simply called for "facts of which" the court said, "she, in some respects, could alone be fully apprised, and in all was best apprised." That case was affirmed in the Court of Appeals; but seemingly, counsel abandoned that objection, for it received no attention in that court. 29 N. Y. 591. To the same effect is South, etc., Co. v. McLenden, 63 Ala. 266; Laws. Ex. Op. Ev. 470 et seq. Mrs. Wright was certainly much better qualified to state her own internal condition, her own pain and suffering, and perhaps the source and cause of it, than any one else, and especially better than any non-expert. But courts have gone further, and held that unskilled witnesses are not precluded from testifying to such facts as come within their own observation relating to ordinary injuries or sickness of those with whom they have consorted. Sydleman v. Beckwith, 43 Conn. 9; Parker v. Boston, etc., Co., 109 Mass. 449; Com. v. Sturtivant, 117 id. 122; Thompson v. Stevens, 71 Penn. St. 161; Elliott v. Van Buren, 33 Mich. 49; Wilkinson v. Mosely, 30 Ala. 562; Rogers v. Crain, 30 Tex. 284; 1 Greenl. Ev., § 440, and notes. The rule seems to be based on the ground of necessity, and confined to cases where the subject of inquiry is so indefinite and general as not to be susceptible of direct proof, or where the facts are so numerous or changeable as to be incapable of being held in the memory or detailed to the jury. Id. We must therefore conclude that where a plaintiff sues for personal injury and is a witness in his own behalf, and his pain, suffering, or internal condition is pertinent to the issue and perceptible to his senses, a question put to such party eliciting a description of such pain, suffering, or condition, and not necessarily requiring scientific skill or knowledge, is a question calling for facts, and not mere opinion. 4. The court submitted to the jury the question whether the plaintiff, Sarah, at or about the time deIscribed in the complaint, fell on the sidewalk and received injuries by the fall. The jury answered, yes. The court also submitted to the jury the question whether the plaintiff, Sarah, was in the exercise of ordinary care when she was thrown on the sidewalk and received her injuries. They answered, yes. Complaint is made, that in submitting each of these questions, the judge expressed himself to the effect that he knew of no evidence in the case that would justify them in answering either question in the negative. The first question does not find that the miscarriage was the result of the fall, nor the extent of the injury, but simply that she fell and was injured. We find no evidence to the contrary. Upon the undisputed evidence, the court would have been justified in directing the jury to answer each of these questions as they did. Berg v. Chicago, M. & St. P. R. Co., 50 Wis. 419; 7 N. W. Rep. 347; Gammon v. Abrams, 53 Wis. 323; 10 N. W. Rep. 479; Schwitzer v. Connor, 57 Wis. 177; 14 N. W. Rep. 922. This being so, the defendant is in no position to avail itself of error in the manner of submitting either of those questions; much less in the mere expression of an opinion as to the absence of such evidence. 5. We do not understand that the court charged the jury that the plaintiffs might recover not only for loss of the wife's services, but also for the expense of labor substituted for the ordinary service of the wife. The charge did direct them that they "must consider all the evidence touching" those and the other facts in the case. But when the court came to tell the jury what they should allow as damages, if they found for the plaintiffs, there is nothing said as to the expense of such hired help. the time of the accident, and did that materially coutribute to the injury?" and then refusing to instruct the jury "that a slight want of ordinary care assisting the accident, contributing to it, is the contributory negligence implied by law, is the negligence mentioned in the question submitted." For the want of sufficient evidence to support an affirmative finding, the court properly refused to submit to the jury the question proposed. For the same reason, the court properly refused to instruct the jury upon that question. Cronin v. Delavan, 50 Wis. 375; 7 N. W. Rep. 249. Besides the instruction itself was erroneous. There is no such thing as "contribu tory negligence implied by law." It may be implied from admitted facts. Holt v. Peters, 55 Wis. 411; 13 N. W. Rep. 219. So it may be inferred, as a matter of fact, from the plaintiff's own evidence, if it be such as to justify the inference. Id. 7. Error is assigned because the court refused to set aside the verdict and grant a new trial, on the ground that the findings to the effect that the city authorities had knowledge, actual and constructive, of the defective condition of the sidewalk, at and previous to the time of the accident, were against the weight of evidence. It is enough to say, upon this question of fact, that each member of the court has carefully examined the record, and none of us feel authorized to reverse the judgment for want of evidence. Nor would we be justified in reversing the judgment on the ground of excessive damages. There was evidence tending to prove and the jury found that the injuries were permanent. This being so, we are not convinced that the jury were misled by passion, prejudice, or ignorance. The power of setting aside verdicts for excessive damages in an action of tort is very sparingly used, aud never except in a clear case. Corcoran v. Harran, 55 Wis. 128; 12 N. W. Rep. 468. The judgment of the Circuit Court is Affirmed. RIGHT TO MORTGAGE CORPORATE FRAN CHISE UNITED STATES CIRCUIT COURT, S. D. NEW YORK, MEMPHIS & L. R. Co. v. Dow.* A corporation cannot retain property acquired under a trans- A corporation is not precluded from contracting with its bond- 6. Error is assigned for refusing to submit to the N equity. jury the question: "Did slight want of ordinary care on the part of the plaintiff, Sarah L. Wright, exist at * 19 Federal Reporter, 388. Dillon & Swayne, for plaintiff. WALLACE, J. The complainant's bill is filed against the trustees and holders of the mortgage bonds of the complainant for $2,600,000, and the mortgage upon its corporate franchises and property for securing the same, executed May 2, 1877, seeking to annul the bonds and mortgage, upon the ground that they were issued and executed by the complainant without corporate power in that behalf. A brief statement of the facts relating to the creation of the mortgage bonds, their origin, consideration and purpose, will serve to present the legal questions involved. The complainant, created under a special act of the Legislature of Arkansas, is a reorganized corporation, which has succeeded to the property and franchises of a former corporation of the same name under the foreclosure of a mortgage of that corporation, and a conveyance under the decree of foreclosure. By the terms of that mortgage, and by the provisions of the decree of foreclosure in conformity therewith, it was provided that if the trustees named in the mortgage should be requested so to do by a majority of the holders of the bonds secured thereby they might purchase the property, and in that case no bondholder should have any claim to the premises or the proceeds thereof, except for his pro rata share, as represented in a new corporation or company to be formed, by a majority in interest of said bondholders, for the use and benefit of the holders of the mortgage bonds. The trustees purchased at the sale, and thereupon the bondholders proceeded to organize the present corporation. There was due to the holders of the old mortgage bonds $2,600,000 of principal, and $1,300,000 of unpaid interest, and the scheme of reorganization contemplated the acceptance by the bondholders of the new mortgage bonds in place of the old ones, and of the capital stock in place of their accrued and unpaid interest. Accordingly, by the terms of the reorganization agreement, the capital stock of the new corporation was fixed at $1,300,000, divided into 13,000 shares of $100 each, and was declared to be full paid; and by the same agreement the trustees who had purchased at the foreclosure sale were directed to transfer the property and franchises purchased by them to the new corporation upon the condition, among others, that the new corporation should execute and deliver to said trustees the new mortgage bonds for $2,600,000, now sought to be set aside. Thereupon-the new corporation having agreed to accept a conveyance of the property and franchises of the old corporation pursuant to the terms of the reorganization agreement--the trustees conveyed the same to the new corporation, the deed of conveyance reciting the conditions upon which, as trustees, for the owners of the outstanding mortgage bonds, they were authorized to make such conveyance, and further reciting the acceptance of such conditions by the new corporation. The corporation accepted this conveyance, and took possession under it. Every certificate of shares of stock issued by it contains a recital that the holder takes his stock subject to the mortgage bonds in question. The new mortgage bonds were issued and delivered to the trustees for the holders of the outstanding mortgage bonds, and were distributed by the trustees pro rata to the holders of those bonds. The capital stock was also apportioned among the holders of these bonds pro rata, and certificates were delivered for the shares to which each bondholder was entitled. After the reorganized corporation had operated the railroad for several years, and early in the year 1880, the majority of the stock was acquired by Messrs. Margrand, Gould and Sage in the interest of the St. Louis, Iron Mountain and Southern Railway Company. The object seems to have been to acquire control of the corporation and subordinate its management to the interest of the Iron Mountain company. The parties who thus acquired control now control the corporation, and speaking through it, insist that the mortgage bonds, which were the consideration of the transfer of the property to the corporation, are void, and should be set aside. The case then is this: The complainant is a corporation which was brought into life by a body of creditors of a pre-existing corporation, who had succeeded to all the property thereof, and who proposed to convey such property to the complainant upon receiving, among other considerations, the mortgage bonds in suit. The complainant assented to this proposition, accepted a conveyance of the property, and executed its mortgage bonds. It asserts now that although it had power to acquire the property it had no lawful power to pay for it in the terms and manner promised. Its contention is founded upon a section of the charter or act of incorporation, by which alone it is claimed its power to create a mortgage is conferred, and upon a provision of the Constitution of Arkansas which limits the power of corporations of that State in issuing bonds. The section of the charter relied on is section 9, which is as follows: "The said company may at any time increase its capital to a sum sufficient to complete the said road, and stock it with any thing necessary to give it full operation and effect, either by opening books for new stock, or by selling such new stock, or by borrowing money on the credit of the company, and on the mortgage of its charter and works." The constitutional provision is contained in article 12, and declares: "No private corporation shall issue stock or bonds except for money or property actually received or labor done; and all fictitious increase of stock or indebtedness shall be void." As the bonds and stock issued by this corporation were issued for property actually received, viz., the said railroad and all the corporate property, it is not obvious how this constitutional provision has any application to the present controversy. It is assumed in the argument of counsel for the complainant, and reiterated several times, that the complainant received no consideration for the mortgage bonds. Upon what theory this is claimed or can be maintained is not apparent, and indeed is incomprehensible. The original corporation had been divested of its property by the foreclosure sale. The newly-organized corporation accepted a reconveyance upon condition of executing the new mortgage bonds to the vendors. Whether the complainant is a new corporation or whether it is the old corporation, need not be considered, because in either view the mortgage bouds were the consideration of the conveyance. The proposition which is advanced that the vendors and the vendees were the same persons, and therefore there could be no contract or sale, is not even technically correct. One of the parties was the corporation; the bondholders, by their trustees, were the other parties. True, the stockholders of the corporation were also the bondholders, but the circumstance that all the stockholders of a corporation are at the same time the several owners of property, which the corporation wishes to buy, does not destroy the power of the parties to contract together. Suppose there were two corporations, each composed of the same stockholders, can it be seriously contended that one corporation could not make a contract with the other? A corporation may contract with its directors; why not with its stockholders? If the complainant ever acquired the property it was by a purchase; if it could purchase, the bondholders could sell, and the mortgage was the consideration of the purchase and sale. The primary questions then are: First, whether upon the purchase of property, the corporation could mortgage what it acquired, to secure the purchasemoney; and second, whether section 9 of the charter has any application to such a transaction. It is to be observed that the complainant does not question its own power to acquire the money conveyed to it. It cannot do this while it holds on to the property and seeks to remove the lien of the mortgage. If it could legitimately purchase, why could it not, like an individual purchaser, mortgage to secure the price? A corporation, in order to attain its legitimate objects, may deal precisely as can an individual who seeks to accomplish the same ends, unless it is prohibited by law to incur obligations as a borrower of money. "Corporations having the power to borrow money may mortgage their property as security. Although it was at one time a question whether express legislative consent was not required in order to authorize a mortgage of any corporate property, as for example in Steiner's Appeal, 27 Penn. St. 313, yet the rule now is that a general right to borrow money implies the power to mortgage all corporate property except franchises, unless restrained by express prohibition in the act of incorporation or by some general statute." Green's Brice's Ultra Vires (2d ed.), 223, 224. In the late case of Philadelphia & R. R. Co. v. Stickler, 21 Am. Law Reg. 713, the Supreme Court of Pennsylvania considered the question, and Paxson, J., delivering the opinion of the court, said: * * * "So far as the mere borrowing of money is concerned it is not necessary to look into the charter of the company for a grant of express powers. It exists by necessary implication. The reason is | plain. Such corporations are organized for the purposes of trade and business, and the borrowing of money and issuing obligations therefor are not only germane to the objects of their organization, but necessary to carry such objects into effect." In Platt v. Union Pacific R. Co., 99 U. S. 48-56, Mr. Justice Strong, speaking for the court, says: Railroad corporations are not usually empowered to hold lands other than those needed for roadways and stations or water privileges. But when they are authorized to acquire and hold lands separate from their roads the authority must include the ordinary incidents of ownership-the right to sell or to mortgage." Here the mortgage was executed to enable the corporation to resume the exercise of its charter powers and fulfill the purposes for which it was originally created. No precedent has been found denying to a corporation the power to execute a mortgage of every thing it acquires by a purchase, when the mortgage is a condition of making a purchase; and there seems to be no reason in a case like the present for denying the power when the purchase of the mortgagor includes the franchise and the whole property of the corporation. Section 9 of the charter is not a restriction upon the implied power of the corporation to incur such obligations as are necessary to enable it to carry on its business. It is a provision which would seem to be intended to enlarge rather than to restrict the power of the corporation in this regard. Its purpose is to authorize an increase of capital to an extent commensurate with the necessities of the corporation in any of the modes usually adopted by corporations for raising money-a provision which was necessary in view of section 4 of the charter, which limited the amount of increase. As a corporation has no implied authority to alter the amount of its capital stock when the charter has definitely prescribed the limit, this permission was necessary. The purchase of property by the corporation for cash or on credit is not an increase of its capital. There is another ground however upon which the decision of the case may rest more satisfactorily. Assuming that the complainant transcended its charter powers in creating the mortgage bonds in question, it cannot be permitted to retain the benefits of its purchase and at the same time repudiate its liability for the purchase price. The rule is thus stated by a recent commentator: "The law founded on public policy requires that a contract made by a corporation in excess of its chartered powers be voidable by either party while a rescission can be effected without injustice. But after a contract of this character has been formed by either of the parties the requirements of public policy can best be satisfied by compelling the other party to make compensation for a failure to perform on his side." Morawitz Corp., § 100. It is to be observed that in the present case there is no express statutory or charter prohibition upon the corporation to purchase the property or mortgage it for the purchase money. At most its acts were ultra vires, because outside the restricted permission of the charter. It is not necessary therefore to consider the distinction made by some of the adjudications between the two classes of cases. Hitchcock v. GalvesThe right of mortgaging follows as a necessary inci- ton, 96 U. S. 341. The decided weight of modern audent to the right of managing the business of a corpo-thority favors the conclusion that neither party to a ration, according to the usual methods of business men. The right of a corportion to mortgage its franchises, or the property which is essential to enable it to perform its functions, is generally denied by the authorities. But does the reason upon which this denial rests have any application to a case like the present? The foundation of the doctrine is that such a mortgage tends to defeat the purposes for which the corporation was chartered, and the implied undertaking of those who obtained the charter to construct and maintain the public work and exercise the franchises for the public benefit. Some judicial opinion is found to the effect that there is no good reason for denying the right to make such a mortgage without legislative consent, because the transfer of the franchise to new hands through a foreclosure is in fact a change no greater than may take place within the original corporation, and the public interests are as safe in such new I hands as they were in those of the original corpora-ceeding upon that ground. tors. Shepley v. Atl. & St. L. R. Co., 55 Me. 395-407; Kennebec & P. R. Co. v. Portland & K. R. Co., 59 id. 9-23; Miller v. Rutland & W. R. Co., 36 Vt. 452-492. transaction ultra vires will be permitted to allege its invalidity while retaining its fruits. The question has frequently been considered in cases where a corporation, suing to recover upon a contract which has been performed on its side, is met with the defense that the contract was ultra vires, or prohibited by the organic law of the corporation. Whitney Arms Co. v. Barlow, 63 N. Y. 62; Oil Creek & A. R. Co. v. Penn. Transp. Co., 83 Penn. St. 160; Bly v. Second Nat. Bank, 79 id. 453; Gold Min. Co. v. Nat. Bank, 96 U. S. 640; Nat. Bunk v. Matthews, 98 id. 621. The latter case is a forcible illustration of the rule generally adopted. There a national banking association was proceeding to enforce a deed of trust given to secure a loan on real estate made by the association in contravention of section 5136, Revised Statutes, prohibiting by implication such an association from loaning on real estate, and the maker of the trust deed sought to enjoin the pro The court, speaking through Mr. Justice Swayne, cite with approval Sedg. St. & Const. Law, 73, in which the author states that the party who has had the bene fit of the agreement will not be permitted to question its validity when the question is one of power conferred by a charter. Another class of cases is where the corporation itself attempts to set up its own want of power, in order to defeat an agreement or transaction which is an executed one as to the other party, and from which the corporation has derived all that it was entitled to. Such cases were Parish v. Wheeler, 22 N. Y. 494; Bissell v. M. S. & N. I R. Co., id. 258; Hays v. Galion Gas Co., 29 Ohio St. 330-340; Attleborough Bank v. Rogers, 125 Mass. 339; McCluer v. Manchester R. Co., 13 Gray, 124; Bradley v. Ballard, 55 Ill. 418; Rutland & B. R. Co. v. Proctor, 29 Vt. 93. In the first of these cases the court say: "It is now very well settled that a corporation cannot avail itself of the defense of ultra vires when the contract has been in good faith fully performed by the other party, and the corporation has had the full benefit of the performance and of the contract. If an action cannot be brought directly upon the agreement, either equity will grant relief, or an action in some other form will prevail." The present case is phenomenal in the audacity of the attempt to induce a court of equity to assist a corporation in repudiating its obligations to its creditors without offering to return the property it acquired by its unauthorized contract with them. The fundamental maxim is that he who seeks equity must do equity. Every stockholder of the corporation when he acquired his stock took it with notice explicitly embodied in his certificate that his interest as a stockholder was subordinate to the rights of the holders of the mortgage bonds. It is now contended that if there is any obligation on the part of the corporation to pay for the property it purchased, it is not to pay what it agreed to, but to pay a less consideration, because the property was not worth the price agreed to be paid. The court will not compel the bondholders to enter upon any such inquiry. They are entitled to set their own value on their own property. When the complainant offers to reconvey the property in consideration of which it created its mortgage bonds it will have taken the first step toward reaching a position which may entitle it to be heard. It may be said, in conclusion, that there would be no difficulty on well recognized principles in protecting the bondholders against the destruction of their claims upon the theory of a vendor's lien for the purchasemoney. The taking of a mortgage by their trustees, so far from evidencing an intention to waive the lien, is conclusive evidence to the contrary. The bill is dismissed with costs. William Bernshouse bought of one Joseph E. P. Abbott two car-loads of cedar siding. The lumber was delivered to Bernhouse according to contract, accompanied by bills for the price of the same, in the name of said Joseph E. P. Abbott. Bernshouse was the holder for value of three promissory notes of said Joseph E. P. Abbott, amounting to about the price of the lumber, and tendered them in payment of Abbott's bill. Joseph E. P. Abbott then wrote to Bernshouse, stating that in disposing of the lumber he had acted as the agent of another person. This suit was brought against Bernshouse for the price of the lumber. The plaintiff is John C. Abbott, the father of Joseph E. P. Abbott. The declaration consists of the common counts, with bill of particulars. The defendant, Bernshouse, pleaded the general issue, and a special plea of set-off of the debt of the agent to the demand of the plaintiff, to which the plaintiff replied by traversing the matters of fact, and on the issues so joined the parties went to trial. At the trial the court overruled a motion to nonsuit, and at the conclusion of the case ordered a verdict for the plaintiff without permitting the case to go to the jury. The matters assigned for error arose both upon the motion for nousuit and the charge of the court. DEPUE, J. The transaction was a sale of personal property by an agent who had authority to sell, and who sold in his own name without disclosing his agency to a purchaser who bought in good faith, believing that the agent was the owner; and the inquiry is, under what circumstances such a purchaser, in an action by the principal for the contract price, is entitled to set-off a debt due him from the agent. The son, when he negotiated the sale, had neither the possession of the property nor any muniment of title to it in himself. He sold it in his own name, without any authority from his father to sell it in that way. The two leading cases on the subject of the right of a purchaser of personal property to set-off a debt due to him from the agent through whom the sale was made, where an action has been brought by the principal to recover the contract price are Rathbone V. Williams, reported in a note to George v. Claggitt, 7 T. R. 359, and Baring v. Corrie, 2 B. & Ald. 137. In Rathbone v. Williams the action was for the value of goods sold. The sale was made through Rathbone, Sr., & Co., who were the plaintiff's factors, and had sold the goods in their own names as principals, without disclosing their agency. The purchaser, in an action by the principal for the contract price, was allowed to set off a debt due to to him from the factors. In Baring v. Corrie the sale was made by a broker, who did not disclose his principal; and the purchaser, in an action for goods sold, brought by the principal, was not PURCHASE FROM AGENT-SET-OFF AGAINST allowed to set off a debt he had against the broker. The distinction between these two cases is explained by Abbott, C. J., in his opinion in Buring v. Corrie, He says: "The distinction between a broker and a factor is not merely nominal, for they differ in many important particulars. A factor is a person to whom goods are consigned for sale, * * * and he usually sells in his own name, without disclosing that of his principal. The latter therefore with a full knowledge of these circumstances, trusts him with the actual possession of the goods andgives him authority to sell in his own name. But the broker is in a different situation. He is not trusted with the possession of the goods, and he ought not to sell in his own name. The principal therefore who trusts a broker has a right to expect that he will not sell in his own name." And referring to the cases cited in which the set-off had been allowed, including Rathbone v. Williams, the chief justice said that "in all the cases cited the factor was in actual possession of the goods, and the pur 1 chaser could not know whether they belonged to him or not, and at all events they knew that he had a right to sell the goods." In Baring v. Corrie, where the claim of set-off was disallowed, the property sold was not in the possession of the broker who negotiated the sale. It was lying in the West India docks, from which it could not be obtained without a delivery order countersigned by the plaintiff's custom house clerk; and, as was said by Bailey, J., "the plaintiffs did not trust the broker with either the muniments of their title or the possession of the goods, as was done both in the case of Rathbone v. Williams and that of George v. Claggitt." The language of Abbott, C. J., and Bailey, J., quoted I from Baring v. Corrie, is quoted with approval by 1 Cresswell, J., in Fish v. Kempton, 7 C. B. 687, 693. And the distinction between a factor having the possession of the goods with power to sell, under the usages of trade, and a broker or other agent who has not such possession, has been adopted as settled law in I cases where the right to set off has arisen-the right to a set-off being recognized only where the sale was made by a factor. Carr v. Hinchliff, 4 B. & C. 547; Purchell v. Salter, 1 Q. B. 197; Semenza v. Brinsley, 18 C. B. (N. S.) 467, 477, per Willes, J.; Ex parte Dixon, 4 Ch. Div. 133; 19 Eng. R. 734; Borries v. Imperial | Bank, L. R., 9 C. P. 38; 7 Eng. R. 138; Hogan v. Shorb, 24 Wend. 458, 462; 2 Kent, 633. Ramozetti v. Bowring, 7 C. B. (N. S.) 851, is also an important case in this line of decision. The action was brought for a bill of wine sold and delivered to the defendants. The plaintiff carried on the business of a I wine merchant, under the name of the Continental Wine Company. The business was conducted by one Nixon, the plaintiff's son-in-law. Nixon, representing himself to be the proprietor of the Continental Wine Company, induced the defendants to take the goods in question in part satisfaction of his debt to them. The defendants contended that the goods having been sold by Nixon, the agent, without disclosing his principal, the contract could not be enforced by the latter, discharged of the defendants' right of set-off. The common serjeant left it to the jury to say whether the plaintiff or Nixon was the real owner of the business, Itelling them to find for the defendants if they were of iopinion that Nixon was the owner; but if they thought the plaintiff was owner they must find for him. The court in banc held this to be a misdirection, and that the proper question was whether the plaintiff had so conducted himself as to enable Nixon to hold himself out as the proprietor, and whether the defendants dealt with him on that footing. Mr. Chitty, with characteristic exactness, states the principle to be that "where a principal permits one who is not known to be an agent to sell as apparent principal, and afterward intervenes, the buyer is entitled to be placed in the same situation at the time of the disclosure of the actual principal as if the agent had been the real contracting party; and he is entitled to the same defense against the principal, whether it be by common law or by statute, as he was entitled to at that time against the agent, the apparent principal. Accordingly if in such a case the defendant has acquired a set-off against the agent before the principal has interposed, the latter will be bound by the set-off. But," he adds, "this doctrine does not apply where the agent is a mere broker, and has not the possession of or is not intrusted with the indicia of property in the goods." Chitty on Cont. 306. In the case now before the court the son had neither the possession nor the indicia of property. He was an agent with a naked power to sell. The judge properly denied the defendant's claim to set-off the 's debt, and the judgment should be son's [See 30 Eng. R. 667; 29 id. 192.-ED.] Affirmed. UNITED STATES SUPREME COURT AB- DEED - -CREDITORS FORECLOSING TRUST-DEVISE ON CONDITIONS ANNUITY CHARGE ON LAND LIEN — TRUSTEE AS PARTY DEFENDANT - ABATEMENT OF DISTRIBUTIVE SHARE-ALLOWANCES FOR IMPROVEMENTS. The plaintiffs, as creditors, whose debts were secured by a deed of trust on land in Mississippi, having brought a suit in equity to enforce the trust and to sell the land, joined as defendants, by a supplemental bill, persons in possession, who claimed to own the land under a title founded on a sale made under a judgment recovered prior to the execution of the deed of trust, but which judgment had been held by this court, in the same suit (Bank v. Partee, 99 U. S. 325), before the filing of the supplemental bill, to be void, as against the plaintiffs. The defendants in possession set up a claim to be allowed for the amount they had paid in discharge of a lien or charge on the land created by a will devising the land to the original grantor in the deed of trust, and for taxes paid, and for improvements. These claims were allowed. (2) A devise of land was made by a will, upon specified conditions, "under the penalty, in case of non-compliance, of loss of the above property," the conditions being to pay certain money legacies, and a life annuity in money. Then other legacies in money were given. Then there was a provision, "that all the legacies which I have given in money and not charged upon any particular fund" should not be payable for two years "after my decease," followed by a provision as to the payment by the devisee of interest on the first-named money legacies after she should come into possession of the land devised. No other money legacies were given payable by any person on conditions, and there were no other legacies in money which could answer the description of legacies in money charged on a particu lar fund. Held, that the life annuity was a charge on the land devised. Birdsall v. Hewlett, 1 Paige, 32; Harris v. Fly, 7 id. 421; Loder v. Hatfield, 71 N. Y. 92, 97. (3) The statute of Mississippi (Revised Code of 1857, chap. 57, art. 15, p. 401), which provides that "no judgment or decree rendered in any court held within this State shall be a lien on the property of the defendant therein for a longer period than seven years from the rendition thereof," does not apply to a decree of a Court of Chancery in Mississippi, establishing the arrears due on such life annuity as a specific lien on such land by virtue of such will, in a suit in chancery brought by the life aunuitant. (4) The will being proved and recorded in the county where the land was situated, it was not necessary, in such suit in chancery by the life annuitant, to make as defendant the trustee in a deed of trust made by the devisee under the will, provided, in a suit to enforce the deed of trust, brought by the beneficiaries under it, they were given the right to contest the validity of the lien claimed by the life annuitant and to redeem the land from such lien, when established. (5) The defendants claiming title under the devisee, and she being entitled to a distributive share of the entire estate of the life annuitant, who died during the pendency of such suit in chancery, it is not proper to abate from the allowance to the defendants of the amount paid by them to discharge the decree in such suit, any sum on account of the distributive share of such devisee in the amount so paid. (6) The defendants having acquired their title under a deed of trust executed after the original bill in this suit was filed, and before the suit, it was held that they, being in fact purchasers in grantor in such deed was served with process in this good faith, were not chargeable with notice of the intention of the plaintiffs to bring this suit, within the provisions of the Revised Code of Mississippi of 1871, |