ale and beer are imported are subject to duty of 30 per cent. ad valorem, in addition to the duty of thirty-five cents per gallon on the ale and beer imported in the bottles. Schmidt v. Badger, 552.
3. United States cannot be sued except where congress has provided for it; but its officers and agents are not thus exempt when sued for property in their possession as such. Kaufman v. Lee, 79.
4. Constitutional provisions that no person shall be deprived of life, liberty or property without due process of law nor private property taken for public use without just compensation, bind the courts to give remedy for unlawful invasion of rights of property by officers of any branch of the government. Id.
5. Such suits are always removable to the United States courts. Id.
6. Under Act of Congress of August 5th 1861, exporter of articles manufactured from imported materials was entitled to drawback equal in amount to duty paid on such materials, less ten per cent., “ to be ascertained under such regulations as shall be prescribed by the secretary of the treasury." Regulations were duly established, but in this case, collector, under instructions from secretary, refused to act. Held, that exportor's right could not be thus defeated, and that Court of Claims had jurisdiction. Campbell v. United States, 694.
7. Under sect. 2499 of Rev. Stat., when article is found not enumerated in tariff laws, first inquiry is whether it bears similitude in material, quality, texture or use to any article enumerated ; if it does, and similitude is substancial, it is deemed the same and charged accordingly. If nothing such is found inquiry is as to component materials and duty is at highest rates chargeable on
any of same. Collector v. For, 694. UNITED STATES COURTS. Sec COMMON CARRIEK, 14. CORPORATION, 18,
22. ERRORS AND APPEALS, 2. MUNICIPAL CORPORATION, 7. REMOVAL of Causes. UNITED STATES, 6.
1. Owner of coupons payable to holder, not assignee within Act of March 3d 1875, and therefore his right of suit in federal court does not depend upon citizenship of any previous holder. Thompson v. Perrine, 223.
2. Michigan corporation needing to sue city of Detroit, local prejudice was feared, and directors refused to institute proceedings, and thereupon stockholder and director residing in New York brought suit in United States Circuit Court. Held, that circumstances showed refusal of directors to be collusive, and that suit must be dismissed as at least within purview of sect. 5 of Act of March 3d 1875. Detroit v. Dean, 223.
UNITED STATES COURTS.
3. While Illinois statute giving right of redemption, first to mortgagor, then to judgment creditors, is rule of property obligatory upon federal court, it can by rules prescribe mode in which redemption from sales under its own decrees may be effected. Ins. Co. v. Cushman, 757.
4. When maker of promissory note negotiable by law merchant secures it by mortgage made by himself to payee, and both are citizens of same state, endorsee of note can, since Act of March 3d 1875, c. 137, sue in U. S. Courts to foreclose mortgage. Treduay v. Sanger, 488.
5. Illinois statute was construed by Supreme Court of Missouri, and that decision afterwards pleaded by way of estoppel in another suit, in state court of Missouri, between same parties, where precisely same question was raised. Allegation was made that full faith and credit had not been given to public acts of state of Illinois by decision in question, and suit removed to U. S. Court. Held, that mistake in decision of first case could only be corrected by proceeding instituted directly for that purpose, that operation of judgment in that case as estoppel in this did not depend on constitution or laws of United States, but on effect of judgment under laws of Missouri, and that there was consequently
no right of removal Railroad Co. v. Ferry Co., 694. USURY. See AssiGNMENT, 4. National Banks, 2.
1. A usury statute avoided the interest only and a subsequent constitution abolished all usury laws. Held, that as to contract made while usury statute was in force the constitution took away the defence. Ewell v. Daggs, 350.
2. Citizen of one state may contract in another for loan of money to be used in his own state, and agree to pay interest lawful by laws of latter state though in excess of that allowed in state where contract is made. Scott v. Perlee, 469.
3. In such a case it is not essential that note should be expressly made payable in state where maker resides; all the surrounding circumstances will be examined to ascertain whether parties intended, in good faith, to contract with
reference to laws of that state. Id. VENDOR AND VENDEE. See COVENANT, 3, 4. DAMAGES, 7.
1. Purchaser of equitable title to land takes subject to all equities between vendor and holder of legal title at time of purchase. Jasper Co. v. Tavis, 351.
2. Taking of trust deed by vendor of land is waiver of implied lien for purchase-money, and the same becomes his sole security. Ryhiner v. Frank, 424.
3. One purchasing land and receiving deed of general warranty, without knowledge of mortgage made by grantor, which, however, was duly recorded, acquires only equity of redemption, notwithstanding fact that mortgagee, from time to time, after purchase, for valuable consideration, extend time of payment until mortgagor becomes insolvent. Kuhns v. McGea, 223.
4. Upon bill for rescission of sale of land, alleging that vendor falsely represented it contained valuable iron-ore, defendant denied upon oath that such representation was made ; but court, upon proof that complainant purchased land for mining, that ore was valueless, that price was $2500, and land worth only $250, declared inadequacy so gross as to amount to fraud, and rescinded
sale. Peacham v. Reagan, 223. VERDICT. See Tort. VOLUNTARY CONVEYANCE. See DEBTOR AND CREDITOR, 10, 11. WAGER. See Contract, 12, 13. INSURANCE, 6, 21. WAGES. See ATTACHMENT, 1, 8. WAIVER. See INSURANCE, 4, 24. SALE, 4. WARRANTY. See Bills and Notes, 20. NSURANCE, 20. LANDLORD AND
TENANT, 3. Sale, 1. VENDOR AND VENDEE, 3.
1. WARRANTIES IMPLIED IN SALES OF PERSONAL PROPERTY IN THE UNITED STATES AND CANADA, 85, 153, 225.
2. EXPRESS WARRANTIES IN SALES OF PERSONAL PROPERTY IN THE UNITED STATES AND CANADA, 553.
WASTE. See Trespass, 1.
Action will lie against tenant from year to year for permissive. Newbold v.
1. Person owning land abutting on river and through which creek flows and empties into river, may, as against proprietors on opposite side of river, change channel and mouth of creek upon his own land, if he exercises reasonable care and caution, and if increased danger of overflow might not reasonably be anticipated therefrom. Railroad v. Carr, 224.
2. Riparian owner cannot, except as against himself, confer on one who is not riparian owner any right to use water of stream. Ormerod v. Mill Co., 757.
3. Owner of land not abutting on river, with license of riparian owner, took water from river and after use returned it undiminished and unpolluted. Held, that lower riparian owner could not obtain injunction. Kensit v. Railroad Co.,
1. In absence of express grant, adverse, exclusive and uninterrupted enjoyment of right of way for twenty years is necessary: and when so established, same length of time is necessary to lose it by abandonment. Cor v. Forrest, 758.
2. Use of way over land of another, whenever one sees fit, and without asking leave, is prima facie adverse. Id.
3. By “exclusive," law does not mean that right of way must be used by one person only, but simply that right should not depend for its enjoyment upon siinilar right in others. ** Uninterrupted and continuous enjoyment” only means that party exercises the right more or less frequently, according to nature
of use, and without objection on part of owner of land. Id. WHARF AND WHARFAGE.
1. Power to erect wharves and charge wharfage not one of implied powers of municipality nor deducible from authority to regulate streets, lanes and alleys, and to make laws and regulations for good order and government. The Geneva, 584, and note.
2. Where municipal corporation is riparian proprietor it may charge wharfage, but not if wharf extends beyond low-water line, and is principally constructed on line of public street. Id.
3. Wharves, their construction and management. Id., note.
4. Where under port regulations of Savannah, two vessels were allowed to lie abreast at wharf, and, for sake of convenience, cargo was carried directly from one to other without being landed, it being unvarying interpretation that such transhipments included both landing and shipping, wharf owner would have right to charge rates allowed for landing and shipping in absence of contract to contrary.
Robertson v. Wilder, 224. WILL. See ContrACT, 18. EXECUTORS AND ADMINISTRATORS, 1. REMOVAL
OF Causes, 11.
1. Provision establishing fund for preservation, adornment and repair of private monumental structure is void, as creating perpetuity for use not charitable. Bates v. Bates, 695.
2. Right given by will, to sell property for object which cannot be accomplished, cannot be exercised. Id.
3. If will, duly executed and containing clause revoking former wills, is cancelled, it is question of intention, to be collected from all the circumstances, whether earlier will, not destroyed, is revived : in absence of affirmative evidence that such was testator's intention, it will be held not to be. Pickens r. Davis, 695.
4. Oral declarations made after cancellation, admissible to show intention to revive former will. Id.
5. The rule in Shelley's case gives way to clear intention of testator or donor, when that intention can be ascertained from instrument in which words supposed to be words of limitation are used. Belslay v. Engle, 818.
6. Where language shows clear intent to devise fee to wife, words of recommendation or suggestion or advice as to management or occupation of the lands Purker v.
by family, contained in other clauses, will not limit her estate. Hoxsey v. Horsey, 759.
7. Where first taker in lands has absolute estate, limitation over, by way of executory devise, is bad. Id.
8. If testatrix has given instructions for will, and it is prepared in accordance with them, will is valid though at time of execution she merely recollects giving the instructions, but believes that will is in accordance with them.
Felgate, 758. 9. Where testator devises all his property to wife for life or widowhood, and directs that upon her death or marriage, same be equally divided between his children, their heirs and assigns forever, children take by purchase and not by descent. Donnelly v. Turner, 758.
10. Exclusive owner of property can enter into contract to execute will in favor of other contracting party. And if will so executed be cancelled, aid of court of equity can be invoked,
Burns, 758. 11. But where power of disposition by will is given to person having no reversionary interest, attempted execution of power by will made in conformity with alleged contract, is invalid. The power is not thereby exhausted, and such will is revoked by subsequent will duly admitted to probate. Id.
12. Where devise was to trustees for use and benefit of testator's daughters, without any words of limitation or perpetuity, Held, 1. That it made no difference that property was left in hands of trustees. 2. That since Maryland act of 1825, a general devise in which words of limitation or perpetuity are omitted, will pass whole interest of testator, in absence of contrary intention. Fairfax v. Brown, 759.
13. Testator directed all his property to be sold. He bequeathed to T. B. H., as guardian of his son, $1500 of proceeds to be expended in son's education, as guardian might think proper. In will was following clause: “I will and direct that the balance of said proceeds, after deducting said several sums hereinbefore named, if any, be divided equally between my brothers.” Held, that balance of said $1500 unexpended on arrival at age of son, belonged to son. Nyce v. Nyce, 351.
14. Probate of will in another state is judicial proceeding to record of which faith and credit is to be given, when authenticated as required by Act of Congress. Bradstreet v. Kinsella, 351.
15. Testator declared it to be his will and desire that his wife should have certain lands, " with a special request that at her death she give the said lands to be equally divided between her near relatives and mine." The wife having died without disposing of property, Held, that trust was created for benefit of
near relatives” of wife and testator in equal proportions, and that “near relatives" meant those who would take under statute of distributions. Hand
ley v. Wrightson, 817. WITNESS. See CRIMINAL LAW, 4, 7. EVIDENCE, 9–11. PROCESS, 1.
Where witness on cross examination, being asked questions, which answered affirmatively, would tend to degrade and disgrace him, avails himself of privilege accorded by court and declines to answer, he can not be asked “why ?” Merluzzi v. Gleeson, 351.
END OF VOL. XXXI.