shares attempted to assign the lease and failed. There evidently the lessor relied

on the personal quality and character of the lessee on shares. In Lansden v. McCarthy, 45 Mo. 106, a coachmaker, who had a secret partner unknown to the other party, contracted to furnish McCarthy a carriage for use for the term of five years at a given price per year, payable in advance. At the end of three years, the coachmaker assigned the contract to his secret partner. It was held that McCarthy was not obliged to continue the contract with the assignee. In other words, he was not obliged to pay a stranger in advance for the use of the carriage, nor was he obliged to deal with the stranger in any way.

It seems to me that these principles, thus illustrated by adjudged cases, are conclusive in favor of the complainant, and I must advise a decree rescinding the contract, unless another point made by the defendant has some substance, viz., that the contracts in question by their terms are made assignable. One contract, dated the 19th day of February, 1900, is expressed to be between Lizzie E. Wooster and Crane & Co. and their successors and assigns, a corporation, Shawnee county, state of Kansas. Then, after recitals in this clause, "therefore this agreement witnesseth that the said Lizzie E. Wooster, having full power to make this grant, hereby agrees that the said Crane & Co. have the exclusive right to publish and print the said books or any revised edition thereof during the full term of copyright thereof and during the full term or terms of any renewals of said copyright." Then Miss Wooster agrees to defend the copyright and to bear the cost of illustration and metal plates, and Crane & Co. have the right to sell editions or duplicate plates in foreign countries; and the contract proceeds: "The above agreements are made with the understanding that the said Crane & Co. and their representatives and assigns shall in substantial good faith keep and perform their agreement hereinafter contained." Then follows the covenants on the part of Crane & Co. that they will publish the books and pay Miss Wooster 10 per cent. of the cash receipts as royalties, and will render semiannual statements. The next agreement is that of the 15th of March, 1900, in which the parties are described as in the previous contract, and then, after a recital of the books, Miss Wooster agrees that Crane & Co. shall have the exclusive right to publish and print the said books or any revised edition thereof during the full term of the copyright thereof, and during the full term and terms of any and all renewals of said copyright. Then, like the previously recited agreement, there is a clause that these agreements are made with the understanding that Crane & Co. and their legal representatives and assigns shall keep and perform that agreement. Then comes the contract by Crane &

Co. to publish and pay royalties, etc. Upon careful consideration, I am unable to give to the presence of the word “assigns,” as above quoted, the force the defendant claims for it. I am unable to construe it as a contract on the part of Miss Wooster to deal with anybody to whom Crane & Co. may assign that contract, and to accept such assignee as paymaster. It will be observed that, wherever there is a covenant on the part of Crane & Co. to do anything on its part, the weight of the covenant is placed entirely upon Crane & Co. Upon the whole, I am of the opinion that the only effect of the word "assigns" is to give the right which Crane & Co. have without that word, viz., that their assignee would take whatever interest they had in the contract up to the time of the assignment, precisely as in the case of one partner selling out his interest in the partnership. The result is that I think that the complainant is entitled to a decree of rescission.

It is unnecessary at this time to inquire how far the new corporation, Crane & Co., which is not a party to this suit, is bound by this decree. I have so far assumed that such new corporation has a legal existence, but such existence was earnestly denied by complainant. The defendant, by its answer, and as a part of its defense, alleged its legal existence, and hence the burthen was on the defendant to prove it by competent evidence. The case is not one where the mere fact that it is acting as such is sufficient. The de facto doctrine does not apply. In support of this burthen, the defendant introduced a properly attested copy of articles of association of the stockholders of the defendant corporation (excepting the New Jersey director) on file in a public office in Arizona, but did not offer any proof of the laws of Arizona entitling such filing or declaring that the result thereof was to create a corporation. Seasonable objection was taken to the document without such proof. I have grave doubts whether the proof thus made was sufficient to establish the legal existence of the new corporation. Of course, every corporation owes its existence to statutory law. But I do not find it necessary to determine this question here. The result is the same. whatever may be the proper view of the question.

The other prayer of the bill is for an ac counting. The accounting is prayed for only from the month of April, 1903. The defendant bas annexed to its answer what it affirms is an account of the profits and royalties due to Miss Wooster since that time, amounting to $1,203.28, up to October 1, 1906; the answer having been filed on the 23d of October. 1906. Complainant complains that the account is not complete. As the complainant is entitled to have the account brought down to date, and as the matter must go before a master, an opportunity will there be given to except to the account and have it thoroughly examined. The important question is as to that

part of the answer which sets up that, in a litigation between the parties in a Kansas court, the defendant here obtained a decree against the complainant for the sum of $1,252.39, besides costs, and it claims the right to apply all royalties due to the complainant under the contract between them to the payment of that judgment. At the hearing the defendant attempted to sustain that decree by what purported to be a copy of certain enrolled proceedings in the Kansas court. The complainant's counsel objected to the certification of that document for certain reasons not necessary now to be stated. I have examined the certificate, and the objections made, and come to the conclusion that I ought not to rely upon it or admit it in evidence, and I at once notified the parties that they might correct that defect, or at least apply for leave for that purpose. The result is that the reference to the master should preserve leave to the defendant to make proper proof of the judgment before the master.

It may be well to add that, as I have stated above, the complainant relied as one ground upon which she based her prayer for rescission that defendant had failed to perform its contract by printing and publishing two volumes of her reader. The defendant set up that by this litigation before mentioned that very question had been involved and passed upon by the court, and that it had been decided that the complainant, and not the defendant, was at fault that the last volumes were not printed. A large amount of evidence was gone into on both sides on this question, but I have not considered it, since I found the point of change of party to the contract a clear ground for rescission.

The answer and the evidence disclose other matters in litigation between the parties, both in the state and the federal courts, which show that it is highly improbable that it is practicable for them to maintain to each other those relations which should exist be tween author and publisher.

(75 N. J. L. 73)

HANKS v. WORKMASTER. (Supreme Court of New Jersey. June 17, 1907.) LANDLORD AND TENANT TENANCY FROM MONTH TO MONTH-NOTICE TO TERMINATE.

In the case of a tenancy from month to month, the requirement of a notice to terminate the tenancy is mutual. Neither the landlord or the tenant can terminate such a tenancy except upon proper notice.

[Ed. Note. For cases in point, see Cent. Dig. vol. 32, Landlord and Tenant, § 396.]

(Syllabus by the Court.)

Appeal from District Court of Jersey City. Action by Henry Hanks against Helen Workmaster. Judgment for plaintiff. Defendant appeals. Affirmed.

Argued February term, 1907, before FORT, HENDRICKSON, and PITNEY, JJ.

Merritt Lane, for appellant. William B. Gillmore, for appellee.

FORT, J. This is a suit for one month's rent for the month of July, 1905, for the premises No. 15 Henry street, Jersey City. The district court found in favor of the plaintiff, and gave judgment accordingly. The facts, as returned certified by the judge, are as follows: "The action was to recover the sum of $27.50, for one month's rent, July, 1906, of premises No. 15 Henry street, Jersey City, $27, and one light of glass in same premises, 50 cents. The plaintiff testified that he was the owner of the premises, and through his agent, Percy Gaddis, in April, 1906, the house was rented to defendant; and after May 1st he told defendant he would thereafter act as his own agent, and that he collected the rent for June, 1906, and defendant then said nothing about moving. About the middle of June he received word that defendant would move, and he sent word if she moved he would hold her for the rent. The defendant did move about July 1, 1906, and plaintiff, on going to the premises, found same vacant. Plaintiff testified defendant gave him no notice she was going to leave, nor did she give him the keys. The keys were left at Gaddis, the agent's office. Plaintiff testified that Gaddis was authorized to rent and did rent for one year to defendant. A bill 'to let' was put up, and the premises rented to a new party in August, 1906. On the part of the defendant, the evidence was: She rented for one month, and remained from one month to another month, paying May and June, 1906, rent. See Exhibits D1 and D2. She decided to move about June 17, 1906, and sent her son to tell plaintiff defendant would move, and did move June 22, 1906. The keys were sent June 20, 1906, to the agent, Gaddis, by defendant's daughter, who said, 'All right'; and a bill to let' was then put upon the house. I ruled that on defendant's own testimony she was a monthly tenant, and the landlord entitled to a full month's notice of her intention to move; and, not having received this, defendant was entitled to recover the rent for July, 1906, and gave judgment therefor, viz., the sum of $27, and which was entered accordingly against defendant and in favor of plaintiff."

Under this state of the case, we think the defendant was a tenant from month to month, and that the trial court, accepting her evidence as true, rightly so found; that, being a tenant by the month, the requirement of notice for the purpose of terminating the tenancy was mutual, and that neither the landlord nor the tenant could terminate the tenancy except upon notice. Such notice must be one corresponding with the beginning and ending of the tenancy. It is conceded in this case that notice of the intent to vacate was not given until the 17th of June, and that it was the purpose of the tenant to vacate July 1st. This was not the legal notice, and the

plaintiff was entitled to recover the rent, and there was no error in the judgment. Steffens v. Earl, 40 N. J. Law, 134, 29 Am. Rep. 214; Taylor on L. & T., § 474; Archibald on L. & T., § 87.

The judgment of the district court is affirmed.

(218 Pa. 39)

In re WALLACE'S ESTATE.

Appeal of BRITTAIN. (Supreme Court of Pennsylvania. April 29, 1907.)

ADOPTION-DEED OR DECLARATION.

An indenture of apprenticeship provided that it was the intent of the party of the first part to place, and of the second part to receive, the apprentice as an adopted child of the party of the second part, to be maintained and treated with like care as if he were the child of such party. Held not to constitute the child an adopted son and heir of the master.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 1, Adoption, §§ 12-14.]

Appeal from Orphans' Court, Monroe County.

In the matter of the estate of William Wallace. From a decree dismissing exceptions to the auditor's report, A. R. Brittain, Affirmed. ancillary administrator, appeals.

Argued before FELL, BROWN, MESTREZAT, ELKIN, and STEWART, JJ.

John G. Johnson, Edward R. Loud, and Henry J. Kotz, for appellant. A. Mitchell Palmer and John B. Williams, for appellee.

FELL, J. The question in this case is whether Charles Brandies, whose administrator is appellant, was the adopted son of William Wallace. It appears from the findings of the auditor, approved by the court, that in 1861 William Wallace received from the American Female Guardian Society of New York and took to his home in Stroudsburg, Pa., two orphans, a brother and sister, Charles Brandies and Emily Brandies, aged 8 and 10 years. Both children were afterwards known by the name of Wallace. Neither Mr. Wallace nor his wife wanted the boy, but the society refused to have him separated from his sister. He lived in the home of Mr. Wallace a short time, when he went to the home of Mrs. Huntsman, in the same town. attended school irregularly, and was about Mr. Wallace's place of business, but performing no services for him, until he became 18 years of age, when he went to Michigan to live with Mr. Wallace's brother. He remained there four or five years, when he returned to Stroudsburg, and for a few months acted as a clerk in Mr. Wallace's store. went back to Michigan in 1876, and died there in 1905. After his return to Michigan, he maintained no relation of business or friendship with Mr. Wallace or his family. His conduct had at all times been unsatisfactory to Mr. Wallace, who never expressed an intention to give him the right of an heir.

He

Не

The girl was a member of Mr. Wallace's family until her marriage, and thereafter their relations were friendly and confidential. Mr. Wallace expressed his intention to make her his heir, and in 1902 presented a petition for her adoption as his daughter, which was proceeded with regularly to final decree. He died intestate in 1903.

If there was an adoption of Charles Brandies, it was effected by the agreement under which he was received from the American Female Guardian Society. The important parts of this agreement, following the recital that Charles Brandies had been surrendered by his parents to the society, and that William Wallace had applied to the managers "to put out and place the said child with him by adoption and as an apprentice, until said child shall arrive at the age of twenty-one years," are:

part

"That the parties of the first

do put, place and bind out the said Charles Brandies as an apprentice unto the party of the second part to dwell with and serve him from the day of the date of these presents until the said apprentice shall attain the full age of twenty-one years. During all of which time the said apprentice shall serve * * and shall honestly,

* *

*

*

* * *

*

orderly and obediently in all things demean and behave himself towards his said employer and all others. And the party of the second part doth covenant and agree *** to provide and allow unto the said apprentice meat, drink, apparel, and other things necessary and fit for the apprentice, * and shall cause the said apprentice to be taught and instructed, and shall give to the said apprentice at the expiration of the said term of service a new bible, one hundred dollars in money, and shall cause said apprentice to attend public worship, and shall not allow the said apprentice to be absent from the service of his said master without express leave or suffer him to haunt ale houses, taverns, but will exert his authority to cause and procure the said apprentice to behave himself in all things, as a faithful apprentice ought to do, during the term aforesaid." It is further provided: "That if the said apprentice or indenturing committee shall at any time within three months * * become dissatisfied with his situation or employment, or the party of the second part shall at any time within that period become dissatisfied with the apprentice," the indenture shall be canceled. Thus far it is an indenture of apprenticeship in the ordinary form. The clause of the agreement upon which the appellant's claim is based is as follows: "Although the present instrument binds the above-named child, strictly as an apprentice, it is, nevertheless, the true intention of the parties of the first part to place, and of the party of the second part to receive, said apprentice as an adopted child, to reside in the family of the party of

the second part, and to be maintained, clothed, educated and treated as far as practicable, with like care and kindness as if he were in fact the child of the said party of the second part."

If the fullest meaning of which this clause is susceptible consistent with the before clearly expressed intention of the parties be given it, it refers only to the treatment of the apprentice during the term of apprenticeship. He is to be received as an adopted child would be received, to reside in the master's family, and to be maintained and treated "with like care and kindness as if he were in fact the child of the party of the second part." The relation established was to end when the apprentice became of age. There is not the slightest suggestion of an intention to confer upon him any right of inheritance.

The decree of the court confirming the report of the auditor is affirmed, at the cost of the appellant.

(217 Pa. 386)

TOWNSEND et al. v. BOYD. (Supreme Court of Pennsylvania.

1907.)

1. LANDLORD AND TENANT-ESTOPPEL TO DENY LANDLORD'S TITLE.

Where one comes into possession of land under a title of record proclaimed to be adverse to the landlord, and continues in such possession for over 60 years undisturbed by anybody, the rule that a tenant is estopped from denying the landlord's title does not apply. [Ed. Note.-For cases in point, see Cent. Dig. vol. 32, Landlord and Tenant, §§ 199-209.] 2. SAME-ADVERSE POSSESSION.

A lease of land for 2.000 years was entered into in 1682, and in all deeds and wills executed for 145 years the land was described as the residue of the term of the 2,000-year lease. In 1823 allotments in a partition suit were made to the allottees in fee, and for 60 years all of the conveyances were in fee, and there was a continuous adverse possession against all the world. Held, that a sale in foreclosure of a mortgage given after that time by one in possession would pass a title in fee good as against a purchaser at a sheriff's sale of the unexpired term of the lease.

3. SAME-PRESUMPTION OF GRANT.

Where an unchallenged title to land has been enjoyed for a great many years, the court, as against a lease of the land for 2,000 years, created in 1682, will presume whatever grant may be necessary to quiet title.

4. MORTGAGES-FORECLOSURE-DEFENSES.

A mortgagor cannot set up as a defense to a mortgage that he had no title to the premises.

[Ed. Note. For cases in point, see Cent. Dig. vol. 35, Mortgages, § 1210; vol. 19, Estoppel, § 65.]

Appeal from Court of Common Pleas, Delaware County.

Action by Joseph B. Townsend, Jr., and others, against Matthew M. Boyd. Judgment for plaintiffs, and defendant appeals. Affirmed.

At the trial the defendant presented the following points:

"Now, as bearing upon the question of whether or not there was such a (lost) grant, we call your attention to the testimony bearing upon that question:-First, this was a leasehold, a tenancy. It was made in 1682 for 2,000 years. The consideration was, as you have been told, a peppercorn and so many shillings-five shillings. I believe it is for each 100 acres of land. Now you will say what bearing that has upon the question of presumption. There was a letting, a lease of 500 acres of land in the township of Upper Chichester to a son for 2,000 years, yielding and paying yearly during the said term unto William Withers, his heirs and assigns, one peppercorn at or upon the feast of St. Michael, the archangel, if the same be lawfully demanded. It was not to be paid outright, but it was to be paid if it should be demanded by the lessor, and also paying and discharging the aforesaid chief or quit rent of a shilling yearly as aforesaid; one shilling for each 100 acres. So you see the consideration of the old lease for 2,000 years, which was to a son, was, if the lessor should demand it, he should pay a peppercorn, and in addition one shilling for each 100 acres of land. You will say what bearing a lease for 2,000 years, for a nominal consideration, has upon the question whether or not, when in 1823 the owner of this land began to convey it in fee simple-whether it is reasonable to suppose that there was a grant to them, and that it had been lost.

"When he (Erasmus Morton) died, the husband of one of his children, Thomas Marshall, came into court, in the (should be or phans' court) court of common pleas of Delaware county in 1823 and filed a petition to have this property of Erasmus Morton parted

and divided. In that petition he set out that this land was real estate, and that Erasmus Morton died seised of it in fee, that is, had divided it-made a partition of it, as the lawyers say; and one of the heirs of Erasmus Morton was awarded a tract, I think of about 44 or 45 acres, part of the land in dispute, out of the Erasmus Morton estate. It was awarded to one of the sons, Aaron Morton, and this court made a decree that he should take and hold that propertyit was awarded to him-and that was in effect awarding the title to him absolutely. "This tract was conveyed to Aaron Morton and Aaron Morton died. I think he died in Delaware. I am not sure. But before he died he made this will, in which he willed a portion of this land, real estate. He says: 'I order and direct that all my real and personal estate be sold by my executor either at public or private sale, within one year after my decease, &c., and I further authorize him to convey said real estate to Matthew Boyd at the price of $4,400, say $1,400 in cash,' and appointed John Larkin as his executor. So that this heir of Erasmus Morton, Aaron, made his will on which he recognized this property as real estate, and directed his executors to convey it to Matthew Boyd at a fixed price. John Larkin made a deed in 1858-Morton died in 1857in which he conveyed this tract of land, 44 acres, in fee, absolute title, to the person named in the will, Matthew Boyd.

"Now, the plaintiffs ask you to say as to this tract which is included in the lands in dispute ask you to say from this deed of 2000 years-this deed of 2,000 years to a son for a peppercorn which he should pay if it was demanded and a shilling for every 100 acres, and from the fact that from 1831 down to 1892, when this land was mortgaged, all the owners of it conveyed it in fee simple, or, if they died before conveying, willed it, and that it was sold by those in power under their wills and conveyed by the various assurances in fee simple, they ask you to find from that that there was a grant to them which has either been lost or mislaid. In other words, they ask you to presume to find that there was such a grant, and, if you do find there was such a grant, then the plaintiffs are entitled to your verdict.

"We also say to you that, if the plaintiffs have for 21 years and upwards-for more than 21 years before the bringing of this suit-or those under whom they claim, did enter upon this land in hostility to the owner, and did for over fifty years, as it is in this case, occupy it adversely, hostilely, exclusively as their own, then this plaintiff is entitled to your verdict.

"Now if Matthew Boyd entered under the will of John Boyd in part and the deed from his brother as to one tract and the John Larkin deed upon the other, if he entered upon that property hostilely, adversely, claiming to own it in fee simple, and has continued

to do that for twenty-one years and upward, then this plaintiff is entitled to recover, and in support of that proposition as to the character of his holding-because we say to you that if this entry was hostile, open, adverse possession, exclusive of the lessors, and it continued for upwards of fifty years, we say to you, that that gave Matthew Boyd a complete title to the land, he had a right to mortgage it and the plaintiffs are entitled to recover."

Verdict and judgment for plaintiffs. Defendant appealed.

Argued before MITCHELL, C. J., and FELL, MESTREZAT, POTTER, and STEWART, JJ.

William B. Broomall and W. Roger Fronefield, for appellant. Frank P. Prichard, George T. Butler, and John G. Johnson, for appellees.

POTTER, J. On November 16, 1892, Matthew Boyd gave a mortgage to Joseph B. Townsend, to secure the sum of $13,000 upon a tract of 152 acres and a fraction, situate in Upper Chichester township, Delaware county. On March 30, 1894, a writ of scire facias was issued under this mortgage in the court of common pleas of Delaware county, judgment entered for want of an affidavit of defense, and the mortgaged premises sold under a levari facias to the executors of the mortgagee, and a sheriff's deed made to them. Notice was given and proceedings instituted by the purchasers to obtain possession of the mortgaged premises; but Matthew M. Boyd, a son of the mortgagor, who was then in possession, made affidavit that he did not hold under Matthew Boyd, defendant in the judgment on the mortgage, but in his own right; and he gave his recognizance to appear at court to plead to a declaration in ejectment, etc. The present action was the proceeding in court, which was in effect an ejectment, with the mortgagees and purchasers at the sheriff's sale as plaintiffs, and the claimant as defendant.

Upon the trial the plaintiffs offered in evidence the record of partition proceedings in the estate of Erasmus Morton, deceased, commenced October 29, 1823, whereby a lot of ground, including part of the premises here in dispute, was awarded to Aaron Morton. This was followed by other conveyances, all treating the title as a fee simple, which finally assumed to vest it as such in Matthew Boyd, on March 25, 1858. The remaining portion of the premises in dispute was traced from the record of partition proceedings in the estate of Nehemiah Broomall, deceased, begun on November 28, 1831, down through a cha, always treating the title as a fee, and assuming to vest it as such in Matthew Boyd, on March 21, 1865. Plaintiff offered in evidence the record of the mortgage of Matthew Boyd to Joseph B. Townsend, dated November 16, 1892, for $13,000, which was the basis of the proceedings out of which