i/- ',' )^rt r^ S 3 "-? THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW ».^ <:y. >V b y -o^ ^ Jit, 19 30 A TREATISE ON EQUITY JURISPRUDENCE, AS ADMINISTERED IN THE UNITET^ STATES OF AMERICA; ADAPTED FOR ALL THE STATES, AND TO THE UNION OF LEGAL AND EQUITABLE REMEDIES UNDER THE REFORMED PROCEDURE. By JOHX NORTON POMEROY, LL.O. STUBEKTS' EDITIOl^, BT JOHN NORTON POMEROY, Jr., A.M., LL.B. RAN FRANCISCO: B A N C R F T-W HTTNEY COMPANY, Law Publishers and Law Booksellers. 1907. Entered according to act of Congress in the years 1881, 1882, and 1883, by JOHN NORTON POMEROY, In the office of the Librarian of Congress, at Washington. Entered according to act of Congress in the year 1892, by ANNIE R. POMEROY, In the office of tlie Librarian of Congress, at Washington. Copyright, 1905. 1907. By CARTER P. POMEROY, HARRIET P. THOMPSON, AND JOHN NORTON POMEROY, Jb. • ?7'/lLf& / 11(4 m T© STEPHEN J. FIELD, LL.D., ONE OF THE ASSOCIATE JUSTICES OF THE SUPREME COURT OF THE UNITED STATES: N^OT ONLY AS A TRIBUTE TO HIS EMINENT PUBLIC SERVICES IN THE MOST AUGUST TRIBUNAL OF ANY MODERN NATION, BUT ALSO AS AN ACKNOWLEDG- MENT OF HIS PRIVATE FRIENDSHIP, AND OF THE AUTHOR'S ESTEEM AND RESPECT, THIS WORK IS DEDICATED. 667117 PREFACE TO STUDENTS' EDITION. The purpose of the editor in preparing the present abridgment of his father's work, for the use of students in law schools, appears to call for little defense or explanation. Between one-third and two- fiftlis of the text has boon omitted, and the greater part of the notes: all except/ such as seemed essential to a clear understanding of the text. No part of the text has been re-Avritten. By the sacrifice of some details of comparatively little importance 'to the American student (as in the chapters on Election, Satisfaction, and Perform- ance, §§ 461-590), of matters peculiar to the jurisdiction in individ- ual states (as in §§ 299-352). and by the free use of cross references (e. g., see §§ 70-88, 151-169), it has been found possible to preserve intact those full discussions of the foundation and rationale of the various equitable doctrines which are the chief excellence of the work. The index (with some regret) has been greatly shortened: on the other hand, the chapter analyses have been retained without omissions, for the i)urpose of showing the author's full scheme of treatment of the various subjects. The editor's notes consist, in the main, of the citation of caseS' — seldom more than three to each point of the text,— selected with reference to the needs of the elementary student and the facilities nf the average law school library. The}^ comprise (1) the cases chiefly relied upon and quoted by the author; (2) those in the case l)()oks on equity of Ames, Keener, Scott, Hutehins and Bunker, Shep- liord, Lewis, in Ames's Trusts and Kirchwey's Mortgages; (3) other cases chosen by reason of their historical importance, clearness and fullness of discussion, and (a rare virtue) simplicity of facts. No attempt has been made, by use of brackets or other cumbersome devices, to distinguish between the author's and the editor's notes. A number of topics of importance have been annotated with more fullness; e. g.. Multiplicity of Suits (§g 261. 264, 267) ; Jurisdiction of Federal Courts (§§ 292 et seq.) ; Executory Contract for Sale of Land (§ 368); Laches (§ 419); Equity acts in personam (§§ 428, VI rUEFACE. 429); various matters in Trusts; Covenant creating an Equitable Servitude (§ 1295) ; the various Equitable Remedies, especially lle- ceivers (§§ 1334, 1336) ; Injunctions; Reformation and Cancellation (§§ 1376, 1377; ; Cloud on Title (§ 1399) ; and Specific Performance. The chapters on Injunction and Specific Performance have been materially enlarged, and in these instances it seemed expedient to insert a few new paragraphs in the text. In few American law schools, it is believed, does the study of Equity receive an allotment of time proportioned either to its prac- tical importance or its educational value. No apology-, perhaps, is needed for the fact that the length of this edition is somewhat greater than that of the average student's manual. It is sufficient to i)oint to the experience of instructors who have used the work, that the well known clearness, ease, and fluency of Prof. Pomeroy's literary style render the student's progress comparatively rapid. A number of the topics, moreover, are customarily treated in other parts of the curriculum. J. N. P. Jr. September, 190? » PREFACE. The author herewith submits to the legal profession a text- book which treats, in a somewhat comprehensive manner, of the equitable jurisdiction as it is now held by the national and state tribunals, and of the equijtable jurisprudence as it is now adminis- tered by the courts of the United States, and of all those states in which the principles of equity, originally formulated by the English Court of Chajicery, have been adopted and incorporated into the municipal law. It is proper that he should, in a few words, explain the motives which led to the preparation of such a work, and describe the plan which he has pursued in its com- position It is of vital importance, therefore, that a treatise on equity for the use of the American bar should be adapted to the exist- ing condition of jurisprudence throughout so large a part of the I'nited States. It should be based upon, and should present in the clearest light, those principles which lie at the foundation of equity, and which are the sources of its doctrines and rules. In this respect, the plan of the present work was deliberately chosen, and has been steadily pursued, even Avhen it has led to amplifications which might, perhaps, be regarded by some readers as unnecessary. It has been my constant endeavor to present the grreat underlying principles which sustain the whole super- structure of equity, and to discuss, explain, and illustrate them in the most complete manner. Some of these principles are so comprehensive and fruitful, that one who has grasped them in their fullness of conception has already mastered the system of equity; all else is the mere application of these grand truths to particular circumstances. Such a treatise, designed for the American profession, if it would at all meet and satisfy the needs of the bench and bar, must also be based upon and adapted to the equitable jurisdiction which is actually possessed by the state and national courts, and fviij Tin PREFACE. the equitable jiirispriidience which is actually administereld by them. It must recognize the existing condition, both of law and equity, the limitations upon the chancery jurisdiction resulting from varying statutes, and the alterations made by American legislation, institutions, and social habits. Many departments of equity, many doctrines and modes of applying the jurisdiction which were important at an earlier day, and are perhaps still promi- nent in England, have become practically obsolete in this coiuitry ; while others have risen in consequence, and are constantly occupy- ing the attention of the courts. It has been my purpose and en- deavor to discuss and describe the equity jurisprudence as viewed in this light, and to present the actual system which is now adminis- tered by the courts of the United States and of all the states. As an illustration, I have attempted to ascertain and determine the amount of jurisdiction held by the different state tribunals, as limited and defined by statutes, and established by judicial inter- pretation ; and have not confined the treatment of this subject to a mere account of the general jurisdiction possessed by the English Court of Chancery. It is true that the fundamental principles are the same as those which were developed through the past centuries by the English chancery: but the application of these principles, and the particular rules which have been deduced from them, have been shaped and determined by the modern American national life, and have received the impress of the American national character. It has been my design, therefore, to furnish to the legal profession a treatise which should deal with the equity jurisdiction and juris^ prudence as they now are throughout the United States; with their statutory modifications and limitations, and under their different types and forms in various groups of states ; and thus to prepare a work which would be useful to the bench and bar in all parts of our countiy. During its composition I have constantly had before me a high ideal. The difficulty in carrying out this conception has been very great; the labor which it has required has been enormous. That I may have fallen short of this ideal in all its completeness and perfection T am only too conscious; its full realization was per- haps impossible. If the book shall be of any help to the courts and the profession in administering equitable doctrines and rules; if it shall be of any assistance to students in disclosing the grand prin- I'HKKACE. IX ciples of e(iuity ; if it shall to any extent maintain the equitable jurisprudence in its true position as a constituent part of the munic- ipal law, — -then the time and labor spent in its composition will be amply repaid. The internal plan, the system of classification and arrangement, the modes of treatment, and especially the reasons for departing from the order and methods which have usually been followed by text-Avriters, are described at large in the third, fourth and fifth sections of the Introductory Chapter. To that chapter I would re- spectfully refer any reader who may at the outset desire a full ex- planation of these matters, which are so important to a full under- standing of an author's purposes, and to a correct appreciation of his work. The book is submitted to the profession with the hope that it may be of some aid to them in their judicial and forensic duties, and may accomplish something for the promotion of justice, righteousness, and equity in the legal and businesii transactions and relations of society. J. N. P. Hastings College of the Law. San FkanciscOj May^ 1881. TABLE OF CONTENTS. Section I. Section II. Section III. Section IV. Section V. INTRODUCTORY CHAPTER. The origin of equity jurisdiction ami jurisprudence. §§ 1-42. The nature of equity, §§ 4,3-<>7. The present relation of equity with the law, S§ (58-88. The constituent parts of equity, §§ 89-117. The principles of classification, §§ 118-128. PART FIRST. THE N.'VTURE AND EXTENT OF EQUITY JURISDICTION". CHAPTER FIRST. THE GENERAL DOCTRINE CONCERNING THE JURI.SDICTION. vSection I. Fundamental principles and divisions, §§ 120-145. Section II. The exclusive jurisdiction, §§ 146-172. Section III. Tlie concurrent jurisdiction, §§ 173-189. Section IV. The auxiliary jurisdiction, §§ 100-215. CHAPTER SECOND. GENERAL RILES FOR THE GOVERNMENT OF THE .TlTil.SDICTION. Section I. Inadequacy of lpart of this natural law. The par- ticular rules of the Roman jurisprudence derived from this moral- ity, called the law of nature, were termed "aequitas," from aequum, because thej^ Avere supposed to be impartial in their operation, ap- plying to all persons alike. The lex naturae was assumed to be the governing force of the world, and was regarded by the magis- trates and jurists as having an absolute authority. They felt them- selves, therefore, under an imperative obligation to bring the juris- prudence into harmony w^ith this all-pervading morality, and to allow such actions and make such decisions that no moral rule should be violated. Whenever an adherence to the old jus civile would do a moral Avrong, and produce a result inequitable (inae- quum), the praetor, conforming his edict or his decision to the law of nature, provided a remedy by means of an appropriate action or defense. Gradually the eases, as well as the modes in which he J OKKilX OF KC^LITY J lUlSPRUDKXCE. § l".' would thus interfere, grew more and more common and certain, ai'd thus a body of moral principles was introduced into the Roman law, which constituted equity (ae(iuitas).' This resulting equity was not a separate department; it penetrated the entire jurispru- dence, displacing what of the ancient system was arbitrary and un- just, and bringing the whole into an accordance Avith the prevailing notions of morality. In its original sense, aequitas, aequum, con- veyed the conception of universality, and therefore of impartiality, a liaving regard for the interests of all whose interests ought to be regarded, as contrasted with the having an exclusive or partial regard for the interests of some, which was the essential character of the old jus civile. At a later period, and especially after the in- fluence of Christianity had been felt, the signification of aequita^i became enlarged, and was made to embrace our modern conceptions of right, duty, justice, and morality. § 9. There are certainly many striking analogies between the growth of equity in the Roman and in the English law; the same causes operated to make it necessary, the same methods were up to a certain point pursued, and in principle the same results were reached. The differences, however, are no less remarkable. No separate tribunal or department was made necessary in the Roman jurisprudence, because the ordinary magistrates were willing to do what the early English common-law^ judges utterly refused to perform: that is, to promote and control the entire legal develop- ment as the needs of an advancing civilization demanded. While these common-law judges resisted every innovation upon their es- tablished forms, and .shut up every way for the legal growth, the Roman magistrates were the leaders in the work of reform, and constantly anticipated the wants of the community. The English judges made a new court and a separate department indispensable ; the Roman praetors accomplished every reform by means of their own jurisdiction, and preserved in the jurisprudence a unity and homogeneity which the English and American law lacks, and which it can perhaps never acf|uire. Both these resemblances and these contra.sts are exhibited in the following paragraphs, which describe the introduction of equity into the English system of jurisprudence. § 10. Orig-in of Equity in the English Law — Primitive Condition of the Law and the Courts. §12. . . . The office of Thancellor was very ancient. It had existed before the conquest, and was continued by "William. Under his successors, the Chancellor soon became the most important func- tionary of the Kind's govei-nment. the personal adviser and repre- ' See Sandar's TTT^titutes of .Tu^tininn. pp. IS. 14: Pliilliniore'^ Private La^V :nv.nne the Pninan-^. pp. '21. 22: 2 .\ii-1in on .Tiiiispnulf'npp. pp. 240-207. §15/ EQUITY J lUlSPKUDEXCE. 4 sentative of the crown, but, in the very earliest times, without, as it seems, any purely judicial powers and duties annexed to the position. How these functiont^ were acquired, it is the main pur- pose of this historical sketch to describe. The three superior law courts- whose origin has thus been stated have remained, with some statutory modification, through the succeeding centuries, until, by the Judicature Act of 1873, w'hich went into operation November 2, 1875, they and the Court of Chancery, and certain other courts, were abolished as distinct tribunals, and were consolidated into one "Supreme Court of Judicature." § 13. The local folk courts left in existence at the conquest, and even the itinerant justices and the central King's Court, for a while continued to administer a law which was largely customarJ^ The progress of society, the increase in importance of property rights, the artificial system which we call feudalism, with its mass of arbitrary rules and usages, all demanded and rapidly produced a more complete, certain, and authoritative jurisprudence for the whole realm than the existing popular customs, however ancient and widely observed. This work of building up a positive juris- prudence upon the foundation of the Saxon customs and feudal usages, this initial activity in creating the common laAV of England, was done, not by parliamentary legislation nor by royal ciecrees, but by the justices in their decisions of civil and criminal causes. The law which had been chiefly customary and therefore unwritten, preserved by tradition, lex non scripta, was changed in its form by being embodied in a series of judicial precedents preserved in the records of the courts, or published in the books of reports, and thus it became, so far as these precedents expressed its principles and rules, a written law, lex scripta.^ §14. Early Influences of the Roman Law. § 15. Had it not been for several powerful causes, partly grow- ing out of the English national character, or rather, the character of the Norman kings and barons who ruled over England, and partly arising from external events connected with the government itself, it is probable that this work of assimilation and of building up the common law with materials taken from the never-failing quarries of the Eoman legislation, Avould have continued throughout its en- ^ Viz.. tlie Kinij's Bench, the Coinmon Pleas, and the Exchequer. ^The division of "written" and "unwritten"' law made hv PSlackstone. and writers who have copied his notions, which makes the "written" identical Avith tiie statutory, and describes the entire portion embodied in judicial decisions as "'un- written," is simply absurd. This definition is another instance of Blackstone's mistakiniuui;.\ci:. § oD doctrines of that jnrisprudenee were naturally resorted to in decid- ing controversies respecting them, and in settling' the rules for their government. The action of the law judges in banishing the Roman law from their courts, which has already been described/ also operated very powerfully to throw the consideration of these matters into the chancery, and greatly augmented and strength- ened its authority. No one subject has contributed so much to enlarge and perfect the jurisdiction of the Court of Chancery as the uses thus surrendered to its exclusive cognizance. The princi- ples which underlie them and the trusts which succeeded them have been extended to all departments of equity, and have been more efficient than any other cause in building up an harmonious system of equitable jurisprudence in conformity with right and justice. These tiexible principles have been applied to almost every relation of life alfecting property rights, and have been molded so as to meet the exigencies of the infinite variety of circumstances W'hich arise from modern civilization. They have even reacted upon the common law, and have been recognized by the law judges in their settlement of the rules which govern the rights and obli- gations growing out of contract. § .'39. In the reigns of Henry IV. and Henry V., the Commons, from time to time, complained that the Court of Chancery was usurping powers and invading the domain of the common-law judges. It is a very remarkable fact, however, that this opposi- tion never went to the extent of denouncing the equity jurisdic- tion as wholly unnecessary, it was always conceded that the law courts could furnish no adequate remedy for certain classes of wrongs, and that a separate tribunal was therefore necessary. As the result of these complaints, statutes were passed which forbade the Chancellor from interfering in a few specified instances of legal cognizance, but did not abridge his general jurisdiction. In the reign of Edward IV. the Court of Chancery was in full opera- tion: the mode of procedure by bill filed by the complainant, and a subpoena issued thereon to the defendant, was settled ; and the principles of its equitable jurisdiction were ascertained and estab- lished upon the basis and with the limitations which have continued to the present time. No more opposition was made to the court by the Commons, although the law judges from time to time, until as late as the reign of James I., still denied the power of the Chancellor to interfere with matters pending before their own courts, and especially disputed his authority to restrain the pro- ceedings in an action at law. l)y means of his injunction. This rowth of eciuity, as long- as it was in its formative period, was from its essential nature an antagonism to the common law, either by way of adding doctrines and rules which the law simply did not contain, or by way of creating doctrines and rules con- tradictory to those which the law had settled and would have ap- plied to the same facts and circumstances. It would be a down- right absurdity, a flat contradiction to the plainest teachings of history, to deny that the process of building up the system of equity involved and required on the part of the chancellors an evasion, disregard, and even violation of many established rules of the common law ; in no other way could the system of equity jurispru- dence have been commenced and continued so as to arrive at its present proportions.^ § 49. Nor can it be denied that the early clerical and even lay chancellors, in their first processes of innovating upon the law, and laying the foundations of equity, were constantly appealing to and governed by the eternal principles of absolute right, of a lofty Christian morality; that in these principles they sought and found the materials for their decisions; that they w;ere ever guided in their Avork by Conscience, not by what has since been aptly termed the civil or judicial conscience of the court, but by their own indi- vidual consciences, by their moral sense apprehending what is right and wrong, by their own conceptions of bona fides. The very ground of the delegated authority required them to do so, and the function which they possessed and exercised Avas literally the arbitrium boni viri. In this manner the first precedents were made, and undoubtedly for a considerable space of tiine the de- cisions in chancery varied and fluctuated according to the personal capacity and high sense of right and justice possessed by individual chancellors. In the lapse of time, however, the precedents had multiplied, and from the universal conservative tendency of courts to be controlled by what has been already decided, a system of doctrines had developed and assumed a comprehensive shape; and finally, when it had attained a reasonable completeness with respect to fundamental principles and general rules, this accumulation be- came the storehouse whence the chancellors obtained the material for their decisions, and both guided and restrained their judicial action. When this time arrived, all assumption that the Chancellor Avas to be governed by his own standard and conception of nat- ural justice disappeared from the court of e(|uity, and individual 'The text is quoted in Roberson v. Rochester Fohlin.c; Box- Co., 171 N. Y. .'5.38, .')46, 04 JN. E 142, 89 Am. St. Rep. 828, 59 L. R. A. 478, 1 Scott 178, bj' Parker, C. J. § T),'] KQi'iTY jri;isi>i;Li)i:.\CE. 26 conscience was no lonjier the motive power in that tribunal. The accuracy of this general account will appear from a brief review of what the early chancellors actually did during- the formative period of their jurisdiction, and of the principles which they adopted in the prosecution of their reformatory work. § 50. In the original delegation of general authority by the Crown to the Chancellor, over matters falling under the King's judicial prerogative of grace, such authority was to be exercised according- to Conscience, Equity, Good Faith, and Honesty. It was undoubtedly a maxim, even in the earliest times, that the equitable jurisdiction of chancery only extended to such matters as were not rcmcdiahh hy tlie common law. At the same time great latitude was used in determining what matters were not thus remediable. The chancelloi's therefore exercised a jurisdiction which was stip- pJenientari/ to that of the law courts, and to this there was never any real opposition. At the same time they exercised a jurisdiction Avhich was corrective of the law% and this was undoubtedly the most important part of their functions. It is absolutely certain from all tlie existing recoi-ds. and from the result itself of their work, that they did not refrain from deciding- an,y particular case, according: to their views of e(iuity and good conscience, merely because the doctrine which they followed or established in making the decision was inconsistent with the rule of law applicable to the same facts, nor because the law had deliberately and intentionally refused to acknowledge the existence of a primary right, or to give a remedy under those facts and circumstances.^ § 53. While the early chancellors did much, they stopped very far short of consummating the work of reform by extending it to the entire' body of the common law. They left untouched, in full force and operation, a great number of legal rules which were certainly as harsh, unjust, and unconscientious as any of those which they did attack; and their successors upon the chancery ^ Tlip author licre gives, as instances of remedies granted ])y the early chan— oeUors, where any remedy was refused by positive rules of the conunon law: tlie doctrine that one executor or joint tenant might siu^ his co-exeeutor or co- tenant in the Court of Chancery in res|)ect to their joint interests, although forbidden to do so by the law; relief on lost bf)nds, where profcrt was impossible (see post. §§ 8.31. 83-2) : defense of payment, where the debtor njton a sealed in- strument had neglected to take a release or surrender of the instrument (see post. § 383) ; relief from forfeitures (see post, §S 440-458) : injunction against enforcement of judgments recovered at law' (see post, §§ 13fiO-13().5) . As instances of relief more efficient than the legal remedies granted under the same circumstances: specific iierformnncf of contracts; tlie whole doctrine concerning uses and trusts, and the se-^i.^irate estate of married women. See post. cha])ters on these su1)j;cts. 27 TlIK NATriJK OF EQUITY. § 5-1.. bench have never assumed to complete what they left unfinished. That task has since been accomplished, if at all, either by the le.u'- islature, or by the common-law courts themselves. Amon.u' these leii'al rules with which ecjuity did not interfere, the followinu' may he mentioned as illustrations: The doctrine by which the lands of a debtor were generally exempted from all liability for his simple contract debts ;^ the entire doctrine of collateral warranty, which was confessedly most unjust and harsh in its operation, and resting wholly upon that kind of verbal reasoning which really had no meaning;- and in fact, most of the particular rules concern- ing real estate, Avhich had been logically derived by the courts of law from the feudal institutions and customs. There might, per- haps, have been a sufficient reason for leaving this latter mass of rules, as svrh, untouched. The introduction of uses, and after- Avards of trusts, and the invention of the married woman's sepa- rate estate, withdrew the greater part of the land, so far as its actual enjoyment and control were concerned, from the operation of the common-law dogmas, and placed it under the domain of equity: and as the Court of Chancery had an exclusive jurisdiction over these new species of estates, and treated them as the true ownerships, and in dealing with them disregarded the most ob- jectionable of the feudal incidents, the chancellors probably thought that these rules of the common law had been practically abrogated, or at least evaded en masse, and that there was therefore no neces- sity for any further attack upon them in detail. § 54. Sir AVilliam Blackstone, citing these and some other in- stances in which the Court of Chancery refrained from interfering with legal doctrines, and using them as the basis of his argument, goes to the extent of denying that equity has or ever has had any power to correct the common law or to abate its rigor. ^ This is one example among many of Blackstone 's utter inability to com- prehend the real spirit and workings of the English law. That equity did to a large extent interfere with and prevent the prac- tical operation of legal rules, and did thus furnish to suitors a cor- rective of the harshness and injustice of the common law, history and the very existing system incontestably show; and that the chancellors, from motives of policy or otherwise, refrained fi-om ^^ Black. Com., p. 4.30. ' T.onl C'l'KrDl:2s"CE. 34 justice which these equitable i)riiicii:)les demanded. The legal iiTowth was stunted, its development was checked, its tendencies to do justice in all the private relations of society were thwarted 1)3^ its partial remedies and its imperfect means of administering them. From this cause the necessity of a distinct department of erjuity, with its own mode of procedure, and with absolute freedom and elasticity in the forms of its remedies, and their adaptation to the rights and duties of parties, has continued to the present day, and must continue until the principles and rules of the com- mon-law remedial system are utterlj^ abandoned. § 67. 4. As the expansive tendencies of the common law are thus confined within certain limits, and as its power to administer justice and to grant the variety -of remedies needed in the manifold relations of society is incomplete, the English and American SA^stem of equity is preserved and maintained to supply the want, and to render the national jurisprudence as a whole adequate to the social needs. It is so constructed upon comprehensive and fruitful prin- ciples, that it possesses an inherent capacity of expansion, so as to keep abreast of each succeeding generation and age. It consists of those doctrines and rules, primarj^ and remedial rights and reme- dies, which the common law, by reason of its fixed methods and remedial system, was either unable or inadecpiate, in the regular course of its development, to establish, enforce, and confer, and which it therefore either tacitly omitted or openly rejected. On account of the somewhat arbitrary and harsh nature of the com- mon lav/ in its primitive stage, these doctrines and rules of ecjuity were intentionally and consciously based upon the precepts of morality by the early chancellors, who borrowed the jural princi- ples of the moral code, and openly incorporated them into their judicial legislation. This origin gave to the system which we call equity a distinctive character which it has ever since preserved. Its great underlying principles, which are the constant sources, the never-failing roots, of its particular rules, are unquestionably principles of right, justice, and morality, so far as the same can become the elements of a positive human jurisprudence; and these |)rinciples, being once incorporated into the system, and being es- sentially unlimited, have communicated their own vitality and power of adaptation to the entire branch of the national' jurisprudence of which they are, so to speak, the substructure. It follows that the department which we call equity is, as a whole, more just and moral in its creation of right and duties than the correlative de- partment which we call the law. It does not follow, however, that t'.K' equity so described is absolutely identical Avith natural justice ar moi'ality. On the contrary, a considerable portion of its rules ;;:) ri;i:si:.\T kki.ation.s ov ki^uity with the law. § 08 are confessedJy based upon expedieiu-y or policy, rather than upon any notions of abstract riglit. SECTION III. THE PRESENT i;i.E.\l IONS OF EQITTY WITH THE LAW. ANALYSIS. § (i8. liiiporlanco of eorrt't'lly understanding these present, relations. § 60. Changes in tlie relations of equity to the law eflfeeted partly by- statute and partly by decisions. §§ 70-88. Important instances of such changes in these relations. 8 TO. In legal rules concerning the efl'ect of the seal. S 71. Ditto suits on lost instruments. S 72. Ditto forfeitures and penalties. ^s; I'.i, 74. Ditto mortgages of land. 5J 75. In statutes concerning express trusts. § 7(i. Ditto recording and doctrines of priorities. § 77. Ditto administration of decedent's estates. S 78. Ditto jurisdiction over infants. §§ 70,80. Ditto married women's property. § 81. In statutory restrictions upon the equitable jurisdiction. §§ 82,83. In the practical abolition of the "auxiliary" jurisdiction. §§ 84-88. In the Reformed Procedure combining legal and equitable methods. / § 68. Importance of Correctly Understanding These Present Re- lations. — In accounting: for the historical origin of equity, and in describing its general nature, it is necessary to go back to the period of its infancy and early growth, when the common law was also in its primitive and tuideveloped condition. We thus naturally form a picture of the two systems standing in marked contrast and even opposition, acknowledging different sources, controlled hy different principles, exhibiting different tendencies, each complete in itself and independent of the other. The impression which i& thus obtained of their relations is too apt to be retained in describ- ing the ecjuity as it has existed at subsequent times, and even as it exists at the present day. The ett'ect of such a tendency to confuse different epochs and conditions is shown in some of the treatises upon equity jurisprudence, which tacitly assnme that all of the oi'iginal antagonism still prevails, and which, ignoring the great and often radical changes made in the law, discuss their subject-matter as though the relations between law and equity continued to be the same as they Avere in the reign of Charles II., or even later, in the reigns of Ceorge III. and George IV., and under the chajicellorships of Ijord Thurlow and I^ord p]ldon — as though all the harsh, arbi- trary, unjust rules which then disgraced the law I'cmaincHl unmodi- § 69 EQUITY JUKISPKUDEXCE. 36 fiecl. Such neglect to appreciate the actual condition of the law will lead to the useless discussion of equitable doctrines which have become obsolete, since all occasion for their application has been removed, and will produce, almost as a matter of course, a distorted representation of equity as a whole. In order, therefore, to form an accurate notion of equity, its present relations with the law must be carefully observed, and to that end the changes which have been made in the law itself, and which have modified those relations, must be pointed out at every stage of the discussion. Without undertaking to give an exhaustive enumeration, or any detailed description, I shall simply mention some of the most impor- tant classes of alterations which have been made in the law since the principles and doctrines of ecjuity were definitely settled. § 69. Changes in the Relations of Equity to the Law. — These changes have certainly been very great. They have been effected, frst, by the legislative Avorlv of the common-law courts; and sccondh/, by statutory legislation. Since the doctrines of equity began to react upon the law, and especially since the impulse given by the brilliant career of Lord Mansfield, the common-law courts have consciously adopted and applied, as far as possible, purely equi- table notions — not so much the technical equity of the Court of Chancery, but the principles of natural justice— in their decision of new cases, and in the development of the law, until a large part of its rules are as truly equitable and righteous in their nature as those administered by the Chancellor. From time to time, the leg- islature has interposed, and by occasional statutes has aided this work of reform. During the past generation, since about 1830 in England, and an earlier date in the United States, this legislative process of amendment has been more constant, more systematic, and more thorough, extending to all parts of the law, and has been the chief agency in the work of legal reform. The result is, that many doctrines and rules which were once exclusively recognized and enforced by chancery have become incorporated into the law, and are now, and perhaps long have been, administered by the law courts in the decision of cases. In this manner, the law has been brought at many points into a coincidence with equity. Nor bas the legislative work been confined to the law; it has largely acted upon the system of equity, and has brought that system into a closer resemblance, external at least, with the law. These changes have naturally gone much further in the United States than in England; the law has been more essentially altered, and equity itself has been subjected to more limitations.^ ^ The author instances alterations in the relations of eqiiity and law by reason of changes in the legal rules in reference to (S 70) the effect of a seal; see post, 37 THE CONSTITUENT PARTS OF EQUITY. SECTION IV. THE CONSTITUENT PARTS OF EQUITY. ANALYSIS. g 89. Object of this section. ^§ 90,91. Rights are eithei- "primarv"' or "reiiiedial" ; each described. § 92. Division of "primary' riglits, viz.: 1. Tliose concerned with personal status; 2. Tliose concerned willi things. §§ 93-95. Two general classes of rights concerned with things, viz.: "real" and "personal"; each described. §§ 96,97. \\'hat of these kind of rights are embraced within equity; both "primary" and "remedial." §§ 9S-107. I. Eqnitable primary rights, kinds and classes of. g§ 108-110. II. Equitable remedial rights, kinds and classes of. S 112. General classes of equitable remedies, f 112. (iJeneral classes of equitable remedies. §§ 113-110. Mode of administering tlicin. § 110. How far legal and equitabh^ modes can be combined. § 117. Recapitulation. § 110. How far legal and equitable modes can be combined. S 117. Recapitulation. § 90. Classes of Rights. — Layino: out of view the rales which form the "public law" and the "criminal law," all the commands and niles Avhich constitute the "private civil law" create two classes of rights and duties, the "primary" and the "remedial." The pri- mary rio'hts and duties form the body of the law; they include all the riahts and obligations of property, of contract, and of personal status: they are the very end and object of all law. If mankind were so constituted that disobedience to legal rules was impossible, then the law would be entirely made up of the rules which create these primary rights and duties. But since all these primary rights and duties may be violated, another branch of the law becomes necessary'', which may enforce obedience by means of the "Reme- dies'" wliich it provides. All possible remedies are either substi- tutes or equivalents given to the injured party in place of his orig- inal primary rights which have been broken, or they are the means by which he can maintain and protect his primary rights in their «S 379, 389: to (§ 71) actions on lost instruments; see post, §§ 280, 831, 832; to (S 72) penalties; see post, 8 434; to (!iS 73. 74) mortgages; see post. §S 1188-1190; to (§ 75) express trusts in land; see post. SS 1003-1005: to (§ 70) recording and prioi-ities; to ( S 77) administration ; to (? 78) infants; to (§ 79) married women's property and contracts; by reason of changes in the law of evidence resiilting in the partial flisappearance of the auxiliary jurisdiction (§§ 82. 83): and above all (5S 84-88) l)y reason of the reformed ])r<)(ei]ure in the majority of the I'nited States am! in Kngbnid : see post, SS3.13-358. ^i):i EQUITY JUKlsriaUE-XCE. 38 actual form and cuiiditiou. Keniedial riolits are those which a person has to obtain some appropriate remedy wiien his primary rights have been violated by another. Remedial duties are those devolving upon the wrong-doer in such case to give the p'-oper remedy presei'il)ed bj- hiw. § 92. Primary Rig'hts. — A very general analysis and classifica-. tion of Primary Eights and Duties will, however, be essential to an accurate notion of the constituent parts of equity. The rules and their resulting primary rights and duties which make up the private municipal law — omitting, as before stated, the public and the criminal law — fall by a natural line of separation into two grand divisions, namely: 1. Those directly and exclusively concerned with or relating to t'ersons; 2. All the remaining portions, which, in a broad sense, relate to or are concerned with Things. The first of these divisions, under a natural and logical system of arrangement, comprises only those rules the exclusive object of which is to define the status of persons; or in other words, those which determine the capacities and incapacities of persons to acquire and enjoy legal rights, and to be subject to legal duties.^ In the United Spates, where nearly all distinctions of class have been abolished, and all i)ersons sui juris stand upon an equality with respect to their capac- ity of enjo^-ing civil rights, and of being subject to civil duties, this division contains but a very small part of the law, as com- pared with the corresponding department in the Roman law, or even in the existing law of many European countries. It alsc fol- h)ws, as a necessary consequence of this principle of classification, that most of the matter which Blackstone, and after him Kent and other institutional Avriters, have treated as belonging to the so-calUxl "Rights of Persons," has been misplaced. Such matter has nc connection whatever with personal status or capacity, and if an\ scientific or consistent system of arrangement is pursued, it plainly l)eh)ngs among those rules which relate to Things.^ 'See 2 Avistin on Jurisprudence, pp. 10, 382, 386, note, 412; vol. 3. ])p. 170-172. - i^iniply as illustrations of this improper classification, without atteniptinw to enumerate all the cases, I mention the following: All the rules concerniiifj tlie property and contracts of married women, and the contracts actually made hy infants, have no proper place in the division which treats of the "Law as to Persons"; they form a part of the law concerning Things, in exactly the same manner, and for exactly the same leasoTi. that the rules regulating the property and contracts of adult men or of single women belong to the law of things. 'I'he same is true of the rules defining rights which Blackstone calls "absolute rights of persons," but which are no more absolute than their rights of property, or rights growing out of contract. The rules defining the rights and duties ex- isting between husband and wife, parent and child, guardian and ward, master and servant, also come within the law concerning things, as trulv as do tho.^o 39 TIIK CONS'ITITKNT I'AKTS OF i;(^riTY. § 05 § !)-■). The priimiry rij^iits enibraeed in tlie second grand division of the law — tlio.se concerned witli or relating to Things — are nat- urally separated into two principal classes, namely, Rights in rem, or Real rights, and Rights in personam, or Personal rights. Rights in rem, or real rights, are those which, from their very nature, avail to their possessor against all mankind, and a correlative duty rests alike upon every person not to molest, interfere with, or violate the right. Rights in personam, or personal rights, are those which avail to their possessor against a specified, particular person, or body of persons only, and the correlative duty not to infringe upon or vio- late the right rests alone upon such specified person or body of persons. §94. Real Rights. — The first of these classes, the rights in rem, embraces three distinct genera, which differ from each other in tlie subject-matter over which the rights extend, but not in the essen- tial nature of the rights themselves. These three genera arc: 1. Rights of property of every degree and kind over lands or chat- tels, things real or things personal; 2. The rights which every per- son has over and to his own life, body, limbs, and good name-, o. The rights which certain classes of persons, namely, husbands, par- ents, and masters, have over certain other persons standing in do- mestic relations with themselves, namely, wives, children, and ser- vants and slaves. The rights of the husband, parent or master orcr the wife, child, or servant are in our law very meager and limited, but so far as they exist at all, they resemble the more complete rights of property, because they avail against all man- kind, antl impose an equal duty upon every human being. Thus the husband is. by virtue of this right, entitled to the society of his wife, and the father is entitled to the services of his infant children, while a duty rests upon every person not to violate these rights by enticing away, seducing, or injuring the wife or child. This latter group of rights must not be confounded with those which the husband and wife, parent and child, master and servant, Jinld against rajh oilier, and which resemble in their nature, the rights arising from contract. § 95. Personal Rights. — The second class, rights in personam, personal rights (called by the Roman law "Obligations") includes two distinct genera, namely: 1. Rights arising from contract; and -. Rights arising, not from contract, but from some existing rela- tion between two specific persons or li'roups of persons, which is wliic}i doflno tho rifrlits and dntir-^ ('xi^1in:\\ Slate R. Co., 10.3 :\fass. .514. 53 FUNDAMENTAL PRINCIPLES AND DIVISIONS. § \33 remedy granted were Avholly legal, and l)elungiri«r properly to tiie domain of the law courts, such judgment, iu)wever erroneous it might be and liable to reversal, would not nccvi^sarihi be null and void. On the contrary, as will be more I'uHy stated hereafter, the ol)- jeetion that the case does not come within this so-called equity juris- diction must ordinarily be definitely raised by the defendant at the commencement of the proceedings, or else it will be regarded as waived, and the judgment will not even be erroneous.^ In some in- stances, however, where the equitable functions of the court are spe- cifically defined by statute, or the facts show very clearly that the rights involved in the controversy and the remedies demanded are purely legal, and completely within the scope of ordinary legal pro- ceedings, the court of equity will itself take the objection at any stage of the cause, and will dismiss the suit, although no objection h.as in any way been raised by the parties. - § 132. Extent of the Jurisdiction. — . . . The attempt has been made to furnish one comprehensive test for the solution of all questions which may arise as to the existence of the jurisdiction — to reduce all special rules to one general formula. To this end, it has often been said by courts as well as by text-writers that the equity jurisdiction extends to and embraces all civil cases, and none others, in which there is not a full, adequate, and complete remedy at law. . . §133. The general criterion which has thus been proposed is, however, insufficient and misleading. Although the inadequacy of legal remedies explains, and is even necessary to explain, the inter- position of equity in certain classes of cases, it wholly fails to ac- count in any consistent and correct manner for the entire equity jurisdiction. The history of the court of chancery shows that all its powers cannot be referred to this source. It is true that the common-law modes of procedure are utterly inadequate to meet all the ends of justice, and to administer all the remedies which are granted by equity; and that in simie general sense equity is estab- lished to supply this defect in the law. But the absence of full, adequate, and complete remedies at law does not constitute a basis upon Avhich to rest the whole equity jurisdiction, nor furnish a practical explanation of all the doctrines and rules which make up the eciuity jurisprudence. No theory is scientifically complete, nor practically efficient, which does not recognize two distinct sources and objects of the equity jurisdiction, namely, the primary rights, estates, and interests which ecjuity jurisprudence creates and pro- tects, and the remedies which it confers. These two facts in com- K'roely v. Bay State P.. Co., 103 Mass. 514. -Hipp V. Jiabin, If) How. 271, 278. § 137 EtiLiTY ,]ri;i>ri;rDi:N(i:. 54 bination can alone define the extent antl fix the limits of the equity iurisdiction. §136. Divisions. — Adopting', therefore, the primary rights, es- tates, and interests ^vhieh equity creates, and the remedies which it confers, as the objects which define and limit the extent of the equity jurisdiction, I shall state the principles by which the extent and limits of that jurisdiction are ascertained. It has been cus- tomary among writers to distinguish the equitable jurisdiction as exclusive and concurrent, and some have added the third .subdivision, aii.rUiary. § 137. Exclusive Jurisdiction. — The exclusive jurisdiction ex- tends to and embraces, first, all civil cases in which the primary right violated or to be declared, maintained, or enforced — whether such right be an estate, title, or interest in property, or a lien on property, or a thing- in action arising: out of contract — i.s purely equitable, and not legal, a right, estate, title, or interest created by equity, and not by law^ All cases of this kind fall under the ecjuitable jurisdiction alone, because of the nature of the primary or substantive right to be redressed, maintained, or enforced, and not because of the nature of the remedies to be granted -, although in most of such instances the remedy is also equitable . . . § 138. The exclusive jurisdiction includes, secondJij. all civil cases in which the remedy to be granted — and, of course, the remedial right — is purely equitable, or one which is recognized and administered by courts of equity, and not by^ courts of law. In the cases of this class, the primary right which is maintained, redressed, or enforced is sometimes equitable and is sometimes legal ; but the juridiction depends, not upon the nature of these rights, estates, or interests, ])ut wholly upon the nature of the remedies.^ Cases in which the remedy sought and obtained is one which equity courts alone are able to confer must, upon any consistent system of classification, belong* to the exdusive jurisdiction of equity, even though the primary right, estate, or interest of the party is one wliich courts of law recognize, and for the violation of which they give some remedy. Thus a suit to compel the specific performance of a contract falls under the exclusive jurisdiction of equity, al- though a legal right also arises from the contract, and courts of law will give the remedy of damages for its violation Again, the particular fact or event which occasions the peculiar equitable remedy, and gives rise to the right to such remedy, may also be the occasion of a legal remedy and a legal remedial right ' I'he text is quoted in Montana Ore Pn roll a sin, 2' Co. v. Boston & "SL Consol. (". & S. Min. Co., 27 Mont. .530, 70 Pac. 1114, 71 Pac. 100.5, an action to quiet title. 55 FUNDAMENTAL PRINCIPLES AND DIVISIONS. § 139 simultaneous with the equitable one. This is especially tru.e with reference to fraud, mistake, and accident. Fraud, for example, may at the same time be the occasion of the legal remedy of dam- ages and of the equitable relief of cancellation. These two classes of cases cannot, however, be regarded or treated as belonging to the concurrent jurisdiction; such a mode of elassifieation could only be productive of confusion. The criterion which I have given is always simple and certain in referring to the exclusive jurisdic- tion all cases in which the remedy is given by courts of equity'- alone, without regard to the nature of the substantive right which forms the basis of the action, or to the fact or event which is the occasion of the required relief. In this manner only is the notion of jurisdiction preserved distinct from all questions as to the pro- priety of exercising that jurisdiction and of granting relief by equity courts in particular cases. . . . § 139. Concurrent Jurisdiction. — The concurrent jurisdiction em- braces all those civil cases in which the primary right, estate, or interest of the complaining party sought to be maintained, enforced, or redressed is one which is cognizable by the law, and in which the remedy conferred is of the same kind as that administered, under the like circumstances, by the courts of law — being ordi- narily a recovery of money in some form. The primary right, the estate, title, or interest, Avhich is the foundation of the suit, must be legal, or else the case would belong to the exclusive jurisdiction of equity; and the law must, through its judicial procedure, give some remedy of the same general nature as that given by ecjuity, but this legal remedy is not, under the circumstances, full, adequate, and complete. The fact that the legal remedy is not full, adequate, and complete is, therefore, the real foundation of this roncurrent branch of the equity jurisdiction.^ This principle is well illustrated ^ The text is quoted in Myers v. Sierra Valley Stock & Agrie. Assn.. 122 Cal. 069. 55 Pac. 689 (remedy to enforce contribution among stockholders is at law) ; Buck'v. Ward, 97 Va. 209, 33 S. E. 513 (suit to recover money expended by reas- on of defendant's fraud). There is a distinction here of great importance, but which has often been nverlooked. The Avant of a full, adequate, and complete remedy at law. under the circumstances of the parti^-ular case, is also the reason why the jurisdiclioK of equity is actually exercifted, and a decision is made in favor of the plaintiff jrranting him equitable relief, in some instances of the exclusive jurisdiction: av. for example, in suits for the specific performance of contracts. But such fact is not in these instances the foundation of Ihe juriftdiction : it is only the occa- iqnity are competent to administer the same remedy, and the foundation of X\\^ si(m on which a decision is riirlitfully made in pursuance of the doctrines of equi- ty jurisprudence by courts already possessinir the jurisdiction. The jurisdiction exists because courts of equity alone are competent to administer tbese remedies. In all instances of conciirrruf jnri^diftioii. both the courts of law and those of § 142 EQUITY JUIUSPKUDEXCE. 56 by the case of contribution among sureties. The surety entitled to reimburseinent may maintain an action at hiw, and recover a pecun- iary judgment against each of the persons liable to contribution, but this legal relief is subject to so many limitations that it may often fail to restore the plaintiff to his rightful position. The equity suit for a contribution gives exactly the same final remedy — a re- covery of money; but on account of the greater freedom and adapt- ability to circumstances incident to the equitable procedure, it enables the plaintiff' in one proceeding to obtain such complete reimbursement as relieves him ett'ectually from all the burden which does not properly rest upon him, and produces a just equality of' recompense as well as of loss among all the parties.^ § 142. Auxiliary Jurisdiction. — The auxiliary jurisdiction, in its original and true scoi)e and meaning, is in fact a special case of the "exclusive," since its methods and objects are confined to the equity procedure. In all suits which belong to this jurisdiction in its original and proper sense, no remedy is either asked or granted; their sole object is the obtaining or preserving of evidence to be used upon the trial of some action at law. The eases embraced within this proper auxiliary jurisdiction are suits for discovery, to obtain an answer under oath from a party to a pending or antici- pated action at law, which answer may be used as evidence on the trial of such action; suits for the perpetuation of evidence; and suits for the obtaining of evidence in a foreign country. The latter two species of suits are practically obsolete in this country, having been superseded by more summary and efficient proceedings author- ized by statutes. jurisdiction in equity is tlie inadequacy of the relief as it is administered through means of the legal proeeilure. The exclusive jurisdiction of equity rests upon an entirely diflerent foundation, and exists absolutely without reference to the adequacy of legal reliefs. 'J'his distinctitm is a plain one. but is often lost sight of; the two classes of cases are often confounded, and the equitable jurisdiction, in all instances exclusive and concurrent, is made to r<'st merely upon tht in- adequacy of legal remedies. This error grows out of the tendency to confound questions as to the equitable jurisdiction ; i. e., tlie i)ower of equity courts to hear and decide, with the altogether diflferent questions as to the rightfulness of their decision; i. e. whether, according to the doctrines of equity, a case unquestion- ably within their jurisdiction was properly decided. ^Bering v. Earl of Winchelsea, 1 Cox 218, 1 Lead. Cas. Eq. 120, Sh. 94, 1 Scott 367. 57, THE EXCLUSIVE JUIUSDICTION. § IKi SECTION II. THE EXCLUSIVE .JURISDICTION. ANALYSIS. § 146. Equitable priniaiy rigid s and "equiUos'' dofiiiod. §§ 147-149. Equitable estates described. § 150. Certain distinctive equitable doctrines forming part of equity jurisprudence. §§ 151-155. Trusts described. § 150. Executors and administrators. §§ 15?, 158. Fiduciary relations. §§ 159, U)0. I\Iarried women's separate? property. § 101. Estates arising from equitable conversion. §§ 1G2, 103. Mortgages of land. § 164. ^Mortgages of personal property. §§ 165-167. Equitable liens. §§ 168, 169. Estates arising from assignment of tilings in action, possibilities, etc., and from an equitable assignment of a fund. §§ 170-172. Exclusive equitable remedies described. § 146. Equitable Estates, Interests, and Rights in Property. — It was stated in the preeedinp; section^ that the exclusive jurisdiction included, first, all civil cases based upon or relating to equitable e:=tates, interests, and rights in property as the subject-matter of the action, whatever may be the nature of the remedy; and secondly, <".ll civil cases in which tlie remedy granted is ])ur(^]y equitable, tbat is, administered by courts of equity alone, whatever may be the nature of the primary right, estate, or interest involved in the action. I purpose now to describe these two classes in a general manner. Equitable primary rights, interests, and estates may exist in things real and in things personal, in lands and in chattels. They are also of various amounts and degrees, from the substantial beneficial ownership of the subject-matter down to mere liens. In all cases, however, they are rights in, to, or over the subject-matter, recognized and protected by equity, and are to be distinguished from the so-called "ecpiities," a term which, when properly used, denotes simply the right to some remedy administered by courts of equity.- A cestui que trust, a mortgagee, a vendee in a contract for the sale of land, is clothed with an equitable estate or interest; ^ §§ 137, 138. "The term "an equity" is tbus synonymous with what T have denominated an equitable remedial right. It is, however, constantly used in a broader and improper sense, as describing every^ kind of right which cquitj' jurisprudence recognizes, — estates and Interests in land, or chattels, liens, and rights to obtain remedies. Such indiscriminate use of the term only tends to produce confusion of thoiisht. § 14S EQUITY JTRISPRUDEXCE. 58 wliile the mere right to liave an instrunieut reformed or canceled, or to have a security marshaled, and the like, is properly "an equity." § 147. Equitable Estate Defined. — An equitable estate, in its very conception, and as a fact, requires the snnultaneous existence of two estates or ownerships in the same subject-matter, whether that be real or personal — the one legal, vested in one person, and recog- nized only by courts of law; the second equitable, vested in an- other person, and recognized only by courts of equity. These two interests must be separate, and as a rule, must be held b,y different persons; for if the legal estate and the equitable estate both be- come vested in the same person by the same right, then, as a gen- eral rule, a merger takes place, and the legal estate alone remains.^ There are indeed exceptions to this general doctrine; for under certain circumstances, as will appear hereafter, equity prevents such a merger, and keeps alive and distinct the two interests, although they have met in the same owner.- In all cases of equitable estates. as distinguished from lesser interests, whether in fee, for life, or for years, they are in equity what legal estates are in law; the ownership of the eqnitable estate is regarded by equity as the real ownership, and the legal estate is, as has been said, no more than the shadow always following the equitable estate, which is the sub- stance, except where there is a purchaser for value and without notice who has acquired the legal estate.^ This principle of a double right, one legal and the other equitable, is not confined to equitable estates, properly so called; it is the essential characteristic of every kind of equitable interest inferior to estates. In the total ownership resulting from mortgages, or from the operation of the doctrine of convei'sion, or from the assignment of things in action, and other interests not assignable at law, and in liens, there is al- Avays a legal title or estate vested in one person, recognized b}' courts of law alone, and an equitable interest. OAvnership, or claim, distinct from a >iK're right of action or remedial right, vested in another person, which is recognized, aud. according to its nature, protected or enforced by courts of equity. § 148. Ecpiitable estates and interests of all kinds are separated by a broad line of distinction, with respect to their nature and the mode in which e(|uity deals with them, into two classes. The first class contains those in which the equitable estate is regarded as a permanent, subsisting ownership; the separation between the legal ' Selby V. Alston. .", \'o>. .^.^O. "These apparent, exee]itions really eonfirni the crenernl rule. See post. §§ TSG- SOO. ' See Burgess v. Wheate, 1 Eden. 22'\. 1 Seott 58. ■)9 TlIK KXCLISIVK JURISDICTION". § 14'.' and equitable titles is not treated as an anomaly, much less a wronu-, but as a fixed and necessary condition to be preserved as long' as the estantially similar to that in the omitted §§ 151- 109, may be obtained by a study of the following paragraphs: Uses and trusts; §§970-978, 983, 984, 980,. 987. Classes of trusts; §987. Express private pas- sive and active trusts; §§ 988, 989, 991. Express public trusts or charities; §8 1018, 1020, 1028, 1029. Trusts arising by operation of law; §§ 10.30, 1031, 1034. Executors and administrators, and estates of decedents; §§ 1152-11.54. Fiduciary relations; §§ 1088, 1097. 'Married women's separate property and contracts; See §§ 1098, 1099, 1105, irZl, 1125. ^Conversion; See §§ 371. 1159. * Mortgages, the P^nglish doctrine; §§ 1179-1182. The American doctrine; §§ 1180-1188, 1190. '^ Mortgages of personal pi'opeity; §§1229, 1230, 1232. « Pledges; § 1231. 'Equitable liens, in general; §§ 1233, 1234. Various classes of liens; §§ 1235, 1230, 1239, 1244, 1249, 1255, 1200, 12<'>3, 1204. 1208, 1209. * Assignments of things in action, possibilities, contingencies, and expectan- cies; §§ 1270-1273, 1277, 1278, 1283, 1285, 1287. Equital)le assignment of a fund; § 1280. To these might be added, as an example of equitable primary rights not being estates or interests in nor liens on specific property, the right in equity of a credi- tor against the personal representatives of a deceased joint debtor, although his right is wholly gone at law; and the similar right of the personal representatives of a deceased joint creditor. 61 Tiii: cuxcLiajEXT jlkisuictio.n. j? Ho certain general Woodswortli V. Tanner. 94 Mo. 124. 7 S. W. 104. STones v. MacKenzie, 122 Fed. 390; Chambers v. Chambers, 98 Ala. 454, 13 «outh. 674. 65 THE coxcl'i;i;i;nt juiusdictiox. § 179 inL>', or contribution, and the like, full and certain remedies are af- forded by actions at law, and e(iuity has no jurisdiction; these are cases especially within the sole cognizance of the law.^ This prop- osition does not state the entire doctrine. Even when the cause of action, based upon a legal right, does involve or present, or is con- nected with, some particular feature or incident of the same kind as those over which the concurrent jurisdiction ordinarily extends, such as fraud, accounting, and the like, still, if the legal remedy by action and pecuniary judgment for debt or damages would be complete, sufficient, and certain — that is, would do full justice to the litigant parties — in the particular case, the concurrent juris- diction of equity does not extend to such case.- For example, when- ever an action at law will furnish an adequate remedy, equity does not assume jurisdiction because an accounting is demanded or needed ;" nor because the case involves or arises from fraud \* nor because a contribution is sought from persons jointly indebted/"' § 179. Cognizance First Taken by a Law Court. — In further limitation upon the power of equity to interfere wiiere the primary rights, interests, or estates are legal, the doctrine is well settled that when the jurisdictions of law and of equity are concurrent, the one which first takes actual cognizance of any particular con- troversy ordinarily becomes thereby exclusive. If, therefore, the subject-matter or primary right or interest, although legal, is one of a class Avhich may come within the concurrent jurisdiction of equity, and an action at law has already been commenced, a court of equity will not, unless some definite and sufficient ground of equitable interference exists, entertain a suit over the same subject- matter even for the purpose of granting reliefs peculiar to itself, such as cancellation, injunction, and much less to grant the same kind of relief which can be obtained b.y the judgment at law. The grovuids which will ordinarily prevent the application of this doc- trine, and will permit the exercise of the equitable jurisdiction in ' Finnegan v. Fernandina, L5 Fla. 379, 21 Am. Rep. 292; Marsh v. Kaye, 16S X. Y. 196, 61 N. E. 177, 2 Ames Eq. Jur. 89; Bernz v. Marcus Sayre Co., 52 X. J. Eq. 275, 30 Atl. 21. . -Campbell v. Rust, 85 Va. 653, 8 S. E. 664: Gaines v. Miller, 111 U. S. 395. 4 Sup. Ct. 426; Boyce v. Allen. 105 Iowa 249. 74 X. W. 948. ^Tewett V. Bowman, 29 X. J. Eq. 174; Dargin v. Hewlitt, 115 Ala. 510. 22 South 128; Galusha v. Wendt, 114 Iowa 597, 87 X. W. 512. *Bay City Bridge Co. v. Van Etten, 36 INIich. 210; Pohemus v. TTolhm.l Trust Co., 59 N. J. Eq. 93, 45 Atl. 534; Buzard v. Houston. 119 U. S. 347. 7 Su,.. Ct. 249, H. & B. 268, 3 keener 487. '■ Stone V. Stone, 32 Conn. 142 ; Myers v. Sierra Val. Stock & Agric. Assn., 122 Val. 669, 55 Pac. 689. § 180 EQUJTV JLRISPKUDEXCE. (56 such eases, are the existence of some distinctively equitable feature of the controversy which cannot be determined by a court of law, oi- some fraudulent or otherwise irregular incidents of the legal proceedings sufficient to warrant their being enjoined, or the neces- sity of a discovery, either of which grounds would render the legal remedy inadequate. This rule results in part, in the United States, from the provisions' of the national and state constitutions secur- ing the right to a jury trial which belongs especially to the ma- chinery of legal actions.^ In cases which are brought to procure some distinctively equitable remedy, and which therefore belong to the exclusive jurisdiction, the doctrine must be regarded as merely regulating the exercise of that jurisdiction, but in the cases which belong to the conpnrrent jurisdiction it must be regarded as one of the elements which determine the very existence of such jurisdiction. § 180. General Principle — Concurrent Jurisdiction Exists. — . . . The doctrine, in its most general and comprehensive form, admits the existence of the concurrent jurisdiction over all cases in which the remed}^ at law is not certain, complete, and sufficient. The fact that there is a legal remedy is not the criterion; that legal remedy^ l)oth in I'espect to its final relief and its modes of obtaining the relief, must be as efficient as the remedy which equitj^ would con- fer under the same circumstances, or else the concurrent jurisdic- tion attaches. In applying this doctrine, the ordinary instances of the concurrent jurisdiction in which the final relief consists in the obtaining possession of a specific parcel of land, substantially the same as would be conferred by a court of law, are fcAV and well defined; namely, the partition of land, the assignment of dower, and the settlement of disputed boundaries. But in addition to these three classes, the concurrent jurisdiction embraces other cases involving the ownership or enjoyment of lands, and a relief which is substantially the recovery of possession will be conferred, where the facts and circumstances are special, and the remedy at law would be doubtful, incomplete, or insufficient. The same is true Avith respect. to pecuniary relief. While the various instances in which equity Avill decree a recovery of money as the final remedy, and which constitute a most important part (tf its concurrent juris- diction, are well ascertained and form a settled and certain remedial system, they by no means exhaust that jurisdiction; it extends to and embraces all cases o? legal primary rights and causes of action for Avhich the laAV furbishes no certain, adequate, and complete I'emedy. 'Crand Chute v. \Yinei:ar. 1.5 AA'nll. 373. 2 Anips Kq. Jiir. llf!; Tji(s(>r. §S 201-207. 11 J. 'Ilu' nature. sul)j('fl-iiiattcr, and ohjccts of the discovery itself: of what the ])laintitl' may compel discovery, and the defendant mvist make discovery. § 201. General doctrine; of what facts discovery may be compelled. § 202. Of what kinds of facts discovery will not be compelled. § 20.">. \\'hat is priviled5 1".)'. also carefully guarded, so as not to infriiifi'e upon the defendant's rii -^^^l eral rule is well settled, and admits of only one or two special ex- ceptions, which are necessary to prevent a failure of justice, that no person can properly be made a defendant in the suit for a discov- ery, or compelled as such to disclose facts within his knowledge, unless he has an interest in the subject-matte i' of the controversy in aid of which the discovery is asked.- Thus, as an illustration of this rule, arbitrators cannot, in general, be joined as defendants to a bill of discovery and compelled to disclose the grounds of their award." but if they are charged with actual misconduct, fraud, or corruption, they are obliged to answer with respect to such allega- tions.'* As another illustration of the rule, mere witnesses cannot be joined as defendants and obliged to answer; nor can a mere agent be made a party for purpose of obtaining a discovery from him/' This application of the rule is not without exception. Where an agent, as, for example, an attorney, has assisted his principal in the accomplishment of actual fraud, he may be made a co-defendant and compelled to disclose the facts." The most important exception is in case of suits against corporations. Where it is desired to obtain discovery from a corporation in a bill filed against it for that pur- pose, it is firmly settled by the authority of decided cases that a secretary or some other officer may and must be joined as a co- defendant, from whom the discovery may be obtained by his answer nnder oath. This exception is based wholly upon considerations of ■expediency, since a corporation cannot make an answer on oath, nor be liable for perjury.' For the same reason, the rule has been •extended by modern cases to suits by and cross-bills against nations or states which are not monarchical, such as the United States of America and other republics.^ § 201. III. The Nature, Subject-Matter, and Objects of the Dis- covery Itself; that is, the Matters Concerning Which the Plaintiff may Inquire and Compel a Discovery, and the Defendant must An- swer and Make Discovery. — The fundamental rule on this subject is, that the plaintiff's right to a discovery does not extend to all facts which may be material to the issue, but is confined to facts Avhich are material to his oicn title or cause of action; it does not en- able him to pry into the defendant's case, or find out the evidence -Dineley v. Dinoley, 2 Atk. 304. Sec In re Barned's Bank, L. R. '2 Ch. .350. = Stewart v. East India Co., 2 Vern. 380. * Duninier v. Corp'n of Chippenham, 14 Ves. 252. 'Detroit Copper and Brass RoUinsj Mills Co. v. Ledwidge, ](,2 111. 305, 44 X. E. 751. " Diunmer v. Corp'n of Cliippenhain, 14 Ves. 252, 254. ^VVych V. Meal, 3 P. Wins., 311, 312, per Talljot, L. C; Colgate v. Compagnie Prancaise du Telegraphe, 23 Fed. S2. U'nited States v. Wagner, L. R. 2 Ch. 582; L, R. 3 Eq. 724. § 202 EQUITY JUIUSPKUDEXCE. SO l)y which that ease will be supported. The plaintiff is entitled to a disclosure of the defendant's title, and to know what his defense is, but not to a statement of the evidence upon which the defendant relies to establish it.^ This rule, however, must be understood with the limitation that the plaintiff may compel the discovery of all facts material to his own cause of action, even though the defend- Mut's evidence may thereby be incidentally disclosed,- as, for exam- ple, where the establishment of the plaintiff' 's title or cause of action involves the proof of fraud ; and the defendant, besides discovering what the case is on which he relies, can be compelled to disclose all facts which would, by way of evidence, tend to uiipeacJi or dcsfroi/ it, unless otherwise privileged, .since such facts are material evi- dence for his adversary, but is not bound to disclose any evidence by which he intends to or may support his case, for such evidence cannot be material to the plaintiff'.'^ As a direct inference of this general rule, all the facts which the plaintiff seeks to discover must be material : the defendant is never compelled to disclose matters which are ini material as evidence to support the plaintiff"'s conten- tion ; he is never obliged to answer vexatious or impertinent ciues- tions, asked from curiosity or malice.'' § 202. As a general proposition, the discovery, in order to be } panted, must be in aid of some object which a court of equity can regard with approval, or at least without disapproval, — some ob- ject which is not opposed to good morals or to the principles of public policy embodied in the law.^ This doctrine is the foundation of several particular rules regulating the practice of discovery. The first of these particular applications of the doctrine is, that a defend- ant in the discovery suit, or in a suit for relief as well as discovery, is never compelled to disclose facts which would tend to criminate himself, or to expose him to criminal punishment or prosecution, or to pains, penalties, fines, or forfeitures. He may refuse an answer, not only to the main, directly criminatiiig facts, but to every inci- dental fact which might form a link in the chain of evidence estab- lishing his liability to punishment, penalty', or forfeiture.' This re- striction upon the right to a discovery is subject to several limita- ' Sunset Telephone & 'J\ Co. v. City of Eureka, 122 Fed. 0(51 ; Saccharin Corporation v. Cliemicals & Drugs Co., (1900) 2 Ch. 556; Benbow v. Low, L. R, 16 Cli. D. 03. -Dock V. Dock, 180 Pa. St. 14, .36 Atl. 411, 57 Am. St. Eep. 617. ^Attorney General v. Corporation of London, 2 Mae. & G. 247, 256. 257. 13 Beav. 31.3; Edison Electric Light Co. v. U. S. Electric Light Co., 45 Fed. 55. 5S. M\icl)nr(ls v. .laekson, IS Ves. 472: Alexander v. Mortgage Co., 47 Fed. 131. ^ Co,nsins v. Smith, 13 Ves. 542. -Lnited States v. Saline Bank, 1 Pet. 100; Robson v. Doyle, 101 III. 566, 61 N. E. 435. 81 Till-: AUXILIARY JIUISDICTION. §204 tions and exceptions necessary in order to promote the ends of jus- tice. A defendant is always compelled to disclose his frauds and fraudulent practices, when such evidence is material to the plain- tiff's ease, even though the fraud might be so great as to expose the defendant to a prosecution for conspiracy, unless perhaps the indictment was actually pending.-^ And a party may have so con- tracted that he has thereby bound himself to make discovery, al- though it might subject him to pecuniary penalties.* §203. Privileged Communications.— Another application of the general doctrine concerning public policy is, that no disclosure will be compelled of matters a knowledge of which has been communi- cated or obtained through or by means of certain close confidential relations, which are carefully guarded and protected from invasion or interference by the general policy of the law. For this reason a married Avoman cannot be compelled to disclose facts tending to establish any liability of her husband, the knowledge of which was acquired by her through her marital relation.' On the same founda- tion of principle rests the important rule that a party will not be compelled to disclose the legal advice given him by his attorney or counsel, nor the facts stated or matters communicated between him- self and them in reference to the pending suit, or to the dispute which has resulted in the present litigation ; nor, on the other hand, will these professional advisers be compelled or permitted to dis- close the mattere which they have learned or communicated in the same manner.- With respect to the nature of the matter passing between the client and his attorney or counsel, the protection is not absolute nor universal. The privilege from disclosure embraces those matters alone "in which it is lawful for the client to ask and the solicitor to give professional advice"; and therefore communi- cations by which fraud is contrived or arranged between a lawyer and client are wholly excluded from the privilege, and nnist be di- vulged.'' . . . Upon the same consideration of public policy con- trolling discovery, the rule is settled that governmental officers, whether civil or military, are not compelled to disclose matters of state, where the public interests might be harmed by such a dis- closure, at the suit of a private individual.^ § 204. Manner of Making Discovery. — Having thus ascertained ^ Skinner >!. Judson. 8 Conn. r)28, 21 Am. Dec. 091 ; Postlethwaite v. Rick- -T.an. L. R. .3.5 Ch. Div. 722. *C!reen v. Weaver, 1 Sim. 404. ' Cartwrisjlit v. Green, 8 Ver. 405. 408. -Bank of L'tiea v. Mersereau. 3 Jinrb. Ch. .528. 4!) Am. Dec. 189; Lyoll v. Kennedy, L. R. App. Cas. 81. ='See Unllivant v. Attorney-CU'neval. [1901] App. Cas. 196. ♦Smith V. Kast India Co., 1 Piiill. Ch. 50. 6 5^ ^.^08 EQUITY JUIUSPRUDENCE. . 82 Avliat matters are exempt from a discovery, and of what a discovery will be compelled, it remains to consider certain settled rules con- ;"ill be nossessed of all liis statonients and exjilanalion or qualification of his admissions.* EXAMINATIOX OF WITNESSES. § 210. This Jurisdiction Described.— While the first branch of the auxiliary jurisdiction deals with the matter of obtaining evi- dence from the parties themselves, the second branch comprises the methods of examining witnesses who are not parties, and of preserv- ing their evidence for future use at the trial of actions at law, or at the hearing of suits in ecjuity. This branch of the auxiliary juris- diction Avas dou])tless established in aid of proceedings at law, al- though its methods may also be used in suits strictly equitable. Where a right now exists, which is likely to be disputed or contested at some future time, but no action can yet be brought for the pur- ])ose of establishing it, and there is danger that all the witnesses Avill have died, and the evidence by which alone it can be supported will have disappeared before that time arrives at Avhich an action can be brought, the common law furnished no means for taking the testimony of the witnesses in anticipation. To prevent such a fail- ure of justice, the auxiliary jurisdiction of equity contrived the suit for perpetuating the testimony of Avitnesses under such circum- stances. Again, AA'here a suit at laAV has actually been commenced, but has not reached the time for trial, and there is danger lest the evidence of certain material Avitnesses should be lost, from their ex- treme age, or from their being sick, or from their being about to leave the country, and also Avhere in such a suit material Avitnesses are actually in a foreign country, so that their attendance cannot be compelled, nor their testimony taken upon deposition by any modes which the common laAV had furnished, the auxiliary jurisdiction supplied the defect by means of a suit to take the testimony of the AA'itnesses de bene esse in the one case, and a suit to take the testi- mony of the witnesses in foreign countries upon a commission issued out of chancery in the other case. As these three equitable proceed- ings Avere very cumbrous, and as they have been practically super- seded. eA'en if not expressly abolished, both in England and in most of the states, by more simple, direct, and efficacious statutory meth- ods, a A'ery brief description of them AA^ill suffice. § 211. I. Suit to Perpetuate Testimony. — A suit to perpetuate testimony could only be maintained where the plaintiff had at the time some right A^ested or contingent, to which the testimony Avould relate; but such right could not fJirn be investigated, established, or defenrled by an action at laAV. As the foundation of the suit, the 'Pant V. Miller, 17 Gratt. 187. § 211 EQUITY JURlsriUDEXCE. 8-1 plaintiff in it, not yet being' in possession of the property in ques- tion, might have a future interest, to take effect only upon the hap- pening of some future and perhaps contingent event; or he mi;. j^ •^29 discovery to its legitimate function of furnishing evidence, and prevents it from operating to extend the equitable jurisdiction to causes which would otherwise be solely cognizable at law. § 227. American Rule. — . . . The rule has been asserted l)y many American courts in very general terms, that whenever a court of equity has obtained jurisdiction of a cause for any one purpose, it may retain such cause for the purpose of adjudicating upon all the matters involved, and of granting complete relief. As a consequence of this principle, whenever the court can enter- tain a suit for discovery, and a discovery is obtained, the court v.'ill go on and decide the whole issue, and will grant to the plaintiff, if he has prayed for it, whatever relief is proper, even though such relief is legal in its kind, and could have been obtained by an action at law.^ § 228. It is plain that this doctrine, although expressed in such broad terms', cannot be intended to operate in all of its generality. Taken literallj^ and without limitation, it would break down the barriers betAveen the jurisdictions in equity and at law. and would virtually render the equitable jurisdiction universal by bringing every judicial controversy within its scope. Before the modern legislation concerning witnesses and evidence, the actions at law were very few in which one or the other of the parties might not be aided by a discovery, and might not, in conformity with settled rules, maintain a suit for a discovery. § 229. Limitations were therefore established which very much restricted the operation of the doctrine. In the first place, the rule is settled in those American courts which admit the general doctrine, that when the action is one cognizable at law, in which the rights and remedie.s are legal, and which does not otherwise belong to the equitable jurisdiction, but which the plaintiff brings in a court of equity under the doctrine that a discovery of itself enables equity to extend its concurrent jurisdiction over the whole cause, he must allege that the facts concerning- which he seeks a disclosure are material to his cause of action, and that he has no means of proving those facts by the testimony of Avitnessess or by any other kind of evidence used in courts of law, that the only mode of establishing them is by compelling the defendant to make disclosure, and there- fore that a discovery by suit in equity is indispensable. Without these allegations the plaintiff cannot avail himself of the doctrine been adopted in some American states; See Mitchell v. Creene, 10 Met. 101; :\filler V. Scammon, 52 N. H. 609, II. & B. 205; 8afford v. Ensign Mfg. Co.. (C. C. A.) 120 Fed. 480, 48.3. ' Sonborn v. Kittiedge, 20 Vt. G.32, 50 Am. Dee. 58; Lancy v. Randlett. 80 Me. 100, (J Am. St. Rep. 1G9, 1 Scott 4-00. § 230 EQUITY JUHISI'KLUEN-CE. 94 and obtain relief as a consequence of the discovery. Nor are these allegations a mere empty form, a mere fiction of pleading; they may be controverted, must be supported by proof, and if disproved, the whole foundation for the equitable interference in the case would fail.^ In the second place, if the defendant by his answer fully denies all the allegations of fact with respect to Avhich a dis- covery is demanded, the suit must fail ; the court of equity cannot grant the relief prayed for, since its jurisdiction to give relief in such causes, according to the very assumption, rests upon the fact of a discovery rightfully obtained. - § 230. True meaning of the American Rule. — . . . The ques- tion then arises. What effect has been produced upon this particular doctrine by the modern legislation, which authorizes the examination of parties on the trial of actions, abolishes the disabilities of wit- nesses, and removes the other legal restrictions upon the admissi- bility of evidence? In my opinion, the necessary effect of such legis- lation has been to abrogate the doctrine altogether, even in those states where "discovery" is still retained. In fact, the foundation upon which this peculiar American doctrine concerning the effect of discovery in the classes of eases above described was rested by the courts, has been wholly swept away by these reformatory sta- tutes. It is simply impossible for a plaintiff' now to allege with truth, and of course impossible for him to prove in any controversy legal in its nature, that a discovery by means of a suit in equity is essrnfial to his maintaining his cause in action, and that he is unable to estab- lish the issues on his part by the testimony of witnessess, and by other evidence admissible in courts of law. ... It is true that the principle is well settled that when a court of equity had jurisdiction over a certain subject-matter, it does not lose such juris- diction when courts of law have subsequently acquired the same jurisdiction. In my opinion the matter under consideration does not come within the operation of this principle. It is not the case of a jurisdiction held by courts of e(|uity which courts of law did not originally possess, but have now obtained. By the very assump- tion, the controversy, the cause of action, and the reliefs demanded are all legal in their nature; courts of law always had jurisdiction over them. The only difficulty was, that by reason of certain arbi- trary rules of law concerning evidence, the jurisdiction of the law courts over this particular class of legal controversies could not bo exercised so as to do full justice, until the defective legal rules of 'Laneey v. Ramllctt, 80 Me. 100. 13 Atl. f;sn. H Am. St. P.op. ir,0. ] Srott 400: Jirown V. Swaiin. 10 VpL 497: Piynv y. .\<]i\m^. 1 Call 3S'2. 1 Am. T)pp. S.'^.S. M?Tissell V. Clarke's Ex'r's. 7 rraiuh. HO: Buzard v. Houston, 119 U. S. Sf). 7 Slip. a. 240. 71. .; T^l waste, nuisance, and eontiniious or irreparable trespass, where e(niit3', having obtained jurisdiction for some particular purpose, will complete the possible relief by decreeing damages; but this application of the principle is not general; on the contrary, it is rather exceptional. The award of mere compensatory damages, which are almost always unliquidated, is a remedy peculiarly be- longing to the province of the law courts, re(iuiring the aid of a jur}^ in their assessment, and inappropriate to the judicial position and functions of a chancellor. It may be stated, therefore, as a general proposition, that a court of equity declines the jurisdiction to grant mere compensatory damages, when they are not given in addition to or as an incident of some other special equitable relief, u.nless under special circumstances the exercise of such jurisdiction may be requisite to promote the ends of justice." There are, how- ( ver, special circumstances in which the principle under discussion is invoked and is extended to the award of mere damages. If a conrt of equity obtains jurisdiction of a suit for the purpose of granting some distinctively equitable relief, such, for example, as the specific performance of a contract, or the rescission or can- cellation of some instrument, and it appears from facts disclosed on the hearing, but not known to the plaintitt' when he brought his suit, that the special relief prayed for has become impracticable, and the piaintift' is entitled to the only alternative relief possible of damages, the court then may, and generally will, instead of com- jielling the plaintiff to incur the double expense and trouble of an action at law, retain the cause, decide all the issues involved, and decree the payment of mere compensatory damages."* •(Jipc'ii V. Slcwavl. 45 X. Y. Suitp. 982, 19 App. Div. 201; Crowell v. Young, (Tnd. r.) ()4 S. W. (>07; Alser v. Anderson, 92 Fed. 696. * Holland V. Anderson, 38 jMo. 55, 58; Lewis v. Town of Kingston, 16 R. I. 15, 11 Atl. 17.3, 27 Am. St. Rep. 724; Case v. Minot, 158 Mass. 577, 22 L. R. A. 5.'?6, 83 N. E. 700. The application of the principle to the relief of damages lias frequently occurred in siiits for a specific performance. The following rules haA'(-- heeii established by American decisions: If through a failure of the vendor's, title, or any other cause, a specific performance is really impossible, and the ven- dee is aware of the true condition of aflFairs before and at the time he brings his suit, th6 court, being of necessity obliged to refuse the remedy of specific performance, will not, in general, retain the suit and award compensatory dama- ges, because, as has been said, the court never aoqtiired a jurisdiction over the cause for any purpose: Hatch v. Cobb, 4 Johns. Ch. 559, 2 Scott 343; Milk- man V. Ordway, 106 Mass. 232, 253. 1 Scott 119. A second rule is, that if the remedy of specific ]ierformance is possible at the commencement of a suit by the vendee, and Mhile tlie action is pending the veiulor renders this remedy imprac- ticable In- conveying the subject-matter 1o a bona fide purchaser for value, the court will not coniin-l llie plaint if1' 1(> bring a second action at law, but having acquired jurisdiction, will do full justice by decreeing a recovery of damages; ililkman v. Ordway, 100 :Mass. 232, 253, 1 Scott 119, per Wells, J. The rule § ;i41 EQUITY JUKISPUUDENCE. lOJ § 238. ... A suit being brought to reform a policy of insurance after a loss had occurred, the court retained the cause and gave the plaintiff final and complete relief by ordering a pay- ment of the amount due on the policy as reformed, although the remedy would ordinarily and naturally have belonged to a court of law.^ § 241. . . . The defendant, by one wrongful act and in one mass, detained a quantity of chattels belonging to the plaintiff. A part of these were articles of a special nature and persona! value, for which damages could not adequately be ascertained, and in respect of wdiich the equity jurisdiction to compel their restoration was clear. The remaining portion were ordinary chat- tels, of a kind readily purchasable in the market, and for which damages could be assessed without difficulty. The plaintiff brought a suit in equity to compel the restoration of the entire mass of chattels. The court held that since its jurisdiction attached over the one class of articles, it would decide the whole controversy in the one suit, and decree a return of the entire amount, the two kinds being connected by the single wrongful act of the defend- ant.^ applies where the contract is performed after commencement of suit. Gnibb v. Sharkey, 00 Va. 831, 20 8. E. 784. H. & B. 736. The third rule is as follows: If a specific performance was orioinally possible, but before the commencement of the suit the vendor makes it impossible by a conveyance to a third person; or if the disability existed at the very time of entering into the contract on account of a defect in the vendor's title, or otlier similar reason, — in either of tliese cases, if the vendee brings his suit in good faith, without a knowledge of the ex- isting disability, supposing, and having reason to suppose, himself entitled to the equitable remedy of a specific performance, and the impossibility is first disclosed by the defendant's answer or in the course of the hearing, then, although the court can not grant a specific i)erformance, it will retain the cause, assess the plaintiff's damages, and tlecree a pecuniary judgment in place of the purely equi- table relief originally demanded. This rule is settled bj^ an overwhelming pre- ponderance of American authorities: ]\Iilkman v. Ordway. 106 Mass. 232, 253, 1 Scott, 119; and see Waite v. O'Neil. 72 Fed. 348; affirmed, 76 Fed. 408, 22 C. C, A. 248, 34 L. R. A. 550. In Combs v. Scott, 76 Wis. 662, 45 N. W. 532, H. & B. 682, 2 Scott 357, 2 Keener 1194, the statute of limitations having run ujjon the contract pending suits for specific performance, the cause was retained for the purpose of granting compensation. ^Bidwell V. Astor Ins. Co., 16 N. Y. 263. See, also. Union Cent. Life Ins. Co. v. Phillips, 102 Fed. 19, 41 C. C. A. 263 (bill to compel delivery of life insurance policy after death. of insured retained for full relief on the policy). In general, . where equity takes jiu'isdiction to reform an instrument, it may go on and decree full relief thereon: Kelly v. Calbraith, 186 HI. 593. 58 X. E. 431. ' McGowin v. Remington, 12 Pa. St. 56. 63, 51 Am. Dec. 584. The whole opinion in this case is able and instructive. Other instances: United States v. I'nion Pac. Pv. Co., 160 V. S. 1. 16 Sup Ot. 190, (cancellation) ; Slegel v. Herbine, 148 Pa. St. 236, 23 Atl. 996, 15 L. R 101 JUKISDICTIOX EMUKACKS WllOLK MATTER. §342 § 242. Effect of the Reformed Procedure on the Doctrine. . . This same grand principle is one of the rundaiiieiital and essential tiionghts embodied in the "reformed system of procedure," which first appeared in 1848, in the New York (>ode of Civil Procedure, has since extended through so many states and territories of this country and coh)nies of Great Britain, and was substantially adopt- ed for England in the "Supreme Court of Judicature Acts." That s3-stem of procedure, by combining the actions at law and suits in ecjuity into one "civil action," by permitting the union of legal and equitable primary rights, and interests, and causes of action in the one judicial proceeding, and the granting of legal and equit- able remedies in the one judgment, and by the substitution of many equity rules conceniing the prosecution of suits in place of the arbitrary rules of the law regulating the conduct of actions, has greatly enlarged the operation and increased the efficiency of the general doctrine under discussion. Wherever the true spirit of the reformed procedure has been accepted and followed, the courts not only permit legal and equitable causes of action to be joined, and legal and equitable remedies to be prayed for and obtained, but will grant purely legal reliefs of possession, compensatory dam- ages, pecuniary recoveries, and the like, in addition to or in place of the specific equitable reliefs demanded in a great variety of cases vrhich would not have come within the scope of the general prin- ciple as it was regarded and acted upon by the original equity jurisdiction, and in which, therefore, a court of equity would have refrained from exercising such a jurisdiction.^ SECTION IV. THE DOCTRINE THAT JURISDJCTIOX EXISTS IN ORDER TO PRE- VENT A MULTIPLICITY OF SUITS. ANALYSIS. § 243. The doctrine applies to hotli kinds of jurisdiction. § 244. The questions to be examined stated. § 245. Four possible cases to Aviiicli the doctrine may apply. §§ 246-248. "Bills of peace" rationale of, and examples. § 248. Bills "to quiet title" explained. A. 147, (quietini; title) : Hrock v. Perry, 132 Ala. 9.5, 90 Am. St. Rep. 890, 31 South. 517, (setting aside fraiidulent conveyance) ; Fidelity Tr. & G. Co. v. Kowler Water Co., 113 Fed. 500, (foreclosure); Vick v. Beverly, 112 Ala. 458, 21 South. 325, (redemption). 'Armstrong v. Mayer (Nebr.). 95 N. W. 51; Lattin v. McCarty, 41 N. Y. 107, 109, 110; Henderson v. Dickey, 50 .Mo. 101, 105. § 245 EQUITY JUUISPUUUENCE. 103 ■S§ 240-251. Rationale of the doctriiu' pxaniiiiod on piinciplo. *!§ 252-261. Examination of the doctiinc upon judicial autliority. § 252. Fir^t class. §§ 253,254. Second class. §§ 255-261. Third and fourth classes. § 256. C'onnnunity of interest: '"Fisheries Case"; '"Case of the Duties." § 257. Where proprietors of distinct tracts of huid have been injured by one wrong. § 258. Where proprietors of distinct tracts of hmd have been relieved from illegal local assessments. ^§ 259,260. General rule as to relief from illegal taxes, assessments, and public burdens, on the ground of multiplicity of suits. § 261. Other special ca.ses of the third and fourth classes. §§ 262-206. Examination of ojiposing decisions; conclusions reached by such decisions. § 263. In the first and second classes. §§ 264-266. In the third and fourth classes. §§ 265,266. In cases of illegal taxes and other public Ituidens. SS 267-270. Conclusions derived from the entire discussion. S§ 268-270. Ditto as to the third and fourth classes. §§ 271-274. J^numeraiion of cases in which the jurisdiction to avoid a multi- plicity of suits has been exercised. i § 271. Cases of the first class. 1 § 272. Cases of the second class. § 273. Cases of the third class. g 274. Cases of the fourth class. § 275. The jurisdiction based upon statute. § 243. Applies to Both Kinds of Jurisdiction. — § 245. Possible Conditions in Which the Doctrine may Apply. — It will aid us in reaehinii" the true theory as well as in determinino- the extent and limitations of the doctrine, if we can fix at the out- set all the possible conditions in which a multiplicity of suits can arise, and can thus furnish a source of or occasion for the equity jurisdiction in their prevention by settling- 'all the controversy and all the ri.o:hts in one singie judicial proceeding. All these possible conditions may be reduced to the four following classes: 1. Where, from the nature of the wrong, and from the settled rules of the legal procedure, the same injured party, in order to obtain all the relief to which he is justly entitled, is obliged to bring a number of actions asrainst the same wrong-doer, all growing out of the one wrongful act and involving similar <|uestions of fact and of law. To this class would belong cases of nuisance, waste, continued trespass, and the like. 2. Where the dispute is between two individuals. A and B, and B institutes or is about to institute a number of actions either successively or simultaneously against A, all depending upon the same legal ques- tions and similar issues of fact, and A by a single equitable suit seeks to bring them all Avitliin the scope and effect of one judicial 103 TO I'KKVKNT A ML'LTII'LR'ITY Or SUITS. § 246 deterniiiiation. A familiar example of one branch of this class is the ease where B has brought repeated actions of ejectment to re- cover the same tract of land in A's possession, and A finally resorts to a suit in equit}' by which his own title is finally established and quieted, and all further actions of ejectment by B are enjoined. ii. AVhere a number of persons have separate and individual claims and rights of action against the same party, A, bnt all arise from some conunon cause, are governed by the same legal rule, and involve similar facts, and the whol^ matter might be settled in a single suit brought by all these persons uniting as co-plaintiffs, or one of the persons suing on behalf of the others, or even by one l)erson suing for himself alone. ^ The case of several owners of distinct parcels of land upon which the same illegal assessment or tax has been laid in an example of this class. 4. Where the same party, A. has or claims to have some common right against a num- ber of persons, the establishment of which would regularly require a separate action brought by him against each of these persons, or brought by each of them against him, and instead thereof he might procure the whole to be determined in one suit brought by him- self against all the adverse claimants as co-defendants. It should he observed in this connection that the prevention of a multiplicity of suits as a ground for the equity jurisdiction does not mean the complete and absolute interdiction or prevention of any litigation concerning the matters in dispute, but the substitution of one equitable suit in place of the other kinds of judicial proceeding, by means of which the entire controversy may be finally decided. . . § 246. Bills of Peace. — The earliest instances in which the I'ourt of chancery exercised its jurisdiction, avowedly upon the ground of preventing a multiplicity of suits, appear to have been called "bills of peace." of which there were two distinct kinds. One of these was brought to establish a general right between a single party on the one side, and numerous persons claiming distinct and individuid interests on the other, plainly corresponding, in part at least, with the third and fourth classes mentioned in the preceding paragraph. The other kind was permitted to quiet the complain- ant's title to and possession of land, and to restrain any further actions of ejectment to recover the premises by a single adverse claimant, after several successive actions had already been prosecut- ^ The jurisdiHion under discussion should unl he confuspd with tliat which ex- ists to ap]>(irtiou i\ fund ratably anionii' several plaintiffs havinnement of their actions at law; for if plaintiff is herein successful they are not entitled to an assessment of damages, and if unsuccessful the actions at law will duly proceed;" City of Albert Lea v. Nielsen, S3 Minn. 24G, 8() N. W. S:^. ^n National Park Bank v. Goddard, 62 Hun, 31, 16 N. Y. Supp. 343. 2 Ames Cas. Eq. Jur. 82; affirmed, 131 N. Y. 503, 30 N. E. 566, 1 Keener Cas. Eq. Jur. 142, the plaintiff, claiming a lien by attachment on a stock of goods, enjoined num- erous re]ilevin suits subsequently bi'ouglit for tlie recovery- of diffcp-nt portions 119 TO PREVENT A MULTJI'LICITY 01' litlTS. >; 2G3 preventing a multiplicity of suits has been firmly established Iroiu au early day, with respect to the facts and circumstances which of the stock by numerous defendants, jurisdiction being taken on the ground of preventing a multiplicity of suits. Injunction against Tax Proceedings which involve the single plaintifl" in litigation with numerous parties. The situation in these cases is the converse of that described in S§ 258-260, supra. Where a bank or other corporation is required by law to pay the taxes assessed on all of its shares, and reimbur.^e itself by withholding proportionate parts of the dividends fi'oni its shareholders, it may enjoin an illegal tax, since its payment thereof would subject it to a suit by each shareholder; Cummings v. Merchants' Nat. Bank, 101 U. S. ir)3. By the practice in many of the states, taxes on railroad companies, telegraph companies, and the like are assessed by a state board on all the property of the company within the state, and proportionate parts of those taxes are certitied for collection to the tax officials of the various coimties in which the comi)any operates. An illegality in the assessment by the state board may thus exjjose the company to separate suits in many counties, and has frequently been the subject of an injunction on the ground of preventing a multiplicity of suits. Taylor v. Louisville & X. R. R. Co.. 88 Fed. 350 (C. C. A.), by Taft. Cir. J. Cancellation.— In Louisville N. A. & C. R. Co. v. Ohio Val. I. & C. Co.. 57 Fed. 42, 45, the plaintiff sued for the cancellation of its guaranty which had been indorsed upon several hundred bonds issued by another company illegally and fraudulently. The court Avas of the opinion that there was an ade(juate defense at law to a suit upon each bond, considered by itself, but that the multi- plicity of suits threatened, and the common question involved of the validity of the guaranties and of the contract in pursuance of which they were made, rendered the case one for the exercise of its jurisdiction. Quoting § 209 of the text. Recovery of Specific Chattels.- — One of the earliest of the American cases, and one of the most striking illustrations to be found in the books, is that of Vann v. Hargett. 22 N. C. (2 Dev. & B. Eq.) 31, 32 Am. Dec. 680 (183S). The bfll alleged that the plaintiffs were owners of a remainder interest in cer- tain slaves; that the life tenant had sold them, and that the numerous defend- ants had possession of some of the issue of the slaves, asserting an absolute title therein. The prayer was that the defendants might surrender the slaves or account for their value, if they had been sold. The case, therefore, presents a clear illustration of the "concurrent jurisdiction" as defined by the author, the relief demanded being purely legal in its nature. The defendants demurred on the ground that the plaintiffs had a remedy at law by action of trover or detinue, and on the ground of multifariousness. The opinion of Daniel, J., states the doctrine witli admirable clearness. Pecimiary Relief asjainst Numerous Defendants. — The opinion in Bailey v. Tiflinghast, 99 Fed. 801, 806. 807 (C C. A.), is very instructive. This Avas a suit in equity by the receiver of a national bank against forty-six stock- holders, for the purpose of recovering an assessment of $61 per share levied by the comptroller of the currency upon their personal liability on account of the stock held by them. By Severens, D. -T., "We are clearly of the opinion that the bill should be maintained for the purpose of avoiding a multiplicity of suits. . . . There is a common question in the case between the receiver and the defenrlants. namely, the question whether the latter were released from tlieii stock subscription by the fact that, whereas the resolution for increasiiiL' th'> stock in the sum of $300,000 was that under which their subscription took place, § -JGS EQUITY JUiaSTKUDEXCE. 120 constitute the first and second classes, there are no decisions which positively deny the jurisdiction or the propriety of its exercise in cases belonging to either of them yet subsequently by proceedings to which they did not consent, the proposed increase was reduced to $150,000. . . . And these circumstances, namely, the great number of the parties on one side or the other, the identity of the ques- tion of law, and the similarity of facts in the several controversies between tlie respective parties, are the basis on Avhich the jurisdiction rests. The object is to minimize litigation, not only in the interest of the public, but also for the convenience and advantage of the parties. Jf the receiver was compelled to bring separate suits, it would entail a vast expense upon the fund in trying Over and over again the identical questions of law and fact with each stockholder, and with no substantial advantage to him, but injury, rather, in the increased cost in tRe immediate suit, and the larger burden upon the fund, created by the many suits against the others. Nor is it necessary, as counsel seem to svippose. that there shoulil be any ])rivity of interest between the stockholders, other than that in the question involved and the kind of relief sought, the right of their cla-inis being common to them all, in order / to bring the case within the jurisdiction [citing several of the cases mentioned in this chapter]. It is true there are occasional cases where it seems to have been supposed that there must be some community of interest, — some tie between the individuals who make up the great number; but the great weight of authority is to the contrary, and there is a multitude of cases which either in terms deny the necessity of such a fact or ignore it by granting relief where the fact did not exist. And, indeed, it is dillicult to tind any reason why it should be thought necessary. It has no rvlrraucj/ to the princij^le or purpose of the doclri)ir itself, which stands not merely as a makeweight when other equities are present, but as an independent and substantive ground of jurisdiction." Joinder of Numerous Defendants against Each of Whom the Plaintiff has a Similar Cause of, Action for Equitable Relief. — It has been frequently held that a riparian proprietor may restrain several tort feasors from diverting or pol- luting the waters of a stream, although they were not acting in unity of design or witli coiK-cit of action: Lockwood Co. v. Lawrence. 77 Me. 297, 52 Am. Rep. 7(i3, quoting § 269 of the text. On the same princi])]e an injunction has been granted in a suit by the owner of a lai-ge body of land, valuable only for its pas- turage rights and privileges, to protect that right from use by cattle and stock- owners, neighbors of the land of complainant, under autliority of an unconstitu- tional statute: Smith v. Bivens, 50 Fed. 352, 2 Ames Cas. Eq. Jur. 02. New York & N. H. K. R. v. Schuyler, 17 N. Y. 502. 1 Keener 118. was certainly one of the most remarkable actions recorded in the annals of litigation. Schuyler, the treasurer of a railroad company, had during a period of two or three years fraudulently issued sj^urious certificates of stock of the company, until at last such certificates were scattered among about one hundred bona fide holders. Eacli fraudulent issue was accomplished by a similar contrivance and similar acts of deception; but each was, of course, an entirely distinct and separate transaction from all the others. The railroad, claiming that these certificati-s were null and void, bi-ought this suit against all the holders for the purpose of having them surrendered up and canceled. The suit was sustained by analogy to a bill of peace, in an elaborate opinion of the court which is too long for quotation. See 17 N. Y. 592, 599, 600, 605-608, 34 N. Y. 30. 44-46. Here the only pretense of common intex-est among the certificate-holders was in the sim- ilar questions of fact and the same question of law at issue upon which all their 121 TO IMiKVKXT A MULTIPLICITY 01" SUITS. § 2G4: § 264. In the Third and Fourth Classes. — ... In these cases the jurisdietiou was denied, on the ground that there was no privity or legal relation or eommuuity of interest and right among tne individuals of the numerous body, which, it was held, must exist in order that a court of equity may interfere, under sucli circumstances, for the purpose of preventing a multiplicity of suits'.^ . . . claims depended ; there was no common title from which these questions sprung, nor any community of interest in the subject-matter. ' See Tribette v. Illinois Cent. R. Co., 70 Miss. 182, 12 South. 32, 19 L. H. A. G60, 35 Am. St. Rei^. 642, 2 Ames Cas. Eq. 74, 1 Keener 148, Sh. 3G, and criticism thereof in Pom. Eq. Jur. 3d ed. ; Marselis v. ilorris Canal Co., 1 N. J. Eq. 31, 35-3!), and extracts from ojiinion therein. In the latter case, many separate owners of distinct tracts of land along the line of the defendant's canal vuiitcd as plaintiffs, suing on behalf of themselves and all others, etc., charging that tlie defendant entered on their separate parcels of land and dug a canal, without permission or agreement, and without making any compensation; that defendant was insolvent. They prayed an account of damages for the injuries done, com- pensation for the lands taken, and an injnuction to restrain the defendant from occupying or using their lands without compensation. Defendant de- murred to the whole bill, and plaintiffs moved for a preliminary injunction, and the argument of both came on together. Prof. Pomeroy remarks : In what- ever manner we may regard the general course and tendency of the chancellor's reasoning in this opinion, it is very evident that the actual decifiivn made upon the facts does not in the slightest degree conflict with any of the cases hereto- fore quoted, in which the jurisdiction has been exercised. The facts of this case clearly distinguish it from each and all of them. Although on the first su- perficial view there may appear to be the same commvuiity, since the single de- fendant was all the time prosecuting one enterprise, viz., constructing its canal, yet in the case of each plaintiff" there was a separate, distinct trespass upon his land; the claim of each land— owner resulted from a separate injury to his own property, unconnected with the injuries done to the others. This is the vital distinction in the facts which removes this case from the operation of the doc- trine. Jn the group of decisions where many land-owners have imited in a suit to restrain a trepass or a nuisance, such as a diversion of water from their mills, or an erection blocking up a passage to all their buildings, tlie one wrongful act of the defendant, uno Hatvi, did the injuiy complained of to the land of eacli plaintiff'; in that group where many lot-owners united to obtain relief from an illegal assessment, the one official act of the numicipality placeil an unlawful burden on the lot of each plaintiff, and by this single wrong all of the lot-owners sustained their individual but common injuries. The same is true in the suits by tax-payers to be relieved from an illegal tax or public debt. In the present case, the transaction was otherwise, both in form and in its nature. There was no single wrongful act of the canal company, which by its comprehensive nature produced the same injury upon the land of each pro])rietor. On the contrary, the company committed a separate and wholly independent trespass upon the land of each by itself, and these trespasses were not simply distinct in contem- plation of law, but thej' were different in their form, nature, and extent. It necessarily follows, therefore, that there was not among the plaintiffs even any comiininity of interest in the relief soiufhl. nor in the questions at issue, whicli, it is conceded, must exist in (jrdcr that the court may interfere, and wJiich did § -^65 Et^UITV JLKJSl'l.TDKXCi:. 122 § 265. In Cases of Illegal Taxes and Public Burdens. —I pass to eases eoneeriiing local assessiiient, general taxes, and public del)ts ifJ pi-ietor, to restrain or to set aside some ille.ual assessment or tax which imposed a lieu or liability upon the plaintitV and otiiers in the same position, the court has held that it would exercise its jurisdiction and grant the relief only .where such judicial action was necessary to prevent a multiplicity of suits, or to remove a cloud from title, or to avoid irreparable mischief. These decisions therefore assert afifirmatively that a court of ecpiity maij relieve from illegal assessments and taxes on the ground of preventing a nmltiplieity of suits: but they make no attempt to determine when or under what circumstances such ground for its interference would exist; and they all hold that the mere facts of the assess- ment or tax being illegal and of its creating an illegal personal liability or unlawful lien, and of its affecting numerous tax-payers and owners in the same manner, do not furnish the ground for equitable interference, nor bring the case within the jurisdiftion based upon the previ^ntion of a multiplicity of suits. § 266. The cases, however, to which I now refer go much further than these. There are well-considered adjudications of several courts, certainly among the ablest courts of this country, which hold that, as a general rule, or except under very special circum- stances, a court of equity will not exercise its jurisdiction and grant relief upon the doctrine of preventing a multiplicity of suits in a suit brought by a single tax-payer and property owner, or by one or more suing on behalf of himself and others, or by many individuals united as co-plaintift's to restrain the enforcement of, oi' to set aside and annul, or to be otherwise relieved from, any h)cal municipal assessment, or any tax, purel.y personal or made a lien on property, laid by a county, town, city, or other district, or any official act, proceeding, or transaction of a county, town, city, or district, whereby a public indebtedness is or would be created, and the burden of taxation is or would be enhanced, upon the ground that such assessment, tax, official proceeding, or public debt was illegal, and either voidable or void. These cases there- fore present a direct conflict of judicial opinion with those quoted in the preceding paragraphs. The most important reasons given hy the courts in support of the general conclusion which they all reach are placed in the accompanying foot-note.^ 'See especially Youngblood v. Sexton, 32 ^lich. 406, 20 Am. Rep. 654: Dodd V. City of Hartford, 25 Conn. 232, 2 Ames Eq. Jur. 691 : Cuttinjr v. Gilbert, 5 JJlatoh. 2~)9; and the exhaustive criticism of these cases in Prof. Pomeroy's note. The chief reasons adduced for declininfj equity jurisdiction in this class of cases are: (1) want of "privity" among the complainants; (2) that each of the numerous {)ersons nuist himself be exposed to many actions, in order that a court of dniily may interfere: as to this, see note § 207 EQUITY JURISPKUDKXCE. 124 § 267. Summary of Conclusions. — ... In cases belonging^ to the third and fourth classes, wlien a body of persons assert some claim against a single distinct part}-, or conversely a single distinct party asserts some- claim against a body of persons, the i'andamental question, upon which the exercise of the jurisdiction confessedly rests, and over Mdiich there has been a direct antagonism of judicial opinion, relates to the nature, extent, and object of the common interest which must exist among the individual members of the numerous body, and between them and their single adversary, in order that a court of equity may interfere. Incidental to this main element, the further question has been raised, What party is entitled to relief for the purpose of preventing a multiplicity of suits? — whether the plaintitt' who invokes the aid of a court upon that ground must himself be the person who would otherwise, and against his own choice, be exposed to a repeated and vexatious litigation?' "We have also seen, in a certain class of cases growing to § 2G7 ; (3) "reasons of policV; founded on the necessity of speedy collection of taxes, which ought to prevent a court of chancery, from suspending these proceedings, except upon the clearest grounds." ' Cases of the "Third Class" Denying the Jurisdiction. — Dodd v. City of Hartford, 25 Conn. 232, 2 Ames Eq. Jur. 69; Washington Co. v. Williams, 111 Fed. 801, 49 C. C. A. G21. Cases which deny the jurisdiction in "class third" appear to be relatively more numerous than those that deny the jurisdiction in "class fourth." In support of such denial of the jurisdiction in the former class the courts, so far as tlie editor has noticed, content thems<'Ives, in llie main, with the dogmatic assertation that "the jurisdiction to prevent a nniltiplicity of suits cannot properly be invoked except by the person who may be subjected to them;" or that the numerous plaintiffs "cannot individually complain that others are com- pelled to sue, for they have no shai'e in tlie expense or vexation of each other's suits." A convincing answer to this objeclion may be found in the two consid- erations clearly set forth in Smith v. Bank of Xew England, 69 IST. H. 254, 45 Atl. 1082, 2 Ames Cas. Eq. 79, by Carpenter, C. .T. : "For the determination of one issue the public must provide seventy-nine sessions of the court and seventy- nine juries. In short, a single issue, upon which the rights of all parties in- terested in the controversy depend, must be tried seventy-nine times, and the parties and the public be subjected to the worse than useless expense of seventy- eight trials. ... A speedy and inexjiensive adjudication of their common right is quite as important to the numerous plaintiffs as to the single defend- ant, and it may be much more so. Cases may often happen where a rejection of their application for equitable intervention to prevent a multiplicity of suits would operate practically as a denial of justice. Suppose, e. g., that each of one hundered persons held an interest coupon for %C>, on bonds issued by a town or other corporation, and that the only controverted question was as to the validity of the bonds. Each coupon holder would have a clear and, in a legal sense, an adequate remedy at law. But if he recovered in an action at law. he would real- ize nothing, as the necessary expenses of the suit would exceed the amount re- covered. If, on the other hand, the question were determined in one suit, each might realize substantially the amoimt of his demand. To hold that equity 125 TO I'HEVENT A MlI/rJl'LlClTY OF SUITS. § 208 out of some unauthoriy.ed public official act, the principle has been niinnuncpd that, iiiulor the circumstances, the iniured persons, citizens, or inhabitants of a local district had no cause of actit)n of any kind, no claim to any relief from a court of justice. This principle, which may be correct, is avowedly based upon consider- ations of governmental policy and public expediency, and has therefore no legitimate connection with the doctrine concerning the prevention of a multiplicity of suits. The principle has. how- ever, in some subsequent decisions, been regarded and acted upon, very improperly in my opinion, as though it directly applied to, interfered with, abridged, or regulated the equitable jurisdiction to prevent a multiplicity of suits. The error involved in the ming- ling of two entirely distinct matters has, I think, been shown with sufficient clearness in a previous note. § 268. Conclusions as to the Third and Fourth Classes. — From a careful comjiarison of the actual decisions embraced in the third and fourth classes, and which are quoted under the foregoing paragraphs, the following propositions are submitted as established by principle and loy authority, and as constituting settled rules con- cerning this branch of the equitable jurisdiction. In that partic- ular family of suits, Avhether brought on behalf of a numerous body against a single party, or by a single party against a numerous body, Avhich are strictly and technically "bills of peace," in order that a court of equity may grant the relief and thus exercise its jurisdiction on the ground of preventing a multiplicity of suits, there does and must exist among- the individuals composing the numerous body, or between each of them and their single adver- sary, a common ricjhi. a community of interest in the siihjrct- matter of the controversy, or a common title from which all their separate claims and all the cpiestions at issue arise; it is not enough that the claims of each individual being separate and distinct, there is a community of interest merely in the question "vvill intervene in behalf of the corporation, but not in behalf of the coupon-hold- ers, to compel the issue to be tried in one suit, would bring deserved reproach upon the administration of justice." Indeed, the conjecture may be hazarded that the denial of the jxu'isdiction may frequently effect a greater practical injustice in cases of "class third" than in most cases of class fourth. In a typical case of class fourth, where the single party is assailed by numerous suits involving the same issues, a determination of one or a few of these in his favor will generally, perhaps, result in the aban- donment of the others, even without the interposition of equity ; while in very many cases of class third, the burden of a single great wrong is made to fall upon a large number of individuals, few of whom can. unaided, afford the ex- pense of litigation, and thus practical immunity is secured for the wrong-doer. See tne forcible observations of \Yalkor. J., in Greedup v. Franklin County, 30 Ark. 101, quoted ante, note to S 200. § t>G!:) EQUITY JUIUsriiUDEXCE. 1'2() of law or of fact involved, or in the l-ind and form of remedy demanded and obtaiiied by or against oacli individual. The in- stances of controversies between the lord of a manor and his tenants concerning some general right claimed by or against them all arising from the custom of the manor, or between a parson and his parishioners concerning tithes or a modus affecting all, and the like, are examples. It must be admitted, as a clear historical fact, that at an early period the court of chancery confined this branch of its jurisdiction to these technical "bills of peace." The above rule, as laid down in them, was for a considerable time the limit beyond which the court would not exercise its jurisdiction in cases belonging to the third and fourth classes. For this reason many passages and dicta found in the judicial opinions of that day must be regarded as merely expressing the restrictive theory which then prevailed in the court of chancery, and as necessarily modi- fied by the great enlargement and extension of the jurisdiction which has since taken place ; and at all events, these dicta and in- cidental utterances should, on any correct principle of interpreta- tion, be treated as confined, and as intended to be confined, to the technical "bills of peace" in which they occurred, or concerning- which they Avere spoken. Notwithstandizig this general theory of the jurisdiction which prevailed at an early period, it is certain that even then the court sometimes transcended the arbitrarj'- limit, and exercised the jurisdiction, where there was no pretense of any community of right, or title, or interest in the subject-matter. § 269. This early theory has, however, long been abandoned. The jurisdiction, based upon the prevention of a multiplicity of suits, has long been extended to other cases of the third and fourth classes, which are not technicall}^ "bills of peace," but "are anal- ogous to" or "within the principle of" such bills. Under the greatest diversity of circumstances, and the greatest variety of claims arising from unauthorized public acts, private tortious acts, invasion of property rights, violation of contract obligations, and notwithstanding the positive denials by some American courts, the weight of authority is simply overwhelming that the jurisdiction may and should be exercised, either on behalf of a numerovis body of separate claimants against a single party or on behalf of a single party against such a numerous body, although there is no "common title," nor "communitj^ of right" or of "interest in the subject-matter" among these indi- viduals, but where there is and because there is merely a community of interest among tliem in the questions of law and fact involved in the general controversy', or in the kind and foi'm of relief de- manded and obtained by or against each individual member of the 1'27 TO PKKVHXT A MULTIPLICITY OF SUITS. § 'iGJ^ numerous body. In a majority of the decided cases, this community of interest in the questions at issue and in the kind of relief sousj^ht has originated from the fact that the separate claims of all the individuals composing the body arose by means of the same unau- thorized, unlawful, or illegal act or proceeding. Even this external feature of unity, however, has not always existed, and is not deemed essential. Courts of the highest standing and ability havi^ repeatedly interfered and exercised this jurisdiction, where the individual claims were not only legally separate, but w^ere se})a- rate in time, and each arose from an entirely separate and distinct transaction, simplj^ because tliere was a connnunity of interest among all the claimants in the (|uestion at issue and in the remedy. The same overwhelming weight of authority effectually disposes of the rule laid dow^n by some judges as a test, that equity w-ill never exercise its jurisdiction to prevent a multiplicity of suits, unless the plaintiff, or each of the plaintiffs, is himself the person who would necessarily, and contrary to his own wall, be exposed to numerous actions or vexatious litigation. This position is opposed to the whole course of decision in suits of the third and fourth classes from the earliest period down to the present time. While the foregoing conclusions are supported by the great weight of judicial author- il}', they are, in my (^])inion, no less clearly sustained by principle. The objection which he' been urged against the propriety or even possibility of exercising; the jurisdiction, either on behalf of or against a numerous body of separate claimants, wiiere there is no "common title," or community "of right" or "of interest in the subject-matter," among them, is, that a single decree of the court cannot settle the rights of all: the legal position and claim of each being entirely distinct from that of all the others, a decision as to one or some could not in any manner bind and dispose of the rights and demands of the other persons, and thus the proceeding must necessarily fail to accomplish its only purpose, — the pre- vention of further litigation. This objection has been repeated as though it w^ere conclusive; but like so much of the so-called "legal reasoning" traditional in the courts, it is a mere empty formula of words wthout any real meaning, because it has no foundatifui v\' fact, — it is simply untrue; one arbitrary rule is contrived and then insisted upon as the reason for another ecjually arbitrai'y rule. The sole and sufScient ans\ver to the objection is found in the actual facts. The jurisdiction has been exercised in a great variety of cases where the individual claimants were completely separate and distinct, and the only community of interest among them Avas in the question at issue and perhaps in Ihc kind of relief, and the sincfle decree has without anv difficultv settled the entire contro- § 2TU EQUITY JUinsriiUDENCE. 12S versy and determined the separate rights and obligations of each individual claimant/ The same principle therefore embraces both the technical "bills of peace," in which there is confessedly a com- mon right or title or community of interest in the subject-matter, and also those analogous cases over v^^hich the jurisdiction has been extended, in which there is no such common right or title or com- munity of interest in the subject-matter, but only a community of interest in the question involved and in the kind of relief obtained, § 270. A few additional words may be proper with respect to the exercise of the jurisdiction on behalf of taxpayers and other members of a local district or community aifected by an unlawful common or public burden. Wherever the principle has been finally settled that individual citizens or members of a municipality sustaining an injury from some unauthorized or illegal official act, in common with all the other citizens or members of the same district, — that is, only suffering the same wrong or loss which i? inflicted upon all other like persons, — have no cause of action whatever, no remedial right recognized by any court of justice, there can, of course, be no exercise on their behalf of the equitable jurisdiction to prevent a multiplicity of suits. And if the prin- ciple is held to embrace tax-payers, they are also without any equitable relief. But it is a grave error to suppose that this doc- trine has any special connection with the ecpiitable jurisdiction to prevent a multiplicity of suits, or in any special manner restricts that jurisdiction. Being based upon high considerations of gov- ernmental policy, it avowedly overrides and displaces all judicial authority, every form of judicial action. Wherever, on the other hand, the tax-payers of a district subject to an unlawful burden are regarded as having some cause of action, as entitled to some judicial remedy, — as, for example, where the individual tax-payer may maintain an action at law to recover back the illegal tax which he has paid, or to recover damages, — there, in my opinion, all the reasons for exercising the jurisdiction to prevent a multiplicity of suits in any case of the third or fourth classes apply with great ' While this result has been accomplished in the Schuyler fraud case, 17 N. Y, 505, in the water company case, L. R. 2 Ch. 8, in the case of the complicated contract, 7 N. J. Eq. 440, and in other like instances where the separate demands of the claimants had no common origin, but each arose from a distinct transac- tion, and in the various tax-jiayers' cases, it is plain that the objection under consideration is merely illusory; that it is truly what 1 have called it, an empty formula of words without any real meaning. Much of this a priori reasoning explaining why a particular thing could not be done, repeated by judge after judge, has in like manner been exploded simply by doing the thing which had, through verbal logic, been shown to be impossible. This one fact is the essence of a u'rcat deal of the modern legal form. 129 TO PREVENT A MULTirLlClTY OF SUITiS. > §'^^'> and convincing force in .support of the same jurisdiction in behalf of such tax-payers. Notwithstanding the adverse decisions, the weight of judicial authority in favor of this conclusion, and of exercising the jurisdiction under every form of local assessment, general tax, municipal debt, or other public burden by which tax- ation would be increased, is very decided.^ On principle, no dis- tinction can be discovered between the case of such tax-payers, and the instances in which the jurisdiction has been repeatedly exer- cised and fully established on behalf of a common body of sepai-ate claimants. Each tax-payer has a remedy by action at law; but it is to the last degree inadeciuate and imperfect, and often nominal, since he inust wait until the Avrong has been accomplished against himself before he can obtain redress; and at best, the rights of all can only be secured even in this incomplete manner by an indefinite number of litigations. By means of the equitable jurisdiction, the whole controversy and the rights of every individual tax-payer can be finally determined in one judicial proceeding by one judicial decree. This is not a plausible theory; it is a fact demonstrated in the constant judicial experience of numerous states. - ' This weight of authority becomes even more imposing from the fact that in New York, and in several other states whose courts have followed the lead of Isew York tribunals, the denial of relief to the tax-payers has been based, in part at least, upon the pr-'nciple of public policy mentioned above in the text, by virtue of which individut. ' tax-payers were held to be without any remedial right. The adoption of this principle at once ended all possibility of judicial interference; and these decisions have therefore no legitimate authority upon the question as to the equitable jurisdiction to prevent a multiplicity of suits being exercised on behalf of tax-payers. * Can it aj.pear to the thoughtful observer otherwise than as a farce or travesty upon the administration of justice, to see a court deny all relief to a body of tax-payers suing in the form of an equitable action to restrain an illegal tax, or to set aside an illegal official act, such as a town bonding, for the alleged reasons that their interests were separate, and could not be determined by one decree, and then to see the self-same judges, on behalf of the same tax-payers in the same case, and upon exactly the same facts set forth in a petition, grant the very identical relief, and set aside the tax or official act, by their adjudi- cation made upon a writ of certiorari? We may still hope that the time will come, in the progress of an enlightened legal reform, when the administration of justice will be based entirely upon considerations of substance, and not of mere form. The reformed system of procedure as it is administered by some courts has left much room for further improvement in the modes of obtaining justice. '^77 ECJUITY JUKJ.Si'KLUEXCK. 130 SECTION V. THE DOCTRINE THAT THE .JURISDICTION ONCE EXISTING IS NOT LOST BECAUSE THE COURTS OF LAW HAVE SUBSEQUENTLY ACQUIRED A LIKE AUTHOR IT V. ANALYSIS. § 276. The doctrine is api)lied to both kinds of jurisdiction. §§ 277,278. Where the jurisdiction at law has been enhirged entirely by the action of the law courts. ^ 278. Ditto, examples. §§ 270-281. Where the jurisdiction at law has been cnlartied by statute. § 280. Ditto, examples. § 281. Where such statute destroys the jtrevious equitj' jurisdiction. § 276. Is Applied to Both Kinds of Jurisdiction. — There is still another principle affecting the ecpiitable jurisdiction, which re- mains to be considered in all its relations, namely: Whenever a court of eciuity, as a part of its inherent powers, had jurisdiction to interfere and grant relief in any particular case, or under any condition of facts and circumstances, such jurisdiction is not, in general, lost, or abridged, or affected because the courts of law may have subsequently acquired a jurisdiction to grant either the same or different relief, in the same kind of cases, and under the same facts or circumstances. This principle has already been briefly mentioned as one source of the concurrent jurisdiction; but, like the doctrines discussed in the preceding sections of this cha])- ter, it also extends to and operates in the exclusive jurisdiction. In other words, the exclusive jurisdiction to grant purely equitable reliefs, as well as the concurrent jurisdiction to confer legal reliefs, is still preserved, although the common-law courts may have ob- tained authority to award their remedies to the same parties upon the same facts. § 277. Jurisdiction at Law Enlarged by the Law Courts. — This subsequent jurisdiction of the courts of law may be acquired in <^ither of two modes: by the virtual legislative action of the com- mon-law judges themselves, or by express statutory legislation. In many instances it has happened that the law courts, by aban- doning their old arbitrary rules, and by adopting notions which originated in the court of chancery, and by enlarging the scope and effect of the common-law actions, have in process of time obtained the power of giving even adequate relief in cases and under circum- stances which formerly came within the exclusive domain of equity. In all such instances, the courts of pfjuity have continued to as- sert and to exercise their own jurisdiction, for the reason that it i;il jURi.sDicTioN oxcl: existing xur lost. § :2i;i could not be destroyed, or abridged, or even limited by any action of the eonnnon-law courts alone. The enlargement of the jurisdic- tion at law, by the ordinary process of legal development, has not, in general, affected the pre-existing jurisdiction of equity.^ 278. The following are some of the most important classes of cases in which this principle has been applied and the equitable jurisdiction has been exercised, although a court of law may main- tain an action or allow a defense upon the same facts, and may give an adequate and perhaps the very same relief: In suits to re- cover a fund impressed with a trust, or where a trust relation in view of equity exists between the parties, where the plaintiff might recover the same sum by an action of assumpsit for money had and received, or like legal action ;^ . . . in suits growing out of the relation of suretyship, brought by a surety against his principal for f ... an exoneration, or against co-sureties for a contribution, or against the creditor or the principal to be relieved from liability on ac- count of the creditor's conduct, or for any other appropriate relief, although courts of law may give adequate relief to the surety by action upon implied contract, or by defense to an action brought against him by the creditor;- . . . and in suits to set aside or to be relieved from, or to restrain an action or judgment at law upon, a contract which is illegal, although the illegality may, either by authority of the law courts themselves or by express statute, be set up as a defense to an action at law brought to enforce the con- tract, and may thus defeat a recovery thereon; as, for example, where the contract is usurious, or given for a gambling debt, or other illegal consideration, or is contrary to good morals.^ § 279, Jurisdiction at Lavvr Enlarged by Statute. — Where, on the other hand, the new power is conferred upon the law courts by statutory legislation, the rule is well settled that unless the statute contains negative words or other language expressly taking away the pre-existing equitable jurisdiction, or unless the whole scope of the statute, by its reasonable construction and its operation, shoAvs a clear legislative intent to abolish that jurisdiction, the former jurisdiction of equity to grant its relief under the circumstances continues unabridged. It follows, therefore, that where the statute merely by affirmative words empowers a court of law 'to interfere in the case, and to grant a remedy, even though such remedy may 'Eyre v. Everitt. 2 Russ. 381, 382. ])er Eord Eldon; Atkinson v. Leonard. 3 J^rown Ch. 218, 1 Scott 138: Swoony v. Williams, 30 N. J. Eq. (i27. 1 Scoif 141. 'Kirkpatrick v. JIcDonald, 11 Pa. St. 387. 392, 393. -Eyre v. Everitt. 2 Rnss. 381. 3S2 : Hempstead v. Walkins. G Ark. 317, 355, 3(58, 42 Am. Dee. noi!. ■r.roniley v. Holland. 7 Ves. 3, 18-20; (lough v. PraH. 9 Md. 526. § 2S(J EQUITY JL■I;ISPKUDE^"CE. 132 be adequate, and even though it may be special and equitable in its nature, the previous jurisdiction of equity generally remains.^ § 280. The following are some of the instances in which this rule has been applied, and the equitable jurisdiction has been asserted, notwithstanding the statutory power given to the courts of law under the same condition of facts. ^ In suits upon lost instruments, bonds, notes, bills, and other contracts to recover the amounts due ;-' in suits for the establishment or admeasurement of dower, although a statutory authority over matters of dowser has been given to other courts;^ . . . suit by a creditor to reach the separate property of a married woman, where an action at law for the same purpose has been permitted by statute ;* in suits to be relieved from an illegal contract, or to restrain an action brought or judgment obtained thereon, although a statute has permitted the illegality to be set up as a defense in bar of any recovery on the contract f . . . stat- utes authorizing courts of law to grant some distinctively equitable relief to sureties, by means of proceedings in actions at law, do not alter nor abridge the equitable jurisdiction over suretyship, even in giving the very same relief;'^ and a statute giving common-law courts the power to correct a judgment fraudulently ob- tained does not affect the equity jurisdiction . to relieve against fraudulent judgments; fraud is a matter of equitable cog- nizance, and the jurisdiction is not lost by legislation giving the same authority to courts of law ;' . . . The radical change in the equitable and legal procedure effected in many states, w^hich per- mits equitable defenses to be set up, and even affirmative equitable relief to be obtained, by the defendant in an action at law has. not, ^Atkinson v. Leonard, 3 Brown Ch. 218, 1 8cott 138; Darst v. Phillips, 41 Ohio ISt. 514, Shep. 24; tSweeney v. Williams, 36 N. J. Eq. 627, 1 Scott 141; Crass V. Memphis &c. E. Co., 90 Ala. 447, 11 South. 480, 1 Keener 311. ' In Kelley v. Lehigh Min. & Mfg. Co., 98 Va. 405, 81 Am. St. Rep. 736, 36 S. E. 511, it was held that a code provision which makes more effective tlie common-law remedy of detinue does not affect the jurisdiction of equity to de- cree the specific deliverj'^ of title papers to heirs-at-law, devisees, and other persons properly entitled to the custody and possession of the title deeds of their respective estates, where they are wrongfully detained or withheld from them. ■•= Atkinson v. Leonard, 3 Brown Ch. 218. 1 Scott 138; Patton v. Campbell, 70 111. 72, H. & B. 171; Bohart v. Chamberlain, 99 Mo. 622, 13 S. W. 85. See, also, post, §§ 831, 832. ^Elfland v. Eltland, 9G N. C. 493, 1 S. E. 858; Bishop v. Woodward, 103 Ga. 281, 29 S. E. 968. See post, § 1382. * First Nat. Bank v. Albertson (X. J. Ch.), 47 Atl. 818; Rooney v. Michael, 84 Ala. 585, 4 South. 421. = CIay v. Fiy, 3 Bibb. 248. 6 Am. Dec. 654; Day v. Cummings, 10 Vt. 495. •Hempstead v. Watkins, 6 Ark. 317, 355, 368, 42 Am. Dec. 690; Dysart v. Crow, 170 Mo. 275, 70 S. W. 089. 'Darst V. Phillips, 41 Ohio St. 514, Shep. 24. 133 JUHISDICTIOX ONCE EXISTING NOT LOST. \ § 281 it lias sometimes been held, abridged the former well established jurisdiction of equity to restiain actions and judgments at law on the ground that the controversy involved some equitable right or interest; but this question has been differently answered by differ- ent courts. § 281. When Such Statute Destroys the Equity Jurisdiction. — On the other hand, the decisions all admit that if the statute con- tains words negativing' or expressly taking away the previous equit- able jurisdiction, or even if, upon a fair and reasonable interpre- tation, the whole scope of the statute shows, by necessary intend- ment, a clear legislative intention to abrogate such jurisdiction, then the former jurisdiction of equity is thereby ended. ^ . . . Whenever a legal right is wholly created by statute, and a legal remedy for its violation is also given bj^ the same statute, a court of equity has no authority to interfere with its reliefs, even though the statutory remedy is difficult, uncertain, and incomplete." Fi- ijalh', where there i: no statute, the equitable jurisdiction may become unused, obsolete, and practically abolished, since the courts of law have assumed the j^ower to grant a simple, certain, and perfectly efficient remedy. The practical abandonment of the P'^^iuity jurisdiction over suits bj^ the assignees of ordinary things in action is a striking illustration of the change which may thus be effected. As a general rule, a court of equity will not now en- tertain a suit brought by the assignee of a debt or of a chose in action which is a mere legal demand.^ The recent statutes of many states, as well as of England, requiring the assignee to sue at law in his own name confirm and establish this rule. MlacLaury v. Hart, 121 N. Y. 63(5, 24 N. E. 1013; Moore v. Mclntyre, 110 Mich. 237, 68 N. W. 130; Barnes v. Sammons. 128 Ind. 596, 27 N. E. 747. -Janney v. Buel, 55 Ala. 408; Dimmick v. Delaware L. & W. R. R. Co., 180 Pa. St. 468, 36 Atl. 80(5. 3 Ontario Bank v. Mumford, 2 Barb. Ch. 596, 615, per Walworth, Ch. CHAPTER III. THE JURISDICTION AS HELD BY THE COURTS OF THE SEVERAL STATES, AND BY THE COURTS OF THE UNITED STATES. SECTION I. ABSTRACT OF LEGISLATIVE PROVLSIONS. ANALYSIS. § 282. Source of jurisdiction, botli legal and equitable, of the courts in the American states. § 283. Division of the states into four classes with respect to the amount of equity jurisdiction given to their courts. § 284. The first class of states. S 285. The second class of states. § 28G. The third class of states. § 287. The fourth class of states. § 288. Summary of conclusions. § 282. Source of the Jurisdiction of the American Courts. — ■ . . The liiohesl courts of original jurisdiction in each of the .*^1ates are understood to derive their common-law powers, sub- stantially eo-extensive with those possessed by the superior law courts of England, merely from the fact of their being created as such tribunals, and without any express grant of authority l)eing- essential. . . . It is not so with the equitable jurisdit-- iion of the American courts. For that there must be an authority either expressly conferred, or given by necessary implication frrun the express terms, in some provision of the constitution or of a statute. . . . § 283. Amount of Equity Jurisdiction — Four Classes of States. — ... A correct knowledge of these statutory provisions in the various states is of the highest importance from another point of view; without it the force and authority of decisions rendered in any particular state cannot be rightly appreciated by the bench and bar of other commonwealths.^ . . . ' As an illustration, the modern decisions in Massachusetts upon questions of general equity jurisprudence, able and learned as they are. Motild often ho ver>' misleading in other states, if the statutes upon whicli the jurisdiction of its courts rests (prior lo 1877) were not accuratelv known. [1341 135 ABSTI.'ACT OF Li:(i ISl.ATIV K PKOVISIOXS. § 'ISG § 284, 1. Class First. — The lirst cla-ss (.'iiibraces those .states in vvliich tlie constitutions or statutes have in express terms created and conferred an equity jurisdiction identical or co-extensive with ihat possessed by the English court of chancery, so far as is coni- })atible with our forms of government, political institutions, and j)ublic policy. . . . The following states compose this class: Michigan, New York, Vermont. § 285. 2. Class Second. — The second class embraces those states in which the constitutions, not in express terms, but by necessary implication, create and confer a general equity jurisdiction sub- .stantially the same as that possessed by the English court of chancery, except so far as modified or limited by other portions of the state legislation. In this type of legislative action, no attempt is made by any clause to particularly define the extent of the juris- diction by comparing it with that held by the English chancery; the language employed is always general ; it declares that certain courts "have power to decide all cases in equity;" or that they "have jurisdiction in equity," or that they shall exercise their ])ower.s "according to the course of equity:" and it thereby plainly implies that the equity powers and jurisdiction thus recognized and conferred are substantially those possessed by the English court of chancery. In many of these states the general clause is added by way of limitation, that equity powers shall not exist where there i.s "a plain, adequate, and complete remedy at law." . . . In this class, which is the mo.st numerous- of all, are in- cluded the following states: Alabama, California, Connecticut, Delaware, Florida, Georgia, Illinois, Iowa. Kentucky, Mar34and. ^lississippi, Nebraska, Nevada, New Jersey, North Carolina, Ore- gon, Rhode Island, Tennessee. Viroinia, West Virginia. Wisconsin, ,ind the I^'nited States'. § 286. 3. Class Third.— The third class embraces those states in which the constitutions and statutes do not confer a general equity jurisdiction by any single comprehen.sive provision, or single crant of power, but enumerate and specify the particular and partial heads or divisions' of equity jurisprudence over which the jurisdiction of the courts shall extend, with various restrictions find limitations. Tb.e equitable jurisdiction thus created in any state is not co-extensive with that possessed by the English court of chancery, but is partial, and to a considerable extent fragmen- tary, since the more general clauses of the statutes have naturall\' been confined or restricted in their judicial interpretation by thc^ rnnmeration of special powers contained in other clauses. In all these states the legislation on the subject hns been progressive. At an early day the equity jurisdiction was either wholly with- 5; 287 EQUITY JURISPRUDENCE. 136 iliawn from the courts, or else existed within extremely narrow bounds, and it has from time to time been enlarged by the legis- lature. For this reason the judicial decisions of all these states should be carefully examined and compared with the statutes in force at the time when they were rendered; otherwise their true scope and effect may be misapprehended. The following states are embraced in this class: Maine, Massachusetts, New Hampshire, Pennsylvania. § 287. 4. Class Fourth. — The fourth class embraces those states in which, from an abandonment of the ancient modes of procedure i]iherited from the law of England, the constitutions and statutes, in their grants of jurisdiction to the courts, make no distinction between, nor even any mention of, either the "law" or "equity." All these states, excepting Louisiana and Texas, have adopted the reformed American system of procedure. Their constitutions and statutes confer upon the courts complete power and jurisdiction to hear and determine all civil causes, or to grant all civil remedies: and they thus imi)lieitly include a full jurisdiction in cases and over remedies of an equitable character, as well as those of a legal nature. From considerations of convenience, and because the same principle of administration is now common to the whole group, I have added to this class all those other states which have adopted the reformed procedure, but which have already been mentioned either in the first or the second of the foregoing classes. As a matter of fact, in all the commonwealths where the reformed proce- dure prevails, there is substantially the same amount of equitable jurisdiction, and there are also the same limitations upon the extent and exercise of that jurisdiction growing out of the radical change in the modes of administering it efPected by the reformatory legis- lation. The fourth class is thus composed of the following states: Arkansas, Indiana, Kansas, Louisiana, Minnesota, Missouri, Ohio, South Carolina, Texas, and those which have already been men- tioned: California, Connecticut, Iowa, Kentucky, Nebraska, Nevada, New York, North Carolina, Oregon, Wisconsin. To these may be added several of the territories. 13T JUDICIAL INTKUPKETATION OF J L'lilSDlCTlON. ^ '^^0 SECTION II. THE JURISDICTION AS KSTAHI.ISIIKD BY JUDICIAL INTER PRETATION . ANALYSIS. § 289. The questions to be examined stated. S 200. Diversity of statutory interpretation in dilTerent states. §§ 2()l-'2!t8. United States courts, equity jurisdiction of. § 202. First principle: Uniformity of jurisdiction. § 203. Second principle: Identity of jurisdiction. § 204. Third principle : Extent of the jurisdiction. § 295. Fourth principle: Inadequacy of legal remedies. §S 20(i. 207. illustrations. § 297. Ditto; effect of state laws on the subject-matter of the jurisdietion. § 298. Territorial finiitations on tlie jurisdiction. §§ 200-341. States in which only special arid jiartial jurisdiction has been given by statute. § 209. New Hampshire. §§ 311-321. Massachusetts. §§ 3-22-337. Maine. §§ 338-341. Pennsylvania. §§ 342-352. The other states in which a general jurisdiction has been given. § 342. What states are included in this division. § 343. Questions to be examined stated. S 344. interpretation of statute limiting tlie jurisdiction to cases for which the legal remedy is inadequate. § 345. General extent of the statutory jurisdiction: the states arranged in the foot-note. §§ 34(5-352. How far this equity jurisdiction extends to the administration of decedents' estates. § 347. Probate courts, jurisdiction and powers of. § 348. Class first: The ordinary equity jurisdiction over admini-^( ra- tions expressly abolished. S 349. Class second: Sucli jurisdiction practically abrogated or obsolete. § 350. Class third: Such jurisdiction still existing and actually con- current. §§ 351,352. Special subjects of equity jurisdiction connected with or grow- ing out of administrations. §§ 353-358. States which have adopted the reformed system of procedure. § 354. General etfect of this procedure on the equity jurisdiction. §§ 333-358. Its particular effects upon equity. § 356. On certain equitable interests and rights. S 357. [SS 85, 86. 87.] On certain equitable remedies. § 358. On the doctrine as to inadequacy of legal remedies. § 290. Different Theories of Interpretation. — In the first place, a marked diversity will be foimd in the fnndamental motives and theory of the judicial interpretation put npon these leijislative pro- § ;391 EQUITY JURISPRUDENCE. 138 visions by the courts of different states. In some of them a stron<;' tendency has been shown to lay much stress upon the limiting- clauses contained in the statutory grants of authority, and to give a broad meaning and controlling operation to such clauses as those Avhich restrict the equitable jurisdiction to cases "where there is no plain, adequate, and complete remedy at la-sv." In others, the tendency has been towards a more liberal construction ; to hold that these and similar clauses are simply declaratory of a familiar principle embodied in the general theory of equit}^ jurisdiction, and add no restriction whatever to the extent of jurisdiction which would have been conferred without their presence; in short, that they merely state a limitation which is necessarily involved in the very conception of the equitable jurisdiction. In the second place, the apparent uniformity in the jurisdiction created by these gen- eral provisions has been greatly interfered with, and even destroyed, by the different systems of legislation adopted by various states^ with reference to many important branches of the municipal law, v^hich originally, and prior to any statutory interposition, formed a part of the equity jurisprudence. In many, and perhaps most, of the states, subjects which fell within the domain of equity, and which were governed by equitable doctrines as administered by the court of chancery, have been wholly subjected to a statutory reg- ulation, and committed to special tribunals, such as the courts of probate, so that the interference of equity is no longer necessary, even if it is possible. Other departments of the municipal law" — as, for example, trusts and married Avomen's property — have been modified by legislation, so that the matei'ial upon which the equity jurisdiction acted has been altered, limited, or perhaps enlarged. § 291. The United States.— The constitution of the Ignited States recognizes equity as a i)art of the national jurisprudence inherited from England at the time of the Revolution, and the equitable jurisdiction as a part of the judicial powers conferred upon the national tribunals. The statutes of Congress have, as is seen by the extracts given in the preceding section, acted upon this constitutional provision ; and have, in broad terms, intrusted the exercise of this' jurisdiction to the courts of original jurisdic- tion, which are established throughout the states, and to the su- preme court created by the constitution as the appellate tribunal of last resort. In giving a judicial interpretation to the.se consti- tutional and statutory enactments, the national courts have, by numerous decisions, settled the following principles, Avhich may justly be regarded as the foundations of the equitable powers pos- sessed by the national judiciary. 139 JUDICIAL IXTKKI'IIKTATIOX OF J IIM SDILTIOX. §-!>•> §292. First Principle: Uniformity. — The eciuitable jurisdiction of the national coui't.s, beiiij;- derived wholly from the United States constitution and statutes, exists uniformly antl to its full extent throughout the entire Union, independent of and unatt'ected liy any state laws, or any peculiar system of jurisprudence and legisla- tion adopted by individual states. It is the same in Louisiana witli its civil law code, in California with its code combining legal and equitable doctrines, and in New Jersey, wdiieh has preserved the ancient English sj'stem of common law and equity almost unaffect- ed by modern legal reform. "Whatever may be the municipal law of any particular state, either in its substance or its form, the United States courts in that state preserve their equitable jurisdic- tion, and administer the equitable jurisprudence unchanged by such local legislation. It follows, as a necessary consequence from this principle, that the reformed system of procedure now prevailing in many states and territories, whereby all distinction between suits in equity and at law is abolished, and all rights are main- tained and all reliefs procured by means of one judicial proceeding, called the "civil action," has not in the least affected either the doctrines of etiuity jurisprudence administered, nor the extent and modes of equity jurisdiction exercised, by the national courts situ- ated and acting Avithin the same commonwealth.^ § 293. Second Principle : Identity. — The second principle is a corollary of the first. The eciuitable jurisdiction is the same with respect to its nature and extent in all the states, and is wholly un- modified and unabridged by state legislation which deals Avith sub- jects belonging to the general system of equity jurisprudence. State laws subtracting from or limiting the scope of equity do not act upon the equitable powers and jurisdiction held by the national •vnirts. But while state legislation cannot thus influence the juris- diction negatively so as to narroAv it. it may operate affirmatively 50 as, at least indirectly, to enlarge it. The actual jurisdiction of the Ignited States courts in large measure depends upon the per- 'This result of the principle stated in the text is recognized and followed by the most recent legislation of Congress upon the subject. U. S. Rev. Stats., § 914 (Laws of 1872, chap. 255, § 5, 17 Stats at Large, p. 197), provides that practice, pleading, forms, and modes of proceeding in civil causes, other than in equity or in admirnlfi/. shall ronform as near as may be to the forms, pleading, etc., existing at the time in like causes in the courts of record of the state within which the United States court is held. This provision preserves the equity methods unchanged by the state laws. The following cases maintain the doctrine fonuulatod in tlie text: Bennett v. Butterworth, 11 How. 6G9. 074, 6~5: Thompson v. Railroad Co.. Wall. 1.34. 137; Burnes v. Scott, 117 I"^. S. 5S2. 587. r> Sup. Ct. SfiS : New Orh'nns v. Louisiana Construction Co.. 129 V. S. 46, 9 Sup. Ct. 22.'? (('(piity jurisdiction of the fnitcd States courts in Louisiana). § 2do EQUITY JUUISl'KLDENCK. 14.0 sonality of the litigant parties. — their state citizenship. — and ex- tends to all subject-matters belonginu' to such tribunals. The pri- mary rights, interests, or estates of the litigant parties, which are dealt Avith by the exercise of this jurisdiction, must often, therefore, be created by state laws, and not by statutes of Congress. It has accordingly been repeatedly held that while the equitable jurisdic- tion cannot be narrowed or limited by any state legislative or judicial action, on the other hand, if equitable primary rights, inter- ests, or estates have been enlarged, or if entirely new equitable primary rights or interests have been created, by state laws, such enlarged or new rights Avill necessarily come within the equity juris- diction of the national courts, and may be protected, maintained, and enforced in appropriate suits by proper remedies.^ A very striking illustration of this principle may be seen in the power of the United States circuit courts to entertain a suit for the general administration and settlement of a decedent's personal estate, when the citizenship of the parties is such as to confer the jurisdiction. In very many of the states the whole subject of administration has been taken from the equity tribunals, and conferred upon probate courts acting under special statutory authority. This legislation, it is held, has not affected the original equitable jurisdiction of the national courts sitting in such states, nor interfered with their power to entertain a suit for administration in a proper case.- ^ Equity Jurisdiction not Miridfied hi/ ,^tatc Lcgifslalion. — See next note; and for further illustration. United States v. Howland, 4 Wheat. 108; Edwards v. Hill. 59 Fed. 72.3, 19 I'. S. App. 49.3. - Eiilorgenieui of ■hirist(Urlion «.s Result of i^IuIp Lec/islatio)!. — "Althoug^h a state law cannot give jurisdiction to any federal court, yet it may give a sub- stantial right of such a character tliat, when there is no impediment arising from the residence of the parties, the riiiht may be enforced in the proper federal tri- bunal, whether it be a court of (Mpiity. admiralty, or of common law;" Reynolds V. Crawfordsville Bank, 112 V. S. 410, 5 Sup. C't. 210. This principle, how- ever, is sid^ject to important limitations produced by section 723 of the Revised Statutes, and by the seventh amendment of the Constitution of the United States. The state law '"cannot control the proceedings in the federal courts, so as to do away with the force of the law of congress declaring that 'suits in equity shall not be sustained in either of the courts of the United States, in any case where a plain, adequate, and comi)lete remedy may be had at law.' or the constitu- tional right of parties in actions at law to a trial by a juiy:" Whitehead v. Shattuck, 138 U. S. 140. 11 Sup. Ct. 277. by Field, J. "All actions which seek to recover specific pro]ierty, real or personal, with or without damages for its detention, or a money judgment for breach of a simple contract, or as damages for injury to person or property, are legal actions, and can be brought in the federal courts only on their law side. Demands of this kind do not lose their character as claims cognizable in the courts of the T'^nited States only on their law side, because in some state courts, by virtue of state legislation, equitable relief in aid of the demand at law may be sought in the same action. Such blending of remedies is not permissible in the courts of the United States;" Scott v. Neely. 140 IT. s. 100. 11 Sup. Ct. 712, 714, by Field. .1. 141 JIDICIAL IXTEKPKKTATIOX OF ,7 UKl SDICTIOX. § 2d^ §294. Third Principle: Extent.— The third principle relates to the extent of the jurisdiction. While the equitable jurisdiction It is often a (juestion of doubt \vh('(li(>r the now right or reniedj' is logal oi equitable in its natuie. ■"Whenever a new riglit is granted bj' statute, or a new remedy for violation of an old rigiit, or whenever such rights and remedies are dependent on state statutes or acts of Congress, the jurisdiction of such cases, as between the law side and the equity side of the federal courts, must be de- termined by the essential character of the case; and unless it comes within some of the recognized heads of equitable jurisdiction, it must be held to be- long to the other." Van Xorden v. Morton, 1)9 U. S. 378, 380, 2,5 L. ed. 455. Thus, proceedings to enforce a mechanics' or laborers' lien, where the state statute gives an action at law for the purpose, should be brought on the equity side of the L'nited States court. Tiius proceedings to enforce a mechanics' or laborers' lien where the state statute gives an action at law for the purpose should be brought on the equity side of the United States court : Sheffield Fur- nace Co. V. VVitherow, 140 U. S. 574, 579, 13 Sup. Ct. 936, 939. Enlargement of Jurisdiction ; Statutorij Suit to Quiet Title. — A frequent application of these principles is found in the federal jurisdiction over statutory ^uits to quiet title. In the absence of statute, an owner of land can protect his title in equity only I»y a bill of peace or by a bill quia timet to remove a cloud upon the title. A bill of peace properly lies against an individual reiterating an unsviccessful claim to real property only where the plaintiff is in possession and his right lias been successfully maintained at law. The equity arises from the protracted litigation for the possession which the common-law action of ejectment permits. A bill quia timet to remove cloud upon title differs from a bill of peace in that it does not seek so much to ]int an end to vexatious litigation as to prevent future litigation by removing existing causes of controversy as to the title. To maintain a suit of this character it is generally necessary that plaintiff be in possession, and, except where the defendants are numerous, that his title be established at law or founded on undisputed evidence or long-continued possession. The statutes in various states authorize a suit in either of these classes of cases without reference to any previous judicial determination of the validity of the plaintiff's right, and, in some instances, without reference to his possession. Where the statute limits the right to parties in possession, the federal courts will take jurisdiction without question. 'I'ho point arose in tlie early ease of Clark V. Smith, 13 Pet. 105, 203, where the right was claimed under a statute of Kentucky. Catron, .1.. said: "Kentucky has the inidoubted power to regu- late and protect individual rights to her soil, and to declare Avhat shall form a cloud on titles; and having so declared, the courts of the United States, by removing such clouds, are only applying an old practice to a new equity created by the legislature, having its origin in the peculiar condition of the country." For a re\iew of the supreme court decisi;CE. 146 entire domain of equity jurisprudenee, exists in each one of these states, is possessed by some designated tribunals, and may be exer- cised by them in the modes of procedure established or sanctioned by law. § 353. States Which have Adopted the Reformed System of Procedure. — § 354. Its General Effect on the Jurisdiction. — The reformed procedure, in its abolition of all distinction between actions at law and suits in eciuity; in its abrogation of the common-law forms of Miction, and its institution of one "civil action" for all remedial purposes; in its allowing both legal and equitable rights to be maintained, and legal and equitable remedies to be conferred in combination by the single "civil action;" and in the uniform rules 'A'hich it has established for the regulation of this civil action when- ever and for whatever purposes it may be used, — purports to deal with, and does in fact deal with, the pruccdurc alone, with the mere instrunientalities, modes, and external forms by which justice is administered, rights are protected, and remedies are conferred. The new system was not intended to affect, and does not atfect, the differences which have heretofore existed, and still exist, between the separate departments of "law" and "ecjuity;" it was not in- tended to affect, and does not aff'ect, the settled principles, doc- trines, and rules of ecpiity jurisprudence and equity jurisdiction. To sum up this result in one brief statement, all equitable estates, interests, and primary rights, and all the principles, doctrines, and rules of the equity jurisprudence by which they are defined, deter- mined, and regulated, remain absolutely untouched, in their fidl force and extent, as much as though a separate court of chancery were still preserved. In like manner all equitable remedies and remedial rights. — that is, the equitable causes of action, and the rights to obtain the reliefs appropriate therefor,— and the doc- trines and rules of equity jurisprudence which define and deter- mine these remedies and remedial rights, and the doctrines and rules' of equity jurisdiction which govern and regulate, not the mere ,'nioilc of obtaining them, but the fact of obtaining such remedies, also remain wholly unchanged, and still control the action of courts in thef administration of justice. "While the external distinc- tions of form between suits in equity and actions at law have been abrogated, the essential distinctions which inhere in the very nature of equitable and legal primary or remedial rights still exist as clearly defined as before the system was adopted, and must con- tinue to exist until the peculiar features of the common law are destroyed, and the entire municipal jurisprudence of the r,tate is transformed into equity. If. therefore, the facts stated in the 147 JUDICIAL ixti:i!1'I!i:tation of jukisdictiox. § 85 pleadings show that the primary rights, the cause of action, and the remedy to be obtained are legal, then the action is one at law, and falls within the jurisdiction at law. If, on the other hand, the facts stated show that the primary rights, or the cause of action, or the remedy to be obtained are equitable, then the action itself is equit- able, governed by doctrines of the equity jurisprudence, and falling within the equitable jurisdiction of the court. It should be care- fully observed, however, that, under the reformed system of proce- dure, the same action may be both legal and equitable in its na- ture, since it may combine both legal and equitable primary rights, causes of action, defenses, and remedies. It is this fact which, more than any other, has tended to produce whatever confusion may liave arisen in the actual workings of the new system. . . . § 355. Its Particular Effects. — While this unanimous conclusion of the courts is, in general, correct; while, when we look at the effects of the reformed procedure as a whole, — en masse, — it is true that equity and the law remain unchanged,^still, this proposition is not true in every particular; there are some important and neces- sary limitations. . . . § 356. On Certain Equitable Interests. — The first and most palp- able of these necessary changes is the complete abrogation of a certain class of equitable primary rights, and the transformation of them into strictly legal rights.^ § 357. On Certain Equitable Remedies. — But there is another and still more important limitation of the general proposition. AVhile it is undoubtedly true that with the exception just men- tioned of the right conferred upon the direct assignee of a legal thing in action, all the equitable estates, interests, property, liens, and other primary rights recognized by the equity jurisprudence, and all the principles, doctrines, and rules of that jurisprudence which define them, determine their existence, and regulate their acquisition, transfer, and enjoyment, are untouched and unaft"'eeted, it is no less true that some of the equitable remedies and remedial rights belonging to the equity jurisprudence, and coming within the equity jurisdiction, are materially modified, if not indeed de- stroyed as equitable remedies and remedial rights, by the reformed procedure. § 85. In the first place, the permission to set up an equitable defense against a legal cause of action has in a great number of instances removed all occasion for bringing a suit in equity by whir-h tho equitable right of the defendant constituting his defense ^ Tlie author iiistancos the riglit of tlio assignee of a thing in action, which, under the Codes, is transformed into a legal right; see post, §§ 1270-1279. § 86 EQUITY JURISPRUDENCE. 148 may be established and the prosecution of the k^gai action may be restrained. I take a simple example of a very large class of cases. A. the vendor in a contract for the sale of land, brings an action of ejectment against B, the vendee, who is in possession, and hav- ing the legal title, must of course recover at law. B was therefore obliged to file a bill in equity against A, and t)btain thereby a de- cree of specific performance, and in the mean time an injunction restraining the further prosecution of the action at law. Having obtained a conveyance of the legal title under his decree, B would be in a position to defend the action of ejectment, or any subse- quent one which might be brought against him. By the reformed procedure, when the vendor commences a legal action to recover possession of the land from the vendee, the latter need not resort to a second equitable suit, nor obtain an injunction. The Avhole controversy is determined in the one proceeding. B's equitable estate and right to a conveyance is not only a negative defense to A's legal cause of action, but entitles B in the same action to as- sume the position of an actor, and to obtain the full affirmative relief which he would formerly have obtained by his separate bill in equity, — a decree for a specific performance and a conveyance of the legal estate. Although no substantial doctrines of equity have been altered, still, the vendee is no longer compelled in such cir- cumstances to sue in equity, nor to demand the ancillary remedy of an injunction. § 86. This familiar example may be generalized into the fol- lowing universal proposition : Whenever, under the former proce- dure, one party, A, had a legal estate or right which entitled him to recover in an action at law brought against B ; and where B, having no legal defense to this action, was still possessed of an ecjuitable estate or right which entitled him to some particular affirmative equitable remedy, — as, for example, a specific perform- ance, a reformation or correction, a cancellation, a rescission, etc., --which remedy when obtained would clothe him with the legal estate or right, and enal)le him thereby to defeat the plaintiff A's action at law; and where, under these circumstances. B would be obliged to go into a couit of equity jurisdi<-tion, and file a bill therein against A, and obtain a decree granting the desired equit- able relief, and, as an incident thereto, procure an injunction re- straining A's action at law, — in all such cases, the necessity, and even the propriety, of bringing the separate equity suit and enjoin- ing the legal action are completely obviated, since B can set up all his equity by way of defense or counterclaim, recover a judgment for the affirmative i-elief which he seeks, and defeat the action brought against him by A, in that very action itself. It would not 149 JUDICIAL IXTEKPUETATIOX OF JL'ItlSDICTIOX. § 87 be correct to say tliat the equity jurisdiction has been abrogated in this class of rases, since the defendant B might possibly follow the former method, and bring a separate action instead of setting up his equitable rights as- a defense and counterclaim : but this cir- cuitous mode of proceeding is seldom adopted, and will ultimately, perhaps, be prohibited by the courts, so that this direct equity juris- diction will doubtless, in time, become obsolete. § 87. One other equally important change produced by the re- formed procedure should be mentioned. Under the system of separate jurisdiction, when a person possesses an equitable right or estate entitling him to some particular equitable remedy which, Avhen obtained, Avould, in turn, confer upon him a legal right or estate in respect to the subject-matter, and enable him therewith to maintain an action at law, he is obliged (except in a few special eases) first to bi'ing a suit in equity and procure a decree establish- ing his right and granting him the needed equitable remedy, which clothes him with the legal title or estate. Having thus acciuired a legal basis for his demand, he must go into a court of law and enforce his newly perfected legal demand by means of a legal ac- tion. As familiar illustrations, if a person holds an equitable estate under a land contract, he must compel a specific performance in equity before he can recover possession of the land at law; if he holds' the equitable estate under an implied trust, he must in general obtain a transfer of the legal title from the trustee before he can maintain ejectment for the possession; if the instrument under which he claims is infected with mistake, and his full rights under it depend upon a correction of the mistake, he must obtain the remedy of reformation or re-execution in equity, and may then en- force his perfected legal right by the proper action at law; if his estate in land is purely an equitable one because a deed voidable through fraud has conveyed the legal title to another person, the equitable remedy of cancellation or rescission must be granted be- fore a legal action for the possession can be successfuL Wherever the reformed procedure has been administered according to its plain intent, the necessity of this double judicial proceeding has been obviated; indeed, if the true spirit of the new procedure is accepted by the courts, such a separation of equitable and legal rights and remedies, and their prosecution in distinct actions, will not perhaps be allowed. The plaintifif, brings one civil action in Avhich he alleges all the facts showing himself entitled to both the eciuitable and the legal reliefs needed to complete his legal right, and asks and ob- tains a double judgment, granting, first, the proper equitable rem- edy, and secondly, the legal remedy, by which his juridical posi- tion with resi^ect to the subject-matter is finally perfected; or he § 3.")8 EQUITY jrKl!51'];L DEXCE. 150 may simply demand and recover a .jiidi^iiient conferring only the final lei-al remedy, the preliminai'y e(}uital)le relict' being assumed as an essential prereciuisite to the recovery, but not being in terms awarded by the court. It follows, as an incident of this union of rights and remedies in one action, that all occasion for the ancillary or provisional equitable remedy of injunction to restrain the de- fendant from proceeding at law is often, and indeed generally, avoided in this class of cases. § 358. On the Inadequacy of Legal Remedies. — Finally, if the true s{)irit and intent of the reformed i)i'oc(Hlure were full}' carried out by the courts, I think that in all the states M'here it prevails the question whether or not an adequate remedy can be olitained at law M'ould cease to have the slightest importance in the actual decision of causes. One of the plainest purposes of the new system is. that if a cause of action is stated in the pleading, the relief to which the plaintiff is entitled should be granted, Avhether that relief be legal or equitable. A .suit should never be dismissed on the ground that a court of equity has no jurisdiction of the matter because the plaintiff* has an adequate remedy at law; it should be retained and decided as an action at law. and the adequate legal relief should be awarded. Tlie correctness of this theory is generally admitted, but the courts too often fail to carry the theory into practice. PART SECOND. THE MAXIMS AND GENERAL PRINCIPLES OF EQUITY JURISPRUDENCE, AND THE EVENTS WHICH ARE OC- CASIONS OP EQUITABLE PRIMARY OR REMEDIAL RIGHTS. PRELIMINARY SECTION. ANALYSIS. § 359. Objects, questions, tfiul divisions stated. § 360. Equitable principleft described. § 361. Equital)le doctrines described. § 362. Occasions of equitable rights. § 359. Questions and Divisions Stated. — Thus, far the discussion has been confined to the equit.y jurisdiction, or the power of courts to entertain and determine controversies involving equitable estates, interests, and rights, or to award remedies, in pursuance of the doctrines, methods, and procedure of equity. I now proceed to tlie examination of the doctrines and rules which make up the equity jurispriidence. In the introductory chapter it was shown that equity jurisprudence, considered as a department of the municipal law, as a collection of practical rules administered by the courts, is separated by a natural line of division into two parts, namely, equitable estates, interests, and primary rights, which are all either equitable rights of property or rights analogous to property, and equitable remedies and remedial rights'. There are, however, certain elements underlying and running through the entire body of equity jurisprudence, which must be explained and described in all their fulness and force, before either of these two great divisions can be dealt Avith in a complete and accurate manner. As clearly appears in our preliminary historical sketch, the doctrines and rules of equity jurisprudence are not arbitrary; they are, to a very great extent, based upon and derived from those essential truths of moral- ity, those unchangeable principles of right and obligation which have a juridical relation with and application to the events and transactions of society. These ethical truths do not, however, ap- pear in equity jurisprudence in their purely abstract form. As thev must be applied by the courts to juridical relations alone, they §360 EQUITY jrnjsi'UUDKXCK. loi Isave been made to assume a concrete and juridical character, with- out losing- at the same time any of their inherent ethical nature, hi fact, these juridical precepts of i-ight and duty are the broad foundations upon wliich the superstructure of equity jurisprudence lias been constructed; they are the sources from which most of those doctrines and rules have been drawn which define and reg- ulate equitable estates, interests, and rights, and control the ad- ministration of equitable remedies. A careful examination and full comprehension of these sources— these fundamental principles — are plainly a prerequisite to any complete and accurate hnowl- edge and understanding* of the doctrines and rules which result from them. § 360. Equitable Principles.— The juridical principles^ of moral- ity wliich thus constitute the ultimate sources of equitable doc- trines and rules are of two classes or grades. Underlying the entire bod}' of equity jurisprudence, extending through every one of its departments, and shaping to a greater or less extent its doctrines concerning almost every important subject, are certain broad coin- i)reheiisive precepts which are commonly denominated maxims of ecjuity. These maxims are in the strictest sense the principia, the beginnings out of which has been developed the entire system of truth known as equity jurisprudence. They are not the practical and final doctrines or rules which determine the equitable rights and duties of individual persons, and which are constantly cited by the courts in their decisions of judicial controversies. They are rather the fruitful germs from which these doctrines and rules have grown by a process of natural evolution. They do not ex- clusively belong either to the department which treats of equitable (^states, property, and other primary rights, nor to that which deals with equitable remedies; their creative and molding influence is found alike throughout both of these departments. Among the most important of these principia which have been crystallized into the pithy form of maxims are the following: E(|uity regards that as done which ought to have been done ; equity looks at the intent, rather than the form; e(|uality is equity; he who seeks equity must do equity: he who comes into equity must come with clean hands. While it cannot be said that these and other similar principles have all produced the same or equal effects upon the development oi * It is important to obtain an accurate notion of the distinction between "principles" and doctrines. "All principles are doctrines, bnt all doctrines are not principles. Those properly are principles which contain the principia, the beginnings or starting— points of evolution, out of which any system of trufli is developed:" De Quincey. "Rules" are still more particular in their application and narrow in their scope than doctrines. 153 PRELIMINAUV SECTION. § ^502 equity jurisprudence, yet it is undeniable that a vast proportion of the actual doctrines and rules which make up the system of equity are necessary inferences from or direct applications of some one or more of these fundamental maxims. It is evident, therefore, that any full and accurate discussion of the doctrines and rules which constitute the two main divisions of equity jurisprudence as heretofore described must be preceded by an examination into the nature, meaning, extent, and effects of these few germinal prin- ciples. § 361. Equitable Doctrines. — In addition to these true principia, these principles which run through and affect all parts of equity jurisprudence, there are also certain other comprehensive doctrines which are purely equitable, and largely serve to distinguish the system from the "law." The doctrines to which I refer are neither equitable estates, nor property, nor remedies, nor are they exclu- sively concerned either with equitable estates and other similar rights, or with equitable remedies; on the contrary, they affect to a greater or less extent both the equitable rights of property and the administration of equitable remedies. It seems expedient, there- fore, in order to avoid unnecessary repetition, — even if this arrange- ment is not essential in any scientific method, — that the investiga- tion of these peculiar doctrines should precede the discussion of equitable estates, interests, and other primary rights, and of equit- nl)le remedies. The following are illustrations of the doctrines which constitute this special class: The equitable doctrines con- cerning penalties and forfeitures; the doctrine concerning priori- ties; the doctrine concerning notice; the doctrine of election. All of these are very comprehensive in their nature and effects, and are the immediate sources of numerous rules in all branches of equity jurisprudence. § 362. Occasions of Equitable Rights. — Finally, there are certain facts or events which are the occasions of numerous equitable rights, both primary and remedial, and Avhich thus give rise to important doctrines and rules in every branch of equity jurisprudence. These facts and events have sometimes been described as forming a part of the concurrent jurisdiction; but this view, as has already been shown, is superficial and erroneous. The facts and events which are thus peculiarly the occasions of equitable rights are fraud, mis- tnke, and accident. Under the system of classification Avhieh I have adopted, these subjects do not exclusively belong either to the department of equitable estates and other primary rights, nor to that of equitable i*emedies. Although not the sources of rules, like the principles and doctrines mentioned in the foregoing paragraphs, they are the occasions which give rise to a large number of rules, § SGV Et^UlTY JLI'tlSrUUDKNCi:. 154 and their examination should, in any proper order, precede the dis- cussion of equitable property and equitable remedies. This se(;ond part will therefore be separated into three chapters, of which the tir.st will be devoted to the fundamental maxims of equity, the sec- ond to the group of peculiarly equitable doctrines above described, and the third to the special facts and events which are the occa- sions of many equitable rights and remedies. 155 KEGAKDS THAT DOXE WillCli OUGHT TO BE DONK. 55 3(i3 CHAPTER I. THE FUNDAMENTAL PRINCIPLES OR MAXIMS OF EQUITY. SECTION L EQUITY REGARDS THAT AS J)(>XK WHICH OUGHT TO BE DONE. ANALYSIS. § 363. List of equitable iiiaxiins. § 364. Equity regards as done what ought to be done; its importance. S§ 305-377. Its true meaning, and its effects upon equitable doctrines. §§ 366-369. Is the source of equitable jiroperty and estates. § 366. Sources of legal property or titles described. § 367. Effect of an executory contract at law. § 368. Effect of an executor}' contract in equity. § 369. Sources of all kinds of equitable property described. §§ 370-376. The equitable estates winch are derived from this principle. § 371. Conversion. § 372. Contracts for the purcha.se and sale of lands. § 373. Assignments of po.ssibilities; sale of chattels to be acquired in the future; assignments of things in action; equitable assign- ments of moneys; and equitable liens. § 374. Express trusts. § 375. Trusts arising by operation of law. § 376. Mortgage; equity of redemption. § 377. Conclusions. § 363. List of Maxims. — These principles' which are so funda- mental and essential that they may with, propriety be termed the maxims of equity are the following-: Equity regards that as done which ought to be done; equity looks to the intent, rather than to the form; he who seeks equity must do equity; he who comes into equity must come with clean hands; equality is equity; where there are equal equities, the first in time shall prevail ; where there is equal equity, the law must prevail ; equity aids the vigilant, not those who slumber on their rights, or Vigilantibus non dormientibus, iiequitas subvenit ; equity imputes an intention to fufill an obliga- tion : equity will not suffer a wrong without a remedy; and equity follows the law. It must not be supposed that all these maxims are equally important, or that all have been equally fruitful in the development of doctrines and rules; but it is not an exaggeration to say that he who has grasped them all with a clear comprehen- § 364 EQUITY JLIilSl'KUDEXCE. 156 siun of their full meaning" and effects has already obtained an in- sight into whatever is essential and distinctive in tlie system of equity jurisprudence, and has found the explanation of its peculiar doctrines and rules. I purpose, in the successive sections of this chapter, to discuss them in the order given above. § 364. First Maxim : Its Importance and General Operation. — The tirst maxim in the list has been stated in somewjiat; yarying^ language by different text-writers, but without anj' substantial variation in the meaning. I think the following form is both strict- ly accurate and sufficiently comprehensive in expressing the equit- able principle : Equity regards and treats that a.s done which in good conscience ought to be done. Some Avriters have failed ta apprehend the full significance of this maxim, and have described its effects in altogether a too narrow and partial manner.^ Others have correctly looked upon it as the very foundation of all dis- tinctively equitable property rights, of all equitable estates and interests, both real and personal.- It is in fact the source of a large part of that division of equity jurisprudence which is concerned with equitable propert}^; the doctrines and rules which create and define equitable estates or interests are in great measure derived from its operation. So far from the maxim being confined to ex- press executory contracts, and to those dispositions of property which give rise to an e(iuitable conversion, it has been applied by the most eminent courts to all classes r,f equities; to every instance where an equitable onijJit with respect to the subject-matter rests upon one person towards anqther; to every kind of case where an affirmative equitable duty to do some positive act devolves upon one party, and a corres|)onding equitable right is held by another party.^ Whenever courts of high authorit}^ have dealt with the 'Thus Mr. Justice Story (I Eq. Jur., § 64 g), and Mr. Snell (Snell's Equity, 37) following him, say: "The true meaning of this maxim is, that equity will treat the subject-matter of a contract, as to collateral consequences and inci- dents, in the same manner as if the final acts contemplated by the parties had been executed exactly as they ought to have been, not as they might have been, executed. . . . 1'he most frequent cases of the application of the rule are under agreements." This description is merely the substituting one practical result of the principle in the place of the principle itself. -Adaius Equity, 135 (6th Am, ed., p. 295). See 2 Spence's Eq. Jur. 2.'j3 «=t seq. ^Frederick v. Frederick, 1 P. Wms. 710, 1 Scott 311. A person had contrac- ted to become a citizen of London, but died before he had carried this agreement info effect by taking up his freedom. His widow thereupon brought a suit to ])rocure his personal estate to be distributed in accordance with the customs of London, which ap])lied to citizens only, and which prescribed a very diff- erent mode of distribution from that wliich prevailed under the statue in other parts of England. The court, invoking the maxim, held that the deceased 157 REGAh'DS THAT DOXK WlIlCll OUGHT TO BE DONE. § 3G5 principle in a narrower manner, and have given to it a more re- stricted operation and effect, their language, although perhaps very- general in its' terms, should be taken as confined, and as intended by the court to be confined, to the particular application of the maxim then under judicial investigation.* § 365. Its Meaning and Effects.— What is the true meaning of the principle, taken in its most comprehensive and generic sense? and what are its true effects upon the system of distinctive doc- trines and rules which constitute the equity jurisprudence"? In the first place, it should be observed that the principle involves the notion of an equitable ohligation existing from some cause; of a present relation of equitable right and duty subsisting between two parties, — a right held by one party, from whatever cause arising, should be regarded as though he were actually a citizen at the time of his death, and that his estate should be distributed in pursuance of the custon. This de- cision clearly exhibits tiie universality of the maxim. Coventry v. Barclay 3 DeGex, J. & S. 320, 328, per Lord Chancellor Westbury. Jn this case the ques- tion in dispute was, wheflier a partner — Bevan — was bound by certain accounts settled with his co— partners, or whether he could disregard them, and have a general accounting gone into. By the partnership articles it was stipulated that on a certain day of each year the accounts of the whole past year should be made up, presented to all the partners, settled, and signed by each. At the appointed day in one year the accounts were thus made up, and laid before all tlie firm, except Bevan, settled and signed by them. Bevan was not jDresent, on account of illness, and never signed these accounts, but afterwards saw them, and verbally assented or agreed to their correctness. The same took place on another year. On these facts Lord Westbury said (p. 228) : "It is the rule of a court of equity to consider that as done which ought to be done; and if, tiierefore, I find that the accovuits and valuation of July. I860, at the making of which Mr. Bevan was not present, were afterwards accepted and agreed to by him, I shall hold that the account was in equity signed by him at the time A\ hen it was so accepted." Here, it will be seen, this most able judge applied the maxim, not to the title and pro]ierty in land or chattels, but to a purely per- sonal act, and held that equity would regard sucli a personal act as done, al- though in fact it never was done, because it ought to be done. The case is in exact harmony with Frederick v. Frederick, 1 P. Wms. 710. In Sourwine v. Supreme Lodge, 12 Ind. App. 447, 452, 453, 54 Am. St. Rep. 532, 530, 40 M. E. 646, I Scott 320, a member of a beneficial association in good stand- ing and entitled imder its constitution and bylaws to be transferred from one endowment class to another, requested to be so transferred, and did all that could be required of him to enter such class, biit his request was wrongfully and arbitrarily refused. After his death, the court, recognizing the flexi- bility of equitable remedies, and quoting the above passage of the text, granted relief as though tlie transfer had been effected. See, also, Ames v. Richardson, 20 IMinn. 330. 13 X. W. 137. Sh. 64. * This is the universal rule for the interpretation of judicial dicta, and it is the only mode of avoiding irreconcilable conflict of opinion. The narrow and restricted effect given to the maxim is most frequently foimd in decisions concerning equitable cnvvprFswn: and it has no other hvijitiniate meaning than that of defining the limits within which the principle can operate in such cases. 5^ ;jU«j equity JURlr?l"l!CDi:XCK. 158 that the other sJiould do some act, and the eorrespondinu' duty, the ought resting upon the latter to do such act. Equit}- does not I'e- g'ard and treat as done what might be done, or what could be done, but only what ougJit to be done. Nor does the principle operate in favor of every person, no matter what nuiy be his situation and re- lations, but only in favor of him Avho holds the equitable right to have the act performed, as against the one upon whom the duty of such performance has devolved.^ Wherever between two parties, A and B, an "equity" exists with respect to a subject-matter held by one of them, B, in favor of the other. A, then as between these t^^o a court of equity regards and treats the subject-matter and the real beneficial rights and intei'ests of A as though the "equity'* had actual]}^ been worked out, and as impressed with the character and having the nature which they then would have borne. V7hen in this proposition it is said that an "equity" exists between the two ])arties, the meaning is, that some equitable obligation to do ^■(>me positive act with respect to the subject-matter, arising from a cause recognized by the rules of equity jurisprudence, rests upon B, and a corresponding equitable right to have the act done by B with respects to the same subject-matter springing from the same efficient cause, is held by A. This active relation subsisting be- tween the two parties, a court of efpiity, partly acting upon its fundamental principle of going beneath the mere external form and appearance of things and dealing with the real fact, the real beneficial truth, and partly for the purpose of making its remedies more complete, treats the resulting rights of A as though the obli- gation of B had already been performed; regards A. in fact, as clothed with the same ultimate interests in the subject-matter which he would receive and hold if B had actually fulfilled his obligation by doing the act which he ought to do. Of course this interest thus j)osse.ssed by A is and must be a purely equitable one. recognized by courts of equity alone, since no legal interest in the subject- matter could become vested in A except by the complete perform- ance of his. obligation on the part of B. — his really doing the act which his duty bound him to do. § 366. Is the Source of Equitable Property — Sources of Legal Property or Titles.— All kinds of equitable property, as distin- guished from legal ownership, are. Avith perhaps one or two parti- cular exceptions, derived from this fruitful and most just principle. Its full operation can best be understood and appreciated from a brief comparison of the modes in which absolute property — that ' Btn-soss V. Wheate, 1 \V. Hlaok. 12:^ 129. ] Eden 177. 1 Scott 316; Daggett V. Rankin. .31 Cal. .321. .12(i. per rurrcv. / 159 KEC.AKDS THAT DOXi: WUICJI OlGllT TO HE DONE. § oHi) is, the perfect right of ownership, doniiuium — arises or is acquired at law, with the modes in which the analogous right of property arises according to the doctrines of equity. In the earliest and rudest periods of the common law absolute property could only be acquired inter vivos by the accurate observance of certain arbitrary, external forms, or symbolic acts and gestures.^ Although Avith an advancing civilization these external and symbolic acts have dis- ni)peared, still, down to the present time the only absolute property or right of ownership which the law recognizes, and Avhich courts oi law protect by their legal actions and remedies, whether in land or in things personal, nuist arise and be acquired in certain fixed, determinate methods, wdiich alone constitute the "titles" known to the laAV, — using that word in its strict and true sense as means of acquiruKj property. Without following some one of these certain modes, no legal property can be obtained or transferred as between persons in their private capacitie.s.- The most important of these connnon-laAV methods Avhich must be pursued in order that a legal property may be acquired in land are : A conveyance under seal whereby the seisin was transferred; a will; inheritance; marriage whereby a freehold estate for life might be vested in one of the spouses; actual disseisin with an adverse possession during the period prescribed by the statute of limitations; and under very special circumstances, accession.^ The important modes of acquir- ing a legal property in things personal are : A true present sale or bailment where the chattel is in existence and capable of im-. mediate manual transfer; a will; a succession in case of intestacy as regulated by the statute of distributions; marriage; adverse pos- session aided by the statute of limitations; occupancy; and the vari- ous acts which are included under the generic term "accession."* 'This is true of every system of national law in its earliest, senii-bar- l)aroiis, and purely cu(?tomary stage. The 'iivery of seisin" of the Saxon and ancient common-law was identical in principle witli tlie "mancipation" by whitli complete dominion could alone bo transferred in the primitive Roman law, — the early jus civile. - As I am speakinir only of private relations. I purposely omit all mention of the public modes in which property might be acquired by the state, — escheat, forfeiture, eminent domain, and tlie like, — and also those somi-]mblic methods allowed by statutes in which property is vested in certain oflicial persons, such as assignees in bankruptcy or insolvency, and the like. 'The case of "alluvion" where the proprietor's land c/roirs. as it were. * In all the instances where property is divested and transferred through the agency of some administrative oflicer. — e. g.. a sheriff acting in pursuance of a judicial authority, — the final means of transfer and of acquisition is a sale in case of chattels, and a conveyance in case of land. The only real distinction between these cases and those of ordinary sales and conveyances lies in the pcr'^oii \\l\o as vendor or grantor makes the transfer. ■ § 367 EQUITY JURISPRUDENCE. 160 Unless a person has obtained the legal property in a specific tract of land through some one of the foregoing modes, he cannot as demandant maintain a real action to recover such land, or as lessor of the plaintiff under the ancient practice, or as plaintiff under the modern, maintain an action of ejectment for the same purpose. A legal estate acquired by some legal title is indispensable. Upon the same principle, unless a person has a legal property in a specific chattel, obtained through* some mode recognized by the law, he can. not as plaintiff* maintain any of the proprietary actions at law for the purpose of recovering the article itself, or its value in money, or damages for an invasion of his ownership, replevin or detinue, trespass or trover. While he may have legal rifjhts with respect to the thing, Avhich courts of law will protect, and for the violation of Avhich he may be entitled to appropriate legal remedies, his legal right of property can only arise and exist upon the occasion of cer- tain, determinate acts or events. § 367. Effect of an Executory Contract at Law. — What is the effect at law of a contract whereby the owner agrees to sell and convey a designated tract of land, but which is not a true convey- ance operating as a present transfer of the legal estate and the legal seisin? It is wholly, in every particular, executory, and pro- duces no effect upon the respective estates and titles of the parties, and creates no interest in nor lien or charge upon the land itself. The vendor remains, to all intents, the owner of the land; he can convey it to a third person free from any legal claim or encum- brance; he can devise it in the same manner; on his death inte- state, it descends to his heirs. The contract in no manner inter- feres with his legal right to and estate in the land, and he is simply subject to the legal duty of performing the contract, or to the legal liability of paying such damages for its non-performance as a jury may award, which are collectible from his property generally. On the other hand, the vendee acquires no interest nor property right whatever; he can maintain no proprietary nor possessory action for its recovery; his right is a mere thing in action to recover com- pensation in damages for a breach from the vendor, and his duty is a debt,— an obligation to pay the stipulated price ; on his death both this right and this duty pass to his personal representatives, and not to his heirs. In short, the vendee obtains at law no real property nor interest in real property. The relations between the two contracting parties are wholly personal. No change is made until, by the execution and delivery of a deed of conveyance, the estate in the land passes to the vendee. It is unnecessary to describe the similar legal effects produced by agreements to sell chattels, 161 IJEGAHDS THAT DOXK WHICH OUGHT TO BE DONE. § 368 sales of articles to be acquired by the vendor in the i'uture, and all other contracts which are executory in their nature. §368. Effect of an Executory Contract in Equity. — The full sigrnificanee of the principle that equity regards and treats as done what ought to be done throughout the whole scope of its effects upon equity jurisprudence is disclosed in the clearest light by the manner in which equity deals with executory contracts for the sale of land or chattels, which presents such a striking and com- plete contrast with the legal method above described. While the legal relations between the two contracting parties are wholly per- sonal, — things in action, — equity views all these relations from a very different stand-point. In some respects, and for some pur- poses, the contract is executory in equity as well as at law; but so far as the interest or estate in the land of the two parties is con- cerned, it is regarded as executed, and as operating to ti-ansfer the estate from the vendor and to vest it in the vendee. By the terms of the contract the land ought to be conveyed to the vendee, and the purchase price ought to be transferred to the vendor; equity therefore regards these as done : the vendee as having acquired the property in the land, and the vendor as having acquired the prop- erty in the price. The vendee is looked upon and treated as the oivner of the land: an equitable estate has vested in him commensur- ate with that provided for- by the contract, whether in fee, for life, or for years; although the vendor remains owner of the legal estate, he holds it as a trustee for the vendee, to whom all the beneficial interest has passed, having a lien on the land, even if in possession of the vendee, as security for any unpaid portion of the purchase- money.^ The consec{uences of this doctrine are all followed out. As the vendee has acquired the full equitable estate, — although still wanting the confirmation of the legal title for purposes of security ' Farrar v. Winterton, 5 Beav. 1, 8: Haughwout v. Murphy, 22 X. J. Eq. 531, Sh. 19S. It is a great mistake, opposed to the fundamental notions of equity, to suppose that the equity maxim does not operate, and the vendee does not become equitable owner until and as far as he has actually paid the stipu- lated price. This erroneous view has sometimes been suggested, and sometimes even held, in a few American decisions; but it shows a misconception of the whole equitable theory. In truth, the vendee becomes equitable owner of the land, and the vendor equitable owner of the purchase-money, at once, upon the execution and delivery of tlie contract, even before any portion of the price is paid. It is true that tlie vendee's equitable estate is encumbered or charged with a lien as security for tlie iinpaid price, and he, therefore, may, by the en- forcement of this lien upon his final default in making payment, lose his whole estate, in the same manner as a mortgagor may lose his interest by a foreclosure. But this lien of the vendor is not inconsistent witli the vendee's equitable estate, any more tiian the equitable lien of an ordinary mortgage is inconsistent with the mortgagor's legal estate. 11 § 368 EC^UITY JUKl.Sl'KUDKXCK. 162 ayainst third persons, — he may convey or encumber it ; may devise it by will ;- on his death intestate, it descends to his heirs, and not to his administrators;'' in this country, his wife is entitled to dower in it;* a specific performance is, after his death, enforced bj^ his heirs; in short, all the incidents of a real ownership belong to it. As the vendor's legal estate is held by him on a naked trust for the vendee, this trust, impressed upon the land, follows it in the hands of other persons who may succeed to his legal title, — his heirs and his grantees, who take with notice of the vendee's equitable right. Tn other words, the vendee's eiinitable estate avails against the vendor's heirs, devisees, and other voluntary assignees, and his grantees with notice ; it is only when the vendor has conveyed the land to a third person who is a bona, fide purchaser for value without notice that other equit- able principles come into play, and cut off the vendee's equitable Cbtate.^ It follows also, as a necessary consequence, that the vendee is entitled to any improvement or increment in the value of the land after the conclusion of the contract, and nnist himself bear any and all accidental injuries, losses, or wrongs done to the soil by the operations of nature, or by tortious third persons uot acting under the vendor.** The equitable interest of the vendor is correlative - Daire v. Beversliam, Nelson 76, 1 Ch. Ca. ^9, 1 Ames Cas. Eq. Jur. 192; Buck V. Buck, 11 Paige 170, 2 Keener 337. ■'Milner v. .Mills, ]\Ios. 123, 1 Ames Cas. Eq. Jur. 191; Langford v. Pitt, 2 P, Wms. 629, 2 Scott 405, 2 Keener 333; Townsend v. Champernowne. 9 Price 130, 2 Scott 410, 2 Keener 335; House v. Dexter, 9 Mich. 246, 2 Scott 414 (lieir of vendee's assignee). Therefore, the vendee's heir or devisee may compel his executor or administrator to pay the unpaid purchase money out of the vendee's ])ersonalty; ^lilner v. 51ills, supra. If the contract was valid and enforceable at the vendee's death, but was afterwanls rescinded, equity will not suffer the heir to be disappointed, but will compel the administrator to pay him an amount from the personalty equivalent to the price of the land: Matthews v. Gadd, .") South Austr. L. R. 129, 1 Ames Cas. Eq. Jur. 193; Lysaght v. Edwards. 2 (h. D. 499, 521, 2 Keener 360; but if the contract was not valid and enforce— :il)Ie at the vendee's death there being then no conversion, the heir has no claim 1o the purchase money; Green v. Smith, 1 Atk. 572, 1 Ames Cas. Eq. Jur. 193. 1 Scott 313. 'Thompson v, Thompson, 1 Jones (X. C.) 430. 1 Ames Cas. Eq. Jur. 201 Miolding that the interest of the vendee is an equitable "estate." not a mere (■quitable "right") : Bailey v. Duncan, 4 :Monr. Hxy.) 256, 2 Keener 343, 2 Scott 417. ^ In that case the vendor is accountable as a trustee to the vendee for the price received by him for the land; Taylor v. Kelly. 3 Jones Eq. (N. C.) 240, 1 Ames Eq. Jur. 215; Haughwout v. INTnrphy. 22 X. J. Eq. 531, Sh, 198. See, also. White v. Patterson, 139 Pa. St. 420. 21 All. 360. "Loss by earthquake: (\ass v. Puddle. 2 Vcni. 2S0. 2 Scott 48S. Loss by fire: Paine v. Aleller, 6 Ves. 349. 1 Ames luj. .Tur. 227. 2 Scott 450, 2 Keener 403: Marks v. Tichenor. So Kv. 536. 4 S. XA". 22."). 2 Keener 430, H. & B. 662; 1G3 KEGAIJUS THAT DOXK WHICH OUGHT TO BE DON" E. ^ 3GS with that of the vendee; his beneficial interest in the laud is gone, and only the naked legal title remains,' which he holds in trust for the vendee,'' accompanied, however, by a lien upon the land as security when any of the purchase price remains unpaid. This lien, like every other eipiitable lien, is not an interest iu ihe land, is neither a jus ad rem nor a jus in re, but merely an encumbrance." The vendor is regarded as owner of the purchase price, and the vendee, before actual payment, is simply a trustee of the purchase- money for him. Equity carries out this doctrine to its conse- (luences. Although the land should remain in the possession and in the legal ownership of the vendor, yet equity, in administering his whole propei'ty and assets, looks not upon the land as land, — for that has gone to the vendee, — but looks upon the money which has taken the place of the land ; that is, so far as the land is a re- Brewer V. Herbert, 30 Md. 301, 96 Am. Dee. 582, 1 Scott 425, 2 Keener 421; but see Goldman v. Rosenberg, 116 N. Y. 78, 15 Am. St. Rep. 410, 22 N. E. 397, 2 Keener 431; compare actions at law where the loss fell on the vendor: Tliompson v. Gould, 20 Pick. 134, 1 Ames Eq. Jur. 234, 2 Keener 40G: (iould V. Murch, 70 Me. 288, 35 Am. Rep. 325, 2 Keener 426, H. & B. 661. Of course, by special stipulation the risk of loss may fall on the vendor: Counter v. Mac- plierson, 5 Moore P. C. C. 83, 2 Keener 412; Combs v. Fislier, 3 Bibb (Ky.) iJl. 2 Scott 453; and if at the time of the loss the contract was not binding upon and enforceable against the vendee, by reason of a defect in title, etc., the vendor mv.st bear the loss: Phinizy v. Guernsey, 111 Ga. 346, 78 Am. St. Rej). 207. 36 S. E. 796, H. & B. 671; Lombard v. Chicago Sinai Cong. 75 111. 271, 2 Keener 398; Blew v. McClelland, 29 Mo. 304, 1 Ames Eq. Jur. 237 (contract not in writing). Similarly, loss by the happening of other contingencies falls upon the vendee; as where an estate for lives is purchased, and one or all of the lives drop before conveyance, the vendee is nevertheless compelled to pay the purchase price: White v. Nutt, 1 P. Wms. 61, 1 Ames Eq. Jur. 226, 2 Scott 450, 2 Keener 404; Kenney v. We.xham, 6 Madd. 355, 2 Keener 80. Since tlie vendor is in most respects a trustee for the vendee, it would seem clear tliat insurance monej^ paid to the vendor in case of loss, by fire should be held by him in trust for the vendee; see Phinizy v. Guernsey, supra; Reed v. Lukens, 44 Pa. St. 200, 84 Am. Dec. 425, and note, 2 Scott 455; but it has been held otiierwise, in England, by a divided court ; Rayner v. Preston, L. R. 18 Ch. D. 1, 1 Ames Eq. Jur. 229, 2 Scott 458; and see Castellain v. Preston, L. R. 11 (,). 15. D. 380, 2 Keener 427 (vendor nnist refinid the insurance money paid him to the insurer). " His widow has no dower in lands which he contracted to sell before liis carriage; Dean's Heirs v. ^slitcholl's Heirs, 4 J. J. Marsh (Ky.) 451, 1 Ames ■q Jur. 204. '^^ It is therefore the duty of the vendor in possession to take reasonable care .o preser\'e the property in the condition in which it existed at the time of the cr.traot; Foster v. Deacon, 3 Madd. 394, 2 Keener 341: Phillips v. Silvester, .-. R. 8 Ch. App. 173, 2 Keener 356; Clarke v. Ramuz (1891), 2 Q. B. 456, 1 Ar.ies Eq. Jur. 222. 2 Keener 380. 2 Scott 424: Bostwick v. Beach. 105 N. Y. 6(?1. 12 N. E. 32. H. & B. 663; compare Carrodus v. Sharp, 20 Beav. 56, 2 ■ an^T 350, 2 Scott 421. •As to tlie vendor's lien, see i)ost, iJi? 12G0. 1261. § 369 EQUITY JUmsPHUDEXCE. 164 presentative of the vendor's property, so far as it is an element in his total assets, equity treats it as money, as though the exchanyt^ had actually been made, and the vendor had received the money and transferred the land. Although the legal title to the land would still descend to the vendor's heirs upon his death, still when the vendee afterwards completes the contract, takes a conveyance of the legal title from the heirs, and pays the price, the money, be- ing all the time an element of the vendor's assets, and be- ing, therefore, all the time a part of his personal and not of his real property, goes to his administrators or executors, to be by them administered upon with the rest of his personal assets, and does not go to the heirs. ^° § 369. Sources of All Equitable Property. — In the foregoing' de- scription is shown how, in one particular manner, by the operation of the fundamental principle, the equitable estate in land, the beneficial property, the real ownership, arises, although no one of the acts or events has taken place which the common law so im- peratively demands as a prerequisite to the existence of ownership or property. This instance is given simply as an example. An analj^sis of all the different equitable estates, property, and inter- ests analogous to property, either real or personal, known to the equity .lurisprudence will disclose the fact that nearly all, if not absolutely all, arise in the same general manner, by the operation upon the particular circumstances of the same fundamental prin- ciple, and with the same general results.^ Thus an assignment oi- conveyance of that peculiar interest in land called a "possibility" is at the common law a mere nullity, so far at least as it attempted to create or transfer any ownership. At the time when the instru- ment is executed there is no present, certain, vested property right »Bubb's Case, Freem. Ch. 38, 1 Ame.'? Eq. -Tur. 194; Hoddel v. Pugh, .3.3 Beav. 489, 2 Scott 412; Keep v. IMiller. 42 N. J. Eq. 100, 6 Atl. 495, 1 Keener 328, H. & B. 1.57; Mayer v. Gowland, 2 Dick. 563, 2 Scott 408, 1 Ames Eq. ,Tur. 195 (does not go to the' devisee of the vendor) ; Potter v. Ellice, 48 IST. Y. 321. 2 Scott 415. So, if the contract Avas valid at the time of the vendor's death, but subsequently became unenforceable because of the vendee's laches, equity will ' not suffer the vendor's next of kin to be disappointed, but the land Avill go to the administrator as personal assets; Curre v. Bowyer, 5 J>oav. G, note (b), 1 Ames Eq. .Jur. 196: and see Lysaght v. Edwards, L. P. 2 Ch. D. 499, 518, 519, 2 Keener 360; Keep v. Miller, 42 N. .1. 100. 6 Ail. 495, 2 Keener 328, H. & B. 157. Otherwise, of course, if the contract was unenforceable at the time of the vendor's death, since in that case there is no conversion; Thomas v. Howell, L. R. 34 Ch. D. 166, 1 Ames Eq. -Tur. 196: Lysaght v. Edwards, 2 Ch. D. 499, 515, 2 Keener 360. As to rights of heirs and y)ersonal representatives of a vendor who has given an option to purchase, which is exercised after his death, see post, § 1163. * Sourwine v. Supreme Lodge, 12 Ind. App. 447, 54 Am. St. Rep. 532. 40 X. E. 646, 1 Scott. 320. IGo keoai;d8 that doxk wiiicn ougjit to be done. § 'Mjd in the assigTior upon which its granting language can attach; and if iit some future time the contingency happens, the possibility 'lianges into a certainty, and a property right becomes vested in the assignor, the arbitrary and technical rules of the common law concerning conversances of real estate did not allow the words of assignment to act upon this newly arisen and vested interest so as to transfer it to the assignee. The efit'ect of such a transaction in efiuity is wholly different. Although when the assignment is exe- cuted there is no present certain right of property in the assignor which can l)e ti-ansferred, yet in the view of equity the instrument operates at least as an executory agreement on the part of the as- signor, and creates a present obligation resting upon him with reference to the land, which obligation, though iioiv contingent, may in future become absolute. If, therefore, at a subsequent time the contingency happens, and a certain present property thereupon vests in the assignor, the obligation, now become absolute, at once attaches to it. By virtue of that obligation this property or estate of the assignor onglit to be conveyed to the assignee by an efficient legal assurance; and equity, regarding what ought to be done as done, treats the property as transferred, and the assignee as vested with the complete beneficial ownership. In this manner equity', in inirsuance of the fundamental principle under discussion, gives full effect to an assignment or conveyance of a "possibility," and makes it the source of an equitable property in land. Again, a sale of a chattel not yet in existence, or not yet in the possession of the vendor, but to be acquired in future, passes no property in the thing- to the buyer at law, even when it subsequently comes into the seller's ownership and possession. Such contract gives to the buyer a right of action for damages, but no property; he can main- tain an action of assumpsit, but not replevin, or trover, or trespass.^ But as such a contract, although using: language in praesenti, is, in effect, an executory agreement, and creates a definite obligation uj-)on the vendor, e(juity, upon the same principle and in the same inanner as last above explained, regards it as an assignment; and vrhen the thing comes into existence, or into the ownership of the seller, the real, beneficial property in it is at once transferred to and vested in the buyer, and he is the equitable OAvner. It is in consequence of the same principle that an assignment of a thing in action, completely nugatory at the common law as a transfei', and indeed opposed to the ancient theories of the law, is regarded in equity as clothing the assignee with all the rights of his assignor. ^ I am stilting of course, the freneral rule, and need not describe the special excoptcd ease of tilings liaving a "potential existence," such as an expected crop, etc. § 371 EQUITY JUI!lt^ri;UDEXCK. 1(30 These illustrations have all been taken from express contracts. The principle also extends to cases where the leual relations arise from conveyances inter vivos, or wills in which one of the parties is a volunteer, and even to transactions in which the legal relations arise from no such definite cause, but are merely implied from tlie prior conduct of the parties. In all express active trusts to convey the corpus of the trust property directly to the cestui tjue trust, and in all express passive trusts to hold the land for the use of the cestui que trust, created either by deed or by will, an equity exists between the beneficiary and the trustee, an oblii»-ation rests upon the latter, and this equity is treated as w^orked out, the obligation a.s per- formed, and the beneficiary as clothed with an equitable estate, de- pending in kind, (luality, and degree upon the special provisions of the instrument. Finally, in trusts arising by operation of law, im- plied, constructive, and resulting trusts, the equity subsisting be- tween the cestui que trust and the holder of the legal title, and the obligation resting upon the latter, are treated as though worked out, by regarding the beneficiary as vested with an equitable but no less real ownershij). §370. The Equitable Estates Derived from This Principle. §371. Conversion. — One of the most direct and evident results of the principle is the equitable property which arises from the doctrine of conversion, — Avhen real estate is treated by equity as ])ersonal property, or personal estate as real property; land as money, or money as land, — "nothing is better established than this })rinciple. that money directed to be employed in the purchase of land, and land directed to be .sold and turned into money, are to ])e considei-ed as that species of property into which they are directed to be converted; and this in whatever manner the direction is giv- en, whether by will, by way of contract, marriage articles, settle- ment, or otherwise, or whether the money is actually deposited, or only covenanted to be paid; whether the land is actually conveyed, or only agreed to be conveyed ; the owner of the fund or the con- tracting i)arties may make land money or money land."^ A con- version may thus take place where, by a will, a deed, or family settlement, land is actually devised or conveyed, or money or securi- ties are actually assigned to trustees, Avith directions in the one case to sell the land, and pay over the proceeds to the beneficiary, and in the other to invest the fund in the purchase of the land to he then conveyed to him -. or it may in like manner take place where, by marriage articles or other executory agreement, land is ^ Fletelier v. Ashburner, 1 Brown Cli. 407. 1 Load. Cas. Eq., 4tli Am. ed., 1118, 1120, 1 Scott ()0(>, per Sir Tlioinas Sowoll. :\I R. 16? REGAi;US THAT UOXK WHICH Orcil'P TO l',E DONK. § :5Mr covenanted to be conveyed, or money is covenanted to be assigned, iti like manner and for like purposes. The effect of the conversion ' is a direct conseciuence of the principle in c[uestion. Personal estate becomes, to all intents and purposes, in the viev^^ of equity, real, v the parties, had been executed exactly as they ought to have been." See, also post, § 12.37. ' See ante, S 369. § 37(J EQUITY JURISPKUDEXCE. 1<^8 (liiired by the maxim is not present, and the principle itself does not apply as long, at least, as the trust remains alive. § 375. Trusts Arising by Operation of Law. , . . The bene- liciary may not have anything which the law requires as a "title," lie may even be without any written evidence of his right, his pro- prietorship may rest wholly upon acts and words, but still he is the eciuitable owner because eciuity treats that as done which in good conscience ought to be done.^ §376. Mortgage; Equity of Redemption. — There remains but one important equitable estate to be considered, that of the mort- gagor, called his equity of redemption ; and a careful analysis will show that the existence of this as a part of equity jurisprudence can be accounted for upon no principle whatever other than the one under discussion. By a mortgage in fee the legal estate is vested in the mortgagee, and upon the condition being broken, this legal estate becomes absolute. Nevertheless an equity with respect to the land. exists between the two parties, a right in the mortgagor and an obligation upon the mortgagee. "Etiuity of redemption" is only an abbreviation of "right in equity to have a redemption." The mortgagor is clothed with this equitable right to a redemption, or in other words, this right to compel a reconveyance and redeliv- ery of possession at any time upon payment of the debt secured and interest, while the corresponding obligation rests on the mort- gagee to make the conversance and delivery. I'pon the universal principle of treating everything as done which in good conscience ought to be done, equity regards this right of the mortgagor, not as a mere thing in action, but as property, as an estate, as the real, ' See ante, S 369. The opinion of tlie lord cliancellov, Lord St. Leonards, will apply to all such cases. A man had conveyed his land in fee by a deed which was fraudulent as against himself, so that he could have procured the deed to bo set aside in equity; still the legal estate was wholly conveyed to the grantee. -Afterwards the grantor devised the same land, and the question was, What interest did he have in the land, and was it devisable ? See Stump v. CJaby. 2 De Gex, M. & G. 623, 630. Lord St. Leonards said : "What. then, is the interest of a party in an estate which he has conveyed under circumstances which would give a right in this court to have the deed set aside? In the view of this court he remains the owner, and the consequence is, that he may devise the estate, not as a legal estate, but as an equitable estate. The testator therefore had a devisable interest." Now, where, as in this case, the legal title had vested in the grantee, upon what principle was the grantor still regarded as the equi- table owner, with all the incidents of the beneficial ownership? Plainly because from the fraud an equity with respect to the land existed between the grantee and the grantor, and an obligation rested upon the former to reconvey. since the grantee in good conscience ought to reconvey, equity treated the parties as though this had been done, and the grantor as holding the equitable proper- ty. Upon the same principle is based the notion of equitable property in the beneficiary in all constructive and other implied trusts. 169 LOOKS TO INTENT HATH Kit THAN TO FORM. § 3T8 beneficial ownership of the hmd, siil).ie('t. however, to the lien created by the mortgage as a security to the mortgagee for the payment of his demand. The mortgagor's equitable property is, in this respect, exactly analogous to the equitable estate of a vendee sub- ject to a lien in favor of the vendor as security for payment of the purchase price. § 377. Conclusions. — In the foregoing discussion I have shown, in the mo.st conclusive manner, that every species of purely e(iuit- ;^ble property, and of equitable interests analogous to property, except those which are intentionally created by the direct and affirmative ojieration of some instrument similar in its actiou to a conveyance at law.^ is, a certain and necessary result of the prin- ciple, that equity treats that as done which in good conscience ought to be done. It is uo exaggeration, therefore, to say that the principle lies at the very f(Mmdation of the department of equity .iurisprudence Avhich deals with equitable estates, property, and in- terests analogous to property. SECTION II. EQUITY LOOKS TO THE INTENT RATHER THAN TO THE FORM. * ANALYSIS. § 378. Its nieanin!? and effoct. !? 379. Legal requireinents of mere form. f§ 380-384. Is the source of equitable doctrines. S 380. Of equitable property. I 381. Of penalties and forfeitures. § 382. Of jnortn-aoes. S 383. Effect of tbe seal. § 384. Other special instances. § 378. Its Meaning and Effect. — The principle involved in this maxim, which is one of great practical importance, pervades aiul atTects to a greater or less degree the entire system of equity juris- prudence, and is inseparably connected Avith that which forms the subject of the preceding section. In fact, it is only hi/ looh'nr/ at tlio intent ratlipv tJinn at tlir form, that pqnity is ahle to treat that as (tone ii'hich in r/ond ronsripnce ovr/hf to he rfnnc. In explaining the mean- ing and operation of the one maxim, and the effects produced by it. I have necessarily described the sioi'nificance and workings of Ihi^ other. The two principles act together and aid each othei'. and it 'The lien held by the mortcairee. created by the affirmative operation of tlie mortofa^e. and some other equitable liens, are examples of this class. § :3T9 EQUITY JUIUSJPKUDENCE. ITO is by their universality and truth that much of equity jurisprudence which is peculiar and distinctive, in contrast with the law, has been developed. Equity always attempts to get at the substance of things, and to ascertain, uphold, and enforce rights and duties which spring from the real relations of parties. It will never suffer the mere appearance and external form to conceal the true purposes, objects, and consequences of a transaction. This principle of looking after tlie intent and giving it efifect was fully recognized and distinctly formulated at an early day. In one leading case Lord Chancelloi" Macclesfield said: "The true ground of relief against penalties is from the original intent of the case, where the penalty is designed only to secure money, and the court gives the party all that he expects or desired."^ In another case Lord Thurlow said: "The rule is, that where a penalty is inserted merely to secure the en- joyment of a collateral object, the enjoyment of that object is con- sidered as the principal intent of the deed, and the penalty only as occasional."^ It is true that in both of these cases the court was dealing with penalties; but the principle stated in them is of uni- versal application, that equity always seeks for the real intent under the cover of whatever forms and appearances, and will give elfect to such intent unless prevented by some positive and manda- tory rule of the law. § 379. Legal Requirements of Form. — The ancient common law paid great deference to matters of pure forhi, as, for example, in the symbolical process called "livery of seisin," by which alone a freehold estate in land could be transferred. Although such ob- servances have long been abandoned, still the present rules of the law permit property in land or chattels to be created, transferred, or acquired only in certain defined modes, by means of the certain specified acts or events which constitute all the possible legal titles. '^ It was also one characteristic feature of the ancient law that it held contracting parties to a most rigid observance of all the stipu- lations of their valid agreements; performance to the very letter of every covenant or promise was the inflexible rule.* Still another ' Peachy v. Duke of Somerset, 1 Strange, 447, Prec. Ch. 5GS, 2 Eq. Cas. Abr. 227, 228. 'Sloman v. Walter, 1 Brown Ch. 418. And see 2 Lead. Cas. Eq. 4th Am. ed., 2014, 2022, and notes. ' See an enumeration of these modes, ante, § 366. -For example, if A borrowed one hundred pounds to be repaid in six months, and as security gave his creditor a conditional conveyance in fee of an estate worth one hundred thousand pounds, to become void if the money was paid on the specified day, and in default of such payment to be absolute, and for any reason the debtor suffered the pay day to pass without performance, the ancient law would no more relieve the debtor fro/r the onerous provisions of his con- 171 LOOKS TO iXlT.NT IIATIIKU THAN TO FORM. § 3S'' purely formal element of the law consisted in the extreme import- ance which it attached to the seal. The momentous and often most arbitrary results which flowed from the presence or absence of a seal, and its effect upon private riylits of property and of contract, rendered many of the rules of the early law peculiarly rigid and almost barbarous. The ecjuity jurisprudence, in all these respects, differed widely from the common law; from the very beginning it was distinguished by an entire absence of these arbitrary and purely formal incidents. That they have now, in a great degree, disappeared from the law itself, which has in consequence become more enlightened and more just, is wholly due to its gradual adop- tion of equitable principles, to its acceptance of doctrines originat- ing in the court of chancery.^ § 380. Is the Source of Equitable Doctrines— Of Property.— I shall now state, by way of illustration, some of the most important instances in which the principle has been applied, and the settled doctrines of equity jurisprudence which are its immediate results. The first, and by far the most important consequence of the prin- ciple, reaching through a large part of the equity jurisprudence, is fonnd in every species of equitable property, estate, or interest, and of eciuitable lien, so far as these exist by the doctrines of equity, but not by those of the law. While, as is shoAvn in the last section, all these purely equitable property interests and liens arise from the direct operation of the grand principle, equity treats that as done which in good conscience ought to be done, still this maxim could only produce such effects in consequence of the other prin- ciple, that equity looks at the intent rather than at the form.^ In every kind of equitable property, or interest analogous to property, vevance, or modify their rigor, than it would discharge him from his obligation to pay the debt of one hundred pounds: both would be regarded as standing u[>on exactly the same foundation of express contract. "■ Pom. Eq. .Tur. § 70. "In most of the states all distinction between sealed iuid unsealed instruments is abolished, except so far as the statute of lim- ifations operates to bar a right of action; in others, the only effect of the seal upon executory contracts is to raise a prima facie presumption of a considera- tion, while it is still required on a conveyance of land: in a very few, the common-law rule is retained, which makes the seal conclusive evidence of a consideration. By this legislation, all the distinction between the legal and the equitable doctrines concerning contracts and other rights, except those growing out of a conveyance of land, founded upon the presence or absence f)f the seal, has been abrogated. The equitable doctrines, of course, remain, but Oiey have become a part of the law, and no necessity remains of applying to courts of equity for their enforcement. Even the equitable rule permitting a sealed agreement to be modified or replaced by subsquent parol contract is generally adopted by the law courts, except in cases where the statute of fraudi prevents its operation." 'Clarke v. Clarke, 40 S C. 2.'^n, 57 Am. St. Rep. fi75. § 382 EQUITY JUKISPItrDKXCE. 172 the external acts or events pei'eniptoi'ily recinired by the hnv in order to the existence of any property are wholly wanting; so that if the external form of the transaction had been regarded, no pro{)- ert}', nor right resembling property, could possibly exist. It is by disregarding these forms and looking at the real relations involved in the acts of the parties, at the real substance and intent of the transaction, that the court of chancery has built up its magnificent structure of equitable property, estates, and proprietary interests. The same is true of a large part of equitable liens. The external form is either an assignment, which at the law is wholly nugatory, or an executory agreement, which at law only creates a mere per- sonal right of action, — at most a claim for damages; but equity, going below this' mere appearance, and seeing the real intent, gives effect thereto by treating the assignment or agreement as creating a definite lien upon specific lands, or chattels, or securities, or other kind of fund, as the case may be.^ The discussions of the last preceding section fully illustrate and demonstrate the correct- ness of this conclusion. § 381. Penalties and Forfeitures.^ — . . . § 382. Mortg-ages. — Another most remarkable application of the principle, from which arose an entire department of equity juris- prudence, was the equity of redemption, — the equitable right and estate of the mortgagor, after the legal title of the mortgagee had become absolute by a. non-performance of the condition. Look- ing at the real intent of th-^ parties, and considering the debt as the substantial feature, and the conveyance as a security, only, for its payment, the court of chancery declared that a breach of the condition was in the nature of a penalty which ought to be relieved against, and that the mortgagee had an equity to redeem on pay- ment of the debt and inte-rest, notwithstanding the forfeiture at law; and furthermore, that this right of redemption could not be ' Ah instrument purportii'.g to be a mort^ase of law, but imperfectly executed by the omission of the seal, or in some other manner, so as to be defective in form, is wholly nugatory at law as a valid mortgage, or as giving any interesr in or claim upon the parcel of land described. Equity, however, not saying that tiie instrument is a triie legal mortgage, declares that it is an efficient agree- ment to give a mortgage, and, as such, tliat it creates an equitable lien upon the land, valid for all purposes, and as against all parties, except a purchaser of the land for a valuable consideration and without notice: See Love v. Sierra Nevada, etc., Co., 32 Cal. 039, G33, G54, 91 Am. Dec. G02, and cases cited, and post, S 1237. A deed defective in form will generally be treated in equity as a contract to convey, specific performance of which Avill be decreed when that remedy is not inequitable. See Sparks v. Woodstock Iron, etc., Co., 87 Ala. 294, 6 South. 195 (defective attestation). 'See post, §S 433, 450, 456. 173 LOOKS TO IXTKXT R^TIIEIJ TIIAX TO FORM. § 383 tjiven up. -vvjiivt'd. or parted with by any stipulation or covenant in tlie tleeil.' Tiie whole system of equity jurisprudence presents no finer example of the triumph of equitable principles over the arbitrary and unjust doojmas of the common law than this. § 383. Effect of the Seal. — The important part played by the seal in the early common law, and the intensely technical and arbi- trary effects produced by it according to the legal rules, are too well known to require any statement. Equity has applied its prin- ciple of looking at the intent rather than at the form, in some in- stances, by treating the presence of a seal as a matter of no conse- (luence, as producing no effect upon rights and duties of parties; in other instances, by disregarding its absence where such absence would be fatal at the law. .Although the common law, in theory, rcfjuired a valuable consideration in order to render any agreement valid and binding, yet it declared that a seal was conclusive evi- dence of such a consideration, and under no circumstances would it permit this arbitrary eft'ect to be removed by evidence showing, no matter how clearly, the absence of any consideration. Equity, (^.isregarding such form and looking at the reality, always requires an actual consideration, and permits the want of it to be shown, notwithstanding the seal, and applies this doctrine to covenants, settlements, and executory agreements of every description.^ An- other application of the principle is still more striking and just. The early common law attributed such an efficacy to the seal that a written obligation under seal could only be discharged by an instru- ment of the same high character, — that is, by a writing under seal. A subsequent written but not sealed agreement, revoking or modi- lying the term.i of the prior specialty, or a parol accord, or even paj-ment in full unaccompanied ])y technical release, or any other matter in pais could not alter the rights and liabilities arising from the sealed instrument; it could still be enforced against the obligor hi' an action at law, and such acts furnished him no legal defense whatever. Such a doctrine was abhorrent to the spirit of equity. I'aying no attention to the form of the transaction, if the act done was, in substance, ?. discharge, the court of equity treated it as etpiivalent in its effects to a technical release, and would relieve the obligor in any manner required hy the circumstances of the case, even by a decree for r delivery up or cancellation of the sealed 'Howard v. Harris. 1 Vcrii. 190, 2 Lead. Cas. Eq., 4th Am. ed., 1945, 1949, 19S3, Sh. 57; Casbornc^ v. Scarfc, I Atk. 003, Sh. 213, 1 IScott 33. '.lefferys v. Jefferys, Craio- & P. 138, 141. 1 Ames Eq. Jur. 261, 2 Keener 760, 1 Scott, 303, 2 Scott 1.54: .Miiiturn v. Seymour, 4 Johns. Ch. 497, 1 Scott 302 j .-■elby V. Case, S7 JMd. 459, 39 Atl. 1041, § 384 EQUITY JUKISPKUDEXCE. 174 undertaking-.- One most important consequence of this principle is seen in the legal and equitable liabilities of sureties. Where the surety's contract is under seal, he is not, by the strict common-law rules, discharged by any conduct of the creditor towards the prin- cipal debtor, by an alteration of the principal debtor's undertaking, or by an agreement with the principal debtor extending his time of payment, since the surety's liability could only be discharged by an instrument under seal.-* Equity was therefore compelled to in- terfere under these circumstances, and relieve the surety by re- straining the creditor from suing at law, and compelling him to surrender and cancel the guaranty.* There are other instances of the disregard sho^vn by ecfuity to the presence or absence of a seal in tletermining the rights of parties. If, for an example, an instru- ment, from its imperfect execution in wanting a seal, is inoperative at law as a conveyance or as a mortgage of land, equity may treat it as an agreement to convey or to give a mortgage, and as there- fore creating an ecpiitable interest in or lien upon the land.^ § 384. Other Special Instances.^ — . . . - Ot course the discharge must be upou a valuable consideration in order that equity might enforce it: JNJcCveey v. Day, 119 N. Y. 1, 23 N. E. 198, 16 Am. St. Kep. 793, 6. L. R. A. .50(1 The earh' common law was so monstrous in its ad- herence to this rule, that if the debtor on a bond or other specialty had paid the demand in full, and had even taken a written receipt therefor, but had failed to procure a surrender up of the instrument or a release of his liability, the creditor might still sue at law and recover the full amount again, and the law gave no redress or defense. One of tlie first steps by which equity broke in upon tiie rigor of the law was the remedy which it gave to the obligor under these circumstances, as stated in the text. It is a fact that the common-law lawyers vehemently inveighed against the court of chancery for this alleged invasion of legal rules. The equitable doctrine long ago became a part of the law, but it should not be forgotten that it originated in the court of chancery. ■■ In most of our states, if not indeed in all, this particular rule of the com- mon law does not prevail. *Rees V. Berrington, 2 Ves. 540. 2 Lead. Cas. Eq., 4th Am. ed., 1867, 1870, 1896. * Frost V. Wolf, 77 Tex. 455, 19 Am. St. Rep. 761, 14 S. W. 440; Allis v» Jones, 45 P"ed. 148. ^One of the most striking applications of this maxim is the doctrine re- lafing to Merger; see post, § 786. 175 HE WHO SEEKS EQUITY MUST DO EQUITY. § oS'i SECTION III. HE WHO SEEKS EQllJ V MUST DO EQUITY. § 385. Goneriil meaning of the principle. |§ 386.387. In what cases applicable. § 388. Is a general rule regulating the administration of reliefs. §§ 389-393. Illustrations of the principle. § 389. The wife's equity. § 390. Equitable estoppel. § 391. Relief against usury. §§ 392,393. Other special instances. §§ 394-390. Is also the source of certain equitable doctrines. § 395. Of election. § 390. Of marshaling securities. §385. Its Meaning. — This maxim expresses the o-overning prin- ciple that every action of a court of equity, in determininji' rights and awarding remedies, must be in accordance with conscience and good faith. In its broadest sense it ma^^ be regarded as the founda- tion of all equity, as the source of every doctrine and rule of equity jurisprudence; since it is undeniable that courts of equity do not recognize and protect the eqtiitable rights of litigant parties, unless such rights are, in pursuance of the settled juridical notions of morality, based upon conscience and good faith. Bitt as a practical principle, guiding the equity courts in their administration of jus- tice, the maxim is only used in a much narrower and more special meaning. Even in this narrow signification it is a principle of most extensive application; it may be applied, in fact, in ever^^ kind of litigation and to every species of remedy. The meaning is, that whatever be the nature of the controversy between two definite parties, and whatever be the nature of the remedy demanded, the court will not confer its equitable relief upon the party seeking its interposition and aid, unless he has acknowledged and conceded, or will admit and provide for, all the equitable rights, claims, and demands justly belonging to the adversary party, and growing out of or necessarily involved in the subject-matter of the controversy.' It says, in effect, that the court will give the plaintifip the relief to which he is entitled, only u{)on condition that he has given, or con.sents to give, the defendant such corresponding rights as he 'Charleston & W. V. Ry Co. v. Hughes. 105 Ca. 1. 70 Am. St. Rep. 17. .30 S. E. 972; Hooper v. Central Trust Co., 81 Md. 559, 32 Ail. 505, 29 L. R. A. 262. § 3SG EQUITY JURISI'KUDKNCE. 17'6 also may be entitled to in respect of the subject-matter of the suit.- This meaning- of tlie principle was more definitely expressed by an eminent judge in the following terms: "The court of equity refuses its aid to give to the plaintiff what the law would give him if the courts of common law had jurisdiction to enforce it, without im- jxising upon him conditions which the court considers he ought to comply with, although the subject of the condition should be one which the court would not otherwise enforce." In this nar- row and particular sense the principle becomes a universal rule governing the courts of ecpiity in administering all kinds of equit- able relief, in any controversy where its application may be neces- sary to work out complete justice.^ § 386, When Applicable. — If we analyze this general formula, we shall obtain a more accurate notion of the real scope and effect of the principle. In the first place, the rule only applies where a party is appealing as actor to a court of eijuity in order to obtain some equitable relief; that is, either some relief equitable in its essential nature, as an injunction or a cancellation, or equitable because it ma^^ come Avithin the power of the court to administer by virtue of its concurrent jurisdiction, as an accounting, or a pecuniary recovery; and it is necessarih' assumed that the party would, but for the operation of the rule, be entitled to all the relief which he demands.^ Unless the party were otherwise so en- titled, there would plainly be no occasion for invoking the rule. With respect to the terms vrhich may be imposed upon the party as a condition to his obtaining the relief in accordance with the rule, — that is, the "equity" which he must do, — it is undoubtedly true, as said by Vice-Chancellor Wigram, that the court obtains no authority from this principle to impose any arbitrary conditions not warranted by the settled doctrines of equity jurisprudence ; the court cannot deprive a plaintiff' of his full equitable rights, under the preten.se of awarding to the defendant something to which he has no equitable right, something which equity juris- prudence does not recognize. The principle only requires the plaintiff to do "ec|uity." According to its true meaning, therefore, the terms imposed upon the plaintiff", as the condition of his ob- taining the relief, must consist of the awarding or securing to the defendant something to which he is justly entitled by the principles 'Charleston & W. C. R'y Co. v. Hughes. 105 Gn. 1. 70 Am. St. Rep. 17, 30 «. K. 972; .Mack v. Hill. 2S Mont. HO. 72 Pac. 307. ^Hanson v. Keating-. 4 Hare. 1. 4. 1 Seott. 274. per Wigram. V. C. : Stargis V. Champnevs. 5 Mylne &- C. 97, 101, per Lord Cottenham ; Otis v. Cregory, 111 Ind. 504, 13 N. E. 39. 'Otis V. Gregory, IIT Tnd. 504, 13 X. E. 39. ITT IIE ^V1I0 .SKKKS EQUITY MUST DO EQUITY. § 3S7 and doctrines of equity, although not perhaps by those of the common law, — something over which he has a distinctively equit- able right. In many eases, this right or relict* thus secured to or obtained by the defendant, under the operation of the rule, might be recovered by him, if he as plaintitif, the parties being reversed, had instituted a suit in equity for that purpose. But this is not indispensable, nor is it even always possible. The rule may apply, and under its operation an ecpiitable right ma^' be secured or an equitable relief awarded to the defendant which could not be obtained by him in any other manner, — that is, which a court of equity, in conformity with its settled methods, either would not, or even cuiild not, have secured or conferred or awarded by its decree in a suit brought for that purpose by him as the plaintitf.- § 387. Finally, the principle will not applj' so as to compel the plaintiff to do equit3% where the relief sought by the plaintiff, and the equitable riglit or relief secured or awarded to the defendant, belong to or grow out of two entirely separate and distinct mat- ters. The true meaning of the rule in this respect is, that the = De Walsh v. Braman, IfiO 111. 415, 43 N. E. 597; Farmers' Loan & T. Co. V. Denver, L. & G. R. Co., 120 Fed. 4(1, 51. One or two simple examples Avill illustrate. One of the most familiar applications of the rule is the '"wife's equity," so called, the securing to her a portion of her own property, to which her husband becomes legally entitled by the marriage ; whenever her husband or his assignee comes into a court of equity and seeks its aid to reach her property, the court may, luider certain circumstances, compel the plaintiff, as a condition of his obtaining relief, to secure a portion of the property to tlie separate use of the wife by a settlement, although at law she has no right over it. This is sometimes done in a case where the wife herself could, by means of her own suit, have obtained the same relief; but it may also be done where, under the settled doctrines of equity, no such suit could be maintained by the wife. Under statutes against usury, which make void all usurious debts and Obligations, the debtor may maintain a suit in equity for the pur- pose of procuring the usurious bond or other security to be surrendered up and canceled ; but this relief will only be granted upon the condition that the plaintiff does equity by repaying to his creditor the amount which was actually loiined upon tbe security. In this instance, by the operation of the principle, the defendant ol)tains a relief Avhich he could not possibly have obtained in any other manner: for if he had sued the debtor either at law or in equity to en- force the security and recover the debt, the defense of usury would be a com- plete bar. Again, in many of the states a tax-payer may maintain a suit in equity and restrain the collecting officer from enforcing payment of illegal taxes; but the relief of injuction will not be granted unless the plaintiff pays in full all that part of the tax assessed against him which is legal. Here also the defendant obtains a relief, under Ihe operation of the principle, which he could obtain from the court of equity in no other manner; for the coun would not sustain a suit in equity bronglil by llie collecting officer to enforce payment of the tax: his only affirmative remedy would be either at law oi by special statutory proceedings. 12 §391 EQUITY JL i;isi'i;ldi:-\c'K. 178 tHjuitable right or relief secured to or conferred upon the defend- ant must be something connected with the subject-matter of the very suit or controversy for the proper decision of which the prin- ciple is invoked. Or, to slate the same doctrine in more detaiknl and particular terms, "the rule is applied where the adverse ■equity to be secured or awarded to the defendant grows out of the very controversy before the court, or out of such transactions as the record show^s to be a part of its history, or where it is so connected with the cause in litigation as to be presented in the pleadings and proofs, with full opportunity afforded to the party thus recriminated to explain or refute the charges."^ If the con- duet of the plaintiff, growing out of matters entirely distinct and unconnected with those embraced within the suit, can affect his I'ight to obtain relief which would be otherwise proper, it must be by virtue of another equitable maxim. He who comes into a court of equity must come with clean hands'. § 388. Is a General Rule Regulating Equitable Reliefs.— With this explanation of its scope and meaning, it may be regarded, as a universal rule governing the court of equity in the administra- tion of its remedies, that whatever may be the nature of the relief sought by the plaintiff, the equitable rights of the defendant, growing out of or intimately connected with the subject of the controversy in question, will be protected; and for this purpose the plaintiff will be required, as a condition tc his obtaining the relief which he asks, to acknowledge, admit, provide for, secure, or allow whatever equitable rights (if any) the defendant may have, and to that end the court will, by its affirmative decree, aAvard to the defendant whatever reliefs may be necessary in order to protect and enforce those rights. This principle is not confined to any particular kind of equitable rights and remedies, but pervades the entire equity jurisprudence, so far as it is concerned Avith the administration of equitable remedies.^ §389. Illustrations: The Wife's Equity.^— , . . § 390. Equitable Estoppel.^— § 391. Usury. — Another remarkable application of the principle is seen in the action of the courts towards parties seeking its aid imder the statutes against usury. Wherever the statutes have made 'Comstock V. Johnson, 40 X. Y. 615, H. & B. 26, Rh. 108: City of Chicago v. Union Stpek Yards & Transit Co.. 164 111. 224. 4.5 N. E. 430, 35 L. R. A. 281; Bethea v. Bethea, 116 Ala. 265, 22 South. 561. * Shuttleworth v. Laycoek. T ^'em. 244. 1 Scolt, 264; Peacock v. Evans. HI Ves. 512; Fanning v. Dunham, 5 -Johns, Ch. 122, 9 Am. Dec. 283, 1 Scott, 271; Price V. Stratton (Fla.) 33 South. 044. ^See post. § 1114. SSee post, §§ 818, 1241. 179 HE WIJO SKJiK.s j:(^L ITY .MUST DO EtiUlTY. § •i9--3 usurious loans and obligations absolutely void, if a borrower brings a suit in equity for tiie purpose of having a usurious bond or other security surrendered up and canceled, the relief will be granted only upon condition that the plaintitf himself does equity by repay- ing to his creditor what is justly and in good faith due, that is, the amount actually advanced, with lawful interest; unless, indeed, the statute has gone so far as to expressly prohibit the court from imposing such terms as the price of its relief.^ The same principle lias been applied to a lender seeking the aid of the court to reform a security tainted with usury.- The case is entirely different, and another maxim governs its decision, when the lender sues in a court of equity to enforce a usurious obligation. The borrower may set up the defense and defeat the suit without repaying any amount. •' The rule extends to all cases where a party seeks to have a con- tract set aside and canceled on the ground of its illegality in vio- lating the provisions of some statute; the court will require him, as a condition to its granting the relief, to pay what is really due on the agreement, unless the illegality is a malum in se, or the stat- ute itself prevents the imposition of such terms.* § 392. Other Special Instances. — It is also an application of the [)rinciple, that where there has been some misdescription of the property on the part of the vendor, a court of equity will not decree a specific performance of the contract at his suit, except upon the terms that he makes proper compensation for the injury which the defendant has sustained from the misdescription. Indeed, it is also by virtue of the rule, that the decree is made in all suits for specific performance of contracts, the plaintiff", whether pur- chaser or vendor, being compelled to perform his part of the agree- ment as a condition to his obtaining relief against the defendant.' The same is true with respect to the relief granted in suits for redemption brought either b}' a mortgagor or by a subsequent en- cumbrancer.- ... U-'aniiing v. Dunham, 5 Johns. Ch. 122, 142, 143, 144, 9 Am. Dec. 283, 1 .Scott G48; American Freehold L. & M. Co. v. «ewell, !)2 Ala. 1G3, 9 South. 143, 13 L. R. A. 299. See Missouri K. & T. Co. v. Krumseig 172 U. S. 359, 19 Sup. Ct. 182; S. C. 77 Fed. 32, 23 C. C. A. 1. -Corby v. Bean, 44 Mo. 379. 'The niaxinij He who conies into a court of equity must come with clean hands, applies to the plaintiff in this case: Union Bank v. Bell, 14 Ohio St. 200. 'Dean v. Robertson, 64 Miss. 195, 1 Soutli. 159; New England M. S. Co. v. I^owell. 97 Ala. 483. 12 'South. 5.5. See, also, post, §937. Mlanson v. Keating. 4 Hare, 1, 4, 5, 1 Scott 274, per VVigram, V. C. -Levi V. Bhxekwell, 35 S. C. 511, 15 S. E. 243; Mack v. Hill, 28 Mont. 99, 72 Pac. 307. § 395 EQUITY (JTKISl'RUDEXCE. " 180 § 393. ... In states Avhere a court of equity exercises a jurisdiction to set aside or to restrain the collection of illegal assessments or taxes, the relief will not be granted unless the plaintitf pays such portion of the tax or assessment as is lawful and justly due.^ . . . Some further illustrations may be found in the footnote. - § 394. Is the Source of Certain Equitable Doctrines. — Thus far I have discussed the principle in the view taken of it by the great majority of judicial opinions, namely, as a universal rule guiding the court of equity in its administration of every kind of relief, and to be applied in practice according to the circumstances of the j)articular case before the court for decision. In this aspect of the principle it is not regarded as the source of any special doc+rine of the equity jurisprudence, nor as the foundation of an.v special e([uitable interest or primary right. There is, however, an- other phase of the principle ; it may be looked upon in another light. It is not wholly a rule for the guidance of the equity judge in measuring out and apportioning reliefs among litigants. It has exercised a molding influence in the development of important liianches of the equit}^ jurisprudence; certain doctrines are plainly derived from it as their chief, though not perhaps their onl_y, source. The full scope and effect of such doctrines can onl}^ be understood by a clear perception of the relations which connect them with this their common origin. I shall therefore conclude the diseus.sion of the present section by a brief mention of the doc- trines which are thus, as it seems to me, directly referable to the principle that he who seeks equity must do ecpity. § 395. Of Election.'— . . . 'See Peoples' Xat. Bank v. :Mavyp. 101 U. S. 272, 24 Sup. Ct. 68; but see Boals V. Baehnian, 201 111. 340, 66 N. E. 336. - Setting aside invalid tax deed of plaintiff's land, only on condition that he refund all the taxes which had been advanced or paid by the party to whom the deed was given; Alexander v. ?ileriick. 121 111. GOO, 13 X. E. 190. A mortgagor wlio seeks to cancel a mortgage on his homestead as a cloud on his 1 itle, on the general ground of defects in its execution and acknowledgment, must offer to do equity by refunding the mortgage money with lawful interest; (Jrider v. American F. E. & :\r. Co., 99 Ala. 281, 12 South. 775, 42 Am. St. Rep. .is. A widow suing for dower must account for the use, rent and profits of the land which she has occupied in excess of her third: McLaughlin v. McLaughlin, 20 N. J. Eq. 190. That the maxim applies to an intervener in the suit, see Charleston & >A\ C. R. Co. v. Hughes, 10.5 (;;a. 1. 70 Am. St. Rep. 12. 30 S. E. 972. For the important application of 1lie maxim to parties seeking rescission or cancellation of transactions on the ground of fraud, mistake, etc., and the 0(pii(able theory of restoring all the jiarties to their original position, see § :'10. For its application to the cancellalion of deeds, etc.. of in.sane persons, see § 940. For its ap])lication in behalf of persons holding under defective title who in good faith have made improvements, see § 1241, note. 181 MUST COME INTO KC^'ITY WJTli CLKAN IIAXDti. § 307 § 396. Of Marshaling. — The second duclrine whieli 1 shall notice is that known as tlie UKU-shitHiig uf (>('( urities. — "If a person who has two real estates mortgages both to one person, and afterwards only one estate to a second mortgagee, the court, in oi-der to relieve tlie second mortgagee, has directed the first to take his satisfaction ont of that estate only which is not in mortgage of the .second mort- gagee, if that is sufficient to satisfy the first mortgage, in order to liiake room for the second mortgage."^ The same rule applies wherever one has any lien or security on two funds, and another has a subsequent lien on only one of them.- This doctrine is ■ Wainly referable to the principle. The holder of the security on two funds is compelled to shape his own remedy, so as to preserve, if possible, the equity of the one whose lien extends to but one fund."' In fact, the whole theory with respect to the marshaling of assets seems to be derived, in part at least, from the same source. A few other doctrines miu'ht. I think, be specified as thus related l)y a common descent : but enough has already been said to show the great importance of the principle. He who seeks e(iuity must do equity, both as a practical rule governing the administration of remedies, and as the germ of equitable doctrines. SECTION IV. HE WHO COMES INTO EQUITY INIUST COME WITH CLEAN HANDS. AXALYSI,S. § 307. General meaning of this principle. § 398. Is based upon conscience and good faith. S 399. Limitations upon it. §§ 400-403. Illustrations of its application. § 400. In specific performance. § 401. In eases of fraud. § 402. In eases of illegality. § 403. Limitations in cases of fraud and illegality; parties not in pari delicto. § 404. Conclusion. § 397. Its General Meaning". — This maxim is sometimes expressed ^ See post, § 46.5. 'Lanoy v. Duke of Athol. 2 Atk. 44fi. 1 Scott. 374. per Lord Hardwicke; Dorr V. Shaw, 4 Johns. Ch. 17; Kendall v. New England Co., 13 Conn. 384. = Wyman v. Ft. Dearborn Nat. Bank, 54 N. E. 040. ISl 111. 279. H. & B. ^ Boone v. Clarke. 129 111. 466. 21 N. E. S.^0. r, L. B. A. 276: Breed v. National Bank of Auburn. 68 N. Y. Suppl. 68, 57 App. Div. 4G8, afTirmed, 171 N. Y. 648, 63 N. E. II 15. ^ oVS Ec^uiTY ji KisrurDHxci:. 183 in the form, He that hath coniniitted iniquity shall not have equity. Like the one described in the preceding section, it is not, in its ordinar}^ operation and effect, the foundation and source of any equitable estate or interest, nor of any distinctive' doctrine of the e((uity jurisprudence; it is rather a universal rule guiding and regulating the action of equity courts in their interposition on be- lialf of suitors for any and every purpose, and in their administra- tion of any and every species of relief. Kesend)ling the former maxim in this respect, it differs from that principle in some most important and essential features. In applying the maxim. He who seeks equity must do eciuity, as a general rule regulating the action of courts, it is" necessarily assumed that different equitable rights have arisen from the same subject-matter or transaction, some in favor of the plaintiff and some of the defendant; and the maxim requires that the court should, as the price or condition of its enforcing the plaintiff''s equity and conferring a remedy upon him, compel him to recognize, admit, and provide for the coi-res- ponding equity of the defendant, and award to him also the proper i'elief. The maxim does not assume that the plaintiff' has iJone any- tiiing unconscientious or inequitable; much less does it refirressive ui)on the defendant, or would prevent the enjoyment of his own rights, or would in any other manner work injustice.^ This application 'Lewis's Appeal, 67 Pa. St. IGG: City of Cliicago v. Union Stock Yards & Transit Co., 164 111. 224, 45 N. E. 43, .So L. R. A. 281 ; Brown v. .Jacobs Pharmacy Co., 115 Ga. 429, 41 S. E. 553, 00 Am. 8t. Rep. 126, 57 L. R. A. 547. MVniard v. Tayloe. 8 Wall. 557. 565. 1 Ames Eq. .Tur. 404. 2 Keener. 1020, Sh. 112, 2 Scott 33. per Field. J.; IVlarWe Co. v. Ripley. 10 Wall. 330. 356. 357, Sh. 251; ]\Iicliii[ran Pipe Co. v. Fremont Ditch, etc.. Co., Ill Fed. 2S4, 40 C. C. A. 324: Fish v. Leser, 60 111. 394, H. & B. 650; Stone v. Pratt, 25 111. 25, H. & B. 652. 2 Scott 203. See post, § 1405, notes. 185 MUST CO.ME ]XTO IXiUITY WITH CLEAN HANDS. § 401 of the principle, better perhaps than any other, illustrates its full meaning and effect; for it is assumed that the contract is not illegal; that no defense could be set up against it at law; and even that it possesses no features or incidents which could authorize a court of equity to set it aside and cancel it. Specific perform- ance is refused simply because the plaintiff does not come into court with clean hands. 5j 401. Fraud. — Another familiar illustration of the principle may be found in all cases where the plaintiff's claim is affected by his own fraud. Whatever be the nature of the plaintiff's claim and of the relief which he seeks, if his claim grows out of or depends upon, or is inseparably connected with, his own prior fraud, a court of equity Avill, in general, deny him any relief, and will leave him to whatever remedies and defenses at law he may have.^ The maxim is more frequently invoked in cases upon fraud- ulent contracts. If a contract has been entered into through fraud, or to accomplish anj^ fraudulent purpose, a court of equity will not, at the suit of one of the fraudulent parties, — a particeps doli, — while the agreement is still executory, either compel its execu- tion or decree its cancellation, nor after it has been executed, set it aside, and thus restore the plaintiff* to the property or other inter- ests which he had fraudulently transferred.- Equity will leave such parties in exactly the position in which they have placed themselves, refusing all afjirniatire aid to either of the fraudulent l)articipants. The only equitable remedies which they can obtain are purely defensive. Upon the same principle, wherever one party, in pursuance of a prior arrangement, has fraudulently ob- tained property for the benefit of another, equity will not aid the fraudulent beneficiary by compelling a conveyance or transfer thereof to him; and generally, where two or more have entered into a fraudulent scheme for the purpose of obtaining property in which all are to share, and the scheme has been carried out so that all the results of the fraud are in the hands of one of the parties, a 'Overton v. Banister, 3 Hare. 50.3, 50G; Trice v. Conistoek, 115 Fed. 7t).5; Jileakley's Appeal, 66 Pa. St. 187. H. & B. .31, Sli. 111. -Reynell v. Sprye, 1 De (Jex, M. & (J. 660, 668, 669; Bartle v. Xntt, 4 Pet. 184, Sh. 109; Kirkpatrick v. Clarke, 132 111. 342, 22 Ain. St. Hei). .j.31, 24 X. E. 71, 8 L. R. A. 511. One of the most common occasions for the enforcement of this rule arises in cases where a debtor has conveyed or assigned or in any manner transferred his property for the purpose of defrandinsr his creditors, and afterwards seeks to set aside the transfer as against the grantee or assignee and recover back the ))roperty. Tlie door of a court of equity is always shut against such a claimant. Pride v. Andrews, 51 Ohio St. 405, 38 N. E. 84; Massi v. Lavine, (.Mich.) 102 X. W. 665, 1 Scott 286. § 405 EQLITY JUniSI'iaDKXCE. 18G court of equity will nut interfere on behalf of the others to aid tlieni in obtaining their shares, but will leave the parties in the [losition where they have placed themselves.'' < 402. Illegality.!— . . . § 404. Conclusion. — The special rule.s contained in the foregoing paragraphs will serve to illustrate the meaning and operation of the principle, lie who comes into a court of equity must come with clean hands; but they by no means exhaust its scope and effeet. It i.s not alone fraud or illegality which will prevent a suitor from entering a court of equity; any really unconscientious conduct, con- nected with the controversy to which he is a party, will repel him from the forum wdiose verv foundation is good conscience.^ SECTION V. EQUALITY IS EQUITY. AXALYSI.S. § 40.5. Its ffeneral iiieaning. §S 406-411. Its pfl'ects upon certain equitable doctrines. §S 40(1,407. Of pro rata distribution an«l contribution. S 408. Ownershij) in conuiion. § 409. Joint indebtedness: liability of estate of deceased joint debtor. § 410. [Settlement of insolvent estates: niarshalinj,'- of assets. § 411. Abatement of legacies: apportionment of liens: appointment un- der trust ])o\\crs: contribution anionji co-sureties and co-eon- Iractnrs. § 412. Conclusion. § 405. Its General Meaning-. — We have seen in the opening paragraphs of the introductory chapter that the notion of eqtiality or impartiality — aequum — lay at the very fotindation of the aequitas as conceived of by the Roman jurists; the same idea was, from the outset, incorporated into the equity .iurisprudence created by the Engli.sh court of chancery, and has been perpetuated in all of its doctrines into which the notion could possibly enter, until the ]«resent day. While the common law looked at and protected the I'ights of a person as a separate and distinct individual, equity rather regards aiul maintains, as far as possible, the riahts of all who are connected by an// common bond of interest or of obligation. =* Bleakley's Appeal. 66 Pa. St. 187, H. & P.. 31. Sh. Ill: Milliaus v. Sally, 43 S. C. 318, 21 S. E. 268. 88.5. 49 Am. St. Pep. 834; LaA^-ton v. Este.s, 167 Mass. 181, 45 X. E. 90. 57 Am. St. Pvcp. 4.50. ^See post. §§ 940-942. iProtzman's Api)ea1. 119 Pa. St. 645, 13 Atl. 483. 187 EQL ALITV IS IIC^IITY. § 406 The priiit'ii)le, EqualiU' is equity, or Equity delighteth in e(iuality, is of very wide and general application. It is the immediate and conceded source of several important and distinctive doctrines of the equity jurisprudence. But this is not all. It furnishes a prac- tical rule for the guidance of equity courts in their administration of reliefs, whenever they obtain jurisdiction over a great variety of cases, unless some compulsory dogma of the law stands in the v.'ay. I shall briefly mention the important equitable doctrines which are derived h-om this principle, and indicate a few of the cases in which it operates as a rule controlling the administration of reliefs. § 406. Is the Source of Certain Equitable Doctrines — Pro Rata Distribution and Contribution. — Wlierever a number of persons had sei)arate claims against the same individual or the same fund, llie law generally gave certain classes of such claimants a com- plete precedence, even to the exhaustion of the fund if necessary, over the others, ai-ising solely from the form of their security; as, for example, bond and other specialty creditors over simple con- tract creilitors. Also, among several persons having claims of the .same grade against a single individual or fund, the one who by his superior activity, either by means of action and judgment or not, obtains payment of his demand the first in order of time, is entitled at law to the precedence thus acquired over the others, even though the}^ should thereby be prevented, in whole or in part, from procuring satisfaction. Conversely, it is a familiar doctrine of the laAV, that when a creditor has a single claim against several persons, each of such debtors is regarded as so completely and individually liable that the creditor may enforce payment of the entire demand from any one of the number. The law will not interfere with the action of the creditor; it will not compel him in any manner to obtain satisfaction from all of the debtors, pari passu : and after one of the number had thus been obliged to pay the A\'hole amount, the ancient common law, prior to its adoption of doctrines borrowed from equity, failed to give him any right of j'ecourse upon his co-debtors by means of which the burden might finally be distributed among them all in just proportions. The rules of the modern law giving such right of reimbursement ai'e a direct importation from the e<|uity jurisprudence. Finally, the common law, prior to statutory changes, exhibited a decided pref- <-rence, in fact leaned very strongly, in favor of joint ownership over ownership in common, and in favor of a joint right among creditors over a several right, and a joint lial)ility among debtors over a several or joint and several liability, with all the legal con- .^equences of "survivorship," and of an extinction of the right or § 408 EQUITY JUKISriJUDKNCE. 188 liability on the part of ain" one of the creditors' or debtors who dies. Under all these conditions of fact, equity proceeded upon a xevy ditit'erent principle, upon the principle that equality is equity, that the right or burden should be equalized among all the persons entitled to participate. It must not be understood, however, that a court of equity would always directly interfere with parties under the circumstances above mentioned, for the purpose of carry- ing out the principle of equality; it could not, for example, restrain a creditor from prosecuting his legal demand by legal means, ruerchj on the ground that the result Avould give him a precedence over others; in other words, the principle of equality is equity was not or itself the source of an ecpiitable jurisdiction which would not ocherwise have existed. The true doctrine is, that wherever a court of equity, upon any ground of equitable cognizance, acquires jurisdiction over a case falling under the general condition of fact mentioned above, it will apply the principle of eciuality in deter- mining the collective rights and liabilities of all the parties. !^ 407. Under the limitation last stated, that the subject-matter properly belongs to the equitable jurisdiction, the following gen- end principle may be regarded as firmly established and of wide application: Whenever several persons are all entitled to partici- pate in a common fund, or are all creditors of a common debtor, equity will award a distribution of the fund, or a satisfaction of the claims, in accordance with the maxim, Equality is equity; in other words, if the fund is not sutYicient to discharge all claims upon it in full, or if the debtor is insolvent, equity will incline to regard all the demands as standing upon an equal footing, and will decree a pro rata distribution or payment. On the other hand, whenever a common liability rests upon several persons in favor of a single claimant, equity will enforce such liability upon all the class in accoi-dance with the same maxim. Equality is equity. It will apply the maxim either directly, by apportioning the burden ratably among all the individuals upon whom the common liability rests, or indirectly, by giving a right of contrihution to the member of the class from whom a payment of the whole demand has been obtained, and enabling him to recover contributory shares of the amount from the other members of the class, by which means the entire burden is finally adjusted upon and among them all. It will be easily seen upon examination that this comprehensive prin- ciple of equity lies at the foundation of several well-settled doc- tiines of the jurisprudence, and that it furnishes the rule upon wl^ich a court of equity proceeds to aw^ard its relief in numerous cases wdiich do not fall within either of these special doctrines. ^ 408, Ownership in Common. — One of the most remarkable 189 EQUALITY IS EQUITY, § 408 illustrations of the principle, hcinu' in diriH-t antai^'onism with a specially favorite dogma of the old eoninion law. is seen in the preference which equity gives to ownership in eomnion over joint ownership of lands. It may be stated as a general proposition that equity always leans in favor of ownership in common, and wherever it is possible to do so, will hold an ownership to be in common, and thereby disregard the legal right of survivorship, although at law the ownership would be strictly joint. It was an invariable rule of the common law that when purchasers take a conveyance to themselves and their heirs, they will be joint tenants, and upon the death of one of them the estate will go to the survivor. The same rule prevails in equity, unless circumstances exist fr^m which a contrary intention of the parties' may be presumed, en- abling a court of equity to disregard the legal rule.^ The same is true of a joint contract to purchase land, made by two or more vendees, where they have paid or agreed to pay the purchase price in equal proportions. Equity would regard their right as a joint one, and upon the death of one vendee would not decree a convey- ance to the survivor and the heirs of the deceased vendee as own- ers in common.' Although the legal rule Avas allowed to operate under these special circumstances, still, equity leans very strongly against joint ownership. Whenever circumstances occur from Avhieh it can reasonably be implied that a tenancy in common was intended, a court of equity will hold the ownership, to be in com- mon, and will disregard the legal right of survivorship by declar- ing the survivors to be trustees of the legal estate for the represent- atives of the deceased ])urchaser or owner. In pursuance of this view, the doctrine was well settled, long previous to all legislation on the subject, that where two or more purchase lands and advance or agree to pay the purchase-money in unequal proportions, this makes them in the nature of partners, and hoAvever the legal Estate may survive on the death of one of them, the survivor will be considered in equity as only a trustee for the representatives of the other, in proportion to the sums advanced by each of them." This equitable doctrine is always applied to mortgagees. Where money is advanced by two or more persons, no matter whether in equal or unequal proportions, and they take a mortgage to them- selves jointly, in law their estate is joint, and on the death of one the debt and the security would belong wholly to the survivor. 'Lake v. Gibson, 1 Eq. Cas. Abr. 200, pi. 3, 1 Scott 367: Rigden v. Vallicr, 3 Atk. 735, 2. Ves. Sr. 258; Harris v. Ferguson, 10 8ini. 308. = Lake v. Gibson, 1 Eq. Cas. Abr. 294, p. 3, 1 Lead. Cas. Eq., 4tli Am. ed., 2fJ4, 2()8, 1 Sentt 307; Aveling v. Knipo, 10 Ves. 441, per 8ir William Grant, M. II. ^Eigden v. Vallier, 3 Atk. 735, 2 Ves. Sr. 258. § 409 EQUITY JURISPRUDENCE. 190 In equity, however, the interest of the niortgao'ees is iu common, and on the death of one the survivor is held a trustee for the per- sonal representatives of the deceased mortg-agee.* These equitable doctrines, drawing such a distinction between conveyances, con- tracts for purchase, and mortgages at law and in equity, were established before any statutes had changed the legal view, but they have become unnecessary and obsolete iu the United States, in consequence of modern legislation. This legislation throughout all the states has declared that a conveyance of land to two or more grantees shall, unless a contrary intention is clearly expressed, create an ownership in common, and not a joint ownership. As the original doctrine of equity is thus incorporated into the law by statute, there is no longer any need of the equitable rule as above described. Furthermore, either as an inference from the statutes, or from the gradual adoption of equitable principles, the right and interest of two or more vendees in a contract for the purchase of land is no longer strictly joint, even at law, in a great majority of the states; that is, the right and interest of the heirs and rep- r'esentatives of a deceased vendee are fully recognized and pro- tected. Finally, by the ecjuitable theory of the mortgage, which, as has been shown, prevails in nearly all the states, the interest of the mortgagee being regarded as personal property, and not as- an estate in the land, the right of two or more mortgagees is not strictly joint, _ when considered with reference to third persons, or even to the mortgagor himself. § 409. Joint Liability — Death of a Joint Debtor. — Another ad- mirable illustration of the principle that equality is equity is shown in the case, analogous to the one last described, of the mode in which equity treats a liability arising out of contract joint at law. It is one of the oldest and most familiar doctrines of the law. that when two or more persons promise or bind themselves to pay a sum of money, or to do any other act, their o])ligation and liability are joint. It followed from the legal conception of a joint obligation that when one of the joint debtors dies, the liability on his part and on the part of his estate ipso facto ceases, and the only obliga- tion for the entire debt rests, at law, upon the survivor or surviv- ors; he or they alone could be sued at law by the creditor.^ The injustice Avhich might result from this purely technical rule of the law is very apparent. The doctrine of equity is ({uite diti'erent. Presuming upon the reasonable presumption that it is the intention of the parties in every such agreement that the creditor shall have the several as well as the joint obligation of each debtor as a *Goochvin v. Richanlson. 11 :\Iass. 469; Kinsley v. Abbott, 19 Me. 430, 434. 'Ex parte Kendall, 17 Ves. 525. 191 EQUALITY IS EQUITY. § 40r> security for the payment or perfonnauce, equity declares, as a jjeneral rule, that every contract merely joint at law shall be ro- o-arded, as aiiainst the debtor parties, a joint and several under- taking, creating a joint and several obligation. As a consequence of this equitable view of the obligation, the doctrine is settled, that upon the death of one of the debtors the liability does not remain upon the survivors alone. If the survivors or survivor are insolvent, or if the creditor has exhausted his ordinary legal rem- edies against them in vain, by means of a judgment and an execu- tion returned un.satisfied, then such creditor may maintain a suit in equity against the personal representatives of the deceased debtor, and enforce payment out of his estate.- In England, the doctrine, as settled by the modern decisions is still broader and more efficient. The creditor is entitled to sue the personal rep- resentatives of the decea.sed debtor in equity at once, without at- tempting, much less exhausting, any legal remedy against the sur- vivor. In other words, the creditor has at all times the option to sue the survivor at law or the representatives of the deceased in equity, whether the survivors are solvent or not; and this rule has been adopted in some of the American states.^ In certain of the states, the common-law dogma concerning joint debtors has been wholly abrogated. Special provisions of their codes of procedure, or of other statutes, expressly authorize a legal action to be brought in the ilrst instance against the survivors and the personal rep- resentatives of the deceased joint debtor or even against some, any, or one of them, at the option of the creditor who sues."* Tht^re is one important exception, as established by the courts in England and in many of the United States, to the doctrine that equity will regard and treat a joint obligation arising from contract as joint and several, so as to render the estate of a deceased debtor liable to a suit in equity brought by the creditor; and that is, Avhere the deceased debtor is a surety. It is well settled, "that if the joint obligor so dying be a surety, not liable for the debt irres- pective of the joint obligation, his estate is absolutely discharged both at law and in eciuity, the survivor only being liable. In such ease, where the surety owed no debt outside and irrespective of the joint obligation, the contract is the measure and limit of his obligation. Pie signs a joint contract and incurs a joint liability, = Pope V. Cole, 55 X. Y. 124. 14 Am. Rep. 198: Hunt v. Rousmaniere, 8 Wheat. 212, 213, 1 Pet. Ifi: Simpson v. Vatiglian, 2 Atk. 31, 2 Scott 542. MVilkinson v. Tlender^^on. 1 Wylne &- K. 582: Braxton v. State. 25 Tnd. 82 (under cocle) . *Sellon V. Braden, 13 Iowa 3()5; Burgoyne v. Ohio Life ins. Co., 5 Ohio St. 5SCj 5S7. § 411 EQUITY JUKISPRUDEXCE. 192 and no other. Dying- prior to his co-maker, the liability all at- taches to the survivor.''"' § 410. Settlement of Insolvent Estates — Marshaling- of Assets. — Another remarkable and most just application of the principle, often leadino- to results very different from those produced by the operation of legal rules, may be seen in all those instances where a court of equity acquires jurisdiction, from any cause, to wind up, distribute, or settle an estate, property, or fund against which there are a number of separate claimants. One example is that of settling the affairs of an insolvent partnership, corporation, or individual debtor in a creditor's suit brought by one on behalf of all other creditors, Avhere the assets are not sufficient to satisfy all demands in full ; the court always proceeds upon the principle that equality is equity, and of apportioning the property pro rata among all the creditors.^ The principle is carried to such an extent in the settle- ment of insolvent partnerships, and partnerships where one of the members has died, that firm creditors are compelled in the first instance to resort to the firm assets, and creditors of the individual partners to individual assets, before either class can have recourse to any balance left remaining of the other kind of fund. A second example is that of marshaling the assets in the administration of the estates of deceased persons. At the common law certain classes of creditors enjoyed a precedence over others, and were entitled to be paid in full, even to the exclusion of the inferior orders, by the administrator or executor out of the legal assets of the de- cedent's estate, according to their established priority of right. But a court of equity, having obtained jurisdiction over an ad- ministration, regards all debts, in general, as standing upon an equal footing, and as entitled to payment pro rata out of the equit- able assets, if the estate is not sufficient to pay them all in full. Avithout any reference to their legal right of priority. In order to attain this result, and to carry out the principle of equality is equity in administrations, the doctrine of marshaling assets was established. §411. Abatement of Legacies;^ Apportionment of Liens;- Ap- pointment under Trust Powers;'- and Contribution among Co-con- tractors and Co-sureties.^ — ^ Getty V. Binsse, 49 N. Y. .385, 388, .389. 10 Am. Rep. 370; Jones v. Beach, 2 DeOex, M. & G. 886. Mn re Lord & Polk Chemical Co., Del. Ch. 248, 44 All. 775. SSee post, §§ 1135-1143. ^^See post, §§ 1221-1226. ^See post, § 1002. * tSee post, § 1418. 193 EQUAL EQUITIES^ FIllST IN ORDER OE TIME. § 414 SECTION VI. WHERE THERE ARE EQUAL EQUITIES, THE FIRST IN ORDER OP TIME SHALL PREVAIL. ANALYSIS. § 413. Its application. § 414. Its true meaning; opinion in Rice v. Rice. I 415. Its eft'eot upon equitable doctrines. §413. Its Application. — The "equities" spoken of in this maxim embrace both equitable estates, interests, and primary riofhts of property, such as the cestui que trust's estate in any species of trust, the mortgagee's equitable interest, equitable lietis, the interest of the assignee under an equitable assignment, and the like, and also the purely remedial rights, or rights to some purely equitable remedy, to which the distinctive name "equity" has been given by modern .I'udges and text-writers; such, for example, as the equitable right to a reformation. With respect to "equities" considered in this comprehensive manner, and to many legal inter- ests, the maxim, Qui prior est tempore, potior est jure, is of wide and important application both in equity and at law. § 414. Its True Meaning — Rice v. Rice. — The true meaning and effect of the principle, When there are equal equities, the first in order of time shall prevail, have often been misunderstood ; and its correct signification cannot be better explained than by employing the exact language used by a very able English equity judge, in a recent ease,^ as follows: "What is the rule of a court of equity for the determining the preference as between persons having ad- verse equitable interests? The rule is sometimes expressed in this form. As, between persons having only equitable interests, qui prior est tempore, potior est jure. This is an incorrect statement of the rule, for that proposition is far from being invariably true. In fact, not only is it not universally true as between persons having only equitable interests, but it is not universally true even where their equitable interests are of precisely the same nature, and in ihat respect precisely equal; as in the common case of two suc- cessive assignments for a valuable consideration of a reversionary interest in stock standing in the names of trustees, where the sec- ond assignee has given notice (to the trustee) and the first has 'Rice V. Rice, 2 Drew. 73, H. & B. 23, 1 Scott, 334. A grantor conveyed land without receiving liis purchase-money, but the receipt of it was indorsee' em the deed, and the title deeds were delivered to the grantee. Of course a vendor's lien at once arose as security for the unpaid price, which was at 13 §414 EQUITY jriUsrUUDEXCE. 194 omitted it.- Another form of stating the rule is this, As between persons having only equitable interests, if tlieir equities are equal, (iui prior est tempore, potior est jure. This form of statiny the rule is not so obviously incorrect as the former. And yet, even this enunciation of the rule, when accurately considered, seems to me to involve a contradiction. For when we talk of two persons having ecjual or unequal equities, in what sense do we use the term 'equity!' For example, when we say that A has a better equity than B, what is meant by that? It means only that according to those principles of right and justice which a court of equity recog- nizes and acts upon, it will prefer A to B, and will interfere to enforce the rights of A as against B ; and therefore it is impossible (strictly speaking) that two persons should have equal equities ex- (;ept in a case in which a court of equity would altogether refuse to lend its assistance to either party as against the other. If the court wull interfere to enforce the right of one against the other on anjr ground whatever, say on the ground of priority of time^ b.ow can it be said that the equities of the two are equal? i. e., in other words, how can it be said that the one has no better right to call for the interference of a court of equity than the other? To lay down the rule, therefore, with perfect accuracy, I think it should be stated in some such form as this: As between persons having only equitable interests, if their interests are in all other respects equal, priority in time gives the better equity; or. Qui prior est tempore, potior est jure. I have made these observations, jiot, of course, for the purpose of mere verbal criticism on the enunciation of a rule, but in order to ascertain and illustrate the real meaning of the rule itself. And I think the meaning is this: that in a contest between persons having only equitable interests, priority of time is the ground of preference last resorted to; i. e., that a court of equity will not prefer the one to the other on the mere ground of priority of time, until it finds, upon an examina- tion of their relative merits, that there is no other sufficient ground of preference between them, or in other words, that their equities Ica^t valid hetween tlie grantor and the grantee, and was prior to any equity thereafter created l)y the grantee. Tlie grantee afterwards borrowed money, and to secure its payment made an equitable mortgage of the land by a deposit of the title deeds with the creditor. Held, that as between the vendor's lien and the lien of the equitable mortgage, the possession of the title deeds liy the grantee, and the receipt of the price indorsed on the deed of conveyance, operated to make the latter lien superior to the former, and thus overcame the effect of priority. The two equities were not equal. Tn liis opinion the vice- chancellor used the language quoted in the text. ^ Here the second assignee would obtain priority over the first; See LoW eridge v. Cooper, 3 Euss. 30. 195 Et^LAL IXiLITlKS, IIKST IX OKUKK OF XniE. § 41.") me in all respects equal; and that if the one has on other grounds a better ecjuity than the other, priority of time is immaterial, in examining into the relative merits (or equities) of two parties hav- ing adverse equitable interests, the points to which the court must direct its attention are obviously these: the nature and condition of their respective equitable interests, the circumstances and man- ner of their acquisition, and the whole conduct of each party with respect thereto. And in examining into these points; it must apply the test, not of any technical rule, or any rule of partial applica- tion, but the same broad principles of right and justice which a court of equity applies universally in deciding upon contested rights. "2 § 415. Its Effect. — It follows from this explanation of the prin- ciple that when several successive and conflicting claims upou or interests in the same subject-matter are wholly equitable, and neither is accompanied by the legal estate, wdiich is held by some tliird person, anrl neither possesses any special feature or incident which would, according to the settled doctrines of equity, give it a precedence over the others wholly irrespective of the order of time, — under these circumstances" the principle applies, and priority of claim is determined b^-- priority of time.^ There are, however, many features and incidents of equitable interests Avhich prevent the operation of this rule, and which give a subsequent equity the precedence over a prior one, as wnll be fully shown in the next chapter. The principle embodied in this maxim lies at the founda- tion of the important doctrines concerning priorities, notice, and the rights of purcha.sers in good faith and for a valuable considera- tion, which so largely affect the administratiori of equity juris- prudence in England, though to a less extent in the United States, and v/hich are discussed in the following chapter.- SECTIOX VII. WHERE THERE IS EQUAL EQUITY, THE LAW MUST PREVAIL. ANALYSIS. § 41G. Its a])i)lication. § 417. Its nieaniiij; and pffeots. 'See, also, Phillips v. lMiillii)s. 4 DeCex, F. & J. 208. 215, H. & B. 72, Ames Trusts .3.3L 1 Srolt, S.^.''.. .5] 1 : Dufhcr Watfh-Casp 'SUix. Co. v. Daucrhcrly, 02 Ohio St. 580, 57 X. E. 455. ' Brace v. Duehe-is of :\Iarlhoroiijih. 2 P. Wms. 401. 1 Scott. 3:10. 350: Berry v. Mutual Ins. Co., 2 Johns. Ch. fiO.S, 1 Scott .3.31. Shep. 104; :Muir v. Schenck, 3 Hill, 228. .38 Am. Dec. G.3.3, Shep. 10(1. - = The text is quoted in Campbell v. Sidwell. (11 Oliio St. 170, 55 X. E. 609. § 417 EQUITY JL'IilttPKUUEXCE. IDb § 416. Its Application. — This maxim and the one examined in the last preceding- section must be taken in connection, in order to constitute the enunciation of a complete principle. The first applies to a certain condition of facts; the other supplements its operation by applying to additional facts by which equitable rights and duties may be affected. The two are in fact counterparts of each other, and taken together, the}' form the source of the doctrines, in their entire scope, concerning priorities, notice, and purchasers for a valuable consideration and '\\'ithout notice. Any full examina- tion of these two maxims, and explanation of their effects, would, of necessity, be a complete discussion of those doctrines, and will, therefore, not be attempted at present, but will be postponed to a subsequent chapter. § 417. Its Meaning and Effects. — The meaning of the maxim is, if two persons have equal equitable claims upon or interests in the same subject-matter, or in other words, if each is equally en- titled to the protection and aid of a court of ecpiity with respect of his equitable interest, and one of them, in addition to his equity, also obtains the legal estate in the subject-matter, then he who thus has the legal estate will prevail. This precedence of the legal estate might be worked out by the court of equity refusing to interfere at all, and thereby leaving the parties to conduct their controversy in a court of law, where of course the legal estate alone Avould be recognized.^ One of the most frequent and important consequences and applications of this principle is the doctrine, that when a purchaser of property for a valuable consideration, and Yt'ithout notice of a prior equitable right to or interest in the same subject-matter, obtains the legal estate in addition to his equitable claim, he becomes, in general, entitled to a priority both in equity and at law.- In this interesting case it Avas urged that the maxim should be applied in a certain class of cases where, tlioagh the equities are admittedly unequal, the usual rules of priority cannot be applied without an apparent absurdity; viz., where lien A is superior to lien B, lien B is superior to lien C, but lien C is superior to lien A — a situation by no means uncommon. In the particular case, lien A was a grantor's lien, lien B that of a judgment against the grantee, lien C that of B's bona tide mortgagee. The court held that the maxim should be confined to cases where tlie liens are equitable and are equal in all respects save time; and, the property being insufficient to pay the mortgage in full, ordered sufficient of the proceeds paid to discharge the judgment, and the rest applied upon the mortgage. The second lien was thus given a priority which it would not have had save for the existence of the tliird lien. >Thorndike v. Hunt. 3 DeCex & J. 5fi.'?, 570. .571: Fitzsimmons v. Ogden, 7 Cranch. 2, IS. == Basset v. Nosworthv, Cas. t. Finch, 102, 2 Lead. Cas. Eq. 1, and notes. 197 E(iLlTY AIDS Tlii: ViUlLANT. § 419 SECTION VIII. EQUITY AIDS THE VIGILANT, NOT THOSE WHO SLUMBER ON THEIR RIGHTS. ANALYSIS. § 418. Its iiieanini^; is a rule coiitiolling the ailministration of remedies. § 419. Its application and effects. §418. Its Meaning; Is a Rule Controlling the Administration of Remedies. — The principle embodied in this maxim, the oritjcinal form of which is, Viuilantibus non dormientibus aeqiiitas snbvenit, operates throug'hoiit the entire remedial portion of equity .niris- dietion, but rather as furnishing a most important rule controlling and restraining- the courts in the administration of all kinds of reliefs, than as being the source of any particular and distinctive doctrines of the jurisprudence. Indeed, in some of its applica- tions it may properly be regarded as a special form of the yet more general principle, lie who seeks equity must do equity.^ The principle thus used as a practical rule controlling and restricting the award of reliefs is designed to promote diligence on the part of suitors, to discourage laches by making it a bar to relief, and to prevent the enforcement of stale demands of all kinds, wholly inde- pendent of any statutory periods of limitation. It is invoked for this purpose in suits for injunction, suits to obtain remedy against fraud, and in all classes of cases, except perhaps those brought to enforce a trust against an express trustee.^ § 419. Its Application and Effects. — The scope and effect of the general principle as a rule for the administration of reliefs ir- respective of any statutory limitations was stated by an eminent English chancellor in the following language: "A court of equity, 1 Scott, 340, 498; LeNeve v. LeNeve, And). 430, 2 Lead Cas. Kq., 4th Am. ed. 109, and notes, 1 Scott, 536; Phillips v. Phillips, 4 De Gex, F. & J. 208, 1 Scott, 333, 51 r, H. & B. 72, Ames Trusts 331; Economy Savings Bank v. Gordon, 90 Aid. 486, 45 Atl. 176, 48 L. R. A. 63, H. & B. 19. UJreat Western R'y v. Oxford, etc., R'y. 3 De Gex, M. & G. 341, 359, per Turner, L. J.: "The jurisdiction to interfere is purely equitable, and it must be governed by equitable principles. One of the first of those principles is, that parties coming into equity must do equity: and this principle more than reaches to cases of this description. If parties cannot come into equity without submitting to do equity, a fortiori they cannot come for the summary interference of the court when tiieir conduct before coming has been such as to prevent equity being done." = Great Western R'y v. Oxford, etc., R'y, 3 DeGex, M. & G. 341 • The text is cited in Jackson v. Lvnch, 129 111. 72, 21 N, E. 580, 22 N. E. 246. §119 EQUITY JLKJSI'I.M 1)1 NCi:. VJS Avliieli is never active in relief against eonseience or public con- venience, lias always refused its aid to stale demands, where the party has slept upon his rights, and ac(iuiesced for a great length of time. Nothing can call forth this court into activity but con- science, good faith, and reasonable diligence.''^ The principle has ^Per Lord Canuk'n in Smith v. Clay, 3 Brown Cli. 038, 1 Scott, 379; and see also Lacon v. Brigj^s, 3 Atk. 105, 2 Scott, 754 (suit by an executor to re- cover a debt due his testator, after seventeen years' delay, dismissed) ; Ellison V. Moffatt, 1 Johns. Ch. 46, 1 Scott, 387, 2 Scott, 758, Shep. 118 (suit for an account of transactions ended twenty-six years before the bill was filed dismissed) . There ap|)ears to be a fundamental difference of opinion as to the ulti- mate reasons in ethics or in public policy upon which the doctrine of laches should l)e based. Probably the majority of recent cases are in accord with the followino- statement: "Laches, in legal significance, is not mere delay, but delay that works a disadvantage to another. So long as parties are in the same condition, it matters little whether one presses a right promptly or slowly, within limits allowed by law; but when, knowing his rights, he takes no step to enforce them until the condition of the other party has, in good faith, become so changed tliat he can not be restored to his former state, if the right be then enforced, delay becomes inequitable, and operates as estoppel against the assertion of the right. The disadvantage may come from loss of evidence, change of title, intervention of equities, and other causes; but when a court sees negligence on one side and injury therefrom on the other it is a ground for denial of relief." Chase v. Chase, 20 R. 1. 202, 37 Atl. 804, by Stinness, C. J. See, also, Lindsay Peti-oleum Co. v. llurd, L. R. 5 P. C. 221, per Lord Selborne; Wilson v. Wilson, 41 Oreg. 4.")'.), (U) Pac. 923; Citizens' Nat. Bank of Judy, 140 liul. 322, 43 N. E. 259, 3 Keener 433; Pom. Eq. Rem. §21, and quotations. Thus, relief is often denied where, owing to the delay the defendant has spent large sums in the improvement of the property; Gibson v. Herriott, 55 Ark. 85, 29 Am. St. Rep. 17, 17 S. W. 589: or where, because of the delay important evidence on the defendant's behalf has been lost. as by the death or incapacity of his witnesses; see Baker v. Cunningham, 102 Mo. 134, 85 Am. St. Rep. 490, 02 S. W. 445: or where the "memories of those who had knowledge of the material facts have become faded and weakened by time"; Lutjen v. Lutjen, 04 N. J. Eq. 773, 53 Atl. (525. The principle stated above, in Chase v. Chase, supra, api)ears to be at variance with a long series of cases in the feder-al courts, which lay stress upon the circumstance that the property which is the subject-matter of the litigation has greatly risen in value since the complainant's cause of action accrued; and base the doctrine of laches not so much on the unfairness of the complainant's conduct as on general motives of piddic policy; see Oil Co. v. Marbury. 91 U. S. 592. 23 L. ed. 331, Shep. 119: Xaddo v. Bardon. 51 Fed. 493. 2 C. C. A. 33.5, 4 I'. S. App. 042; Pom. Eq. Rem. §23. quotations and note. That the doctrine of laches does not apply where an injunction is sought in support of a strict legal right, see post, § 817: Galway v. Met. El. R. Co., 128 N. Y. 132, 28 N. E. 479, 13 L. E. A. 788, 1 Ames Eq. Jur. 601, 1 Keener, 822; Ide v. Trorlicht Co.. 115 Fed. 137. 148, 1 Ames Eq. Jur. 042. As to excuses for laches, see Pom. Eq. Rem. §§ 20-30: party's ignorance of his rights; Hall v. Otterson. 52 X. J. Eq. 522. 28 Atl. 907, 3 Keener 401, 2 Scott. 035: Binwiddie v. Self. 145 111. 290. 33 X. E. 892. 3 Keener. 137 (de- lay of twenty years in suing to reform a deed due to advice of reputable attorney. l^n) Eyurrv AIDS -iiu: nicij.axt. §41!) ill fact two aspects, one of them wholly iiidepeiKk'nl of any statu- tiity limitation, and the other with reference to sucii statute. In the earlier forms of the statute of limitations, the provisions wore, in express terms, confined to actions at law; and yet courts oF equity, proeeedin<>' upon the analogy of these enactments in most .■^uits to enforce equitable titles to real estate and equitable per- sonal claims, applied the statutory periods.- In certain kinds of suits, however, especially those brought against trustees to en- Force express trusts, the analogy of the statute was not followed.^ The modern forms of these statutes, in the American states, gen- erally declare, in express terms, that the periods of limitation shnll Apply to all equitable suits as well as to legal actions. This legis- lation has not, however, abrogated the principle under considera- iion; all cases not falling within the scope of the statutory limita- tions would still be controlled by it.'* tliat the deed correctly expressed the grantor's intention); post, §917; but see P.adger v. Badger, 2 Wall. 87, 95. 17 L. ed. 836, 2 Scott, 766 (complainant must show liow he came to be so long ignorant of his rights). A party in possession of land who resorts to a court of equity to settle a question of title is not chargeable with laches, no matter how long his delay; he is at liberty to wait until his title is attacked before he is obliged to act; Simmons Creek Coal Co. v. Doran, 142 U. S. 417. 12 Sup. Ct. 2.19, 35 L. ed. 1063. It has been held that the plaintiff's poverty is not a sufficient excuse for his laches; ^■addo V. Bardon, 51 Fed. 493, 2 C. C. A. 335, 4 U. S. App. 642. "That a court of equity will usually act or refuse to act in analogy to the statute of limitations relating to actions at law of like character, but is not hound by the analogy of the statute where extraordinary circumstances exist, see Kelley v. Boettcher, 85 Fed. 55, 62. 29 C. C. A. 14. 21, 56 U. S. App. 363, 383; Pom. Eq. Rem. § 20: Stevens v. Grand Central Min. Co., C. C. A. 133 Fed. 28. ^ In cases of express trust, neither the statute of limitations nor laches is a defense to a suit bj' t1ie cestui que trust, unless there has been a re— pmliation or breach of the trust brought home to the actual knowledge of the cestui que trust: New Orleans v. Warner, 175 I'. S. 120, 130, 20 Sup. Ct. 44, 44 L. ed. 96: Hovey v. Bradbury. 112 Cal. 620. 44 Pac. 1077. "Where the period of limitation of equitable actions is fixed by express statute, the court may still deny relief for unreasonable delay (according to the weight of authority), although the statutory period has not elapsed; Cal- houn V. Millard, 121 N. V. 69. 8 L. R. A. 248. 24 N. E. 27, 1 Scott 388; Patterson v. tlewitt, 195 U. S. 309, 25 Sup. Ct. 35, 49 L. ed. § 423 EQUITY JURISPliUDENCE. 200 SECTION IX. EQUITY IMPUTES AN INTENTION TO FULFILL AN OBLIGATION. ANALYSIS. § 420. Its meaning and application. §§ 421, 422. Is the source of certain equitable doctrines. § 421. Performance of covenants. § 422. Trust resulting from acts of a trustee. § 420. Its Meaning and Application. — This principle is the state- ment of a general presumption npon wliidi a court of equity acts. It means that wherever a duty rests upon an individual, in the absence of all evidence to the contrary, it shall he presumed that he intended to do right, rather than wrong; to act conscientiously, rather than with bad faith ; to perform his duty, rather than to violate it. The principle is applied in those ca.ses Avhere a court of equity is called upon to determine whether an equitable estate or interest in certain subject-matter belongs to A, in pursuance of an obligation which rested upon B, although B, in ae(|uiring the subject-matter, has not expressed or indicated in any manner an intention on his part of performing such obligation; that is, he did not acquire the subject-matter for the avowed purpose of ful- filling his duty. Notwithstanding the absence of such avowed intention, a court of equity may proceed upon the presumption that B did intend to perform his duty; may hold that the sub- ject-matter was acquired with that design, and that in consequence of such purpose an equitable estate in it belongs to A. §421. Is the Source of Certain Equitable Doctrines: Perform- ance of Covenants.^ — § 422. Trust Resulting from Acts of a Trustee.^ — SECTION X. EQUITY WILL NOT SUFFER A WRONG WITHOUT A REMEDY. ANALYSIS. § 423. Its general meaning and effects. § 424. Limitations upon it. § 423. Its General Meaning. — This principle, which is' the some- what restricted application to the equity jurisprudence of the more * See post, § 579. »See post, § 1049. 201 WILL NOT SLl-lEU WKONG WITHOUT UKMEDV. § i'i^ coiiii>reh('nsive legal maxim, L'bi jus ibi remedium, — wherever a legal right has been iufriuged, a remedy will be given, — is the source of the entire equitable jurisdiction, exclusive, concurrent, and auxiliary. A full treatment of it, including an explanation of its scope and meaning, with its various applications and illustra- ti(ms, would simply be a restatement of all the doctrines and rules concerning jurisdiction which have already been discussed in the first part of this work. Xo such unnecessary repetition will be at- tempted. It is enouo'h that the principle finds its development in ihe M-hole ])()dy of doctrines and rules which define and regulate tlie equitable jurisdiction as distinguished from the jurisdiction at law. § 424. Its Limitations. — There are. however, certain important limitations upon the generality of the maxim which may properly be stated here, although they have all been referred to in the In- troductory Chapter, where the nature of equity is described, or in the chapters of Part First. Avhere the doctrines concerning the exclusive and concurrent jurisdiction are explained. The first of these limitations is. that equity cannot interfere to give any rem- edy, unless the richt in question, the invasion of which constitutes the wrong complained of. is one which comes within the scope of juridical action, of juviflunJ events, rights, and duties. The right must belong to the purvieAv of the municipal law, — must be one which the municipal law. through some of its departments, recog- nizes, maintains, and protects. E(|uity does not attempt, any more than the law, to deal with obligations and corresponding rights which are 'jriirehj moral, which properly and exclusively belong to the tribunal of conscience.^ The second limitation is. that equity * It is upon tliis ground that where a riglit, undoubtedly belonging to the domain of tlie nuniicipal law, is strictly legal, equity will not intefere merely because, under the particular circumstances of any case, every legal means ovfl insfriiiueiil of ohtaininri relief has been tried and exhausted withoiit avail. It is plain that if equity should interfere in any such case, it could only be on the ground that the party had a moral right; that he was morally entitled to redress; because on the assumption, the right, being strictly legal, comes within no recognized head of the equitable jurisdiction, and the only possible reason for interference by a court of equity would be that, the legal remedies proving absolutely fruitless, and the party having no other means of redress, he has a claim upon a court of equity based upon the intrinsic righteousness of his demand. To such a purely moral claim equity does not and cannot respond. See Finnegan v. Fernandina, 15 Fla. 379, 21 Am. Rep. 292; Rees v. City of Watertown, 1!) Wall. 121, H. & B. 5. Sh. 53. 1 Scott. 200. In Rees v. Watertown, a holder of bonds issued by the city alleged in his bill that he had obtained judgment thereon against the city, and had also obtained a writ of mandamus to compel the city odicers to raise and apply funds to satisfy the judgment, but had wholly failed of f)I)taining any redress. He ])r;iyed that the taxable property of tlie citizens, whicli he claimed was a fund for the payment § 424 EQUITY JUKISl'KUDENCK. 202 does not interfere to remedy 'any wrong where the right and the remedy, assuming that the right falls within the purview of the municipal law, both completely belong to the domain of the law. In order that the principle may applj-, one of three facts must exist, viz., either, — 1. The right itself must be one not recognized as existing by the law; or 2. The right existing at the law, the remedy must be one which the law cannot or does not administer at all; or 3. The right existing at the law, and the remedy being one which the law gives, the remedy as administered hy the law must he inadequate, incomplete, or uncertain. Of these three alterna- tives, the first and second denote the exclusive jurisdiction of ecjuity; the third, the concurrent jurisdiction. The third limitation upon the principle is, that it does not apply where a party, whose case would otherwise come within one of the three alternatives above mentioned, has destroyed or lost or waived his right to an equitable remedy by his own act or laches. With these limitations upon its operation, the principle has been developed into the vast range of the equitable jurisdiction, which, considered in its en- tirety, gives, — 1. Legal remedies for the violation of legal rights in a more certain, complete, and adequate manner than the laAV can give; 2. Equitable remedies for the violation of legal rights, which the law has no power to give with its means of procedure;- and 8. Remedies, either equitable or legal in their nature or form, for the violation of rights of which the law takes no cognizance, rights which the law does not recognize as existing, and which it either cannot or does not protect and maintain. of municipal debts, might be subjected to the payment of his judgment, and tliat the marshal miglit be empowered to seize and sell so much of such property as should be necessary for that purpose. The court refused relief on tlie ground that the demand was wholly a legal one. and the proper remedy was by man- damus, and the mere fact that the mandamus had failed under the particular circumstances of this case did not give a court of equity any jurisdiction. The court said a court of equity "cannot assume control over that large class of obligations called imperfect obligations, resting upon conscience and moral duty only, unconnected with legal obligations." The decisions in the other cases above cited are to the same eflect. Tliis paragraph of the text is cited in Harrigan v. Gilchrist (Wis.), 99 N. W. 909, 9.S3. = It has been laid down, as a principle of jurisdiction, that equity will always, give a remedy in this class of cases; see Gavin v. Curtin, 171 111. C40, 49 N. E. 523, 40 L. R. A. 776. ;303 EqilTY l-OLLONVa THE LAW. § 425 SECTION xr. EQUITY F(3LL()\\S THE LAW. ANALYSIS. §§ 425,426. Twofold nieaniiij; of tlu> principle. § 425. First, in obeying the law: Heard v. Stainford, per Lord Chan- cellor Talbot. § 426. Second, in applying certain legal rules to equitable estates; Cow- per V. Cowper, per Sir J. Jekyll, M. R. § 427. Operates A\ithin very narrow limits. § 425. Twofold Meaning"— First. In Obeying the Law.— This maxim in its Latin form, Aectnitas seqiiitur le.yem, was frequently (jiioted by the earlier chancellors before the extent of the equitable jiii'isdiction had been fully determined, and an importance, even a .supreme and controlling" efficac}', has been attributed to it by some writers which it does not and never did possess. So far as it can truly be called a general principle, giiiding and regulating the action of equity courts, its meaning and effect are now settled ^vithin -well-defined and n'hrrow^ limits'. As a practical rule, and not a mere verbal theory, it is Mdiolly restrictive in its operation, and its only object is to keep the jurisdiction of equity from overstep- jiing the boundaries which have been established by the prior cour.se of adjudication. With this respect the maxim has a double import and operation : First. Equity follows the law, in the sense of obeying it, conforming to its general rules and policy, whether contained in the common or in the statute laAV. This- meaning of the principle was very clearly stated by Lord Chancellor Talbot in the following passage: "There are instances, indeed, in which a court of equitj^ gives a remedy, where the law gives none; but Avhere a particular remedy is given by the law, and that remedy bounded and circumscribed by particular rules, it would be very improper for this court to take it up -where the law leaves it, and to extend it further than the law allows."^ It should be observed, ^ Heard v. Stamford, Cas. t. Talb. 173, 1 Scott 293. In this case the chan- cellor was asked to disregard a well-settled doctrine of the conunon-law. By the then existing law, if a man married he at once became personally liable for all his wife's antenuptial debts; but this liability ceased upon the wife's death. If the creditor had not recovered judgment at the time the wife died he was remediless, no matter how large a fortune the wife may have brought to and left with her husband. This rule was grossly unjust in both of its branches. Defendant's wife was indebted at the time of the marriage, and bi-ought her husband a large fortune, but died soon after. One of her credi- tors brought this suit against the husband, urging that lie should be held liable in equity, under the circumstances. The chancelloi- liild Ihat he was not liable, and lefused to decree against a settled rule of tJie law. See in general. ^426 EQl'ITY JUiaSriJUDEXCE. L'O-t liovvevei", that equity had not, in developing its jurisdietion, in- v'aded the particular doctrine of the common law which was in- volved in this' case ; but it had certainly disregarded other rules as positive and well settled, in its previous course of decision. § 426. Secondly. In Applying Legal Rules to Equitable Es- tates. — Equity follows the law in the sense of applying to equitable estates and interests some of the same rules by which at common law legal estates and interests of a similar kind are governed. Equity, having by the exercise of its creative power called into existence the system of equitable estates, determined that these estates should partake, to a certain extent, of the quality of the corresponding legal estates. Thus a use in fee was held to descend according to the same rules as a legal estate in fee, and the hus- band was entitled to curtesy in such a use. It should be carefully observed, however, that courts of equity carried out the principle in this its second sense onl}- to a partial and quite limited extent. A careful examination will show, I think, that the only impoi'tant rules of law adopted by the early chancellors to regulate equitable estates leere those concerning descent and jnlieritance} The feudal incidents of legal estates were held not to apply to uses; equitable estates in fee could be conveyed without livery of seisin, and could be devised by will, and were not subject to dower. It is an evi- dent error to say that equitable estates were regulated by all the rules of the law applicable to the corresponding legal estates. This second sense in which the principle is understood was admirably stated in a celebrated opinion of Sir Joseph Jek3il, of which the following is the important passage: "The law is clear, and courts of ecpiity ought to follow it in their judgments concerning titles to equitable estates; otherwise great uncertainty and confusion would ensue. And though proceedings in equity are said to be secundum discretionem boni viri, yet when it is asked, Vir bonus est quis? the answer is, Qui consnlta patrum, qui leges jura(|ue servat. And it is said in Eooke's Case- that discretion is a science not to act arbitrarily according to men's wills and private affec- tions, so the discretion which is executed here is to be governed Davis V. W illianis. 130 Ala. .5.30. 30 South. 488, Sf) Am. .St. Rep. 55, 54 L. R. A. 749. When a c-oiilract is void at law for want of jiowor to make it, a court of equity lias 110 jurisdiction to enforce such contract, or in the absence of fraud, accident, or mistake to so modify it as to make it ie;4al. and then enforce it; Heilges v. Dixon County. 150 U. S. 182, 14 Sup. Ct. 71. 1 Scott 298. ^ The early cliancellors, in dealiuL;- with uses and otlier equitalde estates, plainly shrani< from interfering with tlio legal rules of descent and inheritance, which were so dear to 'the landed proprietors. Yet they held that equitable (^states in fee, were not subject to dower, although they were to curtesy; per- haps this distinction was not displeasing to the body of landowners. ' ^Rooke's Case, 5 Coke, 00 b. 205 EQUITY FOLLOWS THE LAW. § 427 by the rules of law and ecjuity, which are not to oppose, but each in its turn to be subservient to, the other. This discretion, in some cases, folloAvs the hiw inij)licitly; in others, assists it and advances the remedy; in others again, it relieves against the abuse, or allays the rigor of it ; but in no ease does it contradict or overturn the grounds or principles thereof, as has been sometimes ignorantly imputed to this court. That is a discretionary power, which neither this nor any other court, not even the highest, acting in a judicial capacity, is by the constitution intrusted with."'^ St)me of the sentences of this often quoted passage must, I think, be accepted only with considerable nuidiiication. Taken literalh% they certainly contradict a large portion of the established equitable jurisdiction, and of the settled doctrines of the equity jurisprudence. The same twofold import of the principle has also been expressed in the fol- lowing formulas: 1. Equity is governed by the rules of the law' as to legal estates, interests, and rights. 2. Equity is regulated by the analogy of such legal interests and rights, and the rules of tlie law aft'ecting the same, in regard to rquitahle estates, interests, and rights, vJicrr a in/ sticJi aiKtlogij clearly subsists.^ ^ 427. Operates within Very Narrow Limits. — The maxim is, in truth, operative only within a very narrow range; to raise it to the ])osition of a general principle would be a palpable error. Through- out the great mass of its jurisprudence, equity, instead of following the law, either ignores or openly disregards and opposes the law. As was shown in that portion of the Introductory Chapter which deals with the nature of equity, one large division of the equity jurisprudence lies completelj'" outside of the law ; it is ndflitional to the laAv; and Avhile it leaves the law concerning the same subject- matter in full force and efficacy, its doctrines and rules are con- structed without any reference to the corresponding doctrines and rules of the laAv. Another division of equity jurisprudence is directly opposed to the law- which applies to the same subject- matter; its doctrines and rules are so contrary to those of the law, that when they are put into operation the analogous legal doctrines and rules are displaced and nullified. As these conclusions cannot be questioned, it is plain that the maxim. Equity follows the law, is very partial and limited in its application, and cannot, like all the other maxims discussed in this chapter, be regarded as a gen- eral principle. U'owper V. Cowper, 2 V. \\m^. 720. 7;"i2. Sh. 84, 1 Scott, 2flG. In this case the court relunctantly adhered to tlie legal canon of descent which prefers the whole to the half blood, and held that an equitable estate in fee descended to a cousin of the whole blood, instead of to a brother of the half-blood of tlie deceased owner. ' Snell's i^quity, -4. §170 EQUITY JUEISI'KUDENCE. 200 SECTION XII. EQUITY ACTS IN PERSONA.M, AND NOT i3r BEM. ANALYSIS. ' § 428. Oiiyin and original meaning of this principle. §§ 170,1.317. iModilicd by statutes in the United States. § 1318. Remedies in ijersonam beyond the territoiial jurisdiction. § 429. [S 170.] In what sense equitable remedies do operate in rem. §§ 4.30,431. The principle that courts of equity act upon the conscience of a party explained. S 431. 'I'he same, per Lord ^Vestbury. § 428. Origin and Original Meaning. — ... In the infancy of the court of chancery, while the chancellors were developing- their system in the face of a strong opposition, in order to avoid a direct collision with the law and with the judgments of law courts, they adopted the principle that their own remedies and de- crees should operate in personam upon defendants, and not in rem. The meaning of this simply is, that a decree of a court of equity while declaring the equitable estate, interest, or right of the plaintiff to exist, did not operate by its own intrinsic force to vest the plaintiff' with the legal estate, interest, or right to which he was pronounced entitled; it was not itself a legal title, noi- could it either directly or indirectly transfer the title from the defendant to the plaintiff'. A decree of chancery spoke in terms of personal command to the defendant, but its directions could only be carried into ett'ect by his personal act. It declared, for example, that the plaintiff' was equitable owner of certain land, the legal title of which w^as held by the defendant, and ordered the defendant to execute a conveyance of the estate; his own volun- tary act was necessary to carry the decree into execution; if he refused to convey, the court could endeavor to compel his obedi- ence by fine, and imprisonment. The decree never stood as a title in the place of an actual conveyance by the defendant; nor was it ever carried into effect by any officer acting in the defendant's name.^ § 170. . . . This ancient quality in the operation of equitable remedies has been greatly modified by various statutes in the liuited States, which, in some instances, provide that a decree es- tablishing an estate, interest or right of property in the plaintiff 'See Hart v. Sansom, 110 IT. S. 151. 3 Sup. Ct. .5Sfi, 1 Ames Eq. Jur. 11 (decree for removal of cloud on title) ; McCann v. Randall, 147 Mass. 81, 99, 9 Am. St. Rep. G(iG. 17 N. E. 75, 88 (decree directing sale of property) ; Gay v. Parpart, lOG L'. S. G79, CC'O. 1 Sup. Ct. 45G (decree in partition). 2Ui EQUITY ACTS IX TEliSOXAM, AND KOT IM KEM. ^ luK shall execute itself, shall be of itself a muniment of title, by divest- ing the defendant of the interiest and vesting the same in the plain- titl, without any conveyance or other instrument of transfer. The decree alone, being on record, operates as a sufficient security of the plaintiff's right as adjudged. In other instances, an officer of the court, commissioner, master, or referee is authorized to carry out the provisions of the decree by executing the necessary instru- ments, whicii are thereupon the plaintiff's muniments of title, with the same effect as though they had been executed by the defendant himself.- § 1317. . . . These statutes do not generally interfere with the original power of courts of equity to enforce obedience to their decrees by the parties them.selves, and to punish such parties for their disobedience by attachment, fine, imprisonment, or sequestra- tion.^ The operation of these statutes is confined to the territorial limits and jurisdiction of the states in which they are respectively enacted.* , . . There are, of course, classes of remedies to which this legislation cannot apply, — as, for example, decrees prohibit- ing any act, general pecuniary recoveries, analogous to money judg- uients at law, and many purely ancillary or provisional reliefs."' ■Such statutes exist in nearly all the states; see 1 Pom. Eq. Rem. § 13, n. 30, where their provisions are given in detail. Both these types of statute are often found in the same state. ^ It seems, however, that a general decree for the payment of money should not be enforced by imprisonment for contempt: Clements v. Tillman, 79 Ga. 451, 11 Am. tSt. Rep. 441, 5 S. E. 194, Sh. 194. * Guarantee Trust etc. Co. v. Delta etc. Co., 104 Fed. 5, C. C. A. 'I'liat it is within the power of a United States coui't to give efficacy to its decree in transferring title, in conformity with the legislation of the state in which such court is sitting, see Langdon v. Sherwood, 124 I". S. 74, 8 Sup. Ct. 429, Sh. 79. =■ See, also, Merrill v. Beckwith, 1()3 Mass. 503, 10 N. E. 855, 1 Ames Eq. Jur. 19 (specific performance; no personal service of summons on defendanl). Validity of Decree Based upon Service of Process hy Publication. — lupiily decrees which act onh^ in personam can, in general, liave effect only as against parties duh' served with process within the territorial jurisdiction of the court: Hart V. Sansom, 110 U. S. 151, 3 Sup. Ct. 586, 1 Ames Eq. Jur. 11. It is competent, however, for a state to provide methods for the determination of title to land witliin its borders, and in the exercise of such power, it may give to equity decrees relating to or affecting the title to such land, the eiTect of judgments in rem, which, therefore may be based upon service of process by publication. "Jt can not bring the person of a nonresident within its limits — its process goes not out beyond its borders — but it may determine the extent of liis title to real estate within its limits, and, for the purjxjse of such deter- mination, may provide any reasonable methods of imparting notice"; Arndt V. Griggs, 134 U. S. 310, 10 Sup. Ct. 557. See, also, Pennoyer v. Neff, 95 U. S. 714 (the leading case) ; Dillon v. Heller, 39 Kan. 599, 18 Pac. 693. 1 Ames Eq. Jur. 14, 1 Scott 24(i. § 170 EQUITY JURISPRUDENCE. 208 § 1318. Remedies in Personam beyond the Territorial Jurisdic- tion. — The power to act iu persouani, through their remedies, is stil] hekl by all courts of equity, even in presence of the foregoing legislation. Of this nature must always be the remedies when the subject-matter, either real or personal property, is situated beyond the territorial jurisdiction of the court, in another state or country. The jurisdiction to grant such remedies is well settled. Where the subject-matter is situated within another state or country, but the parties are within the jurisdiction of the court, any suit may be maintained and remedy granted wliieh directly affect and operate upon the person of the defendant, and not upon the subject-mat- ter, although the subject-matter is referred to in the decree, and .the defendant is ordered to do or to refrain from certain acts to- ward it, and it is thus ultimately but indirectly affected by the relief granted. As examples of this rule, suits for specific perform- ance of contracts, for the enforcement of express or implied trusts, for relief on the ground of fraud, actual or constructive, for the final accounting and settlement of a partnership, and the like, may be bi'ought in any state where jurisdiction of defendant's person is obtained, although the land or other subject-matter is situated in another state, or even in a foreign country.^ On the other hand, where the suit is strictly local, the subject-matter is specific prop- erty, and the relief when granted is such that it must act directly upon the subject-matter, and not upon the person of the defend- ant, the jurisdiction must be exercised in the state where the sub- ject matter is situated. - § 429. In What Sense Equitable Remedies do Operate in Rem. — § 170. . . . When we turn from this mere external manner in which equitable remedies were enforced according to the original chancery procedure to the essential, and so to speak internal, na- ture and qualities of the remedies themselves, instead of their being merely personal, it is one of the distinctive and central prin- ciples of the equity remedial system that it deals with propert,y rights, — estates, interests, liens, — rather than with the mere personal ^ Thi-; rule applies to tlie United States courts as well as the state courts, and is also well settled in England: Penn v. Lord Baltimore, 1 Ves. 8r. 444, 2 Lead. Cas. Eq., 4th Am. ed.. ISOfi, 1 Keener 12, I Scott 230; Toller V. Carteret, 2 Vern. 494, 1 Ames Eq. .Tur. 22, 1 Scott 235; Massie V. Watts, 6 Cranch 148, Sh. 82; Gardner v. Ogden, 22 N. Y. 327, 78 Am. Dec. 192, 1 Ames Eq. .lur. 6; C4reat Falls Mfg. Co. v. Worster, 23 X. H. 462, 1 Scott 241. As to foreclosure of mortgages on land outside the jurisdiction, see Toller v. Carteret, supra: Vjiion Trust Co. v. Olmsted. 102 X. Y. 720. 7 X. E. 822, 1 Ames Eq. Jur. 23. M"'arteret v. Petty, 2 Swans. 323, 1 Ames Eq. Jur. 21; In re Hawthorne, 23 Ch. D. 743, Sh. 77. 209 EQUITY ACTS IN PERSOXAIM, AND NOT IN REM. § 170 rights and obligations' of the litigant parties. This tendency of equity to base its remedies upon the rights of property, in their various grades, from complete estates to liens or charges, is exhi- bited in the clearest manner in all its suits brought to enforce the rights and duties growing out of contracts. Although the contract is executory, even though it stipulates only with respect to things not yet in existence, — things to be acquired in future, — the remedial right is worked out by conceiving of a present ownership, interest, lien, or charge, as arising from the executory provisions, or a present possibility which will ripen into such an interest, and by establishing this proprietary right, protecting and enforcing it. The decree, with a few exceptional cases, passes over the perannnl rights of the plaintiff, and the personal obligations of the defend- ant, deals with rights or interests in property, and shapes its relief by conferring rights, or imposing duties growing out of or con- nected with some grade of property. Even when the executni-y contract creates what at law Avould be a debt, and when the re- covery at law would be a general pecuniary judgment, the equit- able remedy views this debt as an existing fund and awards its relief in the form of an ownership or of lien upon that fund. A general pecuniary judgment to be recovered from the debtor's assets at large — as an award of damages — is only granted by a court of equity under very exceptional circumstances.* Another quality of the distinctively equitable remedies, connect- ed with and perhaps growing out of the one last mentioned, is their specific character, both with respect to substance and form. Except in actions to recover possession of land or of chattels ("ac- tion of right," "ejectment," or "replevin"), the legal remedies by ar-tion are all general recoveries of specified sums of money, which may be collected by execution out of any property of the debtor not exempted. The equitable remedies, M'ith a few excep- tions, are specific; deal with specific things, land, chattels, choses in actions, funds; establish specific rights, estates, interests, liens, and charges in or over these things; and direct specific acts to be dene or omitted with respect to these things, for the purpose of en- forcing the rights and duties thus declared. Even when the con- troversy is concerning pecuniary claims and obligations, and the final relief is wholly pecuniary, the ef|uitable remedies are i\(\- ' Tlie same conception is shown in the jurisdiction which equity exercises over the p<"i'>|ndar sense, . .32 Am. Dec. (i2() ; Adams v. RutluTtunl, i:? Or. 78. 8 Fac. S9(i. Nee post, §§ 82(>. 833. 1 Woodward v. Gyles, 2 Veni. ll'.t. 2 Scott, 121: Kccblc v. Kivhlc. S.") Ala. 552, 5 South. 14!), H. & B. (iS ; .7aq>iith v. Hudson, 5 Mich. 123, H. & B. (52, per Christiancy. J. (a very able opinion) : Willson v. Mayor, etc., of Baltimore. 8.3 Md. '203, ,^)5 Am. St. Rep. 33!), 34 .Ml. 774; Ward v. H. l\. B. Co., 125 N. Y. 230, 2"t) X. E. 250; Wallis Iron Works v. Monmoulli Park Ass'n., 55 N. J. L. 132, 3!) Am. St. Rep. 020, 20 Atl. 140, 1!) 1.. R. .\. 4.-)0. = Cushing V. Drew, 07 Mass. 445: Wilhelm v. Eaves, 21 Or. 104, 27 Pac. 1053, 14 L. R. A. 207; Gillis v. Hall, 7 Phila. 422, 2 Brewst. 342; Kunkle v. Wherry, 189 Pa. St. 108, 42 Atl. 112, 09 Am. St. Rep. 802, 11. & B. 01. §443 EQUITY JUKlSrKUDEXCE. 220 the fact of its beiny disproportioned in amount to the damajre Avhich results therefrom — will not of itself be a sufficient reason for holding it to be a penalty." § 441. Rules Determining- Liquidated Damages and Penalties. — AVhile it is imi)0ssible to fornuilate one universal criterion b^' which the question of penalty or licjuidated damages can be determined in every instance, certain ])articular rules have been well settled by the decisions, which apply to many important and customary forms and kinds of agreement, although there are, of course, num- erous cases which cannot easily be brought Avithin the operation of either of them. The following are the rules which have thus been established by judicial authority. Fir.'it. Wherever the payment of a smaller sum is secured by a larger, the larger sum thus contracted for can never be treated as liouidated daiuages, but must alwaj's be considered as a penalty.^ § 442. Second. Where an agreement is for the performance or non-perfornumce of only one act. and there is no adecjuate means of ascertaining the precise damage which may result from a viola- tion, the parties may, if they please, by a separate clause of the contract, fix upon the amount of compensation payable by the de- faulting party in case of a breacli; and a stipulation inserted for such purpose will be treated as one for "liquidated damages," unless the intent be clear that it was designed to be only a penalty.^ § 443. Third. Where an agreement contains provisions for the performance or non-performance of several acts of different degrees of importance, and then a certain sum is stipulated to be paid upon a violation of any or of all such })rovisions, and the sum will be in some instances too large and in others too small a compensation for the injury thereby occasioned, that sum is to be treated as a 2 Sun Printing & Pub. Ass'n v. iloore, 1S3 V. S. f)42, 22 Sup. Ct. 240; Keeble V. Keeble, 85 Ala. 552, 5 South. 140, H. & 1^. OS: Taylor v. Times Newspaper Co., 8:5 Miuu. 523, 85 Am. St. Rep. 473, S(> X. \\'. 760. MJay Mfg. Co. v. Camp. 65 Fed. 794, 13 C. C. A. 137, 25 U. S. App. 134; Movvill V. Weeks, 70 N. H. 17S. 4(i Atl. 32; Kiulz v. Robbins, 12 Wash. 7. 40 Par-. 415, 50 Am. St. Rep. 871, 28 L. R. A. 670. U^olfe V. Peterson, 2 Brown Pari. C. 436; Keeble v. Keeble, 85 Ala. 552, 5 South. 140, H. & B. 08. ^^ here a party covenants that he will not carry on his trade or business within certain limits, and adds a clause making himself liable to pay a speci- fied sum upon violation of the covenant, such sum is liquidated damages: Green V. Price. 13 Mees. & W. 695: McCurr>- v. Gibson. 108 Ala. 451. 18 South. SOO. .54 Am. St. Rep. 177; Jacquith v. Hudson, 5 :\rich. 123. 11. & P.. 02. P)uilding Contracts: If the amount of damage caused by delay is uncertain, the parties are allowed to stipulate for a lixed amount: De(!rniT. etc.. Co.. v. Wickham, 89 Iowa, 720, 52 X. W. 503. For the numerous other illustrations of this rule, see Pom. Eq. .Tur., 3 ed., S 442, notes 1, a-g. 221 coxcERNixi; penai.tiks and foi;f1'Itli;i;8. § 1 1-- penalty, and not as liquidated dania<>es. This rule has been laid down in a somewhat different form, as follows: Where the agree- ment contains provisions for the performance or non-performatice of acts which are not measurable by any exact pecuniary standard, and also of one or more other acts in respect of which the damages are easily ascertainable by a jury, and a certain sum is stipulated to be paid upon a violation of any or of all these provisions, sueli sum must be taken to be a penalty.^ 5; 444. Fourth. Whether an agreement provides for the i)er- formance or non-performance of one single act, or oi several dis- tinct and separate acts, if the stipulation to pay a certain sum of money upon a default is so framed, is of such a nature and eff'ect that it necessarily renders the defaultinor party liable in the same amount at all events, both when his failure to perform is com- plete, and when it is' only partial, the sum must be regarded as a jienalty, and not as liquidated damages. This rule plainly rests upon the same grounds as the third, and may be considered a par- ticular application thereof.^ § 445. Fifth. Finally, although an agreement may contain two or more provisions for the doing or not doing dift'erent acts, still, where the stipulation to pay a certain sum of money upon a default attaches to only one of these provisions, w^hich is of such a nature that there is no certain means of ascertaining the amount of dam- au'es resulting from its violation,^ or where all of the provision.s are of such a nature that the damages occasioned by their breach cannot be measiu'ed, and a certain sum is made payable upon a default generally in any of them.- — in each of these eases, the sum so agreed to be paid may be considered as liquidated damage, provided, of course, that the language of the stipulation does not bring it within the limitations of the preceding fourth rule. It is evident that this proposition, in both its branches, is identical in substance with, the second rule, heretofore given, and rests upon exactly the same grounds. The foregoing rules may be considered as settled by the strong preponderance of judicial authority, and they serve to explain large and important classes of cases. There 'Kemble v. Farren, 6 Bino-. 14]; Willson v. Love. [1896] 1 Q. B. 020. over- rulinjr Wallis v. Smith, 21 Ch. D. 243. 8h. 14L in so far as that case rejected the first form of the rule as stated in the text: East Moline Plow Co. v. Weir Plow Co.. 05 Fed. 250: Wilhelm v. Eaves. 12 Or. 104. 27 Pac. 105.3. 14 L. R. A. 297. * Shreve v. Brereton, 51 Pa. St. 175: Hamaker v. Schroers, 49 Mo. 406: Johnson v. Cook. 24 Wash. 274. 64 Pac. 720. 'Green v. Price, 13 Mees. & W. 605. 16 ^^Tees. & W. 354. *Hall V. Crowley, 5 Allen. 304. SI Am. Dec. 704: Col heal v. Talmage. 9 N. Y, 551, 61 Am. Dee. 716. See Wallis v. Smith, L. R. 21 Ch. D. 243, Sh. 141. §447 EQUITY JURlSrUUDEXCK. 222 are undoubtedly numerous instances which cannot be easily re- ferred to either of these rules ; and this must be so almost as a matter of necessity. Since agreements are of infinite variety in their objects and in their provisions, and .since the question of penalty or liquidated damages is always one of intention, depend- ing upon the tenns and circumstances of each particular contract,, there must be many agreements which cannot be brought within the scope of an}^ specific rule, and with which a court can only deal b}- applying the most general canon of interpretation. § 446. No Election to Pay the Penalty and not to Perform. — With respect to the effect of a penalty upon the equitable rights of the parties, while a court of equity will relieve the party who has thus bound himself against a penalty, or will restrain its enforce- ment against him at law, it will not, on the other hand, permit such party to resist a specific performance of the contract by electing to pay the penalty. Where a person has agreed to do a certain act, or to refrain from doing a certain act, and has added a penalty for the purpose of securing a performance, a court of equity will, if the contract is otherwise one which calls for its interposition, compel the party to specifically perform, or restrain him from committing the act, as the ease may be, notwithstanding the penalty. If the sum stipulated to be paid is really a penalty, the party will never be allowed to pay it, and then treat such payment as a sufficient ground for refusing to perform his under- taking.^ Where, however, the creditor party in such a contract has elected to proceed at law, and has recovered a judgment for damages, he cannot afterwards come into a court of equity, and obtain a specific performance; he cannot have the remedy given by both courts.- § 447. Otherwise with Liquidated Damages. — Where, however, the parties to an agreement have added a provision for the pay- ment, in case of a breach, of a certain sum which is truly liquidated damages, and not a penalty, — in other words, where the contract stipulates for one of two things in the alternative, the doing of certain acts, or the payment of a certain amount of money in lieu thereof, — equity will not interfere to decree a specific performance of the first alternative, but will leave the injured party to .his remedy of damages at law.^ This is one reason among many why 1 Hardy v. :\Iartin, 1 Cox 20. 2 Seotl, 123: Fmicli v. :\Iacale. 2 Dm. & War. 274: Dooloy v. Watson. 1 (Jray. 414: Amanda Consol. (i. ^l. Co. v. People's M. & M. Co., 28 Colo. 251, 64 Pae. 218. -Fox V. Scard, 33 Beav. 327, per Sir J. Eomilly. M. R. 1 Woodward v. Gyles, 20 Vern. 119, 2 Scott, 121: Amanda Consol. G. M. Po, V. People's M. & M. Co., 28 Colo. 2.51, 64 Pae. 218: Halin v. Concordia Soc, 4t. Md. 460. 22o CONCKKNINU PENALTIES AND FOKFEITUIIES. 450 courts of equity incline strongly to construe such stipulations as Droviding for a penalty rather than for liquidated damages. § 448. Forfeiture. — This subject includes two entirely distinct (questions, namely: When will equity interfere to aid the default- ing party, and to relieve against a forfeiture by setting it aside, or by allowing him to go on and perform as though it had not oc- curred, or by restraining the other party from enforcing it? and when Avill equity interfere at the suit of the creditor party, and by its decree actively enforce and carry into effect the forfeiture against the one in default? The former of these questions will be examined first in order. 5< 449. When Equity will Relieve. — It has been repeatedly as- sumed and asserted by numerous judicial dicta, and the statement seems to have been accepted by many text-writers as correct, that a court of equity is governed by the same doctrine with respect to relief against forfeitures and against penalties. This is true, perhaps, when considered simply as the announcement of a rule in its most general form; but in its practical application it is subject to such important exceptions and limitation that there is, in fact, c marked distinction betAveen forfeitures and penaltieK in the view with which they are respectively regarded and dealt vvith by equity. We have seen that wherever a certain sum is stipulated to be paid as security for the performance of some act which is capable of pecuniary measurement, so that the compensation in the nature of damages for a non-performance can be ascertained with reasonable exactness, the certain sum is taken to be a penalty, and that courts strongly lean in favor of a construction which shall make it a penalty, so that it may be disregarded. This is not universally true, is not the practical test in case of forfeitures, al- though, perhaps, the court may use the same general formula ot. words as applicable to both instances. §450. Ground and Extent of Such Relief.— It is well settled that where the agreement secured is simply one for the payment of money, a forfeiture either of land, chattels, securities, or money, incurred by its non-performance, will be set aside on behalf of the defaulting party, or relieved against in any other manner made necessary by the circumstances of the case, on payment of the debt, interest, and costs, if any have accrued, unless by his in- equitable conduct he has debarred .himself from the remedial right, or unless the remedy is prohibited, under the special circiimstances of the case, by some other controlling doctrine of equity.^ Where the stipulation, however, is intended to secure the performance 'Tihbells V. Cato. GG N. II. 5.50. 22 Atl. 559; Noyes v. Anderson, 124 N. Y, 175, -iG X. E. 31G, 21 Am. St. Rep. G57. § 451 EQUITY JUKISrUUDE-N-CK. 22i or non-performance of some act in pais, it is impossible to lay down an}" such general rule with which all the classes of decisions shall harmonize. It is certain that if the act is of such a nature that its value cannot be pecuniarily measured, if the compensation for a default cannot be ascertained and fixed with reasonable pi'eeision, relief against the forfeiture incurred by its non-perform- ance will not, under ordinary circumstances, be given.^ The affirm- ative of this proposition cannot be stated as a rule with the same generality. It has, indeed, been said that equity would relieve against forfeitures in all cases where compensation can be made; bnt this is clearly incorrect. It is well settled that a court of equity will not, under ordinary circumstances, set aside forfeitures in- curred on the breach of many covenants contained in leases, or of stipulations in other agreements, although the compensation for the resulting injury could be ascertained without difficulty;" and on the other hand, the relief is often given, as will appear from subsequent paragraphs, where the agreement secured by the clause of forfeiture is not one expressly and simply for the payment of money. The following proposition seems to be a conclusion fairly drawn from all the decisions upon the subject, and to be an ac- curate and comprehensive statement of the general doctrine as set- tled by them, namely: In the absence of special circumstances giving the defaulting party a higher remedial right, a court of equity will set aside or otherwise relieve against a forfeiture, both when it is incurred on the breach of an agreement expressly and simply for the payment of money, and also on the breach of an agreement of which the obligation, although indirectly, is yet sub- stantially a pecuniary one. iv 451. Forfeiture Occasioned by Accident, Fraud, Surprise, or Ignorance. — There are, as intimated above, special circumstances which will entitle a defaulting party to relief against a forfeiture in cases where otherwise it would not be granted. Although the agreement is not one measurable by a pecuniary compensation, still, if the party bound by it has been prevented from an exact ful- fillment, so that a forfeiture is incurred, by unavoidable accident, by fraud, by surprise, or by ignorance, not willful, a court of equity will interpose and relieve him from the forfeiture so caused, upon his making compensation, if necessary, or doing everything else within his power.^ Also, in the same class of cases, and upon the == Croft V. Goldsmid. 24 Beav. 312: Klein v. New York Life Ins. Co., 104 U. S. 88, (non-payment of life insurance premium) ; Skinner v. Dayton, 2 Johns. Ch. ,5^6. * White V. Warner^ 2 ]\Ier. 459. 'Hill V. Barclay, 18 Ves. 58; Wing v. Harvey, 5 De Gex, M. & G. 26.5: Kopper 22b coxcEUXiXG ri:xAi,Tii:s and i-oiiFinTuitEs. § 133 same equitable grounds, if there has been a breach of the au'ree- ment sufficient to cause a forfeiture, and the party entitled thereto, either expressly or by his conduct, waives it or acquiesces in it, he will be precluded from enforcing the forfeiture, and equity will aid the defaulting party by relieving against it, if necessary.- For a like reason a court of equity may set aside or disregard a for- feiture occasioned by a failure to comply with the very letter of an agreement when it has nevertheless been substantially per- formed.^ § 452. Forfeiture Willful or through Negligence. — While a de- faulting party may thus acquire a right to the equitable relief from the conduct of the other party, he may also lose the right, which otherwise would have existed, as a consequence of his own con- duct. In a case where an agreement creates a mere pecuniary obligation, so that a forfeiture incurred by its breach would ordi- narily be set aside, a court of equity will refuse to aid a defaulting party, and relieve against a forfeiture, if his violation of the con- tract was the result of gross negligence, or was willful and per- sistent. He who asks help from a court of equity must himself be free from inequitable conduct with respect to the same subject- matter.^ Having thus exhibited the doctrine in its general form, I shall briefly describe the most important instances of its applica- tion, namely: to conditions and covenants in leases; to conditions in contracts for the sale of land; to particular stipulations in other contracts; to the forfeiture of shares of stock: and to for- feitures' created by statute. § 453. Forfeitures Arising from Covenants in Leases. — Where a lease contains a condition that the lessor may re-enter and put an end to the lessee's estate, or even that the lease shall be void, Uijon the lessee's failure to pay the rent at the time specified, it is well settled that a court of equity will relieve the lessee and set aside a forfeiture incurred by his breach of the conditions, whether the lessor has or has not entered and dispossessed the tenant. This rule is based upon the notion that such condition and forfeiture are intended merely as a security for the payment of money.^ V. Dyer, 59 Vt. 477, 59 Am. St. Rep. 742. 12 Atl. 4, H. & B. IfiG, 1 Scott 400 (an instructive opinion) ; IMactier v. Osborn. 146 Mas.s. 399, 15 X. E. ()41, 4 Am. St. Kep. 323. See §§ 826. 833. post. - Pokegania Sutjar Pine Lumber Co. v. Klamath River L. & T. Co., 96 Fed. 34; Helme v. Philadelphia Ins. Co., 61 Pa. St. 107. 100 Am. Dec. 621. "Bliley v. Wheeler, 5 Colo. Apj). 287, 38 Pac. 603: Ha<>ar v. Buck. 44 Vt. 285, 8 Am. Rep. 368. ^ Hancock v. Carlton. 6 Gray, 39: X. Y. & X. F.. R. R. Co. v. City of Providence, 16 R. r. 746, 19 Atl. 759. *Lundin v. Schoeffel, 167 IMass. 465. 45 X. E. 933; Sunday Lake Min. Co. V. Wakefield, 72 Wis. 204, 39 X. W. 136. 15 § 457 EQUITY JURISPRUDENCE. 2'2G § 454. Equity will not, under ordinary circumstances, relieve against a forfeiture arising- from the breach of other covenants contained in a lease, on the ground that no exact compensation can be made. Among these covenants for a breach of w^hich no relief can ordinarily be given is that to repair generall}-, or to make specific repairs, or to lay out a certain sum of money in repairs or erections within a specific time -j^ the covenant to in- sure;- the covenant not to assign without license;^ and in other covenants of a special nature.* It should be observed, however, that in all cases of this class relief may be given when the breach was the result of fraud, mistake, accident, surprise, and the like, or was acquiesced in or waived by the lessor.^ § 455. From Contracts for the Sale of Land. — ^ § 456. From Other Contracts. — In all other special contracts containing provisions for a forfeiture, the same general principle must, of course, be applied, although there may be some doubt or difficulty in the application. It is clear that if the contract be of such a nature that a clause for the payment of a certain sum upon its violation would be pronounced a provision for liquidated damages, then a court of equity would grant no relief against a forfeiture incurred by its non-performance. On the other hand, if the obligation created by the contract is substantially, though perhaps indirectly, a pecuniary one, then a court of equity un- doubtedly will aid the defaulting party by setting aside a forfei- ture. Between these two extremes there is a mass of agreements with respect of which the action of the courts in giving relief may perhaps be regarded as somewhat discretionary. The mere fact that a certain sum stipulated to be paid upon a violation would be treated as a penalty is not of itself decisive in favor of a relief from forfeiture in similar cases. The examples given in the note will serve to illustrate the action of courts in dealing with such agreements.^ § 457. Of Shares of Stock. — A forfeiture of the shares of stock in a corporation, regularly and duly incurred by the stockholder's 'Hill V. Barclay, 16 Ves. 403, 406, 18 Ves. 58, 61; Croft v. Goldsniid, 24 Beav. 312.. ^Reynolds v. Pitt, 19 Ves. 134; White v. Warner, 2 Mer. 459. •■'Barrow v. Trustees (1891), 1 Q. B. 417. 'Hills V. Rowland, 4 De Gex, M. & G. 430; Maeher v. Foundling Hospital. 1 Ves. & B. 187 ; Monroe v. Armstrong, 96 Pa. St. 307. * See ante, § 451, and case in note. ' See post, § 1408, note. ' Wilson V. Mayor, etc., of Baltimore. 83 Md. 203. .-5 Am. St. Rep. 330. 34 Atl. 774 (relief) ; Gregg v. Landis, 19 X. J. Eq. 850. 21 N. J. Eq. 494, 514 (no relief) ; Tennessee Mfg. Co. v. James. 91 Tenn. 154, 18 S. W. 262. 30 Am. St. Hop. 865, 15 L. R. A. 211 (no relief); Henry v. Tupper, 29 Vt. 358 (relief). 227 COXCERXIXG PEXALTIES AND FORFEITURES. , § i")!) or subscriber ■« failure to pay the calls or iustalhnents thereon ac- cording to the charter or by-laws of the company, will not be set aside or relieved against by a court of equity; and the same is true of a forfeiture of public and governmental stock by reason of a failure to comply with the terms of the loan concerning pay- inent.^ § 458. When Imposed by Statute. — Finally, whenever any for- feiture is provided for by a statute, to be incurred on the doing oi not doing some specified act, equity can afford no relief from it, and the same is true of a statutory penalty. A court of equity has no power to disregard or set aside the express terms of statutory legislation, however much it may interfere with the operation of common-law rules/ § 459. Equity will not Enforce Forfeitures. — The second ques- tion which it Avas proposed to consider is. When will a court of equity by its decree actively enforce or carry into effect a for- feiture? The general answer to this question is easy and clear. It is a well-settled and familiar doctrine that a court of equity will not interfere ,on behalf of the party entitled thereto, and enforce a forfeiture, but will leave him to his legal remedies, if any, even though the case might be one in which no equitable relief would be given to the defaulting party against the forfeiture. The few apparent exceptions to this doctrine are not real exceptions, since they all depend upon other rules and principles.^ The reasons of the doctrine are to be found in the universal principle that a court of equity refuses to aid any party who, by the remedy which ho seeks to obtain against his adversary, is not himself doing equity, or who does not come before the court "with clean hands," — the same principle upon which the court acts when it refuses to speci- fically enforce a contract which is unequal, unjust, or has any inequitable features and incident. * Sparks v. Company, etc., of Liverpool Water Works, 13 Ves. 428, 433, 434: Southern B. & L. Ass'n. v. Anniston, 101 Ala. 582, 46 Am. St. Rep. 138, 15 Soutli. 123, 29 L. R. A. 120. 'State V. McBride, 70 Ala. 51: State v. Hall. 70 Miss. 678, 13 South. 39. -"Oil Creek R. R. v. Atlantic, etc. R. R., 57 Pa. St. 65: Worthington v. Moon. 53 N. J. Eq. 46, 30 Atl. 251; Craig v. Hukill, 37 W. Va. 250, 16 S. E. 3();! H. & B. 60. EQUITY JL'RISPKUDENCK. Tli: SECTION II. CONCERNING ELECTION. ANALYSIS. § 461. Questions stated. §§ 462-465. Rationale of the (loctriue discussed. ^ 463. In the Roman law. i) 464. Foundation, the presumed intention of the donor. § 465. The true foundation is the principle, He who seeks equity must do equity. §S 466-470. Meaninir, extent, and efl'ects of the doctrine. § 466. Election in conformity with instrument of donation. §§ 467,468. Election in opposition thereto: rules; compensation. § 469. No election unless compensation can be inade. § 470. Applies to all instruments of donation. §§ 471-505. Applications: classes of cases in wliicli the necessity for an elec- tion does or does not arise. § 472. Fundamental rule; what creates the necessity for an election. §§ 473-475. Subordinate rules of interpretation. §§ 473. 474. Donor lias only a partial interest ; evidence of intention not ad- missible; a general gift raises no election. *i 475. Other special rules of interpretation. §§ 476-486. First class: Donor gives property wholly another's. § 477. Ordinary case, gift of specific property. §§ 478-480. Cnder appointments in pursuance of powers. §§ 481-486. Where testator has attempted to give property by a will whicli is inefiectual. S 482. Infancy or coverture of testator. § 483. Will valid as to personal, invalid as to real estate. § 484. Will invalid as to property in another state or covmtry. S 485. Will devising after-acquired lands. § 486. Will of copyholds. §'S 487-505. Hecond class: Donor gives property in which he has a partial in- terest. § 488. The general "doctrine. § 489. Donor owns only an undivided share. § 490. Donor owns only a future interest. § 491. Devise of lands encumbered. §§ 492-502. Dower; widow's election between dower and gifts by her hus- band's A\dll. § 493. The general rule. § 494. Contrarj' legislation in the various states. §§ 495-502. Classes of testamentary dispositions. § 496. Express declaration. § 497. Devise of a part of testator's land to the widow, and the rest to othei's. § 498. Devise to the widow for life. § 499. Devise in trust to sell, or with a power of sale. § 500. (iift of an annuity, etc., to widow, charged upon the lands devised to others. 22^ tONCEKNING Kl.KCTIOX. § -l^iS § 501. Devise with express power ot occupyinj,'. leasiiifj, etc. § 502. Devise to widow and others in equal shares. §§ 503-505. Election in devises of community property. § 50tj. The remaining qviestions stated. §§ 5()7-510. Who may elect; married women; infants; lunatics. §§ 511,512. Rights and privileges of persons bound to elect. § 513. Time of election; state statutes. S$ 514,515. Mode of election, express or implied; conduct amounting to an election. §§ 51U, 517. Ell'ects of an election. §§ 518,519. Equitable jurisdiction in matters of election. § 462. Rationale of the Doctrine. — The essential facts present- ing an occasion for the doctrine of election are: A gives to B property belonging to C, and by the same instrnment gives to C other property belonging to himself. The equitable doctrine upon these facts, briefly, is: C has two alternatives: 1. He may elect to take under the instrument, and to carry out all its provisions; ho will then take A's property, which was given to him. and B will take C's property. 2. "He may elect against the instrument. In tliat ease he will not wholly forfeit the benefits intended to be conferred upon him ; he must surrender only so much of such benefits as may be necessary to compensate B for the disappoint- ment he has suffered by C's election to take against the instru- ment. . . . § 465. True Foundation. — ... I venture the assertion that the only true basis upon which the doctrine can be rested is that maintained in the preceding chapter, namely, the grand principle that he who seeks equity must do equity. This principle has or- dinarily been regarded simply as furnishing a guide to the courts in their apportionment of equitable relief among the parties in a great variety of eases; but, as I have shown, it is also the un- deniable source of certain distinctively equitable doctrines. There is no doctrine more unmistakably and completely derived fi'om this grand principle than that of election. The whole theory and pro- cess of election is a practical application of the maxim. He Avho .^eeks equity must do equity. A party asserts his claim to certain property: in order that he may obtain any relief, he must acknowl- edge and make provision for the equitable rights of other parties o'c-rived from the same instrument, and to that end must make his election, so that in either choice those rights shall be preserved. The very election which he is obliged to make consists in the "do- ing equity" to others which the principle demands. . . . i; 468. Compensation the Result. — In any case for an election, M-here the party upon whom the necessity devolves elects to take in opposition to the instiument of donation, and therefore retains § 412 EQUITY JUKIbl'UlDEXCE. 230 his own estate which had been bestowed upon the third person, does he thereby lose all claim upon or benefit of the donor's prop- erty given to himself? or does he only lose such part of it or so much of its value as may be needed to indemnify the disappointed third person? In adjusting- the equities between himself and the third person, must he necessarily surrender to that person the entire gift made to himself? or must he simply make adequate com- pensation ? Few, if any, of the cases have required a decision of this question ;^ and what has been said concerning it has chiefly been by way of argument and of judicial dictum. The rule may be regarded, however, as settled by the weight of judicial opinion very strongly in favor of compensating the donee who is disappointed by an election against the instrument. If the gift which he takes by Avay of substitution is not sufficient in value to indemnify him for that which he has lost, he of course retains the Mdiole of it." § 470. Doctrine Applies Both to Wills and Deeds. — It may be added that the doctrine of election, as generally described in the foregoing paragraphs, applies to all ihstruments of donation, — to deeds, settlements, and the like, as well as to wills, — although the cases involving it have most frequently arisen under wills. ^ . . § 472. Fundamental Rule. — The first and fundamental rule, of which all the others are little more than corollaries, is: In order to create the necessity for an election, there must appear upon the face of the will itself, or of the other instrument of donation, a clear, unmistakable intention, on the part of the testator or other ^ The reason i^ very plain. A person compelled to elect will generally be influenced, in making the election, solely by his gwti pecuniary interests. If (lie property bequeathed to himself by a will is more valuable than his own. he naturally elects to take under the will, and lets his own estate go to the third person. If the property bequeathed to himself be less valuable than his own, lie elects to take against the will and retains his o^\^l. It is then of no consequence whether the principle adopted with reference to the bequest made to iiimself be forfeitiu'e or compensation, since the whole subject-matter is in- sulRcient to indemnify the disappointed legatee. In other words, the third person takes all the bequest in question, and must be satisfied with it, for he has no right to anything more. The question would arise in such a case as the following: A testator bequeaths fifty thousand dollars to A, and devises to B an old family estate of which A is the owner in fee. and which is worth only twenty thousand dollars. A, from attachment to the family estate, elects to keep it, and thus to take in opposition to the will. Is B then entitled to the whole fifty thousand dollars? or only to twenty thousand dollars of it. — the value of the estate wliich he loses by the election. — so that the balance of the thirty thousand dollars wouKl still belong to A? The latter alternative is the view taken by the weight of authority. Barrier v. Kelly (Miss.). ;^,'5 South. 074. ^Rogers v. .Tones, 3 Ch. Div. OSS, H. & B. 1.31: Barrier v. Kelly (Miss.), 33 .South. 974. 'Mosley v. Ward, 29 Beav. 407. •^;J1 CONCKUXIXG KLECTIOX. , § ^'^•'> donor, to dispose of property which is in fact not his' own. Tliis intention to dispose of property which in fact belonj>s to another, and is not within the donor's power of disposition, must appear from lanKugage of the instriinient which is unequivocal, which leaves no doubt as to tlie donor's design; the necessity of an elec- tion can never exist from an uncertain or dubious interpretation v)f the clause of donation. It is the settled rule that no ease for an election arises unless the gift to one beneficiary is irreconcilable with an estate, interest, or right which another donee is called upon to reiincpiish; if both gifts can, upon any interpretation of which the language is reasonably susceptible, stand together, then an elec- tion is unnecessary. The instrument may declare in express terms that the gift to A must be accepted by him in lieu of his own in- terest, which is thereby transferred to B, and then no possible doubt could exist. But this direct mode of exhibiting the donor's purpose is not indispensable. It is sufficient if the dispositions of the instrument, fairly and reasonably interpreted, exhibit a clear intention of the donor to bestow upon B some estate, interest, or right of property, which is not the donor's, but which belongs to A. liI)Hrn. 5!i Wis. 483. 501. 48 Am. Rep. 532, 17 N. W. 289. MXilson V. Tlionibury, L. R. 10 Cli. 23!), 248, 249; Maeknet v. Maeknet, 29 X. J. Eq. 54. § 514 EQUITY JURISl'KUDEXCE. 238 under a mistake as to the real condition and value of the properties, or under a mistake as to the real nature and extent of the party's own rights, such a mistake is regarded as one of fact, rather than of law; the election itself is not binding, and a court of equitable powers will permit it to be revoked, unless the rights of third persons have intervened which would be interfered with by the revocation.- This particular rule must necessaril}' have been ma- terially modified by the statutes in many states, which declare in positive terms that an election by widows can only be made within a certain prescribed period, and that if they suffer the time to elapse without taking any step, they shall be deemed to have elected, or to have abandoned the right of electing; and so the decisions seem to hold. § 513. Time of Election. — . . , Under the purely equitable doctrines, unmodified by statute, there is, as it seems, no limit in point of time to a right to elect, unless it can be shown that injury would result to third persons by delay.^ Nevertheless it is clear that by the acquiescence and dela}' of the one entitled to elect, third persons may acquire rights in the property originally subject to an election, which equity W'ill not suffer to be disturbed by means of a subsequent election.- It seems, on the other hand, that a person having the right to compel an election does not, in gen- eial, forfeit the right by a delay in its enforcement." These purely equitable rules, at least so far as they affect widows electing be- tween testamentary benefits and dower, have been greatly modified by legislation in this country. In very many of the states statutes have been passed which prescribe definite periods of time wnthin which the right of election between dowser and a provision made by will must be exercised.* ^ 514. Mode of Election, Express or Implied — What Conduct Amounts to an Election. — Independently of the statutes referred to in the foregoing paragraph, wdiieh have altered the equitable rules on the subject in very many states, an election may be either express or implied. An express election is made by some single unequivocal act of the party, accompanied by language showing his intention to elect, and the fact of his electing in a positive, unmistakable manner, — as. for example, by the execution of a written instrument declaring the election. As the election becomes = Mackiiet v. Macknet. 29 X. J. Eq. 54: Woodhuvn's Estate. 138 Pa. St. 60G, 21 Am. St. Rep. 932, 21 Atl. Ki; Evans's Appeal, 51 Conn. 435. ^ Sopwith V. IMaugham, 30 Boa v. 235. "Tihbitts V. Tihbitts, 19 Ves. f.G3. 'Spread v. Morgan, 11 H. L. Cas. 588. *Lord V. Lord, 23 Conn. 327: Akin v. Kellogg. 119 K. Y. 441, 23 N. E. 1046. 239 COXCERNIXG ELECTION. § 51G fixed by such a definite act, and at such precise time, no questions concerning it can arise. § 515, Implied. — An election 2nay also be implied — that is, in- ferred — from the conduct of the party, his acts, omissions, modes of dealing with either property, acceptance of rents and profits, and the like. Courts of equity have never laid down any rule determining for all cases w4iat conduct shall amount to an implied election, but each case must depend in great measure upon its own circumstances.^ The following rules, however, have been fairly settled by the courts as guides in determining the general ques- tion. To raise an inference of election from the partj^'s conduct merely, it must appear that he knew of his riglit to elect, and not merely of the instrument giving such right, and that he had full knowledge of all the facts concerning the properties.- As an elec- tion is necessarily a definite choice by the party to take one of the properties and to reject the other, his conduct, in order that an election may be inferred, must be done with an intention to elect, and must show such an intention. The intention, however, may be inferred from a series of unequivocal acts.^ . . . The rule seems to be plainly deducible from the American cases which are placed in the note, that where a widow is required to elect between a testamentary provision in her favor and her dower, any unequivocal act of dealing with the property given by the will as her own, or the exercise of any unmistakable act of ownership over it, if done w^ith knowledge of her right to elect, and not through a clear mistake as to the condition and value of the prop- erty, will be deemed an election by her to take under the will, and to reject her dower.'*. § 516. EfiFects of an Election. — . . . Where an election is once made by the party hound to elect, either expressly or inferred from his conduct, it binds not only himself, but also those parties who claim under him, his representatives and heirs. ^ . . . § 517. The other parties interested as donees under the instru- ment creating the necessity for an election are affected by it, when made, in the following manner: If the person on whom the duty of electing rests elects to take in conformity with the will or ^Padbury v. Clark, 2 Macn. & G., 298; Whitridge v. Parkhurst, 20 ]^Id. 62, 72. -iSopwith V. Maugham, 30 Beav. 231. ^Spread v. Morgan, 11 H. L. Cas. 58S -. Wilson v. Tliornlmrv. L. Pv. 10 C'li. 239. 248, 249; Penn v. Guggenheimer, 70 Vn. 839, H. & B. 123; Estate o/ Smith, 108 Cal. 115, 40 Pac. 1037. 'Penn v. Guggenheimer, 70 Va. 839, 8.50, H. & B. 123; Pratt v. Douglas, 38 K. J. Eq. 51 G, .5.38. ^ Penn v. Guggenheimer, 76 Va. 839, 851, H. & B. 123. §517 EQUITY JUKlisPKUDEXCE. 240 other instrument of donation, he thereby relinquishes his own prop- ert}^ and must release or convey it to the donee upon whom the instrument had assumed to confer it.^ If he elects against the will or other instrument of donation, he thereby retains his own prop- erty, and must compensate the disappointed donee out of the e.^tate given to himself by the donor. A court of equity will then sequester the benefits intended for the electing beneficiary, in order to secure compensation to those persons whom his election disappoints." SECTION III. COXCERNI NG SATIHFACTJ OX. ANALYSIS. § 520. Questions stated. § 521. Definition. §§ 522-525. Various conditions of fact. § 523. Rationale of the doctrine. § 524. Ademption and satisfaction. § 525. Extrinsic evidence. § 526. Divisions of the subject. §§ 527-543. 1. Satisfaction of (h'l>ts l)y legacies. §§ 527-540. Legacy bj' a debtor to his creditor. §§ 528-530. Various circumstances uhich prevent tlie presumption of satis- faction. § 537. Direction in \\ ill to pay debts. S 53S. Legacy in pursuance of agreement, or in express jiaymeat. S 530. Debt owing to a cliild or wife. § 540. Debt to child satisfied by an advancement. §§ 541,542. Legacy by a creditor to his debtor. § 543. Satisfaction of debt, how enforced. §§ 544-552. 11. Satisfaction of legacies by subsequent legacies, 5} 545. Rule first: Specific legacies. §§ 54T5-548. Rule second: Legacies of (juantity by difTerent instruments. § 549. Rule third: Legacies of equal amounts by the same instrument. M 550.551. Rule fourth: Legacies of unequal amounts by the same instru- ment. § 552. Extrinsic evidence. §§ 553-504. 111. Satisfaction of legacies by portions and advancements. § 5.54. Presumption of satisfaction. § 555. Subsequent gift less than the legacy. § 550. Person in loco parentis. ^See Hibbs v. Insurance Co., 40 Oliio St. 543: (aulficld v. Sullixan, S5 X. Y. 153. niogers V. Jones. 3 C'li. Div. OSS. 11. & !'.. 131 : \"aa Dyke's Appeal, 00 Pa. St. 490, H. & P.. 130; Wilbanks v. Wilbank^. IS 111. 17, 11. & IT. 129. Ji41 CONCEUMNG SATibi ACTION. § 52((' §§ 557-oGO. Circumstances which do or do not prevent the presumjjtion. § 559. Payment to husband of a female legatee. § 560. \Miat prevents tlie presumption. § 5G1. Effect of a codicil. § 562. Satisfaction of legacies between strangers. §§ 563,504. Satisfaction, when not presumed, but expressed. §§ 565-568. IV. Satisfaction of portions by subsequent legacies, or other simi- lar provisions. §§ 566, 567. Differences between tlie gifts which do not and which do defeat the presumption. § 568. Election by the beneficiary. §§ 569-577. V. Admissibility and effect of extrinsic evidence. § 570. General principles discussed and explained. §§ 571—575. \A'l»en the subsequent benefit is given by writing. § 572. The writing expressly states the donor's intention. § 573. The Avriting silent as to donor's intention, and no jiresumption of satisfaction arises from it. § 574. The -writing silent as to donor's intention, but a presumption of satisfaction arises from it. § 575. Cases to which the foregoing rules apply. ^ 576. \\'hen the subsequent benefit is given verbally. § 577. Amount of evidence. § 521. Definition. — Satisfaction may be defined, in a general manner, to be the donation of a thing, with the intention, either expressed or implied, that it is to be taken either wholly or in part in extinguishment, by way of substitution, of .some prior claim in favor of the donee. The equitable doctrine of satisfaction, con- sidered in all its aspects, arises in four general classes of cases, namely: Satisfaction of debts by legacies; satisfaction of legacies l)y subsequent legacies ; satisfaction of portions by legacies ; and satisfaction of legacies by portions or advancements. i; 527. I. Satisfaction of Debts by Legacies — Legacy by a ■Debtor to his Creditor. — The general rule as stated by Sir J. Trevor, ]M. R., in the leading case of Talbot v. Dnke of Shrewsbury,^ is as follows: "If one, being indebted to another in a sum of money, does by his will give him a sum of money as great as or greater than the debt, without taking any notice at all of the debt, this shall nevertheless be in satisfaction of the debt, so that he shall not have both the debt and the legacy." A¥herever this rule operates, and the presumption of satisfaction arises, the creditor-legatee is of course put to his election : if he claims the legacy, he cannot en- force the debt; if he enforces the debt, he cannot obtain the legacy. It is also proper to remark that a debtor-testator can always thus put his creditor to an election, by accompanying his testamentary gift, whatever be its nature or amount, with words sufficiently in- dicating his inte)itiuii that it is made and must be received in lieu Tree. Cli. 394, 2 Lead. Cas. Eq. 4th Am. Ed. 75L 16 § 538 EC^UITY JURISPRUDEXCE. ;342 and satisfaction of the debt.- This general rule, being based upon artificial reasoning, has been distinctly condemned by able judges. Tl is not favored by courts of equity; on the contrary, they lean s'lrongly against the presumption, will apply it only in cases which fall exactly within the rule, and will never enlarge its operation.^ § 528. What Prevents the Presumption. — In consequence of this .'^trong leaning against the presumption, it is well settled that courts of equity will take hold of very slight circumstances con- nected with any particular case, and will regard them as sufficient to remove the case from the operation of the general rule, and to prevent the presumption of a satisfaction from arising.^ In fact, the discussion of the general doctrine chiefly consists in the state- ment and description of these facts and circumstances which i)re- vent its application. The following are the important instances, as settled by the decisions, in which the presumption of a satis- faction is thus overcome. ^ 529. Legacy Less than the Debt. — >; 530. Legacy Payable at a Different Time from the Debt. — A It'fj'aey payable at a different time from the debt will not be a satisfaction thereof, even though it may be equal in amount to or greater than the debt.^ ^ 531. Legacy Contingent or Uncertain.— ^ 532. Legacy of a Different Nature or for a Different Interest. — Tlie general presumption of a satisfaction does not arise where tlie legacy is given for a different interest, or is of a different na- ture from the debt, — as where the debt is a specific sum, and the bequest is of an annuity. For this reason a devise of lands or Ijcquest of specific chattels or securities will not be a satisfaction of a pecuniary liability.^ §533. Motive for the Gift Stated.— § 534. The Debt Contingent or Uncertain. — § 535. The Debt Subsequently Contracted. — § 536, Different Interests or Rights in the Debt and Legacy. — 5; 537. Direction in Will to Pay Debts.— i; 538, Legacy in Pursuance of Agreement or in Express Pay- ment. — ... It is therefore well settled that if one person renders any services to another upon an understanding or arrangement that he is to be remunerated therefor by a testamentary benefit, - Strong V. Williams. 12 Mass. 380, 7 Am. Dec. 81, H. & B. 140. Sliep. 127; In re Pletclior, L. R. 38 Ch. DIv. 373. •' Richardson v. Greese. 3 Atk. 65. SStrong V. Williams, 12 Mass. 389, 7 Am. Doe. 81. H. & B. 140. Shep. 127. ' VanRiper v. VanRiper. 2 N. .7. Eq. 1 ; In ro Horlock (1895), 1 Ch. 516, * Cloud V. Clinkinbeard, 8 B. Men. 397, 49 Am. Dec. 397. 243 co^'c•Kl;^•l^•(i satlsfactiox. §511 and the party receiving- the services afterwards makes a bequest or devise in his will in favor of the other, which is in its amount and value a reasonably sufficient compensation, such testamentary provision is a satisfaction, and the creditor party cannot enforce his demand as a debt by an action against the estate.^ It would seem that, under these circumstances, the creditor party Avould not even have an election, since he had agreed to look to the testa- mentary benefit alone for compensation. This result, however, must evidently depend upon the terms of the original agreement, in pur- suance of which the services were rendered. Wherever, also, there being an existing indebtedness, it is agreed between the parties, either expressly or impliedly, that it shall be paid by some benefit bestowed in the debtor's will, and a testamentary provision is sub- se(iuently made in favor of the creditor, which he accepts, his de- mand will thereby be satisfied; he cannot both take the bequest and enforce his debt as a subsisting claim against the estate. In this case, however, the creditor clearly has an election either to accept the bequest in satisfaction of his pre-existing demand, or to renounce the gift and enforce the demand. - § 539. Debt Owing- to a Child or Wife. — AVhere a father, or per- son standing in loco parentis, owes an ordinanj debt, arising in any manner, to his child, or to the one occupying the position of ctiild, and while the debt is subsisting- gives a legacy to .such child, or to the one so treated as a child, the case is governed in every re- spect, both with regard to the general presumption of a satisfaction and the facts Avhich rebut the presumption, b}^ the same rules which apply to a debtor and creditor who are strangers to each other. ^ The same is true of a legacy given by a husband to his wife when he is indebted to her by any ordinary species of indebtedness. - § 541. Legacy by a Creditor to his Debtor. — A testamentary gift f]'om a creditor to a debtor stands upon an entirely different foot- ing from one by a debtor to his creditor, which was examined in the preceding- paragraphs. A legacy from a creditor to his debtor, unaccompanied by language in the will or exterior to it expressly showing the special intent, wdiether ecjual to, greater or less than. the debt, raises no presumption whatever, either of law or of fact, that the testator intended thereby to excuse, release, or discharge the debt, so that the lesratee would be entitled to claim and receive the whole amount bequeathed, but would be freed from all liability to pay the debt. In fact, such a legacy produces no efit'ect upon » Eaton V. Benton. 2 Ilill 570. r>78. = Williams v. Crary. 5 Cow. 3fi8. S Cow. 246. 4 Wonrl. 443. U^illiam v. Cliancellor. 43 IMiss. 437, 5 Am. Rep. 498. ^Cilliam v. ClunKellor. 43 :Miss. 437. 5 Am. Hep. 4!)S. § 046 EQUITY JURI;7'J. Definition. §§ .580-583. 1. Covenant to purchase and settle or convey, § 5S0. General rule: J^echniere v. Earl of Carlisle. § 581. Forms of covenant to which the rule applies. § 582. fSpecial rules. § 583. Such covenant creates no lien. §§ 584-586. 11. Covenant to bequeath personal property. § 584. (jteneral rule: Blandy v. Widniore; Goldsmid v. Goldsniid. § 585. Limitations on the rule] covenant must not create a debt in life- time of deceased. § 586. A legacy not a performance; distinction between "performance" and "satisfaction of legacy." § 587. Presumption of pei-formance by tmstees. §§ 588-590. ileritorious or imperfect consideration; theory of. §§ 589.590. Defective execution of powers: relief of. § 590. Requisites for such relief; a partial execution necessary. ^ 579. Definition. — From the foregoing analysis it appears that the equity of Performance should be defined, or rather described, as follows: When a person has definitely bound himself to do a certain act, by which a particular kind of thing will be bestowed upon another in a specified manner, and instead thereof he either bestows the same kind of thing upon the obligee in a diffe^-ent manner, or else permits the same kind of thing to devolve upon the obligee in course and by operation of law, so that what is thus done or permitted may amount to a complete or partial fulfillment of the existing obligation, then the party will be presumed to have done or permitted this with tlio intoniion of performing the very obligation itself in whole or in part, and the obligation will be thus wholly or partially performed, as the case may be. Equity imputes to the party an intention of fulfilling the obligation resting upon him, rather than the intention of violating that duty, or of conferring a mere bounty. Equity thus says, not only that a man shoulrl be, but that he i.s, just before he is generous. The eases involving this doctrine may be arranged, for purposes of con- venience, into two classes: 1. Where a person covenants to pur- chase and settle, or to purchase and convey, lands, and he after- wards purchases such lands without expressing any purpose for which the purchase is made, and does not convey or settle them § 588 EQUITY JURISPRUDENCE. 252 ill pursuance of his covenant;^ 2. Where a person covenants to h^ave property by will, and he does not make the bequest, but on his death the covenantee receives the same kind of property by suc- cession. These two classes will be examined separately.' jj 587. Presumption of Performance by Trustees.^ — § 588. Meritorious or Imperfect Consideration. — Closely akin to the equity of performance, and properly a special instance of it, is that of meritorious or imperfect consideration. Indeed, all cases of satisfaction and of performance have been treated by some writ- ers as applications of this equity. All agreements, so far as the binding efficacy of their promises is concerned, must be referred to one or the other of three causes^ — a valuable consideration, a mere voluntary bounty, or the performance of a moral duty. The first alone is binding at law% and enables the promisee to enforce the obligation against the promisor. The second, Avhile the pro- mise is executory, is a mere nullity, both at law and in equitj'. The -third constitutes the meritorious or imperfect consideration of equity, and is recognized as effective by it within very narrow limits, although not at all by the law. While this species of consid- ei-ation does not render an agreement enforceable against the promisor himself, nor against any one in whose favor he has altered his original intention, yet if an intended gift based upon such meri- torious consideration has been partially and tin perfectly executed or carried into effect by the donor, and if his original intention remains unaltered at his death, then equity Avill, within certain narrow limits, enforce the promise thus imperfecth^ performed, as against a third person claiming merely by operation of law, who has no equally meritorious foundations for his elaim.^ The equity thus described as based upon a meritorious consideration only ex- tends to cases involving the duties either of charity, of paying creditors, or of maintaining a wife and children. This last duty of maintaining children includes persons to wdiom the promisor stands in loco parentis.- The specific cases involving these three kinds of duties to which the doctrine has been applied by courts of equity are the supplying surrenders of copyholds against the heir,^ and the supporting and completing defective executions of MVilcocks V. Wilcocks, 2 Vern. 558; 2 J.ead. Cas. Eq. 833, Sliep. 129, 1 !Seott 324; Lechmere v. Eavl of Carlisle, 3 P. Wms. 211; Deacon v. Smith, 3 Atk. 323, 1 Scott, 327. ' Blandy v. Wi'dniore, 1 P. Wms. 324, 2 Vcrn. 209, 2 Lead. Cas. Eq. 4tli Am. cd. 834, 842,'shep. 12G, 1 Scott, 326. > See post, § 1049. ^Sipley V. Wass, 49 N. J. Eq. 463, 24 Atl. 233. 'See ante, § 556; Powell v. Morisey, 98 X. C. 426, 2 Am. St. Rep, 343, 4 S. E. 185. ^Rodgers v. Marshall, 17 Ves. 294. 253 COXCERNIXG PEKrOK.MAXCE. § 590 powers, where the defect is formal, against the one who woulJ be entitled in remainder. (Since the first of these cases does not exist under our law, it is only necessary to consider the second. § 589. Defective Excution of Powers. — Where ,the defect in the execution is mereh' formal, equity will support, correct, and com- plete the defective execution of powers, as against a remainderman who has no equally meritorious claim, on behalf of the classes of persons in whose favor the "meritorious consideration" exists, — that is, on behalf of charities, purchasers, creditors, children, or wives. The rationale of this doctrine is the following : Although in the absence of a valuable consideration there is no complete obligation restiuii' upon the promisor, yet from the presence of the meritorious consideration there is, in contemplation of equity, as between the meritorious beneficiary and the remainderman posses- sing no equally meritorious claim, . a quasi obligation, — a duty binding between the parties thus situated. An attempt having been made to execute the power, which is only formally defective, equity imputes to the donee in making the attempt an intent to fulfill this quasi obligation. An intent to perform having been thus shown and parti}' accomplished, a court of equity carries it into effect by decreeing a complete performance. The case is thus brought, in appearance at least, within the general principle concerning per- formance, and the equitable maxim which underlies that principle. The rationale thus described may be exceedingly artificial ; it may be in reality unsound and inconsistent with other established prin- ciples; but notwithstanding these objections, the doctrine itself is firmly settled upon the ba.sis of authority.^ § 590. Requisities — A Partial Execution Necessary. — The pow- ers which the doctrine may thus enforce are those given in wills, family settlements, and other similar instruments, and not bare authorities conferred by law. In the first place, there must be an execution of the power by the donee thereof formally defective, or a contract amounting to such a defective execution; otherwise the doctrine does not apply. If there has been no execution at all, the court cannot interfere; for the donee, having an option by the very terms of the power, has shown an intention not to execute. If the defect is substantial, and not formal, the court cannot relieve, for its interposition would then frustrate the inten- tion of the donor, that the power, if executed at all, should ])e executed in a prescribed manner, or by specified means.^ . . . ^Holmes v. Goghill, 7 Ves. 490: Toilet v. Toilet, 2 P. Wms. 489, 2 Ames Eq. Jur. 305, 1 Scott, 420; Freeman v. Eacho, 79 Va. 43. 'Toilet V. Toilet. 2 P. Wms. 489, 2 Ames Eq. Jur. 305, 1 Scott 420; Binghain's Appeal, 64 Pa. St. 345. EQUITY JUKISPRLDENCE. 25i SECTION V. CONCEKM^G .NOTICE. ANALYSIS. § 591. Questions stated: Le >;e\e v. Le Neve. § 592. Knowledge and notice distinguished. § 593. Kinds ; actual and constructive. § 594. Uelinition. §§ 595-603. Actual notice. § 59U. When shown by indirect evidence. § 597. What constitutes; rumors; putting on inquiry, etc. SS 598-002. (Special rules concerning actual notice. ? U03. Eliect of knowledge instead of notice. SS y possession or tenancy. §§ 014,015. General rules. English and American. §§ 016-018. Extent and eliect of the notice. §§ 619-622. Nature and time of the possession. SS 623,024. Whether the presumption is rebuttable or not. § 025. Possession by a tenant or lessee. S§ 020-031. 3. By recitals or references in instruments of title. § 020. General rules. §§ 027-031. Nature and extent of the notice; limitations; instances, etc. SS ()32-040. 4. By lis pendens. § 032. Kationale: Bellamy v. Sabine. S§ 033,(534. General rules: requisites. S§ 035, 036. To what kind of suits the rule applies. S§ 037,038. What persons are affected. §S 039,040. Statutory notice of lis pendens. *iS 641-043. 5. By judgments. §§ 644-605. 0. By recording or registration of instruments. §§ 645,646. (1) Ihc statutory system; abstract of statutes. §§ 647-649. (2) (Jcneral theory, scope, and object of the legislation. §*? 650-054. (3) Requisites of the record, in order that it may be a notice. § 655. (4) Of what the record is a notice. S§ 056-058. (5) To whom the record is a notice. § 057. Not to prior parties. § 058. To subsequent parties holding under the same source of title; effect of a break in the record. §S 659,600. (6) Effect of other kinds of notice, in the absence of a record. 255 coxcEi;xiX(; notice. § 51J1 §§ 6(il-G65. (7) \\ Mat kiiuls of notice will proiluee this cllVct. S G()2. English inlc. §§ 683, G(J4. CoiiHicting American rules: uetiial or constructive notice. § 065. True rationale of notice in place of a record. §§ G66-67G. 7. Notice between principal and agent. S§ G66-GG9. Scope and applications. §§ 670-G75. Requisites of the notice. § G70. (1) Notice must be received by agent during his actual employment. §§ 671,672. (2) And in the same transaction; when in a prior transaction. § 673. (3) Information must be material; presumption that it was com- municated to the principal. g§ 674,675. Exceptions; agent's own fraud. § 676. True rationale of this rule. § 591. Questions Stated. — It has been shown in the preceding chapter that there are two fundamental principles or maxims affect- ing to a greater or less degree nearly the entire body of equity jurisprudence, — nearly the entire administration of equitable rights and remedies, — namely, where there are equal equities, the one which is prior in time must prevail, and where there are equal equities, the hnv must prevail. These two principles necessarily find their most important application in cases, which are constantly arising, where several different, and perhaps successive, equitable, or legal and equitable, interests in or claims upon the same subject- matter exist at the same time, and there is a contest for the pre- cedence among the respective holders of these interests or claims. It has also been shown that the application of these maxims turns upon the question, When are the different equities simultaneously subsisting with respect to the same subject-matter "equal"? or on the other hand, what renders them "unequal," so that one shall have an essential inherent superiority over another? In answering this question, the doctrine of Notice plan's a most important part. When a person is acquiring rights with respect to any subject-matter, the fact whether he is so acting with or without notice of the in- terests or claims of others in or upon the same subject-matter is regarded throughout the whole range of equity jurisprudence as a most material circumstance in determining the extent and even the existence of the rights which he actually acquires. In con- formity with this view, the general rule has been most clearly established, that a purchaser with notice of the right of another is in equity liable to the same extent and in the same manner as the person from whom he made the purchase. The same rule may be thus expressed in someAvhat different language: a person who acquires a legal title or an e(|uitable title or interest in a given snbjeet-matter, even for a valuable consideration, but with notice that the subject-matter is already affected by an ecpiity or equit- able claim in favor of another, takes it subject to that equity or § 592 EQUrrV JLUISl'ltUDEXCE. 2oQ equitable claim. On the other liand, a person who has acquired a title, and paid a valuable consideration, without any notice of an equity actually existing in favor of another, maij by that means obtain a perfect title, and hold the property freed from the prior outstanding equit}'. This general doctrine was formulated by Lord Ilardwicke in a celebrated case in the following emphatic terms: "The ground of it is plainly this: that the taking of a legal estate, after notice of a prior right, makes a person a mala fide purchasev- This is a species of fraud and dolus malus itself; for he knew the- first purchaser had the clear right of the estate, and after knowing that, he takes away the right of another person by getting the legal estate. Now. if a person does not stop his hand, but ^ets the legal estate when he knew the right Avas in another, machinatur ad circumveniendum. It is a maxim, too. in our law that fraus et dolus nemini patrocinari debent."^ Lord Hardwicke was here speaking of the effect of an actual notice; and undoubtedly it is an act savoring of fraud for a person who has received actual, direct notice of another's right, to go on and knowingly acquire the prop- erty in violation of that other's right. But on the other hand, to base the entire doctrine of notice upon fraud, to regard all its rules as inferences from the equitable principle against fraud, is, in my opinion, to ignore the plain meaning of words, and to introiluee an unueeessar}^ and misleading fiction into the subject. jMost of the confusion in the discussion by courts and writers has resulted, as it seems to me, from their acceptance of this dictum of Lord Hardwicke as universally true, and from their attempt to treat the effects of notice, under all circumstances, as mere instances and re- sults of fraud. The great importance of the subject having thus been exhibited, its further examination will be conducted in the following order: 1. The nature of notice, what constitutes it, and its various kinds and classes; 2. The effects of notice, and especial- ly the consequences of notice or the want of notice in determinin;: priorities among equitable claims to or upon the same subject-mat- ter. § 592. Knowledge and Notice Distinguished. — Before entering upon this examination, a few preliminary observations are neces- sary, to clear the ground and to explain the exact nature of the (luestions which are to be discussed, and of the conclusions to be reached by such discussion. In the first place, it is of the utmost Importance to distinguish between the objects and purposes for which the fact of notice having been given may be invoked. One object of notice may be simply to affect the prioi'ity of a right which • Le Neve v. \.e Sexe, Amb. 436; 2 Lead. Cas. Eq., 4th Am. Ed., 109, 1 S-ott^ 530. 257 coxcEKMXt; notice. § 51)2 the one receiving it has acquired, and to subordinate such riglit to an interest in the same subject-matter held by another. On the other hand, notice may be regarded as an ingredient or badge of fraud, as a feature which renders the transaction entered into by the person who receives it fraudulent. A distinction clearl}' exists between these two purposes ; and the rules which govern the nature iind effect of notice in each must be different. That might easily be sufficient to subordinate a person's right to another interest which would at the same time fall far short of stamping his con- duct with actual fraud. In the second place, it should be most carefully borne in mind that the legal conception of "notice," as contained in the settled doctrines and rules of equity, is some- what artificial and even technical. In this purely legal artificial sense, notice is by no means synonymous with knowledge, altJioiigli the effects produced hy it are nndouhtedly the same which would result from, actual l-noivledye. In other words, while the doctrines of equity on the subject do not assume that notice is knowledge, nor even that it is necessarily followed by knowledge, they still often impute to it the very same consequences which would tiow from actual knowledge ac(|uired by the party. As the notice spoken of by the rules is not knowledee. there may be notice without knowledge, and knowledge without notice. If a person, A, were negotiating Avith B for the purchase of a piece of land, and should be informed either by B or by C that B had already given a deed or mortgage of the same land to C, such information would be notice, and even the highest kind of notice; but A would not thereby, in any true meaning of the word, have Icnowledge of the deed or mortgage, of its various provisions and legal effect. On the other hand. if. be- fore the negotiation, A had been casually shown the deed or mort- gaue itself by some third person in whose possession it happened to be, had been permitted by such person to take and read the in- strument, had carefully examined it, and had thus become familiar Avitli all of its provisions and its legal effect, he would not, within the settled meaning of the legal term, have received notice, but he would most certainly have obtained, and would be acting with, a complete knowledge of the instrument. Again, under certain cir- cumstances, if A, while dealing with respect to a piece of property, deliberately and intentionally refrains from making inquiries con- cerning outstanding encumbrances or claims for the very purpose of avoiding any information, he is charged with notice of the en- oumbrances and claims which are actually outstanding: but he cer- tainly does not acquire, and cannot possibly have, a Jcnowledqe of such prior charges or interests. The record of a deed or mortgage, when regularly and properly made, is constructive notice to sub- § :)92 EQUITY JLl:Jfel'KUDENCE. S58 secjuent purchasers and encumbrances; l)ut it does not necessarily convey any knowledge to such persons; while A, in purchasing land from B, is absolutely and conclusively bound by the proper record of a prior instrument affecting the same premises, he may he acting in perfect good faith and in most complete ignorance (jf the actual existence of any such instrument. If, however, before making the purchase, A had examined the official records, and had there discovered and read a deed or mortgage of the same land copied at length in the book of records, but under such circum- stances that it was not legally entitled to be recorded, on account of a defective acknowledgment or other irregularity, he would not thereby have received any legal notice within the true meaning' of the term, but he would as certainly have obtained a full hnoirl- edgp. of the instrument. These instances are sufficient to illustrate the distinction between notice, in its legal and somewhat artificial conception, and knowledge, and to show that one may exist without the other. Unless this distinction is clearly apprehended and con- stantly borne in mind, nuich of the judicial discussion concerning the nature and effect of notice will seem to be confused and unce}'- lain, and an irreconcilable conflict M'ill appear among many of the decisions; the distinction renders the discussion clear and certain, and the decisions harmonious. Whenever the mere notice, in its strict signification, is relied upon, even though not accompanied or followed by any actual knowledge, then, from considerations of policy and expediency, the same effects are attributed to it which would have resulted from actual knowledge; and it will be fouinl that what constitutes this notice is determined by definite, precise. and even somewhat technical rules. Whenever, on the other hand, a party is shown to have obtained an actual knowledge, even though there has been nothing wiiich constitutes a notice in its true sense, then there is no longer nny necessity of resorting to the artificial conception of notice; the consequences must naturally and neces- sarily tiow from an actual knowledge of facts b}^ a party, Avhich from motives of expediency are attributed to a notirr of the same facts given to him. in the absence of actual knowledge. In a Avord. among the complicated affairs and transactions of life, it is often necessary that mere "notice" should take the place of actual knowledge; but this does not and cannot mean that actual knowledge shall not produce the same effects upon the rights of parties which, from motives of policy, are given to its representative and substitute notice. This conclusion is, as it seems to me, self- evident, and it is most important: it reconciles at once all the eon- fusion and conflict of opinion which, it must be confessed, appear 259 coxc]:i;x!N(; notice. § -'^^ :ii some of tlie decisions, and it has the sui)i)oi't of the ahh'st judicial authority.' § 593. Kinds — Actual and Constructive, — Notice has been divid- ed by judues aud writers into the two main classes, — "actual" and "constructive;" but there is a great diversity of opinion among text-writers in determining what particular kinds shall come within each of these two classes. ... I prefer and shall adopt the classification approved and followed by many of the most eminent judges, which has the merit of simplicity, naturalness, and cer- tainty. According to this arrangement, "actual" notice embraces all those instances in which positive personal information of a matter is directly conmiunicated to the party, and this communi- cation of information, being a fact, is established by evidence directly tending with more or less cogency to its proof. "Con- structive" notice includes all other instances in which the informa- tion thus directly communicated cannot be shown, but the informa- tion is either conclusively presumed to have been given and received from the existence of certain facts, or is implied by a prima facie presumption of the law in the absence of contrary proof. § 594. Definition.— Judges and text-writers have seldom attempt- ed to define notice in the abstract, but have generally contented themselves with specifying instances, or desci'ibing its kinds and etfects. Within the meaning of the rules, notice may, I think, be correctly defined as the information concerning a fact actually com- municated to a part}" by an authorized person, or actually derived by him from a proper source, or else presumed by law to have been acquired by him, which information is regarded as equivalent /// its legal effects to full knowledge of the fact, and to which the law attributes the same consequences as would be imputed to knowledge. It should be most carefully observed that the notice thus defined is not knowledge, nor does it assume that knowledge necessarily results. On the other hand, the information which con- stitutes the notice may be so full and minute as to produce complete knowledge. Although an actual knowledge is not necessarily assumed to result, yet in many instances, as Avill be seen, the party is not jiermitted to show this fact, but the same consequences follow with respect to his rights and interests as though he had obtained real knowledge. The cor- rectness of the definition which I have formulated will appear from a comparison of all the cases hereafter cited in the discussion of this section. In dealing with the subject, great care shoulil be taken to distinguish between notice and the evidence by which it is established. The personal communication (tf information which * Lloyd V. Bank.-^, L. I^. .3 CIi. 488, 400, per Lor.l Cairns. § 596 E<^L ITY JURISPKUDEXCE. 200 eoustitiites notice is a fact which may be proved by any kind of competent evidence submitted to, weighed, and passed upon by the tribunal which decides matters of fact. Whenever the notice is inferred by a conclusive or prima facie presumption from certain facts, the office of evidence is to prove the existence of those facts. Notice is either actual or constructive; but the legal effect of each land, when established, is -exactly the same.^ § 595. Actual Notice. — Actual notice is information concerning the fact, — as, for example, concerning the prior interest, claim, or right, — directly and personally communicated to the party .^ The distinction between actual and constructive notice does not pri- marily depend upon the amount of the information, but on the man- ner in which it is obtained, or assumed to have been obtained. In actual notice information is not inferred by any presumption of law; the personal communication of it is a fact, and, like any other fact, is to be proved by evidence. The information maij be so full, minute, and circumstantial, that the party receiving it thereby acquires a complete knowledge of the prior fact affecting the transaction in which he is then engaged, or it may fall far short of conveying such knowledge.- Again, the evidence may be so di- rect, positive, and overwhelming as to establish the fact that the information was personally given and received in the most con- vincing and unequivocal manner, or it may be entirely indirect and circumstantial. Wherever, from competent evidence, either direct or circumstantial, the court or the jury is entitled to infer, as a con- clusion of fact, and not by means of any legal presumptions, that the information was personally communicated to or received by the party, the notice is actual. In short, actual notice is a conclusion of fact, capable of being established by all grades of legitimate evidence."'' § 596. When Shown by Indirect Evidence. — It is admitted by all text-writers and by many judges that much confusion and inaccu- racy of language are exhibited in the decisions concerning actual and constructive notice; notices are not infrequently called "con- structive," which are really "actual," and the ruJes governing the two are confounded.^ That the party has knowledge or information ^Prosser v. Kice, 28 Beav. 68, 74. ^ ' "Notice is actual -when the purchaser is aware of the adverse claim or title, or has such information as would lead to knowledge": Am. note in 2 Lead. Cas. Eq., 4th Am. ed. 144. = Wniiamson v. Brown, 15 X. Y. 354, H. & B. 80. ^Knapp V. Bailey. 79 Me. 105. 1 Am. St. Rep. 25)5. 9 .Ml. 122, H. & B, 75; Williamson v. Brown, 15 N. Y. .354, H. & B.'Sfi. MVilliamson v. Brown, 15 N. Y. 354, H. & B. 8(1. per S. L. Selden, J. One illustration will suffice. A purchased land from B. A third person. C, from ^01 CO.NCKKXINU .NOTICE. § 596 of facts sufticient to put him upon an inquiry has often been treated as peculiarly the characteristic of constructive notice. In truth, however, this test is equally applicable to every instance of actual notice inferred by proces'S of rational deduction from cir- cumstantial evidence. Tlie distinction is plain and natural. In all cases of constructive notice, there is no evidence which directly tends to show that any information of the prior contiicting claim was personally brought home to the consciousness of the party affected; the particular facts of which he is shown to have knowl- edge do not directly tend to sluiw such information ; but from these facts the legal presumption arises, either conclusive or rebuttable, that the information was received. In all cases of actual notice inferred from circuiustantial evidence, the facts proved do directly tend to show that infornmtion of the prior contiicting claim was Avhoni B obtained the propertj', has a claim upon it; and the question is, Aviiether A took with notice of C's claim. There is no direct evidence of any information given to A by either B or C. But is proved tliat A is B's son, and has constantly lived in his house and been a member of his family; and for several years A has been acquainted with his father's business affairs, and has taken an active part in their management; that A was familiar with the transaction by which B obtained the premises from C, and aided his father in negotiating the contract with C, etc. If from these and similar facts a notice should be inferred, it would be an actual notice, and not constructive. Xo legal presumptions would aid the court or jury; they would simply arrive at the conclusion, by a process of rational argument, that at some time informa- tion or knowledge of C's claim was directly and personally communicated to or acquired by A, in exactly the same manner as a jurj' may infer that a certain man and woman were at some past time actually married, from the circum- stantial evidence of their coliabitation and holding each other out to the world as husband and A\ife. The only question of law in siich a case is, whether the evidence is sulticient to warrant the finding of fact tliat information or knowledge of C's claim was actually acquired by A. It is true that many cases say, under such circumstances, that "the facts proved are sufficient to put the party, A, upon an inquiry, and if he neglected to make a due inquiry lie nnist be charged with notice." Such a mode of statement is entirely proper; but it is incorrect, misleading, and a confounding of the two kinds of notice, to say under such circumstances that if the party neglects to make a due inquiiy he is presumed io have received ihe informntion which constitutes notice. In all cases of information constituting actual notice inferred from circumstantial evidence, this statement that "the facts proved are sufficient to put the party upon an inqiury," etc., is simply tantamount to saying that tlie facts and circvnnstances, when uncontradicted and imexplained, are suffi- cient evidence to warrant a finding that the information was directly and personally acquired by tlie party, but tiiat the facts and circumstances may be sufficiently explained by the party's showing that he did make a reasonable inquiry, and did seek for information, but failed to obtain it. By such means the conclusion which would otherwise have been drawn from the luiexplained circiunstances is overcome and negatived. For illustrations of these positions, see cases cited in the next following note. § 597 EQUITY JLTIISriiUDENCE. 26'i per.sonally broiiglit home to the consciousness of the party. The court or jur}' infers from the facts proved, by a process of rational vleduetiou. hut witliout the aid of any legal presumption, that such information was actually received. In weighing this evidence, the tribunal may properly ask whether the facts proved were sufti- cient to put the party upon an inquirj^, so that, if he went on with the transaction Avithout making any inquiry, his actual receipt of information and consequent notice is a legitimate or necessary conclusion ; or whether, on the other hand, he prosecuted an in- C'ONCKKXIXG NOTICE. § 001 cer and the party with whom he is dealing:, or l)etween him and the holder of the adverse claim ;^ great inadequacy of the price, which may arouse the purchaser's suspicion, and put him upon an inquiry as to the reasons for selling the property at less than its apparent value;- the sigiit or knowledge of visible material objects upon or connected with the subject-matter, Avhich maj^ reasonably suggest the existence of some easement or other similar right.^ The irregular, defective, or improper recording of an instrument, although clearly not a constructive notice imder the statute, may be sufficient to put a purchaser upon inquiry, and so constitute an actual notice; and the inspection. ])erusal. or knowledge of a writing which purported to be a certified or oi^eial copy of the instrument thus defectively or improperly recorded should produce the same effect, although upon this particular point there seems to be some conflict of judicial opinion. It has even been held that, under special circumstances, a jury or court miuht assume as an inference of fact, in the absence cf any positive evidence, that a purchaser examined the public re- cords, and thus obtained information amounting to an actual notice from a conveyance im[)erfectly recorded, or improperly recoi'ded, through some defect.* § 601. Same — Effect of Explaining- or Contradicting the Informa- tion Given. — In concluding this branch of the discussion, the impor- tant question remains to be considered, How far may a party rely upon the whole of the information given or statement made to him in a case of actual notice? In other words, when information is given or a statement is made to a purchaser which, standing alone, would, be actual notice, or at least would be sufficient to put him upon an inquiry, but this is accompanied by further explanatory or contradictory declarations which tend to nullify or destroy the effect of the former language, how far may the purchaser accept and act upon the entire communication? or how far is he affected by that portion which tends to show the existence of a prior, outstanding, and conflicting claim? If the only information given to the purchaser concerning the existence of an outstanding claim, contract, or equity affecting the property is communicated by a third pei'son, — a stranger having no interest in the matter, — and ^It is hardly to be supposed, liowevcr. tliat notice could be inferred from mere relationship or intimacy, without anji other circumstances; Fluegel v. Henschel, 7 N. D. 27G, fif! Am. St. Rep. 042. 74 X. W. 996; Tillinghast v. Champlin, 4 K. 1. 173. 204, 215, 67 Am. Dec. 510. = Dunn V. J?arnum, 51 Fed. 355. 10 I\ S. App. 8(1. 2 C. C. A. 205: Connecli- cut Mut. Life Ins. Co. v. Smilh. 117 :\1.). 201. :1S Am. St. Rep. 050. 22 S. \V. 623; Hoppin v. Doty, 25 Wis. 573. 5!)!. ^HerA^ey v. Smith, 22 Beav. 299: Paul v. Connersville etc. R. R., 51 Ind. 527. ^Hastintrs v. Cutler, 24 X. H. 481. § 601 EQUITY JURISPRUDENCE. 366 this person also states that such contract has been rescinded, or such claim or equity has been abandoned or discharged, and no longer exists, the purchaser, it seems, may rely on the whole com- munication; it is not sufficient, in the absence of special reasons, for believing the former part and rejecting the latter, to put him upon an inquiry, and does not therefore amount to an actual notice. This conclusion results from the obvious fact that such an informant has no personal interest to deceive the purchaser by misrepresentinu" or concealing the truth.^ When, however, the grantor, vendor, or mortgagor admits that his title was defective or encumbered, or that there was some outstanding claim upon or equity in the prop- erty, or makes any other communication which, unexplained, would constitute an actual notice, but adds a further declaration to the effect that such defect has been cured, or encumbrance removed, or claim or equity rescinded and destroj^ed, the purchaser, accord- ing to the weight of authority, is not warranted in accepting and relying upon this explanation or contradiction ; the information obtained under such circumstances and from such a source is suffi- cient to put a prudent man upon an inquiry. The reason of this is plain. The informant is under a strong personal interest to misrepresent or conceal the real facts. While the former branch of his communication is made against his interest, and is therefore more likely to be true, the latter part is in conformity with his personal interest, and is essentially untrustworthy.- Finally, a pur- chaser is fully warranted in accepting and acting upon the state- ments or conduct of the person who holds or asserts a conflicting' interest, claim, or right, if he, when interrogated upon the subject, either keeps silence, or denies the existence of any claim, or affirm- atively declares it to be of a certain kind or amount; such a person, even if not absolutely estopped from afterwards setting up any claim, or a claim different from his representations, would certainly be debarred from afterwards alleging that the purchaser was put upon an inquiry, and was chaiged with notice." If a purchaser, having been put upon an inquiry, prosecutes it with reasonable and due diligence, without discovering any adverse right, the infer- ence of an actual notice received by him is overcome and destroyed.* What is a due inquiry in these instances of actual notice inferred 'Rogers v. Wiley, 14 m. 05, 5(5 Am. Doc. 401. -Tlie rule, however, is not puslietl so far by the courts as to work roal injustke to innocent puichasers who have been manifestly deceived and misled. Jones V. Smith, 1 Hare, 43; Simpson v. Hinton, 88 Ala. 527, 7 South. 264. ''Pearson v. Morgan, 2 Bro\ni Ch. .388; Burrowes v. Locke, 10 Ves. 470, 1 Scott 559; Barrett v. Baker, 13fi Mo. 512, 37 S. W. 130. 'Mercantile Mat. Bank v. Parsons, 54 31inn. 5G, 40 Am. St. Pep. 2il!l, 55 N. W. 825. 267 CONCERXJXCi NOTICE. § oO-i from eircimistiiiitial evidence must, to a .ureat extent, depend upon the particular facts of each case. It is well settled, however, that mere examination of the record, and finding no adverse title or claim recorded, is not due inquiry by one who has been put upon inquiry by circumstances tending" to show the existence oi a eon- fiieting title, claim, or right.^ § 602. Same — By Whom and when Information must be Given. — Such being its general nature, it is impossible to detiue by a single formula what will amount to an actual notice sufficient to affect the conscience of the party receiving it, and courts have not at- tempted to lay down any such criterion ; each case must, to a considerable extent, depend upon its own particular circumstances. The following ancillary rules, however, bearing upon the question, have been well settled. Where an actual notice is relied upon, in order to be binding it must come from some person interested in the property to be affected by it; and it is said that it must be given and received iii the course of the very transaction itself concerning the property in which the parties are then engaged. As a necessary consequence, no mere vague reports from strangers, jior mere general statements by individuals not interested in the property, that some other person claims a prior right or title, will amount to an actual notice so as to bind the conscience of the party; nor will he be bound by a notice given in some previous and distinct transaction, which he might have forgotten.' It should be most carefully observed that the decisions here referred to, and the rules which they snstain, are dealing exclusively with the artificial conception of an actual notice, which is regarded as affect- ing the conscience of the party, and producing results upon his rights in the same manner and to the same extent as though it amounted to full knowledge, although it may j^erhaps fall far short of such a consummation. The cjuestion as to the consequences of such knowledge acfpiired in some other manner or from some other source is therefoi-e left untouched. § 603. Effect of Knowledge.'— § 604. Constructive Notice. — Constructive notice assinnes that no information concerning the prior fact, claim, or right has been directly and personally communicated to the party; at least, such information is not shown by evidence, but is only infcrrrd hi/ oj)rr(tf.ioii •• Pringle v. Dunn. .37 Wis. 449, 46.5. 407, 19 Am. Pxop. 772. IT. & B. 92. ' Butcher v. Stapeley, 1 Vcrn. .3(5.3, 1 Ames Eq. .Tur. 279, 2 Keener 022, 2 Soolt 188; Wilson v. .^rcCullougli, 23 Pa. St. 440, 02 Am. Dec. 347; Raymona V. Flavel. 27 Orefj. 219. 40 I'ae. 158. 'On this subject see ante, § 092; also. ^lontcfonierv v. Kc|)])('l. 75 Cal. 128, 7 Am. St. Rep. 12.5. 19 Pae. 178; l^utehcr v. Yor-uni. C] Pa. St. 108. 171. 100 Am. Dec. 625; Pringie v. Ihiiiii. 37 Wis. 449. 19 Am. P.].. 772. H. & P. 92. § GOO . EQUITY JURISPRUDEXCE. 268 of legal [ircsinnptiou.^. It embraces all those instances, widely dift'er- ing" in their external features, in which, either from certain extra- neous facts, or from certain acts or omissions of the party himself, disclosed by the evidence, the information is condusively presumed to have been given to or received by him. or is inferred by a prima facie presumption of the law in the absence of contrary proof. ^ 606. When the Presumption is Rebuttable. — Since constructive notice, as heretofore defined, includes all the instances in which in- formation concerning a prior fact, claim, or right is inferred either l)y a conclusive or by a rebuttable presumption of law, it would be a nu)st important aid in the further discussion if we could discover a general criterion for distinguishing these tAvo classes, and deter- mining in what cases the presumption is conclusive, and in what it is only prima facie and i-ebuttable. It may not be possible to !ay down a rule which is absolutely universal in its operation, and which furnishes a certain test for every case: but a rule may be formulated which is quite general in its application, and which gives a practical test sufficient for many instances differing widely in their external features.^ Wherever a party has information or knowledge of certain extraneous facts, wliicli do not of tlietnselves constitute actual notice of an existing interest, claim or right in or to the subject-matter, but which are sufficient to put him upon an inquiry concerning the existence of a conflicting interest, claim, or right, then he is charged with constructive notice, because a presumption of law arises. ... As an illustration, if a party is negotiating for the purchase of certain land, and sees or learns that the land is not in the intended grantor's possession, but is possessed and occupied by a third person, a stranger, this fact of possession is sufficient to put the expected grantee upon an inquiry concerning the nature of the occupant's interest. The information or knowledge of such extraneous facts which are sufficient to put the party upon an inquiry constitutes a constructive notice of the conflicting claim or interest which does exist, because a presumption thence arises. This presumption, in all cases of this class, is really a double one. The party is either presumed to have made the inquiry, and to have carried it out until he obtained full knowledge of the outstanding conflicting interest, claim, or right, or else to have intentionally and deliberately refrained from making the inquiry or following it up in a reasonable and proper manner for the very purpose of avoiding the knowledge which he might have ac- quired. The presumption is clearly one of law. and not a mere inference of fact: because upon the bare proof that the party M^■illiamson v. r.rf)\vn, 1.5 N. Y. .354, H. e^ J?. Sfi. 269 CONCERNING NOTICE. i; (i07 had the intoniiation of facts sufficient to i)ut him upon an iiKiniry, the inference is at once made without any furtiier evidence in its support, and in the absence of all contrary evidence it is ab- solute and conclusive. - ^ 607. Same — Rebutted by Due Inquiry. — It may be stated as a general proposition that in all instances of constructive notice be- longing to this class, where it arises from information of some extraneous facts, not of themselves tending to show an actual notice of the conflicting right, but sufficient to put a prudent man upon an inquiry, the constructive notice is not absolute; the legal pre- sumption arising under the circumstances is only prima facie; it may be overcome by evidence, and the resulting notice may thereby be destroyed. Whenever, therefore, a party has merely received information, or has knowledge of such facts sufficient to put him on an inquiry, and this constitutes the sole foundation for inferring a constructive notice, he is allowed to rebut the prima facie pre- sumption thence arising by evidence; and if he shows by convincing evidence that he did make the inquiry, and did prosecute it with all the care and diligence required of a reasonably prudent m?in, - In several of the later English cases a very strong disposition has been sho\^■n to limit and restrict the effect of the constructive notice which arises from the existence of facts and circumstances sufficient to put the party on an inquiiy. This limitation is applied both where the party made some inquiry and relied upon what he liad learned thereby, ana whei-e he made no in- quiry at all. Ware v. Lord Egmont, 4 De Gex, :\r. & G. 4()0. 47-3. by Lord Cranworth: llaihy v. Barnes (1894), 1 Ch. 25. It is plain that the criterion, as estahlished by these most recent English cases, is no longer the mere want of that reasonable care and diligence in making an inquiry which would be used by a prudent man: the failure to pi'osecute or to make the inquiry must, under the circumstances, amount to gross or culpable negligence. It should be observed, liowever, that this rule is confined, and is intended to be confined, to that class of constructive notices in which the legal presumption is rebuttable. The American courts do not appear to have adopted this most recent English rule. Wherever the facts and circumstances do not tend to show actual notice, — in other words, where the facts and circumstances are not simply the circum- stantial evidence of an actual notice, — the test of constructive notice generally applied by the American courts has been, whether such facts are sufficient to ]Hit a prudent man upon an inquiry, and whether an in(piiry has been prosecuted with reasonable care and diligence: See Cordova v. Hood. 17 Wall. 1 ; raml)ridge Valley Bk. v. Delano, 4S N. Y. 32G. 33(1. 330: Baker v. Bliss. 39 X. V. 70, 74, 78; Anthony v. Wheeler. 130 111. 128, 17 Am. St. Rep. 281, 22 N. E. 494; Tillman v. Thomas. 87 Ala. 321. 13 Am. St. "Rep. 42. South. 151. It is sometimes difficult to distinguish a case of constructive notice arising from extraneous facts sufficient to ]iut the party upon an inquiry from a case of mere actual notice der)onding ujion circumstantial evidence: and the two have occasionally been confounded by the decisions themselves. The criterion as given in the text will, I think, render the distinction sufficiently plain and practical. § OUT LQUIXY JLlUsritUDEXCE. 270 and that he failed to discover the existence of, or to obtain knowl- edge of, any conflicting claim, interest, or right, then the presump- tion of knowledge which had arisen against him will be completely overcome ; the information of facts and circumstances which he had received will not amount to a constructive notice. What will amount to a due inquiry must largely depend upon the circumstances of each case.' If, on the other hand, he fails to make any inquiry, or to ' Tlic (litrciciit spcfifs of const rvK-tive notice in wliich the Icj^al presumption may thus be overcome seem to l)e the following: 1. That derived wholly from mere extraneous facts and circumstances which are said to put a party on inquiry, which are matters in pais, and which generally consist of fraud, con- cealments, neglects, mistakes, and the like, by third persons; 2. That derived from the possession or tenancy of the property hy some third person; and 3. To a partial extent, that derived from the pendency of an action aflFecting the property, in the following species the constructive notice seems to be absolute aiul the presumption conclusive: I. That derived from a statutory recording or registration in the United States: 2. That derived from the statutoiy lis pendens; 3. That derived from a definite recital or reference in an instru- ment forming an essential part of a party's chain of title; and 4. That affecting a principal, where an actual or a constructive notice has been duly given to his proper agent. That the presumption ninii be overcome in the classes of cases first above mentioned is either directly or inferentially held by the follow- ing decisions, among others: Williamson v. Brown, 15 N. Y. 354, 360, H. & B. 86; Anthony v. Wheeler, 130 111. T2S. 17 Am. St. Bep. 281, 22 N. E. 494. Whenever a party has, by means of information concerning extraneous matters, been put upon inquiry, how this inquiry should be made, and how far it should be prosecuted, in order that the legal presumption may be overcome, and the constructive notice defeated, although the party may still have failed to have ascertained the real truth, must largely depend upon the particular cii'cumstances of each case; no universal rule is possible. Much help, however, may be derived from a comparison of the decisions, which 1 have arranged according to their general subject-matter. 1. Examinution of ihe Rrcords. — Examination of the records is always neces- sary, and there could hardly be a "due inquiry" without it. If the information oiven points to the existence of some interest or claim which, if it exists at all, must necessarily appear luion the record, then a search of the proper record, and a discovery that no such claim appeared therein, would generally be sufficient ; the "due inquiry" would luive been prosecuted: Barnard v. Campau, 29 Mich. 162. In general, an examination of the records by such a party is not sufTicient. If the information which puts him on inquiry points to the existence of some matter in pais, some interest dehors the records, or which would not necessarily be shown by the recoi'ds, then a search of the records alone is not "due inquiry," — if, for exam]ile. the supposed claim was an easement, or a grantor's lien for purchase price, and the like: Baker v. Bliss, 39 N. Y. 70. 2. Inquiry from the (Wonlor or Vendor. — A purchaser wlio has been put on an inquiry should seek information from his grantor or vendor, and a failure to do so \\ould generally show a lack of the due care and diligence in 7iiaking the inquiry. 3. Inquirii from Third Persons. — I'nder many circumstances, an examina- tion of the records and a (;-.i5s'.:oning of the vendor would not be sufficient, unless 2^il COXCKKXIXG XOTICE. § (iUl prosecute one with due diligence to tlie end, the presnniption re- mains operative, and the conclusion of a notice is absolute. The criterion thus laid down will serve to determine the prima facie nature of the presum^jtion in a very large number of the instances which are properly referable to the class of ''constructive notice." §608. When Conclusive.— It should be added, for the purpose of concluding' this general description, that the doctrine determining; what constitutes a constructive notice under such circumstances may be formulated, in somewhat different terms, as follows: When- ever a party has information or knowledge of certain extraneous facts, which of themselves do not amount to, nor tend to show. an actual notice, but which are sufficient to put a reasonably prudent man upon an inquiry respecting a conflicting interest, claim, or right, and tlie circumstances are such that the inquiry, if made and followed up with reasonable care and diligence, ivould lead to a discover// of the truth, to a knowledge of the interest, claim, or right which really exists, then the party is absolutely charged with a con- structive notice of such interest, claim, or right. The presumption of knowledge is then conclusive. There is plainly nothing contra- dictory between this statement and the criterion laid down in th'e preceding paragraph ; both are phases of the same doctrine. Since the facts are assumed to be such that an inquiry properly con- ducted would result in arriving at the truth, it would be impossible for the party to show by any evidence that he had duly prosecuted the inquiry, and had nevertheless failed to acquire the knowledge. If the facts of a particular case bring it within this description, the legal presumption becomes conclusive, and the constructive notice is absolute in its efi'ecls.^ § 609. Species of Constructive Notice. — § 610. 1. By Extraneous Facts, Generally Acts of Fraud, Negli- gence, or Mistake. — The criterion in all instances of this species is, the inquiry were fiirthcr iiroseculed among tliird persons from whom informa- tion could probably be obtained ;■ a neglect to make such an inqiury would not overcome the presumption. Thus an omission to seek information from a thii'd person who was in possesion, or from a third person who was said or claimed to liold some lien or encumlirance tliereon, would generally be a failure to prosecute the inquiry with due diligence. 'it is in pursuance of this general proposition that the constructive notice from recitals contained in a deed forming a necessary link in a party's chain of title, and that chargeable upon a principle when given to an agent, and that derived from a lis pendens and from registration, are absolute in their effects, the legal presumptions being C(mchisive. In support of the general rule as given in the text, see the following cases, among others: Lang Syne Gold Min. Co. v. Moss, 20 Nev. 127, 19 Am. St. Rep. .337. 18 Pac 3.58; Attorney- General V. Abbott, 154 Mass. .323, 28 N. E. 340, 13 L. R. A. 2.51. § GIU EQUITY JUiUSPKUDEXCE. 2T"-; that the party had knowledge or iiiforniation of certain matters in pais, which, although not directly tending to show the existence of a prior conflicting right, are sufficient to put him, as a prudent man, upon an inquiry; and he is charged with constructive notice of all that he might have learned by an inquiry prosecuted with reasonable diligence ; a legal presumption arises that he has obtained information of what he might thus have learned. In every such case the first question is, whether the facts of which the party has information are sufficient to put him upon an inquiry, so as to laise the prima facie presumption; the further question is then presented, whether he has made a due inquiry without discovering the truth, so as to overcome the presumption and defeat the notice, or whether he has so neglected this duty that the presumption renuiins unshaken and the notice effective. A third question might be suggested, whether he had made an inquiry and had ascertained the whole truth concerning the prior conflicting right, so that tlie constructive notice would in reality be turned into actual knowledge or actual notice. I would remark that in many of the decisions involving this species of notice it will be seen upon a careful exam- ination that the point actually determined by the court Avas, not whether the party had made a due and reasonable inquiry, but whether the facts were sufficient to put him upon any inquiry, so that his failure to inquire would be a fatal neglect. It is plain from the discussions of the preceding paragraphs that in all instances belonging to this species the legal presumption upon which con- structive notice always rests is only prima facie, and may be over- come by evidence clearly showing that the inquiry was duly prose- cuted without success. Before describing the particular eases falling under this head, it is proper to mention the difficulty, Avhich may sometimes exist, of distinguishing this kind of constructive no- tice from those instances of actual notice which are established merely by circumstantial evidence. In fact, there are decisions which make no attempt to distinguish them; the terms "construct- ive notice" and "actual notice" have been applied indiscriminately to the same condition of circumstances. The distinction, however, exists, and is fundamental. Whatever may be the language of judicial dicta, it is settled beyond a doubt that in one case the actual no- tice is argumentatively inferred as a conclusion of fact, by the jury or other tribunal, from circumstances which put the party upon an inquiry; and in the other case the constructive notice is in- ferred by the court as a presumption or conclusion of law from the same kind of circumstances, in the absence of contrary evidence.^ 'Cases beloiigino: to this first spocie=; of conptrnotive noticp are much more cominon in Knyiand tliaii in tlie United Stales; indeed, a very large proportion 373 COXCERNIXG NOTICE. § 613 I shall now mention the most important instances which properly belong to this branch of constrnctive notice. § 611. Visible Objects and Structures. — If a purchaser sees or has knowledge of, or by the ordinary use of his senses might see or know of, visible material objects or structures upon or connected with the land or other subject-matter concerning whicli he is dealing, he ma}', and generally will, be charged with a constructive notice of any easement or other sinular right the existence of which would be reasonably suggested to him by the appearance of such material object. He is put upon an inquiry, and is presumed to have ascer- tained whatever he might have learned by prosecuting the inquiry in a due and reasonable manner.^ § 612. Absence of Title Deeds. — The case belonging to this head which most frequently occurs in England is that arising from the absence of the title deeds, or their non-production by the owner of land with whom an intended purchaser or encumbrancer is deal- ing. From the peculiar system of conveyancing and land titles pre- vailing in England, the owner of a legal estate in fee or for life is entitled and is presumed to have the title deeds and other numi- ments of title constituting the written evidence of his estate in his own possession or under his personal and immediate control. The inability to produce the title deeds, and especially their possession by a stranger, would indicate that some equitable or perhaps legal interest, mortgage, or lien had been created and was outstanding.^ sj 613. Other Matters in Pais. — As might be supposed from our wholly different system of conveyancing and titles, instances of con- structive notice by the absence or non-production of title deeds of the English decisions conccrnino' constrnctive notice nuist he referred 1o tlii> [lead. The reason is obvions. In EngUmd, the absence of any general system of recording renders it possible for titles to be affected in a vast nnmbcr of modes by matters in pais, by matters resting in the knowledge of particular individnals, and which can only be ascertained by a special inquiry. Tlie universal system of recording in this country largely diminishes the possibility of titles being thus affected by extraneous matters. 'Davies v. Sear, L. R. 7 Eq. 427: Morland v. Cook. L. R. Eq. 2,52; Raritan etc. Co. V. Veghte, 21 N. J. Eq. 40.3. See, also, ante. § GOO. ' In fact, the possession, by the apparent owner of the legal estate, of all the title deeds is quite analogous to. though not of course exactly identical with, a perfect record title in the T'^nited States. A purchaser dealing with the legal owner in England, and finding him in possession of all the title deeds, is in a position quite similar to that of a purchaser in this country who has made a search and finds the owner's title on the records clear and unencumbered. \\ hile in neither case is such purchaser (thsoliifrhi secure against, unknown out- standing claims, in both he stands in a like position of advantage and pro- tection. 18 § 615 EQUITY JLKISl'KUDEXCE. 274 seldom, if ever, arise in this country. The same general rule, how- ever, is applied by our courts in all analogous eases. If a purchaser or encumbrancer, dealing concerning property of which the record title appears to be complete and perfect, has information of ex- traneous facts or matters in pais, sufficient to put him on inquiry respecting some unrecorded conveyance, mortgage, or encumbrance, or respecting some outstanding interest, claim, or right which is not the subject of record, and he omits to make a proper inquiry, he M'ill be charged with ('on,structive notice of all the facts which he might have learned by uicans of a due and reasouable inquiry.^ § 614. 2. By Possession or Tenancy. — The general rule is well set- tled in England that a purchaser or encumbrancer of an estate who knows or is properly informed that it is in the possession of a person other than the vendor or mortgagor with whom he is dealing- is thereby charged with a constructive notice of all the interests, rights, and equities which such possessor may have in the land. He is put upon an inquiry concerning the grounds and reasons of the stranger's occupation, and is presumed to have knowledge of all that he might have learned by means of an inquiry duly and reasonably prosecuted. If he neglects to make any inquiry, or to make it with due diligence, the presumption and notice, of course, remain absolute.^ The same general rule, based upon the same motives and reasons, has been established in the United States by a very great nimiber of decisions and judicial dicta.- In b}^ far the larger portion of English cases, the possession has been that of a tenant or lessee, while in this country the instances of notice by mere tenanc}^ are comparatively few. I shall therefore treat the effect of tenancy as a particular application of the more general doctrine concerning notice by possession. §615. General Rules. — Two leading and entirely distinct rules have been settled in the Ignited States as well as in England, and the failure to recognize this fact has, as it seems to me, sometimes produced confusion and uncertainty in dealing with the general subject. In the first place, it is clearly established by many decisions of the highest authority that an actual, open, visible, and exclusive possession of a definite tract of land by one rightfully in possession or holding under a valid title is a constructive notice to subsequent purchasers and encumbrancers of whatever estate or interest in the Mvirscli V. Tozier, 143 N. Y. 390, 42 Am. St. Rep. 729, 38 N. E. sVo, H. & B. 77. 'Taylor v. SlihlnTt. 2 Vos. 437. 440. 2 Keener 450: Holmes v. Powell. S De Oex, JVl. & G. 572. -Simmons Creek Coal Co. v. Doran, 142 U. S. 417. 12 Sup. Ct. 230. 1 Scott 549; Woods v. Farmere, 7 Watts. (Pa.) 382. 32 Am. Dee. 772; Chapman V. Chapiiiiui. 91 Vix. 397, 21 S. E. 813. 50 Am. SI. Pep. 84(5. ^75 C'0-\CKUX1-NU .NOTICE. • § ()!•") laud is held by the uceupaut, equivalent in its extent and effects to the notice given by the recording or registration of his title The constructive notice thus described, like that arising from a record or registration, does not seem to require nor to depend upon any actual knowledge or information of the possession communi- cated to or had by the subsequent purchaser, since he is held to be charged with notice, even though he is a resident of another state/ This rule is plainly the same as the first one laid down by Lord Justice Knight Bruce, in the opinion quoted under the last preceding paragraph.- The rationale seems to be, that as the occupant's title is a good one, and as his possession is notorious and exclusive, a purchaser would certainly arrive at the truth upon making any due inquiry. The purchaser cannot say, and can- not be allowed to say, that he made a proper incjuiry, anci failed to ascertain the truth. The notice, therefore, upon the same motives of expediency, is made as absolute as in the case of a registration. The second of the two rules is undoubtedly the one which is sus- tained by the greatest number of decisions. It must not be supposed, however, that there is any conflict between them, nor that the same court might not, under proper circumstances, adopt both. Whenever a ]>arty, dealing as purchaser or encumbrancer with respect to a parcel of land, is informed or knows, or is in a condition which prevents him from denying that he knows, that the premises are in the possession of a third person, other than the one with Avhom he is dealing as OAvner, he is thereby put upon an inquiry, and is charged with constructive notice of all the facts concerning the occupant's right, title, and interest which he might have ascer- tained by means of a due incpiiry. A legal presumption arises that he possesses all the knowledge which he could have acquii-ed by such an inquiry." It follows, as a necessary consequence of tli-'se rules, that when a grantee or a vendee whose deed or contract is not recorded is in actual possession of the land conveyed or agreed to be conveyed to him, his possession is constructive notice to a subsequent grantee of the same premises whose deed is put upon record, and his title takes precedence of such subsequent but re- corded deed/ Mvirby v. lallmadge, UiO I'. .S. 397, 10 Sup. Ct. 34!) ; Tate v. Pensaoola G. J.. & D. Co., 37 Fla. 439, 20 South. 542, 53 Am. St. Rep. 251; Mullins v. ±5utte Hardware Co., 25 Mont. 525, 65 Pac. 1004, 87 Am. St. Rep. 430; Daniel V. Jlester, 29 S. ('. 147, 7 S. E. 65. = Holmes v. Powell, S De Gex, :\r. & G. 572, 580. ■Bank of .Memlofino v. Baker. 82 Cal. 114, 22 Pac. 1037, L. R. A. 833; Koror Iron C^o. v. Trout. 83 Va. 397, 419, 2 S. E. 713, 5 Am. St. Rep. 285. Mlank of .Mendoeino v. Baker. 82 Cal. 114. 22 Pao. 1037. 6 L. R. A. 833: Phelan v. r>rareat inconvenienoe to wliicli a piirehaser would bo put in making inquiries of all persons in a large tenement house). Mianiels v. Davison, 16 Ves. 249, 17 Ves. 43:]: Taylor v. Stibbert, 2 Ves. 437, 2 Keener 4.50. - In my opinion, these decisions are much more in harmony with the general doctrine than those others -which have speculated and drawn refined distinc- tions upon the amount of notice derived from the occupant's original right to the possession. The reasons upon Avhich the -whole doctrine rests seem to be conclusive. The possession of a third pevscni is said to put a purchaser upon, an inquiry; and he is charged with notice of all that he might have learufKl by a due and reasonable inquiry. Clearly a purchaser who is thus put ujion inquiry is bound to inquire of the occupant wiih respect to every ground, source, and right of- his possession: anything short of this would clearly fail to be the "due and reasonable inquiry": See Bright v. Buckman, 39 Fed. 243; Phelan V. Brady, 119 N. Y. 587, 23 N. E. 1109, S L. V.. A. 211. It has, accordingly, been held that the possession of the entire premises by one of the two or niore co-tenants is suflicient to put a purchaser from ;; co- tenant out of possession upon inquiry as to the interests claimed by the ])Osscssor, by purchase of liis co-tenant's shares, etc.: Weisberger v. Wisner, .5;") Mich. 246, 21 N. W. 331. Other cases hold that such sole occupancy is not notice, since it could be referred to the occupant's former title as tenant in 'ommon: Jlullins v. Butte Hardware Co., 25 Mont. 525, 65 Pac. 100-^, 87 Am. St. Kep. 4.30. 277 CONCKUNlxXG .XOTICK. § (ilS the purchaser's attention to the cliange of title, and thus operate rather as an actual than a constructive notice." The decisions may be regarded as agreeing- upon the conclusion, which also seems to be in perfect harmony with sound principle, that where a title which the occupant holds has been put on record, and his possession is consistent with what thus appears of record, it shall not be a constructive notice of any additional or ditt'erent title or interest to a purchaser who has relied upon the record, and has had no actual notice beyond what is thereby disclosed.** § 617. Grrantor Remaining- in Possession. — The last-mentioned rule has frequently been invoked where a grantor, having executed a deed absolute on its face> which is put upon record, remains in j)Ossession of the land by virtue of some arrangement or relation between himself and his grantee dehors the deed and the record, which entitles him to the possession, such as a collateral ag;^eement which really turns the deed into a mortgage, a lien for the unj^aid purchase price, an unrecorded mortgage, and the like. . . . There has been a direct confiiet of opinion among the American courts in applying the rule to the condition of facts above described. In one group of decisions the possession of the grantor is held not to be a constructive notice of any right or interest he may have antagonistic to his deed which has been put upon record ; a subse- quent purchaser, it is said, has a right to rely upon the information derived, or which would be derived, from the record, and to as- sume that the grantor's continued possession is merely by snffer- ance.'^ Another group reaches a conclusion directly the contrary to this, and holds that a purchaser is put upon an inquiry and is afif'ccted by a constructive notice in the same manner as in any other case of possession by a third person.- § 618. Tenant's Possession, how Far Notice of Lessor's Title. — "Whether possession by a tenant is constructive notice of his land- lord's title, is also a ({uestion upon which the decisions are in direct conflict. In England it seems to be settled that the posses- = Hodges V. Wiiiston. 94 Ala. 570, ]0 South. 5.3.5: :Mf:\toHi:iTi v. rJrimnir, 3 Pick. 154, 15 Am. Dec. 108: PvPrl Pxiver Val. L. & I. Co. v. Smitli, 7 N. T). 23Ct, 74 K". W. 194. *Kirbv V. 'I'allmadge, 100 U. S. .379. 10 Sup. Ct. ,349: ]Mullins v. Butte Hardware Co.. 25 Mont. 5-25, 05 Pae. 1004. S7 Aiu. St. Rep. 4.30; Woods v. I'ariiipie, 7 Watts 382, 383, 32 Am. Dec. 772. 'Truman v. Bell. ,54 Ark. 273. 15 S. W. 880. 20 Am. St. Rep. 35; Bloomer V. Henderson. 8 Mich. 395. 404, 405, 77 Am. Dec. 453: Exon v. Danehe, 24 Or. 110, 32 Pae. 1045. -'Illinois Cent. R. R. v. MeCullousrh, ,59 111. 160: Grofl" v. State Bank. 50 Minn 234, .52 ^. W. 051. 30 Am. St. Rep. 640; Dennis v. Northern Pae. R, Co., 20 Wash. 320, 55 Pae. 210. ^ (;-^0 EQLITY JUKlSPHUDK-XCi:. <7$ sion by a tenant, or notice of a tenancy, will not affect a pur- chaser with constructive notice of the hindlord's title/ The same view has been adopted by several American decisions.* In the greater number of American cases, however, it is held that a pur- chaser is bound to make inquiry from the tenant in possession with respect to all the rights and interests which he claims to have, and urjder which he occupies, and is presumed to know all the facts which he might have learned by such an inquiry; he must pursue l;is inquiry to the final source of the tenant's right, and is thus affected with a constructive notice of the landlord's title and estate." ^ 619. Nature and Time of the Possession, — Under this head, the kind, extent, and time of the possession necessary or sufficient to constitute a constructive notice will be examined. The determina- tion of .this question must largely depend upon the circumstances or conditions of fact under which it arises, and upon the immediate purpose or object for which the protection by a notice is invoked, 'i'hus the queston may arise between the rightful holder of a prior unrecorded title, and a subsequent purchaser whose conveyance is recorded ; and it may therefore come within the first rule as stated in a former paragraph.^ where the possession of a person rightfully entitled is equivalent, in its effects as notice, to a regis- tration ; or it may arise in other circumstances, which are not di- rectly affected by the recording acts, and which are governed hy the second general rule concerning the eft'ect of possession as notice. A failure to recognize the diff'erence existing between these two kinds of cases will undoubtedly account for whatever of confusion and conflict of opinion luay be found in the decisions upon this subject. § 620. Actual, Open, Exclusive Occupancy. — It is therefore abundantly setiled by the decisions, that where the first general rule as stated in a foregoing paragraph is invoked, and the party rightfully in possession under an unrecorded conve3-ance relies ui)on the fact of such possession as a constructive notice, equivalent in its effects to a registration, to a subsequent grantee or encum- brancer whose deed or mortgage has been recorded, his possession must be an actual, open, distinct, notorious, and exclusive orcirpr.nnj Mones V. Smith. 1 Hare, 43. 63: Hunt v. Luck [1001] 1 Ch. 45, [Ut02] 1 Cli. 428. ■' FlajTg V. .Mann. 2 Sum. 480. .'>.i7. Fed. ('a<. No. 4.847. ••^Tliomas v. Jiumett. 128 111. 37. 21 X. K. 3.12. 4 L. R. A. 222. H. & B. '.'-O: A. R. Beck Lumber Co. v. Rupp. ISS 111. .-)(i2. 80 Am. St. Rep. 11>0. ■"j!! X. E. 429; Edwards v. Thompson, 71 N. C. 177, 179; Randall v. Lingwall, 43 Or. 383. 73 I'ac. 1. 'Ante. § r.1,5. 279 CONCERXIXG NOTICE. ^ 1)24: of the land in question. No mere occupation of the premises in common or in connection with a third person, and no mere exercise of acts of ownership equivocal in their nature over the land, will then suffice.^ § 622. Time of the Possession. — In order that any kind of pos- sesion, whether actual and visible, or simply constructive, or con- sisting in the rightful receipt of rents and profits, may put a pur- chaser upon an inquiry, and operate as a constructive notice, it must exist at the time of the transaction by which his rights and interests are created. A possession which had ended before, or which did not commence until after, the sale to him was made, or the conveyance or encumbrance was executed, could not affect him with any constructive notice.^ § 623. The Presumption is Rebuttable. — § 624. Same Continued. — There is, on the other hand, an able and Avell-eonsidered series of decisions in which the nature of the legal presumption arising from possession has been directly aiui intentionally examined. In all these cases, where the court has deliberately met the question, has intentionally investigated the presumption arising from possession, and has definitely passed upon its nature, it has been held that the presumption, under ordinary circumstances, or independently of special and controlling circum- stances, is not a conclusive one, but is only prima facie, and may be rebutted and overcome by proper evidence showing that the party has made a diligent inquiry, and has nevertheless failed to discover the real truth concerning the existence of an adverse right or interest. This conclusion may be considered as settled by the decided weight of judicial authority, English and American.^ It is also in complete conformity with principle. Undoubtedly, in ordinary cases, where a third person is possessed under a claim of right or title which is actually valid, an inquiry prosecuted with reasonable diligence from parties naturally conversant with the facts will generally result in a discovery of the truth, and the pre- sumption thus becomes conclusive, not because it is essentially so, but because it is necessarily confirmed by the existing facts, — no evidence can overturn it. A different condition of circumstances, 'Holmes v. PoweH, 8 De Gex, M. & G. 572, 580; Simmons Creek Coal Co. v. Doran, 142 U. fS. 417, 12 Sup. Ct. 2.39: Holland v. Brown, 140 N. Y. 344, 35 i\. E. 577; Hodge v. Amerman, 40 X. .J. Eq. 90; Rankin v. Coar, 46 X. J. Eq. 5G6, 22 Atl. 177, 11 L. R. A. 601 (occupancy not exclusive) ; Kirby v. Tall- madge, 160 U. S. 379, 16 Sup. Ct. 349. ' Meehan v. Williams, 48 I'a. St. 238; Cliapman v. Chapman. 91 Va. 397, 21 S. E. 813, .50 Am. St. Rep. 846. ' Seheerer v. Cuddy, 85 Cal. 271, 34 Fac. 713: Williamson v. Brown, 15 X. Y. 354, :J60, 362, H. & B. 86. § G2tJ i:(^nTY JLKisi'KTDEXci;. 280 however, might easily exist, and often does exist. The purchaser put upon an inquiry might exhaust all the reasonable modes of ae- (juiring knowledge ; he might receive incorrect information from the parties acquainted with the real facts, and on whom he had a right to rely; he might even be misled by the person in possession; lie might act in the most perfect good faith, — and come to the reasonable conclusion that the possession was not based upon any adverse claim, and was wholly subordinate to his own right and lluit of his immediate grantor or mortgagor. To say that the pre- sumption is, under such circumstances, conclusive, and the con- structive notice is absolute, would be to violate all the equitable reasons upon which the whole doctrine of constructive notice is found efl. ^ 626, 3. By Recital or Reference in Instruments of Title — General Rule. — Wherever a purchaser holds under a conveyance, and is obliged to make out his title through that deed, or through a series of prior deeds, the general rule is firmly established that ho has constructive notice of every matter connecteci with or affect- ing the estate which appears, either by description of parties, by recital, by reference, or otherAvise, on the face of any deed which forms an essential link in the chain of instruments through wb.ich be must derive his title. The reasons for this doctrine are obvious and most convincing; in fact, there could be no security in land ownership unless it were strictly enforced. The right of such a })urehaser is, under our system of conveyancing, confined to the instruments which constitute his chain of title, which are his title deeds, and everything appearing in those instruments and forming a legitimate part thereof is a necessary element of his title. The rationale of the rule is equally clear and certain. Any description, recital of fact, reference to other documents, puts the purchaser upon an inquiry; he is bound to follow up this inquiry step by step, from one discovery to another, from one instrument to an- other, until the whole series of title deeds is exhausted, and a complete knowledge of all the matters referred to in their provi- sions and affecting the estate is obtained. Being thus put upon the inquiry, he' is conclusively presumed to have prosecuted it until its final result, and with ultimate success. The purchaser's ignor- at^.ce that a particular instrument forming a link in his chain of title was in existence, and his consequent failure to examine it, would not in the slightest affect the operation of the rule. An imperative duty is laid upon him to ascertain all the instruments which constitute essential parts of his title, and to inform himself of all that they contain.^ ^Bisco V. Karl of P.anburv, 1 Ch. Cas. 287; Smith v. Burgess, 133 Mass. 513; '2S1 COXCKKXIXO NOTICE. § ()v'8 § 627. Nature of the Notice. — The notice which thus results from recitals and other matters contained in title deeds, within the operation of the general rule, is absolute in its nature. The party having been put upon an inquiry, the presumption that he obtained a knowledge of all the facts which could be ascertained by means of a diligent inquiry prosecuted through the entire chain of title deeds, and through all the instruments referred to, is conclusive ; it cannot be rebutted by any evidence of a failure to discover the truth, nor even by proof of ignorance that instruments affecting the title Avere in existence. This presumption extends to unrecorded documents as well as to those which have been duly recorded.^ § 628. Extent of the Notice. — Where, under the operation of the foregoing general rule, a purchaser has notice of a title deed, he is presumed to know all its contents, and is bound thereby. As an illustration, notice of a lease includes in its efifects a con- structive notice of all its covenants.^ Furthermore, the necessity of prosecuting the inquiry, and the constructive notice arising there- from, extend to every instrument forming an essential link in the direct chain of title through which the purchaser holds; that is, to tlie ultimate source of his title, and to every succeeding deed through which the title nuist be directlj^ traced, and which is neces- sary to its establishment. The purchaser is thus charged with notice of every provision in each separate instrument constituting the entire series by which his own interest can be affected, or from v;hich others have derived or may derive any rights.- Not only is a purchaser thus charged with a constructive notice of every- thing material in the deeds which form the direct chain througli which his title is deduced, but if any of these convej-anees should contain a recital of or reference to another deed otherwise col- lateral, and not a part of the direct series, he would by means of such recital or reference have notice of this collateral instrument, of all its contents, and of all the facts indicated by it which miglit be ascertained through an inquiry prosecuted with reasonable dili- gence.^ Finally, the notice extends to all deeds and other instru- Deason v. Taylor, 53 Miss. GOT, 701, H. & B. 97; National Bk. v. Morris, 114 Mo. 255, 21 S. W. 511, 35 Am. St. Rep. 754, 19 L. R. A. 463; Roll v. Rea, 50 N. J. Law 264, 12 Ad. 905; PriTitrl'" v. Dunn, 37 \Ms. 449, 404, 19 Am. ]\r]). 772. H. & B. 92. ^ Honore's Ex'rs v. Bakewoll, 6 B. Mon. 67, 43 Am. Dec. 147; Howard Ins. Co. V. Halsey, 8 N. Y. 271/59 Am'. Dee. 478. See Roll v. Rea, 50 N. J. Law 264, 12 Atl. 905. 'Taylor v. Stibbert. 2 Ves. 437, 2 Keener 450: Sweet v. Henry, 175 X. Y. 268. 67 N. K. 574. '^ Howard Ins. Co. v. Halsey. 8 N. Y. 271, 59 Am. Dec. 478; Brown v. Simons, 44 N. H. 175. ^Hope V. Liddell, 21 Beav. 183: Deason v. Taylor, 53 :Miss. 697. H. & B. 97; Fonse V. (Jillillnn. 45 W. Va. 213. 32 S. K. 178, 185. § Go2 EQUITY JUiasriiLDENCK. 2S2 iiients properh' fallini>- within the two preceding rules, whether thf}^ are recorded or unrecorded. In other words, a purchaser is charged with notice of any deed forming a part of his direct chain of title, and of every collateral instrument recited or referred to, as well when it is unrecorded as when it is recorded.* ^ 630. Particular Instances. — The constructive notice arises not only from recitals, references, and other similar statements of fact, but also from the character and description of the parties to a deed or other instrument of title. A purchaser may thus be charged with notice of the rights held by third persons, from the fact that they are joined as parties to a conveyance, or from the character or description of them appearing in the instrument, as married women, trustees, administrators, executors, and the like.^ The im- mediate parties — grantor and grantee, mortgagor and mortgagee — by whom and to whom the instrument is directly executed have, of course, a notice of everything which it contains. The notice is then really an actual one, rather than constn^ctive ; for the imme- dihte parties are assumed to have read their own conveyance, and to have become acquainted with all of its eontents.- 5; 631. When the Notice Arises. — ... A recital, reference, or other statement in a title deed, in order to operate as notice, must be so definite and distinct that it conveys some information to the party, or else arouses his attention by directing him to the source of information. A statement may be so vague and uncertain in its terms that it will not put a purchaser upon an inciuiry, and will not therefore affect his conscience with notice.^ Finally, the notice arising from title deeds, like every other instance or kind of constructive notice, does not operate between the immediate i)ar- ties to a conveyance, — the grantor and grantee, mortgagor and mortgagee, — but only between a purchaser, grantee, or mortgagee and some prior party holding or claiming to hold an adverse right, interest, or title. - § 632. 4. By Lis Pendens — Rationale of the Doctrine. — It ha.s been stated in numerous judicial opinions, and the same view has been U'rawfonl v. Cliicago. etc. E. Co.. 112 111. :il4: White v. Foster. 102 :\Iass. :!7.'). :!S0: J>aker v. :Matlier, 2,5 Mic-h. 31. ' A purchaser l)y a deed from a yraiitor who is a trustee, whose only title is that of a trustee, may have notice of the trust, and will eertainlj' have such notice if the grantor executes the deed in his character as trustee: Mar- bury V. Ehlen, 72 .Md. 200. 10 Atl. 64S, 20 Am. St. Rep. 467: Mercantile Nat. J!ank v. Parsons, 54 -Minn. 56, 55 N. W. 825, 40 Am. St. Eep. 209. ' -McMurphy v. Adams, G7 N. H. 440, 30 Atl. 33.'i. M3ell V. Twilight, 22 N. H. 500; Durst v. Daugherty, 81 Tex. G50, 17 .S. W. 388. ^Champlin v. Laytbi. Taige, 180, 203. 28;> COXCKHXIXG NOTICE. § G3o repeated b\' text-writers, that the rule eoncernin<;' tlie effect of li.s pendens is wlioUy referable to the general doctrine of constructive notice. It has been said that a pending- suit in eipiity operates as a constructive notice to the world, and that a purchaser pendente lite is bound by the final result of the litigation, because he is charged with such a notice of the proceeding, entirely irrespective of any information which he may or may not have had. Courts of the highest ability and authority have, however, adopted a somewhat different theory. According to this view, ''it is not correct to speak of lis pendens as affecting a purchaser through the doctrine of rxtice, though undoubtedly the language of the courts often so describes its operation. It affects him, not because it amounts to notice, but because the law does not allow litigant parties to give to others, pending the litigation, rights to the property in dispute, so as to prejudice the opposite party. Where a litigation is pend- ing between a plaintiff and a defendant as to the right to a parti- <:'nlar estate, the necessities of mankind require that the decision of the court in the suit shall be binding, not only on the litiuant parties, but also on those who derive title under them by alienations made pending the suit, whether such alienees had or had not notice of the pending proceedings. If this were not so, there could be no certainty that the litigation would ever come to an end. A mort- gage or sale made before final decree to a person who had no notice of the pending proceedings would always render a new suit neces- sary, and so interminable litigation might be the consequence."^ It must not be supposed that this mode of explanation affects in the slightest degree the settled rules concerning lis pendens, or alters the rights and liabilities of alienees from a party to a suit ; its pendency; it may, however, prevent the extension of the rroetrine. and restrict its further application to particular i)ersons and conditions of fact. § 633. The General Rule.— If we accept this rationale of the doctrine as correct, the general rule may be accurately formulated as follows: During the pendency of an equitable suit, neither party to the litigation can alienate the property in dispute, so as to affect the rights of his opponent. This brief proposition in reality con- tains the entire doctrine.^ Adopting, however, the ordinary mode of explanation, which regards the effect of lis pendens as merely a particular instance of constructive notice, "the general and es- tablished rule is," using the language carefully chosen by Chancel- 'Boilaniy v. Sabine, 1 Do Gex & J. 5(56, fuS, 584. To tlip saine effect, most of the recent cases: Turner v. Houpt, .53 N. J. Eq. 526, 33 Atl. 28, 3 Keener 646; Norris v. He, 152 III. 190, 199, 38 N. E. 762, 43 Am. St. Rep. 233. •Turner v. Houpt, 53 N. J. Eq. 52G, 33 Atl. 28, 3 Keener 046. § (j33 equity JUItlSPKUDEXCE. 284 lor Kent in a leading case, "that a lis pendens — a pending suit in ecaiity — duly prosecuted, and not collusive, is notice to a purchaser of the property in dispute from a party to the litigation, so as to ati'ect and bind his interest by the decree ; and the lis pendens be- gins from the service of the subpoena after the bill is filed."- Wher- ever, therefore, an equitable suit affecting the title to a particular estate as its subject-matter has been begun by service of process, and is prosecuted in good faith, whether we say that the lis pendens is constructive notice to all the world, or regard the doctrine as necessarily resting upon a basis of expediency, the result is the same; an alienee of the subject-matter from either party during the pendency of the suit takes it subject to the rights of the other party involved in the controversy, and is bound by the decree or judgment finally rendered. In the great majority of ordinary liti- gations the rule has naturally been applied to an alienee of the defendant ; but it is also extended, wherever the nature and object of the suit require, to one who derives title from the plaintiff.^ The same priiu iph embraces actions at law, as well as suits in equity; but from the essential nature of legal titles, it need not ordinarily be invoked at law. In all actions at law to which the doctrine could apply, — as, for example, in actions of ejectment, — if the plaintiff recovers a judgment against the defendant, he has also a perfect title against any alienee of the defendant, since he must necessarily recover upon the strength of his own legal title; in other words, the defendant can never give to an assignee or alienee a better title against the plaintiff than that which he himself holds.* It is otherwise in many equitable suits. "Where the plain- tiff in eciuity has only an equitable title or right to the property in dispute, it might be possible for the defendant to transfer the sul)ject-matter to a bona fide purchaser, and thus to clothe m^^-.. ti-ansferee with a title overriding the equity of the plaintiff. The doctrine of constructive notice by lis jiendens is therefore an es- sential incident of many, equitable suits, in order to prevent a failure of justice. It naturally came to be regarded as peculiar to proceedings in courts of eciuity, although the same princiiile Avould operate, if necessary, at law. This analysis and description, it should be observed, are entirely independent of any statutory modifications which have been made in some of the states and in England. ■^ Alien V. Foolo, r)4 Miss. 328, 3.33; Stout v. Pliillippi Mfg. Co., 4i W. Va. 339, ;■)() Am. !St. Kep. 853, and note; ^lurray v. Bailoii, 1 Jolms. Cli. oOfi, 1 Scott 520 (Chan. Kent) ; :\Iiu'ray v. Lylburn, 2 Jolins. Cli. 441, 1 Scott 52G (Chan, lient) ; Warren County v. Marcy, 07 U. S. 9G, 1 Scott 529. •' See post, «5 638. ' Sheridan v. Andrews, 49 N. Y. 478. 285 COXCKKXIXG NOTICii:. § ()3 1 § 634. Requisites of the Lis Pendens. — Having thus exphiiued the general rule and the reasons upon which it rests, I shall very briefly state those incidents of the pending suit which must exist in order that the rule may operate and its effects may be produced upon an alienee. The lis pendens and the consecpient notice, to use the language ordinarily employed, only begin from the sei'vice of a subpoena or other process after the filing of the bill, so that the court may have acquired jurisdiction of the defendant.' The effect of the suit as notice continues through the entire time of its pen- dency, and ends when the suit is realh' ended by a final judgment." In order, however, that a purchaser pendente lite may be thus affected, the suit must be prosecuted in good faith, with all rea- sonable diligence, and without unnecessary delay. A neglect to comply with this recjuisite would relieve a purchaser from the effect of the lis pendens as notice.^ The question of reasonable diligence in prosecuting the suit must, however, depend upon the circumstances of each case. Thus the abatement of the suit by the death of a party will not destroy its effect as lis pendens, pro- vided it is revived without unnecessary delay.* Even a judgment in favor of the defendant does not necessarily at once terminate the lis pendens. If the unsuccessful party is entitled to appeal, the constructive notice continues during a reasonable time for an appeal to be tak-en.^ The effect of lis pendens upon the rights of an alienee depends not only upon this element of time, but also upon the averments of the pleadings. Proper and specific allegations ar? a necessary requisite. Lis pendens is notice of everything averred in the pleadings pertinent to the issue or to the relief sought, and of the contents of exhibits filed and proved. *^' In order that the notice may thus operate, the specific property to which the suit relates must be pointed out in the pleadings in such a manner as to call the attention of all persons to the very thing, and warn them not to intermeddle. It is not necessary that the land should be described by metes and bounds; certainty to a common intent — 'Norris v. Ilf, 1.52 111. 190, 100, 43 Am. 8t. Rep. 233, 38 X. E. 762: Allen v. Foole, 54 Miss, 323, 333; Murray v. Ballon, 1 Johns. C'h. ,566, 576, 1 Scott 520. - Wliittield V. Ixiddle, 78 Ala. 90. As to etfect of termination of suit by- abandonment or dismissal, see Xortliam v. Boyd, 66 Tex. 401, 1 S. \V. 109. •'Murray v. Ballou, 1 Johns. Ch. 566, 1 Scott 520: Tinsley v. Rice, 105 (,'a. 285, 31 S. E. 174; Taylor v. Carroll, 89 Md. 32, 42 Atl. 920, 44 L. R. A. 479. * Watson V. Wilson. 2 Dana 406, 26 Am. Dec. 459. ^Olson V. EiebpUe. 110 Iowa, 594, 81 N. W. 801, 80 Am. St. Rep. 327; Dehell V. Foxwc.rtliy, 9 B. Mon. 228. «Norris v. lie, 152 111. 190. 204, 38 N. E. 762, 43 Am. SI. Rep. 2.33: Allen v. Poole, 54 .Miss. 323, 333; Stout v. Philippi Mfg. etc. Co., 41 W. Va. 339, 56 Am. St. Ren. 843, 23 ,S. E. 571. i> (i;;(; equity jukispi;udi:xce. 286 reasonable certainty — is sufficient. The specific subject-matter should be so described and identified that no one, upon readinu' the allegations, could have a reasonable doubt as to what was in- tended. The averments of the bill "must be so definite that any one on reading it can learn what property was intended to be made the subject of litigation."^ The notice arising from a pending suit does not affect property not embraced within the descriptions of the pleading; nor does its operation extend beyond the prayer for relief.^ § 635. To What Kinds of Suits the Rule Extends— Suits Con- cerning Land. — It may be stated as a general proposition that the doctrine of notice by lis pendens extends to all equitable suits Avhich involve the title to a specific tract of land, or which are brought to establish any equitable estate, interest, or right in an identihed parcel of land, or to enforce any lien, charge, or encumbrance upon land. Among the most familiar instances in which the rule applies are suits to foreclose mortgages, to enforce vendor's liens, to estab- lish trusts, and the like.^ ;< 636. Suits concerning Personal Property. — While the doctrine, in general, applies to all equitable suits in which the subject-matter is land, or any e.state or interest therein, the proposition is equally true and general that it does not extend to ordinary suits cont ern- ing personal property, goods and chattels, securities or money. The reason for this restriction is obvious; there is no necessity for in- voking the rule in such litigations, under all ordinary circum- stances. The decisions have, however, admitted an exception to this general proposition in one class of suits. Actions brought to enforce a trust extending over personal property, goods, and se- curities not negotiable in their nature are held to be within the operation of the rule. A purchaser of such trust property from the trustee, during the pendency of the action, is charged with con- structive notice, and his purchase is invalid as against the plaint itl' whose rights are established by the final decree.^ It is well settled ^Xorris v. lie, 152 111. 190, 202, 43 Am. St. Rep. 233, 38 X. E. 762; .Jones v. .McNarrin, 68 Me. 334, 28 Am. Rep. 66; Allen v. Poole, 54 Miss. 323. 333. Mbid. As to the effect of amending the hill, see Norris v. lie, 152 111. 190, 43 Am. St. Rep. 233, 38 N. E. 762; Turner v. Houpt, 53 N. J. Eq. 520, 33 All. 28, 3 Keener 646. 'Allen V. Poole, 54 Miss. 323, 333; Norris v. He, 152 111. 190, 43 Am. St. Rep. 233, 38 JSJ. E. 762 (foreclosure of mortga.ae). As to actions for divorce and alimony, see Houston v. Tinimernian, 17 Oreg. 499, 11 Am. St. Rep. 848, H. & B. 98. See, also, Green v. Rick, 121 Pa. St. 130, 6 Am. St. Rep. 760, 15 All. 497, 2 L. R. A. (wlien doctrine not applicable). 'Murray v. Lylburn, 2 .Johns. Ch. 441, 1 Scott 526; Diamond v. Lawrence ('ounty Bank, 37 Pa. St. 353, 78 Am. Dec. 429; Bergman v. Bergman, 43 Oreg. 456, 72 Pac. 1086, 73 Pac. 341, 99 Am. St. Rep. 771. 28? COXCEUXING XOTICE. § (i:38 that the doctrine of constnietive notice from lis jHMideiis docs not embrace suits concerning negotiable instruments or moneys, so as to affect the title of a transferee for value and in good faith durinu" the pendency of the action, even when the transfer was made in direct violation of an injunction, so that the indorser or assignor M'ould be punishable for the c-oiitempt.- § 637. What Persons are Affected by the Notice. — Assuniinu- that all the foregoing requisites exist, the constructive notice by the pendency of the suit extends only to those who derive tit]»' from a paiii/ or privy pendente lite. A purchaser of the very land described in the pleadings from one who is not a part}* to the suit. or a priv}^ to such party, is never chargeable with the constructive notice.^ If. however, a person has acquired a prior right to the specific land, the commencement of a suit affecting the same land will not invalidate any act which he may subsequently do in pur- suance of such antecedent right, or for the purpose of carryinii- it into effect.- § 638. To a Purchaser from Either Litigant Party. — The ques- tion yet remains whether the rule of constructive notice applies to a purchaser pendente lite from either party to the litigation. The principle upon which the doctrine is based, and all the reasons of policy by which it is supported, clearly extend alike to both the litigants. In the great majority of instances, it has undoubtedly been a purchaser from the defendant who has been charged with the constructive notice. The plaintiff, however, is equally prevent- ed from alienating the subject-matter of the controversy, to the prejudice of the defendant, wherever, from the nature of the suit, he might have in the result, by the final decree, a right established as against the plaintiff.^ Finally, is a purchaser from one defendant pendente lite affected by the right of another defendant in the same suit? This special question has, upon careful consideration, been answered in the negative. It has been held that where a person without actual notice of a suit purchases from one of the defendants -.Murray v. Lvlburn, 2 .lolms. C!i. 441, 1 Scott 526; Warren County v. Alarcy, 97 U. S. !)G, 1 Scott 529. 'Noyes v, Crawford, 118 Iowa, 15, 90 Am. St. Rep. .363, 91 X. W. 799: Merrill v. Wri^lit (Neb.), 91 N. W. 697; Brtmdage v. Biggs, 25 Ohio St. 652. 656. = That the holder of an unrecorded deed or mortgage who does not record it until after the lis pendens in a suit against his grantor or mortgagor, is not a purchaser pendente lite, see J>amont v. Cheshire, 65 N. Y. 30, 37, 3S ; Haughwort v. Murphy. 22 N. J. Eq. 531, Sh. 198. Contra, that he is, in effect, a pendente lite purchaser, see Smith v. Worster, 59 Kan. 640, 54 Pac. 676, 68 Am. St. Rep. 385. The question depends largely upon the wording of tlie lis pendens and recording statutes. 'Bellamy v. Sahine. 1 De Gex & J. 566, 580; Henderson v. Wanamaker, 79 Fed. 736, 25 C. C. A. 181. ^ 040 EQUITY JUJilSPKUDEXCK. wJSiS property which is the subject of it, he is not, in consequence of the pendency of the suit, affected by an equitable title of another de- fendant which appears on the face of the proceedings, but of which he has no notice, and to which it is not necessary for any purpose of the suit to give eft'ect.'-' § 639. The Statutory Notice of Lis Pendens. — The general rule concerning constructive notice by lis pendens, although firmly set- tled, has always been regarded by the courts as a very harsh one HI its application to bona fide purchasers for value; it has only been tolerated from the supposed necessity. It has not been a favorite wnth courts of equity, and has never been enlarged in its operation beyond its well-settled limits. These considera- tions have led the English Parliament and the legislatures of many states to interfere, and to create most important statutory modi- fications and restrictions. It should be observed that wherever the terms of these statutes, and the alterations made by them, apply only to suits concerning real estate, — which is true in much of the state legislation, — the rule as to suits concerning personal property remains unchanged, tlie same as at the common law.^ ^ 640. Modern Statutory Provisions. — By the English statute, a I)eiiding suit will not affect a purchaser for value and without ex- pj-ess notice, unless a notice of lis pendens has been properly regist- ered in compliance \vith the statutory directions.^ One ciuite gen- eral type of the American statutes enacts that in every suit relating to or affecting real estate the plaintiff may at the time of com- mencing the action, or afterwards, prior to final judgment, file or procure to be recorded in the clerk's or recorder's office of tlie county in which the land is situated a written notice descril)ing the lands affected and the general nature of the action, and that no suit concerning real estate shall be notice to a purchaser pen- dente lite for value and without actual notice unless and until such a notice of lis pendens has been thus filed or recorded. The terms of these statutes apply alike to legal and to equitable actions. The second type of these statutes differs from the former one only in the provisions being more general, and extending to all suits Mdiich could possibly furnish an occasion for the operation of the original doctrine. The constructive notice in all actions to which the equit- able rule would have applied is made to depend upon the filing or recording of a proper notice.- It is only necessary to add that all = Bellamy v. Sabine, 1 De Gex & J. 566 ; Goishaker v. Pancoast, 57 N. J. Eq. 60, 40 At!. '200. ' Leitoh V. Wells. 48 X. Y. 585, 602. 'Stats. 2 & 3 Vict., c. 11, sec. 7. ^ For reference to these statutes and the decisions thereunder, see Pom. Eq. Jur., 3d ed.. S 640, notes. 289 C0^'CEKN1XG XOTICE. § (! l"2 the special rules collected in the foregoing paragraphs concerning the commencement of the lis pendens, its continuance as long as the suit is diligently prosecuted, its termination by the final judg- ment which ends the action, the sufficient description or identifica- tion of the subject-matter by the allegations of the pleadings, and the persons who are affected by the constructive notice, are still in force, and apply to all cases which come within the operation of the statutory provisions. § 641. 5. By Judgments. — By the original doctrine of equity, in- dependent of all statutory changes, it was settled that a final judg- ment or decree b}^ which the lis j^endens is ended and the contro- versy is terminated was not a constructive notice to persons not parties to the suit,^ except to a purchaser pendente lite.- It should be remembered in this connection that a decree in chancery original- ly acted only upon the person of a defendant, and did not create any interest or title in or lien upon the property affected by the suit. While this original rule was still unmodified by statute, a purchaser of the property affected by a judgment, even though it was not docketed, would be bound by it. provided he had, prior to the purchase, received actual notice of it."* If it was shoAvn that a subsequent purchaser had made a search for judgments, actual notice of an existing judgment might also be inferred from that fact.* The British Parliament has, within the past generation, com- pletely changed the original law concerning the effect of judgments, and has adopted another policy for England and Ireland, which is carried out by very stringent statutory enactments. . . . § 642. American Legislation. — A statutory policy with respect to judgments has also been adopted in this country, which is sub- stantially the same throughout all the states. The state statutes have generally provided, with variations in the detail, a mode of docketing judgments at law; and the same method has been extend- ed in many states to equitable decrees and judgments for the re- covery of money. This docketed judgn.ent or decree is generally made a lien, for a prescribed period of time, upon all lands of the judgment debtor situated within the same county, and a construct- ive notice to all subsequent purchasers and encumbrancers of such lands. Intended purchasers or encumbrancers are therefore obliged, for their own protection, to make a search of the official records over the period during which the statutory effect is given to the ' Worsley v. P'arl of Scarborou, for a valuable consideration, and this second deed was also recorded. The court held that the recording of the mortgage to A, being prior to the time when the title, as appeared by the record, was vested in the mortgagor, did not operate as constructive notice to the grantee. B, who took his deed after the legal title was vested in his grantor. Chancellor Walworth said, in sul)- stance, that as the mortgagor had not the legal title when the mortgage to A was given, but only a contract to purchase the land from one S., it followed that the defendant, B, was not charged Avith constructive notice by the record of such mortgage. In taking a conveyance, B would not search for mortgages by his grantor prior to the date of his deed from S. : Ford v. Unity Church .Society, 120 Mo. 498, 2.5 S. W. 394. 41 Am. St. Rep. 711, 23 L. R. A. 5G1; Calder v. Chapman, .52 Pa. St. .']5n. !)1 Am. Dec. 103. ^Orvis v. Newell, 17 Conn. 97: .laques v. Weeks, 7 Watts, 261, 271. 299 COXCKl{.\lN(i NOTICE. > <5Gl nte, like the coiistnietive iiDtice arising- from a registry, to postpone his own interest to that conferred by the prior unregistered instru- ment? This question was presented to the English courts of chan- cery at an early day, and was settled by them in accordance with the general principles of equity; and their decisions have with great uniformity been adopted and followed by the American courts. It is the established doctrine that a notice of some kind, of an exist- ing, prior, unrecorded conveyance, operates, like the constructive notice arising from a registry, to postpone a subsequent and recorded instrument. If a subsequent purchaser, even for a valuable consid- eration, had received notice of a prior unrecorded instrument, then he cannot acquire or retain the precedence from a registi-ation of his own conveyance; his conveyance, though recorded, is subordinate and postponed to the prior unrecorded one of which he had received notice.^ This conclusion, reached originally by the court of chan- cery, has, in England, furnished a rule for that tribunal alone, and has not been accepted by the courts of law^; in this country it is recognized and enforced alike by the courts of equity and of law, for the reason that both have jurisdiction in matters of fraud. - The doctrine is, in fact, a mere application of the broader general principle that the person who purchases an estate, although for a valuable consideration, after notice of a prior equitable right, makes himself a mala fide purchaser, and will be held a trustee for the benefit of the person whose right he sought to defeat. § 661. (7) What Kind of Notice is Sufficient to Produce this Effect. — The doctrine, being thus established in England and throughout this country, that some notice of a prior unregistered conveyance may supply the want of a registration, the inquiry finally remains, What species or amount of notice will avail to produce this effect? Or, to put the (juestion in its most practical fonn, whether an actual notice is requisite, or whether a comiruciive notice may also be sufficient. It is plain, if the theory is accepted in its full and literal sense, that the positive frand of the subse(|uent purchaser in endeavoring to obtain a precedence by reg- istering his own instrument while he has notice of the prior convey- ance is the sole foundation of the doctrine, that it is difficult to escape from the conclusion that the notice which shall thus render his conduct fraudulent, and destroy the efficacy of his regis- tration, must be an actual one. It is not in accordance with general 'Tin's doctrine, Avhich is nakedly stated in the text Avitlunit its reasons, was settled by Lord Hardwieke (A. D. 1747), in the celebrated case of Le Neve v. Le Neve, Amb. 430; 2 Lead. Cas. Eq. 4th Am. ed.. 109, 1 Scott .'530: Oreaves v. Tofield, L. R. 14 Ch. Div. .503, 1 Scott 23,5. *lt is rejected, however, in a few states, notably Ohio and North Carolina. § G(i5 EQUITY JUUl&I'KLDEXCE. 300 principles to pronounce a person guilty of fraud by reason of knowl- edge constructively imputed to him, — knowledge which he may in fact never have acquired, but which he is, from considerations of policy, presumed to have acquired, treated as having acquired. § 663. American Rules. — The same diversity and tiuctuation of opinion appear among the decisions made by the courts of the various states, and in some instances between the earlier and later decisions of the same court. In one class of cases, an actual notice rendering the second purchaser's conduct positively fraudulent is held to be essential. In another class, no distinction, in respect to the operation of notice, is recognized between the subsequent pur- chaser under the recording acts and any other subsequent purchaser; the rights of both are treated as being equally affected by a con- structive notice. Two causes liave operated to produce this con- fiict. It has resulted in part fnmi the different terms which the legislatures of various states have employed in the most important clauses of the recording acts It has resulted in greater part, I think, from a lack of unanimity in the meanings given by the courts to "actual" and to "constructive" notice respectively; from a con- fusion and misconception with respect to the essential distinctions which exist between the two species. The conflict is therefore more apparent than real.^ § 665. Rationale of Notice in Place of a Record. — I shall conclude this subject by an attempt to ascertain the true rationale of the rule concerning notice as a substitute for an actual registration. If the fraud of the second purchaser is adopted as the only expla- nation, it seems impossible to hold with consistency that anything less than actual notice, or even actual knowledge, of the prior eon- ve^-ance acquired by him, should avail in place of the record. We have seen, hoAvever, that the vast majority of the decisions, even while nominally requiring an actual notice, do not demand actual knowledge, but are satisfied with a notice proved b}' indirect evi- ' In nearly all the states whose statutes in terms demand an "actual" notice, the courts admit the operation of those species which are uniformly regarded as belon<;ing to the genus constructive, viz., notice arising from lis pendens, recitals in title papers, between principal and agent, and even possession. The courts of the same states hold that the "actual" notice of the statute does not mean knowledge. a)id may be shown by any kind of circumstances which would put a reasonable man upon inquin*. Practically, it seems very difficult to distinguish "actual" notice so defined from constructive notice. The courts of a few states have interpreted their statutes more literally, and have estab- lislied a more stringent rule requiring an actual notice proved by direct evidence. Of this class, the most important is Massachusetts: See Toupin v. Peabody, 1f)2 Mass. 473. 39 N. E. 280: Robertson v. Wheeler. 102 111. 56H, 44 X. E. 870: Essex Co. i'.ank v. Harrison. r->l N. J. Eq. vitliout it. § 667. Scop'e and Applications. — This general rule is of wide ap- plication. It embraces in its operation not only ordinary agents and attorneys, but all persons who act for or represent others in business relations and transactions. Thus it applies to directors, managers, presidents, cashiers, and other officers, while engaged in the busi- ness affairs of their corporations;^ to trustees acting on behalf of their beneficiaries;- to an agent acting on behalf of a married wom- an;'' to one of two or more joint agents;'* and to all actual agents, whether the agency be express or implied.^ The general rule also applies wliere the same agent or attorney in reality acts on behalf of both parties to the transaction; for both the grantor and the grantee, the vendor and the vendee, the mortgagor and the mortga- gee.'' This special api)!ication of the rule is carefully guarded by the courts, so that it shall not work injustice, and is not, there- fore, enforced unless the same agent is in fact acting for both l)arties.'^ -.See Boursot v. Savage, L. R. 2 Eq. 134, 142. ' Jiiirmingham Trust & Sav. Bank v. Louisiana Xat. Bank, !)!) Ala. 'Mi), l.'i South. 112, 20 L. R. A. 600. -Willes V. Greenhill, 4 De Gox, F. & .7. 147, 150; Batavia v. Wallace, 102 Fed. 240, 42 C. C. .A. .'510. • ' Satterlield V. Malone, 35 Fed. 445, 7 L. R. A. 35; Goodbar v. Daniel, 88 Ala. -583, 7 South. 254, 16 Am. St. Rep. 76. MVittenbrock v. Parker, 102 Cal. 03, 36 Pac. 374, 41 Am. St. Rep. 172, 24 L. R. A. 197; Chapman v. Chapman, 91 Va. 397, 21 S. E. 813, 50 Am. St. Rep. 846. ^ Watson V. Wells, 5 Conn. 468 (partner) ; Waldman v. North British, etc.. Ins. Co., 91 Ala. 170, 8 South. 666, 24 Am. St. Rep. 883 (sub-agent) ; liates v. American Mortgage Co., 37 S. C. 88, 16 S. E. 883, 21 L. R. A. 340 (sub-agent). i\Iany question have arisen as to the authority of soliciting agents and other s])eeial agents of insurance companies to bind their principals by information received in the discharge of their duties; especially as to whether the knowledge obtained by such an agent as to the falsity of representations made by the insured is imputed to the insurer so as to effect a waiver of conditions in tlie policy. See Toilette v. Mutual Accident Ass'n, 110 N. C. 377, 14 S. E. 923. 28 Am. St. Rep. 093, 15 L. R. A. 668; Reed v. Equitable F. & M. Ins. Co., 17 R. 1. 785, 24 Atl. 833, 18 L. R. A. 496. "Le Neve v. Le Neve. Anib. 436, 2 Lead. Cas. Eq., 4ih .\m. ed. 109, 1 Scott 536; Pine Mt. Iron & Coal Co. v. Bailey, 94 Fed. 258. 36 C. C. A. 229; Holden v. New York, etc.. Bank, 72 N. Y. 286. '.Also the mere fact thai two corjmrations have the same attorney, or tin- same directors, does not render each chargeable with notice of whatever i-^ f-'Tiown or done by the other: See In re Hampshire Land Co. [1806] 2 Ch. 74:>. § 670 EQUITY JURISrRUDEXCE. 304 §668, Limitations — Within the Scope of the Agent's Authority. ■ — There are, on the other hand, certain important limitations upon the operation of the general rule. The employment of an agent or attorney to do a merely ministerial act for his principal does not constitute him such an agent that the rule as to constructive notice will apply.^ Also, in pursuance of the fundamental doctrine of agency concerning the powers of agents, the notice given to or in- formation acquired by the agent, in order to be operative upon the principal, must be within the scope of the agent's authority, to bind the principal. If an agent cannot bind his principal by acts beyond the limits of his authority, a notice beyond those limits is equally nugatory.- § 669. Notice to Agent, Actual or Constructive. — If the agency exists, and the foregoing requisites are complied with so as to admit the application of the general rule, then it will operate with equal force and effect, whether the notice to the agent be actual or con- structive. Actual knowledge may be brought home to the agent by the most direct evidence, or he may be chargeable with construct- ive notice by a lis pendens, by a registration, by recitals in title deeds, by possession of a stranger, or by circumstances sufficient to put a prudent man upon an inquiry; in all suc-h cases the effect upon the principal is the same.^ The notice with which the principal is charged is, however, constructive, since it is a presumption, and gen- erally a conclusive presumption, of the law, and takes effect even when the principal in fact received no communication of information from his a gent. - §670. Essential Requisites — (1) When the Notice must be Re- ceived by the Agent — During His Actual Employment. — Having thus stated the general rule, I shall now proceed to describe with more fullness its essential elements, — the requisites which must exist in order that it may operate. In the first place, as to the time when the information constituting notice must be acquired by or given to the agent. In order that the principal may be affected with a constructive notice under this rule, the information constituting ^ As wliere lie is employed siinjily to ])roeuio (lie execulion of a deed: Wylie V. Pollen, 3 De (Tex. J. & S. 5ft(), 001: ov to record a mortgage: Anketel v. Converse, 17 Ohio St. 11, 91 Am. Dec. 11.5. As to sub-agents, see note 5 to § 667. = Pennoyer v. \Aillis, 20 Oreg. 1, 30 Pae. 568, 46 Am. St, Rep. 594; Trentor V. Pothen. 40 Minn. 298, 49 N. W. 129, 24 Am. St. Rep. 225, and note. ^ See Kennedy v. (^reen, 3 Mylne & K. 099, 719, per Lord Brougham; Bank of Tnited States v. Davis, 2 Hill. 451, 401. - i'hei-e can be no greater misconception of its legal meaning, and no more complete confr.sion of the distinctions betAveen the two kinds of notice, than to call the notice imputed In a principal through his agent an "actual" notice: See Espin v. Pemberton, 3 De (lex & J. 547, 554. 305 COXCERXIXG XOTICE. § 671 the notice must be obtained by or imparted to the agent while he is in fact acting as agent, — while he is actually engaged in doing his principal's business, in pursuance of his authority, and in his char- acter as agent. ^ This special requisite finds a frequent application in the relations subsisting between directors and officers and the corporations to which they belong.- §671. (2) In the Same Transaction. — In the second place, in order that a principal may thus be charged with constructive notice, not only must the person first receiving it be in fact an agent and be actually engaged in the business of his representative employ- ment, but the notice must be given to, or the information acquired by, the agent or attorney in the course of the same transaction which is sought to be affected by the constructive notice; that is, in the same transaction from which the principal's rights and liabilities arise, which, it is claimed, depend upon or are modified by the con- structive notice imputed to him. This is, in general, a Avell-settled reipiisite; and the grounds for it, depending upon motives of ex- pediency, were thus stated by Lord Ilardwicke in an early case. A different rule, he said, "would make purchasers' and mortgagees' 'Saffron, etc., Soc. v. Rayner, L. R. 14 Ch. Div. 40() ; Goodbar v. Daniel, S8 Ala. 583, 7 South. 254, 16 'Am. St. Rep. 76; Witfcenbrock v. Parker, 102 Cal. 93, 36 Pae. 374, 41 Am. St. Rep. 172, 24 L. R. A. 197. - It has been held in numerous American decisions that notice given to, or information acquired by, a corporation director, manager, or officer will not affect the corporation itself with a constructive notice, unless he was at the time of the giving or acquiring acting on behalf of his corporation. It is not enough that he was, at that time, clothed with the official character; lie m)ist also, in pursuance of his official functions, have been actually engaged in transacting the biisiness of his corporation. There are two exceptions or limitations. If tlie information received bj' him is of such a nature or is acquired imder such circumstances tiiat it is a part of his express official duly to comnuuiicate what he knows or has learned to the managing body or board, then the corporation will be affected with a constructive notice. Also, if the transaction in which the information was obtained was so recent, (ir the information itself was so ])ositive, direct, and strong, that it must l)e regarded as certainly remaining present in the mind or memory of the odicial, then the case may fall imder the operation of a rule stated in a subsequent paragraph (post, §672), and the constructive notice to the corpora- tion may follow: Kearney Bank v. Froman, 129 ]\Io. 427, 31 S, W. 769, 50 Am. St. Rep. 456; Curtice v. Crawford Co. Bank, 110 Fed. 830. Many cases make the distinction that private information is not notice to the corporatimi wlicn the officer who has it takes no part in the transaction which is sought to lie affected with the constructive notice, but that if the officer, having pertinent information, personally participates on behalf of his corporation in such subsequent transaction, Tlie corporation may be charged with his knowledge, under the principle of § 672. post: Casco Nat. Bank v. Clark, 130 N. Y. 307, 34 N. E. 90S, 36 Am. St. Rep. 705. For cases where the officer acts in the transac- tion in his own interest and adversely to that of the corporation, see post, § 675. 30 § 6?2 EQUITY JUlUSrULDEXCE. 306 titles depend altogether on the memory of their counselors; and agents, and oblige them to apply to persons of less eminence as counsel, as not being so likely to have notice of former transac- tions. "^ § 672. Limitation — Prior Transaction. — The foregoing requisite, general as it is in its ai)[)li('aton, is subject to an important and "vvell-settled limitation, eijually depending upon motives of expedien- cy. Where the transaction in question closely follows and is inti- mately connected with a prior transaction in which the agent was also engaged, and in which he acquired material information, or where it is clear from the evidence that the information obtained by the agent in a former transaction was so precise and definite that it is or must be present to his mind and memory while engaged in the second transaction, then the foregoing requisite becomes inap- plicable ; the notice given to or information acquired by the agent in the former transaction operates as constructive notice to the principal in the second transaction, although that principal was a complete stranger to and wholly unconnected with the prior pro- ceeding or business.^ The explanation of this special rule is plainly to be found in the notion that the information obtained by the agent in his former employment Avas of such a nature, so detinite and certain, that it amounted to actual l-iioiuledge : and as knowledge it is retained by him and carried with him into the subsequent busi- ness which he transacts on behalf of his new principal. While this particular rule is settled by a .strong array of authorities, the courts show a plain determination not to extend it, but to keep it confined within narrow and necessary limits. The two essential requisites of the general rule, together with the foregoing limitation, are the results or phases of one legal conception. In order that the informa- tion obtained b3' an agent may be a constructive notice to his prin- cipal in any given transaction, it must be present to the agent's mind and memory while he is engaged in the transaction which is sought to be affected. This is universally true. If the agent ac- quired the infornuiti(m while acting for his principal, and ivliiJc engaged in that renj same transaction, then it is conclusively pre- sumed that he retains the information present to his mind and in his memory: a failure of memory on his part cannot be shown, and ' Lowther v. Carlton. 2 Atk. 2-42. 1 Scott .">01 ; Banco do Lima v. Anglo-Peruvian Bank, L. R. S Cli. Div. 100, 17."): rrin<;lp v. Dunn, .37 Wis. 449, 19 Am. Rep. 772, H. & B. 92; Constant v. University of Rochester, 111 N. Y. 604, 19 N. E. 031, 7 Am. St. Rep. im, 2 L. R. A. 734. ^The Distilled Spirits, 11 Wall. S.'SO; Holden v. New York & Erie Bank. 72 N. Y. 280, 292; McClelland v. Saul, 113 Iowa 208, 84 N. W. 1034, 86 Am. St. Rep. 370: Brothers v. Bank of Kaukauna, 84 Wis. 381, 54 N. W. 786, 36 Am. St. Rep. 932. 307 • C'OXCEliiSlAU NOTICE. §64 5 the i)rincipal is chariied with the constructive notice. If the agent ae(juired the iufonnation in a former and independent transaction, then it is prima facie presumed that he does not retain it present to his mind and memory while engaged in the subsequent trans- action in behalf of a principal whom it is sought to charge with notice;- but this presumption may be overcome by evidence. If, therefore, it be clearly shown by the evidence that the agent did in fact retain the previously acquired information present to his mind and memory while engaged in the subsequent transaction on behalf of his principal, then all the essential elements of the gen- eral rule are existing, and the principal is thereby charged with constructive notice. This is, as it seems to me, the true rationale of the doctrine in all its phases and applications, and is fairly de- ducible from the decided eases. § 673. (3) The Information Material, and Such as the Agent is Bound to Communicate. — A third requisite is, that the information acquired by the agent must be material to the transaction in which the principal's rights are to be affected by a notice, and it must be something whith it is the duty of the agent, by virtue of his fiduciary and representative relation, to communicate to his principal.^ It is not essential, however, that the agent should in fact have communicated the information to his principal; on the contrary, the general rule of constructive notice between agent and principal depends upon a legal presumption — absolutely conclusive except in two special instances — that the information received by the agent was communicated to his principal. The powerful motives of policy inhere in this very presumption.- Even when an agent's failure to communicate is fraudulent, provided the fraud consists merely in such concealment and failure, the conclusive presumption still arises, as will be more fully shown in the following para- graphs. § 674. Exceptions. — §675. Agent's Fraud. — The second exception is much more im- - Constant v. University of Rocliester, 111 N. Y. G04, 19 N. E. 63], 7 Am. ^^t. Rep. 7()9, 2 L. R. A. 734; Wittenbrock v. Parker, 102 Cal. 93, 36 Pac. 374, 41 Am. 8t. Rep. 172, 29 L. R. A. 197. M^yl!ie v. Pollen, 3 De Gex, J. & S. 596, 601; Rolland v. Hart, L. R. 6 Cli. (>7S. If the infoiniation of the agent was acquired in a previous employment as attorney for another person, and was private and confidential in its nature, a moral and lofjal ol)lit)fation would rest upon him not to disclose it; he would be under no duty to comnuuiicate the knowledge to a subsequent client, and consequently such client coiild not be charged with constructive notice. The Distilled Spirits. 11 Wall. 356. -Bradley v. Riches. L. R. 9 Ch. Div. ISO, 196: WiUenbrock v. Parker, 102 Cal. 93, 3(1 I'ae. 374, 41 Am. St. Rop. 172, 24 L. R. A. 197. S ii^Q Kl^UlTY JUUJSl'KUDENCK. • o08 poi'tant and of far Avider application. It is now settled by a series of decisions possessing the highest authority, that when an agent or attorney has, in the course of his employment, been guilty of an actual fraud contrived and carried out for his own benefit, by which he intended to defraud and did defraud his own principal or client, as well as perhaps the other party, and the very perpetration of such fraud involved the necessity of his concealing the facts fn.m his own client, then, under such circumstances, the principal is not charged with constructive notice of facts known by the attorney and thus fraudulently concealed. In other words, if in the course of the same transaction in which he is employed the agent commits an independent fraud for his own benefit, and designedly against his principal, and it is essential to the very existence or possibility of such fraud that he should conceal the real facts from his princi- pal, then the ordinary presumption of a connnunication from the agent to his principal fails; on the contrary, a presumption arises that no communication was made, and consequently the principal is not affected with constructive notice.^ The courts have carefully' confined the operation of this exception t% the condition described where a presumption necessarily arises that the agent did not dis- close the real facts to his principal, because he was committing such an independent fraud that concealment was essential to its perpetration; it has never been extended beyond these circum- stances. It follows, therefore, that every fraud of an agent in the course of his employment, and in the very same transaction, does not fall within this exception; and, most emphatically, it does not apply when the agent's fraud consists merely in his concealment of material facts within his o-^vn knowledge from his principal. - § 676. True Rationale of the Rule— Based Wholly upon Policy and Expediency. — The rule of constructive notice through agent to principal, like the doctrine of constructive notice in general, must find its ultimate foundation and only support in motives of policy and expediency. It will not aid us in the least to inquire whether 'Cave V. Cave, L. E. 15 Ch. Div. 639, 1 Scott 517, Ames Trusts 311; American Surety Co. Paul}-, 170 U. S. 133, 18 Sup. Ct, 644; Innerarity v. Merchants' Nat. Bank, 13!) Mass. 332, 1 N. E. 282, ,52 Am. Eep. 710; Gunster v. Scranton, etc.. Co., 181 Pa. St. 327, 37 Atl. 550, 59 Am. St. Rep. 650. The same pre- sumption that the agent's information is not communicated to his principal lias been held in very many cases to arise, independently of any question of fraud, whenever the agent is dealhig Avith tlie principal in his own interest, and adversely to the interest of the principal: First Nat. Bank v. Christopher, 40 N. J. L. 435, 29 Am. Rej). •2t;2. - Boursot V. Savage, L. R. 2 Im]. 134: Holdcn v. New York & Erie Bank, 72 X. Y. 286; Atlantic Cotton MUU v. Indian Orchard Mills, 147 Mass. 268, 17 N. £. 406, 9 Am. St. Rep. 698. 30^' coxc'i:i;xi.\(i notick. § (mO it should be derived from the notion that the agent is identical with his principal, — is the principal's alter ego, — or from the notioii that the principal cannot be allowed to acquire and retain a benefit through means of an act or proceeding which his agent knew to be wrong. The true rationale is, as I have already shown, that the agent's knowledge of material facts, — not necessarily of the ultimate facts, — or what the law assumes to be his knowledge, must always, from considerations of expediency, be regarded and treated as the principal's knowledge; otherwise, the business affairs of society could not be safely transacted. Whenever the knowledge of the agent is actual. — that is. whenever he has obtained actual informa- tion of certain facts, and has therefore received actual notice. — this imputation of his knowledge to the principal is evident and reasonable. Whenever the agent's knowledge of certain facts exists only in contemplation of law, — that is, when he has received a con- structive notice. — the imputation thereof to the principal is no le.^s reasonable and clear. If. under any circumstances, a party, while dealing for himself, must be treated, in contemplation of law, as onr- Avho has acquired certain information, and must be charged witli constructive notice thei-eby. the same result must follow when, un- der like circumstances, the party is dealing by means of an agent. If that assumed information called constructive notice should affect a party acting for himself, it should equally aff'ect him acting through an attorney. As the doctrine is thus based entirely on motives of policy, it should never in its application transcend the scope and limits of those motives. Whenever its operation in a given state of facts would produce manifest injustice, the courts should, if not absolutely compelled by express authority, withhold such opera- tion. A tendency to restrict the doctrine — to confine it within the limits already established — is clearly exhibited by many of the recent decisions. Some of the ablest judges now on the English bench have even expressed a strong dissent from the doctrine itself, in some of its phases and applications, especially where a principal is charged with notice of information acquired by his agent in a former transaction, and which such agent is assumed to have re- membered. The English cases in Avhich this branch of the rule commonly arises are more frequent, involve a diff'erent condition of circumstances, and are consequently much more harsh in their eft'ects, than the analogous class of cases which come before the American courts. i;(^UlTY JLKJ^^i'JirDKNCE. ;5J0 SECTION VI. CON'CEKNJ NG PR lORlTlES. ANALYSIS. § U77. Questions stated. §§ 678-0U2. First. The fumlaiiiontal piiiieiples. §§ G79-081. 1. Estates and interests to \\lii(h tlie doctrine applies. § 082. 11. Equitable doctrine of priority, in yeneral. §§ 083-U92. 111. (Superior and equal equities. § 083. \\ hen equities are equal. §§ 084-092. .Superior equities defined and described. § 685. 1. From their intrinsic nature. §i? 080, 687. 2. From the eti'ects of fraud and negligence. SS 088-092. 3. From the effects of notice. ? 088. General rules and illustrations. § 089. Notice of a ]jrior covenant. §§ 690-692. Time of giving notice, and of \\hat it consists. SS 093-734. Hecona. Applications of these principles. SS 093-715. Assignments of things in action. § 093. Dearie v. Hall. S§ 094-090. 1. Notice b}- the assignee. § 094. Notice to debtor not necessary as between assignor and assignee. g§ 095-097. English rule, notice to debtor necessary to determine the priority among successive assignees. §S 69R-702. Jl. Diligence of the assignee. § 098. General rules: Judson v. Corcoran. §§ 099-701. Assignment of stock as between assignee and a^^ignor and the company, judgment creditors of assignee, and subse(iuent p\ir- chasers. § 702. Notice to the debtor necessary to prevent liis subsc(|uent acts. §S 703-715. 111. Assignments of things in action subject to e(piities. §S 704-706. 1. Equities in favor of the debtor. § 704. General rule: assignments of nKirtgagcs; kinds Vi may be broken in upon, and the equitable doctrine of priorities may control ? 3. Under what circnmstances, two or more equities being" otherwise "equal," can the holder of one of them obtain, and does he obtain, the legal title, so that the order of time may be disregarded, and the equitable doctrine of priorities may prevail? The full answers to these three questions, in their combination and mntnal effects, plainly constitute the entire discussion of the subject. § 679. I. Estates and Interests to Which the Equitable Doctrine Applies. 1. Not to Legal Estates. — Among purely legal titles to the same subject-matter, successive legal conveyances of and legal estates in the same tract of land, the equitable doctrine of priorities growing- out of the presence or absence of notice, or of a valuable consideration, or of any other incident, has absolutely no applica- tion nor effect; such legal titles, estates, and interests are, in the absence of any statutory modification, completely controlled, with respect to their prioritj', by the order of time.^ Even the mere want of a valuable consideration in the earlier conveyance Avould not. at the common law, affect the priority of legal right given by the priority of time.- UJaines v. New Orleans, 6 WaU. 642, 716, per Davis, J. The truth of tliis proposition is clearly seen from a consideration of the legal conception of estates at law and of conveyances and charges operating at law; and it will plainly appear that between two claimants of legal estates in the same land, the second one in order of time can not, in the absence of tlie statutes con- cerning registration, avail himself even of the position of bona fide purchaser for a valuable consideration and without notice. If A, being owner of a l)iece of land in fee, conveys it in fee to B, and afterwards executes a deed ill fee of the same land to C, at law C can acquire nothing. In contemplation of law, the entire estate passed by the deed to B, and there was no interest left which could be transferred to C, and it could make no possible difference with this result whether C was wholly ignorant of the prior conveyance or was informed of it. Again, if A has no estate at all, or only a defective one, he can not by a deed convej'^ any more or better estate than he holds himself to B. and it can make no dift'erence whether the defect is open or hidden, or whether B buys with knowledge or in ignorance of it : Buckman v. Decker. 2:1 X. -T. Eq. 2S.3. Again, in an action of ejectment between one who claims luid'^r deed or other papei* title, and one who claims by adverse possession, the latter's notice of the outstanding paper title would not afTect his right injuriously: the titles being legal, the controversy would be decided upon the completeness of the adverse possession, or the validity of the paper title. See MaeOregor v. Thompson, 7 Tex. Civ. App. 32, 26 S. W. 640. - If A, owning the land, should convey it as a mere gift to B. by means of a conveyance sufficient in kind and form to transfer the legal estate, and so that no trust should result to himself, and should afterwards execute a deed in fee of the same land to C, who should pay a valuable consideration therefor. C would obtain no interest whatever at the common law. The prior conveyance to B woTild exhaust and transfer the entire fee, as fully as though a money 313 coxcKHXiXG riaoiaxiES. § 6S1 § 680. Modifications by Statutes concerning Fraudulent Con- veyances and Recording. — Tliis rule, otherwi.se uuiversal, that among successive legal estates or interests in the same subject- matter the order of time controls, has been broken in upon by two classes of statutes, which are, within the scope of their opera- tion, very important. The first of these classes includes that of 27 Eliz., c. -1, by which grants of land.s made for the purpose of defrauding subsequent purchasers are declared to be void as against siieh subsequent purchasers for a valuable consideration, and their representatives ; and the statute of 13 Eliz., e. 5, by which convey- ances of lands or chattels made for the purpose of delaying or defrauding creditors are declared to be void as against such credit- ors and their representatives; provided that the act shall not extend to any conveyance made in good faith and for a valuable considera- tion to a person not having notice of the fraud.^ The second class embraces the recording acts of the various states, by which it is generally provided that every conveyance of land which is not re- corded shall be deemed void as against a subsequent conveyance of the same land, made for a valuable consideration, which shall have been first put on record;'- and also the similar statutes which postpone the lien of a prior undocketed judgment to that of a subsequent one which has been duly docketed.^ § 681. 2. To Equitable Estates and Interests Alone. — The equit- able doctrine concerning priorities resulting from the presence or ]>iice liatl been paid, and no interest would be left upon which C"s deed could operate. The fact that C paid value, and was ignorant of the former convey- ance, could not destroy the legal effect of the prior deed, and create an estate wliich would pass to C by his conveyance. It is entirely the result of statute tliat r"s conveyance may under such circumstances obtain the precedence at law. 'Sep post. §§ 968-974. - See ante, § 646, and note. It is evident that all questions concerning legal conveyances arising under the recording acts — questions depending upon tin- fact of recording or not recording, upon the record as notice, and upon tlie effect of an actual or constructive notice of a prior unrecorded deed given to a subsequent grantee — belong to the law, and do not constitute any part of equity jurisprudence. The estates are legal ; the conflicting titles l)ased upon recorded and unrecorded deeds, or involving the presence of notice in place of a record, are constantly settled by means of the legal action of ejectment. TJie effect of the recording acts upon mortgages, on the other hand, belongs to equity jtirisprudence, since, in any theory of the mortgage. U creates an equitable estate or interest. It should be observed, however, that while the recording acts, so far as they deal with legal conveyances, have not enlarged the equitable jnriffJicfwv. they have greatly enlarged the field for the appli- cation, by courts of law. of the doctrine of bona fide purchase. See post, § 7oS. " See ante. Si; 042. 04.3. Jj ()So ja^LlTY JUKl.-sJ'ltLDKXCl:;. ol-i absence of notice, or of a valuable consideration or other incident, by which a precedence may be given contrary to the mere order oi time, applies to conflicting legal and eciuitable estates or interests in the same subject-matter, and to successive equitable estates, equit- able interests such as liens and charges, and mere "equities," mean- ing thereby purely remedial rights, such as that of cancellation, reformation, and the like ; and it applies to no other kind of estates, interests, or rights.^ §682. II. Equitable Doctrine of Priority. — Having thus stated the kind of interests to which alone the equitable doctrine applies, we shall next consider the nature, scope, and operation of the doctrine itself. In all of its phases, in all the instances where it may be invoked, the equitable doctrine concerning priorities is embodied in three most general and fundamental rules: 1. Among ."Successive equitable estates or interests, where there exists no special claim, advantage, or superiority in any one over the others, the order of time controls. Under these circumstances, the maxim, Among equal equities the first in order of time prevails, furnishes the rule of decision.^ 2. Between a legal and equitable title to the same subject-matter, the legal title in general prevails, in pur- suance of the maxim, Where there is ecjual equity the law must prevail.'- 3. The legal title being outstanding, and not involved in the controversy, where there are successive unequal etiuites in the same subject-matter, as where there is a complete or perfect equi- table estate and an incomplete or imperfect one, or a mere "erputy," or where, among equitable interests of a like intrinsic nature, one is affected by some incident or quality which renders it inferior to another, then the precedence resulting from order of time is defeated, and the superior equitable estate or interest prevails over the others, as is manifestly implied in the maxim. Where there are equal equities the first in order of time must prevail.-^ § 683. III. Superior and. Equal Equities. — In determining the scope and operation of the foregoing rules, the discussion must largely consist in ascertaining when equities are equal, and when 'Basset v. Xosworthy, Cas. t. Finch 102, 2 Lead. Cas. Eq. 1, 31, 40, 1 Scott .".40. 498; Le JS'eve v. Le Neve, Anib. 436, 2 Lead. Cas. Eq. 109, 117, 1 Scott 536; nice V. Rice, 2 Drew. 73, H. & B. 23, 1 Scott .536. M^.ice V. Rice, 2 Drew. 73, H. & B. 23, 1 Scott 334: Pliillips v. Pliillips. 4 De Gex, F. & J. 208, 215, Ames Trusts 331, H. & B. 72, 1 Scott 331, 511. per Lord VVestbury; Berry v. Miit. Ins. Co., 2 .lohns. Cli. 603, Sli. 104. 1 Scott 3.;. {See post, § 718. == Fitzsininions v. Ogden, 7 Cranch 2, 18: Fornian v. Brewer, 62 N. J. Eq. 748, 48 Atl. 1012, 90 Am. St. Rep. 475. See ante, § 417. ^Le Neve v. Le Neve, 2 Lead. Cas. Eq. 109. 117, 144, 1 Scott 530; Basset v. Nosworthy, 2 Lead. Cas. Eq. 1, 1 Scott 340, 498. 315 CONCKIi.Nl-NG J'ltlUKJTlEb. ji lit be accompanied by some collateral incident which gave it a precedence over the other without reference to their order of time. When we say that A has a better equity than B, this means that according to those principles of right and justice which a court of equity recognizes and acts upon, it will prefer A to B, and will interfere to enforce the rights of A as against B; and therefore it is impossi- ble that two persons should have equal equities, except in a case in which a court of equity would altogethei- refuse to lend its as- sistance to either party as against the other. ^ Two persons have equal equitable interests in the same subject-matter, when each is equally entitled, with respect of his equitable interest, to the protection and aid of a court of equity. When the conrt is dealing with such successive equitable interests in the same subject-matter. and they are all thus equal, the priority in time determines the priority in right; and the fact that the holder of the subsequent interest, under these circumstances, acquired it wnthout notice of the prior one does not, in general, give him any right to be pre- ferred.- The foregoing description of equal equities is not of much practical value, since it states the effects rather than the nature of equality. We shall, in fact, determine when equities are equal by ascertaining when they are unequal, by learning what qualities or incidents render one equity superior to another equity in the same subject-matter. § 684. Superior Equities Defined. — It may be stated that, so far as their intrinsic nature is concerned, a court of equity recog- nizes no inequality, based upon their form and mode of creation, ' .See Rice v. Rice, 2 Drew. 73, 1 Scott 334, H. & B. 23. =■• Phillips V. Phillips, 4 De Gex, F. & J. 208, 21.5, H. & B. 72. Amos Tr. 331, 1 Scott 333, 511; Cory v. P:yre, 1 De Gex, J. & S. 149. 1(17; Newton V. JSewton, L. R. 6 Eq. 13.5, 140; Jones v. Jones, 8 Sim. (i.'?3. These decisions, and the reasoning upon which they are based, sliow that one wiio purchases an equitable estate, or acquires an equitable in- terest, obtains only the right of his own vendor: the facts of his paying value and of not having notice do not of themselves entitle him to take ])recedence over a prior vendee or encumbrancer; some quality imparting to his estate or interest an intrinsic superiority would be necessary to give him preference: York v. McNutt, 16 Tex. 13, f>7 Am. Dec. 607; Sumner v. Waugh. 50 111. .531: Bruschke v. Wright. Ififi 111. 183, 57 Am. St. Rep. 125. 40 N. E. 813. The recording acts may modify the operation of the equitable rule in this country, because they give to a recorded mortgage or other equitable encumbrance the very quality which imparls to it an intrinsic superiority, under the statute, over one which is not recorded. § USo EQUITY JUKliiPKUDENCE. 316 c'ljiong all perfected equitable interests based upon a valuable consideration and arising in any manner by which, in contempla- tion of equity, an interest in the very thing itself — the land, the chattels, or the fund — is created. If there is a valuable considera- tion, and an equitable interest in the very subject-matter itself has been perfected, it does not seem to aft'ect their qualities, whether such interest arose from a declaration of trust, from an assignment, from a contract express or implied, or from acts such as the deposit of title deeds. A valuable consideration is, however, a most important element. The whole history and scope of equity jurisprudence show that a valuable consideration is always regard- ed as a most essential requisite to the existence of complete equit- able estates and interests of all kinds. Assuming this conclusion as general 1}% if not even universally, true, the various causes which will render one equity superior to another may be formu- lated in three general rules. It will be seen that the first of these rules relates to the intrinsic natiire of the two interests which are compared; the second rehites, not to their nature, but to a quality inseparably connected with them, and constituting the occasion for their existence; the third relates neither to their nature nor (qualities, but to a mere external or collateral incident affecting them at their origin. These three rules are as follows: — §685. 1. Nature of the Equities. — The equitable interest created by a trust, or by a contract in rem, made upon a valuable con- sideration, is superior to the etpiity arising from a mere voluntary transfer, a mere gift, or from a mere judgment lien. In contem- plation of equity, the interest created by a trust, or by a valid executory contract of sale, or by a valid contract giving rise to a lien, or by an act in connection with such a contract constituting a lien, — as, for example, a deposit of title deeds, — is a real, benefi- cial interest m tlie specific thing itself, — an interest which is prop- erty, or analogous to property;^ and although such interest is not recognized. by the lav;", it is treated by courts of equity as actually subsisting, and as binding upon the conscience of the original party who held the thing and who created the interest.- On the other hand, while the interest acquired by a transfer without considera- tion, by a voluntary gift, may be protected if it does not interfere with third persons, yet the voluntary transferee or donee can onh* receive whatever interest the donor was actually entitled in con- science and good faith to bestow; he never obtains, even as against ^ This is the fundamental distinction between the legal and the equitable view of executory contracts concerning some specific subject-matter. 8ee ante, $8 146-149. -Cory V. Kyre, 1 De Gex, J. & S. 149. 1G7. 317 COXCKHXING ITvlOKlTlES. ^ G8G the donor, and much less as against third persons dealing with the donor in respect to the same thing', any jjaramount right of his own. The consideration on the one side, and the absence of it on the other, lie at the very bottom of the eqnitable theory con- cerning actual rights/' The lien of a judgment is analogous to the claim of a donee; it is general, not specific. The beneficiary under a trust, the vendee under an agreement, the holder of a lien created b}' a contract in rem, deals concerning a specific thing; he parts with the consideration upon the security of that specific thing; he obtains an equitable interest in that specific thing. The judgment creditor has not dealt with that specific thing; he has not parted with value in contemplation of it; his lien is gen- eral, and not confined to it. It is just, therefore, that, so far as their intrinsic natures are concerned, his claim should be consid- ered as inferior to the interest arising from a trust or from a contract in rem. His lien only extends to what his debtor really has.— that is, to the thing subject to all the eciuities in its exist- ing at the date of the judgment.* § 686. 2. Effects of Fraud. — The equity acquired by a party who has been misled is superior to the interest in the same subject- matter of the one who willfully procured or suffered him to be thus misled. The following example illustrates the operation of this rule, and the principle underlying it may be generalized and applied to all analogous cases. A, being about to part with value to B upon the security of B's estate, informs C. of his intention, and asks C whether he has any incumbrance on the estate ; C denies that he has any. and A, relying upon this denial, parts with money or other value to B ; in fact, C had at the time a mortgage or other encumbrance upon the estate ; this mortgage or lien, although prior in time, would, by reason of C's fraud, be postponed to the subsequent interest acquired by A. The basis of this rule is the conduct which equity regards as constituting fraud, either an actual intention to mislead, or that gross negligence which produces all the effects and merits all the blame of intentional "Green v. (iivan. .S3 X. Y. 343. See. also. post. § (i!tl. "It is settled in Knjiland, in aeeordanee with this iiile, that the interest of a eestui que trust, of the vendee under an executory contract, and of an equitable niortaafree i,y contract or by deposit of title deeds, is superior to that of a subsequent judgment against the trustee, vendor, or mortgagor, even though the legal estate may have been acquired under tlie judgment by means of an elegit: Wliitworth v. Cnugain. 3 Hare 41 f.. 1 Phil. Ch. 728, Ames Tr. 408. Tliis particular rule has been niodilied or altered by statute in several of the states. See post, §§ 721-724. where this subject is more fully exanuneil. Jn general, see Harney v. First Nat. liank. 52 N. J. Eq. 097, 29 Atl. 221; Gates Iron Works v. Cohen, 7 Colo. A])p. 341, 43 I'ae. 0(17. § (338 z.(lLil^\ jLUiSPKLUh^Ci., ;51g deception.^ It is not, however, necessary that the party having- au interest or title, under such circumstances, when applied to, should use positive misrepresentations cr expressly deny the exi.stenee of his right; it is sufficient if he refrain from disclosing his claim, and suffer a third person to deal with the property as his own, or to acquire an interest in or lien upon it; he will not be permitted to set up or enforce his interest in preference to that obtained by the person whom he has suffered to be misled by his silence. - § 687. And of Negligence.— The rule extends to gross negligence, which is tantamount in its ett'ects to fraud. An equity otherwise equal, or even prior in point of time, may, through the gross laches of its holder, be postponed to a subsequent interest which another person was enabled to acquire by means of such negligence.^ To ad- mit the operation of this rule in either of its phases, and to displace the otherwise natural order of priority, there must be intentional deceit, — that is, intentional misrepresentation or suppression of the truth, — or else gross negligence. In the one case, the party l)0ssessing the claim which it is sought to postpone must both knoAV of his own right and also of the other person's intention to acquire, or of his acts in acquiring, an interest in the same subject-matter. In the other case there must be gross laches, for mere carelessness or ordinary negligence will not suffice according to the weight of modern authority.- §688. 3. Effects of Notice— Illustrations.— The third, and in its practical effects by far the most important, rule is, that a party taking with notice of an equity takes subject to that equity. The full meaning of this most just rule is, that the purchaser of an estate or interest, legal or equitable, even for a valuable considera- tion, with notice of any existing equitable estate, interest, claim, or right, in or to the same subject-matter, held by a third person. is liable in equity to the same extent and in the same manner as the person from whom he made the purchase; his conscience is e(iually bound with that of his vendor, and he acquires only what his vendor can honestly transfer.^ The applications of this rule ^Storrs V. Barker, 6 Jolins. Ch. ICG, ItlS. ]() Am. Dec. 316; Hooper v. Central Trust Co., SI Md. 559, 32 All. 505, 2!) L. R. A. 202; Miller v. :Merine. 43 Fed. 26]. See, also, post, §§731, 732. = Nicholson v. Hooper, 4 Myhie & C. 179: Carr v. Wallace, 7 Watts 294. 400. 'Northern Counties, etc., Co. v. Whipp. L. R. 26 Ch. Div. 482. 1 Scott 3.53; In re Castell and Brown (1898). 1 Ch. 315; Heyder x. Excelsior B. & L. Ass'n. 42 N. J. Eq. 403, 8 Atl. 310. 59 Am. Rep. 49, H. & B. 70; Frost v. Wolf. 77 Tex. 455, 14 S. W. 440, 19 Am. St. Rep. 761. See, also, post, §§ 731. 7.32. -Hewitt V. Loosemore. 9 Hare 449. 458; and see ante, §§ 606, 612. But cf. Farrand V. Yorkshire Bke. Co.. 40 Ch. D. 182. 'Le Neve v. Le Neve, Amh. 436, 2 Lead. Cas. Eq. 4th Am. ed. 109, 1 Scott 31.9 COXCEliNJXU I'KIOKITIES. § 680 are as mimerons as are the various Ivinds of equitable interests. The following are some of the most important: A purchaser with notice of a trust, either express or implied, becomes himself a trus- tee for the beneficiary Avith respect of the property, and is bouml in the same manner as the original trustee from whom he puv- ehased." A purchaser or mortgagee with notice of the equita])l(^ lien of a vendor for unpaid purchase price takes the land subject to that lien." A purchaser or mortgagee of the legal estate, with notice of an equitable lien created by a deposit of title deeds, or by a prior defective mortgage, or by any other means from which an equitable lien can arise, is bound by the lien.* A pur- chaser with notice of a prior contract to sell or to lease takes subject to such contract, and is bound in the same manner as his vendor to carry it into execution.^ These examples are of ordinary occurrence. §689. Notice of a Prior Covenant. — On the same principle, if the OAvner of land enters into a covenant concerning the land, con- cerning its use, subjecting it to easements or personal servitudes, and the like, and the land is afterwards conveyed or sold to one who has notice of the Covenant, the grantee or purchaser will take the premises bound l^y the covenant, and will be compelled in equity either to specifically execute it, or will be restrained from violating it ; and it makes no difference whatever, with respect to this liability in equity, whether the covenant is or is not one which in law ''runs wnth the land."^ Notice, although a collateral incident, is thus perhaps the most powerful element in creating a superiority, and in disturbing an order of priority Avhich would otherwise have existed. It may destroy the precedence which a legal estate ordi- narily has over an equitable one ; it may operate as well between .5.30; see ante, § 591: Indiana I. & J. R. Co. v. Swannell. 1.57 111. 61fi. 41 N. E. nSJ). .30 L. R. A. 290; Widdiconibe v. Childers, 84 Mo. 382 (patentee of See Lee v. Hewlett, 2 Kay & .1. .5,31, Ames Trusts 329: McCreight v. Foster, 1.. R. 5 Ch. 604, 610, 611 (contract for sale of land) ; Union Bk. of London V. Kent, 30 Ch. Div. 238 (leaseholds). But priority among assignments of an interest in land aflected by the doctrine of equitable conversion is determined by the rules relating to the assignment of clioses in action: Snover v. Squire, (N. .T. Eq.), 24 Atl. 365. ' .ludson V. Corcoran, 17 How. 612. = Bridge v. Wheeler, 152 Mass. 343. 25 X. E. 612: Graham Paper Co. v. Pembroke, 124 Cal. 117, 56 Pae. 627. 71 Am. St. Rep. 26, 44 L. R. A. 632. On the same principle, if between two successive assignees of an equitable interest, otherwise equal, the subsequent one acquires the legal title or legal advantage, he thereby obtains the superiority: Ogden v. Fitzsimmons. 7 Cranch 1, 18; Dueber Watch-Case Mfg. Co. v. Daugherty. 62 Oliio St. 580. 57 X. E. 455. ' As to judgment creditors of the assignor, see ante, § 694, and notes, and post, § 700. o-ij CONCLRXINCi ri;ioi;iTiES. ^ ^'>1 ceiving a new one issued to himself, and by a record of the trans- action entered in the company's transfer-books. It is the common practice, however, to efit'ect an assignment by delivering- the certi- ficate to the assignee, with a power of attorney indorsed thereon executed by the assignor, authorizing the surrender to be made and all the other steps to be taken as prescribed by the by-laws. This method of transfer, according to the overwhelming weight of authority, clothes the assignee with a full legal ownership as against the assignor, and with an equitably title and ownership valid at least as against the corporation.^ The only important questions. therefore, relate to the right and priority of such an assignee as against judgment creditors of the assignor and subsequent pur- chasers. § 700. The Same — Between Assignee and Judgment Creditors of Assignor. — It has been held by some courts that such a transfer of shares by a mere delivery of the certificate and power of attorne.y, without the further steps for completing the transaction on the transfer-books, and irithoitt ciuy notice thereof given to the compani/, is presumptively fraudulent, and therefore invalid as against judg- ment creditors of the assignor.^ A different rule, however, must be regarded as settled by the great majority of decisions, which bold that this mode of assignment is valid as against creditors of Ihe assignor, and gives the assignee a precedence over their sub- sequent judgments, executions, and attachments." § 701. The Same — Betvreen Assignee and Subsequent Purchas- ers. — -As between such an assignee and subsequent purchasers, the question is more complicated. I think that general language has sometimes been used by judges, which indicates a confusion of mind with reference to the real situation of the parties, and the pcssible circumstances which might arise in the transaction. If the bolder of shares should deliver the certificate with a power of at- torney executed by himself, it would be impossible for him to clothe a subsequent assignee with the same indicia of ownership, so that the latter should have a title apparently equal to the former. On 'X. Y.. X. H. &- H. R. Pv. V. Sclnuier, 34 N. Y. 30. 80. per Davis. .T. ; ;Mt. Holly Co. V. Ferree, 17 N. -7. Eq. 117; Masury v. Arkansas Nat. Bank, f)3 Fed. 003. 35 C. C. A. 476, revorsinor 87 Fed. 38. ^Pinkerton v. INIanchester, etc.. R. R.. 42 N. H. 424. This protection of tlio judofment and attacliment creditors of the assignor results from statute in many states. White v. Rankin. tlO Ala. .541. 8 South. 118: Ottumwa Screen Co. v. NtodfThill, 103 Iowa 437. 72 X. W. W^^.): West Coast S. F. (^o. v. WulfT. 133 Cal. 315, 85 Am. St. Rep. 171. 05 Pac. 022. -See ante, §094; Mt. Holly Co. v. Ferree. 17 N. .7. Eq. 117; May v. Cleland. 117 Mich. 45. 75 N. W. 120. 44 L. R. A. 103; Port Townsend Nat. Bank v. Port Townsend (Jas & Fuel Co., Wasli. 507. 34 I'nc. 155. § ^U3 EQUITY JURISPRUDENCE. 328 the other hand, if the holder of shares should assign them verbal I3* or by a written instrument to A, but without delivering the certi- ficate and power of attorney, and should afterwards assign them in the ordinary manner, by delivering the certificate with a poAver of attorney to B, the apparent title of the latter would certainly be superior to that of the former.^ It does not seem possible, there- fore, that a question of priority, on the assumption that their equit- able interests are intrinsically equal, can arise between two succes- sive assignees of the same shares from the same OAvner, where the assignment to one of them has been by a delivery of the certificate with a power of attorney. The questions of precedence among suc- cessive transfers executed in such a manner must arise in cases where the earlier assignment, apparently made by and in the name of the owner, is procured through fraud, breach of trust, or even forgery. The discussion of this particular topic properly belongs, and will be found, in the next subdivision, Avhich treats of the equities to which assignments of things in action are subject. - § 702. Notice to the Debtor Necessary to Prevent Subsequent Acts by Him. — Diligence is also necessary on the part of the as- signee, in order to protect his right, by giving prompt notice of the transfer to the debtor, trustee, or other holder of the fund. Until notice, actual or constructive, is received by the debtor or trustee, payment by him to the assignor would be a valid payment of the clnim, and binding upon the assignee. The same would be true of a release from the assignor to the debtor or trustee, or any other transaction between them which Avould operate as a legal dis- charge; it would also be a discharge as against the assignee, if done before notice.^ It is expressly provided in many of the states that a demand in favor of the debtor, Avhich might be a set-ot¥ against the assignor, not existing at the date of the assignment, but arising subsequent]}^, and before notice to the debtor, shall be a valid set-oft' against the assignee. § 703. III. Assignments of Things in Action Subject to Equi- ties. — The doctrine, stated in its most comprehensive form, is, that an assignment of every non-negotiable thing in action, even when made without notice of the defect to the assignee, is subject, in general, to all equities existing against the assignor. This broad doctrine has three different applications: 1. Where the equities are in favor of the debtor or trustee ; 2. Where they arise between 'See Societe Genernle de Paris v. Walker, L. E. 11 Ap]). Cas. 20. affiniiing 14 Q. B. D. 424. "See infra, §§707-715. , ^ James v. Morey, 2 Coav. 24G, 14 Am. Dee. 47;}; Muir v. Schenck, 3 Hill 228, 38 Am. Dec. G33, Shi 106; Bence v. Shearman (1898), 2 Ch. 582. ^2d COXCKHXIXC I'lMOKM TIKS. § "(14 successive assignors and assignees, — that is, in favor of some prior assignor; 3. Where they ai-ise entirely in favor of third persons. — the two latter cases including what are often caUed laleiit equities. As these three applications depend upon somewhat different grounds, and as there is not a perfect harmony of decision concerning them, it will be expedient to discuss them separately, and thus to avoid all unnecessary doubt with respect to the settled rules. ^ 704. 1. Equities in Favor of the Debtor Party. — The rule is settled, by an unbroken series of authorities, that the assignee of a thing in action not negotiable takes the interest assigned subject to all the defenses, legal and equitable, of the debtor who issued the obligation, or of the trustee or other party upon whom the obliga- tion originally rested; that is, when the original debtor or trustee, in whatever form his promise or obligation is made, if it is not nego- tiable, is sued by the assignee, the defenses, legal and equitabh". which he had at the time of the assignment, or at the time Avhen notice of it was given, against the original creditor, avail to him against the substituted creditor.^ This rnl^ applies to all forms of contract not negotiable, and to all defenses which would have been valid between the debtor party and the original creditor. These defenses may arise out of or be inherent in the very terms or nature of the obligation itself, as that it was conditional and the condition has not been performed by the assignor, failure or illegality of the consideration, and the like; or they may exist outside of the c(ni- tract, as set-oft', payment, release, the condition of accounts between the. original i^arties, and the like. Some examples are given in the Tailanan v. Edwards. 32 X. Y. 483. 48G : Haydon v. Xicoletti, 18 Nev. 290, 3 I'ac. 473. Upon the question whether the doctrine stated in the text applies to mortgages given to secure negotiable promissory notes — a form of security YPiy common in some states — the authorities are in direct conflict. In one class of decisions it has been held that where a mortgage is given to secure a negotiable promissory note and before maturity of the note it and the mortgage are assigned to a bona fide purchaser for value, the assignment of the mortgage as well as of the note is free from all equities subsisting between the original parties in favor of the mortgagor: Carpenter v. Longan, 16 Wall. 271. 273; Lewis V. Kirk, 28 Kan. 497. 42 Am. Rep. 173; Nashville Trust Co. v. Smythe. 04 Tenn. 513, 45 Am. St. Rep. 748, 29 S. W. 903. Other eases reach exactly the opposite conclusion, and hold that the assignment of such a mortgage is governed by the general rule: Baily v. Smith, 14 Ohio St. 396, 84 Am. Dec. 385: Olds v. Cummings. 31 111. 188; Rnehler v. McCormick. 169 111. 269. 48 N. E. 287. The reasoning of these Illinois decisions is. in my opinion, most in accordance with the settled doctrines of equity jurispnidence. namely, that the assisfnment of the mortgage, whether it be an incident of the transfer of the note, or be direct, is wholly equitable, and gives only an equilable title to the assignee,, and must therefore be subject to all subsisting equities; the doctrine of bona fide purchase for a valuable consideration not applying to transfers of mere equitable interests. See, also, post^ § 1210. J; '107' EQUITY jriilSPKlDKXCK. 330 foot-note, by way of illustration.- It is essential, however, that the equity in favor of the debtor should exist at the time of the assign- ment or before notice thereof; after receiving notice, he cannot, by a payment, release, obtaining a set-off, or any other act. defeat or prejudice the right of the assignee.^ The debtor who would have been entitled to equities under this rule may, by a writing, or by actual misrepresentations, or by conduct, or even by silence towards the assignee, estop himself from setting them up, and he may re- lease them.* § 707. 2. Equities betw^een Successive Assignors and Assignees. — The doctrine is not confined to the case of the debtor party set- ting up a defense against an assignee : it also applies, when the same non-negotiable thing in action has gone through successive assignments, to the second and subsequent assignees, if there were, equities subsisting between the original assignor — or any prior as- signor — and his immediate assignee in favor of the former. The instances of this application include the following, among other circumstances: When tjie owner transfers the thing in action upon ( ondition, or subject to any reservations, and this immediate as- .'^ignee transfers it absolutelj': when the first assignment is accom- plished by a forgery of the owner's name, and this assignee after- Avards transfers to an innocent purchaser for value; when the ori- ginal assignment is procured by fraud, duress, or undue influence^ and a second assignment is then made to a purchaser for value and v^ ithout notice : when the original assignment is regular on its face, executed in the name of the OAvner and by means of his signature voluntarily written, but the transfer is consummated through a breach of fiduciary dut}- by an agent or bailee contrary- to the "Of the Kinds of Con t met. — Non-negotiable note: Spinning v. Sullivan, 4S -Mich. 3, 11 N. W. 758. Mortgages: see post, §733. Contract for the sale of land: Reeves v. Kimball. 40 N. Y. 299. Shares and obligations of corporations: Ji) re China Steamship Co., L. R. 7 Eq. 240; Reese v. Bank of Commerce, 14 Md. 271, 74 Am. Dec. 536: Jennings v. Bank of California, 79 Cal. 323, 21 Fac. 852, 12 Am. St. Rep. 145, 5 L. R. A. 233. Of Defenses. — E. g.. Illegality; Robertson v. Cooper, 1 Ind. App. 78. 27 N. E. 104. Set off in debtor's favor: Collins v. Campbell, 97 :\Ie. 23, 28. .53 Atl. 837, 94 Am. St. Rep. 458, 463. Non-performance of contract by assignor: Van Aken v. Dunn, 117 Mich. 421, 75 N. W. 938. The assignee cannot be affected, however, by collateral transactions, secret trusts, or acts uneomiected witli file subject of the contract: Kountz v. Kirkpatrick. 77 Pa. St. 376, 13 Am. Rep. 687. ^Schelling v. Ahillen, 55 Minn. 122. 56 N. W. 586. ^3 Am. St. Rep. 475: Field v. City of New York, 6 N. Y. (2 Seld.) 179, 57 Am. Dec. 435. Mn re Northern, etc., Co., L. R. 10 V.c[. 458, 4fi3 : Crissler v. Powers. 81 X. Y. 57. 37 Am. Rep. 475. But see Rapps v. (Gottlieb, 142 N. Y. 164. 3ff N. E. 1052, affirming 67 Hun, 115, 22 N. Y. Supp. .52. 3;U COXCKHXINCi rKlOHlTlES. r; 'i')'"^ t)\vner's intention, Cn{\ this immediate assi.Ernee transfers to an in- nocent holder; and finally, when the orioinal owner assigns the same thinti' in aetion for value and without notice, first to A and afterwards to B, and the controversy is between these two claim- ants, or between subsequent assignees from and deriving title tiirough them. The decisions involving the doctrine, in its applica- tion to these various circumstances, are directly conflicting. While a complete reconciliation of this conflict is impossible, there are considerations which will bring the authorities into a partial har- mony. The rule which makes the right of a subseciuent assignet^ subject to the equities subsisting in favor of the original or any l)rior assignor is plainly a mere expression of the general principle, that among successive equitable interests in the same thing, the order of time prevails. The decisions which uphold the equities of the prior assignor are either expressly or impliedly based upon this principle. But the principle itself is not al)solute; it prevails only where the successive equitable interests are equal : indeed, the equity resulting merely from priority in time has been said to be the feeblest of any, and to be resorted to only when there is no other feature or incident of superiority.^ Whatever creates a superior equity in one of the successive holders will disturb the order of lime, and many different features or incidents will have this effect. The laches of one having an interest prior in time may confer a superior equity upon a subsequent holder; notice may destroy a precedence otherwise existing; absence of a valuable consideration is always a badge of inferiority; and finally, the doctrine of estop- }iel nu\v be properly invoked to prevent a prior party from assert- ing his right. In many of the cases which appear to deny the doc- trine that a subsequent assignee takes subject to the e(|uities of a prior assignor or of a third person, the decision is in fact rested upon one or the other of these well-settled exceptions to the general i^rinciple of priority in order of time among successive equitable interests, although the opinion may not perhaps state such a ground as the ratio decidendi. It is possible, in this manner, to effect a partial reconcilement among the authorities; some conflict of opin- i(.n, hoAvever, still remains. § 708. General Rule — Assignment Subject to Latent Equities. — The equities of a prior assignor, or of a third i)ers()n, have some- times been called "latent." The theory that such "latent equities" cannot prevail against the title of a second or other subsequent as- ' See supra, vol. 1. § 414, and tiie ophiion in Rice v. Rice, 2 Drew. 73, H. «S: B. 23. 1 Scott 334. tliore qudted. This description of the ricrht resulting from a. ]ni(irity in time is, in my n])iiii(in. nnich too strong; jl can hardly be rec- onciled with the imposing line of authorities cited in the following paragraphs. § lUO EQUITY JLin^^l'HLUKNCE. o3"^ signee, and that an assignee only takes subject to the equities in favor of the debtor party, has I'eceived some judicial support/ It is, however, unsound; it is, in effect, an extension of the peculiar qualities of negotiable instruments to things in action not nego- tiable.- The doctrine is sustained by the Aveight of authority, I think, and by principle, that the right of the second or other sub- sequent assignee is subject to all equities subsisting in favor of tlie original or otlier prior assignor, unless in some settled mode recognized by equity jurisprudence such assignee has obtained a superiority v'hich gives him the precedence. This doctrine must be regarded as correct, as based upon principle, as long as the distinction be- tween negotiable and non-negotiable obligations is preserved in our jurisprudence." I shall describe, — 1. Those classes of cases in which the doctrine has been applied; and 2. Those in which it is not ap- plicable. § 709. Illustration of This Rule. — If the owner and holder of a thing in action not negotiable transfers it to an assignee upon con- dition, or subject to any reservations or claims in favor of the as- signor, although the instrument of assignment be absolute on its face, this immediate assignee, holding a qualified and limited in- terest, cannot convey a greater property than he himself holds: ajid if he assumes to convey it to a second assignee by a transfer al)solute in form, and for a full consideration, and without any notice to such purchaser of a defect m the title, this second assignee takes it, nevertheless, subject to all the equities., claims, and rights of the original holder and first assignor.' In the second place, where the original assignment is accomplished by a forgery of the holder's name, or where it is effected by a wrongful ccmversion of the se- curity, together with a written instrument of transfer which has been signed by the owner, or where it is made upon an illegal con- sideration between the owner and his immediate assignee, or where it is procured by fraud, duress, or undue influence upon the owner, and in either of these cases the thing in action is afterwards trans- ^ See cases infra, under § 715. MVestern Nat. Bank v. Maverick Nat. Bank, 90 Ga. 3.30. 16 S. E. 942, .35 Am. a. Rep. 210. -' Scliafer v. Reilly, 50 N. Y. 61. 67; Coniiiieroial Nat. Bank v. Burch, 141 111. 519, 31 N. E. 420, 33 Am. fSt. Rep. 331; Patterson v. Rabb, 38 S. C. 138, 17 S. E. 463, 19 L. R. A. 831; and see cases cited under § 709. 'Bush V. Lathrop, 22 N. Y. 535: Davis v. Hechstein, 69 N. Y'. 440, 25 Am. Rep. 218: Osborn v. McClelland. 43 Ohio St. 284. 299-307, 1 N. E. 644. Cases of lost or stolen stock certificates: Knox v. Eden ^lusee Co.. 148 N. Y. 441, 51 Am. 8t. Rep. 700, 42 N. E. 988. 31 L. R. A. 779; East Birminjrham Land Co. v. Denison. 85 Ala. 565. 5 South. 317. 7 Am. St. Rep. 73, 2 L. R. A. 836; Barstow v. Savage Min. Co., 64 Cal. 388, 49 Am. Rep. 705, 1 Pae. 349, ;333 COXCEILNIXG rUlOlUTlKS. " §11" ferred from the tii\st to a second or other subsequent assignee, wlio takes it for value and without notice, the same rule must control: the equities of the original owner must prevail over the claims of the subsequent though iniioceut assignee. - jj 710. When the Rule does not Apply — Effect of Estoppel.— I proceed next to consider the third case, where the original assign- ment is regular on its face, executed in the name of the original owner and by his signature voluntarily written, but the transfer is consummated through a breach of fiduciary duty by an agent or bailee contrary to the owner's intention, and this immediate as- signee may afterwards transfer to an innocent holder. In relation to this particular condition of facts, a rule has been adopted by most able courts, and may be regarded, I think, as settled, Avhich is entirely consistent with that stated in the preceding paragraphs. It is based upon the doctrine of estoppel. This special rule may be formulated as folloAVs: The owner of certain kinds of things in action not technically negotiable, but wdiich, in the course of busi- ness customs, have acciuired a semi-negotiable character in fact. may assign or part wnth them for a special purpose, and at the same time may clothe the assignee or person to whom they have been delivered with such apparent indicia of title, and instruments of complete owmership over them, and power to dispose of them, as to estop himself from setting- up against a second assignee, to W'hom the securities have been transferred without notice and for value, the fact that the title of the first assignee or holder w'as not perfect and absolute. The ordinary and most important application of this rule is confined to the customary mode of dealing with cer- tificates of stock. If the OAvner of stock certificates assigns them as collateral security, or pledges them, or puts them into the hands of another for any purpose, and accompanies the delivery by a blank assignment and power of attorney to transfer the same in the usual form, signed by himself, and this assignee or pledgee wrongfully transfers them to an innocent purchaser for value in the regular course of business, such original owmer is estopped from asserting, as against this purchaser in good faith, his own higher title and the want of actual title and authority in his own immediate assignee or bailee.* This conclusion is in no respect necessarilj' antagonistic to the general doctrine concerning the assignment of things in ac- tion heretofore stated. The courts have simply recognized the - Anderson v. Nicholas, 28 X. Y. GOO : :\Iason v. Lord, 40 N. Y. 476, 487. ^McNeil V. Tenth Nat. Hank. 40 N. Y. .32,5, 7 Am. Rep. 341; Dueber Watch- Case Mfg. Co. v. Danrrlierty. 02 Oliio St. oSO. Tu N. E. 4.").'): Moore v. Moore, 112 tnd. 149. 13 N. E. 073, 2 Am. St. Rep. 170; Osborn v. McClelland, 43 Ohio St. 284, 298-307, 1 N. E. 044. § 711 EQUITY JLinSritUDEXCE. 33-1 growing and universal tendency of business men, in their customary modes of dealing, to treat stock certificates as though they were in all respects negotiable instruments; and they have felt themselves bound to give validity and effect to this general practice of merch- ants, as far as that could be done consistently with the established doctrines of the law. It is another instance of the manner in which mercantile customs have been adopted and incorporated into the h'.w by the progressive course of judicial legislation. The decisions announcing the rule are based exclusively upon the form of the blank assignment and power of attorney, executed by the assignor and delivered to the assignee, which clothed him with all the apparent rights of ownership that are recognized by business men, in their usual course of dealing with like securities, as sufficient to confer a complete title and power of disposition upon the assignee. Should the doctrine thus invoked to protect the customary modes of trans- acting business with certificates of stock and similar quasi nego- tiable securities be extended to all other things in action? Should the effect of an estoppel be produced from a mere assignment of (unj security, ahsolnte on its face, executed hy tlie original owner, and deliv- ered to his assignee? There are cases which seem to have reached this result. The tendency of these decisions is towards the conclu- sion that whenever the OM^ier of any non-negotiable thing in action delivers the same to another person with an assignment thereof absolute on its face, and this person transfers it to a purchaser for value, who relies upon the apparent ownership created by the written assignment, and has no notice of anything limiting that title, the original owner is estopped from asserting against such purchaser any equities existing between himself and his immediate assignee, and any interest or property in the security which he may have notwithstanding the written transfer, even when those equities might arise from fraud, coercion, violation of a fiduciary duty, ab- sence or illegality of consideration, and the like.- § 711. True Limits of Estoppel as Applied to Assignments of Things in Action. — While the particular application of the doctrine of estoppel to the usual dealings with shares of stock, as made in McNeil V. Tenth National Bank^ and kindred cases, is clearly a step in the interests of commerce, since it recognizes and validates mercantile customs which had become universal throughout this c©untry, the extension of the same rule to all things in action, as described in the preceding paragraph, ])hiinly tends to undermine, shake, and finally abrogate the well-settled doctrine which renders the assignments of non-negotiable things in action subject to the -Moore v. Metropolitan Bank, 5,'> N. Y. 41, 46-49, 14 Am. Rep. 173. M6 N. Y. 325: 7 Am. Rep. 341. 335 coxcKUMXci ruioKiTiKS. § 712 e<{uities subsisting in favor of the debtor parties, as well as those outstanding in favor of third persons; or at all events, it tends to confine the operation of that doctrine to cases in which the assign- ment is so drawn that it is, on its face, constructive notice to all subsequent assignees deriving title through it. In the class of deci- sions alluded to, — Moore v. IMetropolitan Bank- and like cases, — the estoppel is made to arise from a mere naked transfer in writing, absolute in form; the ratio decidendi is the apparent ownership thus conferred upon the assignee; and these elements of the rule will apply to so many cases that things in action are practically rendered negotiable as between the series of successive holders, — the assignors and assignees. This point being reached, it wiil be an easy and almost necessary step to extend the estoppel to the debtor party himself, — the obligor or promisor who utters the se- curity. If negotiability is produced by means of an estoppel be- tween the assignor and assignee, arising from the fact and form of a transfer from one to another, by parity of reasoning the debtor may be regarded as estopped by the fact and form of his issuing the undertaking and delivering it to tlie first holder, and thus creating an apparent liability against himself. In short, there seems to be exact- ly the same reason for holding the debtor estopped from denying his liability upon a written instrument which apparently creates an absolute liability, when that instrument has passed into the hands of a purchaser who had no notice of the actual relations between the original parties, as for holding an assignor estopped from denying the completeness of a transfer made by him simply because it is absolute on its face. This result, if reached, would make all things in action practically negotiable." According to the Ir.w merchant, "negotiability" consisted of two elements: 1. Thi> fact that the transferee obtained the legal title and could sue at law in his own name; and 2. The fact that the transferee in good faith and for value took free from all equities and nearly all de- fenses subsisting in favor of prior parties to the paper. The first of these elements now belongs, in the great majority of the states, to all things in action. There is, as it seems to me, an evident tendency, on the part of the courts in many states, to enlarge the scope of the second element, and to extend it also to all species of things in action which are embodied in contracts or instruments in writing. § 712. Subsequent Assignee Obtaining the Legal Title may be Protected as a Bona Fide Purchaser. — In the discussions of the fore- -5f5 N. Y. 41, 14 Am. Rep. 17:5. 'Osborn v. McClelland, 43 Oh. fSt. 284, 30G, 1 N. E. 644. §713 EQUITY JUl;lSl'l;l■DK^■cE. 33G eoino^ paragraphs,^ it has been constantly assumed that the assignee had acquired only an equitable title, in order that he might take subject to the equities subsisting in favor of a prior assignee or of a third person. If, in addition to his eciuitable interest conferred b}^ the assignment, he has also obtained the legal title, or even if his situation is such that he has the best right to call for the legal title, then the doctrine of purchase for a valuable consideration and Avithout notice may apply so as to protect him against all such out- standing equities. It should be constantl}^ borne in mind that prior- ity of time gives precedence of right among successive and con- victing equitable interests only when these equitable interests are equal in their nature or incident. An illustration may be seen in the decisions of many able courts with respect to dealings in shares of stock. Where a transfer of a certificate has been made by the owner's own signature, but procured only through the fraud, breach of duty, or conversion of the person Avho actually effects the first assignment, or without consideration, or upon an illegal considera- tion, and even where the transfer is accomplished solely by a for- gery of the owner's name to the indorsement and power of attor- ney, and the certificate thus comes into the hands of a purchaser for a valuable consideration and without notice, and he perfects his legal title by surrendering the original certificate to the cor- poration and receiving a new one in his own name, and by procur- ing the transaction to be properly entered upon the company's transfer-books, which thereupon show him to be the legal owno- of the shares, the assignee under these circumstances, as is held in many cases, obtains a complete precedence over the original own- er; he is not liable to the owner for the shares nor for their value: the OAvner's remedy, if any exists at all, is against the corporation alone, to compel it either to issue new shares or to pay the value of the old ones.- These decisions should, on principle, apply to -and protect the assignee of ever^^ other species of thing in action who has acquired the legal title. S 713. Successive Assignments by Same Assignor to Different Assignees. — The remaining case to be considered under this head, •Ms mentioned in a former paragraph,^ is that of successive transfers ')[* the same thing in action made by the same person — the creditor };arty — to different assignees. The American decisions upon this ])articular case cannot be reconciled. I can only present those settled doctrines of equity which, it would seem, should apply to ' Viz., from §S 707 to 711. M'ratt V. Taunton Copper M. Co.. 12:^ ^ifnss. 110. 112. 2.5 Am. Rep. 137; Sewall V. Boston AVater P. Co., 4 Allei; 277, 81 Am. Dec. 701. * (See § 707. 337 CONCEIIXIXG PKIOUITIES. § 714 and govern such a ooiulition of cireumstanees. In England and in several of the states the rule giving to the assignee who first noti- fies the debtor party or trustee a precedence over all others, even those who are earlier in date, furnishes a certain and simple crite- rion for determining the priority, it being remembered that this rule is confined to pure personal things in action, and does not ex- tend to liens and other equitable interests in real estate.- In the states where the rule referred to does not prevail, the question must turn upon other doctrines. If the interests are equitable in their nature, and the equity of no assignee is intrinsically superior to the others, the settled principle of equity should control, that the order of time determines the order of priority; or in other words, that the subsequent assignee takes subject to the rights of the one prior in time; and this principle has been applied, in such cases, by many able decisions.^ On the other hand, if the subsecpient as- signee has acquired the legal title, and was a purchaser in good faith for a valuable consideration and without notice, he is protect- ed ; and this doctrine of bona fide purchase seems to have been ex- tt nded, by some decisions, to subsequent assignees Avho had only obtained an equitable interest.* J; 714. 3. Equities in Favor of Third Persons. — Equities in favor of third persons through whom the title to the thing in action has never passed, and those in favor of a former assignor, are intimate- ly connected ; indeed, they are only different phases of the same doctrine, and must stand or fall together. If the impei'fection of an assignee's title is not confined to equities subsisting in favor of Ihe debtor party, there is no reason, in the nature of things, why it should not extend to the equities of all other parties. — thii-d per- soijs as well as previous holders and assignors; in fact, the doctrine would apply Avith fewer exceptions in the case of third persons than in the case of prior assignors. As a third person, although having some interest or claim which constitutes his "equity," has never been an oAvner or holder of the chose in action, and has never transferred it, his conduct toAvards it cannot, in general, enable the assignee to invoke against him the doctrine of estoppel. These conclusions are fully sustained by judicial authority. Wher- ever the narroAver vicAV that an assignee takes subject onhj to the - Sco supra, §§69.5-007. •^fuir V. .Schenck, 3 Hill 228. 38 Am. Dec. 633, Sh. 106; Farmers' Bank v. Diobold Safe & Look Co.. 66 Ohio St. 367, 64 X. E. 518, 90 Am. St. Rep. 586, 58 L. K. A. 620: Fairbanks v. Sarircnt. 104 N. Y. 108, 58 Am. Rep. 490, s. c. 117 X. Y. 320. 22 X. E. 1039. 6 L. R. A. 475. See, also, supra, last nore to § 695. ■'Supra, § 698; Judson v. Corcoran, 17 How. 612: Dueber Watch-Case Mfg. Co. V. Daugherty. 62 Oli. St. 589, 57 N. E. 455. 22 § T15 EQUITY JLlvJSl'UUDENCE, 338 equities of the debtor has been rejected, and the theory of "latent" equities has been disregarded, the courts have described the assign- ment as subject to all claims existing against the assignor, — have laid down the rule in comprehensive and positive terms, that the assignee takes subject to all equities, latent or open, of third per- sons. Of course the "equity," in such a case, must be some sul)- sisting claim to or against the thing in action itself, or the fund Avhich it represents, which the third person held and could have enforced if it had remained in the hands of the assignor; as. for example, a lien or charge upon the fund or some part of it, or upon the security, or an equitable ownership or right to the fund or security, and the like.^ The case of subsequent execution or at- tachment creditors of the assignor stands upon a somewhat differ- ent footing, since their equities in the subject-matter are not exist- ing at the time of the assignment.- ^ 715. Contrary Rule, that Assignments of Things in Action are Free from Latent Equities in Favor of Third. Persons or Previous Assignors. — On the other hand, the conclusions reached by this im- posing line of authorities have been wholly rejected. Able judges and courts have maintained the position that assignments of things in action are subject only to equities of ihe debtor party; that they are never subject to equities in favor of third persons, and especial- ly that they are free from that kind of prior claim often called "latent equities."^ Although this direct conflict cannot be com- ])leteiy reconciled, yet the apparent discrepancy which ejcists among similar cases may be explained, and at least partly removed, by certain well-settled principles of equity which are recognized by all courts. The e(iuity of the second assignee may, from some intrinsic element or some external incident, be "superior," and may there- fore be entitled to a precedence ; or the second assignee may have obtained a legal title, so that the doctrine of bona fide purchaser for a valuable consideration will apply and give him protection ;'- or the holder of the prior ecpiity may have been guilty of laches or other conduct making it inequitable to subject an innocent sub- sequent assignee to his claim.^ 1 yhropshire, etc., Ey. v. The Queen, L, R, 7 H. L. 496, Ames Trusts 300 ; Bush V. Lathrop, 22 N. Y. 535, per Denio, J.; Muir v. Schenck, 3 Hill 228, 38 Am. Dec. 633, Sh. 106. " For cases postponinpf the equities of the assiijnor's creditors, see ante, §§ 694, and note, 700, and note. "Murray v. Lylhurn, 2 Johns. Ch. 441, 443, 1 Scott 526; Sumner v. Wnugh, 56 Til. 531 : Winter v. Montgomery G. L. Co., 89 Ala. 544, 7 South. 773. -As in Western Xat. Bank v. Maverick Nat. Bank, 90 Oa. 339, 16 S. E. 942, 35 Am. St. Rep. 210: Winter v. Mtrntoomcrv C. L. Co.. 89 Ala. 544, 7 South. 773. 'See supra, § (i98, Judson v. Corcoran, 17 How. 612, and other cases cited. 339 coxcKiiMNt; 1'i;iouities. § '^l!^ ^ 716. Equitable Estates, Mortgages, Liens, and Other Interests. Having thus; coiKsider'ed the geiu'ral principles concerning priority in their effect upon assignments of pure things in action, 1 shall 7io\v examine their application to another group of eiiuitable inter- ests in property, including estates, liens, charges, and the like. The genera: doctrines which control these kinds of interests, and deter- mine their order of priority, have been presented in the formm' part of this section, and require no further discussion ; it only re- mains to illustrate their application under various circumstances to different conditions of fact. . . . § 717. Doctrine of Priorities Greatly Modified by the Recording Acts. . . . The scope and operation of these purely equitable doctrines throughout the United States have been greatly broken in upon and modified by the various recording acts; so that any uniformity of the practical rules has been made virtually impos- sible. The provisions of the recording acts differ exceedingly in the different commonwealths, as has been shown in the preceding section.^ , , . ^ 718. I. Priority of Time among Equal Equities. — The general doctrine is well settled, as already stated,^ that among successive ecjuitable estates, liens, and interests which are equal, — that is, where neither claimant holds the legal estate or has the best right to call for it, and neither is intrinsically superior to the others, noi* is affected with any collateral incident, such as negligence or fraud, --the order of time controls, even though a subsequent holder ac- quired his interest without any notice of the prior one. Under these circumstances the maxim, Qui prior est tempore, potior est jure, ajiplies. The doctrine has been fully recognized and constantly en- forced by American courts, wherever its operation has not been interfered with or modified by the recording acts.- The equities to which this rule has been most frequently applied by the English courts are equitable mortgages, especially those created by a de- posit of title deeds, — a kind of security almost unknown in this country. In order to accurately appreciate the decisions upon this subject, it is important to keep in mind the peculiar rules concern- ing the nature of legal and equitable mortgages which prevail in llie English law, and which are in many respects different from our own system.^ *tSee supra. S 646. ^ See supra. §S 678. f5S2. -Phillips V. Phillips, 4 De Gex, F. & J. 208. 215, 218, H. & B. 72, Ames Trusts 331, 1 Scott 333, 511; Cave v. Cave, L. R. 15 Ch. Div. 639, 646, Ames Trusts 311. 1 Scott 517: Rico v. Pirc, 2 Drew. 73, H. & B. 23, 1 Scott 334; Berrv v. .Mutual Ins. Co,. 2 .lolni-;. Ch. t>n3, Sh. 104, 1 Scott 331. *With respect to priorities between successive equitable mortages, see Brad- § 730 El^UlTY JUlUSlTxUDENCE. 340 § 719. Illustrations — Simultaneous Mortgages, Substituted Liens, etc. — It has naturally followed, from the provisions of the record- ing acts, and from the quite different modes of conducting business prevailing in this country, that the questions presented to the Am- erican courts for decision have been of another character, arising from other circumstances. Among these questions, one relates to simultaneous mortgages or other liens.^ Two or more mortgages having been given at the same time, or as parts of the same single transaction, with the intention that they should be simultaneous liens, they may perhaps be recorded on different days, and the court may be called upon to settle the equities between the mort- gagees or their assignees. A second and most important question concerns the respective claims of precedence between a prior un- i-ecorded mortgage or other specified equitable lien, and a subse- quent docketed judgment.- Another question relates to the effect of substituting a different lien in the place of one already existing, whether the substituted lien retains the precedence which belonged to the one Avhich it has replaced.^ ^ 720. II. One Equity Intrinsically the Superior — Prior Gen- eral and Subsequent Specific Lien. — The doctrine has already been ley V. Riches, L. R. 9 Ch. Div. ISO. Witli respect to such i^riority where there has been negligence on the part of the one first in order of time, see Hunter V. Walters, L. R. 11 Eq. 292; see ante, § (iST. and notes: In re Castell' & Brown (1898), 1 Ch. 313. If the legal owner Iont. 1S(1. 25 Vac. 102. 10 L. R. A. 411. Prior unrecorded deed: Columbia Bk. v. Jacobs, lO Mich. 349, 81 Am. Dec. 792. 'HoUiday v. Franklin Bank, 16 Ohio 533: Massey v. Westcott. 40 111. 100; Harney v. PMrst Nat. Bank, 52 N. J. Eq. 097. 29 Atl. 221; Meeker v. Warren (N. J. Eq.) 57 Atl. 421. 'Priest V. Rice, 1 Pick. 164. 11 Am. Dec. 156; A. R. Beck Lumber Co. v. Rupp, 18S 111. 562. 59 X. E. 429. SO Am. St. Rep. 190 (possession of tenant as notice) : Wahn v. Fall. 55 Xehr. 547, 76 X. W. 13, 70 Am. St. Rep. 397 (possession by vendee notice of his cfpiity). 34;5 €OXCEi;XlX(J rUlOKITIKS. ^ V"3 + states, however, the statutory language is regarded a.s so Deremp- tory, and the necessity of recording so complete, that even notice ol' an unrecorded mortgage or other subsisting equity, given to the creditor before the recovery and docketing of his judgment, is held not to affect the priority of the lien acquired by the subsequent docketed judgment. - § 724. Between Prior Unrecorded Mortgage and a Purchase at Execution Sale under Subsequent Judgment. — Having thus examin- ed the relations subsisting between unrecorded mortgages and other equities, and the liens of subsequent docketed judgments, it remains to consider the effects produced by a -judicial sale under snch judgments. Several varying conditions of fact may exist, and conflicting rules concerning them prevail to a certain extent, in different states. In the first place, it is a rule universally adopted, and in strict accordance with the general doctrine concerning bona fide purchasers as established in this country, that in all the in- stances heretofore mentioned, even where the Urn of a subse(|uent judgment is subject to an outstanding equity, if the judgment is enforced at a sheriff's sale, and the judgment debtor's land is sold and conveyed to a bona fide purchaser for a valuable consideration and without any notice, he stands in the position of any other bona fide purchaser who acquires the legal estate, and takes the land free from any unrecorded mortgage and any outstanding equitable interest or lien not appearing of record which might have affected the land in the hands of the judgment debtor. Tn other words, such a purchaser at the execution sale is to all intents a purchaser in good faith for a valuable consideration and without notice, as is de- scribed in the succeeding section.^ Secondly, where the lien of the subsequent judgment is, in pursuance of the settled doctrine of equity, subject to a prior unrecorded mortgage or other outstand- ing equity, even without notice thereof to the judgment creditor, and also where the lien of the judgment is thus subject because ^Mayliam v. Coombs, 14 Ohio 428. 'Draper v. Bryson. 26 ]Mo. 108, 69 Am. Deo. 48.3; Ayres v. Duprey. 27 Tex". 50.3. 605, 86 Am. Dec. 657. In many states it is held that if the judgment rreditor purchases nt the sheriff's sale without notice, takes a conveyance, and has his bid applied in partial or full dischar-re of his judjiment, he becomes a bona fide purchaser for value without notice, with all the rights belonging to that position : Riley v. Martinelli, 97 Cal. 575. 32 Pac. 579, 33 Am. St. Re]i. 209, 21 L. R. A. 33: Pugh v. Highley, 152 Ind. 2.52. 53 N. E. 171, 71 Am. St. Rep. 327, 44 L. R. A. 392. Rut this conclusion is clearly inconsistent with the settled doctrine concerning the nature of the "valuable consideration" which entitles a purchaser to the rights of a bona fide purchaser, and has been rejected by many decisions: Hacker v. White. 22 Wash. 415. 60 Pac. 1114, 79 Am. St. Rep. 945; Williams v. Hollingsworth, 1 Strob. Eq. (S. Car.) 103, 47 Am. Dec. 527. § 'J'25 EQUITY JLinSPRUDEXCE. 344 the Judo'ment creditor liad received notice before its recovery, if the judgment is enforced, and the land is soid and conveyed to a l)urchaser who has chily received notice of the prior unrecorded mortgage or other subsisting equity, the inferiority of the judgment lien still remains and attaches to the conveyance which is the re- .-ult of that lien The purchaser under these circumstances is not a bona fide purchaser; he takes the land subject to the same encum- brances and equities which a fleeted the lien of the docketed judg- inent.'- Third!}', wherever, in pursuance of the rule adopted in many states, the lien of a subsequent judgment is paramount to that of a prior unr,ecoi'ded mortgage and to any outstanding equit- able interest not of record, if the judgment is enforced and the land si.'ld and conveyed to a purchaser ivho has received notice of the i)iior encumbrances or equities, the superiority of the iien still continues and attaches to the conveyance. The purchaser holds the land free from all such claims not of record, on the ground that when a right has once been vested and made absolute, it can- not be divested or defeated by any mere notice, The judgment creditor having obtained a complete and fixed right, any notice which he might afterwards receive could not affect that right; nor would it be affected by a transfer to a purchaser having notice.* § 725. Purchase-money Mortgages.— Another very important in- stance in this country, of intrinsic superiority, is that of the pur- chase-money mortgage. A mortgage to secure the purchase-money of land, given at the same time with the deed of conveyance, or in pursuance of agreement as a part of the same transaction, has precedence, so far as it is a charge upon the particular parcel of land, over judgments and other debts of the mortgagor.^ It is a familiar rule in those states where the common-law dower exists that such a mortgage, although not executed by the wife, takes precedence over her dower right in the same land.^ The statutes of some states give a purchase-money mortgage precedence over a pievious judgment recovered against the mortgagor." . . . Even in the absence of any statute, and upon the general principles of ef|uity, a purchase-money mortgage given at the same time as the deed, or as a part of the same transaction, has precedence over any prior general lien, such as that of a prior judgment against the -Mover v. Himnan, 13 N. Y. 180, 2 Keener. 344: Ogdeii v. Haven. 24 Til. 57; .Murphy v. Green, 120 Ala. 112. 22 South. 112. •■'Lusk V. Reel, 36 Fla. 418. 18 South. .'582. 51 Am. St. Rep. 32: Wallace v. Campbell, 54 Tex. 87. See post. § 754. ' In many states this is expressly enacted by statute. 'Clark V. Munroe, 14 Mass. 351: Frederick v. Emig, 186 111. 319, 59 N. E, 883, 78 Am. St. Rep. 283. ■•Hopler V. Cutler (N. J. Eq.), 34 Atl. 746. 345 CON'CEltXINCi rUlOlUTlKS. § T"27 mortgagor.^ The same ecjuitable rule ap})lies in like manner to a niortgage given by the grantee to a third person, as security for money loaned for the purpose of being used, and which is actually used, in paying the purchase price."' , , . The purchase-money mortgage not only thus takes precedence of a prior judgment, but it also cuts off or prevents the attachment of any other lien upon the premises which might otherwise have affected them." § 726. Other Illustrations.— In addition to these most important questions of priority between different equitable liens, there may be many other particular instances in which a subse(iuent interest is intrinsically superior, or an earlier one intrinsically inferior, so as to determine the precedence between them. . , . Fraud in- hering in a prior mortgage, encumbrance, or other apparent claim will, of course, postpone it to a subsequent valid lien.^ . , . The priority among liens may also be fixed by express agreement among the parties at the time they are created, so as even to follow them sometimes into the hands of an assignee.^ § 727. III. A Subsequent Equity Protected by the Legal Title. — The case to be considered is not that merely of an equitable in- terest held by A, and a subsequent conveyance of the legal estate to B, in which the latter 's superior right would be a simple applica- tion of the doctrine concerning bona fide purchase for a valuable consideration. The subject to be examined assumes the existence of successive equities held by different persons, equal in their na- tui'e, and acquired in such a manner that, having regard to these interests alone, the priority of right among them would depend upon their order of time. Under these circumstances, it is assumed that one of the parties acquires, in some manner, the legal title in addition to his equity. The settled doctrine is, that if a second or other subsequent holder, who would otherwise be postponed to the earlier ones, obtains the legal estate, or acquires the best right to ^Roano V. Baker. 120 111. .308, 11 N. E. 246: Weil v. Casey, 125 N. C. .3.jG, .34 S. E. .506, 74 Am. Sf. Rep. 644; New .Jersey B. L. & Inv. Co. v. Bachelor, .54 N. .1. Eq. 600, .35 Atl. 745. 'Adams v. Hill. 21) X. II. 202; Booeis v. Tnckor. 94 Mo. .346, 7 S. W. 414; New .Jersey B. L. & Inv. Co. v. Br.chelor, 54 N. .1. Eq. 600, 35 Atl. 745. * Superior to vendee's mortgatje made and recorded prior to the passing- of title to him: Demeter v. Wilcox, 115 Mo. 634, 22 S. W. 613. 37 Am. St. Rep. 422 ; see ante, S 658. Superior to mechanics' lien : Strong v. Van Deursen, 23 N. .J. Eq. 369. Superior to homestead right: Austin v. Underwood. 37 111. 438, 87 Am. Dec. 254: Roby v. Bismarck Nat. Bank, 4 N. Dak. 156, 59 N. W. 719, 50 Am. St. Rep. 633. 'Efjgeman v. Eorgeman, 37 ^Micli. 43^ ; Hooper v. Cenlral Trust Co., 81 :\ld. 559. 32 Atl. 505. 29 L. R. A. 262. = THopler v. Cutler (N. .J. Eq.), 34 Atl. 746. See Loewen v. Forsee (Mo.), 35 S. W. 1138. § T^-^O Eyi:iTY JLULSPKL'DEXCE. 3-1 ii call for the legal estate, he thereby secures an advan- tage which entitles him to a priority.^ It is absolutely essential, however, that he should have aeciuired his equitahli'. interest without any notice of the prior claims, and that his subsequent procure- ment of the legal estate should be free from fraud and from undue negligence.- Several illustrations are placed in the foot-note.^ § 728. Legal Estate Obtained from a Trustee.— Such being the general rule, there are si)ecial circumstances in which the acquisi- tion of the legal estate, even without notice, will not confer a prior- ity. Thus it seems now to be settled by the most recent English decisions that where the legal estate is vested in a trustee, and the holder of a subsequent equitable interest, even without notice of the prior e. § "30 notice of the trust, lie. obtains a eonveyaiu-e of the legal estate from tl'.e trustee, he cannot protect himself against, nor even assei't prior- ity over, the right of the cestui (]ue trust, for his act has necessarily made him a party to a breach of trust.^ Does the same rule extend to all instances of a legal estate procured by the holders of subsc- (luent equitable mortgages, liens, and other equitable interests' There is some conflict, or apparent conflict, of opinion upon this ]Htint, but it all arises, I think, from the failure to distinguish mere rights of priority from the more complete rights of defense belong- ing to the bona fide purchaser for a valuable consideration. The confounding of these two entirely distinct and separate matters can only lead to a confusion of decisions and rules.- The very object of the rule is, that a person who has in good faith become holder of an equitable lien or interest, on discovering his danger of being postponed to an outstanding equity already in the hands of another, may protect himself and secure his priority by procuring the legal title. Principle and authority seem to be agreed that such a holdiM" of a subsequent equity, who obtained it for value and Avithout notice, may, even after notice of an earlier equity in favor of a third person, secure the advantage given by a conveyance of the legal estate, and thus establish his own priority. By this act the subsequent holder would become entitled to priority. The decisions and dicta which conflict with this conclusion will be found, upon examination, to be dealing with the alleged rights of a bona fide purchaser for value, and not with a mere ((uestion of priority. '' § 730. IV. Notice of Existing Equities. — The doctrine is uni- versally settled, and has already been fully examined, that, among successive interests wholly equitable, and between an earlier equity and a sul)sequent legal estate, even when purchased for a valuable consideration, the one who acquires the subsequent estate or inter- est with- notice of the earlier equity in favor of another person will liold his acquisition subject and subordinate to such outstanding interest or right; in the contest for priority between the two claim- ants, he must be postponed; he takes his interest burdened with 1he obligation of recognizing, providing for, and carrying out the ' Mumford v. Stohwasser, L. R. 18 Eq. 556, 563; Saunders v. Dehew, 2 Vern. 271, Ames Trusts 280; Sharpless v, Adams, .32 Beav. 213; Carter v. Carter, .3 Kay & .1. 017, 1 Scott 345. -Jn .a case of priorities merely, tlie court in a proper proceeding- awards the subject-matter to the various claimants in the order of precedence; in the other case it refuses any relief to the plaintifT attempting: to establish his title or claim against the bona fide purcliaser. •'Brace v. Duchess of Marlborough. 2 P. Wms. 491. 1 Scott 330, 3,")0: Fitz- simmons v. Ogden, 7 Cranch. 2, IS: Dueber Watcli-Case ^Ifg. Co. v. Daugherty, 62 Ohio St. 589, 57 X. E. 455; Tavlor v. Bus^oll (ISOIK 1 Ch. 9. ^ 731 EQUITY Juui.sriaDExcK. 348 pi-evious equity according to its nature. This subordinating effect is produced alike by every species of notice ; actual notice proved by direct or inferred from circumstantial evidence, and construc- tive notice arising from information sufficient to put the prudent man upon an inquiry, — from possession, from the contents of title deeds, from lis pendens, from registration, from information given to an agent, or from any other cause, — when once established, are f(.llowed by the same consequences upon the rights of the subse- quent holder or purchaser. The doctrine applies to all successive equities in the same subject-matter, even where they are equal and governed by the order of time, and in such a case it does not dis- turb the priority already existing. Its special and more important application is where the subsequent equitable interest is superior in its intrinsic nature or from some incident, or where the subse- (jiient interest is a legal estate, or where it possesses the advantage r(sulting from the compliance with some statutory recjuirement. so that the holder thereof would, in the absence of notice, be entitled to the preference ; and its effect is then to defeat the precedence which would otherAvise have existed, and to restore the priority fj'om order of time among the successive claimants. By far the most frequent application of the doctrine in this country has been in connection with the recording acts, where the superiority of title or of lien otherwise acquired by the recording of a convey- ance, mortgage, or other instrument has been held to be lost by rea- son of a notice of some outstanding unrecorded estate, title, mort- gage, lien, or other equitable interest. As the doctrine of notice, both wnth respect to its nature and its effects, has already been discussed as fully as my limits will permit, I shall add nothing farther here except a few cases placed in the foot-note bj^ way of illustration.^ § 731. V. Effect of Fraud or Negligence upon Priorities. — A priority which would otherwise have existed maj^ also be dis- turbed and defeated by fraud or negligence in obtaining the in- terest or in failing to secure it properly. It is therefore a settled doctrine, that among successive equities otherwise equal, and also between a legal title or superior equitable interest earlier in time and a subsequent equity, the holder of the interest which is prior in time and would be prior in right may lose his precedence, and be postponed to the subsequent one by his own fraud or negligence, or that of his agent. The same rule applies to the holder of a sub- sequent legal estate who would otherwise have the precedence over 'Greaves v. Tofield, L. R. 14 Cli. D. 653, 1 Scott 285; School District v. Taylor, 19 Kan. 287; Durant v. Crowell, 97 X. C. 3G2, 2 S. E. 541. See ante, § 688. 349 CONCEi;XI.\(i I'liiOHITIES. § V)'^ a prior equitable interest; lie may be postponed by reason of his neglect or fraud. While the general rule has been fully adopted by the American courts, the cases involving it are much less fre- quent in this country than in England, because almost every kind of interest in land is within the operation of the recording acts, and may be protected by a record. Most instances of laches, there- fore, coming before our courts have arisen from a neglect to record an instrument, or to comply with the provisions of some statute analogous to that of recording.^ The effects of negligence and want of diligence in postponing or even defeating the rights of an assignee of a thing in action, earlier in point of time, have already been described.- One instance which may be regarded as an ex- ample of fraud, although no actual fraudulent intent is essential, is, where a prior encumbrancer, upon inquiry being made by a person interested, denies the existence of his lien, or where the owner of the legal estate denies his title under like cir- cumstances, or even keeps silent and does not announce his title to an innocent person who is making expenditures, or advancing money upon the supposed security of the property." § 732. Effect of Gross Negligence. — It is now^ settled by the English decisions, after some fluctuation, that where a person has become entitled to the precedence because he has acquired the prior legal estate, or because, being subsequent in time, he has fortified his equity by obtaining the legal estate, he cannot lose such pre- cedence and be postponed, unless by himself or by his agent he is chargeable with fraud or with gross negligence; mere neglect will not sutfice.^ Whether the same requirement of gi'oss negligence aj'plies to successive interests which are all purely ecpiitable, or whether mere negligence is sufficient to affect the priority, [was long] unsettled by the decisions. - ^ Kd'ects of fraud: See ante, §f)8G; Eggeman v. Eggeman, SJ Mich. 43G; Hooper v. Central Trust Co., 81 Md. ,559, 32 Atl. 505, 29 L. R. A. 2(52. Effects of negligence: See ante, §687; City Council of Charleston v. Ryan, 22 S. C. 339, 53 Am. Rep. 713; Heyder v. Excelsior B. & L. Ass'n, 42 N. J, Eq. 403, 8 Atl. 310, 59 Am. Rep. 40, H. & B. 70. ^See ante, §§ 698-702. ■^ These instances may undoubtedly be referred to the doctrine of equitable estoppel ; but the notion of constructive fraud lies at the foundation of that doctrine: Stronge v. Hawkes. 4 De Gex, V. 4 (i. 18(i, 4 De Gex & J. ()32 ; Lee V. Munroe, 7 Cranch, 366, 368 ; Fay v. Valentine, 12 Pick. 40, 22 Am. Dec. 397. See, also, ante, §686; post, §8i8. * See Hewitt v. Loosemore. 9 Hare 449; .\orthern Counties, etc., Co. v. Whipp. L. R. 20 Ch. Div. 482. 1 Scott 353; in re lngh.am (1893), 1 Ch, 3.52; Lloyd's Bkg. Co. v. Jones, L. R. 29 Cli. D. 221. Ames Trusts 272. = The case of Farrand v. Yorkshire Banking Co., J>. R. 40 Ch. Div. 1S2, settled this question in Englantl. It was there lieid tiiat gross iiegligen«e § 'jg-l EC^UiTY JLKJSl'ltLDENCK. 350 § 733. Assignments of Mortgages— Rights of Priority Dspsnding upon. — An assignment of a mortgage is, throughout this country, with the exception, perhaps, of-a very few states, a mere transfer of a thing in action, and the assignee can acquire no higher rights as against the mortgagor than those possessed by the original mort- gagee.^ Such assignments are generally Mnthin the operation of the recording statutes, either in express terms, or by a judicial interpretation of the statutory language, holding that an assign- ment is a species of conveyance.^ The record of an assignment, like that of any other instrument, does not operate as a norice retrospectively; it is not therefore a constructive notice of the assignee's interest to the mortgagor, so as to destroy the effect of payments made by him, without actual notice to the mortgagee f but a mortgagor who obtains a discharge from the mortgagee iritliout niiy pfitjiiicnt is not protected as against the assignee.'* § 734. Unrecorded Assignment — Rights of the Assignee. — When a mortgage dul}' recorded is assigned, that original record continups to be constructive notice of the existence of the lien to all subse- ■luent purchasers and encumbrancers of the same premises, and the assignee does not lose his precedence over such parties by a failure amounting to fraud is not necessary, but tliat negligence such as an omission to obtain possession of or to make inquirii-s concerning the title deeds may be sufficient. !See, also, Taylor v. London and County Banking Co. (IDOl), 2 Cli. 231, 260; In re Castell & Brown (1898), 1 Ch. 315. ^ Wanzer v. Cary, 70 X. Y. 520. See Merchants' Bank v. Weill, 103 X. Y. 486, 79 Am. St. Rep. 605, 57 N. E. 749. In the absence of notice of the assign- ment to the mortgagor, or of facts putting him on inquiry as to an assignment, he is protected in payments subsequently made by him to the mortgagee: See ante, §702; Towner v. McClelland, 110 111. 542. It is not usually necessary for the morfoagor's protection that he should require the production of the mortgage or bond or other non-negotiable instrument secured thereby at the time of mak- ing payment: Vann v. Marbury, 100 Ala. 438, 14 South. 273, 46 Am. St. Rep. 70. 23 L. R. A. 325. Assignment of negotiable note secured b\- mortgage; see ante, § 704, note. - Westbrook V. Gleason, 79 N. Y. 23; Swasey v. Emerson, 168 Mass. 118, 40 N. E. 420, 60 Am. St. Rep. 308; Citizens' State Bank v. Julian, 153 Ind. 055. 55 N. E. 1007. It necessarily follows that when a mortgage is assigned, and the assignment is not recorded, and tlie mortgagee afterwards satisfies the mortgage of record, the lien is thereby destroyed as against a bona fide purchaser or encund)rancer, without notice, of the premises: Bowling v. Cook, 39 Iowa 200: Lewis v. Kirk, 28 Kan. 497, 42 Am. Rep. 173. = See ante. §657: IMurphy v. Barnard, 162 Mass. 72. 38 X. E. 29, 44 Am. St. Rep. 340: Williams v. Keyes. 90 Mich. 290, 51 X. \V. 520, 30 Am. St. Rep. 438. «See Earned v. Donovan, 155 X. Y. 341. 49 X"^. E. 942. The record of an assignment is, however, a constructive notice to subsequent purchasers and encumbrancers of the mortgaged premises: Robbins v. Larsen, 69 Minn. 436;^ 72 X. W. 456, 65 Am. St. Rep. 572. ool C0Nci:i;xiN(i pkiouities. § T;U to record the assii;imient.^ A conveyance of the mortgaged preniiscs to the mortgagee after he had assigned the mortgage would not work a merger, but the rights of the assignee would remain unaf- fected.- If the mortgagee, having thus acquired title aftei- the assignment, should in turn convey the mortgaged premises to a third person without knowledge nor actual notice of the assign- ment, it is held that such grantee would be charged with construc- tive notice and would take subject to the rights of the assi^gnee, be- cause the records would give him notice of the facts sufficient to put a reasonable nu\n upon an inquiry, and a due inquiry would necessarily lead to a discovery of the real situation.-" If a second mortgagee, with notice of a prior unrecorded mortgage, assigns to a bona tide purchaser without notice, but the prior mortgage is recorded before the assignment, the assignee would fail to secure a precedence.'* Since a mortgage is a thing in action, an assignee, even without notice, will be subject to all outstanding equities and claims in favor of third persons which were existing and available against the assignor, wherever the general doctrine prevails that all assignments of things in action are subject to such latent equi- ties."' Questions of priority might arise between successive assignees of the same mortgage from the same assignor. If an assignment is perfected by an actual delivery of the mortgage itself and of the bond, note, or other evidence of debt secured, even though it be not recorded, a subsequent assignee wouM necessarily be put upon an inquiry, and chargeable with constructive notice, and could olv tain no precedence even b}^ a first record. ° In other instances Avhere the assignments are equal, made for a valuable consideration and without notice, if all were unrecorded, the earliest in order of time prevails; the assignee for value and without notice Avho first ob- tains a record secures thereby the title; a record when made is a constructive notice to all subsequent assignees of the same mort- gage.' MVilson v. Canipholl, 110 Mich. 580, OS X. W. 278, 35 i... R. A. 544. 'Purdy V. Huntinjjton, 42 N. Y. 334. 1 Am. Rep. 532. ■" Purely V. Huntington, 42 X. Y. 334, 1 Am. Rep. 532: Dcnmtli v. Old Town Jiank, 85 Md. 315, 37 Atl. 206, 00 Am. St. Rep. 322. MVestbrook v. (Jleason, 79 X. Y. 23; Butler v. Bank of Mazejipa. !t4 Wis. 351. 08 X. W. 998. See Decker v. Boice, 83 X. Y. 215. •'■See ante, §§ 708, 709, 714: Conover v. Van :Mater, 18 X. .1. Eq. 481; Kcrno- han V. Durham, 48 Oh. St. 1, 26 X. E. 982. 12 L. R. A. 41. See contra, ante, §715: Mullanphy Sav. Bank v. Seholt, 135 111. 055. 26 X. E. 040, 25 Am. St. Rep. 401. "See IMiller Brewing- Co. v. :Manasso. 09 Wis. 99. 67 Am. St. Rep. 854, 74 X. W. 535: Kernohan v. Durham. 48 Ohio St. 1. 26 X. E. 982. 12 L. R. A. 41. ^^lurphy V. Barnard. 102 :\rass. 72. 44 Am. St. Rep. 340. 38 X. E. 29; Himrod V. Oilman. 147 111. 293, 35 X. E. 373, ailirming 44 111. App. 516. EQUITY JURISPRUDENCE. 352 SECTION VII. CON'CERNING BONA FIDE PURCHASE FOU A VALUABLE CONSIDERA- TION AND WITHOUT NOTICE. ANALYSIS. § 735. General meaning and scope of the doctrine. § 736. General effect of the i-ecording acts. >j§ 737-744. First. Rationale of the doctrine. § 738. Its purely equitable origin, nature, and operation. § 739. It is not a rule of property or of title. *!§ 740, 74L General extent and limits; kinds of estates protected. SS 742, 743. Phillips v. Pliillips; formula of Lord Westbury. S§ 745-762. Second. What constitutes a bona fide purchase. §§ 746-751. 1. The valuable consideration. § 747. 1. What is a valuable considei'ation ; illustrations. S§ 748,749. Antecedent debts, securing or satisfying; giving time, etc. §§ 750.751. 2. Payment; eflect of part payment; giving security. SS 752-761. 11. Absence of notice. § 753. 1. Effects of notice in general. § 754. .Second purchase trithout notice from first purchaser irith. also second purchaser ivith from first purchaser without notice. S 755. 2. Time of giving notice; English and American rules. § 756. Efiect of notice to a bona fide purchaser of an equitable intei'est before he obtains a deed of the legal estate. *)§ 757-761. 3. Recording in cpnnection with notice. § 758. Interest under a prior unrecorded instrument. § 759. Requisites to protection from the first record by a subsequent purchaser. § 760. Pui-chaser in good faith with apparent record title from a grantor charged with notice of a prior unrecorded conveyance. § 761. Break in the record title; when purchaser is stifl charged witli notice of a prior instrument. § 762. 111. Good faith. §§ 763-778. Third. Efi'ects of a bona fide purchase as a defense. § 764. 1. .Suits by holder of legal estate under the auxiliary jurisdiction of equity, discovery, etc. § 765. Same; exceptions and limitations. §§ 766-774. 11. Suits by holder of an equitable estate or interest against a purchaser of the legal estate. § 767. Legal estate acquired by the original purchase. § 768. Purchaser first of an equitable interest subsequently acquires the legal estate; tabula in naufragio. § 769. Extent and limits of this rule. § 770. Purchaser acquires the legal estate from a trustee. S§ 771-773. This rule as applied in the United States. § 774. Other instances; purchase at execution sale; purchase of things in action. S§ 775-778. ill. Siiits by holders of an "equity." § 776. For relief against accident or mistake. SS 777,778. For relief from fraud, upon creditors, or between parties. 353 COXCERXIXG BONA IIDK I'lHCliASE. § 735 §§ 779-783. Fourfh. Aflinnative relief to a bona tide purchaser. f 779. Cileneral rule. §§ 780-782. Illustrations. § 783. Removing a cloud from title. §§ 784, 785. Fifth. Mode and form of tlie defense. § 784. The pleadings. § 785. Necessary allegations and proofs. § 735. General Meaning-, Scope, and Limitations of the Doctrine. — This section will deal with the equitable doctrine of bona fide jmrchase for a valuable consideration and without notice. The doctrine in its original form was exclusively equitable. Questions of priority cannot, as has already been stated, arise between succes- sive adverse estates which are purely lesral, and therefore cannot, independently of statutory permission, come before courts of law for settlement; such estates must stand or fall upon their own in- trinsic merits and validity.^ A contest concerning ])riority or pre- cedence properly so called can only exist vxiiere one of the two claimants holds a legal and the other an equitable title, or where both hold equitable titles, and must therefore belong to the original exclusive jurisdiction of equity. Courts of equity do not have juris- diction of suits brought merely to establish one purely legal title against another and conflicting legal title.- In the United States these elementary notions seem to have been sometimes overlooked, snd the courts sometimes seem to have extended the doctrine of bona fide purchase farther than the acknowledged principles of equity would warrant. The tendency is marked and strong in the courts of many states, even when acting as tribunals of law, to make the doctrine a legal rule of property, and to apply it alike to persons who have acquired either a legal or an equitable title to chattels and things in action, as well as to those who have acquired any legal or equitable interest in land. A subsequent holder, even for a valuable consideration and without notice, has certainly no higher right than a prior holder equally innocent and with an equally meritorious ownership. American courts 8eem sometimes to have acted upon exactly the opposite no- tion, and to have assumed that a subsequent title was necessarily the better one. When the original legal owner has done or omit- ted something by which it was made possible that his property should come into the hands of a bona fide holder by an apparently ' See supra, § 679. -Such suits are often called "ejectment bills." See vol. 1, §§ 176-178; Cole v. Mette, 65 Ark. 503, 47 S. W. 407, 67 Am. St. Rep. 945. Equity has concurrent jurisffiction in certain classes of suits dealing with legal titles alone, as suits fov slower. In regard to them the doctrine of bona fide purchase is applied in a special and ut^uHar manner. § T38 EQUITY JUKIsrEUDEXCE, 354 valid title, it may be just to regard him as estopped from asserting liis ownership, and thus to protect the subsecjuent purchaser. But when the i)rior legal owner is wholly innocent, has done and omit- ted nothing, it certainly transcends, even if it does not violate, the principles of equity to sustain the claims of a subsequent and even bona fide purchaser." § 736. Effects of the Recording Acts. — The most extensive and important change, however, in the United States has been produced b}" the recording acts. They have extended the doctrine of bona fide purchase to all conveyances and mortgages, and often to execu- tory contracts, and to every instrument which can create, transfer, or affect legal estates or equitable interests, liens, and encumbrances, and have therefore brought it within the cognizance of the courts of law as a rule for determining the validity of legal titles. The greatest diversity is found in the statutory provisions of the vari- ous states, and a consequent diversity prevails among the local rules which define the resulting rights of the bona fide purchaser. In some they are conferred upon judgment creditors, upon all pur- chasers at execution sales, and even upon those who have secured the first record although charged with notice. It would be im- possible, within any reasonable limits, to state all the results of these statutes, and to formulate all the special rules which have been derived from them in the different states. So far as the doc- trine of bona fide purchase has been made a rule of laiv. either b}' the operation of the recording acts or by the independent action of the courts, it does not properly come Avithin the scope of a treatise upon e(iuity jurisprudence. I shall therefore explain the principles of the etjuitable doctrine as established in the United States and in England, and describe the general applications and modifications made necessary by the common .Ajuerican system of registration. The minute effects growing out of the differing tyj^es of legislation must be passed over, except so far as they have been mentioned in the foregoing sections upon notice and priorities. The subject will be discussed under the following heads: 1. Rationale of the doctrine; 2. What constitutes a bona fide purchase; 3. Effects of the doctrine as a defense; 4. Cases in which courts of equity give affirmative relief; 5. How the bona fide purchaser must avail himself of his position. § 737. First. Rationale of the Doctrine. . . . § 738. Equitable Origin, Nature, and Operation of the Doctrine. ■ — The protection given to the bona fide purchaser had its origin exclusively in equity, and is based entirely upon the fact that tlu^ "See Mac(4regor v. Tliompson, 7 Tex. Civ. A])p. 32, 2(i S. W. 040; Williams iv. Rand, 9 Tex. Civ. App. 031, 30 S. \V. 50'J. 355 COXCERXIXG BOXA FIDE PUKCliASE. § Tol) jurisdiction of e(iuity is aiieillaiy and supplemental to that of the law, and upon the conception that a court of chancery acts solely upon the cunscieitcc of litiyaiit parties, by compelling' the defendant to do what, and only what, in foro conscientiae he is bound to do. ]f the relations between the two contestants standing before the court of chancer}^ are such that, in equity and good conscience, the l)iaintift' ought to obtain the aid which he asks, and the defendant ought to do or suffer what is demanded of him, then the court will interfere and grant the relief; if the relations are not of this char- acter, then the court will withhold its hand, and will leave the parties to the operation of strict legal rules, and to the remedies conferred by the legal tribunals. All equitable principles and doc- trines had their origin in this conception^ however much it may some- times be overlooked by courts at present in the administration of the doctrines which have been thus established. The protection given to the bona fide purchaser simply means, therefore, that from the relations subsisting between the two parties, especially that which is involved in the innocent position of the purchaser, equity refuses to interfere and to aid the plaintiff' in what he is seeking to obtain, because it would be unconscientious and inequitable to do so, and the parties must be left to their pure legal rights, lia- bilities, and remedies; the court will not aid either against the other. That this is the true rationale is shown by an overwhelming weight of authority. In the vast majority of cases the protection is only given to a defendant, and as a consequence the doctrine itself is commonly spoken of, and ordinarily treated, as essentially a matter of defense. The very few instances in which affirmative relief is granted to the bona tide purchasers are exceptional : they rest upon their special facts, and arise from the fraud of the defendant against whom the relief is ? warded.^ § 739. The Doctrine is not a Rule of Property or of Title.— In applying the docti'ine of bona fide purchase — and this is the very csi^ence of the doctrine — equity does not intend to pass upon and decide tJie merits of tJie two litigant parties: it does not decide that the title of the defendant is valid, and therefore intrinsically the better and superior to that of the plaintiff. On the contrary, the protection given by way of defense theoretically assumes that the iilJe of the piircjwser is really defective as against that of his oppon- ent: at all events, the court of equity wholly ignores the question of validity, declines to examine into the intrinsic merits of the two claims, and bases its action upon entirely different considerations.^ ^Spe infra, §S TTO-TSr,. 'Tills tnitli. so fundiinu'iilal, yd so oft on ovfvlookod, was well stated by Lord Eldon in tlie celebrated case of \Valh\yn v. J>ee, 9 Ves. 24, 33, 34. § 740 EQUITY JURISPRUDENCE. 356 If a plaintiff, holding some equitable interest of right, sues to en- force it against a defendant who has in good faith obtained the legal estate, the court simply refuses to interfere and do an un- conscientious act by depriving him of the advantage accompanying such an innocent acquisition of the legal title. On the other hand, if the plaintiff is the legal owner, and sues to obtain some equitable relief against a defendant who is the innocent holder of some equit- able estate or interest, the court in like manner simply refuses to do an unconscientious act by giving any aid to the plaintiff, but, without at all deciding or even examining the intrinsic merits of their claims, leaves him to whatever rights would be recognized and whatever reliefs granted by a court of law. It is thus seen that the doctrine of bona fide purchaser as administered by equity ■is not in any sense a rule of. property.- Whenever the relations be- tween the litigants are of such a nature, and the suit is of such a kind, that a court of equity is called upon to decide, and must de- cide, the merits of the controversy, and determine the validity and sufficiency of the opposing titles or claims, then it does not admit the defense of bona fide purchase as effectual and conclusive. The foregoing description shows that it is wholly unwarranted by the settled principles of equity for a court to sustain and enforce the siihsequent legal estate acquired by A in any kind of property or thing in action, merely because he is a bona fide purchaser for a valuable consideration without notice, against the prior legal and eijually innocent owner. B, or even to sustain A's defense as a bona fide purchaser in a suit brought by B. § 740. General Extent and Limits — Kinds of Estates Protected. — Such being the rationale of the doctrine, it remains to consider the general extent and limits of its operation ; and this chiefly in- volves the question, To what kinds of estates held by the bona fide purchaser will it be applied? It has never been doubted that the protection Avill be extended to the defendant in a suit brought by the holder of a prior equitable estate or interest against the sub- sequent bona fide purchaser of a legal estate, who acquired such estate at the time of and by means of his original purchase.^ It is also generally extended, in the similar suit by the holder of a prior equitable interest, to a defendant who, having originally been the "bona fide purchaser of a subsequent equity, has afterwards obtained = Sengfelder v. Hill, 21 W.ash. 371, .58 Pac. 250: Knoblnck v. Mueller. 12f? 111. 554, 17 N. E. 69fi, H. & B. 80: United States v. Detroit Timber & L. Co. (C. C. A.). 131 Fed. fifiS. 07S. 'Post. S 767: Diokorson v. Tillincrhast. 4 Paige 215. 25 Am. Dec. 528: Senfj- f elder v. Hill, 21 Wash. 371. 58 Pac. 250: Home 8av. & State Bank v. Peoria Agricultural k Trotting Soc, 20(i HI. 9, «9 X. E. 17, 99 Am. 8t. Pep. 132. o57 COXCEKXINO BONA FIDE I'lliCllASE. § 142 an outstanding leiial estate.- The vital question is, whether the defense Avill also avail on behalf of a defendant who has acciiiired an equitable interest merely, against a plaintift* who holds a prior legal estate; and upon this question, decisions and judicial dicta, especially the earlier ones, are in direct conflict.^ . . . § 741. Same — When the Doctrine does not Apply. — Notwith- standing the numerous authorities referred to in the preceding paragraph, and the sweeping expressions of judicial opinion, it is certain that the doctrine is subject to limitation; it is settled that in some classes of suits a defendant having only an equitable in- terest cannot be protected by his position as a bona fide purchaser. Thus in an action for foreclosure brought by a prior legal mortgagee, holding, of course, the legal estate, against a subsequent equitable mortgagee, the fact that the latter acquired his equitable interest in good faith for a valuable consideration and without notice is no defense.^ It is also a well-established and even familiar rule that in the numerous cases between the holders of successive and equal equities, where the holder of a prior equitable interest is seeking to establish or enforce his right, the defense of bona fide purchase will not avail for the holder of a subsequent equity against whom the suit is brought.- § 742. Phillips v. Phillips — Formula of Lord Westbury. — Amidst this apparent conflict and real uncertainty, various judges had at- tempted to find a mode of reconcilement, and to formulate a rule which should furnish a universal criterion. It remained, however, for Lord Westbury to bring order out of the confusion, and by his remarkable grasp of principles and wonderful power of generaliza- tion to reduce the doctrine into a universal formula, so accurate and comprehensive that it has been taken by most subsequent text- writers as the basis of their discussions, and has been accepted by subsequent judges almost without exception.^ This formula groups the cases in which the protection of a bona fide purchaser is given to defendants into the three folloAving classes : 1. Where an application is made to the auxiliary jurisdiction of the court by the possessor of ^See post, §§768-773. and cases cited. 'See e. g., Larrowe v. Beam. 10 Ohio St. 498; Butler v. Douglas, 3 Fed. fil2; Basset v. Nosworthy, Cas. t. Finch, 102, 2 Lead. Cas. Eq. 1, 1 Scott 340. 408: Collyer v. Finch. .5 H. L. Cas. 90.5, per Lord Cranworth. 'Finch V. Shaw, 19 Beav. 500: affirmed sub nom. Colyer v. Finch. 5 H. L. ("as. 00.5. ^Phillips V. Phillips. 4 Be Gex, F. & J. 208. 215, 21(5, H. & B. 72, Ames Trusts 331, 1 Scott 333. 511, per Lord Westbury. See ante, §§414, 682. 'Phillips V. Phillips, 4 De Gex, F. 8: J. 208. 1 Scott 333, 511. H. & B. 72, Ames Trusts 331: Peabody v. Fenton, 3 Barb. Ch. 451, 464; Knoblock v. Mueller, 123 111. 5.54, 17 N. E. 696, H. & B. 80. § 745 EQUITY JURISrRUDENCE. 353 a legal title; as ag'ainst a purchaser for value without notice, a court of e(|uity gives no assistance io the legal title. The term ''auxiliary jurisdiction" is here used in a sense somewhat broader than that commonly given to it by text-writers. To this first rule there are, however, certain most important exceptions. It does not apply to suits in which the court exercises a legal jurisdiction concurrently with courts of laAv, nor to suits in which the court gi\es to a holder of the legal title some equitable remedy belonging to its exclusive general jurisdiction.- 2. Where the plaintiff, holding an equitahle estate or interest, is seeking to enforce it against a Tiurchaser of the legal title, including those cases where there are several successive purchasers or encumbrancers, all equitable, and tlie defendant Avho is later in time has obtained an outstanding ]egal estate, or some other legal advantage, often called the "tabula in naufragio."" 3. Where the plaintiff is seeking to enforce some "equity" as distinguished from an equitable estate, as the reforma- tion of a deed on account of mistake, or the setting it aside on the ground of fraud.* >; 744. The explanation which I have thus endeavored to give of the true theory of the doctrine concerning bona fide purchase seemed to be necessary to any accurate understanding of its ap- plications and effects. This original equitable theory has, however, been modified in some important features \>j the statutory system of registration which prevails in all the American states. Before proceeding to describe the application and eff'ects of the doctrine, it is proper to ascertain who the bona fide purchaser for valuable consideration is. v; 745. Second. What Constitutes a Bona Fide Purchase. — T'lider this head I shall state those essential elements which enter into the equitable conception and determine the peculiar position of a bona fide purchaser, so that he may come within the operation of the doctrine. The nature of the thing purchased, whether land, chattels, or securities, and of the estate acquired, whether absolute or (|ualified, legal or equitable, is not a part of this conception ; it belongs wholly to the eff'ects— the protection — produced by the purchase. The doctrine in its most general form is, that a purchaser in good faith for a valuable consideration and without notice of the prior adverse claims is protected against certain suits brought by the holders of such claims.^ The essential elements which constitute 'See post, SS 704. 76.^. ' (See post, §§ 7(>(i-774. 'See post, §8 775-778. ' Basset v. Nosworthy, 2 Lead. Cas. Eq., 4tli Am. ed. 32-42, 7.3-00, 1 Scott 340, 498; The Elmbank, 72 Fed. 010; Martin v. Bowen, 51 N. J. Eq. 452. 26 Atl. 823. 359 COXCKltXlXC BONA FIDH PURCHASE. § 74:7 a bona fide purchase are therefore three, — a valuable eonsideralion, the absence of notice, and the presence of good faith.- It will be })ractically the more convenient and advantageous to exaniine these three elements separately and in the order named, although in strict theory the presence of notice may perhaps be regarded as only an indication of the v^rant of good faith. If a person goes on and pur- chases after notice of another's rights, he may be considered as acting in bad faith, and this is undoubtedly the basis upon which the whole doctrine of notice and its effects was rested by the early decisions.'^ Practically, however, notice, especially as affected by the recording acts, is an independent element, and should be dis- cussed by itself. § 746. I. The Valuable Consideration. — The discussion of this subject involves two inquiries, which are entirely distinct, and which should not be confounded : 1. What is a valuable considera- tion ; and 2. Its payment. These two questions are to be examined, not at all in their general and abstract meaning, but wholly as they aff'ect the condition of a bona fide purchaser. The first has no re- lation to the general law of contracts and binding promises; the second, in like manner, deals with the act and time of payment only in connection with the doctrine of bona fide purchase. § 747. 1. What is Valuable Consideration. — What constitutes a. valuable consideration within the meaning of the doctrine which gives protection to a bona fide purchaser? No person who has ac- rpiired title as a mere volunteer, whether by gift, devise, inherit- ance, post-nuptial settlement on wife or child, or otherwise, can thereby be a bona tide purchaser.^ Valuable consideration means, and necessarily requires under every form and kind of purchase, something of actual value, capable, in estimation of the law, of pecuniary measurement. — parting with money or money's worth, or an actual change of the purchaser's legal position for the worse. - The amount of the purchase, if otherwise in good faith, is not gen- erally material." As examples of what clearly amount to valuable eonsideration are the following: A contemporaneous advance or = United ^States v. California & O. Land Co.. 148 U. 8. .31, 13 Sup. Ct. 458; Knoblock v. Mueller, 123 111. ryr>4, 17 N. E. 69(5, H. & B. 80. = See ante, § r>02. ^ Toole V. Toole, 107 Ga. 472, 33 S. E. G86; Ten Eyck v. Wliitbeek. 135 N. Y. 40. 31 N. E. •)!)4. 31 Am. St. Rep. 80i». "Brown v. Wcleli, IS 111. .343, 08 Am. Dec. 540; The Elmbank. 72 Fed. filO; Ten Eyck v. WliitI.eek. 135 X. Y. 40. 31 X. E. 094. 31 Am. St. Rep. 809. ■'Wood V. Chapin. 13 X. Y. 509. 07 Am. Dee. 02. A crossly small and in- adequate eoTisideration may show had faith, or i)ut on inquiry; sec ante, § 600; J)unn V, Barnum. 51 Fed. 355; Ten Eyek v. Wliitbeek, 135 X. Y. 40, 31 N. E. 994, 31 Am. St. Rep. 809. § 749 KQIITY JUKI^PRFDEXCE. 360 loan of money, or a sale, transfer, or exchange of property, made at the time of the purchase or execution of the instrument ;* the surrender or relinquishment of an existing legal right, or the as- sumption of a new legal obligation which is in its nature irrevoc- able.^ "Whether this species of valuable consideration embraces the discharge, or the extension of the time of payment, of an ante- cedent debt, is a question upon which the authorities are conflicting, and its examination is postponed to the succeeding paragraphs. In general, however, it is requisite that the money be paid or ad- vanced, the property transferred, the right surrendered, or the obligation assumed, at the time of the conveyance, and as a part of the transaction, in order that it may be the valuable considera- tion which can protect the purchaser. § 748. Antecedent Debts. — Whether an antecedent debt can ever be a valuable consideration has been denied by able courts; but this general subject has been further complicated by the various modes in which such a debt may be dealt with, — secured, dis- charged, postponed, and the like, — and the various questions thence arising which have caused the greatest conflict of judicial opinion. In very many, and perhaps a majority, of the states it is settled that the transferee of negotiable paper as security for an ante- cedent debt may be a bona fide holder by the law merchant-, but this rule cannot be a precedent in determining the meaning of valu- able consideration within the equitable doctrine of bona fide pur- chase.^ § 749. Security for or Satisfaction of an Antecedent Debt. — A convevcince of real or personal })roperty as security for an ante- cedent debt does not, upon jirinciple, render the transferee a bona fide purchaser, since the creditor parts with no value, surrenders no right, and places himself in no worse legal position than before. The rule has been settled, therefore, in very many of the states, that such a transfer is not made upon a valuable consideration, within the meaning of the doctrine of bona fide purchase.^ In some states, on the contrary, even the securing a pre-existing debt is ■• Bowen v. Prout, 52 111. 354 (exchange of lands); Aden v. City of Vallejo, 139 Cal. 165, 72 Pac 005 (reservation in deed). 5 Westbrook v. (jlleason, 79 N. Y. 23, 36. ^ 'I'he rule concerning the transfer of negotiable instruments has been thus seftled avowedly in the interests of commerce and mercantile business: these reasons do jiot apply to the purchase of land and chattels and non-negotiable securities. Jn some of the states, therefore, -where it has been applied to negotiable paper, it has been rejected with respect to other conveyances and transfers. »The Elmbank, 72 Fed. 610; Adams v. Vanderbeck, 148 Ind. 92, 45 X. E. 645, 47 N. E. 24, 62 Am. St. Rep. 497; Yong v, Guy, 87 N. Y. 402, 1 Ames Eq, .lur. 207. i 361 CONCERNING HONA FIDK PURCHASE. § 750 held to be a valuable consideration.- Whether the complete satis- faction or discharge or the definite forbearance of an antecedent debt, without the surrender or cancellation of any written security by the creditor, will be a valuable consideration is a question to which the courts of different states have given conflicting answers; but the affirmative seems to be supported by the numerical weight of authority.-' Some legal rules ought to be settled in accordance with the i-osults of experience and the dictates of policy, rather than by a compliance with the deductions of a strict logic. To hold that a conveyance as security for an antecedent debt is made with- out, but that one in satisfaction of such a debt is made with, a valu- able consideration, when the fact of satisfaction is not evidenced by any act of the creditor, but depends upon mere verbal testimony, ;is opening the door wide for the easy admission of fraud. It leaves the rights of third persons to depend upon the coloring given to a past transaction by the verbal testimony of witnesses, after the event has disclosed to the creditor the form and nature in which it is for his interest to picture the transaction. A rule which renders it so easy for an interested party to defeat the rights of others is clearly impolitic* It sometimes happens that rules which are the most logically correct are the ones which most readily admit the possibility of fraud and injustice. It is verj^ generally settled. in accordance with principle, that an assignment made by a debtor in trust for the benefit of his creditors is not a conveyance upon valuable consideration, and neither the assignee nor the creditors tliereby become bona fide purchasers.^ The questions concerning judgment creditors and purchasers at execution sales upon judg- jnents have already been examined in the preceding section.^ § 750. 2. Payment of the Consideration. — Not only must there be a valuable consideration in fact, but it must be paid before notice of the prior claim. Notice after the agreement for the pur- chase is made, but before any payment, will destroy the character - Chaffee v. Lumber Co., 43 Neb. 224, 61 N. W. G37, 47 Am. St. Rep. 753. "State Bank v. Frame, 112 Mo. 502, 20 8. W. 620. Contra, see Sleeper v. Davis. 04 K. H. 39, 6 Atl. 201, 10 Am. St. Rep. 377. Extension of time: See Randolpli v. Webb, 116 Ala. 135, 22 South. 550; Southerland v. Fremont, 107 N. C. 565, 12 S. E. 237. If the creditor actually surrenders up or cancels some written security, such act becomes a valuable consideration, and makes him a bona fide purchaser: Franklin Sav. l>ank v. Taylor. 53 Fed. 854, 4 C. C. A. 55, 9 U. S. App. 406. *Gest V. Packwood, 34 Fed. 368. 5 Clark V. Flint, 22 Pick. 231. 33 Am. Deo. 733: :\Iartin v. Bowen, 51 X. .1. Kq. 4.52, 26 Atl. 823; Brown V. Brabb, 67 JMicli, 17, 34 K. \V. 403, 11 Am. St. Rep. 549. 'See supra, SS 721-724. § T51 EQUITY JUliJSPRUDEXCE. 3C2" of bona fide purchaser.^ The rule is settled in England that the entire price or consideration must have been paid before any notice, and the same completeness of payment is required by some Amer- ican decisions.- Since the modes of transferring and dealing with real property in this country are so different from those which prevail in England, the same eciuitable principles which guided the English judges have led the courts in many of the states, under a change of circumstances, to adopt a necessary modification of this rule; otherwise great injustice might be wrought. These courts have held that where a part only of the price or consideration has been paid before notice, either the defendant should be en^ titled to the position and protection of a bona fide purchaser pro tanto; or that the plaintiff should be permitted to enforce his claim to the whole land only upon condition of his doing equity by re- funding to the defendant the amount already paid before receiving the notice;^ or even, when the plaintiff has been guiitj' of laches, or the defendant has perhaps made valuable improvements, that the land itself should remain free from any claim on the plaintiff's part, and his remedy should be confined to a recovery of the portion of purchase-money which was still unpaid when notice was given.* § 751. Payment must be Actual. — It is further settled that there must be actual [layrnent before any notice, or, what in law is tanta- mount to actual payment, a transfer of property or things in action, or an absolute change of the purchaser's legal position for the worse, or the assumption by him of some neAV, irrevocable legal obligation. It follows, therefore, that his own promise, contract, bond, covenant, bond and mortgage, or other non-negotiable se- curity for the price, will not render the party a bona fide purchaser, nor entitle him to protection ; for upon failure of the consideration he can be relieved from such obligations in equity even if not at law.^ Payment of actual cash, however, is not indispensable. The assumption of an irrevocable obligation, from which the purchaser could not be relieved even by a failure of the consideration arising •Wood V. Mann, 1 Sum. 50G, 578, Fed. Cas. Xos. 17,951, 17.952, 1 Scott 507j Hayden v. Charter Oak Driving Park, 63 Conn. 142, 27 Atl. 2.32; Trice v. Comstoek, 121 Fed. 020, Gl L. R. A. 176. - Tourville v. Naish, 3 P. Wnis. 307; Wood v. Mann, 1 Sum. 506, 578, Fed. Cas. Nos. 17,951, 17,952, 1 Scott 507; Dugan v. Vattier, 3 Pdackf. (Ind.) 24.-), 25 Am. Dee. 105. See, also, post, § 755. ^ Davis V. Ward, 109 Cal. 186, 41 Pac. 1010, 50 Am. St. Rep. 29. M<'rost V. Beekman, 1 Johns. Cli. 288, 1 Scott 531; Youst v. Martin, 3 Serg. & K. 423; Yarnell v. Brown, 170 111. 362, 48 N. E. 909, 62 Am. St, Rep. 380; Durst V. Daugherty, 81 Tex. 650, 17 S. W. 388. 'Jewett V. Palmer, 7 Johns. Ch. 65, 68, 11 Am. Dec. 401: Hayden v. Charter Oak Driving Park, 63 Conn. 142, 27 Atl. 232; Wyeth v. Renz-Bowles Co., 66 S. VV. 825 (Ky.) 3()3 COXCKKMNC; I'.OXA JIDK JTlii 11 ASK. § T53 from tlie title being' invalid, may he sufticieiit.- 'I'he absolute trans- fer of notes, bonds, or other securities made by a third person will have the same elVect. § 752. 11. Absence of Notice. — The nature of notice, its various forms, and its general effects have been considered in the preceding sections. The present inquiry only concerns its special effects upon a bona fide purchase, the time when it must be received in order that these effects may be produced, and the modifications and addi- tions introduced by the recording- acts. Since the doctrine of bona fide purchase requires the absence of notice, — a purchase for a valuable consideration and without notice, — the discussion of this negative element must chiefly consist of an affirmative statement of the consequences flowing from the presence of notice. § 753. 1. Effects of Notice.^ — The rule is universal and element- ai-y, that if a purchaser in any form receives notice of prior ad- verse rights in and to the same subject-matter, before he has com- pletely acquired or perfected his own interests under the purchase, his position as bona fide purchaser is thereby destroyed, even though he may have paid a valuable consideration ; on the other hand, notice g'iven after his interests have been completely acquired or perfected produces no injurious effect.^ Notice sufficient to prevent the purchase from being bona fide may inhere in the very form and kind of the conveyance itself. On this ground it is held by one group of authorities that a grantee taling or holding under a quitclaim deed cannot be a bona fide purchaser; but this conclusion is re- jected by other decisions.^ - Tliore are many forms of such obligation: 1. One of these occurs where Ihe jjurcliaser lias given his own negotiable notes for the whole or a part of the price. Some of the cases seem to require that the note so given to the vendor should have been actually negotiated by him so as to cut off the maker's defense of a failure of the consideration: Davis v. Ward, 100 Cal. 186, 41 Pac. 1010, 50 Am. St. Rep. 29: by others, it seems to be sufTicient that such notes are given by the purchaser to the vendor, so that they duii/ be negotiated and the defense cut ofT: Partridge v. Chapman, 81 111. 137; Citizens' Bank v. Shaw (N. Dak.), 84 N. W. 770. 2. Another form would be the undertaking by Ihe purchaser to pay a debt due from the vendor to a third person, in -ucli a manner that he was absolutely substituted as the debtor in the place of his vendor. See Warren v. Wilder, 114 N. Y. 21.5, 21 N. E. 1.59. 'See ante. §§200. 088. 740. - Probably a majority of the adjudicated cases still support the view that a quitclaim deed is ipso facto notice of all defects in the title, and that a grantee thereunder can not claim to be a bona fide purchaser. The reasons for this view are ably presented in American Mortgage Co. v. Hutchinson, 10 Oreg. .334, 24 Pac. .515. See, also, Parker v. Randolph , 5 S. Dak. 549, 59 X. \V. 772, 29 L. P. A. 33. On the other hand, in a number of jurisdictions it is hold that there is no distinction in respect to llio qualily of imparting iiolice, between a qnitcTiu'm deed and any oilier form of eonveyan"e: Moelle § T54 EQUITY JLlllSl'ULDEXCi:. oGl § 754, Second Purchaser without Notice from First Purchaser with Notice — Second Purchaser with Notice from First Purchaser without. — There are two special rules on the subject which have beeu settled since an early day ; one being a mere application of the general doctrine, and the other a necessary inference from it. The first is, that if a second purchaser for value and without notice jnirchases from a first purchaser who is charged with notice, he thereby becomes a bona fide purchaser, and is entitled to protection. This statement may be generalized. If The title to land, having passed through successive grantees, and sub.ject in the hands of each to prior outstanding equities, come.s to a purchaser for value and without notice, it is at once freed from these equities; he obtains a valid title, and, with a single exception, the full power of disposi- tion.' This exception is, that such a title cannot be conveyed, free from the prior equities, back to a former owner who w^as charged with notice. If A, holding a title affected with notice, conveys to B, a bona fide purchaser, and afterwards takes a reconveyance to himself, all the equities revive and attach to the land in his hands, since the doctrine requires not only valuable consideration and absence of notice, but also good fnitlir The second rule is, that if a second purchaser with notice acquires title from a first purchaser who was without notice, and bona fide, he succeeds to all the rights of his immediate grantor. In fact, when land once comes, freed from equities, into the hands of a bona fide purchaser, he obtains V. Sherwood, 14S U. S. 21, 13 Sup. Ct. 420: Wilhehu v. Wilken, 149 X. Y. 447, 44 X. E. 82, 52 Am. St. Rep. 743, 32 L. R. A. 370. By a third view, liie (■fleet of the quitchiim form of the deed is to put the grantee upon inquiry iiH-rcIy; the presumption of mala fides is not conclusive: United States v. California & O. Land Co., 49 Fed. 496, .50.5, 500, 7 U. S. App. 128, 1 C. C. A. 3.30, opinion of Hanford, D. J.: Schott v. Dosh, 49 Nebr. 187, 68 X. W. 340, .59 Am. St. Rep. ,531. A large number of decisions, w^hile adhering to tlie rule tiiat a quitclaim deed implies notice to the grantee, seek to free the rule from the odium of technicality that is sometimes attributed to it, by making the ■'quitclaim" character of the deed depend not upon the presence or absence of technical words, but on the nature of the transaction as disclosed by con- struction of the instrument as a whole. If, from all the terms of the instru- ment, it is evident that it purports to convey a "chance of title," or the "specu- lative right, title and interest" of the grantor, as distinguished from the land itself, it is a quitclaim: Threadgill v. Bickerstaflf, 87 Tex. 520, 29 S. W. 757. MVood V. ]Mann, 1 Sum. 506, 1 Scott 507: Pringle v. Dunn. 37 Wis. 449, 19 Am. Rep. 772, H. & B. 92; Odom v. Riddick. 104 X^. C. 515. 10 S. E. 609. 17 Am. St. Rep. 686, 7 L. R. A. 118: London v. Youmans, 31 S. C. 150, 9 S. E. 775, 17 Am. St. Rep. 17. For tlie same reason, a purchaser for value and without notice from a vendor wlio had himself acquired his title througli fraud becomes bona tide free from the effects of the fraud: Zoeller v. Riley. 100 X. V. 108, 2 X. E. 388. .53 Am. Rep. 157. 'Clark v. 3*IcXeal, 114 X. Y. 295, 21 X. E. 405, 11 Am. St. Rep. 638. 3'oo coxcERXixc; hoxa F1U1-: i'l itciiASii:. . § i5.j a complete jus disponendi, with the exception last above mentioned, and may transfer a perfect title t^ven to volunteers.'' § 755. 2. Time of Giving Notice. — We have seen that if notice is not given until after the purchaser has fully paid the consider- ation, received a conveyance, and completed his title, he is not in the least affected by it. If the notice is given before an\' or all of these steps have been taken, its consequences may be different, and are to be considered. The general rule is settled in England, that a bona hde purchase recjuires both the payment of all the price and the execution and delivery of the conversance before tlie receipt of notice by the purchaser. In other vv'ords, if the party has received the conveyance before notice and paid the price after, or has paid the price before and received the conveyance after, in either instance the bona fides of the purchase is destroyed.^ Tlie American decisions are all agreed that a notice received before any of the purchase price has been paid, as weU after the deed of conveyance has been delivered as before, will destroy the bona fides of the purchase, and many of the decisions, folloAving the English rule, attribute the same effect to a notice after a payment of part, but before the whole is paid.- Such a payment is, by some authorities, a protection pro tanto.^ Finally, the case of notice received after payments made, but before the deed of con- veyance delivered, has given rise to a direct conflict of judicial opinion. One group of decisions adopts and lays down the English rule, that the purchase, under the circumstances, is not bona fide.* ■■■Harrison v. Forth, Prec. Ch. 51, 1 8eott 500; Pringle v. Dunn, 37 Wis. 449, 19 Am. Kep. 772, H. & B. 92; Peterson v. McCaiiley (Tex. Civ. App.), 25 8. W. 82(>; English v. Lindley, 194 111. 181, 62 N. E. 522. M\igg V. Wigg, 1 Atk. 382, 384; Sliarpe v. Foy, L. R. 4 Ch. 35. 37. The true meaning of this rule should not be misapprehended. If A purchases in the llrst instance a legal estate, the rule, of course, applies to him. If he' pur- ciiases or acquires in the first instance an equitable estate, the rule also applies, so far a.t that purchase is concerned. For example, if A receives a first mort- gage, which conveys the legal estate, and B takes a second moi-tgage of the same form purporting to convey the land, but wliich is, nevertheless, only an equitable conveyance, the rule requires that B should both have advanced the monej^ and ol)lained the instrument before receiving notice, in order to be a bona fide ])urchaser. This rule, however, does not prevent a person who has thus acquired an equitable estate by conveyance in good faith, and w^ho afterwards receives iKidce of a prior equity, from oblainiiig a conveyance of the outstanding legal cslale and tlius ])roteoting liinisclf from such equity. This latter power is lecognizcd hy an overwhelming array of English authority, and in fact forms one of the most frequent occasions for applying the doctrine of bona fide pur- chase. -• Frost v. Beckman. 1 Johns. Ch. 288. 1 Scott 531 : Bablwin v. Sager, 70 111. 503: Beck v. Chrich. 13 Pn. St. 033. (539. 53 Am. Dec. .507. See ante, §750. ^ See ante, S 750. *Doswell V. J5uclianan, 3 Leigh 305, 23 Am. Dec. 280. § 759 ■ EQUITY JUKISPRUDEKCE. 366 Another line of cases holds in the most positive and general man- ner that where the purchaser hss paid the consideration without notice of any prior claim, and after receiving notice he obtains a conveyance of the legal estate, he becomes to all intents a bona fide purchaser, and is entitled to all the protection belonging to that position. And this result seems to be applied without limita- tion to the acquisition of every kind of equitable estate, niterest, or right."' § 757. 3. Recording- in Connection with Notice. — § 758. The Interest Under a Prior Unrecorded Conveyance. — Although the statutes pronoimee unrecorded deeds and mortgages to be void as against subsequent purchasers who have complied with their provisions, yet in the practical operation of this leg- islation the right created by a j^rior unrecorded instrument is gen- erally regarded as tantamount to an equitable interest, which may therefore be cut off by a subsequent purchaser or encum- brancer who is in all respects bona fide, and who has also obtained the first record.^ The total effect of the system is thus twofold ; it both enlarges the scope of the doctrine concerning bona fide purchase, by extending it to all those interests, legal or equitable, which are required or permitted to be recorded,-' and it adds to the elements constituting a bona fide purchase the further requisite of a registration. § 759. Requisites to the Protection from the First Record by a Subsequent Purchaser. — It follov/s that, in order to obtain the benefit of the first recording, the subsequent purchase or encum- brance must be for a valuable consideration within the meaning of the general doctrine. Although the subsequent purchaser or en- cumbrancer had no notice of the unrecorded instrument, still, if he had not paid a valuable consideration, he would not gain ■■'Carroll v. Joliiison, 2 Joiios Eq. 120: (liblcr v. Triniblp. 14 Ohio :32r,. In Carroll v. .Johnson, 2 Jones Eq. 120, the question was presented very sharply. Plaintiff held under a prior vendee, x\; defendant was a subsequent vendee, who had paid part of the price before notice of A's claim ; after receiving notice he obtained a conveyance from the original vendor, and was held to be a bona tide purchaser and protected. Certainly there is nothing in the settled principles of the doctrine concerning bona fide purchase which can sustain such a con- clusion. ^ (See supra, SS 6o~i-C>(;4. *Mullins V. Butte Hnrdwarc Co.. 2.") .Mont. 52,5. fi.5 Par. 1004. 87 Am. St. Hep. 430. - This should not be taken to imply that the jurifuliction of equity has been enlarged by the recording acts; by virtue of them the doctrine has become en- forceable, and is constanWy enforced, by courts of law. Sec ante, § 680, and note. 367 CONCERNING BONA FIDE PIKCHASE. § '](>^' any superior title or lien by his earlier registration.^ Since tlu- subsequent purchaser or encumbrancer must be bona fide, in order to claim the benefits of the first registration, it also follows that if such subsequent purchaser or encumbrancer was, in taking his conveyance, mortgage, or other instrument required or permitted to be recorded, chargeable with notice of a prior unrecorded con- veyance or encumbrance, within the operation of the r.ettled rules concerning the nature of notice and the time and mode of its reception, then he is not a bona fide purchaser, and does not obtain the statutory superiority of title or precedence of lien by his ear- liest registration. This construction was put upon the English .statutes at an early day, and has been adopted in nearly all the American states." These exceptional states are Ohio and North Carolina. § 760. Purchaser in Good Faith with Apparent Record Title from a Grantor Charg-ed with Notice of a Prior Unrecorded Convey- ance. — This rule is of very easy application under all ordinary circumstances betAveen two consecutive deeds or mortgages whore the second is recorded before the first. Circumstances may arise which present questions of great intricacj^ and difficulty, and oc- casion perhaps a conflict of judicial opinion. A grantee or mort- gagee, being a purchaser in good faith, and holding a record title which appears perfect, maj^ really have no title because a grantor or a mortgagor in the chain of title had knowledge, when he took the conveyance to himself, of a prior unrecorded deed or mort- ^ Burden of proof as to honrt fide jmrchase : Many casps hold that in a contest between the hohler of the prior unrecorded conveyance and the subse- quent grantee or mortpaijee wlTo has obtained a record, the burdeji of proof is on the latter of showino; afrnniatively that he paid a valuable consideration and had no notice; the record itself is not enough: Bell v. Pleasant, 145 Cal. 410. 78 Pac. 0.17. 104 Am. St. Rep. 61: Seymour v. IMcKinstry, 106 N. Y. 238, 12 ^. E. 348, 14 N. E. 04. Many other cases hold contra, that the burden is ;{7. 1 Scott 345; Schneider v. Sellers (Tex. Civ. App.), 81 S. W. 126. ' Basset v. Nosworthy, Cas. t. Finch, 102, 2 Lead. Cas. Eq. 1, 1 Scott 340, 408, per Lord Nottingham. -"vVallwyn v. Lee, f) Ves. 24 (a life tenant mortgaged property in fee, fraudu- lently concealing the fact of his mere life estate and pretending to be owner in fee, and delivered the title deeds to the mortgagee. On his death the re- mainderman sued for a discovery and to have the deeds surrendered. Lora Eidon sustained the defense of bona fide purchase). Since the passage of the -Judicature Act in England, these rules have been modified. The Chancery division of the High Court of .Justice now have jurisdiction, on the application of the legal owner of title deeds, to order them to be delivered up by a pur- chaser for value without notice: Ind, CooiJe & Co. v. Emmerson. L. R. 12 App. Cas. 300. oil COXCKlIXJNCi 150NA FIDE PrKt' 1 1 ASK. § 7B() mentioned, yet the lientTuI doctrine upon which they can alone be sustained and harmonized with the current of authority is that first explained by Lord Westbury, and already stated.^ Where the suit is one belonging to the concurrent jurisdiction of equity and law, and is brought by the holder of a legal title to obtain a relief purely legal, the defense of bona fide purchase will not prevail, because it M'ould not prevail at law, and to allow it in equity W'Ould simply be an abdication of its rightful jurisdiction by a court of equity, and a putting the plaintiff to the unneces- sary expense and delay of a second action at law. Such suits es- pecially are those brought to establish and recover dower, and those brought to establish tithes in England.- . . . § 766, II. Suits by the Holder of an Equitable Estate or Inter- est against the Purchaser of the Legal Estate. — This application of the doctrine includes not only purchasers who receive a convey- ance of the legal estate at the time and as a part of their original and single purchase, but also those who, having originally purchased and acquired merely an equitable estate, afterwards obtain a con- veyance of the outstanding legal title from the one in whom it was vested.^ . . . The common occasions for a resort to the doctrine in England, where it is little affected by statutes of registration, are the cases of a prior equitable mortgage, and a subsequent sale and conveyance of the land by the mortgagor, he concealing the fact of such existing mortgage; of several consecutive mortgages of the same land, the later ones being taken in ignorance of the earlier; successive conveyances of his equitable estate by the same cestui que trust, the later purchaser being ignorant of the earlier transfer; and purchasers from a trustee in violation of his trust. In the United States the recording system has greatly modified the ])ractical operation of the doctrine, since the defendant must gener- ally show, in order to obtain protection, that he has recorded the instrument by which his title was acquired. With this additional feature, the instances most frequently coming before the American, courts of equity are cases of a prior unrecorded mortgage and a subsequent recorded conveyance, a prior unrecorded and a subs^'- ((uent recorded mortgage, a prior contract of sale and a subsequent recorded conveyance or mortgage, a prior vendor's lien or other equitable lien and a subsequent recorded conveyance or mort- gage, and a conveyance by a trustee of land subject to a prior trust. * See supra, § 742. '\\'illiams v. Lambe, 3 Brown Ch. 263, per Lord Thurlow (dower): Collins V. Arf'JKT. 1 Russ. & M. 284, per Sir John Leach (tithes), as explained by Lord Westbury in Phillips v. Phillips. 4 De Gex, F. & J. 208, 217. United States v. Detroit Timber & L. Co. (C. C. A.), 131 Fed. 668, § 768 EQUITY JLIIJ.SI'KUDEXCE. 373 the trust being more often eonstrnetive or resulting than expiess. The ease of a prior unrecorded deed purporting to convey the legal estate, and a subsequent recorded deed depending wholly upon the recording acts, does not beh)ng to the equitable jurisdiction. - § 767. Legal Estate Acquired by the Original Purchase. — In the first place, it is the very central portion of the doctrine, to which all others have been additions, that where the defendant acquired the legal estate at the time and as a part of his original purchase, the fact of his purchase having been bona fide for value and with- (uit notice is a perfect defense in equity to any suit brought by the holder of a prior equitable estate, lien, encumbrance, or other in- terest, seeking either to establish and enforce liis equitable estate, iien, or interest, or to obtain any other relief with respect thereto which can be given by a court of equity.^ A mortgagee of land may he a bona fide purchaser within the meaning of the general doctrine. In some states every mortgagee, subsequent as well as prior, ac- (juires the legal estate as against the mortgagor. In other states, although mortgages create only an equitable lien, they are expressly (-mbraced within the recording acts.- The doctrine is also extended, in many of the states at least, to assignments of mortgages, the assignment being regarded as a "conveyance," and the assignee as a "purchaser." It should be observed that the eft'eet of a bona fide purchase and a previous registration is applied not only be- tween successive assignees of the mortgage from the same assignor, but also between such an assignee and a third person Avho has ob- tained some title, estate, or interest in or lien upon the mortgaged premises." § 768. Purchaser First of an Equitable Estate Subsequently Ac- quires the Legal Estate — Tabula in Naufragio. — The protection is - .Sec ante, § 758. ^See Pilcher v. RaAvlins, L. E. 7 Ch. 259, 2G8, 2G9, per James, L. J.; Taylor V. London, etc., Bkg. Co. (1901), 2 Ch. 231; Patty v. Middleton, 82 Tex. 58G, 17 S. \\ . 909 (an instructive ease). In this countiy it must be remembered that the defense is only made available by the defendant's having first put his title deed upon record. Illustrations; Bona fide purchaser protected against constructive or resulting trust: Warnock v. Harlow, 96 Cal. 298, 31 Pac. 166, 31 Am. at. Rep. 209. Against equitable mortgage lien: Lynch v. Murphy, Kil U. S. 247, 16 Sup. Ct. 523. Against grantor's lien: see post, § 1253. Against express trust: Learned v. Tritch, 6 Colo. 432; see post, § 1048. Against the commiinity property interest of a married woman: Patty v. Middleton, 82 Tex. 586, 17 tS. VV. 909. Against an unrecorded defeasance: Frink v. Adams. 36 N. J. Eq. 485; see post, § 1196. Against an unrecorded mortgage: Saffokl v. Wade's Ex'r, 51 Ala. 21(1. "Barney v. McCarty, 15 Iowa 510, S3 Am. Dec. 427; Bigley v. Jones, 114 Pa. St. 517, 7 At). 54. ^ W estbrook v. (Tleasnn. 79 X. Y. 23. 30. 31 : Economy Sa\t Bank v. Gordon, 90 Md. 480, 45 Atl. 17R, 48 L. R. A. 03, H. &. B. 19. See ante, §§ 733, 734. 373 coNCEHXixt; hona fide puuchase. § 7T1 not eonfined to a dcrciuUuit who obtained the legal iillc contempora- neously with his original purchase. It includes those eases wher.-. of several successive purchasers holding e(|uitable estates, one of them later in time has obtained an outstanding legal estate. By far the most frequent instance in England is that of three or more successive mortgagees by conveyance, A, B, and C, where the first only would obtain the legal estate and the others an equitable one. If C, at the time of loaning his money and taking his mortgage, had no notice of B's prior encumbrance, — that is, was a bona fide purchaser of the equitable estate, — on afterwards learning of B's claim, he may buy in or procure a transfer of A's mortgage to him- self, and may thus put himself in a position of perfect defense against the enforcement of B's lien; he thus acquires, in fact, not only a defense to any suit brought by B, but the absolute precedence over B in the satisfaction of the liens out of the mortgaged prem- ises.^ This particular application of the doctrine to successive mort- gages'is known in the English equity as the rule concerning "tack- ing.'' — a rule Avhich has been universally rejected by the courts of the various states. § 770. The Purchaser Acquires the Legal Estate from a Trustee. — The exception already mentioned is no less firmly settled. It has already been seen that one who obtains the legal title at the time of and as a part of his original purpose may acquire his estate from a trustee in derogation of the trust ; but if he purchases in good faith and for value and without notice, he will be protected against the claims of the beneficiary, and hold the property free from the trust; and this effect extends in equity not only to con- veyances of land, but to transfers of all kinds of personal prop- erty.^ . . . When we pass to the other condition, of the purchaser of an equitable estate seeking to obtain protection by getting in the legal title, . . . the purchaser would not be protected; taking the legal estate from the trustee with notice of the existing trust, he would himself become a trustee. In this conclusion the decisions are unanimous, holding that the purchaser without notice and for value of an equitable estate cannot after notice protect himself and defeat the claims of the prior beneficial owner by getting a conveyance of the legal title from the trustee." § 771. The Rule as Applied in the United States. — Although the Mirace v. Duchess of 5larllioroiifrli, 2 P. Wins. 401, 1 Scott. 330. 350; Young v. Young, L. R. 3 Eq. 801: Bates v. Johnson. .Tohns. 304, .\nies Trusts 292. 'Thorndike v. Hunt, 3 De Gex & J. 563; Smith v. Willard, 174 111. 538, 51 N. K. 835, 06 Am. St. Rep. 313: Coleman v. Dunton (Mo.). 5S Atl. 430. '"Saunders v. Dchew. 2 Vern. 270, Ames Trusts 280: Carter v. Carter, 3 Kay & J. 617. 642, 1 Scott 345; Taylor v. London and County Banking Co. (1001) 2 Ch. 231. § 7T6 EQUITY JUlIlSPHrDKNCE. 374 modes of dealing with real property in the United States are en- tirely unlike those prevailing in England, and although the forms and species of the estates created and the eircnmstanees of the transactions coming before the American judges are very dilferent from those passed upon by the English chancellor, yet the courts of this country have recognized and adopted the foregoing doc- trines, and have applied them when necessary to analogous cases, and under analogous conditions of fact. Indeed, the defense of bona tide purchase has sometimes been pushed to an extent, as it seems, not warranted by the established doctrines. It has been made to embrace not only those who have purchased equitable estates by means of conveyances purporting to transfer the v.hole title, but even to those Avho have intentionally acquired a mere equitable interest or lien by executory contract or otherwise, knowing' that the legal estate was held by another, and who, upon afterwards discovering a prior and conflicting equity in favor of a third person, have taken a conversance of that legal estate. §774. Other Instances — Purchaser at Execution Sale' — Assignee of Thing in Action.- — §775. III. Suits by the Holder of an "Equity."— In all the instances of the preceding subdivision, the plaintitf has held some equitable estate or interest in or lien upon the property, which he has sought to establish or enforce against the very subject-mat- ter, either by perfecting his title and ownership, or by subjecting it to his encunibrance. The defense of bona fide purchase is not confined to such plaintiffs; it avails also against parties who claim to have some "equity" as distinguished from an equitable estate or interest, — parties, that is, who simply claim and are seeking to obtain some peculiar equitable remedy, such as reformation or cancellation, and the like. In this respect the defen.se is a protec- tion alike to defendants who have a legal estate, and those who have purchased an equitable interest.^ § 776. Suits for Relief against Accident or Mistake. — Thus, as against a subsequent bona fide purchaser for value, a court of equity will not relieve a prior party, on the ground of accident or mistake, by granting a remedy otherwise appropriate, such as setting aside a conveyance which had been executed by the plaintiff under a mistake or ignorance of his rights, or correcting an instrument ex- ecuted under a mistake of fact.^ ' See ante, § 724. = See ante, §§701. 712. 713. 715. 'Phillips V. Phillips, 4 De C\ex, F. & J. 20S. 21 S. H. & R. 72. Ames Trusts 3.31. 1 Scott .3.33, 3.51, per Lord Westbury. >Brll V. CiiiKlall, Amb. 102, 2 Scott 040: Snyder v. (Jrandstaff. OG Va. 473, 375 coxcERNixn bona fide itrchase. § 780 § 777. Suits for Relief against Fraud upon Creditors or between Parties. — The same is true with respect to the remedy of cancella- tion in suits to set aside conveyances or sales on account of fraud, either as against the creditors of the grantor or against the grantor himself. In the first case, where a conveyance has been made with intent to defraud creditors of the grantor, so that it would he voidable as against the grantee, but this grantee has in turn conveyed to a bona fide purchaser for value, the remedial rights of the creditors to have the original and fraudulent transfer set aside are then cut oft', and the purchaser has a complete defense against their claims.^ In the second case of fraud between the parties, where a conveyance has been obtained by the grantee's fraud, so that it w^ould be set aside at the suit of the defrauded grantor, but the fraudulent grantee has in turn conveyed to a bona fide purchaser for value and without notice, the latter will take and hold the property free from all these equities, protected against the equitable remedies of the original defrauded owner.- §779. Fourth. Affirmative Relief to a Bona Fide Purchaser. — The peculiar theory upon which equity acts toward a bona fide purchaser seems of necessity to imply that he should be a defend- ant. There are a few special circumstances, however, in which the theory, consistently followed out. requires that he should be aided by affirmative relief. When these circumstances are carefully ex- amined, it will be found that the fraud, or what equity regards as fraud, of the party holding the prior title or interest, and against whom the affirmative relief is granted, is usually, if not always, the ground upon Avhich the court interpo.ses on behalf of the subsequent bona fide purchaser. The following are the important instances of such relief. §780. Same. Illustrations. — When a person, A, having a prior title to property, and, knowing of such title, actively encourasres another person. B, to buy the same property, concealing or not dis- closing his own interest, but leading B to suppose that he is obtain- ing a valid title; or when, under the same circum.stances, A being informed of B's intention, and being brought in contact with and made cognizant of the transaction, he simply keeps silence and per- mits B to buy. — in either case, B. being a bona fide purchaser for value and without notice, can compel a conveyance or release 70 Am. St. Rep. 80,3, 31 S. E. 047; Knoblock v. Mueller. 123 Til. .5.54. 17 X. E. finfi. H. & B. 80. 'Wood V. Mann. 1 Sum. 500. 1 Seott .507: Rowley v. Biselow. 12 Pirk. 307. 23 Am. Dec. e07:.Zoel!er v. Riley. 100 N. Y. 108, 2 X. E. 388. .53 Am. Rep. 157. - Fish V. Benson. 71 Tal. 429. 12 Pae. 4.54; Indiana, etc., R. R. Co. v. Bird, IIC Jnd. 217. 18. 18 X. E. 837, 9 Am. St. Rep. 842. § 783 KQUJTY JUlM.sritUDJiXCE. 3TG by A, of whatever estate, title, or interest the latter has. This re- lief will be granted, even though A was an infant or a married wom- an, since it does not depend upon a capacity to contract, but upon unrighteous conduct.^ § 781. Same. Illustration. — The second important class of cases in which relief may be given to the bona tide purchaser is that of encumbrancers who have misled the purchaser by their words or acts. If a prior encumbrancer, upon being inquired of by one in- tetiding to purchase the property, deny the existence of his en- cumbrance, a court of e(iuity will certainly grant affirmative relief ti) the bona tide purchaser who has thus been misled, either by post- poning or by completely setting aside the encumbrance, as the circumstances may I'cquire.^ ]Mere silence of an encumbrancer does not render him liable, where he has no connection with the trans- action in which the purchaser is engaged, is not brought into any relations with the parties, and is not placed under any ecpiitable obligation to make disclosure. § 782. Same. Illustrations. — In the tAvo foregoing classes of cases tile one who makes himself subject to an equity in favor of tlie bona fide purchaser has knowledge, or at least notice, of the title or encumbrance with respect to which he incurs liability, or against which the purchaser obtains relief; but the doctrine has been carried one step fni'ther. Where a person is actually ignorant of his own right in certain property, but under such circumstances that he miiiht have had notice of it, or ought with reasonable care to have known of it, and he makes a representation untrue in fact to one intending to deal concerning the property, and this party, )clying upon the statement, becomes a bona fide purchaser, equity will relieve such purchaser as against the one making the untrue representation, although no liability may be incurred at law.^ The justice of this rule is plain, for equity often proceeds upon higher motives of morality than those which sometimes underlie legal rules. An innocent purchaser should not suffer loss from relying upon the untrue statements of another, although not made with an intent to mislead or deceive: in adjusting the loss between the two who are botli innocent of an intentional wrong, e4.3, C") Am. Dec. 314. See ante, §§ 746-7.')l. ^ Upton V. Belts. 50 Nebr. 724, 82 N. W. 10; Rorer Iron Co. v. Trout. 83 Va. 307, 419, 2 S. E. 713. 5 Am. St. Rep. 285. *See ante, §§ 752-75(5. McDonald v. Belding. 145 U. S. 402, 12 Sup. CI. 802; Weber v. Rotiichild. 15 Oreg. 385, 15 Pac. 650, 3 Am. St. Rep. 162 (good faith rdiould be averred). ^ See ante, SS 757-761. 379 CONCKKNiXG :mki;gi:i{. § "iSS § 786. Orig-in and Nature of the Doctrine. — The applications of the equitable doctrine concerning' merger, althoujjh resting upon the same general principle, are various in form, and some of them are of frequent occurence in this country. The single principle from which the doctrine, in all its modes and forms of application, directly results is the fruitful maxim, that equity, in viewing the transactions of men, and in determining the rights and liabilities arising- therefrom, looks at the 7-eal intent of the parties as con- Ktituting the essential substance, and not at the mere external form. In this method of viewing^ the affairs of mankind, equity often es- tablishes different rules, creating different rights and duties from t/lose which, under the same circumstances, prevail at law.^ The equitable doctrine of merger is a striking illustration of this most righteous principle ; and the whole discussion in fact consists in ascertaining- when and how a merger, which would have been in- evitable at law, will be prevented or not permitted in equity. The .subject will be treated of under the two following divisions: 1. Merger of estates in the same land; 2. Merger of charges — liens and encumbrances — on the same land. § 787. First. Merger of Estates. — I. The Legal Doctrine. — The rule of the common law is well established, and of almost uni- versal application, that where a greater and a less legal estate, held in the same right, meet in the same person, without any interme- diate estate, a merger necessarily takes place. The lesser estate ceases to exist, being merged in the greater, which alone remains; as where a tenant for years acquires the fee, the term is merged. For the purposes of a merger, by the common law, every estate of freehold is greater than any term of years. Both estates, however, must be held in the same right, in order that this result may fol- loAv.^ . . . The general doctrine is not confined to the union of two legal estates. Wherever, in like manner, a legal and an equal and co-extensive equitable estate, or a legal and a less equitable estate, meet in the same person, in either instance the equitable estate is merged at laAv, for the law regards the legal estate as the superior.- . . § 788. II. The Equitable Doctrine. — Where the legal estate — for example, the fee — and an equal co-extensive equitable estate unite in the same person, the merger takes place in equity, in the absence of acts showing an intention to prevent it, as certainly and * See ante, vol. 1, §§Tr78-384. "Equity looks to the intent, ratlier than to the form." ^Boykin v. Ancrum, 28 S. C. 48G, S. E. 305, 13 Am. St. Rep. 698; Forth- man v. Deters, 99 Am. St. Rep. 145, 200 111. 159, 69 N. E. 97: 2 Black. Com. 157. ^'Selby T. Alston, 3 Ves. 339; Welsh v. riiillips, 54 Ala. 309, 25 Am. Rep. 679. § 789 EQUITY .TrRISPRUDENCE. 380 as directly as at the law. Under these circumstanres, merger is prima facie the equitable as well as legal rule.^ . . . Where the owner of a legal estate — as, for example, the fee — acquires by pnr- chase or in any other manner a lesser ecpiitable estate not co-ex- tensive and commensurate with his legal estate, or a lesser legal estate, a distinction exists; the merger, although taking place at law, does not necessarily take place in equity; indeed, it may be said that the leaning of equity is then against any merger, and that, prima facie, it does not result. The settled rule of ecpiity is, that the intention of the one acquiring the two interests then controls. If this intention has been expressed by taking the transfer to a trustee, or by language inserted in the instrument of transfer, it will, of course, be followed. If the intention has not been thus ex- pressed, it will be sought for and ascertained in all the circum- stances of the transaction. If it appears from all these circum- stances to be for the benefit of the party acquiring both interests that a merger shall not take place, but that the equitable or lesser estate shall be kept alive, then his intention that such a result should follow will be presumed, and equity will carry it into execution by pieventing a merger, and by treating the equitable or lesser inter- est as subsisting, and by admitting all the consequences, for the protection of the party with respect to other matters, which ueces« sarily result from the fact of the equitable estate being left in existence.- The same rule may be stated in a negative form. If from all the circumstances a merger would be disadvantageous to the party, then his intention that it should not result will be pre- sumed and maintained. . . . 1$ 789. Second. Merger of Charges. — Whenever the owner of the legal estate in land becomes also the holder of any charge di- i-ectly resting upon it, the latter merges at law and disappears in the same manner as a lesser estate merges. The equitable doctrine preventing the merger under these circumstances is even stronger and more readily applied than m the case of two estates. The "charges" referred to include mortgages, and other liens and en- cumbrances, and sometimes easements, servitudes, and similar in- terests which are not rights of property or estates. There are two principal conditions of fact to be considered : 1. Where the legal owner of the propertj'' becomes, 'by bequest, devolution, or transfer, h(^!der of the charge; 2. Where the owner of the property volun- tarily pays off the charge. ' firydgps V. JJrydges, 3 Ves. 125a; James v. Morey, 2 Cow. 24G, 14 Am. Dee. 475. ■■^ Sheehan v. Hamilton, 2 Kcyes 304, 4 Abb. App. 211; W'ettlaufer v. Ames (Mieh.), 94 N. W. 050; Hudson, etc., Co. v. Gleneoe, etc., Co., 140 Mo. 103, 41 S. W. 450, 02 Am. St. Rep. 722. oSl CONCKUMNG :\ii:r.GEr!. § I'Jl j 790. I. The Owner of the Property Becomes Entitled to the Charge, — Wheu the OAvner of the fee becomes absolutely entitled in his own right to a charge or encumbrance upon the same land. Avith no intervening interest or lien, the charge will, at law, merge in the ownership and cease to exist. Under like circumstances a merger will take place in equity, where no intention to prevent it has been expressed, and none is implied from the circumstances and the interests of the party; and a presumption in such a case a)-ises in favor of the merger.^ Generally, the same result follows whether a mortgagee assigns a mortgage to the mortgagor, or the mortgagor conveys the land to the mortgagee.- The merger of a charge or encumbrance under these circumstances is, however, ni most instances only a presumption, w^hich can generally be over- come, and which sometimes does not even arise.^ ^ 791. Same. Intention Prevents a Merger. — The equitable doc- trine concerning the merger, where the owner of the fee becomes entitled to the charge or encumbrance, may be stated as follows, substantially in the language of most eminent judges. Sir William Grant says: "The question is upon the intention, actual or pre- sumed, of the person in whom the interests are united." Sir George Jessel says: "In. a court of equity it has always been held that the mere fact of a charge having been paid off does not decide the question whether it is extinguished. If a charge is paid off by a tenant for life, without any expression of his intention, it is well established that he retains the benefit of it against the inheritance. Although he has not declared his intention of keeping it alive, it is presumed that his intention was to keep it alive, because it is manifestly for his benefit. On the other hand, when the owner of an estate in fee pays off or becomes entitled to a charge, the pre- sumption is the other way. but he can, by expressly declaring his intention, either keep it alive or destroy it. If there is no reason for keeping it alive, then equity will, in the absence of any declara- tion of his intention, destroy it; hut if tlipre is any reason for hecpivg it alive, such as the existence of another encumbrance, equity vUl not destroy it." In short, where the legal ownership of th'e land and the absolute ownership of the encumbrance become vested in the same person, the intention governs the merger in equity.^ If this intention has been expressed, it controls; in the absence of such an expression, the intention will be presumed from what ap- 'Donk V. Alexander, 117 111. .330. 7 N. E. 672. -Ajjnew V. R. R. Co., 24 8. C. IS. ,58 Am. Rep. 237. See, also, Howard v. Clark, 71 Vt. 424, 76 Am. St. Rep. 782. ^ Adams v. Angell, L. R. 5 Ch. Div. 034. 041, 04.5. »Aj?new V. R. R. Co., 24 S. C. 18. .IS Am. Rep. 237. § 792 EQUITY Jur.ispiaDENCE. 382 pear to be the best interests of the party as shown by all the cir- cumstances; if his interests require the encumbrance to be kept alive, his intention to do so will be inferred and followed; if, on the contrar}^, his best interests are not opposed to a merger, then a merger will take place according to his supposed intention.- This is the general rule, subject, however, to one important exception, to be mentioned in a subsequent paragraph.^ If the person expressly declares his intention that the charge shall be kept on foot, no ques- tion can generally arise, for he can, Avith the single exception men- tioned, always prevent a merger in this manner.* The presumption of an intent to preserve the encumbrance alive may, on the other hand, be inferred from the circumstances of the case, from the position of the owner's property, and especially from the fact that a merger would let in other charges or encum.brances." § 792. Time and Mode of the Intention. — While the intention controls, it must be understood as the intention existing at the time the two interests came together. If there was then no intention to keep the encumbrance alive, a merger cannot be prevented by an intention afterwards formed and expressed, or from a subse- audulent intent necessary in an e^1oppel affecting the legal titiS» to land. 'Morley v. Morley, 5 De Gex, 'SI. & G. GIO: Ohnier v. Boyer, 89 Ala. 2Tj. s- South. 6()3. ^^ Davis V. Wetherell. ^?, Allen 0.3, 90 Am. Dec. 177. ^Averill v. Taylor. 8 X. Y. 44. * See ante, § 79,5, and cases cited in note. 387 COXCEKXIXG KC^ITAJMJ-: KSTOl'PEL. § 801 S§ 808-812. Requisites furtlier illustrated. S 808. 'Ihe conduct of the party estopped. § SO!). Knowledge of the truth by the party estopped. § 810. Ignorance of the truth by the other party. § 811. Intention by the party who is estopped. § 8l2. The conduct must be relieil upon, and be an inducement for the other party to act. § 813. Operation and extent of the estoppel. § 814. As applied to married women. S 815. As applied to infants. 5§ 816-821. luiportant applications in equitj'. § 816. Acquiescence. § 817. Same: as preventing remedies. § 818. Same: as an estoppel to rights of property and contract, § 819. As applied to corporations and stockholders. § 820. Other instances of acquiescence. S 821. Owner estopped from asserting Iiis legal title to land. ;$ 801. Nature of the Rights Created by Estoppel. — It has been said by some writers and jnd,o:es that the doctrine of eqnitable es- toppel is a branch merely of the law of evidence. This is, however, an entirely mistaken and by no means harmless view. Nothing can tend to produce more confusion of mind in the correct understand- inij of legal rules, and in their proper application to the affairs of life, than the exhibition of them under wrong divisions of the law, and the consequent representation of them as connected with rela- tions which do not exist. It is undoubtedly true that authors of Avorks on evidence intended for professional use do often treat of matters which form no legitimate part of that subject. This may be convenient, but it is not an accurate and scientific method, and should never be pursued when the purpose is to define and de- scribe the nature of legal doctrines and of the rights and cluties which floAv therefrom. Eules which determine and regulate pri- m.ary rights of property and of contract constitute a part of the substantive law, and do not belong to the law of evidence, which is simply a branch of the law concerning procedure.^ The rights aiid corresponding duties created by estoppels are primary, — rights of property or of contract. This is certainly true of common-law estoppels, and it is no less true of equitable estoppels; the effect of the latter is substantially the same as that of the former, the dif- ference being in the facts from which the estoppel arises, and not in the consequences produced by it. An estoppel determines the, right Avhieh a person may enforce by action or rely on in defense, and not^fhe'^'efe mode and moatis by Avhich those rights may be 'This truth is demly and most conilusivelv shown by Sir James Fitzjames St('])hen, in Ihe introduction to his admirable work entitled a Digest of the Law of Kvidence (pp. xiii., xiv.). § 802 EQUITY JURISPRUDENCE. 388 proved.^ In fact, the principle which underlies the doctrine of the implied authority of an agent in most of its applications, and which pi-events the principal from denj'ing the authority which, by his conduct, he has held the agent out to the world as possessing, is i;lentically the same principle which constitutes the essence of all equitable estoppels; and if the rules concerning these estoppels are merely a part of the law of evidence, we should, for the same reason and to the same extent, regard the rules concerning the nature and effects of implied agency as also belonging to evidence. Many similar illustrations might be selected from various departments of the law. Equitable estoppel is, therefore, a particular doctrine, based upon justice and conscience, which is the origin, wherever it may be invoked, of ])rimary rights of property or of contract. $ 802. Origin of Equitable Estoppel. — Estoppel was recognized by the common law at a very early day. The original legal rules concerning it were arbitrary and sometimes unjust, and are still, to a certain extent, technical and strict. Lord Coke gave a very harsh definition of estoppel as it existed in his time: "An estoppel is where a man is concluded by his own act or acceptance to say the truth." He added: "Touching estoppels, which are a curious and excellent sort of learning, it is to be observed that there are three kinds of estoppels, viz., by matter of record, by matter in writing, and by matter in pais." His discussion shows clearly that "by inatter in writing" he meant only a deed, — a writing under seal. The instances w^hich he gave of estoppels in pais were: "By mat- -■ One or two illustrations will clearly show the correctness of this statement. A tenant is estopped from denying his landord's title. This is certainly a right of property, enabling the landlord to recover rent, or perhaps the land itself, although he has in Jact no title, and no other right of property than thati created by the estoppel. An acceptor is estopped from denying the genuineness of the prior signatures on the bill. This is a right of contract, whereby the holder may be enabled to recover the amount of the bill from the acceptor, and it may possibly be the only ground upon which a recovery can be rested. One other illusti'ation of an estoppel, regarded as more distinctively equitable, and having more the appearance of being only a rule of evidence: A is owner of land. He stands bj^ and knowingly permits B to expend money and make im- provements on the land, under the innocent but mistaken assumption of a right to do so, and interposes no objection, asserts no claim of title. A is then estop- ped from setting up his title as against B's right to the improvement. This is clearly a right of property in B. In strictness, A has the whole title, and B has no right of property by the ordinary rules of law applicable in the absence of the estoppel. The estoppel creates a right in B, which is as much a right of property as though it had resulted from a conveyance, or from a statutory ad- verse possession; it is his only right of property; it may not lie absolute, but is no less a right of property. One mode of acquiring title is by the common law estoppel resulting from a covenant of warranty. It is a pure fiction to say that the covenantee does not acquire a title by the estopped. 389 COXCKK-NlNCi EQUITABLE KSTOITKL. §803 ter in pah, as by livery, by entry, by aeceptanue of rent, by parti- tion, and by acceptance of an estate." These instances of legal estoppels in pais are not included within the "equitable estoppels" which form the subject-matter of the present section. Although the facts from which equitable estoppels arise are all matters in pais as distinguished from records and deeds, yet the whole doctrine is an expansion of and addition to the original legal estoppels in pais, and embraces rules unknown to the law when Lord Coke wrote. Equitable estoppel in the modern sense arises from the conduct of a party, using that word in its broadest meaning as in- cluding his spoken or written words, his positive acts, and his siJence or negative omission to do anything.^ Its foundation is jus- tice and good conscience. Its object is to prevent the unconscien- nous and inequitable assertion or enforcement of claims or rights which might have existed or been enforceable by other rules of the iavv', unless prevented by the estoppel ; and its practical effect is, from motives of equity and fair dealing, to create and vest opposing rights in the party who obtains the benefit of the estoppel - The doctrine of equitable estoppel is pre-eminent!}' the creature of equity. It has, however, been incorporated into the law, and is constantly employed by courts of law at the present day in the decision of legal controversies. Preserving its original character, and depending upon equitable principles, it is administered in the same manner, and in conformity with the same rules, by the courts both of law and of equity, so that the decisions of either class of tribunals maj- be quoted as authorities in the subsequent discus- sion. The particular applications of the doctrine are so various and so numerous, that no attempt will be made to discuss them with any fullness. § 803. How Far Fraud is Essential in Equitable Estoppels. — There is a theory which makes the essence of equitable estoppel to c(msist of fraud. In accordance with this view, the language used by some courts in defining and describing the general doctrine has l)(-en so sweeping and positive that, taken literally, it does not ad- mit the possibility of such an estoppel unless the party has been guilty of actual intentional fraud in law; and thus the whole doc- trine is represented as virtually a mere instance of legal ^raud. This theory is not sustained by principle, and it cannot be made universal. There are well-settled cases of equitable estoppel, familiar to courts of equity, which do not rest upon fraud, and instances are admitted, even l)y the courts M-hidi ninintaiii this theory, which > Martin v. Maine Cent. K. Co.. 0.3 Me. 100, 21 Atl. 740. ^'Horn V. Cole, 51 X. H. 287, 289, 12 Am. Rep. Ill, H. & B. 101 (a very important opinion) ; Stevens v. Dennett, 51 N. H. 324, 333, per Foster, J. § 803 EQUITY JURISPRUDEXCE. 390 cannot be said to involve any element of fraud unless by a complete perversion and misuse of language. It is undoubtedly in aceord- iuiee with the methods long pursued by courts of equity to ap[)ly [he term "fraudulent" to the party estopped, in the following man- ner: It is in strict agreement with equitable notions to say of such party that his repudiation of his own prior conduct which had amounted to an estoppel, and his assertion of claims notwithstand- ing his former acts or words, would be fraudulent, — would be a fraud upon the rights of the person benefited by the estoppel. It is accurate, therefore, to describe equitable estoppel, in general terms, as such conduct by a party that it would be fraudulent, or a fraud upon the rights of another, for him afterwards to repudiate and to set up claims inconsistent with it. This use of the term has long been familiar to courts of equity, which have always treated the word "fraud" in a very elastic manner. The meaning here given to fraud or fraudulent is virtually synonymous with "unconscien- tious" or "inequitable." In exactly the same manner, and with exactly the same signification given to the word, the doctrine of specific enforcement of verbal contracts for the sale of land when part performed by the plaintiff has been explained by saying that it would be fraudulent for the defendant to contest his liability by setting up the statute of frauds after he had permitted the plain- tiff, without objection, to go on and part perform the verbal agree- ment. In this explanation courts of equity do not mean that the defendant's conduct in denying the validity of the agreement is actual fraud, — a willful deception, — but simply that it is uncon- scientious; much less do they assert that there was actual fraud — ■ willful deception — in the act of entering into the verbal contract. In exactl}^ the same manner it is in strict accordance with equitable conceptions and equitable terminology to describe as fraud or fraudulent the act of repudiating conduct wiiich had constituted an estoppel, and of asserting claims inconsistent therewith; it is entirely another thing to say that the conduct itself — the acts, words, or silence of the party — constituting the estoppel is an actual fraud, done with the actual intention of deceiving. . . . When all the varieties of equitable estoppel are compared, it will be found. I think, that the doctrine rests upon the following general principle: AVhen one of two innocent persons — that is, persons each guiltless of an intentional, moral wrong — must suffer a loss, it must be borne by that one of them who by his conduct — acts or omissions — has rendered the injury possible. This is confessedly the foundation of the rules concerning the implied authority of agents, which are declared by judges of the highest ability to be applications of the 391 CONCERNING EQUITABLE ESTOPPEL. § 805 doctrine of equitable estoppel.' This most righteous principle is sufficient, and alone sufficient, to explain all instances of such es- toppel, and although fraud may be, and often is, an ingredient in the conduct of the party estopped, it is not an essential element, if the word is used in its true legal meaning. ^ 804. Definition. — From the foregoing general description it will appear, I think, that the following definition is accurate, and covers all phases and applications of the doctrine: Equitable es- toppel is the effect of the voluntary conduct of a party whereby he is absolutely precluded, both at laAv and in equity, from assert- ing rights which might perhaps have otherwise existed, either of property, of contract, or of remed3% as against another person, who has in good faith relied upon such conduct, and has been led thereby to change his position for the worse, and who on his part acquires some corresponding right, either of property, of contract,, or of remedy.^ § 805. Essential Elements Constituting the Estoppel.— In con- formity with the principle already stated which lies at the basis of the doctrine, and npon the authority of decisions which have re- cognized and adopted that principle, the following are the e-ssential elements which must enter into and form a part of an ecpiitable es- toppel in all of its phases and applications. One caution, however, is necessary, and very important. It w^ould be unsafe and misleading to rely on these general requisites as applicable to every case, without examining the instances in which they have been modified or limit- ed. 1. There must be conduct — ^acts, languag e , or s ilence--amount- i n.g to a re presentation or a concealment of m aterial facts. 2. These fac ts mu.stbejv uown to the party estopped at thetime of I^s said con duct, or at least the circumstances must be such that knowledge of them is necessanTy^'imputeTI toTiim. 3. The truth concerning these facts must be unknown to the other party" claiming th(i h^"eTrt oftHe^ estoppel, at the time wlicn such condncl was done, and at the time when it was acted upon hy h im. 4. The conduct mu.st be done with the intention, or at least Avitli tlie oxpectation. that it will be acted npon l)y the other party, or under such circumstances that it is both natural and probable that it will be so acted upon. There are several familiar species in which it is simply imposmhle to ascribe any intention or even expectation to the party estopped that his con- duct wnll be acted upon by the one wlio afterAvards claims the ' Fiirmers' & ]\Iechanics' Bank v. Butchers' & Drovers' Bank, 16 N. Y. 125, C9 Am. Dec. 678; Griswold v. Haven. 25 N. Y. 595, 82 Am. Dec. 380. 'Galbraith v. Lnnsford, 87 Tenn. SO. n S. W. .365, 1 L. R. A. 522, H. & B. 117. See, also, the definition in Sfephon's Dip^est of the La\v of Evidence, p. 124. § 806 EQUITY JURISPRUDENCE. 392 benefit of the estoppel. 5. The conduct must be relied upon bj^ the other party, and, thus relying^ he must be led to act upon it. 6. He must in fact act upon it in such a manner as to change his posi- tion for the worse; in other words, he must so act that he would suffer a loss if he Avere compelled to surrender or forego or alter what he has done by reason of the first party being permitted to repudiate his conduct and to assert rights inconsistent with it.^ It will be seen that fraud is not given as an essential requisite in the foregoing statement. It is not absolutely necessary that the conduct mentioned in the first subdivision should be done with a fraudulent purpose or intent, or with an actual and frandulent in- tention of deceiving the other party; nor is this meaning implied by any of the language which I have used. The adoption of such an element as ahvays essential would at once strike out some of the most familiar and best established instances of equit- able estoppel. Undoubtedly a fraudulent design to mislead is often present as an ingredient of the conduct working an estoppel; but this only renders the result more clearly just, and, if I may use the expression, more conclusive. There is, however, a class of cases, of which an example is given in the foot-note, where fraudulent conduct is essential, — cases in which an owner of land is precluded from asserting his legal title by reason of intentionally false rep- resentations or concealments, by which another has been induced to deal with the land. These cases are at the present day sometimes treated as examples of equitable estoppel. The principle, however, upon which they depend was well settled by courts of equity long liefore the doctrine of equitable estoppel in its modern form was first announced, and goes in its remedial operation far beyond that doctrine, as will more fully appear in subsequent paragraphs. I would again remark that although fraud is not an essential element of the original conduct working the estoppel, it may with perfect propriety be said that it Avonid be fraudulent for the party to repudiate his conduct, and to assert a right or claim in contraven- tion thereof. Using the term in the sense frequently given to it by courts of equity, and as explained in a preceding paragraph, this statement is not onlj^ proper, but furnishes an accurate crite- rion for determining the existence of an equitable estoppel. § 806. Theory that a Fraudulent Intent is Essential.— There is, as has already been mentioned, a theory approved and adopted by the courts of some states, which makes the very essence of every 'Pickard v. Sears, G Ad. & E. 469, 474; Continental Bank' v. Bank of the Commonwealth, 50 N. Y. 575, 581, 582; Rice v. Bunce, 49 Mo. 231, 234, 8 Am. Kep 129; Chase's Appeal, 57 Conn. 236, 18 Atl. 96; Galbraith v. Luns- ford, 87 Tenn. 89, 9 S. W. 30.5, 1 L. R. A. 522, H. & B. 117 (fraud not essential). 393 CONCEUXING EQUITABLE ESTOPPEL. ^ SUT equitable estoppel or estoppel by conduct to consist of fraud, and affirms that au actual fraudulent intention to deceive or mislead ia a necessary requisite in the conduct of the party, — whether acts, words, or silence, — in order that it may create an equitable estop- pel. I cannot better state this theory than in the language of an eminent and able judge, which has frequently been adopted as be- ing an accurate exposition of the general doctrine.^ In order to estop a party by his conduct, admissions, or declarations, the fol- lowing are essential requisities : It must appear, — 1. That the party makingr his admission by his declaration or conduct was apprised of the true state of his own title; 2. That he made the admission uith the express intoition to deceive, or with such careless or culpable negligence as to amount to constructire fraud; 3. That the other party was not onh^ destitute of all knowledge of the true state of the title, but of all means of acquiring such knowledge; 4. That he relied directly upon such admission, and will be injured by al- lowing its truth to be disproved. - § 807. Fraudulent Intent Necessary in an Estojipel Affecting the Legal Title to Land. — The particular case referred to in the fore- going foot-note i'e(iuires a fuller explanation. It is a purely equit- able doctrine settled long before the modern rules of equitable es- toppel by conduct. It is confined to estates in land. The general rule is, that if a person interested in an estate knowingly misleads another into dealing with the estate as if he were not interested, ho will be postponed to the party misled, and compelled to make his representation specifically good. It applies to one v\iio denies his own title or encumbrance when inquired of by another who is about to purchase the land or to loan money upon its security: to one who knowingly suffers another to deal with the land as though it were his own; to one Avho knowingly suffers another to expend money in improvements without giving notice of his own claim, and the like. This equity, being merely an instance of fraud, re- quires intentional deceit, or at least that gross negligence which is evidence of an intent to deceive. In the language of a most recent decision, to preclude the owner of land from asserting his legal title or interest under such circumstance, "there must be shown either actual fraud, or fault or negligence equivalent to fraud, on his part in concealing his title; or that he was silent when the cir- cumstances would impel an honest man to speak; or such actual intervention on his part, as in Storrs v. Barker, 6 Johns. Ch. 166. — 'Boggs V. Mercod Min. Co., 14 Cal. 270. 307, SOS, per Field. -T. : Braiil v. Virginia Coal Co., 93 U. S. 326, 33.1, per Field, ,1. See Oalhraith v. Limsford. 87 Tenn. 89, 9 S. W. 30,5, 1 L. R. A. r>22. H. & B. 117. 'Pocohontas Light & Water Co. v. Bro\vning, 53 W. Va. 430, 44 S. E. 267. § 808 EQUITY JURISPEUDEXCE. 394 SO as to render it just that, as between him and the party acting; upon his suggestion, he should bear the loss." What is the reason of this rule ? It is accurately explained in the same decision. While the owner of land may by his acts in pais preclude himself from asserting his legal title, "it is obvious that the doctrine should be carefully and sparingly applied, and only on the disclosure of clear and satisfactory grounds of justice and equity. It is opposed to the letter of the statute of frauds, and it would greatly tend to the in- security of titles if they were allowed to be affected by parol evi- dence of light or doubtful character." The most important "ground of justice and equity" admitted by courts of equity to uplift and displace the statute of frauds concerning legal titles to land, by fastening a liability upon the wrong-doer, is fraud. There are many instances in which equity thus compels the owner of land to forego the benefits of his legal title and to admit the equitable claims of another, in direct contravention of the literal require- ments of the statute, but they all depend upon the same principle. The rule under consideration is strictly analogous to another familiar rule that a legal owner of land cannot be turned into a. ti'iistee ex delicto by any mere words or. conduct. A constructive trust ex delicto can never be impressed upon land as against the legal title by any verbal stipulation, however definite, nor by any mere conduct; such trust can only arise where the verbal stipula- tion and conduct together amount to fraud in the contemplation of efjuity. Both the rule under consideration and the rule concerning trusts rest upon the same reasons. The doctrine had its origin, as has been said, prior to and independently of the modern doctrine of equitable estoppel by conduct, and was confined in its operation to courts of equity. Even at the present day, this particular in- stance of the equitable estoppel by which the owner of land is pre- cluded from asserting his legal title is distinctively equitable; it is not admitted and enforced at law, except in states Avhere the principles of equity are administered through the means of legal actions and remedies, and in those where legal and equitable rights; and reliefs are combined in the administration of justice under the reformed procedure.^ § 808. Requisites Further Illustrated — The Conduct. — ]\ry limits of space do not permit a detailed discussion of these general requi- sites. I can only state them in the briefest manner, and must refer to the cases cited in the foot-note, and to treatises upon estoppel, for an ampler treatment. In fact, the more specific rules, the vary- ^Storrs V. Barkpr, fi Johns. Ch. 166, 10 Am. Dec. 316: Parkey v. Ramsey, (Tenn.) 76 S. W. 812. That this species of estoppel belongs to the jurisdiction of eqiiity, and is not available at law, see Hayes v. Livingston, 34 Mich. 384, 22 Am. Kep. 533. 305 COXCKKXIXG EQUITABLE ESTOPPEL. § 8W> ing' phases of opinion, and the partial eontiict of decision have arisen in ac-tions at law rather than in eqnity. The treatment of the subject by courts of equity has generally been simple, uniform, and consistent. The conduct creating- the estoppel must be soujc- thing which amounts either to a representation or a concealment of the existence of facts; and these facts must be material to the rights or interests of the party afit'ected by the representation or concealment, and who claims the benefit of the estoppel. The con- duct may consist of external acts, or language written or spoken, or of silence.^ The facts represented or concealed must, in general, be either existing or past, or at least represented to be so. A state- ment concerning future facts would either be a mere expression of opinion, or would constitute a contract and be governed by rules applicable to contracts.- § 809. Same. Knowledge of the Truth by the Party Estopped.— The truth concerning these material facts represented or concealed nuist be known to the party at the time when his conduct, which amounts to a representation or concealment, takes place ; or else the circumstances must he such that a knowledge of the truth is neces- sarily imputed to liim} The rule has sometimes been stated as though it were universal, that an actual knowledge of the truth is always indispensable. It is, however, subject to so many restrictions and limitations as to lose its character of universality. It applies in its full force only in cases where the conduct creating the estopi)e! consists of silence or acquiescence. It does not apply where the party, although ignorant or mistaken as to the real facts, was in such a position that he ought to have known them, so that knowledge will be imputed to him. In such case, ignorance or mistake will not prevent an estoppel.- Nor does the rule apply to a party who has not simply acquiesced, but who has activelj^ interfered by acts or words, and whose affirmative conduct has thus misled another.^ Finally, the rule does not apply, even in cases of mere acquiescence, when the ignorance of the real facts was occasioned by culpable negligence.* 'By acts or words: Horn v. Cole. .>! X. H. 2S7, 12 Am. Rep. Ill, H. & B. 101: Hoene v. Pollak, 118 Ala. 017. 24 South. .349, 72 Am. St. Rep. 189. By silence: In re Lart (1896), 2 Cli. 789. ••'.lorden v. Money, 5 H. L. Cas. 185; Elliott v. Wliititiore. 23 Utah 342. (i5 Pac. 70. 90 Am. 8t. Rep. 700. 'Bank of Hindustan v. Alison. L. R. Com. P. 54, 222; :\lcCaskill v. Con- necticut Savings Bank, fiO Conn. 300, 25 Am. St. Rep. 323, 22 Atl. 568, 13 L. R. A. 737. •■= Weinstein v. National Bank, 69 Tex. 38, 6 S. W". 171. 5 Am. St. Rep. 23; Chase's Appeal, 57 Conn. 236. 18 Atl. 96. ^Bcaupland v. :\TcKean. 28 Pa. St. 124, 131, 70 Am. Dec. Ii5. * Smith V. Xewton, 38 ill. 230. §811 E(2L1TY JLia,srULDE.\CK. 396 § 810, Same. Ignorance of the Truth by the Other Party. — The truth eoneeruiiiy tlicse material facts must be unknown to the other party claiming the benefit of the estoppel, not only at the time of the conduct which amounts to a representation or concealment, but also at the time when that conduct is acted upon by him. If, at the time when he acted, such party had knowledge of the truth, or had the means by which with reasonable diligence he could ac- quire the knowledge so that it would be negligence on his part to remain ignorant by not using those means, he cannot claim to have been misled by relying upon the representation or concealment.^ If, therefore, at the time of the representation the party to whom it was made was ignorant of the real facts, but before he acted upon it the statement was contradicted by its author, or he became informed of the truth, he could not claim an estoppel." It has been said that, in cases of alleged estop])el by conduct affecting the title to land, the record of the real title would furnish a means by which the other party might ascertain the truth, so that he could not claim to be misled, and could not insist upon an estoppel.^ This conclusion, if correct at all, is correct only within very narrow limits, and must be applied with the greatest caution. It must be strictly confined to cases where the conduct creating the alleged estoppel is mere silence. If the real owner resorts to any affirma- tive acts or words, or makes any representation, it would be in the highest degree inequitable to permit him to say that the other party, who had relied upon his conduct and had been misled thereby, might have ascertained the falsity of his representations. "^ § 811. Same. Intention of the Party Who is Estopped. — It has frequently been said, in most general terms, that the conduct amounting to a representation, in order to constitute an estoppel, must be done with the intention, by the one who is to be estopped, that it shall be acted upon by the very person who claims the benefit of the estoppel, or, as is sometimes said, that it shall be acted upon by another person. In short, there must always be the intention that the conduct shall be acted upon either by some person, or by the very person who afterwards relies upon the estoppel.^ "While 'Rennie,v. Youiiy. 2 Do (W\ & .T. 1.36; Estis v. Jackson, 111 X. C. 145, 32 Am. St. Rep. 784, Hi S. K. 7. " l''reeman v. Cooke, 2 I'^.x. Ct'tA. , MViser v. Lnwler. IS!) I'. S. 200. 2?. Sup. Ct. 024. See Sniunor v. Seaton, 47 N. .1. Eq. 10.3. in Atl. SS4. ■* Claphani v. Shillito. 7 P>eav. 140. 140. I.IO. per Lord Lanirdale: Oraliam v. Thompson. .">.") Ark. 2!)0. 18 S. W. 5S, 29 Am. St. Rep. 40. •■De Berry v. Wheeler, 128 Mo. 84, 49 Am. St. Rep. .'■).3S. 30 S. W. 338; Stevens v. Ludliim. 40 Minn. 160, 24 Am. St. Rep. 210, 48 N. W. 771, 13 L. R. A. 270. 397 CO.NCKUMNG KQLITABLK ESTOPPEL. § Sll such intention must sometimes exist, and while the proposition is theretoie line in certain eases, it would he very misk'ading as a universal rule. In many familiar species of estoppels no intention can possibly exist. The requisite, as applicable to them, is Avell ex- pressed by am eminent judge in a recent decision: It is not "neces- sary, in equity, that the intention should be to deceive any particu- lar iiulividual or individuals. If the representations are such, and made in such circumstances, that all persons interested in the sub- ject have the right to rely on them as true, their truth cannot be denied by the party that has made them, against any one who has trusted to them and acted on them. . . . Where a man makes a statement in a manner and under circumstances such as he must understand those who heard the statement would believe to be true, and if they had an interest in the subj^^ct-matter would act on as true; and one, using his own means of knowledge with due diligence, acts on the statement as true, the party who makes the statement cannot show that his representation was false, to the injury of the party who believed it to be true, and acted on it as such; that he will be liable for the natural consecjuences of his representation, and cannot be heard to say that the party actually injured was not the one he meant should act."- This mode of stating the doctrine niuij in equity apply to every kind of estoppel, even to those by which an owner of land is precluded from asserting his legal title. There is, however, a large class in which not only an intention directed towards a particular individual or towards indi- viduals in general is absent, but a contrary intention that the party's representation is not to be acted upon at all may be present. The class includes all those instances where an owner of things in action or of chattels has. either designedl.y or negligently, clothed a third person with the apparent title and power of disposition, and this person transfers them to a purchaser in good faith who relies upon the apparent power of sale they conferred upon him." The original owner is estopped by his conduct from asserting his right of prop- erty, and the bona fide purchaser acquires a perfect title by estoppel, in direct contravention of the rules of law which would otherwise control. It is a complete misconception to say that these instances do not depend upon the doctrine of equitable estoppel, but upon tluit of negligence. On the contrary, they have been uniforndy rested by courts upon the theory of estoppel, and are among the strongest and most distinctive illustrations of the efficacy of that theory'. In fact, it is only liij means of tlip doctrine of estoppel that the original owner can be divested of his title in opposition to the rules of the law concerning the transfer and ac((uisition of property. mom V. Cole, 51 X. II. 287. 12 Am. Rpp. 111. H. & B. 101, per Peiiey, C. -7.; Cornish v. Abinptmi. 4 Hurl. & X. 549. per Pollock. (\ B. ^Morris v. .loyoo. C^'^ \. J. Ecj. .-)49. a:} All. l.SO. § Slo EQUITY JLItlSl'KUDEXCE. 398 There is no rule of law or of equily hj/ vliich an oivner, through mere negligence, can he divested of his legal title to things in action or chat- tels.^ The cases where the loarticular intention mentioned in the general rule seems to be the most essential are those in which an owner or one having an interest in property, especially in land, deals concerning- it, directly with a third person, and by his words, acts, or silence, when he ought to speak, makes representations with respect to his title or interest. In order to be estopped from asserting his title or interest, he must intend that his representa- tion should be acted upon by the party influenced by his conduct.'"^ § 812. Same. The Conduct must be Relied upon, and be an In- ducement for the Other Party to Act. — Whatever may be the real intention of the party making the representation, it is absolutely tissential that this representation, whether consisting of words, acts, or silence, should be believed and relied upon as the inducement for action by the party who claims the benefit of the estoppel, nnd that, so relying upon it and induced by it, he should take some action. The cases all agree that there can be no estoppel, unless the party who alleges it relied upon the representation, was induced to act by it, and thus relying and induced, did take some action.^ Finally, this action must be of such a nature that it would have altered the legal position of the party for the worse, unless the estoppel is enforced. lie must have placed himself in such a situa- tion that he would suffer a los.s as the consequence of his action, if the other party were allowed to deny the truth of his representa- tion, or repudiate the effects of his conduct.- Although this action is usually affirmative, yet such affirmative action is not indispens- able. It is enough if the party has been induced to refrain from using such means or taking such action as lay in his poAver, by which he might have retrieved his position and saved himself from loss.'' § 813. Operation and Extent of the Estoppel. — The measure of the operation of an estoppel is the extent of the representation made by one party and acted upon by the other. The estoppel is com- mensurate with the thing represented, and operates to put the party entitled to its benefit in the same position as if the thing rep- resented were true.^ With respect to the persons who are bound by * McNeil V. Tenth Nat. Bank, 40 N. Y. 325, 7 Am. Rep. 341, and see ante, § 710; Barnard v. Campbell, 55 N. Y. 456, 4G2. * (See ante, § 807, and cases cited. ^St. Jo Mfg. Co. V. Uaggett, 84 111. 556; Boylston v. Rankin, 114 Ala. 408, 21 South. 995, 62 Am. "St. Rep. 111. - Ketchum v. Duncan, 90 U. S. 659: Supreme Tent, Knights of :\Iaccabees, V. Stensland, 206 ill. 124, 68 N. E. 1098, 99 Am. St. Rep. 137. '^ Continental Bank v. Bank of Connnonwealth, 50 N. Y. 575 ; Weinstein v. National Bank, 09 Tex. ,",3, G ;;. W. 171, 5 Am. St. Rep. 23. H4rissler v. PoAvers, 81 N. Y. 57, 37 Am. Rep. 475, per Andrews, J, 31)9 CONCERNIXfi KCJl ITABLK ESTUri'EL. § 814 or who may claim the beneiit of the estoppel, it operates between the immediate parties and their privies, whether by blood, by estate. or by contract. A stranger, Avho is not a party nor a privy, can neither be bound nor aided.- Since the Avhole doctrine is a creature of equity and governed by equitable principles, it necessarily fol- lows that the party who claims the benefit of an estoppel must not only have been free from fraud in the transaction, but must have acted with good faith and reasonable diligence; otherwise no equity will arise in his favor.^ §814. Same. As Applied to Married Women. — Upon the ques- tion how far the doctrine of equitable estoppel by conduct applies to married women, there is some conflict among the decisions. The tendency of modern authority. hoM^ever, is strongly towards the enforcement of the estoppel against married women as against persons sui juris, with little or no limitation on account of their disability. This is plainly so in states where the legislation has freed their property from all interest or control of their husbands, and has clothed them M'ith partial or complete capacity to deal with it as though they were single.^ Even independently of this legislation there is a decided preponderance of authority sustaining the estoppel against her, either when she is attempting to enforce an alleged right or to maintain a defense.- There are, however, decisions which hold, in effect, that since a married woman cannot be directh" bound by her contracts or conveyances, even when ac- companied with fraud, so she cannot be indirectly bound through means of an estoppel; and the operation of the estoppel against her ]nust be confined to cases where she is attempting af^rmativeiy to enforce a right inconsistent with her previous conduct, upon which the other partj has relied." These decisions seem to be in opposi- tion to the general current of authority. § 815. Same. As Applied to Infants. — The disability of infancy seems to have limited the operation of the equitable estoppel more than that of coverture. Since an infant is not directly bound by his ordinarj^ contracts, unless ratified after he becomes of age, so obligations in the nature of contract will not be indirecth' en- forced against him by means of an estoppel created by his conduct -Simpson v. Pearson, 31 Ind. 1, 99 Am. Dec. 577, per Elliott, C. J.; Hodge V. Ludlum, 4.5 Minn. 290, 47 N. \V. 805. = Wilcox V. Howell, 44 N. Y. 398. M>)[)l)in V. Cordinor, 41 :Minn. 165, 42 X. \\'. 870. 10 Am. St. Rep. 683. 4 L. T[. A. 3.33, Sh. 130. = Stafford v. Stafford, 1 De Gex & -T. 193; (\iniiolly v. Branstler, 3 Biisli 702, 96 Am. Dec. 278, 1 .Scott 583: (Jalhraitli v. Luiisfonl. 87 Tenn. 89, 9 S. \V. 365, 1 L. K. A. ,522, H. & B. 117. 'Lowell V. Daniels, 2 (iray 161. 61 Am. Dec. 448; Williamson v. JoneS;, 43 W. Va. 563. 64 Am. St. Rep. 891. 27 S. K. 411, 38 L. R. A. 694. § 817 EQUITY JUKISl'KUDEXCE. 400 while still a minor. On the other hand, an equitable estoppel arising from his conduct may be interposed, with the same effect as though he were adult, to prevent him from affirmatively asserting a right of property or of contract in contravention of his conduct upon which the other party has relied and been induced to aet.^ § 816. Important Applications in Equity — Acquiescence. — In ad- dition to the foregoing discussion of principles, I shall state very briefly some of the applications wiiich have most frequently been made by courts of equity. Acquiescence is an important factor in determining equitable rights and remedies, in obedience to the maxims, He who seeks equity must do equity, and He who comes into fc({uity must come with clean hands. Even when it does not work a true estoppel upon rights of property or of contract, it may operate in analogy to estoppel — may produce a quasi estoppel — upon the rights of remedy. These two effects will be described separately. § 817. Acquiescence as Preventing Rights of Remedy. — Acquies- cence in the wrongful conduct of another l)y M^hich one's rights are invaded may often operate, upon the principles of and in anal- ogy to estoppel, to preclude the injured party from obtaining many distinctively equitable remedies to which he would otherwise be entitled. This form of (juasi estoppel does not cut off' the party's title, nor his remedy at law; it simply bars his richt to equitable relief, and leaves him to his legal actions alone. In order that this effect may be produced, the acquiescence must be with knowledge of the wrongful acts themselves, and of their injurious consequences; it must be voluntary, not the result of accident, nor of causes rend- ering it a physical, legal, or moial necessity, and it must last for an unreasonable length of time, so that it will be inequitable even to the wrong-doer to enforce the peculiar remedies of equity against him, after he has been suffered to go on unmolested, and his con- duct apparently acquiesced in. It follows that what Avill amount to a sufficient acquiescence in any particular case must largely depend upon its own special circumstances. The equitable remedy to which this quasi estoppel by acquiescence most frequently applies is that of injunction, preliminary or final, when sought by a proprie- tor to restrain a defendant from interference with easements, from committing nuisances, from trespasses, or other like acts in dero- gation of the plaintiff's proprietary rights.^ This effect of delay is subject to the important limitation that it is properly confined to claims for purely equitable remedies to which the party has no strict legal right. "Where an injunction is ask^d in support of a strict MVieland v. KnhiVk. 110 111. 10. 51 .Am. 'Rpp. OTH. ' See vol. 1, SS 418. 419. and cases there cited: Coles v. Sims. 5 De Gex. M. & G. i: Burden v. Stein. 27 Ala. 104. 02 Am. Dec. 7.58; Powers's Appeal. 125 ^a. St. 175, 17 Atl. 254, 11 Am. St. Rep. 882, 1 Scott 264. 401 COXCEltNING EQUITABLE ESTOITEL. g 8l9 legal right, the party is entitled to it if his legal right is established ; mere delay and acquiescence will not, therefore, defeat the remedy, unless it has continued so long as to defeat the right itself.'- The !-ame rule applies, and for the same reasons, to a party seeking pure- ly equitable relief against fraud, such as the surrender or can- cellation of securities, the annulling of a transaction, and the like. Upon obtaining knowledge of the facts, he should commence the proceedings for relief as soon as reasonably possible. Acquiescence consisting of unnecessary delay after such knowledge will defeat the equitable relief.^ § 818. Acquiescence as an Estoppel to Rights of Property or of Contract. — Acquiescence consisting of mere silence may also operate as a true estoppel in equity to preclude a party from asserting legal title and rights of property, real or personal, or rights of contract. The requisites of such estoppel have been described. A fraudulent intention to deceive or mislead is not essential. All instances of this class, in equit}^, rest upon the principle: If one maintain silence when in conscience he ought to speak, equity will debar him from speaking when in conscience he ought to remain silent.^ A most important application includes all cases where an owner of proper- ty, A, stands by and knowingly permits another person, B, to deal Avith the property as though it were his, or as though he were rightfully dealing with it, without interposing any objection, as by expending money upon it, making improvements, erecting buildings, and the like. Of course, it is essential that B should be acting in ignorance of the real condition of the title, and in the supposi- tion that he was rightful in his owii dealing. - §819. Estoppel as Applied to Corporations and Stockholders. — This species of estoppel, as well as other kinds which consist of affirmative acts or representations, applies to corporations in their dealings with third persons, and with their own stockholders.^ Thus n corporation may be estopped by statements contained in a pros- ))ectus or circular, on behalf of a stockholder who has purchased shares upon the faith of such statements.- Conversely, stockholders -Fulhvood V. Fulhvoofl. L. E. 9 Ch. Div. 176: Rigney v. Tacorna L. & W. (V, 9 Wash. 576, 38 Pae. 147. 26 L. K. A. 42.5. 'Spp post, §§897, 917, 96.5: Van Bpck v. Milbrath, 118 Wis. 42, 94 N. W. 6.57: Calhoun v. Millard, 121 \. Y. 60. 24 N. E. 27. S L. R. A. 248, 1 Scott 388; Dennis y. .Tonps. 44 X. T. Eq. 51.3. 14 All. 913. 6 Am. St. Rep. 899, 3 Kppner 728. '^Tich., etc., Co. v. rnroell. 38 "Mich. 47.5. 480. per Conley. .T. -Crook V. Corporation of Soaford, L. R. 6 Cli. .551. L. R. 19 Eq. 678: Kessler V. Ensley Co.. 123 Fed. 546: Lindsay v. Coopor. 01 Ala. 170. 33 Ain. St. Rpp. 10.5. 11 South. .325. 16 L. R. A. 813. 'Breslin v. Fries-Brpslin Co. fX. .1. Eq.l. 58 Atl. 313: Coolidge v. Scherinar, 32 Wash. 5.57. 73 Pac. 682. 'New Bninswick. rtc. Co. v. MTigij'^ridc'o. 7 Jnr. X. S. 132. 26 ' • § 821 EQUITY JUlUSriUDKXCK. 402 may be estopped by their acquiescence from objecting to the acts of the corporation which are not illegal nor mala prohibita, but ultra vires, when the rights of innocent third persons have inter- vened. Express assent is not necessary to estop the stockholders ■ "when they neglect to promptly and actively condemn the unau- thorized act, and to seek judicial relief after knowledge of its being- done, they will be deemed to have acquiesced, and will be estopped ?s against innocent third persons."" § 820. Other Instances of Acquiescence, — It is in conformity v>"ith the same principle that parties avIio liave long acquiesced in settlements of accounts or of other mutual dealings are not permit- ted to reoi^en or disturb them; and this is true, even though the |)arties stood in confidential relations towards each other, as trustee and cestui que trust, principal and agent, and the like, and the set- tlement embraced matters growing out of such relations.^ Another familiar instance of the estoppel arises' from the conduct of the debtor party toward the intended assignee of a thing in action. If a mortgagor, obligor, or other debtor, by keeping silence under circumstances Avhen he ought to speak, leads the intended assignee to believe that there is no defense, he will be estopped from after- wards setting up any defense which might otherwise be available as against the assignee who has thus been induced to purchase the demand. The estoppel wnll be even more obvious when the debtor, instead of simply keeping silent, resorts to affirmative and mislead- ing acts or representations. - §821. Owner Estopped from Asserting- his Legal Title to Land. — The most striking instance of the estoppel i-ecognized by courts of equity is that already described in a former paragraph, wherein by intentional misrepresentation, misleading conduct, or wrongful concealment a party may preclude liiniself from asserting his legal title to land, or from enforcing an encumbrance on or maintaining an interest in real estate.^ This doctrine was established in e(iuity long before the modern rules concerning equitable estoppel by conduct had been developed ; and its operation is somewhat more extensive than the effects produced by the ordinary forms of estop- pel. A person may not onl}' be prevented from asserting his title or interest, he may even be compelled, at the suit of an innocent purchaser, to make good and specifically perform his representa- tions. Fraud, actual or constructive, is the essential and central element. 'Kessler v. Ensley Co., 123 Fed. 54G; ilempliis, etc., R. R. Co. v. Grayson, 88 Ala. 57-2, 7 South. 122, 16 Am. St. Rep. 69. ^ Clarke v. Hart, .5 Jnr. N. S. 447. -Grissler v. Powers, 81 N. Y. 57, 37 Am. IW\). 475. See ante, § 704. 'See ante, § 807; Sherrill v. Sherrill, 73 N. C, 8; Willmott v. Barber. L. R. 15 Ch. Div. 96, 106. 40o CEiri'Ai.N i\ii> AM) i:\i:xTd. .$ 8'i,5 CHAPTER THIRD. CERTAIN FACTS AND EVENTS AVHICH ARE THE OCCASIONS OF EQUITABLE PRIMARY OR REMEDIAL RIGHTS. §822. Introductory. In the first volume, while speaking of the jurisdiction. I stated that certain facts and events were most im- portant occasions of equitable rights and duties/' Since these same acts are also recognized by courts of law as giving rise to legal rights and duties Avithin a limited extent, it has sometimes been said that they form a pai't of the concurrent jurisdiction of equity. The er- roneous character of this theory has been shown in earlier sections. - The rights and duties of which they are the occasions, whether of property, of contract, or of remedy, belong partly to the exclusive and partly to the concurrent jurisdiction. The facts and events referred to, and which form the subject-matter of this chapter, are accident, mistake, and fraud. In the present discussion I shall not describe in an exhaustive manner all their consequences and eitects, for this would pi'oduce needless confusion. I shall, in the first place, define them as they are conceived of l\v e'lnity, and explain with some care the equitable notions concerning their nature, and the equitable doctrines concerning their essential ele- ments and attributes. In the second place, I shall enumerate their effects, the instances of equitable jurisdiction of which they are the occasions, and the equitable rights and duties w^hich are main- tained and enforced by these phases of the jurisdiction. The doc- trines which determine and govern the most important of these rights will be more fully discussed under subsequent and appro- priate heads." ^See ante. §§ 359. 362. = 8ee ante, §§ 138, 175 note, 188. ^ For example, many instances of trusts by operation of law sprinj^ from fraud; their full discussion vill be found in the sections on trusts. All the (|uity jiu'isdiction. Th'^ie is reason to believe 1hat, at an early day, this jurisdiction Avas much more undefined and comprehensive than it is at present: but for a long time it lias been, and is now, settled within certain and somewhat narroAv Mvopper v. Dyer, r)9 Vt. 477, 9 Atl. 4, 59 Am. Eep. 742, H. & E. 106, 1 Scott 400. 405 ACCIDENT. § S-Z") limits. Its existence and exercise involve two essential requisites. The first and principal requisite is, that, by the event not expected nor foreseen, one party, A, has without fault and undesignedly un- dergone some legal loss or liability, and the other party, B, has acquired a corresponding legal right, which it is contrary to good conscience for him to retain and enforce against A. In other v.ords, because of the unexpected character of the occurrence bj' which A's legal relations towards B have been unintentionally changed, A is in good conscience entitled to relief which shall restore those relations to their original character, and replace him in his former position. In the second place, this relief, to which A is conscientiously entitled, must be such as cannot, be adequately conferred by courts of law. Upon these two essential requisites the jurisdiction was biised: the party's conscientious right to relief; and the impossibility of obtaining adequate remedy at law. If tlie party, although clearly entitled to relief, can obtain adequate and certain remedy at law, then, in accordance with the funda- mental principles of eciuilable jurisdiction, the concurrent jurisdic- tion does not exist, and the exclusive jurisdiction is not exer- cised.^ This doctrine, it should be remembered, refers to the origin of the equity jurisdiction, and not to its subsequent and present condition. Its operation is controlled and modified by the other most important principle, fully discussed heretofore, that when the eciuitable jurisdiction, either concurrent or exclusive, has once been established with respect to any subject-matter, it is not de- stroyed or abridged by a jurisdiction subsequently acquired by the courts of law to give the same or other adequate relief under the same circumstances. The jurisdiction of efjuity originallj' existing and exercised on the occasion of accident has not, therefore, been theoretically affected by the powers given to or assumed by the courts of law to confer complete remedy in many cases which form- ei'ly belonged to the cognizance of equity alone. - § 825. Limitations. — While the jurisdiction occasioned by acci- dent is clearly limited, and the instances in which it is and is not exercised are well defined, it is difficult to formulate any general criterion which shall consistently express the extent of the limita- tion, and account for all these instances. It must be conceded. I think, that the conclusion.s of the equity courts on this subject are somewhat arbitrary. In the very enrlipst period of equity jurisprudence, before doctrines had been fully developed and de- fined, the jurisfliction Avas imdoubtedly understood as embracing oyevy kind of ease in which an nnexpected result bail been produced •See §§ 216-222. 'See §§ 276-281, where this doctrine is fully considered. § 8"-^G EQUITY JU1!1.SP1!LDEXCH. 406 by accident, — every kind of misfortune ; and tlie rule is even laid down in this manner by Lord Coke/ It is now the iirnily settlea doctrine, Avith respect to many legal obligations, that there is no equitable jurisdiction to relieve parties from their non-performance caused by accident in its ordinary and popular meaning. The fol- lowing are the important instances in which the jurisdiction does not exist or Avill not be exercised. § 826. Contracts. — As a general rule, where the obligation arises from an express contract created by the stipulations of the parties, and a non-performance is wholly the result of accident, or a party without fault has been accidentally prevented from completing the execution of the agreement, and deriving full benefits therefrom, in either case equity does not exercise its jurisdiction to give him any relief, whether by way of defense against the enforcement of the obligation, or by way of affirmative remedy. The exception is confined to agreements providing for a penalty or a forfeiture, in which the jurisdiction to relieve is settled within defined and nar- row limits.^ ' 4 Inst. 84 : "Accidoiit, an -vvlien a servant of an obligor, nioi-tgagor, etc., is sent to pay the money on the day, and he is robbed, remedy is to be Jiail in tliis court against the forfeiture." This statement by Lord Coke is probably due, in great measure, to his ignorance of equity. A case in the Introduction to the Calendars of Proceedings in Chancery (vol. 1, p. cxlii.) illustrates the early view of the jurisdiction. A B had entered into a bond, with a heavy penalty, to repair certain river banks near the town of Stratford-at-Bow within a specified time. He had been prevented from completing the contract within the required time by sudden and unexpected floods; and the obligee in the bond had sued him at law to recover the penalty. He thereupon filed a bill in chancery to restrain the action of the law, and to be relieved from the consequences of the accident. 'This doctrine may be illustrated bj^ a simple supposed case. If A has contracted to build a house by a certain day named, and in the course of completing the agreement has collected a quantity of materials all prepared and necessary for the building, and all these materials are, without A's fault, by a mere accident — a stroke of ligiitning and consequent fire — destroyed, so that it becomes physically impossible to re])lace them and to finish the house within the specified time, there is no jurisdiction in equity to relieve A in any manner from the lial)ility cavised by tlie non-performance of his con- tract. Courts of equity, as well as courts of law, say that parties nuist guard against the possible ettect of such misfortunes by express stipulations inserted in their agreements. Among the illustrations of this doctrine the most frequent are covenants by lessees to pay rent, to keep the buildings in repair, and the like; if the premises are consumed by accidental fire, or destroyed by other inevitable accident, the lessee is not relieved from the obligation of liis cove- nant at law or in equity: Hallett v. Wylie, 3 Jolins. 44, 3 Am. Dec. 4.57. Ihis does not at all interfere with tlie jurisdiction which 7iivhich equity will aid: Toilet v. Toilet; but. conversely, when it was required to be executed only by a will, an execution by an absolute deed will not be aided: Keid V. Shergold, 10 Ves. 370. The defects which equity may aid consist either of the use of an inappropriate instrument, although it is duly executed, as 411 ACCIDENT. § 83(i created by the voluntary act of t'crsons in wills, deeds, and settle- ments; it does not extend to those created and retrulated by stat- nte. The defective execntiou of statutory powers, in the failure to comply with the i)rescribed icM|uisites, cannot be aided by equity." § 835. Powers in Trust will be Enforced. — The general rule tiiat equity refuses to aid the non-execution of powers, and only c :»r- rects their defective execution, relates only to bare, naked, or mere powers; it does not apply to powers coupled with a trust. I\Iere powers create no obligation resting on the donee, nor any light in a person who may be benefited by their execution. Powers in trust, or coupled with a trust, like any other trust, are imperative : they create a duty in the trustee, and a right in the beneficiary. Equity will not suffer this right of the beneficiary to be defeated, either by accident or by designs of the trustee, and will therefore carry into eit'eet the intention of the donor, and give all needed relief to the beneficiary, whenever there has been a total or a partial failure to execute the power according to the terms of the trust.i § 836. 4. Judgments of Law. — Accident is also one of the grounds for the exercise of the most important jurisdiction with respect to actions and judgments at law. Where the defendant in an action at law has a good defense on the merits, which he is prevented by accident from setting up or making available without any neg- ligence or inattention on his part, and a judgment is recovered against him, equity will exercise its jurisdiction on his behalf by enjoining further proceedings to enforce the jndgment, or by set- ting it aside so that a new trial can be had on the merits.^ In many states, especially in those which have adopted the refoimecl j)rocedure, this particular relief is usually obtained by means of a motion for a new trial, and the necessary occasions for a resort to equity have been lessened: the equitable jurisdiction, however, has not been abrogated even in those states, and it is constantly invoked in the other commonwealths. in ToFIet v ToUpt : Tn ro ■Dyko's Estate. L. R. 7 Eq. 337; or in the improper and insufficient mode of expontinjr an appropriate kind of instrument — as, for example. omittiuGf a seal. Tn order to admit the exercise of the jurisdiction and tr» o-rant relief, there must he somethinjr more than a mere verhal promise to execute the power: there must nlways he some writing- attemptinf.' or sliow- in..:} Keener 80; Grls- wold V. Hazard, 14] U. S. 26, 11 f:>up. Ct. 972, H. &. B. 197. 2 Ames Eq. Jur. 25!i. 3 Keener 107; Park Bros & Co. v. Blodsett. 64 Conn. 28, 29 Atl. 133, H. & B. 234, 3 Keener 150: Wyclie v. Greene, 16 C,a. 49, 2 Ames Eq. Jur. 289; Dinwiil- die V. Self. 145 III. 290; 33 N. E. 892, 3 Keener 137: Stafford v. Fetters. 55 Iowa 484, 8 N. W. 322, H. & B. 191, 3 Keener 86: Lee v. Pereival, 85 Iowa 135, 52 N. W. 543, 3 Keener 135; Canedy v. ^.\nxc^\ 13 Gray 373, 2 Ames Eq. Jur. 256, 3 Keener 35, 2 Soott 552; Stockbrido;e Iron Co. v. II. I. Co.. 107 Mass. 290, 3 Keener 54; Pitelier v. Hennessey, 48 X. Y. 415, 3 Keener 65; ^leNaughten v. Partridge, 11 Oliio 223, 38 Am. Dec. 731, 2 Ames Eq. Jur. 279. § 841 EQUITY JUm.Sl'ItUDEXCE. 420 ■where the mistake is concerning a doubtful, obscure, or unsettled rule, no relief will be granted. In the first place, this proposition, if taken as a general rule, is directly opposed to the fundamental principle upon which the entire doctrine concerning mistakes of Imw is based. The presumption that every person knows the law must necessarily extend to all rules of the law alike. To permit a distinction between rules said to be clear and those claimed to be doubtful would at once open the door for all the evils in the ad- miuistration of justice, which the presumption itself is intended to exclude. In the second place, the proposition finds no support, as a general rule, from the decisions of authority. All the cases in which such language was originally used by the judges, either as a dictum or as the ratio decidendi, were cases arising upon family compromises and settlements,^ which, aL will appear hereafter, are governed by special considerations, whether they involve mistakes of law or of fact. The rule, so far as it may be called a rule, has a very restricted application, and cannot be raised to the position of a general criterion. There are undoubtedly cases, not arising out of family compromises, in which parties ignorant or mistaken concerning their own dear legal rigJits have been relieved; but these will all find another explanation more consonant with principle than the foregoing alleged general rule. i; 847. Mistake of Law Accompanied with Inequitable Conduct of the Other Party.— AVhatever be the effect of a mistake pure and simple, there is no doubt that equitable relief, affirmative or de- fensive, will be granted when the ignorance or misapprehension of a party concerning the legal effect of a transaction in which he engages, or concerning his own legal rights which are to be affected, is induced, procured, aided, or accompanied by inequitable conduct of the other parties. It is not necessary that such inequitable con- duct should be intentionally misleading, much less that it should be actual fraud; it is enough that the misconception of the law was the result of, or even aided or accompanied by, incorrect or mis- leading statements, or acts of the other party. When the mistake of law^ is pure and simple, the balance held by justice hangs even; but when the error is accompanied by any inequitable conduct of the other party, it inclines in favor of the one wdio is mistaken. The scope and limitations of this doctrine may be summed up in the proposition that a misapprehension of the law by one party, of which the others are aware at the time of entering into the trans- action, but which they do not rectify, is a sufficient ground for equitable relief. A court of equity will not permit one party to take advantage and enjoy the benefit of an ignorance or mistake , ^As Naylor v. Winch, 1 h^im. & ^^t. 5.35, 2 Scott o7G. See post. §850. 431 MISTAKE. § 849 of law by the other, which he kncAv of and did not correct. "Whilc- (-(inity interposes under such circumstances, it follows a fortiori tliat v;lien the mistake of law by one i)arty is induced, aided, or accompanied by conduct of the other more positivel}^ inequitable, and containing- elements of wrongful intent, such as misrepresenta- tiiui, imposition, concealment, undue influence, breach of confidence reposed, mental weakness, or surprise, a court of equity will lend its aid and relieve from the eonsecpiences of the error. The decisions illustrating this general rule are numerous, and it will be found that many of the eases in which relief has been granted con- tained, either openly or implicitly, some elements of such inequit- able conduct.^ § 848. Same. Between Parties in Relations of Trust. — A parti- cular application of the foregoing rule requires a special mention. Where an ignorance or misapprehension of the law, even Avithout any positive, incorrect, or misleading words or incidental acts, oc- curs in a transaction concerning the trust between tAvo parties holding close relations of trust and confidence, injuriously affect- ing tJie one who reposes the confidence, equity will, in general, relieve the one who has thus been injured. The relations of trustee and cestui que trust, guardian and ward, and the like, are examples. The relief is here based upon the close confidence reposed, — upon the duty of the trustee to act in the most perfect good faith, to consult the interests of the beneficiary, not to mislead him, and not even to suffer him to be misled, when such a result can be prevent- ed by reasonable diligence and prudence.^ 5; 849. Relief where a Party is Mistaken as to his Own Existing Legal Rights, Interests, or Relations. — Is it possible to formulate any general rule which shall be a criterion for all cases of relief from mistakes of law pure and simple, and without other incidental cii-cumstances, Avhich shall be sustained by judicial authority, and Avhich shall furnish a principle as guide for future decisions? I^i juy opinion, it is possible. It has been shown that where the general law of the land — the common jus — is involved, a pure and simple mistake in any kind of transaction cannot be relieved. Also, where ' (Jee V. Spencer, 1 Vera. 32, 2 Scott 568; Broughton v. Hutt, 3 De Gex & J. 501, .'5 Keener- 32; Wheeler v. Smith, 9 How. 55, 1 Scott 444; Titus v. Rochester G. ins. Co., 97 Ky. 567, 31 S. W. 127, 53 Am. St. Rep. 427, H. & B. 213; Jordan v. Stevens, 51 Me. 78, 81 Am. Dee. 556, H. & B. 188, 3 Keener 38; Green v. Morris, etc., R. Co., 12 N. J. Eq. 165, H. & B. 193, 3 Keener 25; Haviland v. Willetts, 141 X. T. 35, 35 N. E. 958, 2 Ames Eq. .Tur. 273. 3 Keener 144 (an instructive case) ; Moreland v. Atchison, 19 Tex. 303, Shep. 155; Kyh^ v. Fehley. SI Wis. 67, 51 N. \\". 257, 29 Am. St. Rep. 866, 3 Keener 131. ' Hall V. Otterson, 52 X. J. Eq. 522, 28 Atl. 907, 3 Keener 401 ; Ludington v. Patten, 111 Wis. 208, SO X. W. 571. § 849 EQUITY JUEISPRUDEKCE. -L-22 a person correctly apprehends his own legal rights, interests, and relations, a simple mistake as to the legal efi'eet of a transaction into which he enters, in the absence of other deLmnining iacidents, is not ground for relief. There is, as shown in a former paragraph (§841), a third condition. A person may be ignorai4 cr misUken as to his own antecedent existing legal rights, interests, duties^ lia- bilities, or other relations, wdiile he accurately understujds the legal scope of a transaction into which he enters, and its legal effect upon his rights and liabilities. It will be found that the great majoritj', if not indeed all, of the well-considered decisions in which relief has been extended to mistakes pure and simple fall within this class; and also, that whenever cases of this kind have arisen, relief has almost always been granted, although not always on this ground. Courts have felt the imperative demands of justice, and have aided the mistaken parties, although they have often as- signed as the reason for doing so some inequitable conduct of the other party which they have inferred or assumed. The real reason for this judicial tendency is obvious, although it has not always been assigned. A private legal right, title, estate, interest, duty, or liability is always a very complex roncrptiou. It necessarily de- pends so much upon conditions of fact, that it is difficult, if not im- l^ossible, to form a distinct notion of a private legal right, interest, or liability, separated from the facts in which it is involved and upon wdiich it dei)ends. Mistakes, therefore, of a person with re- spect to his own private legal rights and liabilities may be properly regarded, — as in great measure thej^ really are, — and may be dealt with as mistakes of fact. Courts have constantly felt and acted upon this view, though not always avowedly. Lord Westbury openly declares that such misconceptions are truly mistakes of fact. Some \evj instructive remarks of Sir George Jessel, which I have placed in the foot-note, will, with a slight modification of his language, apply to all instances involving this kind of error or ignorance.^ A general rule permitting the jurisdiction of equity 'Eaglesfield v. Marquis of Londonderry, L. R. 4 Ch. Div. 693. 702, 703. The master of rolls is speaking of a misrepresentation of the law affecting a person's jirivate rights, but his language, with slight change, will apply to all cases of ignorance or error concerning one's own private legal interests. In my opin- ion, it suggests the true principle upon which to rest the action of the courts in all such instances. "It was put to me that this was a misrepresentation of law, and not of fact Was it a misrepresentation of law? A misrepre- sentation of law is this: when you state the facts, and state a conclusion of law, so as to distinguish hetween facts and law. The man Avho knows the facts is taken to know the law; but when you state that as a fact which no doubt involves, as most facls do. a conclusion of law. that is still a statement of fact, and not a statement of law. Suppose a man is asked by a tradesman whether he can give credit to a lady, and the answer is, 'You mav: she is a single wo- 423 MISTAKE. § 8 19 to relieve from mistakes of the law pure and simple, in all cases belonging to this species, and confining its operation to them, would at once reduce to clearness, order, and certainty a subject which has hitherto been confessedly uncertain and confused. It would ■work justice, for these kinds of errors stand upon a different foot- ing from all others, and justice and good conscience demand their relief; it would conform to sound i^rinciple, for these mistakes are in part essentially errors of fact; and finally, it would explain and harmonize many decisions of the ablest courts which have hitherto seemed almost inexplicable except by violent and unnatural as- sumptions. I therefore venture to formulate the following general rule as being eminently just and based on principle, and furnishing a simple criterion defining the extent of the jurisdiction. The number of decisions which support it, and which it explains, is very gi'eat. Wherever a person is ignorant or mistaken with respect to his own antecedent and existing private legal rights, interests, estates, duties, liabilities, or other relation, either of property or contract or personal status, and enters into some transaction the legal scope and operation of which he correctly apprehends and understands, for the purpose of affecting such assumed rights, in- terests, or relations, or of carrying out such assumed duties or lia- iiian of large fortune.' It turns out that the man who gave tliat answer knew that the lady had gone through the ceremony of marriage with a man who was believed to be a married man, and that she had been advised that the mar- riage ceremony was null and void, though it had not been declared so by any court, and it afterwards turned out they were all mistaken — that the first mar- riage of the man was void, so that the lady was married. He does not tell the tradesman all these facts, but states that she is single. That is a statement of fact. If he had told him the whole story, and all the facts, and said, 'Now. you see the lady is single,' that would have been a misrepresentation of law. But the single fact he states — that the lady is immarried — is a statement of fact, neither more nor less ; and it is not the less a statement of fact that in order to arrive at it yovi must know more or less of the law. There is not a single fact connected with personal status that does not, more or less, involve a question of law. If you state that a man is the eldest son of a marriage, you state a question of law, because you must know that there has been a valid marriage, and that that man was the first-born son after the marriage, or, in some countries, before. Therefore, to say it is not a representation of fact seems to arise from a confusion of ideas. It is not the less a fact because that fact involves some knowledge or relation of law. There is hardly any fact which does not involve it. If you say that a man is in possession of an estate of ten thousand pounds a year, the notion of possession is a legal notion, and involves knowledge of law; nor can any other fact in connection with property be stated "which does not involve such knowledce of law. To state that a man is entitled to ten thousand pounds consols involves all sorts of law." The decision of the master of rolls in this case was reversed by the court of appeal, but only upnr. a different view of the evidence from that which he took, and without in Jne least affecting the correctness of the observations which I have quoted. § 850 EQUITY JURISrRUDEXCE, 424 biJities, equity will grant its relief, defensive or affirmative, treat- ing the mistake as analogous to, if not identical with, a mistake of fact.- It should be carefully observed that this rule has no ap- plication to cases of compromise, where doubts have arisen as to the rights of parties, and they have intentionally entered into an arrangement for the purpose of compromising and settling those doubts. Such compromises, whether involving mistakes of law or of fact, are governed by special considerations. § 850. Compromises and Voluntary Settlements Made upon a Mistake as to Leg-al Rights. — Compromises, where doubts with re- spect to individual rights, especially among members of the same lamil}^ have arisen, and where all the parties, instead of ascertain- ing and enforcing their mutual rights and obligations which are yet undetermined and uncertain, intentionall.y put an end to all controversy by a voluntary transaction in the way of a compromise, are highly favored by courts of equity. They will not be disturbed for any ordinary mistake, either of law or of fact, in the absence of conduct otherwise inequitable, since their very object is to settle all such possible errors without a judicial controversy. There are, indeed, dicta to the effect that a party will be relieved from a com- promise in which he has surrendered property or other rights un- questionably his own, through a misconception of a clear legal rule, or an erroneous supposition that a legal duty rested upon him, - It is not claimed that all these cases were avowedly decided upon the above rule, although many of them seem to distinctly recognize it. In all of them the error was of the kind described in the text, and the rule will furnish a simple reason why relief was granted, which the judges sometimes failed to ^ords of a distinguished judge: "There must not only be good faith and honest intention, but full dis- closure, and without full disclosure, honest intention is not suffi- cient." If these requisites of good faith exist, it is not necessary that the dispute should be concerning a question really doubtful, if the parties bona fide consider it so; it is enough that there is a fjuestion between them to be settled by their compromise.^ The foregoing rules apply to all cases of compromise, whether the doubt- ful cpiestions to be settled relate to matters of law or of fact.^ § 851. Payments of Money under a Mistake of Law. — The gen- eral rule stated in the paragraph before the last, concerning mis- takes as to one's own private legal rights and duties, is also subject to another important limitation. It is settled at law, and the rule has been followed in equity, that money paid under a mistake of law with respect to the liability to make payment, but with full knowledge, or with means of obtaining knowledge, of all the cii'- cumstances, cannot be recovered back.^ There is an exception, as "See Binorham v. Bineliam. 1 Ve>;. Sr. 126. 2 Ame.s Eq. Jur. 264, 3 Keener 5, 2 Scott ,54.3; Naylor v. Winch, 1 Sim. & St. 555. 2 Scott 576; Titus v. Rochester Ct. Ins. Co., 97 Ky. 567, 31 8. W. 127, 53 Am. St. Rep. 427, H. & B. 213. = Ex parte Lucy, 4 De Gex, M. & G. 356, 3 Keener 14; Hall v. Wheeler, 37 Minn. 522, 35 N. W. 377, 2 Ames Eq. .Jur. 2SS. 3 Keener 99; Gormly v. Gormly. 1.30 Pa. St. 467. 18 Atl. 727, 3 Keener 184. •■•Ex parte Lucy. 4 De Gex, ISL & G. 356. 3 Keener 14. * See post. § 855. 'Rogers v. Ingiiam. L. R. 3 Ch. Div. 351, 3 Keener 75, Sh. 157, 2 Scott 572: Krkens v. Nicolin. 39 Minn. 461. 40 N. W. 567, H. & B. 216, Sh. 152; but see Mansfield v. Lynch, 59 Conn. 320, 22 Atl. 313, 12 L. R. A. 285. If the doctrine § 853 EQUITY JLRISPRUDKXCE. 426 in the case of compromises, when the erroneous payment is induced or accompanied b}^ a violation of confidence reposed, lack of full disclosure, misrepresentation as to liability, or other similar inequit- able conduct. - !^ 852. Second. Mistakes of Facts.— The general doctrine is firmly settled as one of the elementary principles of the equitable jurisdiction, that a court of equity will grant its affirmative or defensive relief, as may be required by the circumstances, from the consequences of any mistake of fact which is a material element of the transaction, and which is not the result of the mistaken party's own violation of some legal duty, provided that no adequate remedy can be had at law. It has been said, "No person can be I)resumed to be acquainted with all matters of fact connected with a transaction in which he engages." This general doctrine is ap- plied in a great variety of forms and under a great variety of cir- cumstances. It presents but few theoretical difficulties; its practical difficulties arise from its application to particular instances of re- lief, and this application must be largely controlled by the circum- stances of each case. i; 853. How Mistakes of Fact may Occur. — All mistakes of fact in agreements executed or executory, express or implied, must be concerning either the subject-matter or the terms. In the first case, the terms are stated according to the intent of both the parties, but there is an error of one or both in respect of the thing to which these terms apply, — its identity, situation, boundaries, title, amount,, value, and the like. Such a mistake may relate to any kind of sub- ject-matter, and may occur in a verbal as well as in a written agree- ment. In the second case, the mistake may arise after the parties have verbally concluded their agreement, and may occur in reduc- ing that agreement to writing, by erroneously adding, omitting or altering some term -^ or it may arise in the very process of making the agreement, during the negotiation itself, one or both the parties misconceiving, misunderstanding, or even being entirely ignorant of some term or provision ; so that, although they appear to have made an agreement, yet in fact their minds never met upon the same mat- formulated in § 849 be correct, then it seems that this particular rule for- bidding the recover^' back of money paid under a mistake of law is based upon an erroneous conception of the principle which should goveni such cases, and the opinions of those jurists which uphold the ricrht of recoveiy appear to be correct in principle. This rule itself is an illustration of the disinclination of equity courts to depart from a doctrine, settled at law, when the rights and the remedies are the same in botli jurisdictions: " See Rogers v. Ingham, supra, per James. L. .T. 'See Citizens' Nat. Bank v. Judy, 140 Ind. 322, 4.3 X. E. 259, 3 Keener 433 j Miles V. Miles (Miss.), 37 South. 112. ^'^i MISTAKE. ^ 854 lers.- While this latter species of error is not infrequent, it gen- erally^ consists in a mistake or ignorance as to the legal ejfeci of the provision, rather than as to the language in which the provision is expressed. The same description will plainly apply to all forms of mistakes of fact in transactions which are not agreements. 5; 854. In What Mistakes of Fact may Consist. — It would be impossible, within any reasonable limits, to enumerate the various forms in which mistakes of fact may appear. . . . Tlie law of a foreign country or of another state is always regarded as a "fact," M-ithin the meaning of the term as used in the foregoing descrip- tion ; an error or ignorance concerning such law is therefore a mis- take of fact.^ It necessarily follows from this description that where an act is done intentionally and with knowledge, the doing the act cannot be treated as a mistake. Thus if parties knowingly and intentionally add to or omit from their Avritten agreement a certain provision, such adding to or omission cannot coiistitute a mistake, so as to be a ground for relief. ^ - Crookston Imp. Co. v. Marshall, 57 Minn. 333, 47 Am. St. Rep. G12, .59 N. VV. 294. 'Haven v. Foster, 9 Pick. Ill, 112; 19 Am. Dee. 353; Patterson v. Bloomer, 35 Conn. 57, 95 Am. Dec. 218, 2 Keener 956. ^ ITie exact import of This rule should not be misapprehended. The parties may be in error as to the legal effect of the addition or omission; this would be a mistake of law which, as has been shown, would not be relieved. They might also be mistaken as to the subject-matter of the provision added or omitted, or possibly as to its language, and such an error might be a mistake of fact. The rule of the text simply declares that when an act is done inten- tionally and knowingly, the very doing itself cannot be treated as a mistake entitled to relief; the elements of knowledge and intention contradict the es- sential conception of mistake; See Lord Imham v. Child, 1 Brown Ch. 92, 2 Scott 256. \\'here a verbal stipulation is made at the same time as the written contract, and is omitted intentionally on the faith of an assurance that it shall be as binding as though incorporated into the writing, the rule as generally settled does not permit such provision to be proved and enforced. It is said that, there being no fraud or mistake, to allow the verbal term to be proved by parol evidence, and the written agreement to be thereby varied, would be a violation of the statute of frauds, and would introduce all the evils which the statute was designed to prevent. The relief given in cases of fraud and mis- take stands upon different grounds; although appearing to conflict with the statute, it is really carrying out the ultimate purposes of the legislature by preventing injustice. Xo such grounds, it is said, exist where parties have intentionally omitted provisions from their written agreements. See Broughton V. Coffer, 18 Graft. 184. Hall v. First Nat. Bank, 173 Mass. 16, 53 N. E. 154. 73 Am. St. Rep. 255. 44 L. R. A. 319. There are cases, however, which seem to reject this conclusion, and allow the verbal stipulation to be proved and enforced, and the Avritten agreement to be reformed, on the ground that the refusal to abide by the whfvle agreement, and the altempt to enforce that portion only which is written, constitute a fraud which efpiity ought to prohibit; See Coger's Ex'rs v. § 8r)(; EtiUlTY JUKISPI^IUDEXCK. 4'38 § 855. Compromises and Speculative Contracts. — When parties have entered into a contract or arrangement based upon uncertain or contingent events, purposely as a compromise of doubtful claims arising from them, and where parties have knowingly entered into a speculative contract or transaction. — one in which they inten- ti(;nally speculated as to the result, — and there is in either case an absence of bad faith, violation of confidence, misrepresentation, c()ncealment. and other inequitable conduct mentioned in a former I)aragraph, if the facts upon which such agreement or transaction was founded, or the event of the agreement itself, turn out very different from what was expected or anticipated, this error, mis- c;ilcnlation, or disappointment, although relating to matters of fact, and not of law, is not such a mistake, within the meaning of the equitable doctrine, as entitles the disappointed party to any relief eitlier l)y Avay of canceling the contract and rescinding the trans- action, or of defense to a suit brought for its enforcement. In such classes of agreements and transactions, the parties are supposed to calcnlate the chances, and they certaiidy assume the risks, where there is no element of bad faith, breach of confidence, misrep- resentation, culpable concealment, or other like conduct amounting to actual or constructive fraud. ^ ;; 856. Requisites to Relief — Mistake must be Material and Free from Culpable Negligence. — There are two requisites essential to the exercise of the e(iuitable jurisdiction in giving any relief de- fensive or affirmative. The fact concerning which the mistake is made nuist be material to the transaction, affecting its substance, {'nd not merely its incidents; and the mistake itself must be so im- portant that it determines the conduct of the mistaken party or parties. If a mistake is made by one or both parties in reference to some fact which, though connected with the transaction, is mere- ly incidental, and not a part of the very subject-matter, or essential to any of its terms, or if the complaining party fails to show that his conduct was in reality determined by it. in either case the mistake will not be ground for any relief affirmative or defensive.' I\Ic(;('c. 2 Bibb, .321 ; ^ Am. Dec. GIO. Whether aOinnative relief be peniiitted or not, the omitted verbal portion of the entire agreement may be set up by way of defense in equity, when an attempt is made to enforce the written part alone: Jervis v. Berridge, L, R. 8 Ch. S.jl (a very important case) ; and see IMnrray v. Dake, 46 Cal. 644. ' Stapleton v. Stapleton, 1 Atk. 2. 2 Lead. Cas. Eq.. 4th Am. ed. 1070: Baxen- dale V. Scale. 10 Beav. 601. 2 Keener 043: Cliicaiio & X. W. R. Co. v. Wilcox. (C. V. A.) 110 Fed. 013 (full and able discussion). As to requisite of good faith, see Anthony v. Boyd. 1.'^ B. T. 495, 8 All. 701. 10 All. 0.17. ^Dambmann v. Sciiulting. "n X. Y. 5.5, 03. 3 Keener 202. IT. & B. 227: Sim- mons v. Palmer. 03 \'a. 380. 25 S. E. 6. 3 Keener 303; Kowalke v. Milwaukee E. 429 Mis'JAKE. § 850 As a second retiuisite, it has somelinies been said in very general tt'inis that a mistake residting from the complaining j)arty's own negligence will never be relieved. This proposition is not sustained by the authorities. It would be more accurffte to say that wliei'c the mistake is wholly caused by the want of that care and diligenci' in the transaction wdiich should be used by every person oi:' reason- able prudence, and the absence of which would be a violation of legal duty, a court of equity will not interpose its relief; but even with this more guarded mode of statement, each instance of negli- gence must depend to a great extent upon its own eircumstances.- It is not every negligence that will stay the hand of the court. The conclusion from the best authorities seems to be. that the neglect must amount to the violation of a positive legal duty. The highest possible care is not demanded. Even a clearh^ established negligence may not of itself be a sufficient ground for refusing relief, if it appears that the othei" party has not been prejudiced thereby.^ In addition to the two foregoing requisites, it has been said that ecpiity would nevei' givt? any relief from a mistake, if the party could by reasonable dili- gence have ascertained the real facts; nor where the means of information are open to both parties and no confidence is reposed ; nor unless the other party was under some obligation to disclose the facts known to himself, and concealed them. A moment's re- flection will clearly show that these rules cannot possibly apply to all instances of mistake, and furnish the pre-reqnisites for all species of relief.* Theii' operation is, indeed, quite narroAV; it is confined to the single relief of cancellation, and even then it is restricted to certain special kinds of agreements.^ R. & L. Co., 103 \^is. 472, 79 X. W. 762, 74 Am. St. Eep. 877, 2 Scott 603 (pood discussion) . -Western R. R. v. Babcock, 6 Met. 346, 2 Keener 937: Dinian v. riovidence R. R. 5 R. 1. 130, 3 Keener 2.'>6; Penny v. ]\Iartin, 4 Johns. Ch. .)66. 1 Scott 454; Seeley v. Bacon (X. J. Eq.), 34 Atl. 139, 3 Keener 139.. Executing an instru- ment \vithout reading it; negligence held fatal, Kennerty v. Phosphate Co., 21 S. C. 226, 53 Am. Rep. 669; held not fatal; Albany City Sav. Inst. v. Burdick. 87 X. Y. 39, 3 Keener 378: Palmer v. Hartford Ins. Co., 54 Conn. 488. 9 Atl. 248, 3 Keener 317; Hitchens v. Pettingill, 58 X. H. 3, 2 Ames Eq. Jur. 307, 2 Scott (;27, 3 Keener 1145. Carelessness excused by illiteracy: Kinney v. Ensmcngcr. 87 Ala. 340, 6 South. 72. 2 Scott 633. ■•^ Kinney v. Ensmenger, 87 Ala. 340. 6 South. 72. 2 Scott 633 (quoting tcxIK M\elly V. Solari, 9 :Meps. & \V. 54: PoAvell v. Heisler. 16 Or. 412. 19 Pac lO't ((]n()0 (surprise). § 860 EQUITY jrKlSPRUDENCE. 432 defendant's own, or that of his aaent. and for which the plaintiff is not directly or indirectly responsible, may be proved in defense, j'.ud may defeat a specific performance. This is indeed the very essence of the equitable theory concerning- the nature and effect of mistake.-" A mistake thus set up by the defendant is not merely a ground of defense, of dismissing the suit. If the plaintiff alleges a written agreement, and demands its specific performance, and the defendant sets up in his answer a verbal provision or stipuhi- tion, or variation omitted by mistake, surprise, or fraud, and sub- mits to an enforcement of the contract as thus varied, and clearly proves by his parol evidence that the written contract modified or varied in the manner alleged by him constitutes the original and li'ue agreement made by the partiec, the court may not only reject the plaintiff' 's version, but may adopt that of the defendant, and may decree a specific performance of the agreement with the parol variation upon the mere allegations of his answer, without requir- ing a cross-bill. The court will either decree a specific execution of the contract thus varied by the defendant, or else, if the plaintiff' refuses to accept such relief, will dismiss the suit.* Under the old chancery practice, the action of the court in such cases seemed to have been discretionary. Under the reformed procedure, which permits affirmative relief, either legal or equitable, to be obtained by defendants through a counterclaim, such a decree, under proper pleadings, is doubtless a matter of course and of right. Even where •" Malins v. Freeman, 2 Keen 25, 1 Ames Eq. Jur. 383, 2 Keener 033, 2 Scott 272; Manser v. Back, 6 Hare 443, 2 Scott 274; Webster v. Cecil, 30 Beav. G2. 1 Ames Eq. Jur. 382, 2 Keener 954, 2 Scott 279: Day v. Wells, 30 Beav. 220. 1 Ames Eq. Jur. 380, 2 Keener 951. Jn applyino; these rules of the text it may be laid clown as a general proposition that wlierever, in the description of the subject-matter or in the terms and sti]inlations, a written agreement is ambiguous, so that the defendant may reasonaljly have been mistaken as to tlie subject-matter or terms, or is susceptible of different constructions, so lliat upon one construction it would have an effect which the defendant may be reasonably supposed not to have contemplated or intended, or so that the defendant may have reasonably put a different construction upon it from that which was understood by the plaintiff, in either of these cases a specific per- formance Mill be tlenied at the instance of tlie defendant, on the ground that it is inequitable to enforce the apparent agreement, when he has shown that there was no real meeting of minds, no common assent upon the same matters: Swaisland v. Dearsley, 29 Beav. 430, 1 Ames Eq. Jur. 376; Denny v. Hancock, L. R. (i Ch. App. 1, 2 Keener 909; Calverly v. Williams, 1 Ves. 210. 2 Scott 2'59. ,For cases where the defendant's mistake Avas not a defense, on account of his culpable negligence in making inquiries, or because it did not affect a vital part of the contract, see Tamplin v. James. L. B. 15 Ch. Div. 215, 1 Ames Eq. Jur. 388. 2 Keener 979. 2 Scott 277: Western B. B. Co. v. Babcock, « Met. 340. 2 Keener 937: r'aldwcll v. Depcw. 40 :\Iinn. 528. 42 X. \Y. 479, 2 Keener 1000. "Bedfield v. (Heason. 01 Vt. 220. 17 Atl. 1075. 15 Am. St. Rep. 889. quoting te.xt ; Bradford v. Tnion j'anl--, 13 flow. 57. SIi. 259. 433 :mi.s'jak];. >^ s6'ental notions, equity and conscience, or good faith. The first of these embraced all cases where a party, acting according to the rules of the law, and not doing anything contrary to conscience or good faith, might obtain an undue advantage over another, which, though strictly legal, equity would not permit him to retain. The second embraced all those cases where a party, although perhaps still keeping within the limits of the strict law, so as to be sustained by the law courts, had committed some unconscientious act or iji'each of good faith, and had thereby obtained an undue advantage over another, which advantage, even though legal, equity would not suffer him to retain. The relief given by equity in all cases of fraud is plainly referable to this second head of the original juris- diction. Every fraud, in its most general and fundamental con- ception, consists in obtaining an undue advantage by means of some act or omission which is nneonscientious or a violation of good faith in the broad meaning given to the term by equity, — the bona fides of the Roman law. Furthermore, it is a necessary part of this conception that the act or omission itself, by which the undue advantage is obtained, should be irillfuJ; in other words, should be knowingly and intentionally done by the party; but it is not essential in the equitable notion, although it is in the legal, that there should be a knowledge of and an intention to obtain the muhie advantage which results. The willfulness of the act or omission is the element which distinguishes fraud from other matters by Avhich an undue advan- tage may be obtained so as to furnish an occasion for the equitable .iurisdiction. Thus it has been shown that in accident an occurrence e.riernal to the parties happens without any intent or other mental condition, and an undue advantage thereby accrues to one of them.^ In mistake ];here is indeed a mental condition or conviction of the tniderstanding, but it wholly results from ignorance or misappre- ' Vol. 1 § 5o. ■ See § 823. 4 la ACTUAL FRAUD. § 875 hcnsion, and prevents the fn'o action of llie will ; there is, therefore, a complete absence of willfulness or intention in the due and legal meaning' of those terms.'' In all phases of fraud, on tlie otlier hand, there is a mental condition, a conviction of the understanding, a free operation of the will, and an intention to do or omit the very- act by which the undue advantage is obtained. The following de- scription is perliaps as complete and acc-nrate as can be given so as to embrace all the varieties recognized by equity: Fraud in equity includes all willful or intentional acts, omissions, and con- cealments which involve a breach of either lesal or equitable duty, trust, or confidence, and are injurious to another, or by which an undue or unconscientious advantage over another is obtained. § 874. Four Forms and Classes of Fraud in Equity.— In the lead- ing and celebrated case of Earl of Chesterfield v. Janssen, Lord ITardwicke, while not attempting to formulate any general defini- tion, arranged all the forms of fraud recognized by equity in four classes, — a division based upon their instrinsic qualities, and which has been followed by nearly all subsequent writers and judges. These classes are: 1. Frauds which are actual, arising from facts and circumstances of imposition : 2. Frauds apparent from the in- trinsic nature and subject of the bargain itself; 3. Frauds presumed from the circumstances and condition of the parties; 4. Frauds v>'hich are an imposition and deceit on third persons not parties to the transaction.- In pursuance of the order, which seems to be simple and natural. T shall include and treat under the description of actual fraud those cases only which belong to the first of these four classes. In all of them, and this seems to be the essential dis- tinction between actual and constructive fraud, there is the element of falsity in fact, and the knowledge of the falsity and the intention to deceive in a mocllfrd and partial manner at least, in equity no less than in the law. In the three other classes there is no necessary element of falsity in fact, and the fraud in each of them arises rather from motives of expediency and policy than from any intent of the parties. § 875. Nature of Actual Fraud. — Although it is not possible to give any complete definition of fraud, yet it is possible to describe the various elements which are essential to the conception of actual fraud. In the vast majority of instances, actual fraud occurs in negotiations or dealings which are incidents of some agreement, executed or executory. Even in transactions whicli are not auree- monts. such as the execution of a will, the operation and effect of * See § 830. 'Earl of Chesterfield v. Janssen, 2 Ves. Sr. 125, 1 Atk. 301, 1 Lead. Cas. Eq. 4th Am. ed. 773, 1 Scott 455. § 877 EC2U1TY JUKISPRUDENOE. 444 fraud are the same as iu the ease of agreements. There are un- tloubtedly some special traiisaetioiis capable of being affected by fraud, which cannot readily be brought within this general de- scription, — as, for example, the fraudulent obtaining of a judgment at law. These special cases will be considered by themselves. With all these varieties of external form, actual fraud in the numberless agreements, transactions, and dealings of mankind may, in its in- trinsic Mature, be reduced to two essential forms, — false rejiresenta- tion and fraudulent concealments, — suggestio falsi and suppressio veri. The discussion of actual fraud mainly consists, therefore, in analyzing these two forms and in determining their necessary con- stituents. §876. First* Misrepresentation^. — A misrepresentation, in or- der to constitute fraud, must contain the following essential ele- ments: 1. Its form as a statement of fact; 2. Its purpose of in- ducing the other party to act ; 3. Its untruth ; 4. The knowledge or belief of the party making it; 5. The belief, trust, and reliance of the one to whom it is made ; 6. Its materiality. These elements will be examined separately. § 877. I. The Form — An Affirmation of Fact. — A misrepresen- tation must be an affirmative statement or affirmation of some fact, in contradistinction to a concealment or failure to disclose, and to a mere expression of opinion.^ In the great majority of instances it is made by means of language written or spoken ; but it may con- sist of conduct alone, of external acts, when, through this instru- mentality, it is intended to convey the impression, or to produce tlie conviction, that some fact exists, and such result is a natural consequence of the acts.- A misrepresentation of the law is not considered as amounting to fraud, because, as it is generally said, 'Hough V. Richardson, 3 Story 659, Fed. Cas. Xo. 6,722; Perkins v. Part- ridge, 30 N. J. Eq. 82, Shep. 171. Mt was so held in Lovell v. Hicks, 2 Younge & C. 46, where fictitious and fraudulent experiments were performed, so as to induce a party to enter into a contract concerning a patent right. The point is also illustrated by Denny v. Hancock, L. R. 6 Ch. 1, 2 Keener 1)69, although tlie decision was vested upon misdescription rather tlian fraudulent misi-epresentation. A pur- chaser was so misled as to their boundaries, by the appearance of the grounds, that the contract was not enforced. This was. of course, a mistake of his; but the mistake consisted of his obtaining from the appearance an impression which was natural, but was at the same time contrary to the real fact ; the appearance thus operated as a misdescription. When two parties have made an agreement, and in reducing it to writing, one of them knowingly alters it in a material manner, and procures the other to execute or to accept the writing in ignorance of the alteration, this conduct is fraud: Rethell v. Betliell, 92 ind. 318; Kilmer v. Smith, 77 N. Y. 226, 33 Am. Rep. 613, 3 Keener 283. 445 ACTUAL FRAUD. j^ 878 all persons are presumed to know the law; and it might perhaps be added that such a statement would rather be the expression of an opinion than the assertion of a fact.^ A statement of intention. merely cannot be a misrepresentation amounting to fraud, since suol- a statement is not the affirmation of any external fact, but is, a1 most, only an assertion that a present mental condition or opinion exists.* That the fact, however, concerning which the statement is made is future does not of itself prevent the misrepresentation from being fraudulent. Tlie statement of matter in the future, if affirmed as a fact, may amount to a fraudulent misrepresentation, as well as a statement of a fact as existing at present.^ § 878. Misrepresentation of Matter of Opinion. — Since the very corner-stone of the doctrine is that the statement must be an affirm- ation of a fact, it has sometimes been said, but very incorrectly, that a misrepresentation cannot be made of a matter of opini. .12 .\iii. V.o]). 200. See post, §881. 'Jpiiniiitrs V. Brouo-htoli. •") Dc nos. M. & G. 120. 130. See, also, §§890, 898. 'Traill V. JJarinir. 4 De (Jox, .1. & S. 318, 320, 328. § 861 EQUITY JLIUSPRUDENCE. 448 will be inferred from the uatural and necessary consequences, - It is not necessary that all the representations by -which a party is induced to act should be untrue. The cases hold that where certain statements have been made all in their nature capable, more or less, of leading the party to whom they are addressed to adopt a particular line of conduct, and any one of them is untrue, the whole contract or other transaction is considered as having been obtained fraudulently; the court cannot discriminate among the different statements, nor say that the untrue representa- tion is not the very one which induced the party to act. The fore- going general proposition, that it is sufficient if the statement is of such a character as would naturally induce any ordinary per- son to enter upon a particular line of conduct, and is actually fol- lowed by such conduct, is the practical rule by which the courts determine whether a misrepresentation possesses the particular element of fraud — the purpose or design — now under considera- tion." § 881. False Prospectuses, Reports, Circulars, and the Like. — The iiature of fraudulent misrepresentations, their requisite element of being designed and naturally operating to induce third persons to act, and other important features are so fully illustrated by the rules concerning the effect of prospectuses, circulars, reports, and other similar documents issued by the promoters, directors, or officers of corporations, as established by ver^- recent decisions, that a brief statement of these rules may be proper. I do not intend at present to consider the general subject of the relations subsisting between corporations, or their directors or officers, on the one side and stock- holders, creditors, or third persons dealing with them on the other, but simplj" to give the conclusions which have been settled by the courts concerning the effect of such documents, published by or in the name of the companj-, addressed to all whom they may con- cern, which have misled third persons, and induced them to pur- chase shares of stock in the corporation. These conclusions ca'i- not be better expressed than in the very language which has been used by eminent judges: "Those Avho issue a prospectus, holding out to the public the great advantages which accrue to persons who will take shares in a proposed undertaking, and inviting them to take shares on the faith of the representations therein contained, -'Torrance v. Bolton, L. E. 8 Ch. 118, 14 Eq. 124; National Exch. Co. v. Drew, 2 Maoq. 10.3; Reyneli v. .Spiye, 1 De Gex, M. & G. 660. ^ It may be observed that the two requisite elements of a fraudulent misrep- resentation which have been examined — that the representation must be an aflirmation of fact, and the design of inducing the other party to act — are recognized and adopted alike by courts of law and of equity; decisions at law may therefore be properly cited to illustrate these two requisites in equity. 449 ACTUAL FRAUD. § 881 are bound to state everything with strict and scrupulous accuracy. and not only to abstain from stating as fact that which is not so. but to omit no one fact within their knowledge the existence of which might in any degree affect the nature, or extent, or cjuaiity of the privileges or advantages which the prospectus holds out as inducements to take shares."^ "While niei-e exaggerated views of the prospects and advantages of the company contained in a pros- pectus, circular, or report might not be fraudulent, still all vState- ments should be fair, bona fide, and honest.- "If it can be shown that a material representation which is not true is contained in the prospectus, or in any document forming the foundation of the contract between the company and the share-holder, and the share- holder comes within a reasonable time, and under proper circum- stances, to be released from that contract, the courts are bound to relieve him from it. Contracts of this description between an individual and a company, so far as misrepresentation or suppres- sion of the truth is concerned, are to be treated like contracts between any two individuals."^ It is settled, therefore, that a person who has been induced by the misrepresentations of such documents to purchase shares of stock or to enter into a contract with the company for their purchase may, if he acts without delay upon learning the truth, obtain relief against the company, either by being struck off from the list of stockholders and contributaries in the proceeding instituted for its winding up and final settlement, or by means of an equitable suit brought against the company for the purpose of rescinding his purchase or shares, and of recover- ir;g back the money which he paid for them. He may even, in a proper case, obtain relief against the fraudulent directors person- ally by means of an equitable suit for an accounting and repay- ment of the money, or by means of an action at law for the re- covery of damages on account of the deceit.* Relief against the directors personally requires a much stronger case of fraud than relief against the company. The purchase of shares may be set aside, and the purchaser relieved from his liability as a contribu- tory, Avithout any knoMdedge of the untruth on the part of those who issued the document. Recovery from the directors personalh' ^Xpw Brunswick, etc.. Pv'y v. :Mu,n:jreridore. 1 Drew. & S. .'^03. .381. per Kindersley, V. C. -Kisch V. Cent. Ry. of Von.. .3 Dp (lo\. J. & S. 122. 135. por Tiirnpr. L. .T. : Denton v. Macneil. L. Pv. 2 Eq. 352. Mn re Reese River Mining Co., L. R. 2 Ch. 004, 009, per Turner. L. J. *See cases in last three notes: Peek v. Gurney. L. R. 13 Eq. 79; Mulliol- land V. Washington Match Co. (Wash.), 77 Pac. 407. Relief refused on Cabot V. Christie, 42 Vt. 121. 1 Am. Eep. 313; Fisher v. Mellen. 103 ^lass. .503 (asserting as fact known to the party what is only opinion). 'Jennings v. Broughton, 5 Do Ge\, M. & G. 12fi. K^O : Sontlicrn Dcvclopiiiont Co. V. Silva. 125 V. S. 247. R Snp. Ct. 881. H. & T5. 282. -Eawlins v. Wickham, 3 De Hex & J. 304; Pnlsford v. Ricliards. 17 Beav. 87. !)4, 2 Scott 001 : Smith v. Richards. 13 Pet. 20. 2 Scott 0.52. 3 Keener 52.5. 'Wakeman v. Dalley, 51 N. Y. 27, 10 Am. Rep. 551; Marsh v. Falker, 40 N. Y. 502, 500. § 889 EQUITY JLTRISPRUDEXCE. 454 such au untrue statement is made in the honest belief of its truth, so that it is the result of an innocent error, and the truth is afterwards discovered by the person who has innocently made the incorrect representation, if he then sutlers the other party to continue in error, and to act on the belief that no mistake has been made, this, from the time of the discovery, becomes, in equity, a fraudulent representation, even though it was not so origi- nally.- 6. Finally, if a statement of fact, actually untrue, is made by a person who honestly believes it to be true, but under such circumstances that the duty of knowing the truth rests upon him, which, if fultilled. would have prevented him from making the state- ment, such misrepresentation may be fraudulent in equity, and the person answerable as for fraud; forgetfulness, ignorance, mistake, cannot avail to overcome the pre-existing duiij of knowing and telling the truth. ■• § 889. Requisites of a Misrepresentation as a Defense to the Spe- cific Enforcement of Contracts in Equity. — In setting up a material misrepresentation to defeat the specific perfornumce of a contract, the element of a scienter, of knowledge, of belief with or without reasonable grounds, or of intent, is wholly unnecessary and im- material. So far as this most essential element of a fraudulent misrepresentation is concerned, it is sufficient to defeat a specific performance that the statement is actually untrue so as to mislead the party to whom it is addressed; the party making it need not know of its falsity, nor have any intent to deceive; nor does his belief in its truth make any difference. With respect to its effect upon the specific performance of a contract, a party making a statement as true, however honestly, for the purpose of influencing the eonduct of the other party, is bound to know that it is true, and must stand or fall by his representation.^ The point upon which the defense turns is the foci of the other party having been misled by a representation calculated to mislead him, and not the existence of a design to thus mislead. It follows as a plain consequence of this general doctrine that if a party makes a misrepresentation, whereby another is induced to enter into an agreement, he cannot escape from its effects by alleging his forgetfulness at the time of -Traill v. IJarini;. 4 De Gex, J. & S. .318. :V20. .3:!0, per Turner. L. J. Rescission for innocent misrepresentations, believed by llif ]iarty wlio was induced by them to act, is tantamount to rescission for mutual mistake, and is freely granted; see, for example. Weise v. (irove, (Iowa) 09 N. W. 191, and cases cited. •' Burrowes v. Locke. 10 Ves. 470. 47.1, 1 Scott o.59 : Traill v. Baring. 4 P** Gex, .). &. S. .318. 829. 330: I'rewilt v. Triml)l(-. 92 Ky. 170. 36 Am. St. hep. 580, 17 S. W. 3r)6. H. & B. 2S7. 'Wall V. Stubbs, 1 Madd. 80. 1 Ames Eq. -hir. 302, 2 Scott 239: Ponnybackcr V. Laidley, 33 W . Va. 024, li S. E. 39; Holmes' App. 77 Pa. St. 50, Sh. 100. 4rir) ACTUAL FRAUD. ji SiJl the actual i'acts.- Where the misrepresentation does not extend to the entire scope of the agreement, or even to any one of its most important parts, but relates merely to some incidental, subordi- nate, or collateral feature of it, the court, instead of denyint;^ all relief to the plaintift', may direct a specific performance, with an abatement of the price, or other form of compensation, to the defendant. Of course, when the representation is so coupled with knowledge, or want of belief, or intent, as to constitute actual fraud in any of its phases, it will a fortiori defeat the remedy of specific performance. §890. V. Effect of the Representation on the Party to Whom It is Made — His Reliance upon it. — Another element of a fraudulent 3nisrepresentation, without which there can be no remedy-, legal or equitable, is, that it must be relied upon by the party to whom it is made, and must be an immediate cause of his conduct which alters his legal relations. Fnless an untrue statement is believed and acted upon, it can occasion no legal injury. It is essential, therefore, that the party addressed should trust the reprecentation, and be so thorough]}^ induced by it that, judging from the ordinary experience of manlvind, in the absence of it he would not, in all reasonable probability, have entered into the contract or other transaction.^ It is not necessary that the false representation should be the sole inducement; others may concur with it in influencing the party. Where several representations have been made, and one of them is false, the court has no means of determining, as was well said by Lord Cranworth, that this very one did not turn the scale.- The misrepresentations must, however, be concerning something really material. Statements, although false, respecting matters utterly trifling, which cannot affect the value or character of the subject-matter, so that if the truth had been known the party would not probably have altered his conduct, are not an occasion for the interposition of equity." § 891. The Party must be Justified in Relying on the Representa- tion, — The foregoing requisite, that the representation must be relied upon, plainly includes the supposition that the party is justified, under all the circumstances, in thus relying upon it. This branch = Burrowes v. Locke, 10 Ves. 470, 47G, 1 tScott 559; Trice v. Macaulay, 2 De Cex, M. & Li. 3.39. The same is true in suits for rescission and other relief based upon actual fraud. 'Attwood V. Small, G Clark & F. 2.32, 447: Pulsford v. Richards, 17 Beav. 87. 96, 2 Scott 661; Slaughter's Adm'r. v. Gerson, 13 Wall. 379, 2 Scott 721; Hicks V. Stevens, 121 111. 180, 11 N. E. 241, H. & B. 273, 3 Keener GW. = See ante, § 880; Reynell v. Sprye, 1 De Gex, M. & G. 660, 708. 709; Hicks v. Stevens, 121 111. ISO, 11 X. E. 241. H. & B. 273, 3 Keener Ol."). *Percival v. Harger, 40 Iowa 280. See, also, SS 879, 898. § 891 EQUITY JUKLSrEUDEXCE. 456 (/f the rule presents by far the greatest practical difficulties in the decision of cases, because, although the rule is well settled, and is most clearly just, its application must depend upon the facts of each particular case, and upon evidence which is often obscure and conflicting. In determining the etfect of a reliance upon repre- sentations, it is most important to ascertain, in the first place, whether the statement was such that the party was justified in rely- ing upon it, or was such, on the other hand, that he was hound to inquire and examine into its correctness himself. In respect to this alternative, there is a broad distinction between statements of fact which really form a part of, or are essentially connected Avith, the substance of the transaction, and representations whicli are mere expressions of opinion, hope, or expectation, or are mere ueneral commendations. It may be laid doAvn as a general propo- sition that where the statements are of the first kind, and especially where they are concerning matters which, from their nature or situation, may be assumed to be within the knowledge or under the power of the party making the representation, the party to whom it is made has a right to rely on them, he is justified in rely- ing on them, and in the absence of any knowledge of his own, or of any facts which should arouse suspicion and cast doubt upon the truth of the statements, he is not bound to make inquiries and examination for himself. It does not, under such circumstances, lif in the mouth of the person asserting the fact to object or com- plain because the other took him at his word; if he claims that the other party was not misled, he is bound to show clearly that such party did know the real facts; the burden is on him of re- moving the presumption that such party relied and acted upon his statements.^ The rule is equally well settled with respect to the .second alternative. Where the representation consists of general commendations, or mere expressions of opinion, hope, expectation, and the like, and where it relates to matters which, from their na- ture, situation, or time, cannot be supposed to be within the knowl- edge or under the power of the party making the statement, the party to whom it is made is not justified in relying upon it and assuming it to be true; he is bound to make inquiry and examina- tion for himself so as to ascertain the truth; and in the absence of evidence, it wnll be presumed that he has done so, and acted upon the result of his own inquiry and examination." Any representa- ' Dyer v. Hargrave, 10 Ves. 505, 1 Ames Eq. Jur. 245; Wall v. Stubbs, 1 Madd. 80, 1 Ames Eq. Jur. 362, 2 Scott 239; Hicks v. Stevens, 121 111. 186, 11 N. E. 241, H. & B. 273, 3 Keener 615; and especially Redovave v. Ilind, L. R. 20 Ch. Div. 1, 13, 14 et seq., 2 Keener 896, Sh. 173. - Trower v. Newcome, 3 ]\Ier. 704, 2 Scott 238, 1 Ames Eq. Jur. P,')2, 2 Keener 457 ACTUAL riJAL'D. j M'-i tion, in order that one may be justified in lelyiug upon it, must be, in some degree at least, reasonable; at all events, it must not be so selt'-eoutradietory or absurd that no reasonable man could believe it. It must not, also, be so vague and general in its terms that it conveys no certain meaning.'' § 892. When He is or is not Justified in Relying. — As a generali- zation from the authorities, the various conditions of fact and circumstance with respect to the question how far a party is justi- fied in relying upon the representation made to him may be reduced to the four following cases, in the first tlii'ce of which the pai-ly is not. while in the fourth he is, justified in relying upon the state- ments which are offered as inducements for him to enter upon cer- tain conduct. 1. "When, before entering into the contract or other transaction, he actually resorts to the proper means of ascertain- in.g the truth and verifying the statement ; 2. When, having the opportunity of making such examination, he is charged with the knowledge which he necessarily would have obtained if he had prosecuted it with diligence; 3. When the representation is con- cerning generalities equally within the knowledge or the means of acquiring knowledge possessed by other parties; 4. But when the representation is concerning facts of wdiich the party making it has, or is supposed to have, knowledge, and the other party has no such advantage, and the circumstances are not those described in the first or the second case, then it will be presumed that he relied on the statement; he is justified in doing so.^ § 893. Information or Means of Obtaining Information Possessed by the Party Receiving the Representation. — I purpose to examiiu' under this head the first two cases mentioned in the foregoing sum- mary; they are the ones which present by far the greatest practical difficulties in the administration of justice. If. after a representa- tion of fact, however positive, the party to whom it was made insti- tutes an inquiry for himself, has recourse to the proper means nl" obtaining information, and actually learns the real facts, he cannot 882: Scott v. Hansou, 1 Sim. 13, 1 Russ. & M. 128, 2 Keener 887, 1 Ames Eq. .hir. o.i;], 2 IScott 240; Southern Development Co. v. Silva, 125 U. S. 247. S Sup. C't. 881, H. & B. 282. ■ Trower v. Newcome, 3 Mer. 704, 1 Ames Va[. Jur. 352, 2 Keener 882, 2 Scott 2;?S. M'lapham v. Shillito, 7 Beav. 140, 140, 150. The author's classificalioii is quoted in Farnswortli v. Dutfner, 142 U. S. 43, 12 Sup. Ct. 164, 3 Keener (121 by Mr. Justice BrcAver. The third and fourth cases in the text above are dis- cussed in the preceding paragraph (S 801). 'i'he first and second are in rciilily only one: they involve the same juiiiciplc, and the only difTerence between tlicin is in tlie mode of proof — a ff^ct being direct ly proved by direct evidence in the first, which is irresistibly inferred by a legal presumption in the second. § 894 EQUITY JURISPRUDENCE. 458 claim to have relied iii)Oii the misrepresentation and to have been misled by it. Such claim would simpl^^ be untrue. The same re- sult must plainly follow when, after the representation, the party receiving it has given to him a sufficient opportunity of examining into the real facts, when his attention is directed to the sources of information, and he commences, or purports or professes to com- mence, an investigation. The plainest motives of expediency and of justice require that he should be charged with all the knowledge which he might have obtained had he pursued the inquiry to the end with diligence and completeness. He cannot claim that he did not learn the truth, and that he was misled.^ §894. Knowledge Possessed by the Same Party— Patent De- fects. — The same principle is applied under a somewhat different condition of circumstances. If the party receiving a misrepresenta- tion is, at the time when it is made, either from knowledge ac- (luired previously or obtained at that very moment, fully aware of the truth, acquainted with the facts as they really are, he cannot claim to be misled, and cannot defeat or disaffirm or rescind the transaction on the ground that it was entered into through false representations. The ease of patent defects is merely an application of this equitable doctrine. If, in a contract of sale or of leasing, representations are made by the vendor concerning some incidents, (|ualities, or attributes of the subject-matter which are open and visible, so that the falsity of the .statement is patent to any ordinary observer, and it is made to appear that the purchaser, at or shortly before the concluding the contract, had seen the thing itself which constitutes the subject-matter, then a knoAvledge of the facts is chargeable upon such party ; he is assumed to have made the agree- ment knowingly, and cannot allege that he was misled bv the false representations.^ This special rule concerning patent defects requires that the thing concerning which the statements are made should be seen or otherwise personally known by the purchaser, and that the defects should be plainly open and patent to ary ' One ground of this latter brancli of the rule is the practical impossibility in any judicial proceeding of ascertaining exactly liow much knowledge the party obtained by his inquiry; and the opportunity Avhich a contrary rule would give to a party of repudiating an agreement or other transaction fairly entered into, with which he had become dissatisfied; Attwood v. Small, G Clark & F. 232; .Jennings v. Broughton, 5 De Gex, M. & G. 12G, 17 Beav. 234; Lowndes v. Lane, 2 Cox 363; Southern Development Co. v. Silva, 125 U. S. 247, S Sup. Ct. SS], H. & B. 282; Farnsworth v. Duffner, 142 U. S. 43, 12 Sup. Ct. 1G4, 3 Keener G21. 'Dyer v. Hargrave, 10 Ves. .505, 1 Ames Eq. .Tur. 245: Bowles v. Round. 5 Ves, 508, 1 Ames ]-2q. Jur. 3G1, 2 Keener 853, Slaughter's Adm'r. v. Gerson, 13 Wall. 379. 459 ACTUAL FRAUD. § 895 ordinary observer, and especially that no means should be used to L-oneeal them, or to divert the buyer's attention from them, or in any way to prevent a fair in(juiry.- § 895. When the Knowledge or Iilformation must be Proved, and not Presumed. — The principle discussed in the two preceding para- jiraphs^ is subject, however, to the following- most important quali- fication, w^hich is based upon the proposition heretofore stated, that whenever a positive representation of fact is made, the party receiving it is, in general, entitled to act and rely npon it, and is not bound to verify it by an independent investigation. Where a representation is made of facts which are or may be assumed to be within the knowledge of the party making it, the knowledge of the receiving party concerning the real facts, which shall pre- vent his relying on and being misled by it, must be clearly and conclusively established by the evidence. The nirre existriice of op [tori unities for examination, or of sources of information, is not snffieient, even though by means of these opportunities and sources, in the absence of any representation at all, a constructive notice to the party would be inferred ; the doctrine of constructive notice does not apply where there has been such a representation of fact." If one party — a vendor, for example — claims that the inval- idating effects of his misrepresentations are obviated, and that the purchaser was not misled by them, either because they were con- cerning patent defects in the subject-matter, or because he was fi'oni the outset accjuainted with the real facts, or because he had made inquiry, and had thereby ascertained the truth, the foregoing qualification plainly applies; it is plainly incumbent on the vendor to prove the alleged knowledge of the purchaser hy clear and ])()sitive evidence, and not to leave it a matter of mere inference or implication; an opportunity or means of obtaining the liioirlodge is not enough." The qualification applies no less plainly to the case where the party receiving a representation has given to him an opportunity of examining into the real facts, or where his at- tention is directed to the sources of information. The mere op- portunity or the means of investigation are not sufficient. Un- ^:\Ipa(l V. Bunn, 32 N. Y. 275. 'That is, the pvincipk inidoilying the first and secoiul cases mentioned ante, in § 802. == Backer v. Pyne, 130 Tnd. 288, 30 N. E. 21, 30 Am. St. Rep. 231 (vendor's statements may be relied on thonlete defense to the specific execution of the contract, although it may not be a sufficient ground for any affirmative relief.'' On the other hand, where the misrepresentation, though material and un- true, is innocent, made in a bona fide belief of its truth, and there- fore not fraudulent, and it relates to or concerns some portion only of the contract, it is not necessarily nor generally a complete de- fense to the enforcement of the contract. Under such circum- stances, there is no rule of equity which prevents a partial enforce- ment of a contract which is divisible, or the specific execution of it with compensation in respect of its portions, incidents, or features which do not correspond with the description.^ The de- structive effect of fraud upon any contract, conveyance, or other transaction is so essential and far-reaching that no person, however free from any participation in the fraud, can avail himself of what has been obtained b}" the fraud of another, unless he is not only innocent, but has given some valuable consideration.^' Although the burden of the fraud thus passes by transfer even to an innocent person, the right to relief, it seems, does not necessarily pass in the same manner. The general rule that a misrepresentation must be relied upon by the party receiving it, in order that it may be a sufSeient ground for impeaching or defeating a contract,, ex- tends to the assignment of an agreement which, as between the original parties, is affected by a misrepresentation. If a contract between A and B, voidable at the instance of B on account of A 's = Viscount Clermont v. Tasburgh, 1 Jac. & W. 112, 119, 1 Ames Eq. Jur. .3.iS, 2 Keener 883, 2 (Scott 241; Cadman v. Horner, 18 Ves. 10, 1 Ames Eq. Jur. 351, 2 Keener 881, 1 .Scott 284, 2 Scott 236. ^ See ante, § 889, and cases cited. For examples, where the vendor's untrue statement was as to his title to the whole property contracted to be sold : or where it concerned tlie nature of tUe entire estate, as representing it to be in foe when it was leasehold or for life: or where it related to some minor feature. l)ut that feature afi'ected the wliole subject-matter alike. In such cases a partial enforcement with compensation would plainly be im])ossible. See Jacobs V. Revell, (1900) 2 Ch. 85S. n'owell V. Elliott, L. E. 10 Ch. 424; ^Yhittemore v. Whittemore, L. R. 8 Va\. (i03; Leyland v. lllingworth, 2 De Gex, F. & J. 248; McMullins Adm'r v. Sanders, 79 Va. 350, 305. Even where the misrepresentation is intentional, and the remedy of rescission would be granted, still the contract is voidable, and not void, and in accordance with the rule slated in the former part of the above paragraph, the injured party may waive his right to a complete defeat, and may insist on a partial specific performance with com])ensalion for the defect, unless the case is sucli as furnishes no foundation for estimating the amount of the compensation. *See post, S 91 S; Huguenin v. Baseley, i4 Ves. 273. i; UOl EtiLlTY JUKJbl'KUDENCE. 464 misrepresentation made to him in procuring' it, is assigned by B to a third person, C, who is in no such relations with the original parties that he is affected by the fraud, and to whom no false statements are made in obtaining the transfer, the agreement thus assigned, if otherwise binding upon him, would be valid against C; at least its enforcement against him would not be hindered by A's original misrepresentations, since he had not acted upon their faith and credit/^ §900. Second. Fraudulent Concealments. — Fraudulent conceal- ment implies knowledge and intention. Although there are some species of fraudulent misrepresentations, as has been shown, without these qualities, it is hardlj^ possible to conceive of a fraudulent con- cealment without a knowledge of the fact suppressed possessed by the part}^ and an intention not to disclose such fact. 5; 901. General Doctrine — Duty to Disclose. — The general doc- trine with respect to concealment as a form of actual fraud, and as distinguished from those analogous violations of fiduciary duty Avhich do not constitute actual fraud, but may be included within the term "constructive fraud," may be stated as follows: If either party to a transaction conceals soine fact which is material, which is within his own knowledge, and whicli it is his dvty to disclose, he is guilty of actual fraud. ^ It is very difficult to lay down any gen- eral formula which shall be more definite than this, and at the same time accurate. The difficulty consists in stating a general rule, in harmony with decisions of authority, as to the duty of either party to disclose facts which are within his knowledge. It is certain that every concealment or failure to disclose material facts known to one party is not fraud in equity or at law, whatever (luality it may have before the tribunal of the individual conscience. It has never been contended, in our system of jurisprudence, that a vendor in a contract of sale is bound to disclose all facts which, if known b,y the buyer, would prevent or tend to prevent him from liiaking the purchase. ]\ruch less has it ever been maintained that tlie buyer is bound to discover all facts known to himself which ■■' Smith V. Clarke, 12 Yes. 477, 484. Fraud only renders contracts voidable, and can be taken advantage of only by the person defravided, his representatives and privies; the right to a remedy is personal: Harris v. Kemble, 5 Bligh, N. S., 730, 751. The proposition of the text assumes that the contract alone is assigned. If a cause of action on account of the fraud has accrued in B's favor, and that is expressly assigned to C with the contract, — which is permissible under modern legislation in many of the states, — the result would be different. ^Dolman v. Xokes, 22 Beav. 402, .3 Keener .56.5; B^o^^^l v. Montgomeiy, 20 X. Y. 2S7. 7.5 Am. Dec. 404. 3 Keener r)71 : Dambmann v. Schulting. 75 X. Y. .55. 01. H. ^c B. 227. :> Keener 202; People's Bank v. Bogart. 81 X. Y. 101. 37 Am. Bep. 481, 3 Keener 575; Keen v. -James, 39 X. J. Eq. 257, 51 Am. Rep. 20, 3 Keener 590. ■ IGo ACTUAL FRAUD. § yOi would enhance tlie value of the article sold or affect the conduct of the vendor. Even where the buyer purchases on credit, his iiirrc failure to disclose his indebtedness, or his embarrassed financial condition, is not necessarily a fraudulent concealment. The same is generally true of all other species of contracts and transactions, except of those species of agreements or engagements which ai'e in their very essential nature intrinsically fiduciary, involving a condition of absolute good faith. While the decisions admit these propositions, they are agreed, on the other hand, that it is only silence which is permitted. If in addition to th(> party's silence there is any statement, even any word or act on his own part, which tends affirmatively to a suppression of the truth, to a covering up or disguising the truth, or to a withdrawal or distraction of the other party's attention or observation from the real facts, then the line is overstepped, and the concealment becomes fraudulent. The maxim is, Aliud est eelare, aliud taeere.^ § 902. When Duty to Disclose Exists. — Concealment becomes fraudulent only when it is the dutj- of the party having knowledge of the facts to discover them to the other ; and this brings back the ([uestion, When does such duty rest upon either party to any trans- action? All the instances in which the duty exists, and in Avhich a concealment is therefore fraudulent, may be reduced to three distinct classes. These three classes are, in general, clearly distinct and separate, although their boundaries may sometimes overlap, or a case may fall Avithin two of them: 1. The first class includes all th.ose instances in which, wholly independent of the form, nature, or object of the contract or other transaction, there is a previous, existing, definite fiduciary relation between the parties, so that the obligation of perfect good faith and of complete disclosure al- wa^'s arises from the existing relations of trust and confidence, and is necessarily impressed upon any transaction which takes place 1). 'tween such persons. Familiar examples are contracts and other transactions betAveen a principal and agent, a client and attorney, a beneficiary and trustee, a ward and guardian, and the like.^ 2. The second class endiraces those instances in Avhich there is no existing special fiduciary relation between the parties, and the transaction is not in its essential nature fiduciary, but it appears that either one or each of the parties, in entering into the contract or other transaction, crpres.sh/ re})oses a trust and confidence in the other; or else from the circumstances of the case, the nature of = Xickley v. Thomas, 22 Barb. 652: Bench v. Sheldon. 14 Bnrb. 6(1. See Coak^s V. Boswell, 11 App. Ca«. (H. of L.) 232. 3 Keener 5flfi. 'Tate V. Williamson, L. 1^. 1 Eq. 528, 2 Ch. 55, H. & V,. :V.i7. Sh. 193; Noyes V. i,aii(!on, 5(1 Vt. 500, 10 Atl. 342. 30 § 903 EQUITY JURISPRUDEXCE. 460 their dealings, or tlieir position towards each other, such a trust and confidence in the particular case is necessarily implied. The nature of the transaction is not the test in this class. Each case must depend upon its own circumstances. The trust and confidence, and the consequent duty to disclose, may expressly appear by the very language of the parties, or they may be necessarily implied from their acts and other circumstances.- 3. The third class includes those instances where there is no existing fiduciary relation between the parties, and no special confidence reposed is ex- pressed by their words or implied from their acts, but the very contract or other transaction itself, in its essential nature, is in- trinsically fiduciary, and necessarily calls for perfect good faith and full disclosure, without regard to any particular intention of the parties. The contract of insurance is a familiar example. It will be found, I think, that all eases of fraudulent concealment may be referred to one or the other of these classes. § 903. Concealments by a Vendee. — As instances of concealment are inost frequent in contracts of sale, it will be proper to apply the foregoing general doctrine to the vendee and the vendor. The decisions recognize a marked difference between the two, with reference to their duty to disclose. The contract of sale is not in- trinsically fiduciary, and does not fall within the third of the fore- going classes. The conclusion is clearly established, that under ordinary circumstances, there being no previously existing fiduciary relation between the parties, and no confidence being expressly reposed by the vendor in the very contract, no duty rests upon the vendee to disclose facts which he may happen to know advan- tageous to the vendor. — facts concerning the thing to be sold which Avould enhance its value, or tend to cause the vendor to demand a higher price, and the like; so that a failure to disclose wnll not he a fraudulent concealment.^ The reason is evident. The law as- sumes that the owner has better opportunities than any one else to know all the material facts concerning his own property, and is thus able under all ordinary circumstances to protect his own interests. The duty to disclose can rest upon the vendee only Avhen the case belongs either to the first or the second of the above-men- tioned classes. If, therefore, there is a confidence reposed by the vendor in the vendee, by reason of some prior existing fiduciary relation between them, the vendee's failure to disclose a material fact would undoubtedly be a fraudulent concealment. Also, if, -Brown v. Montgomery, 20 N. Y. 287, 75 Am. Dec. 404. 3 Keener 571; Keen V. James. 39 N. J. Eq. 257, 51 Am. Rep. 29. 3 Keener 590. ^Fox V. Mackreth. 2 Cox 320. 2 Bvown Ch. 400, 420; Harris v. Tyson, 24 Pa. St. 347, 3 Keener 5G1. 467 ACTIAL 1-UAL'D. § 904 during the negotiation ciiul conclusion of the sale, confidence is expressly reposed in the vendee, or if from the circumstances of the contract and the acts of the parties such confidence is neces- sarily implied, the vendee's silence might be a fraudulent conceal- ment. In instances of the latter kind, a much stronger and clearer ease of confidence and consequent duty to disclose is necessary against the vendee than would be required under analogous eir- cuvnstances against the vendor.- v; 904. Concealments by a Vendor. — A broader duty certainly rests upon the vendor; a duty rests on him to disclose material facts under far more circumstances than is true of the purchaser. This duty, however, is not universal. In ordinary contracts of sale, where no previous fiduciary relation exists, and where no confi- dence, expressed or implied, growing out of or connected with the very transaction itself, is reposed on the vendor, and the parties are dealing with each other at arms-length, and the purchaser is presumed to have as many reasonable opportunities for ascertain- ing all the facts as any other person in his place would have had, then the general doctrine already stated applies: no duty to dis- close material facts known to himself rests upon the vendor; his failure to disclose is not a fraudulent concealment.^ Of course, any affirmative act or language tending to conceal or withdraw the buy- er's attention from the real facts will turn the scale and render the vendor's conduct fraudulent, as has already been shown. If, on the other hand, the case belongs to the first class mentioned in a former paragraph, the duty of disclosure becomes manifest and stringent. Whenever the vendor occupies an established fiduciary relation towards the buyer, independent of the contract, a full dis- closure is demanded ; any suppression or silence as to material facts, v,hich would in any degree tend to prevent the sale, is clearly a fraudulent concealment; the utmost good faith and openness is re- quired of vendors occupying such relations. Equity and the law go farther than this. Not only where the vendor thus occupies a fiduciary position towards the purchaser, independently of the sale. but also when, in the very contract of sale itself, or in the negotia- tions preliminary to it, the purchaser expressly reposes a tru.st and confidence in the vendor, and when, from circumstances of that very transaction, or from the acts or relations of the parties in connection with it, such a trust and confidence reposed by the pur- chaser is necessarily implied in the contract of sale, it is the (lut\- = Tate V. Williamson, L. R. 2 Ch. 5.5, 1 Eq. 528, H. & B. 337, Sh. 103; Pliillips V. Homfray, L. R. 6 Ch. 770. niaywood v. Cope, 25 Roav. 10; People's Bank v. Bof^art, 81 X. Y. 101. .-57 Am. Dec. 481, 3 Keener 575; Mitcliell v. :\[oDoiigall, 62 111. 498, H. & B. 279. § 906 EQUITY JUKlsriilDENCE. 4G8 of the vendor to make a like disclosure, and his failure to do so is a fraudulent conecalnient.- § 905. Non-disclosure of Facts a Defense to the Specific Enforce- ment of Contracts in Equity. — Although the discussion relates to fraudulent concealments, such as necessarily imply knowledge and an intent not to communicate the fact, it is proper to notice one other rule affecting the relations between the vendor and purchaser in equity. A fraudulent concealment, defeating a contract of sale at law, and furnishing ground for its cancellation in equity, is, of course, a complete defense to its specific performance. In addition to these concealments properly so called, the suppression of a ma- terial fact, or the failure to communicate a material fact by the vendor, without any purpose of deceiving or misleading the other party, and even without having himself any knowledge of the fact, while not affecting the validity of the agreement at law, and not I'eing sufficient ground for its cancellation in equity, because not fi'audulent, may still render the agreement so unfair, unequal, or hard, that a court of equity, in accordance Avith its settled prin- ciples in administei'ing the remedy of specific performance, will refuse to enforce the contract against the party who was misled. The two contracting parties do not stand upon an equality; either one had a knowledge of important facts of which the other M'.as ignorant, or else there was a mistake by one or perhaps by both. Such misdescriptions, consisting of omitting material particular^, however free of wi'ongful intent they may be, have often been held a sufficient defense to suits for specific enforcement.^ 55 906. Concealments by Buyers on Credit. — The particular case of the buyer on credit who conceals his bad financial condition re- quires a brief additional mention, because it is the most connnon species of fraud, and because it involves one or two special rules. As to what constitutes a false representation by such a l)uyer, noth- ing need be added, except that, in this instance especially, the state- ment of the buyer nuist be something more than the mere expression of an opinion as to his pecuniary ability. As to what constitutes a fraudulent concealment under these circumstances, there has been some uncertainty and even confiict of decision in determining what matters such buyer is bound to disclose, so that his failure to do so would be a fraud. The following- rules may be regarded -' Dolman v. Xokes, 22 Beav. 402, 3 Keener .565 ; Bro^^^l v. Montgomery, 20 N. Y. 287. .3 Keener 571: People's Bank v. Bo-rart. 81 X. Y. 101. .37 Am. Rep. 481. ,3 Keener 575. ^EUard v. Lord IJandafl', 1 I5all & B. 241, 1 Ames Eq. Jnr. 303, 2 Keener 854, 2 Scott 24(i: liyars v. Stnbbs, 85 .\Ia. 25(1. 4 South. 755, 1 Ames Eq. Jur. 370; Woohuiis V. Iln)s](>y. <)3 Ky. 5S2. 20 S. W. 7S1. 2 Keener 026. 2 Scott 251; contra, see I'unier v. (hcen (1895). 2 Ch. 205, 1 Ames Eq. .Tnr. 3G4. 469 ACTUAL j'lj.vrD. >; '.'10 as settled by the decided weis'ht of authority; they are certainly sustained by courts of the greatest ability and influence: 1. Tln' l)urehaser when buyinii- on credit is not bound to disclose the facts of his financial condition. If he makes no actual misrepresentation, if he is not asked any questions, aiul does not uive thereto any un- true, evasive, or partial answers, his mere silence as to his o^eneral bad pecuniary condition, his indebtedness, or even his insolveupy. will not constitute a fraudulent concealment. 2. If. however, th'' former good financial condition of the buyer has been known to the vendor through pi-ior dealing's or othei'wise, and any sudden oc complete change has happened to the buyer, sucli as his sudden loss of property by fire or other accident, or his suckhm insolvency or embarrassment by the failure of others, or a general assignment which he has made of all his property, and the like, he is bound to disclose such facts to the vendor previously to the completion of the sale; his mere silence with respect to such changes in his condition, even when no questions are asked of him, is a frauduk^nt concealment. 3. Finally, if at the time he purchases the goods on credit, and fails to disclose his general insolvency, embarrassed condition, or indebtedness, the buyer forms or has in his mind the intention or desiun of not paying for them, this is a fraud on his part. In other words, a purchase on credit with a precon- ceived design on the buyer's part, formed at or before the purchase, not to pay for the thing bought constitutes a species of fraudulent concealment.^ § 910. Jurisdiction of Equity in Cases of Fraud. — It is impos- sible, especially in the United States, to formulate any universal rules concerning the extent or the exercise of the equitable juris- diction in matters of fraud, since the decisions of different courts and in different states are directly at variance with respect to its existence and extent, and since its exercise must depend, to a great extent, upon the circumstances of particular cases, and even upon tlie temperaments and opinions of individual judges. The jurisdie- tion, Avhen it exists, may be exercised by granting reliefs whieh are peculiarly ecpiitable, or reliefs which are wholly pecuniary, and therefore legal. In conferring these reliefs whieh are purely equit- al)le. and therefore exclusive, the power of equity knows no limit. The court can always shape its remedy so as to meet the demands of justice in every case, however peculiai-. The most important of these equitable final reliefs, to one or the other of which all special instances and forms may be rednced. are these: Rescission ^Nichols V. IMTiiior, IS X. Y. 20.). 2?, X. V. 204; llolclikin v. Tliiid Xnl. Bank, 127 X. Y. 320. 27 X. E. 10.50, ?. Keener nH] ; Oswego JStarch Factory v. Lendrum, 57 Iowa 573, 10 X. \V. 900, 42 Am. Rep. 53. §910 EQUITY .irinsriaDKXCE. 4T0 or cancellation, as applied to contracts, conveyances, judgments, find all fraudulent transactions, with one marked exception; re- formation of written instruments improperly drawn through fraud; and specific enforcement by which the fraudulent party is com- pelled to perform the very specific obligation which rests upon him, and the defrauded party obtains the enjoyment of the very right of which he was deprived through the fraud. This latt.er class of remedies may assume an unlimited variety of forms, as the circumstances may require. It includes, among others, the com- jielling the fraudulent party to make good his representations: the treating him as a trustee with respect to the property which he has accjuired by his fraud ; the enforcing the performance of their specific duties by trustees, directors, and officers of corporations, :!!id all others who stand in a position of trust; the compelling a. written security to stand good for what is actually due upon it, and the like. These final remedies may be accompanied and aided by auxiliary reliefs, such as injunction or a receiver. The purely l)(^cuniary relief which courts of equity may administer, as well as courts of law, in matters of fraud, are an accounting in all its vari- ous forms and conditions, and simple recoveries, without an ac- counting, of specific amounts of money which have been fraudulent- ly obtained, or which are equitably and perhaps legally due on account of fraud. In administering all these remedies, pecuniary as well as equitable, the fundamental theory upon which equity acts is that of restoration, — of restoring the defrauded party primarily, {Mid the fraudulent party as a necessary incident, to the ]»ositions which they occupied before the fraud was committed. Assuming that the transaction ought not to have taken place, the court pro- ceeds as though it had not taken place, and returns the ])arties to that situation. Even in such cases, the court api)lies the maxim. He who seeks equity must do equity, and will thus secure to the A\rong-doer, in awarding its relief, whatever is justly and equitably his due.^ ' I'iie remedies of cancellation, reformation, and enforcing fiduciary duties are s(i familiar tliat they require no citation of examples. For examples of com- pelling the fraiululent party to make good his representations, see cases cited ante, under !? 899. Treating a fraudulent party as a trustee; sec po'^t, section on constructive trusts. Example of ordering a seciirity to stand for wliat was really due on it: Xeilson v. McDonald, 6 Johns. Ch. 201, 1 Scott 482, .3 Keener 7")1. The equitable theory of restoring the parties to their original position: J^rown V. Norman, 6.5 Miss. 369, 4 South. 29.3. 7 Am. St. Eep. 663. 2 Scott 747. 3 Keener 699; Neblett v. Macfarland. 92 V. S. 101. .3 Keener 693: Potter v. Taggart, 59 Wis. 1, 16 X. W. 5-'53, 632. 3 7\eener 673: Ooodrieh v. Lathroji. 94 Cal. 56, 28 Am. St. Rep. 91, 29 Pac. .329. 2 Ames Eq. .Tur. 187; Tliomas v. Beals I.")! Mass. 51, 27 N. E. 1004, 3 Keener 707. For circumstances excusing a com- ] ';^te restoration of the parties to their original condition, see Hammond v. 471 . ACTIAT. FllArD. § 912 j^ 911. Fundamental Principles of the Jurisdiction.^ — § 912. The English Doctrine. — The doctrine is fully settled by aii unbroken line of decisions extendino- to the present day, that, with one remarkable exception, the jurisdiction of equity exists in and may be extended over evpry ease of fraud, whether the pri- mary rights of the parties are legal or equitable, and whether the remedies sought are equitable or simple pecuniary recoveries, and even though courts of law have a concurrent jurisdiction of the ease and can administer the same kind of relief. The English judges have virtually said that in every case of fraud the reiiiody at law, either from the nature of the legal relief itself or from the methods of legal procedure, is inadequate. The only question, therefore, presented to an English court is, not whether the ecpiit- able jurisdiction exists, but whether it should be exercised.^ As the ablest judges have often said, one of the occasions for the exist- ence of a separate court of chancery was its power to deal with all cases of fraud; its original grant of jurisdiction covered fraud in all its forms and phases. The law courts, on the other hand, originally had very little, if anj^, jurisdiction in such matters. In the early forms of action to enforce covenants, debts, and other obligations ex contractu, fraud was not admitted as a defense, and there was no form of action appropriate for the recovery of damages on account of fraud. The jurisdiction of the law courts in such cases was of later origin, and was of gradual growth. It was not Pennock, 61 N. Y. 145, 3 Keener 688; Browii v. Norman, Xeblett v. ^Macfarlaiid, (ioodricli V. Lathroj?, supra. In some iurisdictions tlie defrauded party must return or tender the consideration received by him before suit for rescission; see Rigdon v. Walcott, 141 J 11. 649, .'U X. E. 158, 3 Keener 714; but in most it is lield, in accordance with equitable principles, that an offer in the bill to do equity is sufficient, since the court can impose suitable terms to the grantinj; <>f relief; see BrowTi v. Norman, supra; Thackrah v. Haas, 119 U. S. 490. 7 Sup. Ct. 311, 2 Scott 746, 3 Keener 697; Carlton v. Hulett, 49 Minn. 308, 51 N. W. 1053, 3 Keener 709; Thomas v. Bcals, supra. ' See ante, § 222. ^Anderson v. Eggers, (N. .J. Eq.) 49 Atl. 578; Hill \. Lane. L. R. 11 Eq. 215; Kamshire v. Bolton, L. R. 8 Eq. 294; St. Aubyn v. Smart, L. R. 5 Eq. 183, 3 Ch. 646; Slim V. Croucher, 1 De Gex, F. & .J. 518. In the la-st case Turnei', L. .T., sai ia void, as where he was procured to execute it by the fraudulent representation and under the conviction that it was an entirely dif- ferent instrument, or where it was fraudulently executed in his name without any authority express or implied, or where, after be- ing executed by him for one purpose, it was fraudulently altered without his knowledge oi- authority, so as to include the property, or where ^t was a forgery, and he has done no collateral act with reference to it which might amount to an equitable estoppel by conduct, and the property, by means of such transfer, comes into the hands of a purchaser for value and without notice, the original defrauded owner is not barred of his remedy." Equity will relieve by canceling the fraudulent apparent transfer, and by compelling a reconveyance or reassignment, even as against the holder who is innocent of wrong; the doctrines of equitable estoppel and of bona fide purchase do not apply under these circumstances. Such is the doctrine announr-ed by decisions of the highest authority. § 919. Particular Instances of Jurisdiction. — I shall conchulc this discussion of actual fraud by enumerating some well-settled instances of the jurisdiction which deserve a special mention. In several of them the fraud atfects third persons rather than the inimediate party to the transaction; but in all a fraudulent inten- tion, or what equity regards as tantamount to such an intention, is a necessary element, and they may all, therefore, be properly grouped under the head of actual fraud. Judgments: When a judgment o)' decree of any court, whether inferior or superior, has been ob- tained by fraud, the fraud is regarded as perpetrated upon the curt as well as upon the injured party. The judgment is a mere nullity, and it may be attacked and defeated on account of the fi'aud. in any collatoi-al proceeding brought upon it or to enforce it. at least in the same court in which it was rendered.^ .... Although the fraud may thus be set up by way of defense, the equitable jurisdiction to cancel and set aside or to restrain judg- ments and decrees of any court which have been obtained by a fi'aud practiced upon the court and the losing party, is well settled and familiar." Awards: The jurisdiction to set aside and cancel awards was settled at a very early day, and it still exists, except •'Tay!©!' v. Great Indian PvV.. 4 Do Hex & .T. 550, 574; County of Schuylkill v. Copley," 07 Pa. St. .386, 5 Am. Rep. 441. 'Hojjff V. Link. 00 Tnrl. 34fi: Eltin^ v. First Nat. T?ank. 173 Til. ''fiS, ^0 X. E. 1005. See tnrl her. as to relief apfainst judgments obtained by fraud, post, 23 It is important, however, to' form an accurate notion of the mean- ing yiven to it in equity, and of the peculiar element or criterion which distinguishes the various classes of cases belonging to it. The distinguishing element of actual fraud, as has been shown, is al- ways untruth between the two parties to the transaction, so that actual fraud may be reduced to misrepresentations and conceal- ments. This untruth at law must be virtually intentional, — a false- hood ; in equity the intention is not so essential. Untruth is not the distinguishing element of constructive fraud; it is never essential tliat there should be untruth between the immediate parties to a transaction, in order that it may come within the denomination of constructive fraud; in a great many instances it would be im- possible to predicate untruth of the wrong-doer's conduct.^ Con- structive fraud is simply a term applied to a great variety of trans- actions, having little resemblance either in form or in nature, wdiieh e(iuity regards as wrongful, to which it attributes the same or sim- ihir ett'ects as those which follow from actual fraud, and for whieli it gives the same or similar relief as that granted in cases of real fraud. It covers different grades of wrong. It embraces contracts iiU^gal, and therefore void at law as well as in equity; transactions voidable in equity because contrary to public policy; and transac- tions which merely raise a presumption of wrong, and throw upon the party benefited the burden of proving his innocence and the absence of fault. - § 923. Three Principal Classes.— In the great case of Chester- fit'ld V. Janssen, cpioted in the preceding section, Lord Hardwicke, after mentioning actual fraud, added the three other following classes: 1. That apparent from the intrinsic nature and subject of the bargain itself; 2. That presumed from the circumstances and (M)iidition of the immediate i^arties to the transaction; 3. That Avhieh is an imposition on third persons not parties to the trans- action. As these three groups constitute the constructive fraud of ' 11 siioiilcl be carpfully observed liowever, that in certain instances of con- st met ive fraud, althouyli there is no element of untruth whatever between the two immediate parties to the transaction — the grantor and s'ni" witli intent to defraud A's creditors. This particular species has. thej'efore. a stronpf analogy to actual fraud, and the cases belonging to it are governed, to a great extent, by the rules of actual fraud. ■■'The term "presumptive fraud" is sometimes used as a substitute for ''con- structive fraiul." but improperly. In a great number of instances tltere is no presumption of fraud, in the true sense of that word; and no such presumption could possibly arise. 31 ._ § 9;;?G Et^UlTV JUiasil'KLDEXCE. ' 482 equity, the classification of the great chancellor will be adopted in I he discussions of the p^-esent section. § 924. First. Constructive Fraud Apparent from the Intrinsic Nature and Subject of the Transaction Itself. — This class includes tliree principal subjects: 1. Inadequacy of consideration; 2. Con- tiacts illegal because opposed to statute, or to public policy, or to eood morals; and 3. Certain transactions which, in analogy with contracts, equity regards as contrary to public policy, and therefore illegal. I shall specify these various instances with as much ex- planation as may be needed to exhibit the doctrines peculiar to equity, and shall then describe the equitable jurisdiction which they occasion, and the reliefs, defensive or affirmative, which may be obtained by its means. § 925. I. Inadequacy of Consideration. — Inadequacy of consid- eration must ordinarily occur either in conveyances, executed or executory contracts of sale, or in agreements analogous to sale where there is a subject-matter transferred or dealt Avith, and a price paid or to be paid. It may exist in the price or in the sub- ject-matter, the latter ease being the same as exorbitancy of price. It necessarily implies that the price is either too small or too great. The former is the condition ordinarily meant by inadequacy, and is plainly more susce^^tible of judicial investigation than the other. En both these forms inadequacy of consideration will be considered : 1. By itself free from any other fact; 2. As connected with other inecjuitable facts and circumstances. § 926. Inadequacy Pure and Simple. — The rule is well settled that where the parties were both in a situation to form an indepen- dent judgment concerning the transaction, and acted knowinoly i'.nd intentionally, mere inadequacy in the price or in the subject- matter, unaccompanied by other inequitable incidents, is never of itself a sufficient ground for canceling an executed or executory [•ontract. If the parties, being in the situation and having the fibility to do so, have exercised their own independent judgment fi« to the value of the subject-matter, courts of equity should not and Avill not interfere with such valuation.^ In some of the earlier ;lecisions, mer.e inadequacy, either in the price or in the value of the subject-matter, was held to be a sufficient hardship which might lefeat the specific performance of an executory contract when set ap as a defense.- The doctrine, hoAvever, is now settled, that mere ^Seymour v. Delancey, 3 Cow. 445, 1.5 Am. Dec. 270, 2 Keener 772: PViillips V. Pullen, 45 N. J. Eq. 5, IG Atl. 9, H. & B. .308; Pennybacker v. Laidley, 33 W. Va. 024, 11 S. E. 30, 3 Keener 493. '■'Diiy V. Newman, 2 Cox 77, and cited 10 Ves. 300, 2 Scott 227; Seymour V. Delancey, 5 Jolms. Ch. 222, 224, 225, per Kent, Ch- i83 coxsTi;rcT[VK ruAUD. § 927 inadequacy — that is, inequality iii value between the subject-matter and the price — is not a ground for refusing the remedy of specific performance; in order to be a defense, the inadequacy must either be accompanied by othei inequitable incidents, or must be so gross as to show fraud. In short, inadequacy as a negative defense, and ns an affirmative ground for a cancellation, is governed by one and the same rule.^ When a sale is made at public auction, conducted in a fair and open manner, with opportunity for real competition, the rule is even stronger, for fraud cannot then be inferred from any inadequacy in the price, without other circumstances showing- bad faith.* The particular case of selling an expectancy or rever- sion for an inadequate price, which is in some respects an exception to the foregoing general rule, is considered in the subsequent sec- tion.^ ;^ 927. Gross Inadequacy Amounting to Fraud. — Although the actual cases in which a contract or conveyance has been canceled on account of gros>j inadequacy merely, without other inequitable incidents, are very few, yet the doctrine is settled, by a consensus of decisions and dicta, that even in the absence of all other cir- cumstances, when the inadequacy of price is so gross that it shocks the conscience, and furnishes satisfactory and decisive evidence of fraud, it will be a sufficient ground for canceling a convej^anee or contract, whether executed or executory. Even then fraud, and not inadequacy of price, is the true and only cause for the inter- position of equity and the granting of relief.^ • Coles V. Trecothick, 9 Ves. 24G, 2 Keener 768 ; Buirowes v. Lock, 10 Ves. 470, 1 Ames Eq. Juv. 263; Abbott v. Sworder, 4 De Gex & S. 448, 2 Keener 793; Seymour v. Delancey, 3 Cow. 445, 1.") Am. Dee. 270, 2 Keener 772. MVhite V, Damon, 7 Ves. 30; Garden v. Lane, 48 Ark. 219, 2 S. W. 709, .•? Am. St. Rep. 228. ^ See post, § 953, ^ G\\ynne v. Heaton, 1 Brown Ch. 1, 9, 3 Keener 505, per Lord Thui-low: "An inequality so strong, gross, and manifest that it must be impossible to state it to a man of common sense Avithout pi'odiieing an exclamation at the inequality of it." Coles v. Trecothick, 9 Ves. 234, 246, 2 Keener 708; Summers. V. Crilliths, 35 Beav. 27, 3 Keener 509; Falcke v. Gray, 4 Drew. 651, H. & K (-.55; Phillips v. Pullen, 45 N. J. Eq. 5, 16 Atl. 9, H. & B. 308; Butler v. Haskell, 4 Desaus. Eq. 051, 2 Scott 074. 'File rule is ordinarily stated that the inadequacy must be so gross that it is conclusive evidence of fraud. It is so laid down by earlier judges, and by ^Ir. Kerr. The rule had its origin at a time when fraud was generally inferred by presumptions of law, and often by conclusive presumptions. In tlic present condition of the law on the subject of fraud, Ihis mode of for- mulating the rule seems to he erroneous. Tin- principle is now almost universally adopted, that fraud is a fact, inferred, like other eonclusicms of fad, from Ihe evidence: no rule of law can therefore ho laifl down as to + ''t> qniount of inadequacy necessary 1o produce Iho re-iulting fraud. Inadequacy ■>i consideration niav be evidence of fr;niil. -light ov ucnverfid. yct^ordini;- to ^ \):iii EQi'iTY J I i;isi'i;ri)i;xcK. 484 § 928. Inadequacy Coupled with Other Inequitable Incidents.— 1l there is notlnng but mere inadeciuacy of price, the case must be its amount, and other circumstances. When it is satisfactory and decisive evidence — when from the proof of inadequacy the court or juiy are convinced Ihat fraud as a fact did exist — then the relief is granted. Instead, therefore, of repeating the usual formula which has been handed down for generations, that 1 iic inadequacy must be conclusive evidence of fraud, I have said in the text it must be satisfactory and decisive evidence; the former mode represented fraud as the result of a conclusive legal presumption; the latter treats it as a conclusion of fact drawn from the evidence, and is therefore in perfect liariiiony with the theory which now prevails in most, if not all, of the stales. The following seems to be the true rationale of the doctrines concerning iiiatlequacy of price. Whenever it ajipears that the parties have knowingly and deliberately fixed upon any price, however great or however small, there is no occasion nor reason for interference by courts, for owners have a right to sell property for what they please, and buyers have a right to pay what they please: .See Harris v. Tyson, 24 Pa. St. 347, 360, 64 Am. Dec. 661, 3 Keener .561. lUit where there is no evidence of such knowledge, intention, or deliberation by tlie parties, the disproportion between the value of the subject-matter and tlie price may be so great as to warrant the court in inferring therefrom the fact of fraud. Such a gross inadequacy or disproportion will call for ex- planation, and will shift the burden of proof upon the party seeking to enforce the contract, and will require him to show affirmatively that the l)rice was the result of a deliberate and intentional action by the parties; and if the facts do prove such action, the fact of fraud will be more readily and clearly inferred. I do not mean that judges and juries are no longer, under any circumstances, aided by legal presumptions in dealing with fraud. The juimber of instances, however, in which legal presumptions are invoked has been very much lessened; the issue of fraud or no fraud is generally decided in the same manner as any other issue of fact. The llonian law adopted a fixed standard by which to determine all cases of inadequacy, which was one— lialf of the real value of the subject-matter when that consisted of immovable property. If the price was less than one-half of the real value, the seller could compel the buyer to elect either to rescind, restore tiie thing and take back the price, or to affirm and make up the deficiency: Code, lib. 14, tit. 44, sec. 2; and see Burrowes v. Lock, TO Ves. 470, 474, 1 Ames Eq. Jur. 263, per Sir William Grant. A like method is found in the French law. fSuch arbitrary rules are entirely contrary to llie spirit of our law, and our metliods of administeri'ig justice. If the pricei was less than one-half of the value of the subject-matter, and there were no circumstances showing an intention on the part of the vendor to confer a bounty or favor, the sale would doubtless be set aside. Wliere the circum- stances show that a favor or bounty was intended, the inference of fraud is necessarily destroyed; even a pure gift would be sustained: \\halley v. Whalley, 1 Mer. 436. As to the time of tlie inadequacy, in order that it may ever be fatal, it must exist at the concluding of the contract. If there was no inadequacy at the making of tlie contract, none can arise from subsequent events or change of circumstances: Batty v. Lloyd, 1 Vern. 141, 2 Scott 672, 3 Keener 504: hee V. Kirby, 104 Mass. 420, 2 Scott 300. See, however, the somewhat re- markable case of Willard v. Tayloe, 8 Wall. 557, 1 Ames Eq. Jur. 404, 2 Scott 33, 2 Keener 1026, Shep. 112, wln'ch was really an instance of the price becoming inadequate liy snlisoquent cvc^nts. 485 * coNsi'i;! ( ri\ K fkatd. § 930 extreme, in order to call for the interposition of eiiuity. Where the inadequacy does not thus stand alone, but is accompanied by other inequitable incidents, the relief is much more readily granted. But even here the courts have established clearly marked limitations upon the exercise of their remedial functions, which should be carefully observed. The fact that a conveyance or other transac- tion wf-s made without professional advice or consultation with friends, and was improvident, even coupled with an iuade(iuacy of price, is not of itself a sufficient ground for relief, provided the parties were both able to judiie and act independently, and did act upon equal terms, and fully understood the nature of the trans- action, and there was no undue influence or circumstance of oppres- sion. ^ When the accompanying incidents are inequitable and show bad faith, such as concealments, misrepresentations, undue advan- tage, oppression on the part of the one who obtains the benefit, or ignorance, weakness of mind, sickness, old age, incapacity, pecu- niar}^ necessities, and the like, on the part of the other, these cir- cumstances, combined with inadequacy of price, may easily induce a court to grant relief, defensive or atfirmative. It would not be correct to say that such facts constitute an absolute and necessary ground for equitable interposition. They operate to throw the heavy burden of proof upon the party seeking to enforce the trans- action or claiming the benefits of it, to show that the other acted voluntarily, knowingly, intentionally, and deliberately, with full knowledge of the nature and effects of his acts, and that his con- sent Avas not obtained by any oppression, undue influence, or undue advantage taken of his condition, situation, or necessities. If the pai'ty upon whom the burden rested should succeed in thus sho^v- ing the perfect good faith of the transaction, it would be sustained ; if he should fail, equity would grant such relief, affirmative or defensive, as might be appropriate.- § 929. II. Illegal Contracts and Transactions. — § 930. 1. Contracts Illegal because Contrary to Statute. — I place under this head those few instances in which the illegality is wholly or chiefly the result of statutory prohibition. Very many of the contracts illegal at the common law, because opposed to public policy or to good morals, have also been brought within the domain of positive legislation in the various states; and a very few which are illegal by the English common law are not generally ' Harrison v. Guest, 6 De Gex, M. & G. 424 ; Pennybacker v. Laidley, 33 W. Va. 624, 11 S. E. 39, 3 Keener 30. »Tate V. Williamson, L. R. 2 Ch. 65, 1 Eq. rrZS. II. & B. 337, Sh. 103; Summers v. Griffiths, 35 Beav. 27, 3 Keener .500; Fish v. Leser, 60 111. 304, H. & r.. 050; Craffam v. Burgess, 117 U. S. 184, Sup. Ct. 686, 3 Keener 512. § !»31 EQUITY jrUI;;PUUDENX^i:. ' 486 iiuide so by the law of this country. The impoVtant species which fall under the present head are usurious, gaming, and smuggling contracts. The policy of prohibiting usury has been abandoned, and the statutes concerning it repealed, in England and in several o*"" the American states. In some of the states which still adhere to the policy, the usurious contract itself, the instrument by which it is evidenced, and all its securities, are declared to be utterly v(.id; in others, the stipulation for the usurious excess over the legal interest is alone made void: while in others a further penalty is added to this usurious excess.^ Although at the common law cei'tain kinds of contracts based upon wagers w^ere not unlawful, while those made upon a gaming consideration were illegal, the modern legislation of England and of the United States declares all gaming and wagering agreements, and the instruments by which t!icY are cviJonced or secured, to be illegal, null, and void.- . . . § 931. 2. Transactions Illegal because Opposed to Public Pol- icy. — A. Contracts Interfering with the Freedom, of Marriage.— The law of England and our own law regard the marriage relation as the very foundation of society. Since the true conception of marriage assumes and requires a perfectly free consent and union of the two spouses, equity has, from its earliest periods, treated all agreements, executory or executed, between the immediate par- ties or between third persons, w^hich might directly or indirectly iMterfere in any degree with this absolute freedom, either by pro- moting or restraining marriage, as opposed to public policy and illegal, and has therefore declared them null and void. Although a court of equity will apply this principle in whatever kind of a'^reement the illegality' may appear, yet there are certain wel!- M^arker v. \^ansommer, 1 Brown Ch. 149; Fanning v. Dunham, 5 Jolins. Ch. 122, 142, 143, Am. Dec. 283, 1 Scott 271. See post, §037. M\ilkinson v. Toiisley, 16 Minn. 299, 10 Am. Rep. 139; Kuhl v. Gaily Universal Press Co., 123 Ala. 452, 2G South. ,535, 82 Am. St. Rep. 135. citinj^^ many cases (contract of sale of a gambling device or machine) ; and the interesting caSe of Barclay v. Pearson (1893), 2 Ch. 154, holding tliat a "missing word competition" was a lotteiy, and that the court would not admin- ister or distribute the fund contributed by the competitors. The ordinary so-called time contiacts purporting to be for the purchase of stocks, but in reality wholly speculative, and without any intention to sell or buy specific stocks, but only to gain or lose the difi'erence resvilting from the rise or fall of the market price, are clearly within tlie definition "gaming contracts." and therefore void: Embrey v. Jemison. 131 U. S. 330, 9 Sup. Ct. 770. If thov are made in good faith, with the intent of actually selling and buying certain specific stocks to be obtained l)v the vendor in the future, they have no element of invalidity: Irwin v. Williar, 110 U. S. 510, 4 Sup. Ct. 160. I'.iisiness of training horses for racing purposes, legal, but bettir.^f on races ilU'oal: Central Trust & S. D. Co., 112 Ky. 606, 66 S. \V. 421, 99 Am. St. Rep. 317. 487 coNSTurc'iivK fuaud. § 933 defined forms of these eontracts which have received judioial eon- denmation. The following' are the most important: ^larriage brok- ei'age contracts, by which one party agrees, for a consideration, t(-< jiegotiate or procure a marriage for the other. Courts of equity have condemned these agreements with an especial emphasis. They ai'e absolutely void, without the slightest regard to the situation of the spouses or the fitness of the marriage between them in the particular case. They are so utterly null that they cannot be rati- fied and confirmed; and it has even been held that money paid in jmrsuauce of them may be recovered back/ Contracts in restraint of marriage: While mutual promises by a man and a woman to marry each other are, of course, valid, although they are there])y prevented from marrying others, agreements not to marry at all, or not to marry any one unless it be the promisee, without any cor- responding stii)ulation by that party, as well as more general forms of contract restraining the freedom and power of marriage, are A'oid.- . . . Secret contracts in fraud of marriage : Secret agree- ments of any kind or form, concealed from one or both of the spouses, the object of which is to promote a particular marriage, or to induce one or both the parties to enter into a marriage, are plainly- opposed to public policy and void.^ . . . Analogous to marriage brokerage contracts, and depending upon the same rea- sons, are agreements to pay a compensation to a person for using Lis influence with a testator to procure a will, devise, or bequest to be made in favor of the promising party.^ § 932. Agreements for a Separation. — Whatever may have been the opinion at an earlier day, it is now thoroughly settled that agreements for a separation between husband and wife, if valid in form, made upon a sufficient consideration, and executed by parties legally capable of contracting, are not illegal; they will even be specifically enforced in equity, by decreeing the execution of the proper deed, and by restraining either party from personally inter- fering with the other in violation of their covenants.^ *HaIl V. Potter, Show. Pari. C. 7G, 3 Lev, 411, 2 Scott G63; Duval v. Wellman, 124 N. Y. 1.58, 20 N. E. 343; Morrison v. Rogers, 115 Cal. 2.32, 4(i Pae. 1072. 5(5 Am. St. Rep. 95, -England v. Downs, 2 Beav. 522 White v. Equitable Nuptial Benefit liiidii, 7- Ala. 251, 52 Am. Rep. 325. =■ Palmer v, Neave, 11 Ves. 105: Gale v. Lindo, 1 Vevn. 475, 2 Scott 732. ' Debenham v. Ox, 1 Ves. Sr. 270, 2 Scott GOO. While such contracts arc clearly void, agreements between the heirs or near relatives of a testator, in jiiit icipation of a will, stipulating to share equally the ]iro])('riy which may be bequoathcd to thoni, are valid, and arc rallicr favored by courts of equity: VVetlicred v. ^Vetherc(l. 2 Sim. IS.S. »Huut V. Hunt, 4 De Gex, F. & J. 221, 2.3.1, 1 Ames Kq. Jur. 131; Clark V. § 933 EC^UITY JUIUSPRUDEXCE. 488 § 933. B. Conditions and Limitations in Restraint of Marriage. — Intimately connected with contracts in restraint of marriage, and depending npon the same principle, are conditions and limitations operating- in like manner annexed to or forming part of testamen- tary dispositions, or of family settlements, or similar gifts. Al- though the subject, in some of its special applications and phases, is still more confused and uncertain than perhaps any other branch, of equity jurisprudence, yet certain general rules have been estab- lished beyond all further controversy. Tavo propositions lie at the foundation, and are recognized by all the authorities : 1. It is ordi- narily said that all conditions annexed to gifts which prohibit mar- riage generally and absolutely are void and inoperative. This, how- ever, is a very inaccurate mode of statement, since a condition precedent annexed to a devise of land, even if in complete restraint, will, if broken, be operative and prevent the devise from taking effect. With this limitation all conditions in general restraint are void. Also, if a condition is not in absolute restraint, but is of such form that it will prohahly operate as a general prohibition, it is, under the same limitation, void.^ 2. On the other hand, condi- tions annexed to testamentary or other gifts, in partial and reason- able restraint of marriage, are valid and operative; such, for ex- ample, as that a devisee or legatee should not marry under age, or should not marry without the consent of parents, guardians, or trustees, or should not marry a particular person, or a person belonging to a particular religious communion.'- In the application of these two propositions, certain si)ecial rules have been settled with more or less certainty, depending upon the facts of the con- dition being precedent or subsequent, of there being, or not, a gift over upon its breach, and of the original gift to which the con- dition is annexed being one of real or of personal estate. The sys- tem which has been developed is a partial compromise between the technical common-law rules concerning conditions, and the (ioc- trines of the Roman law, \vhich made void all attempts to restrict the perfect freedom of marriage; and, like most compromises, it* has some incongruous features. If a condition is precedent and annexed to a gift of land, it operates as at the common law; when Fosdick, lis N. Y. 14, 22 X. E. 1111, 16 Am, St. Rep. 73.3, L. R. A. 132. An agreement by a wife to relinquish all right of siipiiort in case a divorce is granted is illegal: Birch v. Anthony, 100 Ga. 349, 34 S. E. .jGI, 77 Am. St. Rep. 379. 'Scott V. Tyler, 2 Bro^\^l Ch. 431, 2 Dick. 712, 2 Lead. C'as. Eq. 4th Am. ed. 429, 475. ^ Scott V. Tyler, supra; Stackpole v. Beaumont, 3 Yes. 89; .Jenner v. Turner, 16 Ch. Div. 188 (condition against marrying a domestic servant); Gra;^don V. Graydon, 23 N. .7. Kq. 229. 489 COXSTKUCTIVK FliAUD. § 933 broken, it prevent> the estate from vestin3-i tht right to start the bidding by naming an "upset" price as the minimum, or the right to bid generally, or the right to withdraw the property. In regard to puffing, two cases may arise: 1. Where tlie sale is made without any preliminary announcement at all; 2. Where it is announced to be without reserve. In the first case, the rule is settled at law that any puffing — the employment of even one puffer — is illegal, and renders the sale voidable, at the option of the purchaser.*^ Courts of equity, in this case, allowed one puffer; in other words, puffing to the extent of one fictitious bidder did not render the sale voidable.^ If the vendor transgressed this limit, and employed more than one putt'er, the transaction became illegal at equity as well as at law; the fictitious competition was a fraud upon the bona fide bidders, which rendered the sale voidable.® In the second place, where an announcement is made that "the sale will be without reserve," or Avords to that effect, this is a pledge by the vendor that the competition shall be absolutely free ; the employment of any puffing — one or more puffers — reiiders the sale voidable in equity as well as at law, and of course defeats a speci- fic performance.^ The subject is now regulated in England by a recent statute.^" Fraudulent trade-marks: Another illustration of frauds upon the public in business dealings consists in the use of fraudulent trade-marks. The whole doctrine of infringement of trade-marks is based upon the notion of misleading the public; but this phase o*f the subject I do not at present touch upon.^^ The fraud now referred to is that of the original proprietor of the trade-mark, whose alleged right is invaded by an infringer, and who seeks the protection of courts. If a trade-mark contains a false- hood on its face, deceiving the public, and giving the goods a char- acter and reputation which they do not possess nor deserve, or if the business of the proprietor is itself illegal, or is knowingly car- ried on by him in a false and deceptive manner, the trade-mark is in fact a fraud upon the public ; no protection will be given to •^^Towle V, Leavitt, 23 N. H. 360, 55 Am. Dee. 195; Staines v. Shore, 16 Pa. St. 200, 55 Am. Dee. 492, ' Although this rule was settled, it has been applied very reluctantly' in re- cent decisions, and the tendency is evident, both in England and in the United States, to bring the equity rule into an agreement witli the legal one. even in the absence of any statute: Bramley v. Alt, 3 Ves. 620; Flint v. Woodin, 9 Hare, OlS. 'It is probable tliat most American courts of equity would noio disregard this distinction between one pufl'er and more than one: See Peck v. List, 23 ^^■. Va. 338, 48 Am. Rep. 398. ■'Robinson v. Wall, 2 Phill. Ch. 372, 375; Flannery v. Jones, 180 Pa. St. 338, 36 Atl. 856, 57 Am. St. Rep. 648. ^ ■"'30 & 31 Vict,, e. 48. "See § 1354. § 1)35 EQUITY Jl'lIISl'ULDENCi:. 491 the proprietor against an infringement. It is added, however, that a false representation by the proprietor, as to a matter wholly col- lateral to his trade-mark, does not affect his right to a remedy either in equity or at law.^- Contracts opposed to the policy of some stat- ute prescribing modes of certain business dealings.^^ Contracts of trading with alien enemies.^* § 935. D. Contracts Affecting' Public Relations. — Contracts made for the purpose of unduly controlling or affecting official conduct, or the exercise of legislative, administrative, and judicial functions, are plainly opposed to public policy. They strike at the very foundations of government, and tend to destroy that confi- dence in the integrity and discretion of public official action which is essential to the preservation of civilized society. The principle is universal, and is applied without any reference to the mere out- ward form and alleged purpose of the transaction. If a contract coN^i lat ii\i; I'livri). § 940 conclusion is sustained by tlie hiiilK'st iuithority, and is in perfect accord Avith principle. - i^ 939, Other Illegal Contracts. — 1 purpose to explain the mean- ini recover back the consideration, or the money advanced, or the value of the property, etc. In such a case, the less guilty party is entitled to relief, whether the agreement has been executed on both sides, or whether it Ik; executory on the side of the defendant. What contracts are thus unequal in their illegality, so that the doctrine of implied promise may be invoked, mu^-t depend, in great measure, upon the language of the statute creating lhly. To impeach such a transaction recpiires ])roof of actual fraud or coercion, (^nui-fs do not set aside conveyances and contracts simply because the judges may regard them unfavorably: Cowee v. Cornell, 75 N. Y. 91, 99, 100; 31 Am. Rep. 42S, H. & B. 316. § 950 EQUITY JUKlSl'RUDEXuii. 508 does not materially affect the understanding and the will, does not constitute a defense to the enforcement of an executory agree- ment, and much less is it any ground for afRmiative relief.^ An intoxication which is absolute and complete, so that the party is for the time entirely deprived of the use of his reason, and is wholly unable to comprehend the nature of the transaction and of his own acts, is a sufficient ground fo)' setting aside or granting other appropriate affirmative relief against a conveyance or contract made while in that condition, even in the al)sence of any fraud, procurement, or undue advantage by the other party.- Where the intoxication is not thus absolute and complete, but is still sufficient to materially affect and interfere with the person's reason, judg- ment, and will, but is not procured nor taken advantage of un- fairly by the other party, the doctrine is settled that a court of equity will not interfere in behalf of either of the parties to a contract which is made while one of them is in such a condition.'' Finally, although the intoxication was only partial, if the other party produced it by his contrivance, and then took advantage of it, or made it the opportunity for acts of imposition, unfairness, and a fortiori fraud, equity will grant full affirmative thereof.* §950. Duress. — Whenever a conveyance or contract is obtained by actual duress, equity will grant relief, defensively or affirma- tively, by cancellation, injunction, or otherwise, as the circumstances may require. In determining what constitutes duress, — what force ^ An liahiduil drunkard is not noccssarily an incompetent ])orson : Wri,!T:lit v. Fisher, (i.l Midi. -27.), ?,2 X. \V. HO."), S Am. St. Rep. SS(J; Burnham v. Burnham (Wis.) 97 X. \V. 17(). -Thacixrah v. Haas, 11!) U. S. oOl, 7 Sup. Ct. 311. 2 Scott 746, .3 Keener 697; Hale V. Stery, 7 Colo. App. lO.i, 42 Pac. 598: Moetzel v. Koch (Iowa), 97 N, \V. 1079. If a ]iorson is thus completely intoxicated, a party openly dealing with him must, of course, perceive liis condition: it would seem that the jiarty knowingly taking the conveyance or contract under these circumstances was necessarily chargeable with inequitable conduct. * The court will not specifically enforc(> an executory contract against the intoxicated party at the suit of the other, nor will it set aside a conveyance or contract at the suit of the intoxicated party or his representatives; the parties are left to their remedies at law. This rule is an ap]ilication of the maxim in pari delicto, etc.: Cooke v. Clayworth, IS Ves. 12: Harbison v. Lemon, 3 Blackf. .51, 23 Am. Dee. 376. * Cooke V. Clayworth, 18 Ves. 12; Crane v. Conkliu. 1 X. J. Eq. 346, 22 Am. Dec. ;)19. (/'ourts of equity are extr<'mely cautious in granting anif relief on the ground of intoxication, and they will seldom give the remedy of cancellation, unless there was conduct ])lainly ineqiiitablc by the otlier party: to do so would require a V(>ry strong case in ^^■hicll the evidence \\as most con- vincing. Experience shows that a man may l)e very nmch intoxicated and still be shrewd, hard in driving a bargain, and in every way comijetent to manage his own business. 509 cONsTiiiJCTivi; i'i;aud. § 951 or threats, — equity follows the law. Courts oi" ecjuity undoubtedly grant relief in many classes of instances where there is no legal duress, and where the wronged party would perhaps be remediless at the common law, but these cases properly belong to the head of ** undue influence."^ §951. Undue Influence. — Where there is no coercion amounting to duress, but a transaction is the result of a moral, social, or domes- tic force exerted upon a party, controlling the free action of his will and preventing any true consent, equity may relieve against the transaction, on the ground of undue influence, even though there may be no invalidity at law. In the vast majority of in- stances, undue influence naturally has a field to work upon in the condition or circumstances of the person influenced, which render him peculiarly susceptible and yielding, — his dependent or fiihi- ciary relation towards the one exerting the influence, his mental or physical weakness, his pecuniary necessities, his ignorance, lack of advice, and the like. All these circumstances, however, arc incidental, and not essential. AYhere an antecedent fiduciary re- lation exists, a court of ecpvitv will presume confidence placed and influence exerted ; wdiere there is no such fiduciary relation, the confidence and influence must be proved liy satisfactory extrinsic evidence; the rules of equity and the remedies which it bestows are exactly the same in each of these two cases. The doctrine of equity con'-erning undue influence is very broad, and is based upon principles of the highest morality. It reaches every case, and grants relief "where influence is acquired and abused, or where confi- dence is reposed and betrayed."' It is specially active and search- ^Xicliolls V. Nicholls. 1 Atk. 400. 1 Scott 481: Williams v. Baylor. L. \\. 1 H. L. 200. 3 Keener 773: Louden v. P.lytlie. 10 Pa. St. 532, 55 Am. Dec. 527 (acknowledgment of deed of married woman obtained by duress). Tlireats of prosecution agrainst a near relative of tbe party: Sharon v. Gager, 46 Conn. ISO, 2 Scott 713: Winfield N^t. Bank v. Croco. 46 Kan. 620. 26 Pac. 039; City National Bank v. Knsworni. SS V\"is. 118. 59 N. W. 564. 43 Am. St. Rep. 8S0. 26 L. R. A. 48. 3 Keener 705. No duress: York v. Hinkle. SO Wis.. 624, 50 X. W. 895, 27 Am. St. Rep. 73. 3 Keener 770: Fulton v. Loftis. 03 X. C. 393. 1 Scott 486 (duress after a contract is made). ' Smith V. Kay. 7 H. L. Cas. 750, 779, per Lord Kingsdown. Tn Hall v. Hall. 37 L. .1. P. & ]\I. 40. L. R. 1 P. & M. 481, Mr. Justice Wilde laid down the rules in a most admirable manner which apply to the execution of instru- ments inter vivos as well as to wills: "To make a sfood will, a man musl lie a free agent, but all influences are not imlawful. Pei-smision appeals lo the affections or ties of kindred, fo n sentiment of gratitude for past services or pity for future destitutifm, or flie like. These are all legilimate, and may be fairly ])ressed on a feslalor. On the other hand, ]iressure of whatever character, whether acting on Ihe fears or lh(> hopes, if so exerted as to o\er~ power the volition witliout (•(nivincing Die judgment, is a s])ecies of restraint under which no valid will can he made. Importiniitv or tlireats such as the § 953 EQUITY JURISPRUDEXCE. 510 iug in dealing ■witli gifts, but is applied, when neces.sary, to con- veyances, contracts executory and executed, and Avills. § 953. Expectants, Heirs, and Reversioners. — Expectant heirs, reversioners, and holders of other expectant interests stand m a position different from that of all other persons sui juris, and a special jurisdiction for their protection has long been well estab- lished. This jurisdiction rests upon two distinct foundations. In the first place, heirs, reversioners, and other expectants, during the lifetime of their ancestors and life tenants, are considered as pe- culiarly liable to imposition, and exposed to the temptation and danger of sacrificing their future interests, in order to meet their present wants. Being sometimes in actual, but more often in im- aginary, distress, they do not stand upon an equal footing with those who deal with them concerning their expectant estates, and such persons are in a position to take advantage of their condition, and to dictate inequitable and even extravagantly hard terms in any contract of loan or purchase which may be made. In the second place, the dealings of heirs and reversioners with their ex- pectant interests are often a gross violation of the moral if not legal duties which they owe to their ancestors and life tenants who are the present owners of the i)roperty, and from or through whom their future estates \vill come, and may be a virtual fraud up- on the rights of those parties. Equity, therefore, treats such deal- ings with expectant interests as a possible fraud upon the heirs and reversioners who are immediate parties to the transaction, and as a virtual fraud upon their ancestors, life tenants, and other present owners. Upon these two considerations the equitable jurisdiction is founded. The rule is well settled that all conveyances, sales, and charges, and contracts of sale or charge, of their future and expectant interests made by heirs, reversioners, and other ex- pectants during the lifetime of their ancestors or life tenants, upon an uiadeqiiate considemtlon, will be relieved against in equity, and either wholly or partially set aside. In this instance, fraud is inferred from tmn-c inadequacy of consideration. All dealings testator has not the courage to resist; moral conimaiul asserted, and yielded to for the sake of peace and quiet, or of esr-apins from distress of mind or social discomfort — these, if carried to a desree in ^vhich the free play of the testator's judgment, discretion, or wishes is overborne, will constitute undue influence, though no force is either used or threatened. In a word, a testator may be led, not driven, and his will must be tlie offspring of his owTi volition, and not that of another." See, also, Dowie v. DriscoU. 203 111. 480, 68 N. E. 56; Leighton v. Orr, 44 Iowa 679; Ran v. Von Zedlitz. 1.32 Mass. 164, 3 Keener 784, 1 Scott 487; Hollocher v. Hollocher. 62 Mo. 267 (what kind of influence is not undue); Haydock v. Haydock. 33 N. .T. Eq. 494, 3 Keener 807; Fisher v. Bishop, 108 N. Y. 25, 2 Am. St. Rep. 357, 15 N. E. 331 ; Hartman y. Strickler, 82 Va. 225. 511 COXSTKLCTIVE FRAUD. § 95i by such expectants are not necessarily and absolutely voidable. But in every such conveyance or contract with an lieir, reversioner, or expectant, a presumption of invalidity arises from the trans- action itself, and the burden of proof rests upon the purchaser or other party claiming the benefit of the contract to show affirm- atively its perfect fairness, and that a full and adecjuate considera- tion was paid, — that is, the fair marl-iet value of the property, and not necessarily the value as shown by the life-tables. If he suc- ceeds in overcoming- the presumption by showing these facts, the transaction Avill'stand; otherwise it will be set aside. It is not necessary to show as a condition of relief that the heir or reversion- er was an infant, or that he was in a condition of actual distress when the bargain was made. A court of equity presumes distress. The very fact of the sale or charge show^s prima facie that he Avas not in a position to make his own terms, and that he submitted to have them dictated to him by the other party. The foregoing rules assume, simply, that there was an inadequacy of consideration, without any further element of fraud. If, in addition, the circum- stances show actual fraud, misrepresentations, or concealments, oppression, taking undue advantage of real necessities, or other unfair, inequitable dealing by the party who accjuires the expectant interest, a court of e((uity Avill grant full relief without regard to any presumption.^ Whenever a conveyance, sale, or contract for sale is set aside in this manner on the sole ground of inadecjuacy of consideration, the relief is granted only upon condition that the .sum actually paid or loaned, with interest thereon, is refunded; and the court will so frame its decree, if necessary, that the con- veyance or sale, instead of being immediately and absolutely can- celed, shall stand as security for the amount which, it is adjudged, should be repaid.'- . . . §954. Post Obit Contracts. — In strict analogy to the e(juitable relief against sales of expectancies, and depending upon the same reasons, is that against post obit contracts. A post obit contract is an agreement made by an expectant heir, successor, devisee, or legatee, whereby, in consideration of a smaller sum loaned, he promises to pay to the creditor a much larger sum, exceeding in amount the principal and lawful interest, upon the death of the person from whom he expects the inheritance, succession, or bequest, provided he himself should survive such person. Such an ^Fry V. Lane, L. R. 40 Cli. Div. 315: MoClure v. Rabon. 12.5 Ind. 1.39, 25 X. E. 179, 9 L. R. A. 477, 1.33 Ind. 507, 33 X. E. 275, 30 Am. St. Rep. 558; In re Garcelon, 104 Cal. 584, 38 Pae. 414, 32 L. R. A. 595, 43 Am. St. Rep. 953: Rear! v. Mosby, 87 Tenn. 759, 11 S. W. 940, 5 L. R. A. 122. = Miller v. Cook, L. R. 10 Eq. G41; Croft v. Graham. 2 De Cox. .T. & S. 15.5. §955 EiyUlTY JUinSPKUDEXCE. 512 instrumeiat is clearly an imposition upon the debtor, since it neces- sarily takes advantage of his actual or supposed necessities. It is also a gross fraud upon the ancestor or testator; it offers a pre- mium upon his death ; being a wagering contract, it renders the creditor's interest dependent upon his speedy death. Post obit con- tracts, and all other instruments essentially the same though dif- fering in form, will be set aside. In granting this relief, as in the similar ease of dealings with expectancies, where there are no special circumstances of unfairness or imposition, and the inad- equacy of consideration is the sole ground of "interference, the court will require a repayment to the lender of what is justly due, and may permit the security to stand for such amount until it is repaid.^ § 955. II. Transactions Presumptively Invalid between Persons in Fiduciary Relations. — It is of the utmost importance to obtain an accurate conception of the exact circintistanccs under which the equitable principle now to be examined applies ; otherwise the entire discussion of the doctrine will be confused and imperfect. In the various instances described in the preceding paragraphs there has been an actual undue influence consciously and designedly exerted upon a party who was peculiarly susceptible to external pressure on account of his mental weakness, old age, ignorance, necessitous condition, and the like. The existence of any fiduciary relation Avas unnecessary and immaterial. The undue ij^^uen^^ being established as a fad. any contract obtainetl ^^ »5rfler trans action accomplished by its means is voidable, and is set aside without the necessary aid of any presumption. The single circum- stance now to be considered is the existence of some fiduciary relation, some relation of confidence subsisting between two par- ties. No mental weakness, old age, ignorance, pecuniary distress, and the like, is assumed as an element of the transaction; if any such fact be present, it is incidental, not necessary, — immaterial, not essential. Nor does undue influence form a necessary part of the circumstances, except so far as undue influence, or rather the ability to exercise undue influence, is implied in the very con- ception of a fiduciary relation, in the position of superiority occu- pied by one of the parties over the other, contained in the very definition of that relation. This is a most important statement, not a mere verbal criticism. Nothing can tend more to produce ^ Gw^nine v. Hcatnn. 1 r>ro\\ni Cli. 1, 0, .3 Keener .'50.1; Crowe v. Ballard, :? Brown Ch. 117, 120, 2 Scott 750; Boynton v. Hubbard. 7 Mass. 112. As to fair and valid agreements amonnr expectant heirs or snccessors to share the property which may come to them, see Trull v. Eastman. 3 Met. 121^ 123, 37 Am. Dec. 12G. 513 coxsTurcTivK thaud. § SJ57 confusion and iiiaeciiracy in the discussion of the subject than the treatment of actual undue influence and fiduciary relations as though they constituted one and the same doctrine. § 956. The General Principle. — It was shown in the preceding section that if one person is placed in such a fiduciary relation towards another that the duty rests upon him to disclose, and he intentionally conceals a material fact with the purpose of inducing the other to enter into an agreement, such concealment is an actual fraud, and the agreement is voidable without the aid of any presumption. We are now to view fiduciarj^ relations under an entirely different aspect ; there is no intentional concealment, no misrepresentation, no actual fraud. The doctrine to be examined arises from the very conception and existence of a fiduciary rela- tion. While equity does not deny the possibility of valid trans- actions between the two parties, yet because every fiduciary re- lation implies a condition of superiority held by one of the parties over the other, in. every transaction between them by which the superior party obtains a possible benefit, equity raises a presumption against its validity, and casts upon that party the burden of proving affirmatively its compliance with equitable requisites and of thereby overcoming the presump- tion.^ . . . Courts of equity have carefully refrained from defining the particular instances of fiduciary relations in such a manner that other and perhaps new cases might be excluded. It is set- tled by an overwhelming weight of authority that the principle extends to every possible case in which a fiduciary relation ex- ists OS a fact, in which there is confidence reposed on one side, and the resulting superiority and influence on the other. The .relation and the duties involved in it need not be legal; it may be moral, social, domestic, or merely personal. § 957. Two Classes of Cases. — There are two classes of cases to be considered, which are somewhat different in their external forms, and are governed by different special rules, and which still depend upon the single general principle. The first class includes all ^Spp Tate v. Williamson, L. R. 1 Eq. 528, 536. per Page Wood, V. C. (Lord Hatherley) ; Tate v. Williamson, L. R. 2 Cli. 55, 60, 61, H. & B. 337. Sh. 193. See, also. Rhodes v. Bates. L. R. 1 Ch. 252. 257: Billage v. Soutliee, Ilaro 534, 540; Hatch v. Hatch. Ves. 202, per Lord Eldon; Smitt v. Kay, 7 IT. L. Cas. 750; also, the tolloAving cases, among many others, in which §§ 955, 956 are quoted and followed: Keith v. Killam, 35 Fed. 243, 246; Cowen v. Adams, 78 Fed. 536, 552, 47 V. S. A. 676; Noble's Adm'r v. Moses, 81 Ala. 530, 1 South. 217, 60 Am. Rej). 175: Nichols v. IMcCariliy. 53 Conn. 299. 55 Am. Rep. 105, 23 Atl. 93: Roby V. Colehour, 135 III. 300. 25 N. E. 777; Thomas v. Whitney, 18fi 111. 225. 57 N. E. 808; Tompkins v. Ilollistor. 60 T\TicIi. 470, 27 N. W. 651; Crawford v. Crawford, 24 Nev. 410, 56 Pac. 94 ;Chenvront v Cheuvront, (W. Va.) 46 S. E. 23? 33 § y58 EQUITY JURISPRUDENCE. 514 those instances in wliieh the two parties consciously and inten- tionally deal and negotiate with each other, each knowingly tak- ing a part in the transaction, and there results from their dealing some conveyance, or contract, or gift. To such cases the principle literally and directly applies. The transaction is not necessarily voidable, it inaij be valid ; but a presumption of its invalidity arises, which can only be overcome, if at all, by clear evidence of good faith, of full knowledge, and of independent consent and action. The second class includes all those instances in which one party, juirporling to act in his fiduciary character, deals w-ith himself iu his private and personal character, without the knowledge of his beneficiary, as where a trustee or agent to sell sells the property to himself. Such transactions are voidable at the suit of the beneficiary, and not merely presumptively or prima facie invalid. Nevertheless this particular rule is only a necessary ap- plication of the single general principle. The circumstances show^ that there could not possibly be the good faith, knowledge, and free consent required by the principle, and therefore the result which is a rebuttable presumption in the first class of transactions becomes a conclusive presumption in the second. The transactions belonging to the first class may be gifts, or agreements and conveyances upon valuable consideration. The principle is applied with great em- phasis and rigor to gifts, whether they are simple bounties, or purport to be the effects of liberality based upon antecedent favors and obligations.^ Contracts, executory or executed, made upon a valuable consideration are not. perhaps, scrutinized with quite so much severity as gifts, but they are subjected to the operation of the same principle, and must conform to its requirements. - Having thus explained the general nature and scope of the prin- ciple, I shall now describe its application to the most impoi'tant and familiar forms of fiduciary relations, and its effects upon the rights and liabilities of the parties thereto. §958. Trustee and Beneficiary. — As the general powers, duties, and liabilities of ti'ustees ^^'in be more fully discussed in a subse- quent chapter, I shall at present simply state in the briefest manner those rules growing out of the fiduciary relation whicli regulate ^Husuenin v. Hasolpy, 14 Ves. 27.3. 2 Lead. Cas. Eq. IL^fi. 1174, \\92; Xicliols V. McCarthy, 53 Conn. 299. .5.5 Am. Rep. 10.5. 2.3 Atl. 9.3: Shea's Appeal. 121 Pa. St. 302, 15 Atl. 029, 1 L. R. A. 422. For tlie rule reqnirinc; indcprvdent advice to sustain sifts, see post, §§ 958, 9(i0. Testamentary gifts stand npon a somewhat different footin trustee deals, with respect to the trust, directly with his beneficiary : A purchase hy a trustee from his cestui que trust, even for a fair price and Avithout any undue advantage, or any other transaction between them by which the trustee obtains a benefit, is generally voidable, and will be set aside on behalf of the beneficiary; it is at least prima facie voidable upon the mere facts thus stated.- There is, however, no imperative rule of equity that a transaction between the parties is necessarily, in every instance, voidable. It is possible for the trustee to overcome the presumption of invalidity. If the trustee can show, by unimpeachable and convincing evidence, that the beneficiary, being sui juris, had full information and complete understanding of all the facts concerning the property and the transaction itself, and the person with whom he was dealing, and gave a perfectly free consent, and that the price paid was fair and adequate, and that he made to the beneficiary a perfectly hon- est and complete disclosure of all the knowledge or information concerning the property possessed by himself, or which he might, with reasonable diligence, have possessed, and that he has obtained no undue or inequitable advantage, and especially if it appears that the beneficiary acted in the transaction upon the independent information and advice of some intelligent third person, competent to give such advice, then the transaction will be sustained by a court of equity.-' The doctrine is enforced with the utmost strin- gency, when the transaction is in the nature of a bounty conferred upon the trustee, — a gift or benefit without full consideration. Such a transaction will not be sustained, unless the trust relation Avas for the time being completely suspended, and the beneficiary acted throughout upon independent advice, and upon the fullest information and knowledge. § 959. Principal and Agent. — E(|uity regards nnd treats this relation in the same general manner, and with nearly the same strictness, as that of trustee and beneficiary. The underlyini^ thought is, that an agent shoulci xiot unite his personal and his -Ex parte Lacey. 6 Ves. 625, 627; Ingle v. Richards, 28 Bcav. 361; Smitli v. Towiishend, 27 Md. 368, 92 Am. Dec. 637; Bertman v. Whipple (R. I.) 57 Atl. 37!). " The independent advice of a third person does not seem to be an essential feature in purchases for a fair consideration; but it does seem to be in- dispensable in transactions having the natvire of gifts, whereby the trustee obtains some benefit — as, for example, a release of claims against the trustee given by the cestui que trust as a liounty: Lloyd v. Attwood, 3 De Oex & J. 614. As to purchase by trustee from the beneficiary, see Coles v. Trecothick. 9 Ves. 234, 246; Nichols v. McCarthy. r)3 Conn. 200. 23 Atl. 93, 55 Am. Rep. 105; Colton V. Stanford, 82 Cal. 351. 16 Am. St. Rep. 137, 150. 23 Pac. 16. As to absolute necessity of independent advice in case of a gift, see Allcard v. Skinner, 36 Ch. D. 145, 180 ff; Powell v. Powell (1000), 1 Ch. 243, and post, §060. 517 COXSTKLCTIVK 1-UALl). § 959 representative cliarac'ters in the same transaction; and equity ^vill not permit him to be exposed to the temptation, or brought into a situation where his own personal interests contiiet with the interests of his prineipal, and with the duties which he owes to his princi- pal.^ In dealings without the intervention of his prineipal, if an agent for the purpose of selling property of the prineipal pur- chases it himself, or an agent for the purpose of buying propeity for the principal buys it from himself, either directly or througli the instriunentality of a third person, the sale or purchase is void- able; it will always be set aside at the option of the principal; the amount of consideration, the absence of undue advantage, and other similar features are wholly immaterial; nothing will defeat the principal's right of remedy except his own confirmation after full knowledge of all the facts.- Passing to dealings connected with the principal's intervention, in any contract of purchase or sale with the principal, or other transaction by which the agent obtains a benefit, a presumption arises against its validity which the agent must overcome ; although this presumption is undoubtedly not so weighty and strong as in the ease of a trustee. The mere fact that a reasonable consideration is paid, and that no undue ad- vantage is taken, is not of itself sufficient. Any unfairness, any underhanded dealing, any use of knowledge not communicated to the prineipal, any lack of the perfect good faith which eciuity requires, renders the transaction voidable, so that it will be set aside at the option of the principal.^ If, on the other hand, the agent imparted all his knowledge concerning the matter, and ad- vised his principal with candor and disinterestedness, as though he himself were a stranger to the bargain, and paid a fair price, and the principal on his side acted with full knowledge of the subject-matter of the transaction and of the person with whom he was dealing, and gave a full and free consent. — if all these are affirmatively proved, the presumption is overcome, and the transaction is valid. ^ These general doctrines are applied under ever}" variety of circumstances, and to every kind of transaction. As illustrations, when an agent has, during his employment, dis- '(iruniley v. Webb, 44 Mo. 444, 100 Am. Dec. 304; ]\Iallory v. :\Ialloiy- Wlieeler Co., 01 Conn. 135, 23 .\tl. 708 (corporation director) ; Seribner v. (\)llar. 40 Mich. 375, 29 Am. Rep; 541. -Bentley v. Craven, 18 Beav. 75, H. & B. 530; Porter v. Wootlrnlf, 3() X. J. Eq. 174. H. & B. 200. 'Panama, etc., Tel. Co. v. India Rnbber, etc., Co., L. R. 10 Ch. 515. 520. 3 Keener 550 (surreptitious dealing by ajjent with other party) ; Hegenmyer V. [Marks, 37 Minn. 0. 5 Am. St. Rop. 808, 32 N. W. 785 (non-disclosure of fact enbancinij value) ; Van Dusen v. Bitrelow (N. Dak.) 100 N. W. 723. * Rochester v. Leverinj?, 104 Ind. 5f)2, 4 N. E. 203. § 060 EQUITY JUKISPUUDKXCE. Ol'o covered a defect in his principal's title, he cannot, after the agency is ended, use such knowledge for his own benefit ; much less can he do so while the agency exists.^ Nor is an agent em- ployed to purchase or to sell, or in any other business, permitted to make profits for himself in the transaction, unless by the plain consent of his employer; for all such profits wrongfully made he must account to his principal;'^ and if he has taken the legal title to property in violation of his fiduciary duty, equity will treat him as a trustee thereof for his principal.' A gift by a principal to his agent may be valid and be sustained, if the absolute good faith, knowledge, and intent of both the parties is clearly established. "* After the agency has been ended, and the fiduciary relation has ceased, the foregoing rules no longer operate; the parties may deal w^ith each other in the same manner as any other persons.® §S60. Attorney and Client. — The courts of England have uni- formly watched all the dealings between attorneys or barristers and their clients with the closest scrutiny, and have established very rigorous rules concerning them. It must be conceded that this equitable doctrine has been to a considerable extent ignored, and these rules have been greatly modified in their application, by the courts in several of the American states. While the fact must' be admitted, it cannot be too much deplored.^ In regard to °As by acquiring a tax title to the principal's property for his own benefit: Ringo V. Binns, 10 Pet. 2ti!). = De Bussche v. Alt. L. R. 8 Ch. Div. 281; Bentley v. Craven, 18 Beav, 75, H, & B. .330: :\[cKinhy v. Williams, 74 Fed. 94, 20 C. C. A. 312, 36 U. S, App. 740. ' See post, S lO.lO: Rose v. Ilayden, 35 Kan. IOC. 10 Pac. 554, 57 Am. Rep. 145. *The equitable rule concerning gifts between principal and agent does not seem to be as stringent as that which regulates the similar dealings of trustees and their beneficiaries: Ralston v. Turpin, 25 Fed, 7, 18, affirmed, 129 U. S, 663, 9 Sup. Ct. 420; also, Adair v, Craig, 135 Ala. 332, 33 South. 902. "Burwell v. Burwell (Va.), 49 S. E. 68. Even then, however, a former agent is not permitted to use special knowledge, which he acquired by means of his agencj', to benefit himself at the expense of the former principal: Trice V. Comstock, 121 Fed. 620, 57 C, C, A. 646, 61 L. R. A, 176; Luddy's Trustee v.'Peard, 33 Ch. D. 500. ^ 1 venture the suggestion that no single circumstance has clone more to debase the practice of the law in the popular estimation, and even to lower the lofty standard of professional ethics and self-respect among members of the legal profession itself, in large portions of our country, than the nature of the transactions, often in the highest degree champertous, between attorney and client, which are permitted, and which have received judicial sanction. It sometimes would seem that the fiduciary relation and the opportunity for undue influence, instead of being the grounds for invalidating such agreements, are practically regarded rather as their excuse and justification. The abov(> observations of the author are quoted with approval in Elmore v. .Johnson, 143 111. 513, 525, 36 Am. St. Rep. 401, 404, 32 X. E. 413, 21 L. R. A. 306, H. & B. 343. 519 CONSTULCTIVE FKALU. § 91)0 jiifts, the rule is definitely settled, although it may not fihrajjs have beeu followed by American courts, that no gift from a client to his attorney, made while the relation is still subsisting, is valid. In order that a gift from a client to his own attorney nuiy be sustained, the donee must not only show affinnatireli/ the perfe".t good faith of the transaction, the absence of any pressure or in- tiuence on his own part, the complete knowledge, intention, consent, and freedom of action on the donor's part, but it must also ap- pear that, pro hae re,- — that is, in all the dealings connected with the gift itself, — the relation of attorney and client between the two parties had been suspended, by means of independent advice furnished to the client by some disinterested and competent third person, through which the client was instructed and upon which he acted. Whatever may be the other circumstances, unless it bo shown that the client, in conferring his bounty, had the benefit of such independent counsel and advice, the gift must fail.- In regard to purchases, sales, and other similar contracts between the at- torney and client, the rule is not so stringent. Such species of contract made while the relation is still subsisting may be valid, and independent advice to the client from a third person is never essential, although veiy proper. The presumption always arises against the validity of a purchase or sale between the client and attorney made during the existence of the relation. The attorney nuist remove that presumption by showing affirmatively the most perfect good faith, the absence of undue influence, a fair price, knowledge, intention, and freedom of action by the client, and also that he gave his client full information and disinterested ad- vice; in the language of Lord Eldon, "the attorney nuist prove that his diligence to do the best for his vendor has been as great as if he was only an attorney dealing- for that vendor with a stranger."^ If all these circumstances are proved, the contract will stand; if not, it will be defeated or set aside.^ In the conduct = Gibson v. Jeyes, f) Ves. 20(1, 271. = Morgan v. Minnelt, L. R. G Ch. Div. G38; Liles v. Terry (1895), 2 Q. B. 870, .3 Keener 827; Greenfield's Estate. 14 Pa. St. 489, 506. A distinction exists between gifts inter vivos and testamentary gifts. A bequest to the testator's attorney will be lield valid, even where the attorney himself draws up the ^^ill, if the testator's capacity and freedom of action be shown: Hindson v. Weathcrill, 5 De Gex, M. & G. 301. See Post v. IMason, 91 N. Y. 539, 43 Am. Rep. G89. ♦Edwards v. Meyrick, 2 Hare 60: Hesse v. Briant, 6 De Gex, M. & G. 623, 2 Keener S58; Wright v. Carter (1903). 1 Ch. 27. The American cases do not exhibit so much uniformity. WHiile all recognize the general rule, theoretically at least, and while some apply it with firnmess and rigor, otliers have virtually emasculated it in its application. Transactions have been sustained ^\•hich an English court would hardly suder to be discussed, and would visit Hk^ attorneys engaged in them with the severest censure: Dunn v. Dunn, 42 N. J. Fai. 431, § 961 EQUITY JURISPllUDEXCE. 520 of his employment, the attorney must consult his client's interests in preference to his own. He is not permitted, therefore, to make any profit out of the employment, other than his due compensa- tion, except with the knowledge and consent of his client; for all such profits he must account, and if necessary, will be treated as a trustee.^ When an attorney has the charge of or is emploj^ed to conduct a judicial sale of property, he cannot become the purchaser without full explanation and information given to his client of his intention.*^ The English rules concerning compensation, and agreements with respect to payment or security of compensation, are exceedingly strict, but they have been relaxed in many if not all of the American states.^ All of the foregoing rules apply not only to those who are technically attorneys, but also to all who de facto act as professional or legal advisers.^ §961. Guardian and Ward. — The equitable rules concerning dealings between guardian and ward are very stringent. The re- lation is so intimate, the dependence so complete, the influence so great, that any transactions between the two parties, or by the guardian alone, through which the guardian obtains a benefit, entered into while the relation exists, are in the highest degree suspicious; the presumption against them is so strong that it is hardly possible for them to be sustained. Indeed, many authorities lay down the positive rule that the parties are wholly incapacitated from contracting, and that any such transaction between them is necessarily voidable. This statement is })erhaps too broad. ^ A 7 All. 842, 3 Keener 819: Elmore v. Johnson, 143 111. r)13. 3G Am. St. Rop, 401. 32 N. E. 413, 21 L. R. A. 3(56, H. & B. 343. ■* As to making a profit, etc., see Luddy's Trustee v. Peard, 33 Ch. D. 500 (using information gained as a solicitor) ; ^McDowell v. Milroy, 69 111. 498. Pur- chasing property wliich client desires to purcliase: Luddy's Trustee v. Peard, supra; Vallette v. Tedens, 122 111. GOT, 3 Am. St. Rep. .502, 14 X. E. .52 (holds it in trust for client). Acting for two parties, and making a contract in violation of liis duty to one of them: Hesse v. Briant, 6 De Gex, M. & G. 623, 2 Keener 858; Baker V. Humphrey, 101 V. S. 404. Acting for opposing litigants: Klabunde v. Byron-Reed Co., (Nebr.) 98 X. W. 182. "This rule seems to be settled by the English decisions, and is followed by some, but not by all, of the American cases: Olson v. Lamb, 56 Xebr. 104, 76 X. W. 433, 71 Am. St. Rep. 670; Pacific R. R. v. Ketchum, 101 U. S. 289 ( purchase allowed ) . 'See Gresley v. Mousley. 3 De Gex, F. & J. 433; Cheslyn v. Dalby, 2 Younge & C. 170; Kidd V. Williams, 1.32 Ala. 140, 31 South. 458, 56 L. R. A. 879 (independent advice not necessary). *Tate V. Williamson, L. R. 1 Eq. .528. 2 Ch. 55, H. & B. 337, Sh. 193 (a friend who acted as legal adviser) : Xesbit v. Lockman, 34 X. Y. 167 (attorney's clerk) : Vallette v. Tedens, 122 HI. 607, 14 X. E. 52, 3 Am. St. Rep. 502 (abstractor of titles) . 'Hatch V, Hatch, 9 Ves. 292; Scott v. Freeland, 7 Smedes & M. 409, 45 521 COXSTKLCTIVK F1!AL 1). § 903 will by the ward in his guardian's i'avor is not viewed so strictly; the presumption against it may be overcome, and the will sustained.- The general doctrine of eciuity applies to the parties after the legal condition of guardianship has ended, and as long as the de- pendence on one side and intiuence on the other presumptively or in fact continue. This influence is presumed to last while the guardian's functions are to any extent still performed, while the property is still at all under his control, and until the accounts have been finally settled. It follows, therefore, that any convey- ance, purchase, sale, contract, and especially gift, by which the guardian derives a benefit, made after the termination of the legal relation, but while the influence lasts, is presumed to be invalid and voidable. The burden rests heavilj^ upon the guardian to prove all the circumstances of knowledge, free consent, good faith, absence of influence, which alone can overcome the presumption.'' If the legal relation has ended, and all these circumstances of good faith, full knowledge, and free consent are clearly shown, a set- tlement, conveyance, contract, or even gift from the former ward to his recent guardian will be as valid and as effective as the same transactions between any other competent persons.* It is not essential that a legal guardianship should exist; the doctrine ap- plies wherever the relatioii subsists in fact.° §962. Parent and Child. — "Transactions between parent and child may proceed npon arrangements between them for the settle- ment of property or of their rights in property in which the}' are interested. In such cases courts of equity regard the transactions -Avith favor. They do not minutely weigh the considerations on one side or the other. Even ignorance of rights, if ecjual on both sides, may not avail to impeach the transaction. On the other hand, the transaction may be one of bonnty from the child to the parent, soon after the child has attained twenty-one. In such cases the Am. Dec. 310 (laches) ; Ilindnian v. O'Connor, 54 Ark. 627. 10 S. W. 1052. 1.3 L. R. A. 400; see. liowover. Boyor v. East, 161 X. Y. 580, 56 X. E. 114, 76 Am. St. Rep. 200. -Daniel v. Hill, 52 Ala. 430 (a very instnietive case).' 'Hatch V. Hatch, 9 Ves. 202; Waller v. Armistead, 2 Leigh 11. 21 Am. Dec. 504; Gillett v. Wiley, 126 111. 310, 19 N. E. 287. 9 Am. St. Rep. 587; Asl.ton V. Thompson. 32 INIinn. 25, 41, 42, 18 X. W. 018, 2 Scott 703: Sav v. Barnes, 4 Serg. &• R. 112. 8 Am. Dee. 670. ^Ralston v. Turpin, 25 Fed. 7, IS, affirmed. 120 V. S. 663. Sup. Ct. 420; Bickerstaff v. Marlin. 60 ]\Iiss. 509. 45 Am. Rep. 41S. ^For example, wherever a yoiino: person has actually been l)r()u<,dit up in the family and under the care of a relative or friend: Revett v. Harvey, 1 Sim. & St. .502: Allfrey v. Allfrey. 1 INIacn. k O. 87, 98, 1 Scott 394; Butler V. Hyland, SO Cal. 575, 26 Pac. IIOS. Guardian de son tort: Town of Thornton V. Oilman, 67 N. H. 392, 39 Atl. 900. § 9G3 EQUITY JLKISPRUDENCE. 522 court views the transaction witli jealousy, and anxiously interposes its protection to guard the child from the exercise of parental in- fluence."^ "The law on this subject is well settled. A child makes a gift to a parent, and such a gift is good if it is not tainted by parental influence. A child is presumed to be under the exercise of parental influence as long as the dominion of the parent lasts. Whilst that dominion lasts it lies on the parent maintaining the gift to disprove the exercise of parental influence, by showing that the child had independent advice, or in some other way. "When the parental influence is disproved, or that influence has ceased, a gift from a child stands on the same footing as any other gift; and the question to be determined is, whether there was a deliberate, unbiased intention on the part of the child to give to the parent. "- Where the positions of the two parties are reversed, where the parent is aged, infirm, or otherwise in a condition of dependence upon his own child, and the child occupies a corresponding relation of authority, conveyances conferring benefits upon the child may be set aside. Cases of this kind plainly turn upon the exercise of actual undue influence, and not upon any presumption of in- validity; a gift from parent to child is certainly not presumed to be invalid." § 963. Other Relations. — The equitable doctrine applies wit'h strictness to executors and administrators who, in common with all trustees, are prohibited from purchasing the property of the estate when sold in course of administration, and from making any personal profits by their dealings with it.^ The same general prin- ciple extends, with more or less force, to dealings between a phy- sician and patient,- a spiritual adviser and penitent,^ vendor and ' Baker v. Bradley, 7 De Gex, M. & G. 597. = Wright V. Vanderplank, 8 De Gex, M. & G. 133, 146, per Turner, L. J.; Xohle's Adm'r v. Moses, 81 Ala. 530, 1 South. 217, 60 Am. Rep. 175 (a very iiistruotive opinion); Carter v. Tice, 120 111. 277, 11 N. E. 529; Ashton v. Thompson, 32 Minn. 25, 41, 42, 18 N. W. 918. The gift was upheld in Far- rant V. Blanchford, 1 De Gex, J. & S. 107; Knox v. Singmaster, 75 Iowa 64, 39 N. W. 183, 3 Keener 813. ^Muloek V. Mulock, 31 N. J. Eq. 594; Yeakel v. McAtee, 150 Fa. St. 600, 27 Atl. 277: Burwell v. Burwell (Va.) 49 S. E. 68. The general doctrine of the text is applied to transactions between other near relation?, as gifts to a brother from a dependent sister: Gillespie v. Holland, 40 Ark. 28, 48 Ara- Rep. 1. ' Elting V. First Nat. Bank, 173 111. 368, 50 N. E. 1095. The majority of the American cases cited ante, under § 958, are of this character. = rnruh V. Lukens, 166 Pa. St. 324, 31 Atl. 110. •'Allcard v. Skinner, 36 Ch. Div. 145; Morley v. Loughnan. [1893] 1 Ch. 736, 3 Keener 833 (actual rather than constructive undue influence) ; Pironi V. Corrigan, 47 N. J. Eq. 135, 20 Atl. 218; Connor v. Stanley, 72 Cal. 556, 1 Am. St. Rep 84, 14 Pac. 306 (spiritualist medium). 523 ' CO.NSTKUCTIVE riJAUD. § 9G4 venelee of land/ liusbaiuls and wives, and persons occupying their jiosition,'' partners,'' and indeed all persons who occupy a position of trust and confidence, of intiueuce and dependence, in fact, although not perhaps in law.' There remain to be mentioned two other important relations which are partially fiduciary, and to which the principle applies with limitations, — that of surety and creditor and principal debtor, and that subsisting between pro- moters and directors or trustees of corporations and the corpora- tion itself and the stockholders.® These subjects are more fully examined in a subsequent chapter. §964. Confirmation or Ratification. — Where a party originally had a right of defense or of action to defeat or set aside a trans- action on the ground of actual or constructive fraud, he may lose such remedial right by a subsequent confirmation, by acquiescence, and even by mere delay or laches. "Wherever a confirmation would itself be subject to the same objections and disabilities as the original act, a transaction cannot be confirmed and made binding; for confirmation assumes some positive, distinct action or language, Avhich, taken together with the original transaction, amounts to a valid and binding agreement. In general, contracts which are void from illegality cannot be ratified and confirmed; eontrafts which are merely voidable because contrary to good conscience or equity may be ratified, and thus established.^ If the party origi- * Baker v. Monk, 4 De Gex, J. & S. 388. Mortgagor and mortgagee: Liskey V. Snyder, (\V. Va.) 40 S. E. 515; see post, § 1193. 'Corley v. Lord Stafford, 1 De Gex & J. 238; Hall v. Otterson, 52 X. J. Eq. 522, 28 Atl. 907, 3 Keener 401. Persons betrothed: Russell v. Russell, 129 Fed. 434. Persons cohabiting under a void marriage: Coulson v. Allison, 2 De Gex, F. & J. 521. Presumption against validity of conveyance by a man to his mistress: Shipman v. Furniss, 69 Ala. 555, 44 Am. Rep. 528. An important application of the principle is seen in the group of cases where one spouse receives a conveyance from the other on a parol agreement to re- convey, and is held to be a constructive trustee by virtue of the confidential relation; while in the absence of such relation, and of actual fraud on the grantee's part, the statute of frauds would generally prevent a trust from attaching to the property: See Brison v. Brison, 75 Cal. 525, 7 Am. St. Rep. 189, 17 Pac. 689, and other eases post, § 1056, end of note. "Bentley v. Craven, 18 Beav. 75, H. & B. 530; Colton v. Stanford, 82 Cal. ;551, 23 Pac. 10, 16 Am. St. Rep. 137. 'Tate V. Williamson, L. R. 1 Eq. 528, 2 Ch. 55, H. & B. 337, Sh. 193; Wake- man V. Dodd, 27 N. J. Eq. 504; Allen v. Jackson, 121 111. 567, 13 N. E. 840. »See ante, § 881; post, § 1077; New River ]\Iinera] Co. v. Seeley, 120 Fed. 193; Munson v. Syracuse, G. & C. R. Co., 103 N. Y. 58, 8 N. E. 355, H. & B. 531; Yale Gas Stove Co. v. Wilcox, 64 Conn. 101, 29 Atl. 303, 42 Am. St. Kep. 159, 25 L. R. A. 90: Oliver v. Oliver ((^.a.) 45 S. E. 232. 'Thus contracts illegal because opposed to statute, or to public policy, or to good morals, cannot be ratified, because the ratilicatioii itself would be 5; ;)oO EQUITY jurispkudkxcj:. ."24: jially possessing the remedial right has obtained full knowledge of all the material facts involved in the transaction, has become fully aware of its imperfection and of his own rights to impeach it. or ought, and might, with reasonable diligence, have become so aware, and all nndue influence is wholly removed so that he can give a perfectly free consent, and he acts deliberately, and with the intention of ratifying the voidable transaction, then his confirmation is binding, and his remedial right, defensive or af- firmative, is destroyed.'- If, on the other hand, the original undue influence still remains, or if the act is simply a continuation of the former transaction, or if the party wrongly supposes that the original tract or transaction is binding, or if he has not full knowl- edge of all the material facts and of his own rights, no act of confirmation, however, formal, is effectual; the voidable nature of the transaction is unaltered." i< 965. Acquiescence and Lapse of Time. — A second mode hy which the remedial right may be destroyed, and the transaction rendered unimpeachable, is acquiescence. The term "accpilescence" i.s sometimes used improperly. It differs from confirmation on the one side, and from mere delay on the other. While eonfil-mation implies a deliberate act, intended to renew and ratify a transaction known to he voidable, acquiescence is some act, not deliberately intended to ratif}' a former transaction known to be voidable, but recognizing the transaction as existing, and intended, in some ex- tent at least, to carry it into effect, and to obtain or claim the bene- fits resulting from it. The theory of the doctrine is, that a party, having thus recognized a contract as existing, and having done something to carry it into eft'ect and to obtain or claim its benefits, although perhaps only to a partial extent, and having thus taken his chances, cannot afterwards be suft'ered to repudiate the transac- tion and allege its voidable nature. It follows that mrrc delay, mere suffering time to elapse without doing anything, is not ac- quiescence, although it may be, and often is, strong evidence of an acquiescence; and it may be, and often is, a distinct ground for re- fusing equitable relief, either affirmative or defensive.^ As ac- oqually opposed to statute, good morals, or public policy. Contracts obtained by actual fraud, hy undue influence, by breach of fiduciary duty, and the like, may fic confirmed, because the jmrtics aJone are cuncterned ; tlie state or society has no special interest, as it has in those opposed to statute, public policy, or good morals. = Chesterfield v. Janssen. 2 Ves. Sr. r2."i, 1 Atk. 314. See, also, § 910; Cum- berland Coal Co. V. Sherman, 20 Md. 117. 'Crowe V. Ballard, 3 Brown Ch. 117. 2 Cox 2.i:i. 2 Scott 7.")!). 'See Duke of Leeds v. Amherst. 2 Phill. Ch. 117. 123: Do Bussche v. Alt, L. R. 8 Ch. Div. 280, 314. The suit was brought to set aside a sale made by 525 COXSTHLCTIVK FKAID. § 91)5 (iuiescence is thus a recognition of and consent to the contract or other transaction as existing, the requisities to its being ett'ective as a bar are, knowledge or notice of the transaction itself, knowl- edge of the party's own I'ights, absence of all undue influence oi' restraint, and consequent freedom of action ; a conscious intention to ratify the transaction, however, is not an essential element. When a party with full know'ledge, or at least with suf^cient notice or means of knowledge, of his rights, and of all the material facts, freely does what amounts to a recognition of the transac- tion as existing, or acts in a manner inconsistent with its repudia- tion, or lies by for a considerable time and knowingly permits the other party to deal vrith the subject-matter under the belief that the transaction has been recognized, or freely abstains for a con- siderable length of time from impeaching it, so that the other party is thereby reasonably induced to suppose that it is recognized, tliere is acquiescence, and the transaction, although originally im- an agent to himself in violation of his fiduciary duty. The lord justice said: "It still remains to be considered whether, short of such ratification or adop- tion, the plaintifl' can be held to have by his conduct in any way precluded himself from taking the present proceedings. The term 'acquiescence,' which has been applied to his conduct, is one whicli w'as said by Lord Cottenham, in Duke of Leeds v. .Amherst, supra, ought not to be used; in other words, it does not accurately express any known legal defense, but if used at all it must have attached to it a very cliflferent signification, according to whetlier the acquiescence alleged occurs while the act acquiesced in is in progress or only after it has been completed. If a person having a right, and seeing another person al)out to commit, or in the course of committing, an act in- fringing upon that right, stands by in such a manner as really to induce the person committing the act, and who might otherwise have abstained from it, to believe that he assents to its being committed, he cannot afterwards be heard to complain of the act. This, as Lord Cottenham said in the ease already cited, is in the proper sense of the term 'acquiescence,' and in that <(nsp may be defined as acquiescence under such cii'cumstances as that assent may be reasonably inferred from it, and is no more than an instance of the law of estoppel by words or conduct. But Avhen once the act is completed, without any knowledge or assent upon the part of the person whose right is infringed, the matter is to be determined on very different legal considera- tions. A riglit of action has then vested in him which, at all events as a gen- eral rule, cannot be divested without accord and satisfaction, or release under seal. Mrre fnihinifision to the injury, for any time short of the period limited by -laiuic for tlie enforcement of the right of action, eannoi take away sucb viiilit. although under the name of laahcs it may afford a ground for refusing relief under some peculiar eircumstances; and it is clear that even an ex- press promise by the person injured, that he would not "take any legal pro- ceedings to redress the injury done 1o him, could not by itself constitute a bar 1o sueli proceedings, for the jironiise would bi^ without consideration, and theicfore not bimling." In pursuance of this ])rinciplc so admirably ex- ))lained, the doctrine of "aiquiescciiee"' pi-o|)erI\- belongs to and is hereinbe- fore discussed in connection with e(|nitable esto]ipel, ante, §§ 810-821, § 967 EQUITY JUUISI'UUUEXCE. 536 poaehable, becomes unimpeachable in equity." Even where there has been no act nor language properly amounting to an acquies- cence, a mere delay, a mere sutfering time to elapse unreasonably, may of itself be a reason why courts of equity refuse to exercise Iheir jurisdiction in cases of actual and constructive fraud, as well as in other instances. It has always been a principle of equity to discourage stale demands; laches are often a defense wholly inde- pendent of the statute of limitation. Promptness in asserting a remedial right against fraud is sometimes required; but no delay will prejudice a defrauded party as long as he was ignorant of the fraud. Each case involving the defense of delay or lapse of time must, to a great extent, depend upon its own circumstances.'' i^ 966. Third. Frauds against Third Persons Who are not Par- ties to the Transaction, — As a general rule, in the cases which come within this group, and, strictly speaking, none others should belong to it, the transaction is not fraudulent as to the immediate parties, — the grantor and the grantee, and the like ; at least, neither of them is permitted, as against the other, to set aside the convey- ance, or to defeat the enforcement of the contract if it be executory. The transaction is of such a nature that it defrauds or invades the rights of third persons, who are not its immediate parties; and they alone are, in general, entitled to impeach it and to obtain affirmative relief against it.^ The only cases to be considered under this divi-' sion are secret bargains in fraud of compositions with creditors, transfers in fraud of creditors, and transfers in fraud of subse- (luent purchasers. § 907. Secret Bargains in Fraud of Compositions with Creditors. — Where a composition is made by a debtor with his creditors upon the basis of his payment to all who join in the transaction the sam(^ l)i"oportionate share of their claims, and of being therefore dis- chai-ged b^' them from all further liability, a secret agreement by tb.e debtor with one of these creditors, expressly or impliedly as a condition for the hitter's joining in the composition, whereby tlie debtor pays or secures to the favored creditor a further sum of money or amount of property, or greater advantage than that re- ceived and shared alike by all the other creditors, is a fraud u])on such other creditors, and is voidable. The agreement, if executory, cannot be enforced against the debtor in equity or at law; the se- - Wright V. Vanderplank, 8 De Gex, M. & G. 1.33; Allcard v. Skinner, 30 Ch. Div. 145, 173, 187; Michoud v. Girod, 4 How. 503, 561, Sh. 181 (relief after lapse of nearly thirty years) ; Jennings v. Broiighton, 5 De Gex, M. & O. 126, 140; Denton v. McNeil, L. R. 2 Eq. 352, See, also, ante, § 881. "See ante, § 917, §S 418, 410. ^This is the general rule; tliere is, however, one important exception, men- tioned in the next paragraph. 527 CONSTliU'TlVK FUAID. § Ofil) ciirity may be set aside by a court of equity, and the amount paid by the debtor in pursuance of the contract may be recovered back by him. The relief, defensive or affirmative, thus given to the debtor does not rest upon any consideration of favor due and shown to him, but Avholly upon motives of policy, to protect the rights of the other creditors and to secure them against such frauds.^ . . . i; 968. Conveyances in Fraud of Creditors. — Dealings by a per- son with his i)ropert.v with intent to defraud his creditors were voidable at the common law ; but the existing rules on the subject both in England and in this country are founded upon .statute.^ The operative statute in England, which is also the basis of all legislation and judicial decision in the United States, is the celebrat- ed act 13 Eliz., c. 5. It enacts that all conveyances, etc., of an}^ lands, goods, or chattels, had or made of purpose to delay or de- friuid creditors and others of their actions or debts, shall be taken only as against such persons and their representatives as shall or might be so delayed or defrauded, to be utterly void; provided that the act shall not extend to any conveyance or assurance made on good consideration and bona fide to a person not having notice of such fraud.- I purpose merely to state, as far as possible, the gen- ei'al and fundamental principles and doctrines which have been established in the judicial construction of this legislation, and the inost important classes of cases to Avhich it is applied. § 969. The Consideration. — It should be observed that the stat- ute, by its generality of expression, being without any such limita- tion, applies to both existing and subsequent creditors, and to both conveyances made upon a valuable consideration and those without any consideration. It does not declare voluntary conveyances void ; it only pronounces fraudulent conversances void, whether they are voluntary or made upon a consideration. The validity of a con- veyance, as against creditors, is made in the proviso to depend "upon its being upon a good consideration and bona fide-," either is not sufficient; consideration without good faith plainly does not displace the operation of the statute; and good faith witliout con- Mn re Lenzbeif?, L. R. 7 Ch. Div. (iSO; Soliiioer v. Earle, 82 N. Y. 393, H. & B. 3.51; Miller v. Sauerbier, 30 N. J. Eq. 71. 'The earlier statutes were 50 Edw. III., c. 6; 3 Hen. VII.. c. 4. -All the .siil)stantial provisions of this statute have been adopted by tlic American legislation; still the statutes in man.v or most of the states employ quite different language, and contain important modifications and additions. Rome of them insert a general clause, in terms applying to all the other pro- visions, to the effect that the fraudulent intent sliall always be a question of fact; in some this clause is confined to a portion only of the provisions; while in some it is entirel.v omitted. There is a great diversity of external form, at least, in the American legislation on this subject. ^ UTO - EQUITY JUUlSl'ULDEXLi:. 528 sideration does not necessarily protect a conveyance. A deed made ujjon a valuable consideration, but not bona tide, — that is, vv'ith a fraudulent intent, — is void against creditors of the grantor as though it were voluntary.' Although the statute speaks of a "good consideration," yet it is fully settled that a valuahic consideration is intended, — a consideration pecuniary in contemplation of laAv, of v.iiich kind marriage is an instance. The "good" consideration of love and affection does not meet the demands of the statute, and does not of itself validate a conveyance.- Voluntary conveyances are perfectly valid and binding as between the immediate parties and all persons claiming under them in privity of estate ;^ but they may be void as against creditors, and will be void so far as they delay or defraud creditors. A voluntary conveyance may be a strong indication of a fraudulent intent, and may sometimes raise a presumption of such intent ; still the fact that a conveyance is voluntarj^, under the general course of legislation and decision in this country-, is material only in connection with the fraudulent in- tent, only as it shows or tends to show the existence of such intent. A voluntary conversance as suck is not necessarih^ void even against existing creditors. .:< 970. The Fraudulent Intent. — The essential element required I)V the statute, in order tt) render a transfer voidable, is the fraud- ulent intent. There must be an intent to hinder, dela.y, or defraud creditors. All other considerations are subordinate and ancillary to the establishment of this indispensable feature. The discussion which has arisen under the statute, and the special rules which liave been formulated, are chiefly concerned with the question, Vv'hen, hov.% and by Avhat means may this intent be sustained?^ There ^ For example, a conveyance made by a defendant, for full value, lint with intent to defraud tlie plaintifi" hy placing tlie property beyond the reach of an expected judament: Robinson v. Holt. o9 X. 11. ").")7 : 75 Am. Dec. 233; Gragg V. :\lartin, 12 Allen 498, 90 Am. Dec. 164. ^Copis V. :Miildleton, 2 ]\Iadd. 410, 430, 2 Scott 738: Taylor v. Jones. 2 Atk. GOO, and all the cases arising out of voluntary conveyances, are authorities. ^ If they are impeachable by such successors as assignees in bankruptcy, insolvency, and others in like position, it is because such persons are rep- resentatives of creditors more than of the parties from whom they immediately derive title. ' At an early day the intent was inferred as a conchisive presumption of law from many particular circumstances: as, for example, from the fact tliat the vendor retained possession of the property conveyed. Later, the tendency has been to abandon the notion of conclusive presimiptions, and to infer the intent as a rehtittable presumption of law from a variety of circum- stances; and this doctrine still prevails in England and in many of the states, at least in its ai>])lication to so)ue circumstances. Finally, in consequence of a statutory pii)\i-~i()n. the view has been adopted throrrticallj/ in several of the 529 const;; ucTivi; j kai d. § 'JTl are three ueneral modes in which the intent mi^ht possibly be as- certained. Certain circumstances appearing, it might (1) be in- ferred therefrom as a conchisive presumption of law, or (2) as a prima facie or rebuttable presumption of law, or (3) as an argu- mentative conclusion of fact. With respect to these modes, tiie intent may be crprcss or arhtaJ, which simply means that it is proved by means of ordinary evidence, either direct or circumstantial, tend- ing to show its existence, or it may be iinplied or inferred as a jjic- sumption from certain circumstances connected with or forming a part of the transaction.- In relation to the mode of ascertaining the fraudulent intent, when, how, and from what it may be inferred, there is a great diversity and even conflict of Judicial opinion, and to some extent antagonistic rules are settled in different states. Any attempt to reconcile this discrepancy w^ould be unavailing. I j^hall mereh^ formulate those general doctrines whicli are sustained by the consent of the highest authority, as well as by principle, and which constitute a part of the equity jurisprudence ; and it Avill be the most convenient to state them in their connection with and relations to the most important classes of cases wdiich occur in the actual transactions of men. § 971. Mode of Ascertaining: the Intent. — In the first place, where a conveyance is made upon a valuable consideration, and is alleged to be fraudulent against the grantor's creditors, an actual and express intent to hinder, delay, or defraud is necessary to be proved. The reason for this is obvious. The transa<'tion has one Ol the requisites prescribed by the statute; the voluntary character is wanting from which an inference of fraudulent intent i)ii(/ht arise. On the contrary, the other re(|uisite^=— the good faith — would rather be presumecl. It is necessary, therefore, to overcome this presump- tion by proving the absence of good faith. In other words, the actual and express fraudulent intent nuist be proved by evidence tending to shoAV its existence, and fi'om which it legitimately results as a conclusion of fact drawn by a court or jury without the aid states that the intent must always be inferred as an arfiunicntaliNe conclusion of fact, without the aid of any lejj;al presumptions. 1 describe this view as prevailing theoretically, because it will be found that the eourls of those states, in the decision of cases, do practically have recourse to prima facie presump- tions in determinino' the existence of the fraudulent intent. - .\niont;' these circumstances, the most common and impoitant are the in- .solvency of tlie lirantor, or the extent of his indebtedness compared with tli(> amount of his pi-operty. especlMJly wheie tlie conveyance is volunlarv. and the fact that the grantor or viinlor retains possession of the property con- veyed or .sold. This last circunist;iiiee applies equally where the conveyance is voluntary or upon a valuulile consideration. Tt seems impossible to decide all cases arising under the s(:iinte without having recourse, practically if not avowedly, to the doctrine of legal presumptions. 34 " § 971 EC^UITY JUi;J.Si'KLDE>;CK. 530 of any legal presumptions. In the second place, where a convey- auce is voluntary, and is alleged to be fraudulent as against existing 01 editors, while an express actual intent to defraud may be present, it is not necessary. The fraudulent intent which will avoiil the con- veyance as against existing creditors may be inferred from circum- stances connected with the transaction, such as the grantor's in- solvency, great indebtedness compared with the amount of his property, and the like ; complete insolvency, however, is clearly not a rcquisifc. In this case of a voluntary deed and existing credit- ors, the decisions show unmistakably that the intent is more easily inferred than in any other.^ In the third place, where a conveyance is voluntary, and is alleged to be fraudulent as against suhsequent creditors, the intent to defeat or defraud is not so easily inferred as in the case of existing creditors; stronger evidence is then re- ([iiired to establish the intent. ''If a voluntary conveyance or deed of gift be impeached by subsequent creditors whose debts had not been contracted at its date, then it is necessary to show either that the grantor made the conveyance with express intent to delay, hinder, or defraud creditors, or that after the conveyance the grantor had no sufficient means or reasonable expectation of being able to pay his then existing debts, — that is to say, was reduced to a state of insolvency, — in which ease the law infers that the con- veyance was made with intent to delay, hinder, or defraud credit- ors, and is therefore fraudulent and void."^ This proposition is clearly correct, but it contains one apparent limitation which hard- ly seems to be sustained by the weight of American authority: it is not essential that the voluntary grantor should be "reduced to a state of insolvency," or in other words, that he should be left absolutely unable to pay his then existing debts. The following seems to be the true rule : If the amount of propert}^ after the voluntary conveyance was so small in comparison with the exist- ing indebtedness that the grantor could not reasonably have con- templated his ability to perform his obligations, or in other words, he could reasonably have contemplated his inability to perform them, then an intent to defeat his creditors generally will be in- ferred, and the conveyance will be fraudulent against subsequent .is well as against existing creditors." Having thus ascertained the »Spirett V. Willows, 3 De C4ex, J, & S. 293, 302; Freeman v. Pope, L. K. .5 Ch. 538, 543, 544; Skarf v. Soulby, 1 Macn. & G. 364, 374. See post. S 972. = Spirett V. Willows, 3 De Gex. J. & S. 293. 302, 303; Kent v. Riley, L. 11. 14 Eq. 190, 194; Carr v. Breese. 81 N. Y. 584. 5SS. 590, 591. See pos;t. § 973 and notes. "Can- V. Breese, 81 N. Y. 584. 588. 590; Van Wyck v. Seward, G Paige 62; Dunlap V. Hawkins, 59 X. Y. 342. See post, § 973. 531 COXSTi;LCTiVK FUAUD. § 9T3 general rules concerning the manner of establishing or inferring the fraudulent intent, I shall apply these rules very briefly to the two classes of creditors, existing and subsequent. § 972. Existing Creditors. — Conveyances made upon a valuable consideration are not presumed to be fraudulent against existing creditors, and the extent of the grantor's indebtedness is wholly inimaterial.^ Conveyances upon a valuable and even full considera- tion are void against existing and subsequent creditors, if made with an actual express intent to hinder, delay, or defraud them ; but the intent cannot be inferred by presumptions, and must be proved by evidence legitimately tending to show its existence. Each case must necessarily depend upon its own circumstances.^ A voluntary conveyance, gift, or transfer, without any valuable con- sideration, creates a prima laeie presumption of an intent to de- fraud existing creditors, unless statutes have declared that no such presumption ever arises, and that the intent is always a conclusion of fact. This presumpt'ion may be overcome. The mere fact that a grantor is indebted at the time he makes a voluntary conveyance does not necessarily render such conveyance fraudulent against the existing creditors." On the other hand, since the prima facie pre- sumption arises in such case, it is never necessary to show by affirm- ative evidence an actual express intent to defraud, in order to render a voluntary conveyance fraudulent and void as against exist- ing creditors. The intent wall be inferred when the grantor was 01' is left insolvent, or if the conveyance deprives him of the means of pa3'ing his debts, or if he was so largely indebted that it would be reasonable to suppose that he contemplated his inability to pay his del)ts, or, as many cases hold, if he was so largely indebted that the conveyance would materially interfere with his ability to meet h's obligations.'* § 973. Subsequent Creditors. — Where a person, w^hether indebt- ed or not, makes a conveyance, either upon a valuable consideration or voluntary, with the express and actual intent of defrauduig future creditors, it is, of course, fraudulent and void as against such future creaitors. For this reason, if a person, in contempla- tion of a future indebtedness which he expects to accrue, makes a C(;nveyance for the purpose of placing his i:)roperty beyond the lia- bility for such anticipated indebtedness, the transfer is frnudulent as against the future creditor when his claim arises.^ A voluntary iRevan v. Crawford, L. E. 6 Ch. Div. 29. -BUinier v. Hunter, L. R. 8 Kq. 46. See ante, § 969. "Dnnlap v. Hawkins. r)9 N. Y. 342; Sexton v. Wheaton, 8 Wheat. 229. "Smith V. Chenill. T,. R. 4 Eq. 390, 39.5; French v. Freneh. (I He Gex, M. & G. 95; Crawford v. Kirksey. 55 Ala. 282. 28 Am. Rep. 704. * Carpenter v. Carpenter, 25 X, J. Eq. 194. § 973 EQUITY JURlj^l'KL'DENCE. 533 conveyance by one who is at the time free from debt is not pre- sumptively fraudulent and void as against subsequent creditors; there being no prima facie presumption against its validity, the burden of proof rests upon the subsequent creditor who impeaches it, of showing either an actual fraudulent intent, or circumstances from which such intent may be inferred." If a person, not at the time indebted, being about to engage in a new and hazardous busi- ness, makes a voluntary settlement or conveyance, whereby he places his property or a considerable portion of it beyond the reach of his creditors, such settlement or conversance is fraudulent and void as against the subsequent creditors of the grantor." Finally, it may be laid down as a doctrine generally accepted, that if a person, being at the time indebted, makes a voluntary conveyance of his property to such an extent that he is left actually insolvent, or wholly unable to pay his existing debts, or that it is reasonable to suppose he contemplated his consequent inability to pay, or even that it is reasonably doubtful whether he is able to meet his obligations, then the conveyance will be fraudulent and void as against his subselio\vn. subsequent as well as existing creditors are entitled to impeach the conveyance: Cramer v. Reford. 17 X. .1. Eq. 3(j7. 90 Am. Dec. .594. On tlie other hand, if there is no actual intent to defraud, the mere fact that a voluntary conveyance may be presumptively fraudulent against exist- ing creditors does not render it fraudulent as against subsequent creditors. While a prima facie presumption against the validity of the voluntary deed may arise in favor of the grantor's existing creditors, no such presumption exists on behalf of his subsequent creditors. These latter cannot impeach s\ich a transfer merely because the former can: Xicholas v. Ward, 1 Head 323. 73 Am. Dec. 177. 5 JO COXSTHUCTlVi: FRAUD. § 914 liiireasonably larg-e. If tlie leyal title is conveyed directly to her. there is still dang'er lest the husband should obtain credit upon his apparent or sup|)ose(.l ownership.'' ^ 974. Conveyances in Fraud of Subsequent Purchasers. — By the statute 27 Eli/... c. 4, made perpetual by 39 Eliz., c. 18, sec. 31, all conveyances of hereditaments for the intent and purpose to deceive piu'chasers are made void as against them; and the same provisions have been substantially enacted in the United States. The true meaning and interpretation of this statute were for a considerable period of time unsettled by the English courts. The doubt was. v;hether it extended to all voluntary conveyances, or whether it avoided only those which are made with a fraudulent intent, and therefore furnished protection only to subsecpient bona fide i)ur- chasers without notice. The rule was finally settled, and still ])re- vails in England, that the statute applies to and avoids all volun- tary conveyances as against subsequent purchasers for a valuable consideration, even though such conveyances were made in good faith without any actual fraudulent intent, and though the sub- sequent purchasers for value had notice thereof.^ The same inter- pretation of the statute and the same general doctrine have been accepted by a portion of the American decisions.' The current of American authority, however, is opposed to this broad construction, arid limits the operation of the statute to prior voluntary convey- ances made with a fraudulent intent, and its protection to subse- quent purchasers for a valuable consideration and without notice. The doctrine which may properly be called American is as follows: Conveyances are not void under the statute merely because they are voluntary, but because they are fraudulent, and the fi-audulent intent may be inferred in the same manner and under the same cii'cumstanees as against subsequent creditors. A voluntary gift of pjoperty is valid as against subsequent purchasers and all other persons, unless it w'as fraudulent when executed ; and a subsequent conveyance for value is evidence of fraud committed in the former voluntar}^ conveyance, but not conclusive evidence. It results that a voluntary gift made Avhen the gi-antor is not indebted, in good faith, and without intent to defraud subsequent creditors or pur- chasers, is valid as against a subsequent purchaser for a valuable *Carr v. Breese, 81 X. Y. 584. TjOI. * The English theory is, that the statute conclusively presumes a fraudulent intent when the prior conveyance is voluntary: Pulvertoft v. Pulvcrtoft, IS Ves. 84, 86; Bayspoole v. Collins. L. 11. (i Ch. 228. 232. The subsequent pur- chaser must be one for a real valuable consideration, and bona fide, althougli notice does not destroy his rights under the statute. -Sterry v. Arden, 1 Johns. Ch. 261, 270, 12 Johns. 536, 1 Scott 502. § 974 EQUITY JUKISl'HrDKXCE. ' 534 consideration with notice.'' What constitutes a purchase for value without notice, and what is a valuable consideration, in c;ises aris- ing under this statute, are determined by the rules contained in the preceding section upon that subject. In order that the statute may apph^ and uphold a subsequent conveyance for value against a prior voluntarj^ conveyance, it is necessary that both the convey- ances should come from the same grantor. An heir or devisee can- not, therefore, by a conveyance for value, defeat a voluntary settle- ment made by his ancestor or testator.* What creditors, purchasers, and their representatives are entitled to equitable relief, and what remedies may be obtained by them, are questions which belong to subsequent chapters treating of remedies. "Beal V. Warren, 2 Gray 447; Chaffin v. Kimball, 23 111. 33. "Parker v. Carter, 4 Hare 400, 40<). Must. Inst., b. 2, tit. 2.3, sec. 4. § 97i) EQUITY JUKISi'RUDEXCE. 538 § 978. Origin of Uses. — Uses, in the ordinary meaninf? of the term, as designating- those which are passive, seem to have been invented dnring the latter part of the reign of Edward ITI.^ Like the Roman fidei-commissa, they were designed to evade the law; but, unlike them, they were resorted to at first for mere purposes of fraud, — by the elergy to defraud the statutes of mortmain, and by the laity to defraud creditors or feudal superioi*s. Being free from many heavy feudal burdens, uses grew rapidly into favor, and it is said that during the reign of ITenry V. the greater part of tlie land in England was held in this manner.- At the very outset these conveyances to use were made for the benefit of third persons. Tills mode having been established, conveyances were made for the benefit of the original owner, the feoffor. Thus A, being seised in fee, would convey the land by a legal feoffment to B to the use of himself, A. In this manner the ovcner in fee would convert his legal estate, which was subject to all the feudal burdens and com- mon-law liabilities, into an e(|uitable estate unknown to the com- mon law, which was freed from these burdens and restrictions, which could be devised by will and aliened without livery of seisin, and which, under the doctrines subsequently established by the court of chancery, gave him all the dominion, possession, rights, and ])owers belonginy- to the legal estate." § 979. The Use at Law. — For a while the cestui que use had no means of redress in any court. The law courts, as a necessary con- sequence of connnon-law doctrines, recognized no other estate than the legal one vested in the feoft'ee. If the cestui que use had any legal right at all, it was neither a jus ad rem nor a jus in re, and so there was no common-law form of real action by which he could recover possession of or enforce any claim upon the land itself. His only possible remedy would be an action for damages, upon contract express or implied, against the feoft'ee for the latter 's violation of the trust.^ Even this action was not generally maintainable upon common-law principles, since there was no pririti/ between the feof- ^ 1 Spence's Eq. Jiu'. 439-442. = 1 Spence's Eq. Jur. 4:59-442, 442-444. ' 1 Spence's Eq. Jur. 439-444, 447-449. * All the common-law actions for the recovery of land, or for the main- tenance of any interest therein, Avere based upon the assumption that the plaintiff' either had some property absolute or qiuilified in the land (jus ad rem), or that he had a ripjht to some particular use of land belonging to an- other. — an easement or servitude (jus in re). As the interest of the cestui que use was neither of these, he could enforce it by none of the common-law real actions, and was therefore shut up to actions ex contractu for damages; but, as I show, even such a personal action could only be maintained by him under one special state of facts. 539 OKKilX 01'' L'jjK.S AND TiiL"ST8. g [)60 fee and the cestui que use when the latter was a third person; whatever promise the feofi'ee had made, whatever legal obligation he had incurred, was to the feoffor, and not to the cei^tui (jue ase.- It was formally decided in the fourth year of Edward IV. that the cc.'iumon-law courts had no jurisdiction over the use." §^80. The Use in Equity. — There being no common-law actions to which resort could be had, the rights of the cestui (pie use were for a considerable time purely moral, and were protected only through the authority of the clergy, acting as confessors, upon the conscience of those who held the legal title of land for the use of others.^ No traces of applications to the court of chancery have been found in the early records prior to Henry V., but during his reign the court began to entertain such suits and to decree relief. In the reigns of Henry VI. and of Edward IV. the chancery jurisdiction was fully established, and was also recognized by the courts of law. In other words, the law courts, while refusing themselves to protect the estates of cestui que usent, admitted the fact that such estates existed and were protected by the court of chancery.- The passive or permanent use as established in equity is thus described by Bacon when it is created in favor of the feoffor himself, and the description would apply to the case where it is created for the benefit of a third person by a slight change of language. He says: "The use consisted of three parts: 1. That the feoffee (trustee) would suffer the feoffor (cestui que use) to receive the profits; 2. That the feoffee, upon request of the feoffor (cestui que use), would execute (i. e., convey) the estates to the feoffor (cestui que use), or his heirs, or to any other by his direc- tions; 3. That if the feoffee were disseised, and so the feoffor (cestui que use) disturbed, the feoffee would re-enter or bring an action to recover the possession."^ * There are in the early records some traces of sucli actions brought in the common-law courts; but I presume it will be found that they are all con- fined to cases where the use was declared for the benefit of the feoffor him- self, where A conveyed to B to the use of A. In such a case alone would there be any legal liability of the feotl'ee to the cestui que use. Whenever A, upon a consideration niovin": from B, promises B to do something for the benefit of C, the English courts have uniformly maintained the rule that C can have no action on the contract against A, because there is no privity between them. The modern rule has been settled otherwise in most of the American states. ' 1 Spence's Eq. Jnr. 445, 446. ' This authority would be especially exerted where lands were conveyed to the use of religious corporations or persons. * 1 Spence's Kq. -Tur. 44.5, 440. 'Bacon's Reading on Uses, 9. § 981 EQUITY JURlSriU'DEXCE. 540 ,^ 981. Resulting Uses — Equitable Theory of Consideration. — In addition to these express uses created by the intentional words of parties, courts of e(iuity soon invented another class, consisting of several different species, but all depending upon the same fun- damental principle, and to w^hieh the names "implied," "result- ing," and "constructive" have been given. The underlying prin- ciple upon which all these species were based is the equitable doctrine concerning consideration. This theory of consideration, adopted and promulgated by the chancellors, is one of the most just, most productive, and most beneficial conceptions of equity jurisprudence. It accomplished more, perhaps, than any other single doctrine in overthrowing the arbitrary dogmas of the com- mon law concerning real property, and in building up the dis- tinctive system of equitable estates and ownership. It is certainly very remarkable that the early chancellors, in the very infancy of equity jurisprudence, should fornuilate a i^rinciple so admir- ably comprehensive and wise, that it has been sufficient, in its subsequent development, to meet all the Avants of an advancing civilization, and all the requirements of modern society. The common-law notions of title and ownership rested mainly upon the observance of external forms. Equity first introduced the principle that in all the transactions of men concerning land — ■ their transfers and bargains — the consideration is the essential" fact which determines the real beneficial ownership, wherever the legal title may be vested. The consideration draws to it the e(iuitable right of property ; the person from whom the considera- tion actually comes, under wdiatever form or appearance,, is the true and beneficial owner. This grand principle extends not only to dealings which are intentional and riglitful, but to those which are fraudulent, or in any manner wrongful or unconscientious. When once introduced, it was easily carried through all those branches of equity jurisjnnulence which relate to property, real or personal, and it underlies all the modern doctrines of resulting and constructive trusts, and all the remedies by which the beneficial owner is enabled to follow his equitable property in the hands of third persons. In its origin, the principle was applied to va]iial)le or pecuniary consideration, but it was soon extended, with all of its legitimate results, to the good consideration of blood or love and affection between near relatives of the same family.^ The ' It thus appears that the special rules wliich regulate resultino; trusts from the payment of tlie purchase price between parent and child, etc. are not, as they liave been refjarded by some writers. exce])tions to the irencrar doctrine; they are the necessary consequences of the one universal principle ■which regards valual)le consideration between strangers, and good consideration 541 Or.lGlN OK I'SKS AM) TKIHTS. § 081 tlieory as to consideratioii ()i)erate(l in the development of uses in the foUowinii' manner: Prior to the statute of uses in tlie rei.un of Henry VIII. , a gift of land to a person and hi.s heirs accompanied by livery of seisin — that is, a transfer by fecjtf- ment — was effectual in lair to convey the entire estate without any consideration. The law did not require a consideration, and moreover, if a deed gr charter of feoffment was delivered, its seal raised a conclusive presumption of a consideration.- Equity broke through this doctrine by means of its principle concerning con- sideration. It established the rule that if a conveyance of the fee was made without any use being declared, and without any consid- ei-ation, although the legal title passed to the feoffee, a use ipso facto arose and resulted in favor of the feoffor, so that, having l)arted with the legal estate, he remained clothed with all the e(iuitable interests, rights, and authority Avhich. the court of chan- ceiy gave to the cestui que use; the equitable estate in fee vested in him." This rule, however, did not apply to conveyances between l)arent and child, and other near family relatives, since the "good" consideration of blood or marriage relationship operated between such persons, in the same manner as valuable consideration between strangers, to transfer the whole estate, legal and equitable, free from any resulting use.'* As a corollary to the foregoing rule, it was further settled that whenever an owner conveyed land to a feott'ee upon some particular use declared in favor of a third person, so much of the use as had not been disposed of resulted back to himself. In other words, if the use declared in favor of the third person did not, for any reason, effual in extent and exhaust the legal estate given to or held by the feoft'ee, then a use for the resi- due or surplus of such estate resulted to the feoffor.-"' Carrying ont the same principle of consideration in cases of purcliasr. equity also established the doctrine, that where no declaration of use ■•A-as made so as to control, a use arose in favor of the person from whom the consideration came, whatever position he might occupy with respect to the legal title. In pursuance of this doctrine, where a purchase was made by one person in the name of another, the party receiving the legal title held it for the use of the one between members of the same ffiVaHy. as the sources of eciuitalile riglits of ownership. A beautiful eousisteucv runs through all the rules of equity cou- cerniiijf resulting trusts. - 1 Spence's Eq. Jur. 449. 4.10. ' 1 Spence's Eq. Jur. 4.")0, i'^A. ' 1 S|)ence's Eq. .Fur. 4'')(). ' 1 Spence's E(|. Jiir. -!.li-45L-. Thii, particuIcV. rule applied to every con- dition of circumstances, both where the 7!S2 in favor of the third person irliolly failed, for any reason, to lt>P operative, and where it partially failed to exhaust the estate held by the f^.vTee. §982 EQUITY JL-IUSPHUDEXCE. 543 who advanced or paid the price. Here, also, an apparent, but not a real, exception arose from the fact that good consideration of blood and marriage operated between near relatives in the same manner as a money consideration between strangers. In case of a purchase by a parent in the name of his child, no use was held to result for the benefit of the parent paying the price, but the pur- cliase was presumptively regarded as an adv^meement.^ As a sec- ond illustration of the same general doctrine, whenever an owner agreed for a valuable consideration to sell his estate, although there was no conveyance, and there were no words of inheritance in the contract, equity declared that a use was created in favor of the vendee, by means of the consideration, and that the vendor held the legal title as his trustee. The same rule was extended to cases between near relatives, where the consideration was tliat of marriage or blood. If a person, on consideration of inarriage or blood, covenanted to settle an estate on an intended husband or wife, or on his children, or other nearest blood relativc-s ('(|uity held that a use was thereby created in favor of the husband, wife, (hildren, or relatives, and treated the covenantor as a trustee for their benefit.'^ Finally, the principle of consideration was extended by analogy to eases of fraud, actual or constructive, accident*, and mistake.** This last apjilication of the doctrine became, in time, the most efficient means in the hands of courts of equity for work- ing substantial justice in disregard of legal forms. Whenever one person, through mistake or fraud, or in violation of fiduciary relations, obtained the legal title and apparent OAvnership of i^rop- erty which in justice and good conscience belonged to another, sneh property was immediately impressed wnth a use in favor of the latter equitable owner.''* § 982. Double Nature of Property in Land — The Use and the Seisin. — From these doctrines concerning express uses, and espe- cially concerning those implied from the acts or omissions of parties, it appears that equity at an early day introduced the notion of a nse connected with and forming a part of every OAvnership of land. The very conception of property in land was thus changed from its primitive unity and simplicity, and it was made to involve, as an essential element, the notion of the use in connection with the mere legal proprietorship and seisin. According to this theory, every ownership — property itself — consisted of a legal title and of a use. These tAvo might be combined and held by the same per- " 1 Spcncn's Eq. ■Iwr. 4.")l-4.')3. ' 1 Spence's Eq. Jur. 4.">l-4.")3. * 1 Spence's Eq. Juv. 453, 454. "1 Spence's Eq. Jur. 453, 454. 543 ORIGIN OK rsEs and TursTS. § 983 S')n, and their union would lliiis constitute the highest or idea! dominion; or they might be, and often were, separated, and held iiy different persons; but of tlie two the use was the more important, since it represented the real, substantial usufructuary proprietoi'- ship, while the other might be the naked legal estate, drawing after it or conferring no benetlcial rights of enjoyment whatsoever. While the legal title and seisin always existed in some person, and remained subject to the connnon-law dogmas, the use, beinu' a creature of equity, was entirely free from the feudal burdens, and from the restrictions growing out of the common-law theoi-y as to seisin. It even lacked some other common-law incidents, like dower. It was descendible like the legal estate ; but this was sub- stantially the only feature of uses in which the early chancellors applied the maxim, Aequitas secpiitur legem. ^ In every other re- spect they disregarded the narrow dogmas of the common law, and seemed intent on building up a sj^stem of landed ownership which should, as far as practicable, satisfy the needs of commerce, and at the same time maintain the dignity of families and the su- premacy of the aristocracy. - § 983. The Statute of Uses. — Several statutes were enacted, from time to time, designed to prevent some of the particular ef- fects produced by uses, and especially the statutes of mortmain were extended so as to prohibit uses in favor of ecclesiastical cor- porations; but it was not until the reign of Henry VIII. that any legislative attempt was made to destroy them. That monarch became exceedingly displeased at his losses of revenue resulting from the practical abrogation of wardships and other feudal inci- dents, and determined to cut up the cause of the evil, as he re- garded it, from the very roots. In the twent5''-third year of his reign, he procured a bill to be- introduced into Parliament which would have limited the power of conveying land to uses-, it i)assed the House of Lords, but was rejected by the Commons.^ In the twenty-seventh year of his reign (A. D. 1535) ho introduced a second bill, which he doubtless supposed would be effectual. It was drawn up wnth great care by some of the most distinL!uished laAvyers of the time. The preamble with which it opens describes the evil nature and efiPects of uses, from the moii- arch's point of view% in the most sweeping and condemnatory manner. From the vigorous denunciations of the preamble, we should naturally suppose that the enacting part would have been o(|ualiy violent aiul sweeping; that, like statutes of many American 'Roe ante. vol. 1. S§ 42.1-427. -' 1 Sppiice's l'"<|. .Tiir. 454-4 ")(!. * 1 Ppence"'^ I'q. .lur. 4(11. 402-465. § 984 EQUITY JUHISriUDKXCE. 544 states, it would, in express terms, have abolished all uses or eonii- (lences, and have prohibited the conveyance of land upon trust or to the use of any one, or in any other manner than by the common-law mode of feoifment and livery of seisin. For some reason, which has never been explained by the legal writers, the statute attempted no such thing. It did not forbid conveyances to uses, but, on the contrary, assumed that they would continue as before. The only change or relief which it proposed was a con- trivance "to turn the equitable estates of the cestuis que usent into legal estates." This it accomplished by a provision that in certain classes of conveyances to use, a legal estate of the same kind and extent as the use should by virtue of the statute immediately pass to and vest in the cestui que use, so that he would at once acquire the legal title and ownership of the same degree, in i)]a('(^ of the mere equitable title and ownership which he would formerly have held under the name of "the use." And, what is still more rsi range, the operation of this provision was confined to cases where the land was so conveyed or held that the feoffee or other holder of the legal estate was seised of it to the use of another, — that is, whore the feott'ee or other holder of the legal estate had the land in fee, fee-tail, or for life ; all other possible cases were left un- touched by an enactment which promised so much in its preamble. § 984. Uses not Embraced within the Statute. — Notwithstand- ing this statute, the equitable estates of the same nature as uses continued under the name of trusts. In the first place, many spe- cies of existing uses were wholly untouched by the statute. The general doctrine was established, that when any control or discre- tion is given to the feoft'ee or trustee in the application of the rents and profits, or where he is required to do any specific acts in regard to the land, and in all similar instances of express aciirr trust, the legal estate remains in the feoffee or trustee to enable him to perform the trust reposed.^ All such cases, though perhaps within the letter, were held not to be within the design and scope of the statute. Secondly, where only a term of years is conveyed, or assigned to, or is held by one person to the use of another, it was decided that the statute does not operate, but that the legal and equitable estates remain distinct; since the language is, "where any person is seised to the use of," and the courts gave the most technical and narrow interpretation to the word "seised."- Thirdly, the statute did not purport to interfere with uses or trusts of things in action, or in other kinds of personal property." Finally, the ju- 'Ure V. Ure, 185 111. 216. 50 N. E. 1087. - Bacon's Reading on Uses, 42 ; Dyer, 369a. ^ Bacon's Reading on Uses, 43. o45 ORIGIN OF l&ES AND TRUSTS. S 985 risdiction oi chancery over the various uses which are created by implication or operation of law — the resulting and constructive uses — was held to be unaffected by the statute.* The operation of the statute was thus confined to one class of uses — passive uses in land, where the feoffee or holder of the legal title, was seised of the hmd to the use of another — that is, held an estate in fee, fee- tiiil, or for life; but the use itself might be for a term of years, or fei any higher interest. §985. A Use upon a Use not Executed by the Statute. — Even the operation of the statute in this single class of express passive uses was soon defeated by the combined action of the law and ecpiity courts. If an estate was given to A in fee, to the use of B in fee, then by the express command of the statute the legal estate passed through A as a mere conduit, and became vested in the cestui que use, B. The statute said nothing, in terms, of a conveyance in fee to A, to the use of B in fee, to the use of or in trust for C in fee. Such a form of conveyance, or one identical with it in legal import, having arisen, the courts of law, either from a narrowness of construction most astonishing, or which is probably the true explanation, from a deliberate design of inter- preting the statute so as to give an opportunity for its complete evasion, held that there could be no use executed upon a use,^ but that when the legal estate was carried, by virtue of the statute, to the first cestui que use, it must there remain vested in him. By virtue of this ruling, the legal estate in the ease supposed passed through A and became vested in B, while C, who was intended by the conveyance to be the final and actual beneficiary, took nothing. - Here was an opportunity which the court of chancery could not overlook. It seised hold of the construction thus given by the Ihav courts, and declared that, although the legal title was vested in B by virtue of the statute, he could not, in good conscience, hold it for his own benefit, but he must hold it for the benefit of and in trust for C, who thereby obtained an equitable estate through the conveyance, which the court of chancery would maintain and pro- *1 Spenee's Eq. Jur. 466, 467, 493-512; Sugden's Gilbert on .Uses, introd.. pp. Ix., Ixi., 75, note 5; Rigden v. Vallier, 2 Ves. Sr. 252, 257, per Lord Hard- wieke. ' It may be proper to remark tliat the word "executed," in these old de- cisions, and as a technical term in English conveyancing, simply designates the passing of the legal estate through the first holder (the trustee), and vesting it in the person described as the cestui que use. performed l)y opera- tion of the statute. In this sense of the word, tiie use is "executed" when the legal estate is vested in the cestui que use. *See Tyrrel's Case, Dyer, 155a; 1 Coke. 136b. 137: Hopkins v. Hopkins, 1 Atk. 581, 590, 592, per Lord Hardwicke; Sanders on Uses, 92, 93. 35 ?> 986 EOriTr <7UPJSPRUDENCK. ^6 tect.^ This doctriue of chane;^rv wa? acquiesced irv at oncp. and hrtS remained unquestioned by the courts to Ihe present day. The practical result was, that by maMng a slight alteration in the formal language of conveyances, so that an estate should be con- veyed to or held by one person, to the use of a second, to the use of or in trust for a third, this third person would acquire an equitable estate distinct from the legal estate, vested by operation of the statute in the second party; and the whole system of ex- press passive uses was thus restored, or revived to the same extent as before the passage of the act.'* § 986. Trusts after the Statute. — Although the beneficial or equi- " Hopkins v. Hopkins, 1 Atk. 581, 590, 591, per Lord Hardwicke; Willet V. Sandford, 1 Yes. Sr. 186, per Lord Hardwicke. *As a matter of fact, in creating these express passive uses by conveyances inter vivos, the old form of feoffment to A, to the use of B, to the use of C. Avas seldom, if ever, employed after the "statute of uses," since it still required livery of seisin to be made to the feoffee, A. Other forms of conveyance he- came universal, in which the use upon a use was created by means of the equitable principle concerning the use aiising and following the consideration. In family settlements, where the good consideration of blood or affection is .sufficient, if A, the owner of land, covenanted to stand seised of it for his son B, then a use thereby arose in favor of B, and the statute executed this use by passing the legal estate directly to B, who thereby became seised in taw. If, however, A wished to create a passive trust for his son B, he cove- nanted to stand seised of the land for C to the use of or in trust for his son li. and the legal estate was thereby vested by the statiite in C, but was held l»y him simply as a trustee for the intended beneficiary, B. This came to be the universal form of deed for the purpose of creating passive trusts in family or marriage settlements. ^A'he^■ever the conveyance was between strangers, so that a pecuniary consideration was requisite, another form of deed was adopted. As has already been stated, the doctrine had long been settled that if A. the owner of land, agreed to .sell it to B for a valuable consideration, a use wa^ 7'aised by the consideration in B's favor. Carrying out this doctrine, if a deed of conveyance from A, the owner, to B recited or admitted that a consid- eration had been received, this recital was regarded as evidence of the fact sufficient to raise a use in B's favor. Finally, it was settled that if in a deed of conveyance the words "bargain and sell" were employed as operative words of transfer, they conclusively imported a pecuniary consideration, and a use arose therefrom in favor of the grantee. A deed, therefore, from A, by which he bargained ^nd sold land to B, created the use in B's favor, which the stat- ute executed by transferring the legal estate. If, however, A designed to create a passive trust ior B as the benficiary. his deed would be modified m form, so as to be a bargain and sale of the land to C to the use of or in trust for B. By operation of the statute the legal estate would thereby be vested in C, but would be held by him as a trustee for B, the intended bene- ticiary. This became the common form of deeds creating express passive trusts inter vivos, where the parties were not near family relatives. Wherever an estate was given by wiii, and the testator wished to create a passive trust which should be valid notwitlistanding the statute, express M-ords were neeessarj leclaring or creating in some manner one u.se upon another. 547 ORIGIN OF USES AXD TUUSTS. § 986 table interests which had existed under the denoniinc.tion oi" "uses" prior to the statute were thus kept in existence, and continued to be under the exclusive jurisdiction of chancery, it was found con- venient to give them a new name. The "use" had, by virtue of tJie statute, passed Avithin the cognizance of the law courts, and tiienceforth it played a most important part in the English theory and practice of conveyancing; and, as such, it does not fall Avithin the scope of a treatise upon equity jurisprudence.^ The beneficial interests which equity recognized and protected — both those kinds which were held not to have been affected at all by the statute, and those which were rescued from its operation by the construc- tion described in the last paragraph — were styled trusts; the person holding the legal title was termed the trustee; while the holder of the beneficial or equitable estate was ordinarily known as the cestui que trust, or, in more modern nomenclature, as the beneficiary. ' Tlie foregoing account of the text shows the origin of trusts as they exist in England under the statute of uses, and its judicial interpretation. The (lucstion then arises, How far does tlie statute exist in this country, and attect the creation of trusts? Since the statute never applied to personal property, and imder the judicial construction never embraced active uses and trusts, it follows that the question suggested practically means, how far do express passive trusts in lands exist in the states of this country? and how far does their creation depend upon the statute of uses? As such express passive trusts are very rare indeed in the United States, and are opposed to our prevailing notions of landed property and modes of dealing with it, tliis question is plainly more theoretical than practical. Still, the operation of the statute has sometimes been discussed by American courts, and in one state in par- ticular it has been a frequent subject for judicial inquiry. In several of the states, as will more fully appear in a subsequent paragraph, all express passive trusts in land, and all express active trusts, with the exception of certain specified species, have been completely abrogated and abolished. The statute of uses clearly has no operation in those states, since it has been super- seded bj more destructive legislation. ... In most of the remaining states. as ]Mr. Perry shows in his admirable treatise, the statute of uses has either been substantially re-enacted, or adopted and held to be in force as a part of the English legislation regarded as operative and binding in this countrj'. See Perry on Trusts, sec 209, and note, containing abstract of statutes. See., also, Fellows v. Kipley. Gi) X. II. 410, 45 Atl. 138; Graham v, Whitridge, (Md.) 58 Atl. 30; Henderson v. Adams, 15 Utah 30, 48 Pac. 398. § 987 EQUITY JLKlSl'IiUDEXCK. 548 SECTION II. EXPRESS PRIVATE TRUSTS. ANALYSIS. § 987. Classes of trusts. §§ 988-990. Express passive trusts. § 989. Estates of the two parties: liability for beneficiary's debts, etc. § 990. Rules of descent, succession, ai.d alienation. §§ 991-995. Express active trusts. § 992. Classes of active trusts. § 993. Voluntary assignments for the benefit of creditors; English doctrine. § 994. The same; American doctrine. § 99.5. Deeds of trust to secure debts. §§ 996-999. Voluntary trusts. § 997. The general doctrine; incomplete voluntary trusts not enforced. § 998. When the donor is the legal owner. § 999. When the donor is the equitable owner. §§ 1000, 1001. Executed and executory trusts. § 1001. Definition and description. § 1002. Powers in trust. §§ 1003-1005. Legislation of various states. § 1004. Judicial interpretation; validity of trusts. § 1005. Interest, rights, and liabilities of the beneficiary. § 987. Classes of Trusts. — Ilavino' thus explained the origin of trusts and their historical development until the jurisdiction sitb- stantially as it now exists had become firmly established, I shall now proceed to consider the various kinds and classes which are recognized by equity and form a part of its jurisprudence. All possible trusts, whether of real or of personal property, are sepa- rated by a principal line of division into two great clas.ses: Those created by the intentional act of some party having dominion over the property, done with a view to the creation of a trust, which are express trusts; those created by operation of law. Adhere the acts of the parties may have had no intentional reference to the exist- ence of any trust, — implied, or resulting, and constructive trusts. Express trusts are again separated into two general classes, — pri- vate and public. Private trusts are those created by some written instrument, or in some trusts of personal property by a mere verbal declaration, for the benefit of certain and designated individuals, in which the cestui que trust is a known person or class of persons. Public, or, as they are frequently termed, charitable, trusts are those created for the benefit of an unascertained, uncertain, and sometimes fluctuating body of individuals, in which the cestuis que trustent may be a portion or class of a public community. — as. for 549 EXPRESS rinvATE trusts. § 988 example, the poor or the c-hildreii of a partieuhir town or parish. As a iieueral rule, property of every kind and form, real and per- sonal, may be made the subject of an express trust or of one arising by operation of law. All persons who have the capacity to hold and dispose of property can impress a trust upon it; and, generally, all persons capable of holding property may be made trustees.^ All persons capable of holding property, even those non sui juris, and such persons only, may be beneficiaries.- E(|uity wil! enforce all lawful trusts. If a trust should be created for an illegal or fraudulent purpose, equity will not enforce it, nor, it seems, relieve the person creating it by setting aside the conveyance." When, however, a trust is unlawful because it is one which the statute forbids, or w^hich conflicts with the statute concerning perpetuities, and the like, the whole disposition is void.* § 988, Express Passive Trusts. — Express private trusts are of two kinds, — passive or simple, and active or special. An express passive or simple, or, as it is sometimes called, pure, trust exists when land is conveyed to or held by A in trust for B, without any power expressly or impliedly given to A to take the actual posses- sion and management of the land, or to exercise acts of government over it except by the direction of B.^ In such a cjise the naked legal title alone is vested in the trustee, while the equitable estate of the cestui que trust is to all intents the beneficial ownership, en- titlmg him to the possession, the rents and profits, and the manage- ment and control, according to the extent of his estate. These pass- 'It might not be expedient to appoint married women or infants trustees; 1)nt they 77iay discharge the duties of the office; see Jevon v. Bush, 1 Vern. 342, Ames Trusts 217; Still v. Rub}-, 3.5 Pa. St. 373, Ames Trusts 219. Prop- erty subject to an express or implied trust might devolve upon a person wholly non sui juris, as an idiot: equity would either enforce the trust against the property, or appoint anotlier trustee. The difficulty of enforcing a con- veyance by the trustee in such a case (see Pegge v. Skinner, 1 Cox Eq. 23. Ames Trusts 218: Hall v. Warren. Ves. 605, H. & B. 575) has been overcome by modern statutes; see Ee Wadsworth, 2 Barb. Ch. 381, Ames Trusts 511. A corporation may be a trustee: Att'y Gen. v. Landisfield, 9 Mod. 286, Ames Trusts 216. -Wherever the common-law rule prevails forbidding aliens from acquiring or holding real estate by an absolute right, they cannot be made beneficiaries, and hold the equitable interest inider a trust in their favor; but this rule does not prohibit trusts of personal property on behalf of aliens: Du Hourmelin V. Sheldon, 4 Mylne & C. 525, 1 Beav. 79. The common-law rule also dis- qualifies them from being trustees: King v. Bays, Dyer 283b, Ames Trusts 216. ^See Symes v. Hughes, L. R. 9 Eq. 475; Cross v. U. S. Trust Co., 131 N, Y. 330, 27 Amer. St. Rep. 597, 30 N. E. 125, 15 L. R. A. 606. *. Johnston's Estate, 185 Pa. St. 179, 64 Amer. St. Rep. 621, 39 Atl. 879. > 1 Spence's Eq. Jur. 49.5-497. See Holmes v. Walter, 118 Wis. 405), 95 'N. W. 380. § 1)81) KQUITY JUinsi'lUDKNCK- 550 ive trusts are considered in eiiuity as virtually equivalent to the coiresponding leyal ownerships; the trust is regarded .'/ather as fastened upon the estate thaii ujjon tlie person of the trustee;- it is never suffered to fail for want of a trustee, either when the des- ignated trustee dies, or refuses to act, or is an improper person. •■ As a general principle, the rules of law, excepting those growing out of the doctrine of tenure, have been applied by analogy as far as practicable to these corresponding passive trust estates.* A person cannot hold property under a passive trust for himself, for generally, when the legal estate and an equal or less equitable estate unite in the same owner, a merger takes place;'' but this rule is not universal, since the two estates may be kept separate and subsisting, in order to protect the equitable interests of the owner.'' Such express passive trusts in land are certainly very infrequent m this country, although they may occasionally exist, where not ])r()hibited by statute." Trusts in personal property, however, which are essentially passive, are not at all uncommon.'* §989. Estates of the Two Parties. — The estate of the naked trustee in a i)assive trust, and a fortiori of the trustee in an active trust, is the only legal ownership,^ although it must be used, in equi- ty, only for the purposes of carrying out the trust and protecting the rights of the beneficiary.- The trustee, having the legal in- terest, is the proper person to bring actions at law," and to do (itlier things which can be done only b}- one having the legal estate.* The estate of the cestui (lue trust, wliile regarded in equity as the - Adair v. Shaw, 1 Shoales & L. 262, per Lord Redesdale. ^See post, S lOST; Keith v. Scales, 124 N. ('. 4!)7. 32 S. E. 809. nVatts V. P.all, 1 P. Wms. 108, Ames Trusts 370, 1 Scott 292; Burgess v. Whcate, 1 Eden 177, 1S4, lOo, per Sir T. Clarke; p. 223, per Lord Mansfield; p. 2.-)0, per Lord Xdrthiiiiiton. Ames Trusts 3.-)G, 1 Scott 58, 31G. ■■'Tilton V. Davidson, 08 IMe. a."). ,5(j Atl. 215. n^rydges v. F.rydges, 3 Ves. 120, 126. See ante, §§ 787, 788. 'Dean v. Long, 122 111. 447, 14 N. E. 34. ** For example, A may deposit money in a l)ank, in "trust for B." or may deposit in the name of B, "in trust for C," and thus create a valid trust which !*< really passive, since tlie trustee is not charged with any duties of manage- ment, such as receiving the interest and paying it over; in fact, he holds the corpus of tlie property in trust for the beneficiary. As illustration, see Mar- tin V. Funk, 75 N. Y. 134; 31 Am. Rep. 446, H. & B. 393. ' (Jandy v. Fortner, 119 Ala. .303, 24 South. 425. = Hafner v. City of St. Louis, 161 Mo. 34, 61 S. W. 632; Xeal v. Bleckley, 51 S. C. 506, 29 S. E. 249. M^rice V. Krasnoflf, 60 S. C. 172, 38 S. E. 413. * When money is deposited in a bank to the credit of A, in trust for B, A, or upon his death his administrator, is prima facie tlie proper person to de- mand and receive payment from the bank: Boone v. Citizens' Sav. Bank, 8* N. Y. S3 : 38 Am. Rep. 498. r<51 EXl'ltKSS rinVATE TKL'.STS. § 989 real ownership, is governed, so far as practicable, by the leyal rules applicable to similar estates at law. The language of the instru- ment creating or declaring the trust is interpreted by courts of ecpiity in accordance with the rules followed by courts of law. The interest of the cestui que trust is alienable; if real estate, it nuiy be conveyed by ordinarj' deed; if persoiuil, it may be assigned;^ but the rule is established in England that notice must be given to the trustee, in order to perfect an assignment b}' a cestui qu^ trust of peisonalty, and to protect the assignee." The estate cannot, by any restrictions annexed to the trust, be rendered inalienable, nor can it be stripped of other incidental rights of ownei'ship.'^ It is also lial)le for the debts of .the beneficiary.'' It cannot he so created that, while it is subsisting and enjoyed by the benefi- ciary, it shall be absolutely free from such liability. The trust may be so limited that it sliall not take effect unless the beneficiary is fi-ee from debt, or that his estate shall cease upon his becoming insolvent, or upon a judgment being recovered against him, and shall thereupon vest in another person;" but the cestui que trust cannot hold and cnjoij his interest entirely free from the claims of creditors.^" These rules are subject to a most important excep- 'See post, § 100.5. "This rule is luloptod in only a portion of the American states: See ante, ■§§ ()!)5-007, where the English and American cases are cited. H'.randnn v. Rohinson, 18 Ves. 42f), Ames Trusts 394. « Forth V, Duke of Norfolk, 4 Jfadd. 503. M'.ull V. Kv. ]'>ank. !I0 Ky. 4.-,i'. 14 S. W. 42.-), 12 L. W. A. 37. '"This is tlie Enolish rule upon this subject, and tlie rule in about half of the states where the question has arisen: Brandon v. Rolunsdu. IS Ves. 42!). Ames Trusts 304: Nichols v. Levy. 5 Wall. 433. 441; Bland v. Bland, 00 Ky. 400, 29 Am. St. Rep. 390, 14 S. W. 423, 9 L. B. A. .599; Hutchinson v. :yiax- well, 100 Va. 100, 40 S. E. 65."), 03 Am. St. Rep. 944, 57 L. R. A. 384. These trusts are commonly known by the name of "spendthrift trusts." Their validity has been sustained in many jurisdictions, however, largely on the sfrength of dicta in Nichols v. Eaton. 01 U. S. 716; see Broadway Nat. Bank v. Adams, 133 Mass. 170, 43 Am. Rep. 179, Ames Trusts 397; Leigh v. Harrison, 09 :\Iiss. 023. 11 South. 604, 18 L. R. A. 49: .Tackson Sq. L. & S. Ass'n v. Bartlett. 95 ^rd. 661. 53 AH. 426, 93 Am. St. Rep. 410. .Ml jurisdictions agree in holding that a person sui juris cannot convey his j)roi)erty upon trusts for himself free from the claims of his creditors: Brown v. IMcOill. 87 ;Md. 161. 67 Am. St. Rep. 334, 39 AH. 613, 39 L. R. A. 806; Ohormley v. Smith, 130 Pa. St. 584, 23 Am. St. Rep. 21.5, 21 AH. 135, 11 L. R. A. 565. When no interest is vested in the beneficiarv, as where the direction of the creator of the trust is not to pay the income but to apph/ such portion of it as the trustee sees fit to the support of A; or to pay the incoitie to A and others in such proj)ortions as the trustee sees fit: the income is free from the reach of the beneficiary's creditors: See In re Bullock. 60 L. J. Rep. Ch. .341, Ames Trusts 401 : In re rolcman. 39 Ch. Div. 443. Ames § 991 EQUITY JUKISPKUDENCE. 552 tion in the case of the married woman's separate estate, — property- held npon trust for her separate use. It is the familiar doctrine with reference to such separate estate, — the very essential element that it may be settled to her own separate use so as to be held by her entirely free from her husband's control and from the claims of his creditors. It is also the established doctrine, designed to protect her from the moral influence of her husband, that in creating the trust a clause may be inserted against "anticipation," by which her power of aliening her interest is taken away during her marriage ; and, as the rule is generally accepted, the restraint of such clause may operate during any future as well as present marriage.^ ^ §990. Rules of Descent and Succession. — The rules concerning descent, devolution, and succession, applied to the equitable estates of beneficiaries, are generally the same which regulate correspond- ing legal estates.^ Those rules, however, which result from the doctrine of tenure do not apply, and therefore it is settled in Eng- land that the ecpiitable estate of the beneficiary in lands held in trust for him is not subject to escheat, but the trustee holds the land absolutely.- As a consequence of the general doctrine, estates of inheritance held in trust for the wife are subject to the husband's curtesy;'^ but by a strange inconsistency of the English law, the wife had no dower in similar estates held in trust for her hus- band.* §991. Express Active Trusts. — Active or special trusts are those in which, either from the express directions of the language creat- Trusts 339; Nichols v. Eaton, supra; Stone v. Westcott, 18 R. I. 685, 29 Atl. 838. See a most interesting discussion of the whole subject in Gray's Eestraints on Alienation, Preface and §§ 134-277. In the group of states which follow the New York legislation relating to trusts, the rights of creditors are regu- lated by statutes, and only that portion of the income which is not required for the beneficiary's support, education, etc., can be reached; in a few states, liowever, the Avhole income is thus exempt: Graff v. Bennett, 31 N. Y. 9, 88 Am. Dec. 236. "See post, §§ 1107-1109. 'See Burgess v. Wheate, 1 Eden 177, Ames Trusts 356, 1 Scott 58. 316; The King v. Ex'rs of Sir John Deceombe, Cro. Jac. 512, Ames Trusts 353; Anonymous, reported in Year Book, 5 Edw. IV, 7, pi. 18, Ames Trusts 352; King's Att'y v. Sands, Freeman Ch. Cases 129, Ames Trusts 354; Middleton V. Spicer, 1 Br. Ch. Cas. 201, Ames Trusts 364. = Burgess v. Wheate, 1 Eden 177, Ames Trusts 3.56, 1 Scott 58, 316. "Appleton V. Rowley, L. R. 8 Eq. 139. Ames Trusts 381; Sweetapple v. Bindon, 2 Vern. 536, Ames Trusts 379; Watts v. Ball, 1 P. Wms. 108, Ames Trusts 379, 1 Scott 292. ^D'Arey v. Blake, 2 Schoales & L. 387, Ames Trusts 376; Bottomly v. Lord Fairfax, Precedents in Ch. 336, Ames Trusts 375. 553 ExrrtKss piuvate tuusts. § i)y2 iug the trust, or from the very nature of the trust itself, the trustees are charged with the perforniauee of active and substan- tial duties with respect to the control, nianagenient, and disposition of the trust property for the beuelit of the cestuis que trustent They may. except when restricted by statute, be created for every purpose not unlawful, and, as a general rule, may extend to eve;y kind of iiropert}', real and personal. In this class the interest of the trustee is not a mere naked legal title, and that of the cestui que trust is not the real ownership of the subject-matter. The extent and incidents of the rights held Ijy the respective parties must, of course, vary with the nature of the trust itself and the duties which the trustee is called upon to perform. It is a universal rule, however, that the trustee's estate and power over the subject- matter are commensurate with the duties which the trust devolves upon him, and are sufficient to enable him to perform all those duties.^ The trustee is generallj^ entitled to the possession and management of the property,- and to the receipt of its rents and profits; and in manj^ cases he has, from the very nature of the trust, authority to sell or otherwise dispose of it. The interest of the beneficiary is necessarily more limited than in passive trusts, and it sometimes cannot with accuracy be called an equitable csftrtc^ He always has the right, however, to compel a performance of the trust according to its terms and intent.* §992. Classes of Active Trusts. — Although active trusts may be created for a great numlier of special purposes, those which are the most frequent and important may be reduced to the four following generic classes : 1. Where the trust is simply to convey the property to some designated person, or class of persons.^ 2. M Spence's Eq. Jur. 406, 497; see In re Colo's Estate, 102 Wis. 1. 72 Am. St. Hep. 8o4, 78 N. W. 402. As to the riglit of the beneficiary to obtain a con- A-ej'ance of the trust property, although the trust has not been coniplotod nor ceased, see Sanders v. \'autier, 4 Ik'av. 11.5, Ames Trusts 454; Claflin v. Claflin. 149 ]VIass. 19, 14 Am. St. Rep. 39-3, 20 N. E. 454, 3 L. R. A. 370, Ames Trusts 435. -See Tidd v. Lister, 5 Mad. 429, Ames Trusts 465. ' As to provisions imposing a restraint pn alienation, and freeing the interest of the beneficiarj' from the claims of his creditors, see ante, § 9S0, note. *See post. §§ 1062-1065. ' This species is often found in connection with other kinds. Trusts for investment and accumulation almost invariably terminate with a trust to convey the accumulations to specified- beneficiaries; in trusts for applying rents and profits to particular uses, there is gonerallv a provision for conveying the capital fund, at the expiration of tlie period liniited, to some designated persons by way of remainder. Trusts merely to convey the property, unac- companied by any other duties of tlie trustee, are uncommon. Such rf/.sposi- tiofis are very frequent in Englisli marriage seltlcmenls. but they are usually accomplished by means of powers, rather than by trusts. § !)9'3 EQUITY JURISPRIDENCE. 554 Where the primary object is to sell or dispose of the entire trust prop- erty in some manner and to use the proceeds for some ulterior pur- poses.- In all the instances of this class, where the trust is to sell the corpus of the property and to distribute the proceeds among credit- ors, legatees, and the like, the beneficiaries plainly acquire no proper estate in the original trust fund prior to its sale; their right and interest attach to the proceeds of this fund, which are to be paid to or distributed among them. In order to make their right fully available, and to guard their interest as much as possible against the large authority given to the trustees, equity has invented in such cases the doctrine of conversion, by which real property is regarded as personal, and personal property as real.-^ 3. This class includes Ark. 406, 38 Am. Rep. 40 (valid); Collier v. Davis, 47 Ark. 307, 58 Am. Rep. 758 (void), -In re Lewis, 81 X. Y. 421. ••'Estes V. (iunter, 122 U. S. 450, 7 Sup. Ct. Rep. 1275, 30 L. ed. 1228. The validity of the assignment depends upon the question whether it falls within the inhioitions of the statute of 13 Eliz., c. 5, and analogous statutes of the Amer- ican states. If executed with an actual intent to hinder, delay, or defraud creditors, as shoAvn by extrinsic evidence, or if it contains provisions which necessarily operate to hinder or delay creditors, and therefore raise a con- clusive presumption of siu-h an intent, the assignment will be declared void. Various provisions have been thus condemned by the courts, although there is not a perfect imiformity among the decisions. A provision which creates a trust in favor of the debtor himself, to be operative before all tlie creditors are fully paid, will always render the assignment void: See Austin v. Bell. 20 Johns. 442, 11 Am. Dec. 297; Grover v. Wakeman, 11 Wend. 187, 201, 203, 25 Am. Dec. 624, 4 Paige 23. 567 EXPRKSS I'KIVATK TItUSTS. § 99.5 — a creditor of the grantor, — and conditioned to he void on pay- ment of the debt by a certain time, but if not paid the trustee to sell the hind and apply the proceeds in extinguishing the debt, paying over any surplus to the grantor. The object of such deeds is, by means of the introduction of trustees, as impartial agents of the creditor and debtor, to provide a convenient, cheap, and speed}' mode of satisfying debts on default of payment.^ A dis- tinction, however, should, be noted, in this connection, between unconditional deeds cf trust to raise funds for the payment of debts, and deeds of trust in the nature of mortgages, the former be- ing absolute and indefeasible conveyances for the purposes of the trust, while the latter are conveyances by way of security, subject to a condition of defeasance.- In many states, deeds of trust to secure debts are much favored, either on account of the interven- tion of disinterested third parties, whose position as trustees secures to the debtor fair dealing, or the absence of any necessity for the intervention of the courts; though in some states they are required to be judicially foreclosed, and are therefore of no practical advan- tage. Indeed, in a majority of the states, this form of security has come into general, and in some instances universal, use. An intimate relation exists between deeds of trust to secure debts and mortgages, especially mortgages containing poAvers of sale; in fact, the former are generally considered as being in legal effect mortgages.^ Where a mortgage is regarded as a conveyance of the legal estate, a deed of trust can be no less a conveyance of the legal estate, and where a mortgage is considered as but a mere lien, a deed of trust is generally considered as nothing more than a lien."* A reconveyance, as a general rule, is not necessary on payment of the debt secured by a deed of trust, satisfaction being entered in the margin, as in the case of a mortgage. Statutes relat- ing to the recording of mortgages embrace deeds of trust, without special mention of the latter, as also do those relating to powers of sale contained in mortgages. "While a mortgage with power of sale may be assigned, in the absence of words restricting an assignment, and the power of sale passes thereby to the assignee, a deed of trust to secure a debt, being a confidence reposed, cannot be delegated, and no assignment is possible, without an express and positive permission in the deed." The duties of the trustee ^Taylor v. Stearns, IS Gratt. 244, 278. -Hoflnian v. :\Iackall, 5 Ohio St. 124, 130, 64 Am. Dec. 037. s\Vebb V. Hoselton, 4 Neb. 308, 19 Am. Rep. G38; Earth v. Deuel, 11 Colo. 404, 19 Pac. 471. * Flint, ete., R'y Co. v. Auditor General, 41 ^licli. 03."). Sec Kocli v. IJriggs, 14 C'al. 250, 73 Am. Dee. 0.51. ^See Irish v. Antioch College, 120 111. 03S. 9 Am. St. Pep. 03S, 18 X. K. 708,. where the deed provided for a successor to the trustee. § 997 EQUITY JUItl.sPKUDEXCE. 558 of a deed of trust require the utmost good faith and impartiality as regards both the debtor and the creditor. He is personally liable, in a suit at law for damages to the party aggrieved, for a failure to use reasonable diligence, or an abuse of his discretionary powers ; and a sale may be enjoined or set aside at the instance of the in- jured party. ** It is not necessary that the person who is to execute the power in a trust deed should join in the deed, or execute any formal writing showing iiis acceptance of the trust ;^ nor is it necessary that the beneficiary should signify his assent by any formal writing, for his assent is presumed, since the deed is for his benefit. Where a trustee has accepted the trust, he cannot re- nounce it without the consent of the' beneficiary, or of a court of equity; and he may be compelled to discharge the trust.^ § 996. Voluntary Trusts. — The particular question to be examined under this head, and which renders it one of such great practical importance, is, When will trusts, and transactions in the nature of trusts, which are purely voluntary, virtual gifts be treated as binding and enforceable in equity? The answer, it will be seen, turns upon the distinction between trusts which are executed — that is, completely created or declared — and those which are merely executory, incomplete,— that is, promises to create a trust. The full discussion of the subject also involves the difference between assignments perfect and imperfect, and declarations of trust. Un- derlying the whole theory of voluntary trusts is the principle that while the maxim. Ex nudo pacto non oritur actio, operates in eciuity even more strictly than at the common law, so that a promise with- out any valuable consideration has no binding efficacy, still a valid trust may be created without any valuable consideration; if a trust has been completely declared, the absence of a valuable consideration is entirely immaterial.^ Another principle frequently applicable in cases of this kind is, that equity generally regards an imperfect conveyance or assignment as a contract to convey or assign; but whether such contract is binding or not must de- pend upon the cireumstances.- § 997. The General Doctrine — Incomplete Voluntary Trusts not 'Mailer's Adra'r v. Stone, 84 Va. 834. 10 Am. St. Rep. 880, and note. 6 S. E. 22:5. 'Leffler v. Arnistrontr. 4 Iowa 482. 68 Am. Dee. 072. «Com. V. Susquehanna, etc.. Ey. Co.. 122 Pa. St. ^OC. l.-> Atl. 448. 1 L. R. A. 225. *Ex parte Pye, 18 Ves. 140, Ames Trusts 123; Bath Sav. Inst. v. Hathorn. 88 Me. 122, .51 Am. St. Rep. 382. 33 Atl. 836, 32 L. R. A. 377. H. & B. 400; Wagoner's Estate. 174 Pa. St. ,5.o8. ,52 Am. St. Rep. 828, 32 L. R. A. 766, 34 Atl. 114. =< Parker v. Taswell, 2 De Gex & J. 559. 559 EXPRESS PRIVATE TRUSTS. § 997 Enforceable. — The general doctrine is well settled. A perfect or completed trust is valid and enforceable, although purely volunta- ry. A voluntary trust which is still executory, incomplete, imper- fect, or promissory will neither be enforced nor aided.^ In order to render the voluntary trust valid and effectual, the party creating it, tither by direct transfer or by declaration, must have done every- thing which, according to the nature of the property comprised in jt, was necessary to be done in order to transfer the property and render the transaction binding upon him. A person holding propert}', real or personal, and intending to make a voluntary disposition thereof for the benefit of another, may do so in either one of the three modes: 1. Pie may make a simple conveyance or assignment of it directly to the donee, so as to vest in the latter whatever interest and title the donor has, without the intervention of any trust; 2. He may make a transfer of it to a third person upon trusts declared in favor of the donee ; 3. He may retain the title, and declare himself a trustee for the donee, and thus clothe the donee with the beneficial estate. In either of these modes, if the transaction is imperfect and executory, equity will not aid nor enforce it ; and if the intention of the party is to adopt one of the methods, a court of equity will not resort to either of the other methods for the purpose of carrying it into effect. When- ever the party intends to make a transfer directly to the donee, he must do all that is necessary, according to the nature of the property, to pass and vest the title, by valid conveyance in case of real property, and by valid assignment in case of personal prop- erty, and generally accompanied by an actual delivery of chattels and things in action where the donor is the legal owner. Where the donor shows an intention to adopt this first method, and thus to vest the property directly in the donee, and the act of donation is simply an assignment o'f any form, hut is ini perfect ^See ]Milr<)y v. Lord. 4 De Gex, F. & J. 2fi4, 274, Ames Trusts 140; Richards V. Delhridge, L. R. 18 Eq. 11, 13, Ames Trusts 130, H. & B. 385, Shep. 204; Ex parte Pye, 18 Ves. 140, Ames Tinats 123; Morgan v. Malleson, L. R. 10 Eq. 475, Ames Trusts 129; Colman v. Sarrel, 3 BroN\Ti Ch. 12, 1 Ves. 50, Ames Trusts 133; Fortescue v. Barnett, 3 Mylne & K. 36, Ames Trusts 136; Edwards V. Jones, 1 Mylne & C. 220, Ames Trusts 140; Donaldson v. Donaldson. Kay 711, Ames Trusts 146; Richardson v. Richardson, L. R. 3 Eq. 686. Ames Trusts 156: Baddeley v. Baddoley. L. R. Ch. Div. 113. Ames Trusts 170; In re Breton's Estate. L. R. 17 Ch. Div. 418. Ames Tnists 171: Clark v. Clark. 108 :Mass. 522. Ames Trusts 2.32; Young v. Young. 80 X. Y. 422. 436. 36 Am. Rep. 634, H. & B. 387; Martin v. Funk. 75 K Y. 134. 137. 31 Am. Rep. 446. H. & B. 393: Estate of Wehb. 40 Cal. 541. 545. H. & B. 392; Beaver v. Beaver. 117 X. Y. 421, 18 Am. 8t. Rep. 531. 6 L. R. A. 403. 22 X. E. 940. H. & B. 396; Bath Sav. Inst. v. Hathorn, 88 Me. 122, 51 Am. St. Rep. 382. 33 Atl. 836, 32 i. R. A. 377, H. & B. 490. § 998 EQUITY JURISPRUDEXCE. 560 SO that it does not pass the title, a court of equity will not treat it as a declaration of trust constituting- the donor himself a trustee for the donee; an imperfect voluntary assignment will not be regarded in equity as an agreement to assign for the purpose of raising a trust. If the donor adopts the second or third mode, he need not use any technical words, or language in express terms creating or declaring a trust, but he must employ language which shows unequivocally an intention on his part to create a trust in a third person or to declare a trust in himself. It is not essential, however, that the donor should part with the possession in the cases where he thus creates or declares a trust. These conclusions are sustained by the decided weight of authority, and must be regarded as the settled rules of equity jurisprudence upon the subject. The general doctrine which has thus been explained may find its application under two different conditions of fact: 1. Where the donor is the absolute owner of the property, holding the legal and equitable title thereof ; 2. Where the donor is only the equitable owner, holding only the equitable estate, the legal title being vested in some third person as his trustee. These two con- ditions will be examined separately. § 998. Donor the Legal Owner. — The foregoing general conclu- sions determine all particular questions which can arise under this condition of fact. If the donor makes a complete conveyance of real property or assignment of personal property suffi- cient to vest the legal title in the donee ; or if he completely conveys or assigns the property to a trustee upon trusts effectually created on behalf of the donee ; or if he retains the legal title, but effectualh^ declares himself a trustee for the donee, thus clothing the donee with all of the beneficial estate, — then, in each of these instances, the gift is valid although voluntary; the donee's rights are perfect, and equity will enforce them against the donor, and all persons claiming under him as volunteers.^ Where the donor has the legal title, and the property ' The practical question always is, Avhether the conveyance or assignment is sufficient to pass the legal title; or whether a trust has heen eftVctually created or declared. While no particular express words are necessary either to create a trust in a third person, or to declare the donor a trustee, some words unequivocally showing such intent are indispensible. A mere imperfect assignment, without words indicating an intent to create a trust or to declare the donor a trustee, can not be construed as a declaration of trust, so as to raise a trust in the donee's favor, which equity may enforce. Where the siibject matter is personal property, a parol declaration of trust, if otherwise sufficient, is effectual: See the eases cited in the last note. I add the facts of a few instnictive cases by way of illustration. In :\Iilroy v. Lord, 4 De Gex, F. & J. 204, Ames Trusts 140, A OAraed fifty 561 EXPRESS PRIVATE TRUSTS. § 99S is of such a nature that a legal estate can be transferred, — that is, is land, chattels, money, and some species of things in action, — shares of stock of a bank, which stood upon the books of the bank in his name. Bj' the charter of tlie bank its shares were transferable only by entry made in the transfer-books of the corporation. A executed a voluntary deed, by wliicli he purported to assign these shares to B, in trust for the plaintiff, C, but no transfer was made upon the bank's books. Held, that, as the assignment was incomplete and inoperative to pass the legal title to the trustee, B, no trust w^as effectually created in C's favor; and, also, since the plain intention was to vest the trust in B, and not to constitute the donor a trustee, the assign- ment could not be construed as a declaration of trust binding the shares in the donor's hands. In Eichardson v. Richardson, L. R. 3 Eq. G8(), Ames Trusts 156 E, by a voluntaiy deed, assigned certain specific property, and "all other the personal estate, whatsoever and wheresoever," of the assignor to R abso- lutely. At the date of the assignment, E was owner of certain promissory notes. These notes were not mentioned in the assignment. On R's death these notes Avere found in his possession, but not endorsed hy E, and there was no evidence of any delivery of the notes by E to R. Page Wood, V. C, held that although the assignment did not operate as such to pass the legal title to the notes, still it operated as a declaration of trust by E in R's favor, and R thereby became entitled to the notes. In Morgan v. Malleson, L. R. 10 Eq. 475, Ames Trusts 129, S, the owner of a certain India bond, signed the following voluntary instrument and delivered it to JM, but did not deli\-er the bond itself: "I hereby give and make over to ^I an India bond, value one thousand pounds." On tlie death of S, a contest arose between INI and the executors of S, and Lord Romilly held that the assignment was operative as an effectual declaration of trust in M's favor, and he was entitled to the bond. The judge said that the assignment was equivalent to the words: "I undertake to hold the bond for you." These two cases have been severely criticised both in England and in this country; they must be regarded as conti-ary to the doctrine settled by the weight of authority, and as virtually overruled. In Richards v. Delbridge, L. R. 18 Eq. 11, Ames Trusts 130, H. & B. 385, Shep. 204, D, who owned leasehold premises and a stock in trade, purported to make a voluntary transfer or gift of the whole to his grandson, E, by means of the following memorandum, which he wrote upon the lease and signed: "This deed, and all thereto belonging, I give to E from this time forth, with all the stock in trade." The lease with the memorandum was then delivered to E's mother, and the donor soon afterwards died. Held, that there was no A-alid assignment so as to con- stitute a perfected gift, and that thera was no valid declaration of trust. In Martin v. Funk, 75 X. Y. 134, 31 Am. Rep. 44G, H. & B. 393 Mrs. Susan B. deposited in a savings bank a sum of money belonging to her, declaring at the time that she wanted the account to be in trust for the plaintiff. The account was so entered in the books of the bank, and a pass-book was delivered to her, containing the following: '"i'lio Citizens' Saving Bank, in account with Susan Boone, in trust for Lillie Willard, five hundred dollars." :\lrs. B. retained possession of the pass-book, nnd the money remained in the bank until her death. Plaintiff was ignorant of the deposit lentil after the donor's death. Held, that the transaction was an effectual declaration of trust, constituting the donor a trustee for the plaintiff, and clothing the plaintiff with the beneficial ownership of the money: that the donor's retention of flic |)a-;-;-bo()k was not inconsistent with her position as a trustee, and that notice to the cestui que trust was not necessary in order to constitute a valid trust. In Young 36 § 999 EQUITY JURISPRUDENCE. 562 an imperfect conveyance or assignment, which does not pass the legal title, will not be aided or enforced in equity.. But if the property is not of such a nature that the legal title can be trans- ferred, then, if nothing more remains to be done or can be done by the grantor or donor, — if, as far as he is concerned, the convey- ance or assignment is complete, and he has done all that is neces- sary to be done, having regard to the nature of the property, — the conveyance or assignment will be effectual in equity, and will be enforced on behalf of the donee.- It should be observed, however, that by recent statutes nearly all, if not quite all, legal things in action have been rendered assignable at law, so that the cases in which the last-mentioned rule can apply have been very much limited. § 999. Donor the Equitable Owner. — Where the donor is only the ecjuitable owner, the legal estate being vested in a third person, he may make a voluntary transfer of his interest by conveyance or assignment ; and if he has done all that is within his power to pass the property directh^ to the donee, or to declare a trust in favor of the donee, the donee 's rights will be protected and enforced by a court of equity.^ Also, the donor holding the equitable es- tate may direct the trustee in whom is vested the legal title to hold the property in trust for the donee; and this will create a valid trust in favor of the donee, and will clothe him with the beneficial interest, even though the direction is voluntary ; and it is not neces- V. Young-. 80 X. Y. 422, 30 Am. Rep. 6.']4. H. & P,. :587, Young placed certain bonds in two envelopes, and wrote on each envelope a memorandum, signed by him, that a specified number of the bonds therein belonged to his son VV, and the residue to his son J, but tliat the interest to become due thereon was "owned and reserved" by himself during his life, and that at his death "they belong al)solute]y and entirely to W and J and their heirs." The donor showed these envelopes and memoranda to the wives of his sons, and made statements to them expressing his intention that the gift was to be complete and valid. Tjie donor retained possession of the envelopes and con- tents until his death, about a year afterwards. Held, that there was no executed and valid gift passing the legal title, and no valid declaration of trust constituting the father a trustee for the donees. In Estate of Webb, 49 Cal. 541, H. & B. '.id'l, a person had written a letter to his sister, in which he promised to assign some securities to her, and this was held not an executed gift nor a valid trust. - lUu.strations of the first class, where the assignment was incomplete, and the donee acquired no right: Wadd v. Hazleton, 137 N. Y. 215, 33 Am. St. Rep. 707, 21 L. R. A. 693, 33 N. E. 143. Examples of the second class, where the donor did all that the nature of the property admitted: Edwards v. Jones, 1 Mylne & C. 226. 238, Ames Trusts 140; Fortescue v. Barnett, 3 Mylne & K. 36, Ames Trusts 136. ^Donaldson v. Donaldson. Kay 711, Ames Trusts 146; Tierney v. Wood, \9 Beav. 330, Ames Trusts 182. 5G3 EXl'KKSS PRIVATE TRUSTS. § 1000 5aiy that the trustee should give his assent.- Finally, the holder of the equitable estate may, by a sufficient declaration of trust, constitute himself a trustee for the donee with respect to the prop- erty, subject to the same limitations which apply to such declara- tions of trust by a donor who holds the legal estate. In conclusion, it may be truly said that each case of voluntary trust or transfer depends largely upon an interpretation of the language used by the donor; whether the language operates as a complete transfer, or is an effectual declaration of trust, must always be the vital ques- tion. § 1000. Executed and Executory Trusts. — This distinction be- tAveen "executory" and "executed" trusts is solely concerned with questions of construction and interpretation of the instrument creating the trust, and of enforcement of the a'ust thus created, — namely, whether the strict rules of law governing limitations, and especially the rule in Shelley's case, are or are not to be applied in such construction, interpretation, and enforcement. Whenever a trust is executed, it i.s always construed in conformity with the strict legal rules concerning limitations of estates, and the rule in Shelley's case is made operative if the terms of the successive trusts bring it within that rule, even though the apparent inten- tion of the one creating the trust is thereby defeated. Wherever a trust is executory, the intention of the party is followed in its construction and enforcement, the strict legal rules concerning limitations are not invoked, and the rule in Shelley's case is not permitted to operate. Executory trusts and questions concerning them ordinarily arise from marriage articles or inchoate marria'^e agreements in which a complete settlement is not made, but the party covenants that he will settle property or convey property upon trusts for the benefit of his family, and from wills in which the testator does not devise property upon completed trusts, but devises to trustees upon trusts for them to settle it. In these and similar instances a court of equity is called upon to determine the nature of the settlements to be made, and in doing so it carries out the intention of the covenantor or testator, actual or presumed, without regard to the strict legal rules of limitation. As such instruments are comparatively infrequent in this country, and the subject rarely comes before the American courts, it A\-ill be siiffi- -8ee. also. MfFaddon v. .Tonkyjis, 1 Pliill. Ch. 1,53. Ames Trusts 47 (direction by creditor to debtor to hold tlie debt in trust for another; but see In re Caplens Estate, 4,5 L. J. Rep. 280, Ames Trusts 49). A receipt in the form, "Received of B, for the use of A. one hundred pounds, to be paid to A at B's death," a sufficient declaration of trust: Moore v. Darton, 4 De Gex & S. 517, Ames Trusts 39. § 1002 EC^UITY JUKlsriiUDENCE. ^ 564 cient to state the more general doctrines a^ established by decisions, without going into any minute detail of special rules. §1001. Definition and Description. — A trust is executed when no act is necessary to be done to give eil'ect to it when the trust is fully and finally declared in the instrument creating it.^ A con- veyance of land to A in trust for B, a devise of land to A in trust to receive the rents and profits and apply them to the use of B, are examples. It is plain that all ordinary express passive or active trusts are thus executed. A trust is executory when some further act is directed to be done, in order to complete and per- fect the trust intended to be created.- . . . § 1002. Powers in Trust. — ^Analogous to trusts proper, but dif- fering from them in one essential feature, are powers ri trust. In a true trust the legal title is in and by its creation always vested in the trustee, but to be held for the benefit of the beneficiary. In a trust power, as distinguished from a trust, the legal title is vested, not in the trustee, but in a third person, and the trustee has authority to convey or dispose of the property to or for or among the beneficiaries. A power generally is an authority given to A to convey or dispose of an interest which he docs not himself hold, and of which the complete legal title is vested in another person, B. "Where the power is not coupled with a trust, A is clothed with a complete discretion whether he will or will not ex- ecute it; courts of equity do not control that discretion; if he utterly fails to make any appointment, they do not relieve the expected beneficiaries to or among whom the disposition might have been made. Where the power is in trust, A may have some discretion with respect to the mode in which he shall exercise it, with respect to the amounts distributed among a designated class of beneficiaries, and the like; but he has no discretion as to whether he will or will not exercise it at all. It partakes so mui^h of the nature of a trust, that an obligation rests upon him, and an equitable right is held by the beneficiaries, — a right which equity recognizes, and to a certain extent protects; so that if A does not discharge the duty resting upon him, a court of equity will, to a certain extent, discharge the duty in his stead. A trust power may therefore be defined as follows: It is an authority given to A to dispose of property of which the legal title is held by B, to or among a specified beneficiary or class of beneficiaries, con- ferred in such terms that a fiduciary or trust obligation rests upon A to make the dis]K)sitioii. although he iikii/ be clothed with some 'Stratton v. (Jildorslccve, 41 Atl. 1117 (New Jersey); Ciishing v. Blake, 30 N. J. Eq. (iSn. -Taylor v, Bnnvn, 112 da. 758, 38 S. E. G6. 565 IIOAV EXl'liKSS TIM STS AI;E {'lUUTED. § lOOG discretion as to the ainouiits oi- shares which he sliall confer upon the individuals constituting a class of beneficiaries, or even as to the persons whom he shall select from the class to receive the entire benefit. On the other hand, the beneficiaries may be so specified that no discretion with respect to them exists.^ When the trust power is of such a nature that the donee-trustee is authorized to dispose of the property among a class, and is clothed with a dis- cretion, a court of equity will not interfere to control that discre- tion, or interfere with the mode of exercising it, if he does in fact make an appointment. If, however, the donee-trustee fails to act at all, and makes no appointment, it is a settled rule that a court of ecpiity, in enforcing the power on behalf of the beneficiaries, will ahvays decree an equal distribution of the property among all the persons constituting the class.- SECTIOX III. HOW EXPRESS TRUSTS ARE CREATED. ANALYSIS. § 1006. Trusts of real property; statute of frauds; writing necessary. § 1007. \\'ritten declaration by the grantor; ditto, by the trustee; ex- amples. § lOOS. Trusts of personal property may be created verbally: wliat trusts are not within the statute. § 1000. Words and dispositions sufficient to create a trust; examples. §§ 1010-1017. Express trusts inferred by construction, sometimes improperly called "implied trusts." § 1011. 1. From the powers given to the trustee. § 1012. 2. Provisions for maintenance; examples. § 1013. 3. To carry out purposes of the will. § 1014. 4. From "precatory" words; Knight v. Knight; examples. § lOl-^i. ^lodern tendency to restrict this doctrine; in the United States. § lOlG. \A'hat intention necessary to create the trust; the general cri- terion ; examples. § 1017. Objections to the doctrine. § 1006. Trusts of Real Property— Statute of Frauds.— Before the statute of frauds, trusts of real as well as personal property could be created or declared — technically averred — verbally.^ The origi- nal statute of frauds provides that "all declarations or creations lof trusts, or confidences in any lands, tenements, or hereditaments, 'P.rowii V. Higgs, 8 Ves. ,501, .570. = Harding v. GIjti, 1 Atk. 460, 2 Lead. C'as. Eq. 4th Am. od. 1833. 1848. 1857, Shep. 212, Ames Trusts 78; Condit v. Bigalow, 04 N. J. Eq. 504. 54 Atl. 160. ' It seems, however, that this power of declaring a trust of land verbally did not exist when the land was convovcd br a deed absolute on its face; § 1007 EQUITY JLUrSPKlDKXCI-:. 5GG .shall be manifested and proved by some wi'itin.u' signed by the party who is by law enabled to declare the trust, or by his last will in writing', or else they shall be utterly void"; also, that "all grants and assignments of any trust or confidence shall likewise be in writ- ing, signed by the party granting or assigning the same, or by such last will or devise [as mentioned in § 5], or else shall likewise be • utterly void." This last clause refers to assignments by the cestui (pie trust. Analogous statutes have been enacted in the American states.- It is the settled doctrine, in interpreting this legislation,, that a trust of land need not be created nor declared by a writing; it need only be manifested and proved by some writing duly signed or subscribed by the proper party; and, as a consequence, this written evidence niay be a separate instrument, either simultaneous with or .subsequent to the deed of conveyance, and may be very infornuil.'' § 1007. Written Declaration by the Grantor, or by the Trustee. — The written evidence of the trust w^hieh will satisfy the statute iiKiy come from the grantor, — the one w^ho intends that a trust shall be created for a certain beneficiary, — or from the trustee, — the grantee to whom the land is conveyed for the purposes of the trust, but not from the cestui que trust. The grantor may declare the tmist in the will or the deed by which the land is conveyed or devised, or in an instrument separate and distinct from the con- veyance; or he may declare himself a trustee, and that he holds the land in trust, without conveying the legal title. ^ When the trust is not created in and by the instrument of conveyance, it nuiy be sufficiently declared and eviden<'ed by the trustee to v,-honi only applying to conveyances by feoffment Avitliont a. deed: See Adlingt^.n v. ('ann, 3 Atk. 141, 149, 151. -29 Car. 11., c. ."?, sees. 7-9. The § 5 referred to in the clause above quoted, prescribed tlie mode of executing a will of land. The American statutes differ considerably from the English, and among tliemselves, in their lan- guage. Still, unless tlie terms of a particular statute are rudicallif a de- parture from the original type, and are mandators' in form, requiring tlie trust to be created by the conveyance itself, the interpretation adopted liy the English courts prevails through the American states. The various >tat- utes are regarded as substantially the same: Perry on Trusts, sec. Sl. The statutes of frauds in a number of the states have omitted the paragraph re- lating to the creation or declaration of trusts. ^Ir. Perry enumerates Con- necticut, Delaware, Virginia, North Carolina. Texas, Tennessee, Kentucky, Ohio, and Indiana. To these should be added West Virginia: See Perry on Trusts, sec. 78, note. To the effect that an express trust in lands cannot be created liy parol, see Oden v. Lockwood, 136 Ala. .514, 33 South. 895. " Stratton v. Edwards, 174 Mass. 374, 54 X. E. SS(). UJrann v. Coates, 109 Mass. 581, H. & B. 3fi0; Bates v. Hurd. (15 Me. 180, H. & B. 368; Tierney -^ Wood, 19 Beav. 330, Ames Trusts 182. 567 HOW EXPRESS TRLSrs A1{E CRHATED. § 1009 the land is conveyed, or wlio becomes holder oi" the legal title ; and this may be done b}^ a writing executed simultaneously with or subsequent to the conveyance, and such writing may be of a most informal nature.- The trustee's acceptance of the trust may be express by his executing the conveyance or other instrument, or by assenting to the will; or it may be inferred from his dealing with the property; and prima facie he is presumed to accept.'^ An acceptance by the trustee is necessary, in order to bind him, but not in order to validate the trust. A refusal to accept or disclaimer frees the trustee named from any duty to act undei- the trust, but the rights of the beneficiary do not depend upon his acceptance. A court of equity never suffers an express trust to fail from want of a trustee.* § 1008. Trusts of Personal Property may be Created Verbally. — The provisions of the statute of frauds apply to chattels real,^ but not to money secured by mortgages and other charges upon land.- Nor does the statute extend to trusts of pure personalt.v ; and such trusts may therefore be created, declared, or admitted verbally, and proved by parol evidence, although the consensus of authorities demands clear and unequivocal evidence.^ Trusts which arise by operation of law — resulting and constructive trusts — are. in express terms, excepted from the statute. §1009. Words or Dispositions Sufficient to Create a Trust. — What words or dispositions, either in the written or the verbal declaration, do or do not operate to create a trust? It is assumed in the present discussion that the property is directly convej^ed to or is held by the person alleged to be a trustee. In the first place, as has already been shown, a mere voluntary promise to give prop- erty in trust does not create a trust, nor any right which a court of equity will enforce.^ In the second place, no precise form of -Separate written luemorandura : Bates v. Hurd, G5 Me. ISO, 11. & B. .'J(iS. Letters: De Laurencel v. De Boom, 48 Cal. 581. Answer of defendant in an equity suit: McVay v. :\loVay, 43 X. J. Eq. 47, 10 Atl. 178, H. & B. 370. ^Montford v. Cadogan, 17 Ves. 485, 489, 19 Ves. 635, 638. See, also, ]h»-\, § 1060. * Adams v. Adams, 21 Wall. 185, Ames Trusts 227; Sonley v. Clockniakcrs' Co., 1 Br. Ch. Cas. 81, Ames Trusts 225; Dodkin v. Brunt, L. R. C Eq. 580, Ames Trusts 226. 'Forster v. Hale, 3 Ves. 696. ==Tapia v. DeMartini, 77 Cal. 383, 11 Am. St. Rep. 288, 19 Pac. 641. ^McFadden v. Jenkyns, 1 Phill. Ch. 153, 157, Ames Trusts 47; Danser v. Warwick, 33 N. J. Eq. 133, Ames Trusts 186 (parol trust as to a bond and mortgage). 'Yoiuior V. Young, 80 N. Y. 422, 36 Am. Rep. 634, 11. & B. 387. See ante, §§ 997, 998. § 1009 EQUITY jrUJ.SPUlDENCE. 5G8 words is necessary to create a trust, but the intention mnst be clear. The fact that a trust of land is created must not only be manifested and proved b}' a writing properly executed, but it nuist also be manifested and proved by such a writing ^vhat the trust is. The declaration of trust, whether written or oral, must be reasonably certain in its material terms; and this recpiisite of certainty includes the subject-matter or property embraced within tlie trust, the beneficiaries or persons in whose behalf it is created, the nature and quantitj'- of interests which they are to have, and the manner in which the trust is to be performed. If the lan- guage is so vague, general, or equivocal that any of these necessary elements of the trust is left in real uncertainty, then the trust must fail.- Xo particular technical words need be used ; eveii the words "trust" or "trustee" are not essential; any other words which unequivocally show^ an intention that the legal estate was vested in one person, but to be held in some manner or for some l)urpose on behalf of another, if certain as to all other requisites, are sufficient. On the other hand, if the words "trust" or "trustee" are employed, they do not necessarily show an intention to create or declare a trust. It sometimes happens that an express trust arises, not from any definite words, but from the entire dispositions contained in the will, deed, or other instrument, or from a con- struction of all its terms. Some examples of such trusts, both in real and in personal property, are given in the foot-note as illus- trations.^ - It does not follow that the grantee, devisee, or legatee takes the prop- erty absolutely free from the trust in such ease; if the trust attempted to he created fails for reason of uncertainty, and the instrument shows an intention tliat the immediate donee was not to take 'and hold the befieficial interest, tlieii a trust Jesuits to the donor: See post, § 1032; Smith v. Matthews. 3 l)e (;ex. V. & J. UU: Sniitli v. Bowen. 35 N. Y. 83 (the words "all my estate. !iotli real and personal, I give to inr wife, to he used and disposed of at her discretion for the benefit of herself and my daughters. ]\L. L. and A.," held to create a trust in favor of the daughters with respect to tliree fourths of llie property).' "Trust" and "trustee" not essential, but their omission viii/lif be a strong evidence of the intention: Tobias v. Ketchum, 32 X. Y. 31!). '.Vll, :!2S. H. & B. 374; Smith v. Bowen, 35 N. Y. 83; and "trust" or "trustee" do not always show a trust; Cleveland v. Springfield Inst, for Sav., 182 Mass. 110. (If) X. E. 27. Sir William fJrant said in Cruwys v. Colman. Ves. 31!1, 32:!. that three things are indispensable to constitute a A^alid trust: 1. Suffi- cient words to raise it; 2. A definite subject; and 3. A certain or ascertained object. The beneficiaries need not be named: it is sufficient if they can be ascertained, and parol evidence is. of course, admissible in case of a latent ambiguity: r4ilmer v. Stone, 120 U. S. 5S(i, 7 Sup. Ct. Rep. 089. ■"Trust of real property: Janes v. Throckmorton. 57 Cal. 368. Trusts of personal property: Alartin v. Funk, 75 X. Y. 134. 31 Am. Rep. 448, 11. & B. 393: Young v. Young, 80 X. Y. 422, 30 Am. Hep. 034. H. & B. 387; Hamer 569 HOW KXPKESS TKLSTS ARE VHK.Vl'VA). § 1011 §1010, Express Trusts Inferred by Construction. — There is an- other important class of express ti'iists, whicli are not directly and expressly declared by the terms of the instrument, but which are inferred by a construction of all the terms and dispositions. They are all cases where the court infers that it was the inten- tion of the party to create an express trust for some i)ur])ose, al- though he has not expressed that intention in une(iniv()cal and direct terms, and the court is forced to gather it from his general expressions, or from the objects and purposes of his gift. When such a trust is found by the court to have been intended by the party, it is in every respect a?i express active trust, — has no resem- blance whatever to a resulting or a constructive trust. It is, in fact, an express trust which the donor did not unmistakably declare, but which the court has helped out by interpretation and inf(n*- ence. To call this class "implied" trust, as is often done, is not only erroneous, but is productive of confusion and mistake. These trusts ordinarily arise from a construction of the language of wills; but there is no reason, or principle, why they may not also arise from conveyances and agreements inter vivos. §1011. 1. From Powers Given to the Trustees. — Although no trust is declared in express terms, nor even mentioned, still the intention of the donor to create the trust, and the existence of the trust itself, may be necessarily inferred from the powers and au- thority given to the grantee, and in case of wills, even when no es- tate is directly devised to the executors, but the whole estate is apparently given to the beneficiaries, the trust may be necessarily inferred from the powders and authority conferred u])on the ex- ecutors, and thus from a construction of the entire will the intention ma,y be shown that the executors are to take the legal title as trustees of an express active trust.^ The peculiarity of this case V. Sidway, 124 N. Y. 538, 550, 27 N. E. 256, 12 L. R. A. 4G3, 21 Am. St. Rep. 693, Ames Trusts 33; Beaver v. Beaver, 117 N. Y. 421, 22 X. E. 040, 6 L. R. A. 403, 15 Am. St. Rep. 531, H. & B. 396 (trust not inferred from a mere deposit of nionej' in a savings bank by one person in the name of another), A deposit in bank of a sum of money does not ordinarily create a trust, but gives rise to the relation of debtor and creditor onlv : See Carstair V. Bates, 3 Camp. 301, Ames Trusts 12; Ex parte Broad, 13 Q. B. D. 740. Ames Trusts 19; Shoemaker v. Hinze, 53 Wis. 116. 10 X. W. 86, Anns Trusts 29. But a bank deposit may be made as a special (Icposit in sncli a way as to create a trust. A common instance is that of the deposit of a check, or draft, for collection: See Giles v. Perkins, 9 Ea.st. 12, Ames Trusts 9; Makesey v. Ramseys, 9 Clark & F. 818. Ames Trusts 13: Commercial Xat. Bank v. Hamilton Xat. Bank. 42 Fed. 880, Ames Trusts 15. See. also. Farley v. Turner, 26 L. J. Ch. 710, Ames Trusts 40; In re Barned Banking Co.. 39 L. .T. Ch. 635. Ames Trusts 42. » Tobias v. Ketchum, 32 X. Y. 319, 327-331. H. & B. 374. § 1014 EQUITY JUKISPHUDKXCE. 570 is, that the trust arises, and the legal estate is vested in the trustees, although the will contains no disposition by which the legal estate is in terms devised to them. The doctrine is settled that, in dispositions of such a nature, although there is no devise in terms to them, the authority conferred by the Avill upon the executors to lease, rent, repair, insure, pay taxes, assessments, and interest, and otherwise manage the trust property, and to pay over the net income to the devisees or legatees, necessarily carries the legal title to the executors, and creates an express active trust in them. It is a familiar doctrine that where land is conveyed or devised to trustees, and they have active duties to perform, they take the legal estate ; the converse is also generally true, that where active duties are prescribed for executors, which could not be per- formed unless the legal estate is vested in them, they are in fact made trustees, and necessarily take the legal estate for the purposes of the trust.'-' § 1012. 2. Provisions for Maintenance. — X second species oi trust by infei'enee sometimes arises when property is given to a parent, or person in loco parentis, with no trust declared in terms, but with such directions for the maintenance of his family or children as enable the court to infer an intention on the part of the donor that the property should be held in trust for the purposes of the maintenance. No definite rule can be laid down; each case must stand upon its own circumstances. If the language is sufficient for the intention to be clearly inferred, the trust will be enforced ; otherwise the donee will take an absolute estate, and the provisions concerning maintenance will be regarded as mere motives for the gift and reconnnendations addressed to his discretion.^ § 1013. 3. To Carry out the Purposes of the Will— Trusts, or at least powers in trust, are sometimes inferred from the terms of a will, when an intention to create the same i.s necessary, in order to carry out the directions and purposes of the testator. For ex- ample, when a trustee is ordered to pay certain inoneys, but no property is given him with which to make the payments, or when executors are ordered to sell the real estate, or the real estate is charged with the pajonents of the testator's debts, — in these and similar cases a trust, or a power in trust, may be inferred, in order that the trustee or executor may carry the directions into effect.^ § 1014. 4. Precatory Words. — The most common and important sjK'cies of trusts I)y inference are those which arise where a testator = Mott V. Buxton. 7 Ves. 201. MVoods V. Woods. 1 Mylne & C. 401; Bloiiin v. Thanpuf. SI Me. 176, 16 Atl. 540. ^Blatch V. Wilder. 1 Atk. 420; Walker v. Whiting, 23 Pick. 313. 571 HOW KXl'ltESS TKUSTS AUK CREATED. ^ 1016 has given property to a devisee or legatee, and has accompanied his gift with precatory words or phrases, implying his desire or wish that the property sliould be used for the benefit of some desig- nated person or persons, or should be applied to some designated purpose.^ Words expressing direction, recommendation, entreaty, confidence, hope, expectation, desire, wish, request, and the like, are inchided under the denomination "precatory." As a most general statement of the rule, if such words are strong enough to indicate the intention, and this intention is not defeated by other provisions of the will, the court infers that the property was given on trust for the person or object indicated, and will enforce such trust, according- to its nature, as a similar tiiist declared in express terms would be enforced." § 1015. Modern Tendency to Restrict the Doctrine. — I shall not attempt any analysis and classification of the cases for the purpose of formulating more specific rules. This has been done, as far as practicable, in the various treatises upon trusts. The decisions are numerous and conflicting. Judges have for some time past shown a decided leaning against the doctrine of precatory trusts, and a strong tendency to restrict its operation within reasonable and somewhat narrow bounds; many of the earlier decisions would certainly not be followed at the present day. The courts of this country have generally adopted the doctrine substantially as settled in England, although perhaps with some caution and re- serve, and they all exhibit the modern tendency to limit rather than enlarge its scope; while in a few of the states the doctrine has been accepted with great reluctance, and only to a partial ex- tent and in a modified form.^ 1016. What Intention Necessary — The General Criterion. — "Whether or not a trust has been created in any particular case is entirely a question of interpretation and construction. The in- tention must be sought for not only in the precatory words them- selves, but also in the tenns and qualifications of the gift, the pow- ers of disposition or enjoyment conferred upon the first taker, the ^Knight V. Kniglit, .3 Bear. 148. 172-174, 11 Clark & F. 513, per I^ord Langdale. = Malim v. Keigliley, 2 Yes. .3:5:5. 33."). Ames Trusts 83: Stead v. .Mellor. L. R. 5 Ch. Div. 225, Ames Trusts 91; Lambe v. Eanies. L. R. 10 Eq. 267, 6 Ch. 597. Ames Trusts 85; Harding v. Glyn, 1 Atk. 409, Sli. 212, Ame.s Trusts 78; Harland v. Trigg, 1 Brown Ch. 142, Ames Trusts 79; Gregory v. Edmon- son, 39 Ch. Div. 253, Ames Trusts 95. MVarner v. Bates. 98 Mass. 274, 277, H. & B. 377; Colton v. Colton. 127 U. S. 300, 8 Sup. Ct. 1164. .32 L. Ed. 138; Ellis v. Ellis's Adm'rs, 1.1 Ala. 296, 50 Am. Dec. 132 j Boyle v. Boyle, 152 Pa. St. 108, 34 Am. St. Rep. 629, 25 Atl. 494. § 1017 EQUITY JURISPKUDEXCE. 572 nature of the property, the description of the supposed beneficiaries, and all the other context. Precatory words may be used which, standing alone, would, under the decisions, create a trust; but they may be qualified and controlled by other expressions showing that the gift is absolute, and that everything is left to the discretion of the devisee or legatee. Each case must therefore turn upon its own circumstances, and not a little upon the sentiments and prepossessions of individual judges. "With respect to the essential elements which must exist in every precatory trust, it is impossi- ble to add anything to the clear and accurate statement of Lord Langdale, in the case of Knight v. Knight, already quoted. Those essentials are the imperative nature and meaning of the precatory words, the certainty of the subject-matter or property embraced in the trust, and the certainty of the objects or intended bene- ficiaries. Upon the authority of the more modern decisions, the whole doctrine may be summed up in a single proposition : In order that a trust may arise from the use of precatory words, the court must be satisfied from the words themselves, taken in connection with all the other terms of the disposition, that the testators inten- tion to create an express trust was as full, complete, settled, and sure as though he had given the property to hold up on a trust declared in express terms in the ordinary manner. Unless a gift to A, with precatory words in favor of B, is in fact equivalent in its meatiing, intention, and effect to a gift to A, "in trust for B," then certainly no trustjghould be inferred. The early decisions proceeded perhaps upon a more artificial rule, and saw an intention in the use of words of wish, desire, and the like, where no such intention really existed. The modern decisions have adopted a more just and reasonable rule, and require the intention to exist as a fact, and to be expressed in unequivocal language. No other conclusion can be reconciled with the general principles of construction which are based upon reason and universal experience.^ It has sometimes been stated as a general rule that a prima facie presumption of an intention to create a trust arises from the use of precatory words. Whatever may have been true of the earlier cases, the modern authorities do not, in my opinion, sustain any such rule ; it is contrary to their Avhole scope and tenor. § 1017. Objections to the Doctrine. — The doctrine of precatory 'rusts has never met with unanimous approval. Able judges have dissented from it on principle, have pronounced it artificial, and ^ Stead V. Mellor, L. R. ,5 Cli. Div. 22;-). Ames Trusts 01; Foose v. Whit- more, 82 N. Y. 405, 37 Am. Rep. .^72; Colton v. Colton. 127 U. S. 300, 8 Sup. Ct. Rep. 1164, 20 L. Ed. 420; Knox v. Kno.x, 59 \Yis. 172, 48 Am. Rep. 487, 18 N. W. 155. 573 HOW EXPRESS TRUSTS ARE CREATED. § 1017 have described it as violatinp; instead of carryin<>- out tlie intent of parties; and nnduuhtedly most of the earlier decisions were open to this criticism. It does seem strange that a testator, having a full and settled intention to create a trust, should adopt a mode which at best seems to be a mere sug-tj:estion or possible inference, and should not employ the familiar method of creating a trust by express declaration.^ On the other hand, to abrogate the doctrine altogether would be introducing a rule wdiolly arbitrary and tech- nical, since it would be saying, in fact, that tnists shall not be created except by means of a certain, fixed, and technical formula or manner of expression. Justice will be done, therefore, if the doctrine is placed upon reasonable grounds, its operation confined within narrow limits, and regulated by the criterion stated in the preceding paragraph. SECTION IV. PUBLIC OR CHARITABLE TRUSTS. § 1018. General description. § 1010. A public, not a private, benefaction requisite. § 1020. What are charitable uses and purposes: "Statute of charitable uses." §§ 1021-1024. Classes of charitable uses. § 1021. 1. Relif»ious purposes. § 1022. 2. Benevolent purposes. § 1023. 3. Educ-ntioiial ]nirposes. § 1024. 4. Other public purposes. * In the important case of ^^leredith v. Heneage, 1 Sim. 542, 551, before the house of lords, Chief Baron Richards said, speaking of prior decisions: "I entertain a strong doubt whether, in many or perhaps in most of the cases, the construction was not adverse to the real intention of the testator. It seems to me very singular that a person who really meant to impose the obligation established by the cases should use a course so circuitous, ' and a language so inappropriate and obscure, to express what might have Ijeen con- veyed in the clearest and most usual terms, — terms the most familiar to the testator himself, and to the professional or other person who might prepare his will. In considering these cases, it has always occurred to me that if I had myself made such a will as lias generally been considered imperative, I should never have intended it to be imperative; but on the contrary, a mere intimation of my wish that the person to whom 1 had given my property should, if he pleased, prefer those whom 1 proposed to him, and who, next to him, were at the time the principal objects of my regard." He also says that tlie question in such cases "is purely a matter of intention, to be col- lected from the words of the instnunent, as in all other cases of wills." The foregoing language of tliis learned judge should, as it seems to me, be present to the minds of all courts, when passing upon cases of precatory trusts, as a proper and reasonable guide in rendering a decision. § 1019 EQUITY JURISPRUDENCE. 574 f 1025. Creation of the trust: Certainty or uncertainty of the object and of the beneficiaries. § 1026. Certainty or uncertainty of the trustees. % 1027. Tlie doctrine of ty-pres. % 1028. Origin and extent of the equitable jurisdiction. § 1029. Charitable trusts in the United States. § 1018. General Description. — In express private trusts there is not onl}^ a certain trustee who holds the legal estate, but there is a certain specified cestui que trust clearly identified or made capable of identification by the terms of the instrument creating the trust. It is an essential feature of public or charitable trusts that the bene- ficiaries are uncertain, — a class of persons described in some general language, often fluctuating, changing in their individ- ual numbers, and partaking of a quasi public character. The most patent examples are "the poor" of a certain district, in a trust of a benevolent nature, or "the children" of a certain town, in a trust for educational purposes. In such a case it is evident that all the beneficiaries can never unite to enforce the trust; for even if all those in existence at any given time could unite, they could not include nor bind their successors. It is a settled doc- trine in England and in many of the American states that personal property and real property, except when prohibited by statutes, may be conveyed or bequeathed in trust, upon charitable uses and purposes, for the benerit of such uncertain classes or portions of the public, and that if the purposes are charitable, within the meaning given to that term, a court of ecjuity will enforce the trust. Furthermore, it is one of the most important and distinctive features of charitable trusts that however long the period may be during which they are to last, even though it be absolutely unlim- ited in its duration, they are not subject to nor controlled b^^ the established doctrines, nor even the statutes which prohibit perpetu- ities. Indeed, it may be said that the full conception of a charitable trust includes the notion that it is or may be perpetual. § 1019. A Public, and not Private, Benefaction Requisite. — In order that a trust may be charitable, the gift must be for tlie Dene- fit of such an indefinite class of persons that the charity is really a public, and not a mere private, benefaction. On the other hand, in a public trust the designation of the charitable use and of the beneficiaries must be sitfficiently certain and descriptive to indi- cate the intention of the donor; the language must not be so general and vague as to leave hotJi fJw. hencjiciaries and the purposes and objects completely to the jiulgment and choice of the trustee or of the eourt.^ ^Morice v. Bishop of Durham. Ves. 300, 40.5. 10 Ves. .i22, 541, Ames 5'i5 PUBLIC OK CliARlTABLK TRUSTS. § 1020 § 1020. What are Charitable Uses and Purposes — ' ' Statute of Charitable Uses."- — It is the question of primary importance, ujion which all others depend, to determine what uses and purposes are charitable, witliin the meaning of the doctrine, so that gifts for such purposes may be sustained as valid charitable trusts, although they may tend to create perpetuities. It has already been shown that the purpose, whatever be its particular object, must benefit some indefinite class or portion of the piihlic; for mei-c private chari- ties are governed by the rules Avhich apply to ordinary private express trusts. The general objects which come within the de- scription of "charitable uses," and which may therefore constitute a valid charitable trust, were enumerated in the statute of charitable uses, passed in the reign of Queen Elizabeth,^ as follows: "The relief of aged, impotent, and poor people; the maintenance of maimed and sick soldiers and mariners; the support of schools of learning, free schools, and scholars of universities ; repairs of bridges, ports, havens, causeways, churches, sea-banks, and high- ways; education and preferment of orphans; the relief, stock, and maintenance of houses of correction; marriage of poor maids; aid Trusts 105: \i(lal v. (;irai could not be sustained as a charity for religious purposes when it was wholly irreligious, and its only object was to destroy all re- ligion. § 1022. 2. Benevolent Purposes. — Numerous trusts for pur- poses of benevolence aie iiplu'ld as charitable, although not men- tioned in the statute, since they are within its spirit and intent.' Among the particular instances embraced within this class are trusts for the "poor," the "deserving poor," widows and orphans of a specified town, district, or country; for hospitals, asylums, and similar public institutions; for any class of persons requii'ing aid, as "the colored persons" of a certain state; and benevolent ob- jects generally, without specifying the form. Even trusts estab- lished for the donor's own "poor relations," or "poor descendants," as a class, are held to be true charities. The beneficiaries to be relieved, and the mode proposed for aiding them, must be piiHic: a trust on behalf of a strictly private association, the benefits of which are confined to its own members, is not a "charitable trust." § 1023. 3. Educational Purposes. — Gifts, devises, and becinests in trust for educational purposes are valid, since they are all clearly within the spirit of the statute.^ This class embraces all trusts for the founding, endowing, and supporting schools and other similar institutions which are not strictly private; for the establishment of professorships, and maintenance of teachers; for the evlucatiou 'It should be noticed tTiat the word "benevolent" is here used in its popular sense, including a large number of purposes which are recognized as charitable. The words "benevolence." or "benevolent purposes," by themselves, have been frequently condemned by the English courts as too broad to support a valid charitable use. These English cases, however, have not been generally followed in this country: See post, notes to § 1025. Examples of valid charities: for the poor of a certain place or district: Bishop of Hereford v. Adams, 7 Ves. 324; Hunt v. Fowler, 121 111. 2(;y, 12 N. E. 331, 17 N. E. 491, H. & B. 438. For the donor's "poor descendants," as a class: Gillam v. Taylor, L. K. IG Eq. 581. To the sick, needy or disabled members of certain mutual benefit associations: Minns v. Billings, 183 Mass. 126, 66 N. E. 593, 97 Am. St. Kep. 420. .See, also. Allen v. Stevens. 161 N. Y. 122, 55 N. E. 568. H. & B. 430. ^Clement v. Hyde, 50 Vt. 716, 28 Am. Rep. 522; In re John's Will, 30 Oreg. 494, 47 Pac. 341, 36 L. R. A. 242 (for maintenance of public school) ; Almy V. Jones, 17 R. I. 265, 21 Atl. 616, 12 L. R. A. 414 (endowment of prizes for promotion of art). The court, in passing upon the validity of educational or religious gifts, is not concerned with the truth or falsity of the opinions sought to be propagated, so long as they are not hostile to religion, to law, or to morals: In re Foveaux (1895), 2 Ch. 201 (gift to anti-vivisection society) ; George v. Braddock, 45 N. J. Eq. 757, 18 Atl. 881, 14 Am. St. Rep. 754, 6 L. R. A. 511 (trust upheld for circulation of the writings of Henry George, which attacked the right of private property in land). But see Jackson v. Phillips, 14 Allen 539. IT. & B. 410. which, in so far as it con-- demned a trust for the advancement of woman suffrage, is contrary to the current of authoiitv. 37 § l()-^5 EQUITY JUKISPKUUKXCE. 578 of designateti classes of persons, as the poor children of a town ; for the promotion of s( ioiee and scientific studies ; and ijenerally for the advancement of knowledge, learning-, and education. § 1024. 4. Other Public Purposes. — Other public purposes, not in the ordinary sense henevolent, umy be valid charities, since they ai'e either expressly mentioned by the statute, or are within its p'ain intent. All of these purposes tend to benefit the public, either of the entire country or of some particular district, or to lighten t!ie i^ublic burdens for defraj'ing the necessary expenses of local administration which rest upon the inhabitants of a designated re- gion.^ § 1025. Creation of the Trust — Certainty or Uncertainty of the Object and of the Beneficiaries. — One of the distinguishing ele- ments of a "charitable" as compared Avith an ordinary trust con- sists in the generality, indefiniteness, and even uncertainty which is permitted in describing the objects and purposes or the benefi- ciaries. From the very definition of a "charitable trust" the bene- ficiaries are always an uncertain body or class; but the doctrine goes further than this. If the donor sufficiently shows his inten- tion to create a charity, and indicates its g-eneral nature and pur- l)ose, and describes in general terms the class of beneficiaries, the trust will be sustained and enforced, although there may be in- definiteness in the declaration and description, and although much may be left to the discretion of the trustees.^ This uncertainty, 'Stuart V. City of Eastoii, 74 Fed. 854, 21 C. C. A. 14G, 30 U. S. App. 238 (for erection of court-house). But to constitute a valid charity, benefit lo tlie public must be the direct, and not a remote, object of the jjift. Henee, a f,nft for the encouracjement of a mere sport, such as yacht racing, cannot be supported as "cliaritable," although the sport might be beneficial to the j)ul)lic, as in the particular case by tending to train sailors and encourage ship- building: In re Nottage (1895), 2 Ch. 649. ^ See Lewis v. Allenby, L. R. 10 Eq. COS. It is a Avell-established rule of the English courts that Avhere there is a gift of a fund, part or all of wliicli may, at the discretion of the trustees, be applied to an indefinite purpose ■which is not strictly "charitable," the whole gift fails. This highly technical rule has frequently been deplored by judges who felt themselves bound by its authority; and is the more unfortunate in its results on account of the strictness with which the English courts condemn, as incapable of creating a .jharity, many expressions which, in popular usage, are nearly synonymous with the word "charitable;" because, when the meaning of such expressions is closely analyzed, they are found to be capable of embracing objects which .-annot be the objects of a valid charitable use. Thus, a bequest to "objects j)f liberality and benevolence" was invalid: [Morioe v. Bishop of Durham. Ves. 399, 10 Ves. 321, Ames Trusts 195. In the recent case of In re :McDufr (1896), .2 Ch. 451, a bequest for "charitable or philanthropic purposes" v\'as held bad, on the ground that the word "jihilanthropic" had never been defined by the courts, and might possibly include objects not strictly "char- itable." 579 PUBLIC oil CIIVIUTABLE TIUSTS. § 103G liowever, must not be carried too far. The intention of the donor to create some kind of charity, religious, benevolent, educational, or otherwise, must ucvcr be left uncertain. It must sufficiently ajDpear that he designed to establish a charity, and the purpose must be indicated with sufficient clearness, to enable the court, by means of its settled doctrines, to carry the design into eii'ect. Such is the well-established English doctrine, and the court strives to carry out a charity if at all practicable. In this country, the doc- trine has been adopted only to a partial extent. In a few of the states where the system of charitable trusts prevails, the English theory seems to have been accepted with little or no modification. In most of the states more certainty in defining the purposes of the charity and terms of the trust, or in designating the classes of persons who are intended to be the beneficiaries, is required, in order to sustain the gift, than is necessary under the methods of the English eourts." §1026. Certainty or Uncertainty of the Trustee. — Charitable trusts also differ from private trusts in another ver\' important feature. It is settled, as a part of the complete system prevailing in England, that not only may the beneficiaries be uncertain, but that, even where the gift is made to no certain trustee, so that the trust, if private, would wholly fail, a court of equity will carry tlie trust into effect, either by appointing a trustee or by acting itself in the place of a trustee — that is, by establishing a scheme for accomplishing the design of the donor, as though the legal title had vested in a certain trustee. This result may happen in various modes. In one class of instances the same rule is luerely applied which would be invoked under like circumstances to regulate tlu^ administration of a private trust. Where a testator has expressly purported to give the property to a trustee, but for any cause the appointment fails, the charitable trust will still be enforced^ The invalid: Nichols v. Allen, 130 Mass. 211, 39 Am. Rep. 445; Levesey v. • Foiu'S (N. .). Kq.) 35 Atl. 1064. Valid: Hunt v. Fowiev, 121 111. 269, 12 N. E. 331, 17 N. E. 491, H. & B. 438; Grant v. Saunders, 121 Iowa 80, 100 Am. St. Rep. 310, 95 N. W. 411; St. James' Orphan Asylum v. Shelby, 60 Nebr. TIKI, 84 N. W. 273, 83 Am. St. Rep. 553; Goodale v. Mooney, 00 X. H. 528, 49 Am. Rep. 334; In re Murphy's Estate, 184 Pa. St. 310, 39 Atl. 70, 03 Am. S<. Rep. 802. It is noticeable that the American courts which profess to follow the English eases in supporting gifts of extreme uncertainty, such as gifts to "charitable objects" generally, have either repudiated the distinction be- tween "oliaritable" and "benevolent" or kindred words, or at least have shown a strong inclination to infer from the context of llie will that such words are used as synonymous with "charitable"; see, among other cases. Fox v. Oibbs, 86 Me. 87, 29 Atl. 940; Goodale v. :Mooney, supra; In n- Murj)hy's Estate, supra. *As where a testator gives proper!}-, lo l)c applied in clKuily to such person § 1U"37 EQUi'iV .JL'tilJSi'UL'DEXCE. 580 doctrine, however, goes much farther than this simple rnJe, which does not permit a trust otherwise valid to fail for want of a desig- nated trustee. It also applies where the property is given to a per- son or body incapable of tahing and liolding in perpetuity; or to a body uncertain, indefinite, and fluctuating in its members, such as an unincorporated society; or to a body not in legal being, as to a corporation not in existence; and even where there is no person or body indicated as the recipients of the legal title, but the prop- iirty is merely directed to be applied to some designated charitable purpose, the performance of "which direction might and often would necessarily create a perpetuity." This is one of the most important points of distinction between charitable and private trusts; for it is certain that at law, and independently of the peculiar doctrine of equity on this subject, gifts to charitable uses, without a certain and competent trustee to take and hold the legal title — as to an luiincorporated and fluctuating society — would be wholly void." The doctrine, however, is rejected by the courts of several Ameri- can states, which admit the existence and validity of charitable trusts only in cases where the property is given to a certain and competent trustee. § 1027. The Doctrine of Cy-Pres. — In administering charitable as he shall hereafter in his will appoint his executor, and he neglects to appoint any one, or, having appointed one, the person dies in the testator's lifetime, and none otlier is named; or the testator gives his property to sueli person as his executor shall name, and no executor at all is appointed, or. if appointed, he dies in tlie testator's lifetime; of if the property is given to certain trustees, and they all die in the testator's liftime, or the trustee named refuses to act,— in all such cases the court carries out the intended charity as stated in the text: Att'y-Gen. v. Hickman, 2 Eq. Gas. Abr. 193. Ames Trusts 224; 8oliier v. Burr, 127 Mass. 221; In re John's Estate, 30 Ore. 494, 47 Pac. 341, .50 Pac. 226, 36 L. R. A. 242. - Cocks v. Manners, L. R. 12 Eq. 574. There is a fundamental divergence between two classes of American decisions upon this question. In some states the English doctrine as stated in the text is adopted, except so far as it is enlarged by the furtlier and distinct doctrine of cy-pres; in others, charitable trusts ai-e sustained and enforced only when the legal title to the property is given by the donor to a certain trustee competent to take and hold in perpetuity, if the trust creates one. The following cases are given simply as examples: Gifts to unincorporated societies held valid: Hadden v. Dandy. .51 X. J. Eq. 154, 32 L. R. A. 025, 26 Atl. 464. Gift to a corporation not yet created, but its incorporation expected, valid: Coit v. C'omstock, 51 Conn. 352, 50 Am. Rep. 29. Gift to the treasurer of a comity and his succes- sors in office, the income for aiding poor, held valid: Clement v. Hyde. 50 Vt. 716. 28 Am. Rep. .522. See, also. Hunt v. Fowler. 121 111. 269. 12 N. E. 331, 17 N. E. 491, H. & B. 438. ^Baptist Ass'n v. Hart's Ex.. 4 Wheat. 1. (Gift to voluntary association for education of poor, held void for uncertainty of trustee.) 581 rri'.Lrc on chauitaulk tklsts. § 1027 gifts the English courts have leaned so strongly in favor of sustain- ing the trusts, even when the donor's specified purpose becomes impracticable, that they invented at an early day, and have fully established, the so-called doctrine of cy-pres. The doctrine may be stated in general terms as follows: Where there is an inten- tion exhibited to devote the gift to charity, and no object is men- tioned, or the particular object fails, the court will execute the trust C3'-pres, and will apply the fund to some charitable purposes, similar to those (if any) mentioned by the donor. "If the donor declare his intention in favor of charity indefinitely, without any specification of objects, or in favor of defined objects which happen to fail from whatever cause — even though in such eases the particu- lar mode of operation contemplated by the donor is uncertain or impracticable — yet the general purpose being charity, such pur- pose will, notwithstanding the indefiniteness, illegality, or failure of its immediate objects, be carried into effect."^ In the first kind of cases, where the donor has specified no object, the court will determine upon some scheme which shall carry out the general intention; in the second kind, where the donor's specified object fiiils, the court will determ.ine upon another object similar to that ni'^ntioned by tlie donor. A limitation upon the generality of the doctrine seems to be settled by the recent decisions, that where the donor has not expressed his charitable intention generally, but only by providing for one specific particular object, and this object can not be carried out, or the charity provided for ceases to exist before the gift takes effect, then the court will not execute the trust; it wholly fails.- The true doctrine of cy-pres should not be confounded, as is sometimes done, with the more general principle which leads courts of equity to sustain and enforce charitable gifts, where the trustee, object, and beneficiaries are simply uncertain. There is a radical distinction between the two, although the doc- trine of cy-pres may be to some extent an expansion or enlarge- ijicnt of the other principle.^ In the great majority of the .\merican ^Sinnett v. Herbert, L. R. 7 Ch. 232; ]Minot v. Baker, 147 Mass. 348, 9 Am. St. Rep. 713, 17 N. E. 839; Attorney-Gen. v. Briggs, 164 Mass. ofil, 42 N. E. 118. -(ilailding v. St. Matthew's Church, (R. 1.) 57 Atl, 800; In re White's Trusts, 33 Ch. Div. 449. ^ Some of the cases in which the court has professedly relied on the doc- trine of cy-pres, and which are cited as illustrations of it, in a preceding note, seem to be nothing more than instances in which trusts with uncer- tain trustees or objects have been sustained. The suggestion of the text is not merely verbal; it has a practical importance in this country. It -hows that the courts in the American states which have utterly rejected tlic doc- trine of cy-pres inajj sustain and enforce dmritable trusts wliidi me sim- § 1()-JS EQUITY JURISI'IIIDEXCE. 583 Slates the courts have utterly rejected the peculiar doctrine o^ cy-pres as inconsistent with our institutions and modes of public administration. A few of the states have accepted it in a modified and partial form.'* § 1028. Origin and Extent of the Equitable Jurisdiction. — Such being' the general nature of charitable trusts, the origin aiid extent of the jurisdiction over them remains to be examined. The cpiesticni is one of little practical importance in England, since the jurisdic- tion is there exercised as though it Avere entirely derived from the statute of charitable uses of Elizabeth.^ The question, however, ))ecomes of vital imi)ortance in this country — is absolutely funda- mental — since the statute of Elizabeth has been held to be in force in but a very few of the states. The opinion at one time prevailed that the peculiar equitable jurisdiction over charities, except in cases where a trust valid by the ordinary lules of law and e(piity was created, was derived solely from the statute." Other English judges have maintained the opinion that the jurisdiction in its full extent was possessed by the court of chancery by virtue of its general powers, and that the statute had only the effect to regulate that jurisdiction, and to define more distinctly the classes of objects which are charital)lc. This conclusion has been sustained, and even demonstrated as correct, by the researches of the English record commissioners." The question has been repeatedly passed ply uncertain in tlieir objects or their trusteefs, and still be consistent witli the general position which they have assumed. * It has generally been said that the doctrine of cy-pres and the power to enforce it belong to and result from the executive authority held by the English chancellor as a representative of the crown in its character as parens patriae, and are not a ]>art of the judicial functions possessed by the court of cliancery; while in the liiited States the courts are clothed with judicial functions only, tiie prerogative belonging to the parens patriae being held ])y the legislatures. It may well be doubted, I think, whether this view is entirely correct. In ]\Iornion Church v. United States, 136 U. S. 1. 10 Sup. Ct. 792, .'U L. ed. 47S. the (juestion was discussed, and it was held that tlie legislature may. at any rate, delegate such power to the court. In Massa- chusetts, where the cy-pres doctrine is more full recognized than in other states, it has been intimated that the court would in some cases exercise the functions which were traditionally ascribed to the chancellor in his ex- ecutive capacity: JMinot v. Baker, 147 Mass. .348, 9 Am. St. Rep. 713, 17 N. E. 839. See, also. Bullard v. Town of Shirley, 153 Mass. 559, 27 N. E. 706, 12 L. R. A. 110. M3 Eliz.. c. 4. -Baptist Ass'n v. Hart's Ex'rs, 4 Wheat. 1. ^The examination of the ancient records of the court of chancery by the commissioners has disclosed a large number of cases brought in that court and decided prior to the statute, in which charities of the most indefinite am! gf^iieral character were sustained, thus proving that tlie court then cxer- .■3S;) PLT.LIC OK CIIAUITAIILK I'KLSTS. § IU'2'.) UDoii by the American courts. AViierever the sj'steni of cliaritable trusts has been accepted at all, it has generally been held that the jurisdiction belongs to equity- as a part of its ordinary authority over express trusts, and is not referable for its origin to the statute of Elizabeth. This conclusion was necessary to support the juris- diction in a great majority of the states, since that statute had not been adopted as a part of their local legislation.* § 1029. Charitable Trusts in the United States.— With regard to the extent to which charitable trusts have been adopted and the jurisdiction over tliem exercised in the various states, there is the utmost conflict of judicial decision. It seems pK)ssible, however, without attempting any strict comparison of the cases or any mi- nute classifications of the rules, to arrange the different state's according to three general types, which shall represent with rea- sonable accuracy and certainty the existing condition of the law on the subject in this country. First class. This class includes those states in which charital)le trusts have been abrogated or not ^idopted.^ Either from a statutory abolition of all uses and trusts, with a few specified exceptions, or from the general provisions of the law against perpetuities, or from the general policy of the state legislation, "charitable trusts" do not exist at all, except where they are merely the express private trusts permitted by the ■cised the same kind of jurisdiction Avhich it has exercised since the statute: See Coop. Pub. Rec. 355. *The position above stated is affirmed in the same positive manner by repeated and most able decisions of the United States supreme court: Vidal V. Girard's Ex'rs, 2 How. 127, 155, 194, 196; Williams v. Williams, 8 N. Y. 525. * The excepted instances authorized by statute are generally cases where corporations may receive and hold property, in trust for some object whidi is charitable. The states constituting this class are the following: — New York (until statute of 1893) ; Wisconsin (as respects real but not as respects personal property) ; Michigan; Minnesota. In all the foregoing states the same type of statute has been adopted, in terms abolisliing all uses and trusts, except a few well-defined species of active express trusts which do not include any ordinary form of charitabh' use. The courts of these states have felt themselves compelled to hold that all charitable trusts were abolished, except such as would be valid forms, under the exceptions of the statute. Xo other conclusion seems to me pos- sible, Qxcept by a judicial repeal of the legislation. Maryland; Virginia; West Virginia. In all these states a trust for char- itable purposes would be ujilield. ])r()vi(le(l it possessed all the elements of a valid ordinary private trust: that is. tlic tiustee was a certain person competent to take and hold tlie property, the l)enefk'iaries were certain or capable of lieing made so. and no iterpctuity was created. In other words, an express trust, otherwise valid, would not bccdiiie invalid because tlie ulti- nuito purpose was chartitable. § 1029 EQUITY JUKISPKUDEXCE. 584 law, or except iu those particular instances authorized by statute. The equitable system of distinctively charitable trusts is aban- doned. Second class. This class includes the larger portion of the states in which "charitable trusts" exist under a somewhat modi- fied and restricted form.- There is not a little divergence in the views maintained by the courts of the various states composing this class. In a few of them the statute of Elizabeth is held to be in force, or one similar to it has been enacted. In the majority of them the doctrine of charitable trusts, as a part of the ordinary jurisdiction and functions of equity, has been accepted in a modified and limited form; such trusts are upheld when the property is siiven to a persoji suffieientl}' certain, and for an object sufficiently definite. With regard to this element of certainty in the trustee, and the objects, there is much diversity of decision. The doctrine of cy-pres is generally rejected. Third class. This class includes a very few states which have accepted the doctrine in its full ex- tent." The states composing this group have not even totally re- jected the doctrine of c^'-pres, although they do not apply it so freely and under such extreme circumstances as would be done in England. The general system seems, at least, to be so far adopted that when an intention to give property to charitable uses is clearly manifested, but the disposition is luicertain and indefinite, cither as to the trustee or as to the objects and l)eneficiaries, the trust is upheld or defeated,- upon the same principles as those vrhich would be followed by the English courts. -The following states are placet! in this class; but there is a great diver- sity in the particular rules prevailing in the different states, and onl}- a (fcurral resemblance in their decisions: Alabama; Arkansas; California; Colorado; Connecticut (but the cj-pres doctrine has been to some extent adopted by statute); Delaware; Georgia; Illinois; Indiana; Iowa; Kansas; Kentucky (but may belong in class third) ; Louisiana; Maine; Mississippi (valid as respects personalty but not realty) ; Missouri (possibly may belong in class third) ; Nebraska; New Hampshire; Xew Jersey; New York (since 1893); North Carolina; Ohio; Oregon; Pennsylvania; South Carolina: Ten- nessee; Texas; Utah (probably); Vermont; Washington; Wisconsin (as respects personal property) ; United States Supreme Court. A few of the states in this list — e. g.. New Jersey — might perhaps be properly placed in the third class, since their courts uphold trusts very un- certain, both as to trustee and object ; but none of tliem, I believe, profess to accept the English doctrine in all its fullness. ^Massachusetts; Kentucky (according to most of the decisions); ^Missouri (cy-pres doctrine recognized by the language of the decisions) ; Rhode Island. 585 TRUSTS AUISING BV Ol'KUATlOX OF LAW. | 1030 SECTIOX Y. TRUSTS ARISING BY OPERATION OF LAW— KHSULTINO AND CON- STRL(.TI\K TRUSTS. § 10:50. General nature and kinds. §§ lO:] 1-104:5. First. Rc'Miltiny tiu->t>. §§ 10:i'2-10;>l). First form: trusts resulting to donor. § 10:52. 1. I'roperty conveyed on some tru~t wliieli fails. § 10:>;J. Same; essential elements. § 10:i4. 2. A trust declared in part only of the estate conveyed. § 10:3-"). o. In conveyances without consideration. § lOot). Parol evidence. §§ 10:57-104:3. Second form: conveyance to A, price paid by B. § 10;58. Special rules. § 103!t. Purchase in name of wife or child. § 1040. Admissibility of parol evidence. § 1041. The same; between family relatives. § 1042. Legislation of sevei'al states. § 104-3. Interest and rights of tlie lieneficiary. §§ 1044-1058. Secono. Constructive trusts. § 1045. Kinds and classes. § 104(j. L Arising from contracts express or implied. § 1047. 2. [Money received equitably belonging to another. § 1048. 3. Acquisition of trust property by a volunteer, or purchaser with notice. § 1049. 4. Fiduciary persons purchasing property with trust funds. § 1050. 5. Renewal of a lease Ijv ])artners and other fidueiary ])ersons. § 1051. 6. Wrongful appropriation or conversion into a difl'erent form of another's property. § 1052. 7. ^^'rongful acquisition of the trust projierty by a trustee or other fiduciary person. § 1053. 8. Tru-ts ex maleficio. § 1054. (1) A devise or bequest procured by fraud. § 1055. (2) Pureliasc updn a fraudulent verbal promise. § 1050. (3) No trust from a meie verbal promise. § 1057. 9. Trust in favor of creditors. § 1058. Rights and remedies of the beneficiaries. § 1030. General Nature and Kinds. — The second main division of trusts, and the one which, in this country especially, afl'ords the widest field for the jurisdiction of equity in g-rantino; its special remedies so superior to the mere leo-al recoveries of damages, em- braces those which arise by operation of law, from the deeds, wills, contracts, acts, or conduct of parties, either with or without their intention, but without any express words of creation. A broad dis- tinction separates all express trusts from those which arise by operation of law. In the former class the trust relation is rightful § 1031 EQUITY JURISPRUDENCE. 586 and permanent. In the latter, there is no snch element of right and permanency. Even if the trust relation is not wholly wrong- ful, resulting from fraud or other unconscientious act, still a cer- tain antagonism between the cestui que trust and the trustee is involved in the very existence of the trust ; and instead of the idea of permanence, the substantial right of the beneficiary is that the trust should be ended by a conveyance of the legal title to himself.^ All trusts by operation of law consist, therefore, in a separation of the legal and the equitable estates, one person hold- ing the legal title for the benefit of the equitable owner, who is regarded by equity as the real owner, and who is entitled to be clothed with the legal title by a conveyance. Certain instances of this class are trusts only sub modo; they are termed trusts, because the beneficial owner is entitled to the same remedies against the holder of the legal title which are given to the beneficial}- under a true trust. All trusts which arise by operation of law are, as. the name indicates, excepted from the requirements of the statute of frauds.- This entire grand division consists of two general classes: resulting trusts and constructive trusts. The line of dis- tinction between these two classes: is clear and definite; the fail- ure to observe it has produced much unnecessary confusion. I shall describe, frst, resulting trusts, and second, constructive trusts, following a classification which seems to me the necessarj^ conse- quence of fundamental principles. § 1031. First. Resulting Trusts. — In all species of resulting trusts, intention is an essential element, although that intention is never expressed by any words ox direct creation. There must be a transfer, and equity infers the intention that the transferee was not to receive and hold the legal title as the beneficial owner, but that a trust was to arise in favor of the party whom equity would regard as the beneficial OAvner under the circumstances. The equi- table theory of consideration, heretofore explained, is the source and underlying principle of the entire class.^ Resulting trusts, therefore, are those which arise where the legal estate in property is disposed of, conveyed, or transferred, but the intent appears or is inferred from the terms of the disposition, or from the accom- panying facts and circumstances, that the beneficial interest is not to go or be enjoyed with the legal title. In such case a trust is implied or results in favor of the person for whom the equitable interest is assumed to have been intended, and whom equity deems to be the real owner. This person is the one from whom the con- •See vol. 1, S 148. ^^See ante, § 1008. >See ante, § 981. 587 TRUSTS AKlSIXd HV OPKHATIOX OF LAW. § 1032 sideration actually comes, or wlio represents or is idenMfied iu right with the consideration; the resulting trust folloAvs or goes with the real consideration. All true resulting trusts may be re- duced to two general types: 1. Where there is a gift to A. but the intention appears, from the terms of the instrument, that the legal and beneficial estates are to be separated, and that he is either to enjoy no beneficial interest or only a par^; of it. In order that a case of this kind may arise, there must be a^tnie gift so far as the immediate transferee, A, is concerned; the instrument must not even state any consideration, and no valid complete trust must be declared in favor of A or of any other person. Such trusts, therefore, generally arise from wills, although they may arise from deeds. If the conveyance be by a deed, the trust will result to the grantor; if it be by a will, the trust will result to the testator's residuary devisees or legatees, or to his heirs or personal repre- sentatives, according to the nature of the property and of the dis- positions, 2. The second type includes the cases where a purchase has been made, and the legal estate is conveyed or transferred to A, but the purchase price is paid by B. I shall briefly examine these two forms. §1032. First Form— Trust Resulting to the Donor. — This type includes the three following subdivisions: 1. Where property is conveyed by will or deed upon some particular trust or particular objects, and these purposes fail in whole or in part, or the par- ticular trusts are so uncertain and indefinite that they can not be carried into effect, or they lapse, or they are illegal — in all of these cases a trust, either with reference to the whole property or to the residuum, results in favor of the grantor, or the heirs, residuary devisees or legatees, or personal representatives of the testator.^ The following are illustrations: Where property is given by will or deed, stated to be on trust, but no trust is declared; or upon trusts thereafter to be declared, but no such declaration is made; or is given upon some trust which has wholly failed and become in- operative ;- or when property is given upon a trust which is too un- certain, indefinite, and vague in its declaration to be carried into effect;^ or if property is given upon a trust which is illegal, and therefore void,* or upon a trust which fails by lapse, and the pi-op- erty is not otherwise disposed of."' 'Ollifte V. Wells, 130 Mass. 221; Sehlessinger v. :\rallar(l. 70 Cal. 320, II Pac. 728. -Morice v. Bishop of Durham, 10 Ves. 537, Ames Trusts 1!).'): Onslow v. Wallis, 1 Maen. & G. 506, Ames Trusts 462. 'Nichols V. Allon. 130 :\lass. 211, 39 Am. Rep. 445; In re Davis. 112 Fed. 129. ^Pawson V. Ihown, L. 1\. 13 Ch. Div. 202. ^Ackroyd v. Sniitlison, 1 Brown Ch. 503. 3 Keener 977, 1 Scott (521; or has § 1034 EQUITY JUiaSl'ltrDKNCE. rtS'o § 1033. The Same. Essential Elements. — In this and all other forms bolonging- to the class under present consideration, there must be no pecuniary consideration coming from the grantee, for such a consideration would raise a trust in his own favor, and clothe him with the beneficial interest. Even if the conveyance merely recites ? pecuniary consideration, the same effect would be produced.^ Furthermore, the deed or will must contain no dec- laration of use covering the whole estate in favor of the grantee or devisee ; such a declaration of use would raise a trust in his favor, vest in him the beneficial estate to its extent, and so far de- feat any resulting trust. Resulting trusts of this type are matters of intention. There is a substantial distinction between giving property expressly for a particular purpose, and giving it only suhject to a particular purpose.- If the intention appears from the whole instrument that the donee is to take the beneficial interest, even though snhiect to the particiTlar object or purpose designated, then no trust shall result to the donor, if that object or purpose should fail. § 1034. 2. A Trust Declared in a Part only of the Estate Con- veyed. — A second subdivision includes those cases where the owner of both the legal and the equitable estates conveys the legal estate, but does not convey the equitable estate, or conveys only a por- tion of it, and a trust in the entire e(initable estate in the one in- stance, or in the part of it undisposed of in the other, will, in gen- teriiiiiiatcd: Hopkins v. Griinshaw, 105 U. S. 342, 17 Sup. Ct. 401, 23 L, ed. 392. If the property, where the prior trust fails by hqise or otherwise, is given to some other person, then no trust results. ' ]\Iethodist Episcopal Church v. Jackson .Square Evangelieal Church, 84 Md. 173, 35 Ati. 8. - The reason of this distinction lies wholly in the intention or assumed in- 1 nil ion of the donoi'. When property is given to A expressly for a specific purpose, the instrument showing u clear intention that the gift is for iliat j)ur])ose alone, — e. g., land is given on trust to pay the grantor's dehts, — then as to so much of the property given as is not required for the expressed pur]iose, a trust results to the donor. On the other hand, when property is gi\en to A, subject only to or charged with, a particular purpose, the gift is held to be absolute; a beneficial interest as well as the legal estate vests in the donee; and no trust results to the donor, even though the special pur- po-^c wholly fails. — much less when there is a residuum of the property left after it is accomplished. The case is completely analogous to a conveyance or bequest to A of all the legal and beneficial interest in property, subject to or encumbered by a mortgage or ;iny otiier kind of lien. It follows that where property is devised or bequeathed to A, svhject to or charged irith the payment of the testator's debts or legacies. A takes the entire interest, subject only to the lien or charge, and there is no resulting trust: King v. Denison, 1 Ves. & B. 260, 272. 589 TRUSTS AlilSlNCi BY Ol'KltATION OF LAW. i^ ^^^'37 eral, result to the ui-aiitoi', or to the heirs or representatives of the testator.^ §1035. 3. In Conveyances without Consideration. — It was a doctrine of the English ecjuity, in pursuance of the ancient prin- ciple that the use followed or was raised by the consideration, that when land was conveyed by deed without any consideration, and without any use or trust being declared, a trust resulted to the feoffor, the feoft'ee taking- only the naked legal title. This doctrine, however, had no application to conveyances which operated under the statute of uses, since a use was raised in favor of the immediate grantee by a ''bargain and sale" between strangers, and by a "covenant to stand seised" between relatives. If the doctrine has any existence under the conveyancing system of this country, so that a trust should result to the grantor from the absence of a consideration, it can only be where the deed simply contains words of grant or transfer, and does not recite nor imply any considera- tion, and does not, in the habendum clause or elsewhere, declare any use in favor of the grantee, and the conveyance is not in fact intended as a gift.^ § 1036. Parol Evidence. — In all the instances belonging to this first form of resulting trust, the intention that the donee is not to enjoy the beneficial interest, but that a trust is to result, or the contrary intention, must appear expressly or by implication from the terms of the instrument itself by which the property is con- veyed. If the instrument is a will, then no extrinsic evidence is ever admissible to show the testator's meaning, nor even to show a mistake.^ If the instrument is a deed, no extrinsic evidence of the donor's intention is admissible, unless fraud or mistake is alleged and shown. If, therefore, there is in fact no consideration, but the deed recites a pecuniary consideration, even merely nomin- al, as paid by the grantee, this statement raises a conclusive pre- sumption of an intention that the grantee is to take the beneficial estate, and destroys the possibility of a trust resulting to the grant- or, and no extrinsic evidence would be admitted to contradict the recital, and to show that there is in fact no consideration — except, in a case of fraud or mistake.- §1037. Second Form. Conveyance to A— Price Paid by B. — Jji i)ursuance of the ancient e(|nitable principle that the beneficial ^Longley v. Longley, L. K. 13 Eq. 133; Skollinger's Ex'rs v. Skellinger's Ex'r., 32 N. J. Eq. (5.59, 11. & B. 442. 'Cmild V. Lynde, 114 Mass. 33G, 11. & B. 44(5; Buss v. Alcbius, l(i Cal. 350. ' Soo ante, S S71, cases in note. == Squire v. Tlaifler, 1 Paige 494, 19 Am. Dee. 440; Ohnicr v. Boyer, 89 Ala. 273, 7 South. 663. § 1039 EC^UITY JUUISPKUDEXCE. 590 estate follows consideration and attaches to the party from whom the consideration comes/ the doctrine is settled in England and in a great majority of the American states, tiiat where property is purchased and the conveyance of the legal title is taken in the name of one person, A, while the purchase price is paid by juiother person, B, a trust at once results in favor of the party who X>ays the price, and the holder of the legal title becomes a trustee for him. In order that this effect may be produced, however, it is absolutely indispensable that the payment should be actually made b}' the beneficiary, B, or that an absolute obligation to pay should be incurred by him, as a part of the original transaction of purchase, at or before the time of the conveyance.; no subsec[uent and entirely independent conduct, intervention, or payment on his part would raise any resulting trust.- § 1038. Special Rules. — To the General doctrine are added the following more specific rules: The trust results whether the title is taken in the name of one grantee only, or of two or more grantees jointly; in the latter case there are joint trustees.^ A trust also results in favor of one who pays only a part of the price. In other words, where two or more persons together advance the price, and the title is taken in the name of one of them, a trust will result in favor of the other with respect to an undivided share of the property proportioned to his share of the price.- The doctrine in all of its phases applies alike to personal and to real property.^ §1039. Purchase in the Name of a Wife or Child. — Wherever the real purchaser — the one who pays the price — is under a legal, ^See ante, § 081. - This description assumes that the conveyance to A is made witli the know 1- edge and consent, express or implied, of B. avIio pays the price, — that the Avhole transaction is in pursuance of a common understanding or arrange- ment. If the conveyance is taken by A secretly, contrary to B's wishes, in violation of a duty owed to him. or in fraud of his rights, the trust which arises in B's fa\or is not ''resulting." Init is "constructive." The two kinds are often confounded, but the distinction is important, and especially so in those states where the "resulting" trusts of this form have been in terms abolished by statute: Dyer v. Dyer, 2 Cox 92; 1 Lead. Cas. Eq. 4 Am. ed. 314, 319, 333, H. & B. 4o2, Sh. 208; Kelley v. Jenness, 50 Me. 45.5, 79 Am. Dec. 623; Kline v. Eagland, 47 Ark. Ill, 14 S. W. 474; Brainard v. Buck. 184 U. «. 09, 22 Sup. Ct. Rep. 458, 40 L. ed. 449; Reynolds v. Sumner, 126 111. 58, 9 Am. St. Rep. 523, and note, 18 X. E. 3.34, 1 L. R. A. 327; Ducie V. Ford, 138 U. S. 587, 11 Sup. Ct. Rep. 417, 34 L. Ed. 1091; Long v. King, 117 Ala. 423, 23 South. 534. ^ Ex parte Houghton, 17 Ves. 251, 253. nVray v. Steele, 2 Ves. & B. 388; Sanders v. Steele. 122 Ala. 415. 26 South. 882; Bailey v. Hemenway, 147 Mass. 320. 'Rider v. Kidder, 10 Ves. 360; McClung v. Colwell, 107 Tenn. 592, 89 Am, St. Rep. 961, 64 S. W. 890. 591 TUL'STS Ai:i:SlX(; KV Ol'KKAllU.X UF LAW. § 1040 or even iu some cases a mural, ubligatiuu lu maintain tlie jxTSini in whose name the purchase i« made, equity raises the presumi)ti(m that the purchase is intended as an advancement or gift to such recipient, and no trust results, if, therefore, a purchase of either real or personal property is made by a husband in the nanie of his lawful A»-ife, or in the joint names of himself and his wife, or such purchase is made by a father in the name of his legitimate child, or in the joint names of himself and child, no trust results in favor of the husband or father, but the transaction is presumed to be a gift or advancement to or for the benefit of the wnfe or child. ^ It appears to be now settled that the same rule applies to a mother Avho purchases property in the name of her child, or in the joint names of herself and child, and pays the price with her own separate funds; no trust results.- The rule also applies where the person advancing the price has placed himself in loco parentis towards the other. •'• § 1040. Admissibility of Parol Evidence. — Since these resultiug trusts are not embraced within the statute of frauds, their existence need not be evidenced by any writing, and may, therefore, be es- tablished by parol. In cases belonging to the first form, — purchases between strangers, — if the deed does not show on its face that the price Avas actuall}- paid by another, and even, according to man}' decisions, if the deed recites that the payment was made by the grantee therein, the real fact may always be established by parol evidence; it may be proved by parol that the purchase price was wholly or partly paid by another person, and thus a trust ma}' be shown to result in his favor. Where the trust does not appear on the face of the deed or other instrument of transfer, a resort to parol evidence is indispensable. It it settled by a complete unani- mity of der-ision that such evidence must be clear, strong, unecjuiv- ocal, unmistakable, and must establish the fact of thy payment by the alleged beneficiar}- beyond a doubt. Where the payment of a part only is claimed, the evidence must show, in the same clear manner, the exact portion of the whole price which was i)aid.^ Parol evidence is also admissible on the part of the grantee to defeat a trust. Since the whole doctrine of a resulting trust depends upon an equitable presumption of an intention, so this 'Dyor V. Dyer, 2 Cox !I2. H. & ]}. 452, «h. 208; Smithsonian Institiilc v. Mecch. 169 U. S. 3!)S. 18 Sup. Ct. Eep. 396, 42 L. ed. 793; Deck v. Tabler, 41 W. Va. 332, 23 S. E. 721, 56 Am. St. Rep. 837. = Cooley V. Cooley. 172 Mass. 476, 52 N. E. 631. 'Hamilton v. Steele, 22 VV, Va. 348. iRyall V. Eyall, 1 Atk. 59; Baker v. Vining, 30 Me. 121, 126, 50 Am. Dec. 617: Brinknian v. Sunken, 174 :Mo. 709. 74 S. \V. 9(1;;. §1044 EQUITY JLKhsrULDEXCE. 592 presumption may be overcome by parol evidence of an actual in- tention on the part of the one paying the price, that the trans- action was to be a gift.- § 1041. The Same. Between Family Relatives. — In trusts of the second form, between family relatives, no evidence is necessary, in the first instance, to show the operation of the rule, since a I)resumption arises on the face of the transaction that a gift was intended, and that no trust results. This result, however, is merely a presumption, and may be overcome. Extrinsic evidence, either written or parol, is admissible on behalf of the husband or parent paying the price to rebut the presumption of an advancement or gift, and to show that a trust results ; and conversely, such evidence may be used to fortify and support the presumption. In general, this extrinsic evidence, to defeat an advancement and es- tablish a trust as against the party to whom the property is con- veyed or transferred and those holding luider him, must consist of matters suhstantlally contemporaneous with the purchase, convey- ance, or transfer, so as to be fairly connected with the transaction/ § 1043. Interest and Rights of t'hc Beneficiary. — The interest of the cestui que trust in a resulting trust is not a mere "equity"; it is an equitable estate in the land or other thing of which the legal title is vested in the trustee: and as such, it may be conveyed, transferred, devised, or otherwise dealt with as property.^ It is valid, and may be enforced not only against the trustee, but against his heirs, devisees, personal representatives, and all others who derive title from him as volunteers or purchasers with notice ; but, being a purely equitable interest, it is cut off and destroyed as against all bona fide purchasers or mortgagees from the trustee for a valuable consideration and without notice.- The cestui que trust is entitled to the remedy of compelling a conveyance or as- signment of the legal estate to himself by the trustee, or perhaps, in some instances, of compelling the trustee to hold the property for the benefit of the beneficiary, and subject to his power of enjoyment, control, and disposition." § 1044. Second. Constructive Trusts. — Constructive tnists in- clude all those instances in which a trust is raised b^^ the doctrines -F.onbow V. Townsend, 1 :\Iylne & K. 500; ^Yal•cl v. Ward, 59 Conn. 188, 22 Atl. 149. 'Kilpin V. Kilpin, 1 Mylne & K. 520; Smithsonian Institute v. Meech, 169 r. 8. 398, 18 Sup. Ct. .396, 42 L. ed. 793. ^Dickinson v. Burrell. L. E. 1 Eq. 337. ^'King V. Pardee, 96 U. S. 90. ^ For an important discission of the application of the "(dean hands" maxim, see Monahan v. ^Monalian, (Vt.) 59 Atl. 169, especially the dissenting opin- ion. 593 TRUSTS AiasiNU BY UTEKATIUN 01' LAW. § 1044 of equity for the purpose of working- out justice in the most effi- cient manner, where there is no intention of the parties to create such a relation, and in most cases contrary to the intention of tlie one holding the legal title, and where there is no express or im- plied, written or verbal, declaration of the trust.^ They arise wh(Mi the legal title to property is obtained by a person in violation, express or implied, of some duty OAved to the one who is ecpiitahly entitled, and when the propert}^ thus obtained is held in hostility to his beneticial rights of ownership. As the trusts of this class are imposed by equity, contrary to the trustee's intention and will, upon proi)erty in his hands, they are often termed Iriisls in invilunt : and this phrase furnishes a criterion generally accurate and suffi- cient for determining what trusts are truly "constructive." An ex- haustive analysis would show, I think, that all instances of con- structive trusts properly so called may be referred to what equity denominates fraud, either actual or constructive, as an essential element, and as their final source. Even in that single class where equity proceeds upon the maxim that an intention to fulfill an obli- gation should be imputed, and assumes that the purchaser intended to act in pursuance of his fiduciary duty, the notion of fraud is not invoked, simply because it is not absolutely necessary under the circumstances ; the existence of the trust in all cases of this class might be referred to constructive fraud.- This notion of fraud enters into the conception in all its possible degrees. . Certain species of the constructive trusts arise from actual fraud ; many others spring from the violation of some positive fiduciary obliga- tion ; in all the remaining instances there is, latent perhaps, but none the less real, the necessary element of that unconscientious conduct which eciuity calls constructive fraud. ^ Courts of equity, by thus extending- the fundamental principle of trusts — that is. the principle of a division between the legal estate in one and the equitable estate in another — to all cases of actual or constructive fraud and breaches of good faith, are enabled to wield a remedial power of tremendous efficacy in })r()tecting- the rights of property, they can follow the real owner's specific propert5% and preserve his 'Orth V. Orth, 145 Iiul. 184, 57 Am. St. Rep. 185, 4-2 X. E. 277, 44 X. E. 17, -.i-l L. R. A. 298. - 1 refer to the class of ea.«es where a trustee uses trust funds to pay for property purchased in his own name; equity assumes that he intended to act in accordance with his fiduciary duty, aIthoug;h in tlie majority of such instances the actual intention is undoubtedly to violate the duty. It will he seen that, in my opinion, certain kinds of so-called trusts whicli are often spoken of as "constructive" do not at all belong to that class. ■M)'Hear Jewelry f'o. v. \oifer, 100 Ala. 205, 17 South, 525, 54 Am. St. Rep. 31, 28 L. R. A. 707. 38 5 1046 EQUITY JURISPRUDENCE, 594 real ownership, although he has lost or even never had the legal title, and can thus give remedies far more complete than the compensatory damages obtainable in courts of law. The principle is one of universal application; it extends alike to real and to personal property, to things in action, and funds of money. Salu- tary and efficient as the principle is, however, many of the con- structive trusts which it creates are only trusts sub modo ; they have little resemblance, in their essential nature, to express trusts.* In applying this principle, care should be taken to distinguish be- tween actual trusts and those relations which are only trusts l)y way of metaphor; between persons who are true trustees holding the legal title for a beneficial oivner, and those who simply occupy a position which is analogous in some respects to that of a trustee. The use of these terms to designate relations and parties which have no essential element in common with actual trusts and trustees can only produce confusion and inaccuracy.^ § 1045. Kinds and Classes. — The specific instances in which equi- ty impresses a constructive trust are numberless, — as numberless as the modes by which property may be obtained, through bad faith and unconscientious acts. It is possible, however, to distinguish and describe the general groups or types under which all* these instances may be arranged, and thus to present a comprehensive view of the whole snl).iect. § 1046. 1. Arising from Contract, Express or Implied. — There are certain relations which are often spoken of as trusts, and a-s constituting a species of constructive trusts, but which are not. in ^The language of Lord Westbury on this point, in Rolfe v. Gregory, 4 De Gex, J. & S. 576, 579, is very instructive. = The distinction is clearly stated by Lord Westbury in Knox v. Gye, L. R,. 5 H. L. 650, 675. It -was argued, according to the common mode of ex- pression, that a surviving partner is a trustee of tlie share of his deceased partner; but the lord chancellor referred to the case of the vendor and vendee of land, and said that altliough the vendor might by a metaphor be called a trustee for the vendee, he iras trustee only to the extent of his obligation to perform the agreemeyit between himself and the vendee, and proceeded as follows: "In like manner here the surviving partner may be called trustee for the dead man, hut the trust is limited to the discharge of the ohligntion, which is liable to be barred by the lapse of time. As between the express trustee and cestui que trust, time will not run, but the surviving partner is not a trustee in that full and proper sense. It is most important to mark this again and again, for there is not a more fruitful source of error in law than the inaccuracy of language. The application to a man who is improperly and by metaphor only called a trustee of all the consequences which Avould follow if he were a trustee by express declaration, — in other words, a com- plete trustee, — holding the property exclusively for the benefit of the cestui que trust, «ell illustrates the remark made by Lord Macclesfield, that nothing in law is so apt to mislead as a metaphor." 595 TKUSTy AKisixc i;v opf.katiox of law. § 1046 any true and complete sense, trusts, Miid eau only be called so l)y way jf analogy or metaphor. Since they lack the element of fraud, they do not, in any view, properly belong to the division of constructive trusts.^ It is commonly said that a trust is created by a contract for the sale of land; that the vendor holds the legal title as a trustee for the purchaser. Whatever of truth there is in this mode of statement^ whatever of a real trust relation exists, it certainly has nothing- in common with constructive trusts; it rather resembles an express trust.- In like manner, the survivors of a partnership are called trustees for the estate of the deceased partner, with respect to his share of the firm property. This ex- pression is mostly metaphorical ; there is certainly nothing in the relation resembling a constructive trust."' Extending the analogy still further, courts regard partnership property, after an insolvency or dissolution of the firm, and in the proceeding for winding up its affairs, as a trust fund for the benefit of the firm creditors; and the capital stock and other property of private corporations, es- pecially after their dissolution, is treated as a trust fund in favor of creditors. These statements may be sufficiently accurate as strong modes of expressing the doctrine that such property is a fund sacredly set apart for the payment of partnership and cor- poration creditors, before it can be appropriated to the use of the individual partners or corporators, and that the creditors have a lien upon it for their own security ; but it is plain that no constructive trust can arise m favor of the creditors unless the partners or direc- tors, through fraud or a breach of fiduciary duty, wrongfully ap- propriate the property, and acquire the legal title to it in their own names, and thus place it beyond the reach of creditors through ordinary legal means.* I have thus collected the instances which * There is a tendency among writers to enlarge the meaning of the word "trust'' beyond its legitimate signification. By some, the various equitable liens and similar rights arising from contract are made to be the most im- portant, and with a very few exceptions the only instances of constructive trusts. As Lord \Vestbury shows, such a mode of treatment can produce nothing but confusion. The cases included in the first subdivision of the text are not constructive trusts, and are mentioned simply for purposes of completeness, and to distinguish between correct and mistaken conceptions. See Hollins v. Jirierfield, etc., Iron Co., 130 U. S. 371, 14 Sup. Ct. 127. :)7 L. ed. Ill:): O'Bear Jewelry Co. v. Volfcr, lOG Ala. 205, 17 South. 525, 54 Am. St. Hep. 31, 28 L. R. A. 707. = See ante, § 368; post, § 1201: Thompson v. Thompson, 1 Jones (X. C.) 430. 1 Ames Eq. .lur. 201. 'See Knox v. Gye, L. R. 5 H. L. G5G, G75. per Lord Westbury. *See Ilollins v. Brierfiold, etc.. Iron Co.. 150 U. S. 371. 14 Sup. Ct. 127, 37 L. ed. 1113: Fogg v. Blair, 133 U. S. 534. 10 Sun. Ct. 338, 33 L. ed. 721: Kouse V. IHerchants' Nat. Bank, 4G Ohio St. 403, 22 N. E. 293, 15 Am. St, § 1048 EQUITY JUKiaPKUDEXCE. ^390 are sometimes, though improperly, classed with constructive trusts, in order the more clearly to indicate the nature of the trusts which are truly constructive, and which are described in the following paragraphs. § 1047. 2. Money Received Which Equitably Belongs to An- other. — By the well-settled doctrines of equity, a constructive trust arises whenever one party has obtained money which does not equi- tably belong to him, and which he cannot in good conscience retain or withhold from another who is beneficially entitled to it; as, for example, when money has been paid by accident, mistake of fact, or fraud, or has been acquired through a breach of trust, or vio- lation of fiduciary duty, and the like.^ It is true that the beneficial owner can often recover the money due to him by a legal action upon an implied assumpsit;- but in many instances a resort to the (-({uitable jurisdiction is proper and even necessary.^ § 1048. 3. Acquisition of Trust Property by a Volunteer, or Purchaser with Notice. — Wherever property, real or personal, which is already impressed with or subject to a trust of any kind, express or by operation of law, is conveyed or transferred by the trustee, not in the course of executing and carrying into effect the terms of an express trust, or devolves from a trustee to a third person, who is a mere volunteer, or who is a purchaser with actual or con- structive notice of the trust, then the rule is universal that such heir, devisee, successor, or other voluntary transferee, or such pur- chaser with notice, acquires and holds the property subject to the same trust which before existed, and becomes himself a trustee for the original beneficiary. Equity impresses the trust upon the prop- erty in the hands of the transferee or purchaser, compels him to perform the trust if it be active, and to hold the property subject to the trust, and renders him liable to all the remedies which may be proper for enforcing the rights of the beneficiary. It is not n-^cessary that such transferee or purchaser should be guilty of positive fraud, or should actually intend a violation of the trust obligation; it is sufficient that he acquires property upon which a trust is in fact impressed, and that he is not a bona fide purchaser Kcp. 644, 5 L. R, A. 378; O'Bear Jewehy Co. v. Volfer. loO Ala. 205, 17 South. 525, 54 Am. St. Rep. 31, 28 L, R. A. 707. 'Robinson v. Pierce, 118 Ala. 273, 72 Am, St. Rep. KiO, 24 South. 984, 45 L. R. A. 66. - See Frue v. Loring, 120 Mass. 507. — a decision based upon the narrow and statutory jurisdiction of the Massachusetts courts, and not in harmony with the general doctrines of equity. 3Com. Dig., tit. Chancery, 2, A, 1; 2 Foubl. Eq., b. 2, c. 1, sec. 1, note i. 597 Titrsxy ahisixc; iiv oi'i:i;ation ok law. § 1048 for a valuable consideration and without notice.^ This universal rule forms the protection and safeguard of the rights of beneficiaries in all kinds of trust; it enables them to follow trust property, — lands, chattels, funds of securities, and even of money, — as long as it can be identified, into the hands of all subsequent holders who are not in the position of bona fide purchasers for value and without notice; it furnishes all those distinctively equitable remedies which are so much more efficient in securing the beneficiary's rights than the mere pecuniary recoveries of the law.- Even when the original property is placed beyond the reach of the beneficiary by a sale to a bona fide purchaser for value and without notice, the trust, as will more fully appear hereafter, attaches to the proceeds in the hands of the trustee who makes the transfer. The statement and grounds of the rule show that it does not extend to the case where the property is duly transferred or purchased in pursuance of an express trust to convey or sell, and for Mie purpose of carrying such trust into effect. And where the rule does apply, there is some distinction between money and other kinds of trust property. If a trustee or other fiduciary person, in violation of his own duty, uses trust money to pay an antecedent debt of his own to a creditor who has no notice of the breach of trust, or that the money is subject to the trust, in such a manner that the money is received as a general payment, and not as a distinct and separate fund, then the money becomes free from the trust, and cannot be followed by the beneficiary into the hands of the creditor, altiiough. in genera^, an antecedent debt does not constitute a valuable consid- eration.^ •Robinson v. Pierce, 118 Ala. 273, 72 Am. St. Eep. IGO, 24 South. 984, i)()l. 45 L. R. A. 66. -Xcwton V. Porter, 69 X. Y. 133, 137, 139, 25 Am. Rep. 152, H. & V.. 477, Sh. 201; Murray v. Ballou, 1 Johns. Ch. 566, 1 Scott 520; Union Pacific R. R. Co. V. HIcAlpine, 129 U. S. 305, 314, 9 Sup. Ct. Rep. 286, 32 L. ed. 673; \^'etnlore v. Porter, 92 N, Y. 77, Ames Trusts 262 (the trustee who lias coni- niitteii a breach of trust in conveying tlie property, may sue and recover it for tlio benefit of the cestui que trust) : Leake v. Watson, 58 Conn. 332. IS Am. (St. Rip. 270, 20 Atl. 343, 8 L. R. A. 606. 'The reason p;iven for tliis conclusion is, that money is not "car-marked"; wlien received by the creditor and min to protect his property, and having obtained the property perhaps for nuich less than its real value, he refuses to abide by his verbal promise, and retains the land or other property as absolutely his own. Equity will relieve the defrauded owner by impressing on the property a trust ex maleficio, and by treating the purchaser as a trustee in invitum. This application of the doctrine was explained and the authorities were examined in Ryan v. Dox, 34 N. Y. 307; 90 .\m. Dec. 606, H. & B. 488. See, also. Pope v. Dafrar, 176 111. 478, ,52 N. E. 58; Whitney v. Hay, 181 U. S. 77, 21 Sup. Ct. Rep. 537, 45 L. ed. 758. § 1U5S EQUITY JLKlal'KUDEXCE. G04 there is a mere verbal promise to purchase and convey land. In order that the doctrine of trusts ex maleficio with respect to land nia}^ be enforced under any circumstances, there must be some- thing more than a mere verbal promise, however unequivocal, other- Avise the statute of frauds would be virtually abrogated ; there must be an element of positive fraud accompanying the promise, and by means of which the acquisition of the legal title is wrong- fully consummated. Equity does not pretend to enforce verbal promises in the face of the statute ; it endeavors to prevent and punish fraud, by taking from the wrong-doer the fruits of his deceit, and it accomplishes this object by its beneficial and far- reaching doctrine of constructive trusts.^ § 1057. (4) Trusts in Favor of Creditors, — In carrying out the general principle of trusts for the purpose of working ultimate justice, and reaching property where the legal title has been parted with, and is beyond the scope of legal process, a constructive trust is said to arise in favor of judgment creditors with respect to the property of their debtors, which has been transferred with the in- tent to defraud the creditors of their rights, or of W'hich the legal title is vested in third persons wath a like fraudulent intent, or which is of such a nature that it cannot be taken by execution upon judgments in legal actions/ § 1058, Rights and Remedies of the Beneficiary, — The essential nature of constructive trusts have been explained in a former par- agraph.^ Equity regards the cestui que trust, in all instances ex- cept that last mentioned in favor of creditors, although wnthout any legal title, and perhaps without any written evidence of interest, as the real owner, and entitled to all the rights and consecjuences of such ownership. Numerous important questions concerning the conduct of trustees, their relations with the trust property an^ with the beiieficiaries. Avliich^fTin.se^rom expi'css trusts, r,.;: :;;i\;;e no existence in connection with constructive trusts. Every act of the trustee in holding, managing, investing, or otherwise dealini!' 'Seymour v, Cuslnvay, 100 Wis. .580, 77 X. W. 769, G9 Am. St. Rep. 957; Feenev v. Howard, 79 Cal. 52.5, 12 Am. St. Rep. 162, 21 Pac. 9S4. If, how- ever, the parties stood in a relation of confidence with each other, the fact tliat, at the time of the conveyance and promise to reconvey, there was no fraudulent intent on tlie part of the trrantee is immaterial ; a constructive trust arises: See Wood v. i;al)e, 90 X. Y. 414, 48 Am. Rep. 040 (mother and son). 'The trust is, in reality, one in name alone; the creditor's right to reach the debtor's property is in no true sense an interest in that property: it is, at most, only an equitable lien on the property. See Savage v. ^Murphy, 34 N. Y. 508, 90 Am. Dec. 733. ^See ante, § 1044. (jUi) TUUSTS AKl^iXU LiV orEliATlON OF LAW. 5 1058 with the trust property as tlioiigh he eould retain it, is itself a violation of his paraniouut obTigation to the beneficiary, li' tiie trustee refuses or delays to convey the property to its beneficial owner, and retains it, derives benefit from its use, and ai)propriates its rents, x>i"ofits, and income, he must account for all that he thus receives, and pay over the amount found to be due to the cestui 'jue trust, as well as convey to him the corpus of the trust fund.^ The beneficiary, therefore, being the true owner, may always, by means of an e({uitable suit, compel the trustee to convey or assign the corpus of the trust property, and to account for and pay over the rents, profits, issues, and income which he has actually received, or, in general, which he might with the exercise of reasonable care and diligence have received.- In such a suit the plaintilT is also entiiled to any additional or auxiliary remedy, such as injunction, cancellation, accounting, which may be necessary to .render his final relief fully efficient. No change in the form of the trust property, eff'ected by the trustee, will impede the rights of the beneficial own- er to reach it and to compel its transfer, provided it can be identi- fied as a distinct fund, and is not so mingled up with other moneys or property that it can no longer be specifically separated. If the trust property has been transferred to a bona fide purchaser for value without notice, or has lost its identity, the beneficial owner must, and under other circumstances he may, resort to the personal liability of the wrong-doing trustee.^ The existence of a construc- tive trust, as of a resulting one, must be proved by clear, unequiv- ocal evidence.* SECTION VI. POWERS. DUTIES, AND LIABILITIES OF EXPRESS TRUSTEES. ANALYSIS. S lOoO. Divisions. § 1060. First. Powers ami iiioilcs of acting. §§ 1001-1083. Second. Duties and liabilities. §§ 10(i2-10Go. I. To carrj the trust into execution. § 1062. 1. The duty to conform strictly to the directions of the trust. § 1063. 2. The duty to account. § 1064. 3. The duty to obey directions of the court. § 1065. 4. The duty to restore tlic trnep. 710; King v. Talbot, 40 N. Y. 70. .50 Barb. 453. Ames Trusts 472, H. & B. 511; Speight v. (Jaunt, 22 Ch. Div. 727, Ames Trusts 518. 013 DUTIES OF EXITvESS TltUSTEKS. § 1072 from the duty that a trustee maij be held aecountable for more property than that which actually came into his possession. lie may be charged with rents, profits, interest, income, proceeds of sales, and the like, which he never in fact received, but which he might and should have received by the exercise of due and reason- able care, diligence, and prudence in his modes of dealing. A trustee who pays the wrong party will generally be liable to pay over again to those who are really entitled.- § 1071. 5. The Duty as to Investments. — The general obliga- tion under consideration finds its most striking and important ap- plication in the matter of the investment of trust funds. It is the trustee's duty to use diligence in investing the trust property so that it may produce as much income as possible, and also to use care and prudence in investing it in such securities as will render its loss highly improbable, even if not virtually impossible. From these somewhat antagonistic duties arise two corresponding lia- bilities. If the trustee suft'ers mone3's to lie idle in his hands, producing no income, when by a proper investment an income might have been obtained, and this continues for an unreasonably long time, he will be liable for the amount of income which he might and ought to have made by an investment, and w^ill be charged with such amount by the court in the settlement of his accounts. On the other hand, if he has made an investment in improper securities, contrary to the settled rules of equity on the subject, and the principal has been wholly or partially lost through insolvency or depreciation of value, or has failed to produce in- come, he will be held personally responsible for the loss or defi- ciency. If, however, an investment is made with the exercise of reasonable care, diligence, and business prudence, in the form, man- ner, and securities approved of by the rules of equity, a trustee will not be liable for losses which may occur through the destruc- tion or depreciation of values.^ The general duty involves two distinct elements, which will be separately examined — the necessity of making investments, and the proper kinds of securities in whicli the investments may be made. § 1072. The Necessity of Making Investments. — It is the trust- ee s imperative duty to render the trust jiroperty as productive as possible consistent with its security and with the demands of ordi- nary business prudence and judgment. The rule is general, there- fore, that if he permits the money to remain in his own hands, un- M?atG V. Hooper, o Do, G. M. ami C. 338. 'Robinson v. Robinson, 1 De Gex. M. & G. 247, 2r)4-2r)7. Ames Trusts 4!),'5; lUown V. Cellatly, L. R. 2 Ch. 751, Ames Trusts 489; Kimball v. Reding, 3i ^•. H. 3.").::, «i4 Am. Dec. 333. § 1074 EQUITY JUiilSPRUDKNCK. G14 productive, for a period wIul-Ii, under the circumstances, is unrea- sonable, then he will be personall^^ chargeable with the lawful in- terest which might and should have been obtained by the exercise of reasonable care and diligence ; and if the principal fund should l)e wholly or partially lost in consequence of such unreasonable delay, he will be compelled to make up the deficiency. Even when the instrument creating the trust prescribes a particular mode of investment — as, for example, it directs that all the personal prop- erty should be converted into cash, and the proceeds invested in the purcha.se of land — the trustee cannot be justified in suffering the cash to lie idle and .unproductive for an unreasonable length of time.^ § 1073. Kinds of Investments — ^When Particular Securities are Expressly Authorized, — There are two cases to be considered: 1. When the instrument creating the trust expressly authorizes in- vestment in particular securities, or directs particular modes of investment; 2. When the instrument is wholly silent with respect to the mode of investment, and the matter is left to the judgment of the trustee. In the first case, when the instrument itself directs the mode and nature of the investment, and designates the securi- ties, the trustee is bound to follow these directions with scrupulous care, and if any loss of trust property is the result of his obedience, he is not at all rcs])onsil)lc. A departure from the directions Avill entail liability for the losses which may be occasioned thereby. Even when a general discretion in the choice of securities is ex- pressly given, it must be exercised with reasonable care and busi- ness prudence.^ § 1074. The Same. When No Directions are Given. — ^Where the instrument of trust is silent as to the mode of investment, the rules governing the action of trustees nuiy appear to be somewhat arbi- trary, but are in reality based upon the clearest principles of jus- tice and expediency. The law does not give to trustees the same freedom of choice in investments which may be exercised by pru- dent business men in their own affairs. A business man of even more than average caution may, and often does, assume intentional risks in the investment of his own property; for the sake of obtain- ing a greater than ordinary income, he will often invest in such 'Robinson v. Robinson, 1 De Gex, M. & G. 247, Ames Trusts 495; Caven- (ler V. Cavender, 114 U. S. 4G4, 5 Sup. C't. l)o5, 29 L. Ed. 212; and -oe ante, § 1067. ^ Rot hell V. Abraham, L. R. 17 Eq. 24 (even when clothed with discretion they cannot invest in foreiti;n funds or railway stocks) ; Zimmerman v. Fra - ley, 70 Md. 561, 17 Atl. 560 (direction to invest in landed securities doer not authorize a purchase of hmd) : Raer's Appeal. 127 Pa. St. 360. 18 Atl. 1, 4 L. R. A. 609 (cannot loan on personal security rmless authorized). 6ir> DLTiLl.S or KXJUK.SS THUS TKKS. § 10T4 a maimer that the risk of ultimate loss is considerable, and such speculative use of his property would not be regarded as illegi- timate nor as deserving of any censure. For example, he may invest in the stocks of companies which promise, and with good foi-tune, may pay. large dividends, but which also may utterly fail. No such risk is permitted to the trustee. In the management and investment of trust property for the benefit of the cestui que trust, the law, while requiring some income, regards the security of the fund invested and the certainty of a moderate rcf/ular income as of paranunint — of absolutely essential — importance when compared with the amount of the income. It permits the trustee to assuuK^ no risks in his investment other than those wdiich are inseparable from every species of ju'operty. Absolute freedom from risk is impossible. The most stable forms of property may lose their value -. lands may depreciate; even nations may become bankrupt. From these risks which inhere in every kind of ownership the law does not pretend to save the beneficiary: but from risks growing out of the uncertainty of speculative investments the law does protect him by making the trustee personally responsible for all trust funds invested by him in such a mannei*. It is the settled rule of ecfuity. in the absence of express directions in the instrument creating the trust, or of statutory permission, that trustees or executors can not invest trust property upon any mere personal security, nor upon the stocks, bonds, or other securities of private business corpora- tions.^ Where no directions are given by the instrument of trust, tlie well-settled rule of the English courts of equity is, that the trustee should invest trust funds, and can only escape personal risk and liability by investing", in real estate securities, or in the public, governmental securities of the British government.- In the United States, while the rules are certainly not so stringent and invariable as in England, and while different regulations may prevail to some extent in different states, based partly upon statutory legislation, and partly upon the policy of encouraging local enterprises, tlie same fundamental principle of requiring permanent investments in real estate or governmental securities is generally recognized by the courts — at least, all speculative risks are forbidden." Invest- ments in first mortgages of improved land are universally favored, 'Wliite V. Shcniian, 1G8 111. .')Sn, 48 X. E. 12S. fil Am. St. IJcp. l:V2. - Robin.son v. Robinson, 1 De Cex, :M. & G. 247, 2G3, Ames Trusts 40.3. ■Kinii- V. Talbot, 40 X. Y. 70. r^O P.arb. 4;-).'?. Ames Trusts 472, II. & P.. oil; Harvard College v. Amory. Pick. 440, II. & P.. r)2(); Lamar v. IVIicou, 112 U. S. 452, 40.'), ,^) Sup. Vt IN-p. 221. 2(i L. Kd. 774. II. & P.. .")1."); i'ortcr v. VVoodrufT, 3(1 X. .7. Va[. 174. IS.'). TI. & P. 2n() : Siiiiuioii^ v. Oliver. 7-1 Wis. (J.i.S. 43 X. \V. 5<11. II. & P. r>24: Dickinson's Appeal. 1.V2 :\Iass. 184, 25 X. E. 99, Ames Trusts 478. § lUiS EQUITY JLlUSi'UUDENCE. 616 and the trustee is not liable for any subsequent depreciation of value if the original security was sufficient. Indeed, investments of this form are generally required to be made by public officials of trust moneys paid into court. Investments in second or other sub- sequent mortgages would be at the trustee's own peril. Trustees may always invest in the governmental securities of the state under whose jurisdiction they are, and in those of the United States; and perhaps an investment in the public securities of other states of the Union, of which the credit is firmly established, may be per- mitted; but to any greater extent than this, investments in foreign securities are a violation of the trustee's duty. In some of the states, statutes permit investments in the municipal bonds of cities^ counties, and towns of the state within whose jurisdiction the trustee acts. Wherever the principles of equity jurisprudence have been fully accepted by the courts, trustees are not allowed to in- vest in the stocks, bonds, and other securities of private corpora- tions — certainly not without a statutory permission. Such unau- thorized investments do not ipso facto render the trustees per- sonally liable, where no loss ensues; but if any loss results, they nmst make it good. AVhere, however, the trust provides for a transfer of the property to the beneficiaries, they are not bound to accept such unauthorized securities from the trustees, even though these securities are not at all depreciated in value.. It should In- carefully observed, in this connection, that if the beneficiary is sui juris and competent to bind himself, his consent to the irregular investment would be a justification of the trustee's action, and a waiver of all claim, against him for resulting loss. § 1075. III. To Act with Good Faith. 1. The Duty not to Deal with Trust Property for his Own Advantage. — Absolute and most scrupulous good faith is the very essence of the trustee's ob- ligation. The first and principal duty arising from this fiduciary relation is to act in all matters of the trust wholly for the benefit of the beneficiary. The trustee is not permitted to manage the affairs of the trust, or to deal with the trust property, so as to uain any advantage, directly or indirectly, for himself, beyond his lawful compensation. The equitable i-ules which govern the personal dealings between trustees and all other fiduciaries and their beneficiaries — their contracts, purchases, gifts, and the like — have already been examined, and this branch of their general obli- gation to use good faith needs no further discussion.^ It is equally imperative upon the trustee, in his dealings with trust property, not to use it in his own private business, not to make any incidental profits for himself in its management, and not to acquire any pe- ^See ante, §§955-905. 617 DUTIES OF EXlTiKSS 'rKl'STKES. § 1076 cuniaFy gains from his iidiiciary i^osilion. Tlu- beneficiary is en- titled to claim all advantages actually gained, and to hold the trustee chargeable for all losses in any way happening, from a vio- la tioji of this duty.- § 1076. 2. The Duty not to Mingle Trust Funds with his Own Funds. — This second important duty of good faith includes not only the intentional use of trust funds in the trustee's own business: it prohilnts the mixing the two funds together in one amount, llif depositing trust moneys in his own personal account with his own moneys in bank, borrowing trust funds or going through the form of borrowing for his own use, mingling receipts and payments of trust moneys and his own moneys in his books of account, and all similar modes of combining or failing to distinguish between tlie tvv-o funds. Tlie trustee may not thus mingle trust moneys witli Jiis own, even though he eventually accounts for the Avhole, and nothing is lost. The rule is designed to protect tlie trustee from temptation, from the hazard of loss, and of being a possible de- faulter. When a trustee does mingle trust moneys with his own, the right and lien of the beneficiary attach to this entire combined fund as security for all that actually belongs to the trust estate. A violation of this duty subjects the trustee to the following- lia- bilities: 1. If the mingling is followed by actual loss, accidental or otherwise, the trustee must make good the principal sum lost, t(!gether with interest, and perhaps with compound interest ; 2. Where there has been no positive loss, but the whole funds, princi- pal, profits, and proceeds, are in the trustee's hands in their min- gled condition, the burden of proof rests upon him of showing most ecnclusively what portion is his, and whatever of the mixed fund, iiu-Iudinu' both profits and principal, he can not thus show to be hi^: own, even though it be the whole mass, will be awarded to the -Dorker v. Somes. 2 Mylne & K. G-'i.j. The penalty for n violation of tliis duty may be impo-^ed in any form necessary to a complete indeinnifieation of tlie beneficiary. Where the trustee has used trust funds in his own business, ill trade, speculation, lias made profits, acquired property, and the like, the lienetieiary may. if he elect, claim and secure the advantage, profits, property, etc.. for hi« own benefit. If the yaiiis. jirofits, or acquisitions of such dealinjjs cannot be ascertained witli certainty, tlie trustee may be held liable to pay exha interest, and even ciiiipouiid interest. The beneficiary is not. however, ])ermitted to claim both profits and interest: he is required to elect between tlie two. Finally, if the trustee uses trust funds for such improper purpo>v>>. and loses th?m in any manner, he will be obliged to make up the loss to an extent sufilcient to jjive the beneficiary complete indemnity, not only for tlie principal, but also for the income or interest wliich oujjht to have been made by the exercise of pood faith and ordinary business prudence. T^oljinson \. Kobinson, 1 De Gex, M. & G. 247. 2.56. 2Tu . Ames Trusts 495; Davis v. Rock Creek, etc., Co., 55 Cal. 359, 30 Am. Rep. 40. § 1U77 EQUITY JUHJSPKUDKXCE. 618 beneficiary. The beneficiary is always entitled to claim and receive the acluul profiis when they can be ascertained; 3, If it is difficult to distinguish the funds so as to tell the amount of profits or pro- ceeds which is the beneficiary's share, the court may not only re- quire the trustee to restore the principal which he has appropriated, I)ut in place of the profits may compel him to pay interest com- pounded, with rests annual or semi-annual, or even more frequent, as the extent of his bad faith may seem to demand; 4. Even if the trustee voluntarily accounts for and restores all the principal that he has mingled with his own, the court wall at all events charge him with interest thereon.^ § 1077. 3. The Duty not to Accept Any Position or Enter into Any Relation, or do Any Act Inconsistent with the Interests of the Beneficiary. — This rule is of wide application, and extends to every variety of circumstances. It rests upon the principle that as long as the confidential relation lasts the trustee or other fiduciary owes an undivided duty to his beneficiary, and can not place him- self in any other position which would subject him to conflicting duties, or expose him to the temptation of acting contrary to the iiest interests of his original cestui que trust. The rule applies alike to agents, partners, guardians, executors and administrators, directors and managing officers of cor})orations, as well as to technical trustees. The most important phase of this rule is that which forbids trustees and all other fiduciaries from dealinu' in their own behalf wath respect to matters involved in the trust, and this prohibition operates irresi^ectively of the good faith or liad faith of such dealing. It is therefore a gross violation of ills duty for any trustee or director, acting in his fiduciary capa- city, to enter into any contract with himself connected with the trust or its management; such a contract is voidable, and may be tlefeated or set aside at the suit of the beneficiary. If, however, the trustee's act, in violation of this rule, is not done in bad faith, and the beneficiary has received any benefit therefrom, it cannot he avoided without a restoration to the ti-ustee of what has thus been received.^ As another application of the general doctrine, a ^ It should be observed that the trustee is liable for trust money lost while mingled with his own, or while being used in Iiis own business, no matter how or by what cause the loss occurs. He may have used the utmost care and prudence in conducting the business, and the loss may have been the result of unforeseen, inevitable accident, — he is still liable, since he is engaged in a positive violation of duty. Cook v. i\ddison, L. E. 7 Eq. 460, 470; White v. Sherman, lOS 111. r),S9. (104, Gl Am. St. Rep. 1:52, i:W: 48 N. E. 128. ' Duncomb v. N. Y., etc., R. R., 84 X. Y. 100, 198; Twin Lick Oil Co. v. Marhury, 01 C. S. .587, Sh. 119; Yale Gas Stove Co. v. Wilcox, 64 Conn. 101, 619 X.T^-JLTriE.:- oz ~;:.rr-r,:g Trii;GTi:ES, § 1080 trustee is boiiiul to eommuiiicate to his beneficiary any kno\vledi:e or information lie may have obtained affecting the beneficiary's interests so far as they are embraced in or depend upon the trust or confidential relatiou.- § 1078. 4. The Duty not to Sell Trust Property to Himself nor to Buy from Himself. — This particular duty has already been fully (iisc-ussed. It has been shown that where a trustee deals directly with his beneficiary b}^ way of purchase or sale, the ti-ausaction is presumptively invalid; and that where a trustee with authority 1o sell directly or indirectly purchases the property for himself be- hind his beneficiary's back, or where a trustee with authority t<> buy purchases the property in such a manner from himself, in each case the transaction may be avoided by the beneficiary, unless he has ratified it with full knowledg-e of all the facts.^ § 1079. IV. Breach of Trust, and Liability therefor.— It miyht be supposed that the term "breaeh of trust" was confined to willful and fraudulent acts which have a quasi criminal character, even if they have not been made actual crimes by statute. The term has, however, a broader and more technical meaning. It is well settled tliat every violation by a trustee of a duty which equity lays upon him, whether willful and fraudulent, or done through negligence, or arising through mere oversight or forgetfulness, is a breach of trust. The term therefore includes every omission or commission which violates in any manner either of the three great obligations already described: of carrying out the trust according to its terms, of care and diligence in protecting and investing the trust prop- erty, and of using perfect good faith. This broad conception of breach of trust, and the liabilities created thereby, are not confined to trustees regularly and legally appointed; they extend to all persons who are acting trustees, or who intermeddle with trust property.^ In order that a trustee may be personally liable for a breach of trust, he must be sui juris.^ § 1080. Nature and Extent of the Liability. — It has already been shown that a beneficiary may always claim and reach the trust luoperty tlirough all its changes of form while in the hand of the 29 Atl. 303, 42 Am. St. Rep. 159, 25 L. R. A. 90; Rutland, etc., Co. v. Bates, C8 \t. 579, 54 Am. St. Rep. 904, 35 Atl. 480. = See §§902-904, § 10G3. 'Pittsburjv :\Iin. Co. v. Spooiier. 74 \Yis. 307. 17 Am. St. Rep. 149, 42 X. W. 259; Davoue v. Fanninjr, 2 .Tolnis. CIi. 252. 2 Scott. 090; see ante, §§ 958-905, ]049-10.")2. 'Oceanic Steam Nav. Co. v. Sutliorbeny, L. R. 10 Cli. Div. 230 (breach of trust though beneficial to estate was not allowed). MVainford v. llcyl, L. R. 20 Eq. 321. §1081 EC^LITY JLliiSi'Ul DKXCE. ('("^O trustee, and that lie may also follow it into the possession and ap- parent ownership of third persons, until it has been transferred to a bona tide purchaser for valuable consideration and without no- tice ; and that a court of equity will furnish him with all the in- cidental remedies necessary to enforce his claim and to render it effective.^ In addition to this claim of the beneficiary upon the trust estate as long as it exists, the trustee incurs a personal lia- bility for a breach of trust by way of compensation or indemnifi- cation, which the beneficiary may enforce at his election, and which becomes his only remedy whenever the trust property has been lost or put beyond his reach by the trustee's wrongful act. The trustee's personal liability to make compensation for the loss occa- sioned by a breach of trust is a simple contract equitable debt.- It may be enforced by a suit in ecjuity against the trustee himself, or against his estate after his death, and the statute of limitations v;ill not be admitted as a defense unless the statutory language is express and mandatory upon tlie court.'' The amount of the lia- bility is always sutficient for the complete indemnification and com- pensation of the beneficiary."* § 1081. Liability among Co-trustees. — I do not now speak of the liability for the acts or defaults of a co-trustee, but assume that co-trustees have concurred in a breach of trust. The rule is firmly settled, that where a breach of trust has affected two or more or all of co-trustees with a common liability, they are liable jointly and severally; each is liable for the whole loss sustained or the whole amount due, and a decree obtained against them jointly may be enforced against any one of them.^ Wherever two or more co-trustees are thus jointly and severally liable in the same amount for a breach of trust which is not purely tortious in its nature, — as where it consists in a failure to carry out the directions of the tru.st, or a failure to make proper investments, or other like acts of omission or commission which are not fraudulent, or do not in- volve a Avillful breach of good faith, — a right of contribution ex- ists among themselves; and if one of them has paid the amount of liability, he may enforce a contribution from the others, in a suit brought for that purpose. In such cases, upon the general ' See ante, S§ 1048-1058. == Holland v. Holland, L. R. 4 Ch. 449 Ames Trusts 23G. •■'Diickett V. Kank, 8C Md. 400, 38 Atl. 893, G3 Am. St. Rep. 513, 39 L. R. A. 84. See ante, § 419. ''Robinson v. Robinson. 1 Dc Gex, M. & G. 247, Ames Trusts 495; McKim v. Hibbard, 142 jNTass. 422, 8 N. E. 152; McCloskey v. Gleason, 56 Vt. 264, 48 Am. Rep. 770 (simple interest; mingling of funds) ; In re Hodges' Estate, 66 Vt. 70, 44 Am. St. Rep. 820, 28 Atl. 663 (compound interest). •Turquand v. Marshall, L. R. 6 Eq. 112; Heath v. Waters, 40 Mich. 457. 621 LIABILITIKS OF KXl'l! KSS TKUSTKKS. Ji 1082 priiieij)les of equity i)Ieadinii-, all the tmstees who are liable should be joined as defendants in a suit brought by the beneficiary; the contribution, however, cannot be enforced in that suit.- Where, on the other iiand, the breach of trust concurred in by several co-trustees is tortious in its nature, as wdiere it is actually fraudu- lent, or consists in an intentional misappropriation of trust funds to the trustee's own use, or in any other willful violation of good faith, or perhaps in gross and culpable negligence occasioning a loss, there is no right of contribution among the trustees; the bene- ficiary may, at his election, sue one or more of the wrong-doers without joining all w'ho are liable.^ § 1082. Liability for Co-trustees. — The general theory of eciuity is, that each one of several trustees has the same rights as the others with respect to the possession, control, and management of the trust property. It follows as a necessary consequence of this conception, and the general rule is well settled, that each trustee is generally liable onlj'- for his ow^n conduct in dealing wath the affairs of the trust; he is not responsible for the acts or defaults — the intentional or negligent breaches of trust — of a co-trustee, in which he has not joined or concurred, or to which he has not con- sented, or which he has not aided or made possible by his own neg- ligence.^ Where a trustee who is not really an acting one joins merely for the sake of conformity with his co-trustees w^ho are acting, in receipts given for money, he is not liable with respect to such money to the beneficiary. The foregoing statement of the general doctrine shows that a trustee is not absolutely and under all circumstances free from liability with respect to his co-trustees. A trustee is responsible for the willful or negligent wrongful acts or omissions — breaches of trust — of his co-trustee to wdiieh he con- !;ented, or which by his ow^n negligence he made it possible for his co-trustee to commit. Every trustee is, of course, liable for the defaults of his co-trustee in which he has joined or concurred, but his liability then arises from his oivn actual breaches of trust, and not from those of his fellow-trustee. "With respect to the liability of a trustee for the acts of a co-trustee, there are three jnodes in wdiich he may become liable according to the ordinary rules of the court : 1. Where one trustee receives trust money and hands it over to a co-trustee without securing its due application: 2. AVhere he permits a co-trustee to receive trust money Avithout jiiaking due inquiry as to his dealing with it; 3. Where he becomes nJngard v. Bramley, 1 Ves. & B. 114. 117. ^Att'y Gen. v. Wilson. Craig & P. 1, 28. M^rioe v. Stokes, 11 Ves. 819. 2 Load. Cas. Eq. 4tli Am. ed.. 17:1S. 174S-lTiK), 1791-1805; Estate of 7es!iiire, 1.34 Pa. St. (17, 19 Atl. .302, 1!) Am. St. Rep. G7G. § 1084 EQUITY JURISPRUDENCE. ij22 aware of a breach of trust, either committed or meditated, and abstains from taking the necessary steps to obtain restitution." It thus appears that the consent to a co-trustee's breach of trust need not be express. It may be implied from the trustee's conduct in refraining from taking reasonable and necessary steps to prevent or repair the loss.^ In applying this general rule, some of the American decisions do not hold trustees to quite so rigid a respon- sibility for mere omissions to interfere with the wrongful acts of their fellows as is done by the English cases; but there does not appear to be any substantial difference in the modes of formulating the doctrine by the courts of the two countries. § 1083. The Beneficiary Acquiescing or Concurring. — A benefi- ciary wiio, subseciuently to a breach of trust, acciuiesces in it, can not maintain a suit for relief against those who would otherwise have been liable. The acquiescence, in order to produce this effect, must take place with full information by the beneficiary of all the facts, and with full knowledge of his legal rights arising from those facts ; in short, it must have all the requisites of an acquies- cence heretofore described, to defeat the liability of a defaulting fiduciar}^^ Although, in general, lapse of time is not a defense to the beneficiary's right of action, yet a great delay after knowledge of the breach of trust may be a bar. If a cestui que trust is a party to or concurs in, or even assents to, a breach of trust by the trustee, he debars himself therel)y of all claim for relief.- §1084. Third. The Trustee's Compensation and Allowances. — It is the Avell-settled doctrine of the English equity that the trustee's office is, as a rule of law, Avholly gratuitous. In the ab- sence of a provision for compensation contained in the instrument creating the trust, he is not entitled to make any charge for his services, trouble, or loss of time, even though great advantage had resulted therefrom to the beneficiaries.^ Where the trustee is also an attorney, and acts as such on behalf of the estate, he is even not entitled to full costs or attorney's fees as against the cestui que ti'ust, but can only be allowed for costs actually out of pocket, or disbursements.- The testator, or other person who creates a trust, may expressly provide for a salary or compensation of any ^ tSee ante, S lOGO, as to negligent surrender of entire control to a eo-trustee: Ringgold V. Kinggold. 1 Tlar. & (r. 11, IS Am. Dec. 250; Bruen v. Gillet, 115 N. vt 10. 21 S. E. r.7fi, 12 Am. St. Rep. 7fi4. 4 L. R. A. .529. 1 See ante, §§004. 905; Clark v. Clark, 8 Paige 152. 35 Am. Dee. G7G; White V. Sherman, 168 111. 589, fiOG. Gl Am. St. Rep. 1.32, 140, 48 X. E. 128. M'hipps V. Lovegrove. L. R. 10 Eq. SO. ' Barrett v. Hartley. L. R. 2 Eq. 7S9. -Cradock v. Piper, 1 Macn. & G. 664; Kv. Nat. Bk. v. Stone, 93 Ky. 623, 20 S. \V. 1040. 623 TRUSTEES CO-UPEXSATIOX AND ALLOWANCES. § 1085 form to be i)aid U) the trustee, and such provision will be binding, and will be followed by the courts." This strin»ient, and certainly- unwise, rule of the English ecjuity has not been followed in the United States. With very few, if any, exceptions among the va- rious states, trustees, as well as executors and administrators, are allowed compensation for their services; in most of the states the right to the compensation and the amount of it have been fixed by statutory legislation. Where the instrument creating- the trust provides that the trustee shall have a compensation for his services, such provision will be enforced. If the instrument declares the rate of compensation, it must be followed; if it establishes no rate, the trustee is entitled to a reasonable amount, which will be ascer- tained by means of a judicial investigation, as to the value of his services.* Where no provision is made by the creator of the trast, the trustee is allowed the amount fixed by statute, or in the ab- sence of statute, the amount determined by the court to be reason- able and just."' §1085. Allowances for Expenses and Outlays. — In addition to his compensation in this country, and without an}' compensation in England, the trustee is entitled to be allowed, as against the estate and the beneficiary, for all his proper expenses out of pocket, which include all payments expressly authorized by the instrument of trust, all reasonable expenses in carrying out the directions of the trust, and, in the absence of any such directions, all expenses rea- sonably necessary for the security, protection, and preservation of the trust property, or for the prevention of a failure of the trust. He is also entitled to be indemnified in respect of all personal lia- bilities incurred by himself for any of these purposes.^ Where a trastee properly advances money for any of the above-mentioned objects, so that he is entitled to reimbursement, he also has a lien as security for the claim, either upon the corpus of the trust prop- erty, or upon the income, as the case ma}' be ; but for moneys im- properly paid there is no lien. Although in general a creditor who advances money to a trustee obtains only the personal liability of •'Bowker v. Pierce, 1.30 Mass. 202. Mn the matter of Scliell, 53 X. Y. 2()3, 26.5. H. & B. 543. The English rule is followed in a few states: Cook v. Gilmore, 133 111. 130, 24 N. E. 524, H. & J5. 542. = Perkins' Appeal, 108 Pa. St. 314, 56 Am. Rep. 20S, Sh. 206 (trustee allowed extra omnpoiisalioii for services as attorney); In re Hodjijes's Estate, 66 Vt. 70, 44 Am. St. Rep. 820. 28 All. 663 (trustee who commits breach of trust not entitled to commissions) : IMuscogee Lumber Co. v. Hyer. 18 Fla. «9S. 43 Am. Rep. 332 (allowing a reasonable compensation). MVorrall v. Harford, 8 Ves. 4, 8, Ames Trusts 415; New v. Nicoll, 73 N. Y. 127. 20 Am. Rep. 111. § 1087 EQUITY JURISPRUDENCE. 624 the trustee, and has no demand enforceable against the estate, yet if the expenditure is authorized, and the loan is necessary, the trustee may, at the time of procuring the advance, whether money or services, by an express agreement with the creditor, make the demand a charge upon the estate, and thus create a lien in favor of the creditor; or the trustee may so deal with the estate in the first instance as to acquire a lien in his own favor, and may then as- sign such lien to the creditor.- It is hardly necessary to add that the foregoing rules concerning compensation, allowances, and liens do not apply to trustees in invitum. Since their paramount duty is to convey the property at once to the beneficial owner, they are clearly not entitled to be reimbursed for expenditures made, much less to be allowed compensation, while they are violating this ob- ligation. § 1086. Fourth. . Removal and Appointment of Trustees. — The power of courts of equity over the removal and appointment of trustees, independently of any statutory authority, or any direc- tions in the instrument of trust, is well established. This power is confined to cases of actual exjH'ess trusts. It cannot, in the nature of things, extend to implied trustees, or trustees in invitum; nor does it apply to those persons who stand in fiduciary relations, and are for some purposes treated as trustees. A court of equity may remove a trustee on his own application when he wishes to be dis- charged ; and it may and will remove a trustee who has permanent- ly changed his residence to another country, or has absconded, or has been guilty of some breach of trust, or violation of duty, or has become insolvent, or is incapable, through age or other infirmity, of performing the trust duties. The exercise of this function by a court of equity belongs to what is called its sound judicial discre- tion, and is not controlled by positive rules, except that the discre- tion must not be a])used.^ §1087. Appointment of New Trustees. — The principle has al- ready been stated that an express trust validly created shall not fail for want of a trustee. Courts of equity, therefore, indepen- 'Xew V. Nicoll, 73 X. Y. 127. l.'?0. ].31. 20 Am. Rpp. 111. As to trustee's power to bind the estate, see Woriall v. Harford, 8 Ves. 4, 8, Ames Trusts 415; Strickland v. ISymons, 26 Ch. Div. 245, Ames Trusts 418; In re .Tohnson, 15 Ch. Div. 548, Ames Trusts 426; Fairland v. Percy, L. R. .3 P. & D. 217, Ames Trusts 42.3; Norton v. Phelps, 54 Miss. 467. Ames Trusts 421. 'Sheppard v. McEvers, 4 Johns. Ch. 136, 8 Am. Dec. 561; In re Barker's Trusts, 1 Ch. Div. 43, Ames Trusts 22.3, H. & B. 54 (insolvencj) : MePhereon V. Cox. 96 U. S. 404, 24 L. ed. 746 (inability to a^ree with beneficinry not a disqualification in this ease) ; May v. May, 167 U. S. 310. 17 Sup. Ct. Pep. S24. 42 L. ed. 170 (disagreement among the trustees endangering safety of the j)r(iperty or its proper uianagemcnt). G25 cuuroHATiox diuectors. § 10S8 dently of statute, possess the inherent power and jurisdiction to appoint new trustees whenever such action is necessary to protect the rights of the beneficiaries. In the absence of any other meth- od prescribed by the instrument creating the trust, a court of equity Avill appoint trustees when none at all have been named by the creator of the trust; and will appoint new trustees when those originally named refuse to accept, or when a vacancy occurs by their death, resignation, permanent residence in a foreign coun- try, or removal from office as heretofore described.^ The power of appointment will be exercised on behalf of a beneficiary who has a real interest, even though it be contingent. Its exercise, as in 'cl>e case of removal, is a matter of sound judicial discretion. In filling vacancies, therefore, the court is not necessarily confined to the original number of trustees. In the appointment as w^ell as in the removal of trustees the court keeps in view and endeavors to accomplish three main objects: the wishes of the creator of the trust, the interests of all the beneficiaries, not some of them, and the effectual performance of the trust. Even when the power of appointment is conferred by the instrument of trust upon an individual, a court of equity may control its exercise so as to pre- vent an abuse of discretion.- SECTION VII. CORPORATION DIRECTORS AXD OTHER QUASI TRUSTEES. ANALYSIS. § 1088. (Juasi trustee ; fiduciary persons. S 1089. Corporation directors and officers. S 10'.)0. Trust relations in stock corporations. S 1091. Liability of directors for a violation of their trust. S 1092. First class: Directors guilty of fraudulent misrepresentations, etc. S 1093. Second class: Ultra vires proceedings of directors. S 1094. Tliird chi'^s: Wrongful dealing with corporate property. S 1095. Fourth class: The same; the corporation refuses to sue. § 1096. Special classes. § 1097. Ouardians. § 1088. Quasi Trustees — Fiduciary Persons. — The conception of a trust runs throuuh a large part of equity jurisprudence, and 'Dodkin V. Brunt. L. IJ. ti Eq. .i80. Ames Trusts 220: Ro Hallett's Trusts. IS Weekly Ec]). 410. Ames Trusts 221 (husband appointed co-trustee for uiarried woman, but not sole trustee) ; Wilding v. Balder, 21 Beav. 222, Ames Trusts 221 (person who is not a near relative is to he preferred); Ex parte Conybeare's ¥!ettlement, 1 Weekly Rep. 4.58. Ames Trusts 222 (beneficiary may be co-trustee > , 'Bailey v. Bailey, 2 Del. Ch. 95. 40 § 1089 EQUITY JURISPRUDEXCB. 626 is the source of many doctrines applicable to conditions which are not strict!}^ trusts. Wherever there is a fiduciary relation, although the fiduciar}^ may not hold the legal title to property in which the beneficiary has only an equitable estate, the dealings of the parties Avith each other and with the subject-matter of the relation are governed by the same rules which determine the duties of actual trustees towards their cestuis que trustent, and the beneficiaries are, in general, entitled to the same remedies v.'hich are given to cestuis que trustent against those who are truly express trustees.^ It may be said, therefore, that the equitable obligations resting upon and the equitable remedies given against guardians, committees of persons non compotes mentis, corporation directors, partners, agents, as well as execu- tors and administrators, are analogous to those resting upon and given against actual trustees; they result directly from the theory of trusts, and are not mere applications of the doctrine concerning accounting. I purpose, in the present section, to describe the opera- tion of the theory of trusts upon certain species of fiduciary per- sons, eipecially corporation directors and officers; some other species will be considered in subserpient chapters." § 1089. Corporation Directors and Officers. — The directors and supreme managing officers of corporations are constantly spoken of as trustees. They are not, however, true trustees with the corporation or the stockholders as their true cestuis que trustent, since they hold neither the legal title to the corporate property nor that to the stock. In fact, directors are clothed at the same time with a doulile character — that of cpiasi trustees and that of agents.'^ It is of the utmost importance to discriminate exactly between these two characters, and to determine accurately for whom, over what subject-matter, and to Avhat extent they are thus trustees; fin* ui)on this trust relation primarily •depend the equita- ble remedies which may be obtained against them by the cor- poration or by the stockholders. With the character of agents belonging to directors, the present discussion has little or notliing to do. Frxun their function of agency are derived their powers to act for the corporation as a legal entity; it measures the extent of these powers in the management of both the external and in- ternal affairs; it fixes the rights and obligations of the corporation in dealings with stockholders and with third persons. The rights, ^See ante, §§ 95r)-965, 1044-1058, 1075-1078. ^Namely, executors and adnnnistrators, partners, and acfents. 'Ex parte Chippendale, 4 De Ocx M. & G. 19, 52; Hun v. Gary, 82 N. Y. 65, 70, 37 Am. Rep. 446, H. & B. 507. 637 coi;p()i;atu)N DiinaTORS. § 1000 i^lutie.s, liabilities, and remedies whieli result from the directors' •igeuey are therefore chiefly lej>al; the equitable rights, duties, and remedies are mainly referable to the trust element of the directors' functions. § 1090. Trust Relations in Stock Corporations. — The trust character of directors is involved in the very organization of a corporation, and is necessarily twofold — towards the corpora- tion, and towards the stockholders. The doctrines are fundamental and familiar that the corporation itself is a legal personality, and holds the full title, legal and equitable, to all corporate property. Stockholders, individually and separately, hold the full title, legal and equitable, to their respective shares of stock. A stockholder does not by virtue of his stock acquire any estate, legal or e(iui ta- ble, in the corporate property; he obtains only a right to partici- pate in the lawful dividends while the corporation is in being, and to his proportionate share of the net assets upon its dissolu- tion and final settlement. Shares of stock, however, are regarded by the courts of law and of eciuity as a species of property, r.r, vendible in the market, as having a pecuniary value, and as cloth- ing their owner with proprietary rights which will be protected and enforced.^ From this analysis it is obvious that, so far as the trust embraces or is concerned with the corporate propnii/, tlie directors and managing officers occupy the position of quasi trustees towards the corporation only; there is no relation of bene- ficiary and trustee, having the corporate property for its subject- mjitter, between the stockliolders and the directors. The directors are also agents for the corporation, but that fact does not prevent them from l)eing in a partial sense trustees for the corporation. The important conclusion I repeat, that this phase of their ti-ust is concerned with and confined to the corporate property: from it arise their fiduciary duties towards the corporation in dealing with feiich property, and the equitable remedies of the corporation for a violation of those duties. On the other hand, the directors and managing officers occupy the position of quasi trustees towai-ds the stockholders alone, and not at all towards llu> corporation, with respect to their shares of stock. Since ilic stockholdci's own these shares, and since the value thereof and all their rights connected therewith are afiPected by the conduct of the directors, a trust relation plainly exists between the stockholders and the directors, which is concerned with and confined to the shares of stock held by the stockholders: from it arise the fiduciary duties ^Thus, for example, trover eoxild be maintained for a wrongful conversion of shares. § 1091 EQUITY JURISPKUDE^'CE, 628 of the directors towards the stockholders in dealings Avhich may affect the stock and rights of the stockholders therein, and their equitable remedies for a violation of those duties. To sum up. directors and managing officers, in addition to their functions, as mere agents, occupy a double position of partial trust ; they are (luasi or sub raodo trustees for the corporation with respect to the corporate property, and they are quasi or sub modo trustees for the stockholders with respect to their shares of the stock. " § 1091. Liability of Directors for a Violation of their Tnist.— Whenever directors or managing officers, acting within the scope of their general powers as agents, violate the rights of a stock- holder, their act is binding upon the corportion; it is, in legal effect, the act of the corporation, and the stockholder has a rem- edy, legal or equitable, as the case may be, by suit against the cor- poration.^ With remedies of this kind against the corporation we are not at present concerned, since they result from the di- rectors' powers as agents, and not at all from their functions as quasi trustees. In regard to the various remedies against the di- rectors or managing oiffcers for their breaches of trust, the con- clusions reached in the preceding paragraph furnish a most clear and certain criterion. Whenever the acts of the directors do not consist of any wrongful misuse of the corjiorate property, or wrong- •ful exercise of the corporate franchise, but are of such a nature that they directly and primarily affect the interest of the stockholders in their shares of stock, by diminishing its value, or otherwise impairing their proprietary rights in it, then the stockholders are directly injured and are primarily in- terested ; as the cestuis que trustent whose rights have been vio- lated, they must institute and maintain any equitable suits for relief against their defaulting trustees; the remedy is for their benefit and belongs to them alone. On the other hand, wher- ever the breach of trust consists in a wrongful dealing of any kind or in any manner with the corporate propertv or with -The c'onehisions of the text are fully sustained hy the cases, althovigh no single decision,- so far as I am aware, attempts to give the complete analysis or to formulate the entire results. Ex parte Chippendale 4 De Gex, M. & G. 19, .')2; Jackson v. Ludeling. 21 \Ya]l. OIG. ' As, for example, wlien tlie directors or officers improperly refuse to recog- nize a transfer of stock, and to is^ue a new certificate to the assignee, or when tliey otherwise refuse to admit the rights of one who is really a stock- holder, and to issue to him the stock to -which he is justly entitled, their con- duct, tliough wrongful in the particular instance, falls within the scope of tlu'ir proper ftinctions. The stockholder may therefore maintain an action at law against tlie coijjoration for damages, or he may sometimes resort to a suit in equity for the purpose of compelling it to issue the stock and to register it upon the books of the company; see §§ 1411, 1412. G29 CORPOUATIOX UlUECTOKS. § 1093 the corporate franchises, the corporation itself is directly ii.jured and is primarily interested; as the cestui (|ue trust whose rig'hts have been violated, it nuist institute and niainta'.n any etpiitable suit for relief ay-ainst its defaulting' trustees; the remedy obtained, whether pecuniary- or otherwise, is for its benefit, and beloniis to it alone. Under certain special circumstances in cases of this latter kind, where the suit should be brought b}- the corporation as j)Iain- titf, but it becomes impossible to institute such a proceeding, in order to prevent a complete failure of justice the stockholders are permitted to set the machinery of the court in motion by commenc- ing the action in their own names; but otherwise the suit is treated in every respect as one brought by and for the corporation. In applying these general propositions, it will be found that there are several distinct classes of cases appropriate for different conditions of fact, and governed by different rules. These various classes I shall now proceed to describe. § 1092. First Class. Directors Guilty of Fraudulent Misrepre- sentations or Concealments. — -Where directors or managing officers issue prospectuses, circulars, or reports containing fraudulent mis- representations or concealments concerning the compan^-'s affairs, and persons are induced by these documents to purchase shares of the stock, or to enter into contracts for their purchase, and thereby sustain a loss, such defrauded stockholders may, as has already been shown, either obtain the relief by repayment or rescission against the corporation, or may obtain relief against the fraudulent direct- ors personally by means of an equitable suit for an accounting and repayment of the money, or by an action at law for the deceit. Txhe equitable suits against the directors must plainly be brought by the stockholders, and not by the corporation, since the wrong is not done to the corporate property or franchises, but consists wholly in a violation of the stockholders' proprietary rights in their shares of stock.^ Such a suit can not be maintained by one stockholder suing on behalf of himself and all others similarly situated ; the injury is several and individual ; each defrauded sti)cl\-ho]der nuist sue for himself. - § 1093. Second Class. Ultra Vires Proceedings of Directors. — In a second class of cases, Avhere the directors are not charged with any misappropriation of the corporate property for their own bene- fit, nor with any breach of their fiduciary duty to the corporation, but. although purporting to act for the common welfare, they have adopted, or are about to adopt, some measure which is ultra vires. 01- beyond the scope of their corporate powers, a suit may be prose- *Kisch V. Cent. Ey. of Vciioziicla. 3 Dp Gpx, J. & S. 122; see ante, § 881. ^'Turquand v. Marshall, L. 11. 4 Cii. :J7G, :iS5. § 1094 EQUITY JUKlSi'UUUEXCL:. G30 yated against them by stockholders to obtain the appropriate re- /.lef, either of reeission or of prevention/ Under some cireuni- stanees, even a single dissentient stockholder would not be bound by such an act, done by a unanimous board of directors, ar.d ap- pi'oved by all the other stockholders except himself. The theory of this class of suits is, that a stockholder has a right that the operations of the corporation should be kept by the directors within the powers conferred by its charter; every measure which ti'anscends those powers, although done in good faith, violates the lights which inhere in the ownership of stock, and puts the value of the stock itself at hazard. The suit may be brought by a single stockholder suing on his own account alone, or by a stockholder suing on behalf of himself and all others who are similarly sitiiated. The corpoi'ation is, of coui-se, made a co-defendant and any other corporation or person who has joined in the ultra vires transaction may also be made a co-defendant.- There is also a special action strictly analogous to those properly belonging to this class. When the managing body are doing or are about to do an ultra vires act of such a nature as to produce puhlic mischief, the attoiiicy- general as the representative of the public and of the government, may nuiintain an equitable suit for ])reventive relier."' § 1094. Third Class. Wrongful Dealing with Corporate Proper- ty. — In this vastly most numermis and important class, the wrong- ful acts of the directors or officers primarily and immediately atfect the corporation, either by misuse of its property or by abuse of its franchises. The kinds, forms, and modes of such wrongful acts are practically unlimited in number or variety. In general, where the directors or oificers, or some of them, cause a loss of corporate proper!}^ by negligence, or culpable lack of i)rudence, or failure to exercise their functions; or fraudulently misappropriate the corporate property in any manner, whether for their own benefit or for the benefit of third persons; or obtain any undue advantage, benefit, or profit for themselves by contract, purchase, sale, or other dealings under color of their ot^cial functions; or misuse the fran- chises, or violate the rules established by the chartei- or the by- laws for theii' management of the corporate atfairs; or in any other similar manner commit a breach of their fiduciary obligations to- wards the corporation, so that it .sustains an injury or loss, and a liability devolves upon themselves.— then the corporation is the party which must, as the plaintiff, luring an equitable suit for 'Russell V. Wakefield, etc., Co., L. R. 20 Eq. 474, 4S1. = Ribon V. R. R. Cos., 16 Wall. 440: Elyton Land Co. v. Dowdcll, 113 Ala. 177, 20 South 981, .59 Am. St. Rep. 105. ='Atty.-Gen. v. Creat Western Ry., L. R. 7 Ch. 7G7. 631 CORPOKATIOX DIEFXTOHS. § 109 o relief against the wrong-doers; the trust relation between itself as the cestui que trust and the defaulting directors or oi^- cers as trustees has been violated, and as in all like cases the cestui que trust is primarily the only party to sue for redress. As a general rule, courts of equity will not interfere with tlie internal management of corporations by means of suits brought hy .stock-h old- era against directors, officers, or other stockholders.^ In cases be- longing to this class, therefore, whatever be the nature of the par- ticular wrong, Avhether intentional and fraudulent, or resulting from negligence or want of reasonable prudence, and Avhatever be the indirect loss occasioned to individual stockholders, no equitable suit for relief against the wrong-doing directors or officers can be maintained by a stockholder or stockholders individually, nor by a stockholder suing representatively^ on behalf of all others sim- ilarly situated, unless the special condition of circumstances exists to be described in the next following paragraph, namely, that the corporation either actually or virtually refuses to prosecute. Even if the stockholder alleges that the value of his own stock has been depreciated by the defendant's acts, or that he has sustained otlier special danuige, he is not thereby entitled to maintain the suit. The reasons for this doctrine have already been explained. The stockholder, having no estate, legal or equitable, in the corporate property, has no locus standi in the courts while the corporation, in which alone are vested the corporate property and franchises, is able and willing to sue for their protection.- Differing from this class merely in form, there is a special group of eases governed by the same doctrine. If the corporation has been dissolved, or is in the process of winding np, then the suit, which Avould otherwise have been brought in its name, may l)e maintained by the receiver, official liquidator, or other official representative Avho has succeeded to its property and franchises for the purpose of the final settle- ment.'" §1095. Fourth Class. The Same Wrongful Dealing with Cor- porate Property — The Corporation Refuses to Sue. — Although the corporation holds all the title, legal or equitable, to the corporate property, and is the immediate cestui que trust under the directors with respect to such jiroperty, and is theoretically the only proper MJreaves v. (loujje, (19 N. Y. 154, 1.57. Mlawes v. Oakland, 104 I'. S. 450, 2G L. od. S27; Yale Has Stove Co. v. ^Yilf'0\^ 64 Conn. 101, •20 .^tl. .30.'?, 42 Am. St. lie]). 150. 25 L. R. A. 00; Decatur Mineral Land Co. v. Palm, 113 Ala. 531, 21 South. 315, 59 Am. St. Rep. 141: Jolms v. :\lf Lester. 1.37 Ala. 2S3. 34 South. 174, 97 Am. St. Rep. 27, and note. 'Hun V. Cary. 82 X. Y. fi5. .37 Am. Rep. 54(1. IT. & B. 507. § 1095 EQUITY JUIIISPfiUDEXCK. €32 party to sue for wrongful dealings with that property, yet courts of equity recognize the truth that the stockholders are ultimately the only beneficiaries; that their rights are really, though indirectly, l)rotected by remedies given to the corporation; and that the final object of suits by the corporation is to maintain the interests of the stockholders. While, in general, actions to obtain relief against wrongful dealings with the corporate property by directors and officers must be brought by and in the name of the corporation, ye\ if in any such case the corporation should refuse to bring a suit, the courts have seen that the stockholders would be without any immediate and certain remedy, unless a modification of the general rule was admitted. To that end the following modification of the general rule stated in the last preceding paragraph has been established as firmly and surely as the rule itself. Wherever a cause of action exists primarily in behalf of the corporation against directors, officers, and others, for wrongful dealing with corporate property, or wrongful exercise of corporate franchises, so that the remedy should regularly be obtained through a suit by and in the name of the corporation, and the corporation cither actual] 1/ or virtually refuses to institute or prosecute such a suit, then, in or- der to prevent a failure of justice, an action may be brought and maintained by a stockholder or stockholders, either individually or suing on behalf of themselves and all others similarly situated, against the wrong-doing directors, officers, and other persons: but it is absolutely indispensable that the corporation itself should be joined as a party. — usually as a co-defendant. The rationale of tliis rule should not be misapprehended. The stockholder does not l)i'ing such a suit because his rights have been directly violated, or because the cause of action is his. or because he is en- titled to the relief sought; he is permitted to sue in this manner simply in order to set in motion the judicial machinery of the court. The stockholder, either individually or as the representative of the class, may commence the suit, and may prosecute it to judg- ment; but in every other respect the action is the ordinary one brought by the corporation, it is maintained directly for the benefit of the corporation, and the final relief, when obtained, belongs to the corporation, and not the stockholder-plaintiff. The corpora- tion is, therefore, an indispensably necessary party, not simply on the general principles of equity pleading in order that it may be bound by the decree, but in order that the relief, when granted, may be awarded to it, as a party to the record, by the decree. This view completely an- swers the objections which are sometimes raised in suits of this class, that the plaintiff has no interest in the 633 CORPORATION DIRECTORS. § 1095 subject-matter of the controversy nor in the relief. In fact, the phiintiff has no such direct interest; the defendant corporation alone has any direct interest; the plaintiff is permitted, notwith- standing his want of interest, to maintain the action solely to pre- vent an otherwise complete failure of justice. When may such an action be brought? I have already stated the rule in its most general form, that a stockholder may thus sue whenever the cor- poration either actually or virtually refuses to permit a proceeding by itself. These are two distinct conditions of fact ; and the cir- cumstances must determine whether any particular case belongs to one or the other of the two conditions. In general, a case should come within the first condition; and it should- appear that the board of directors or other managing body has actually re- fused to bring or permit an action in its own name. To this end the plaintiff' should allege an application to the directors or managing body, a reasonable notice, request, or demand, that they would institute proceedings on the part of the corporation against the wrong-doers, and their refusal to do so after such reasonable request or demand. These allegations are material and issuable; if controverted by the defendant, they must be proved. If the proof of them fails, the whole foundation of the plaintiff's action is gone. This condition of fact, however, is not indispensable ; the action may be maintainable without showing any notice, re- quest, or demand to the managing body, or any actual refusal by them to prosecute; in other words, the refusal may be virtual. If the facts as alleged show that the defendants charged with the wrong-doing, or some of them, constitute a majority of the directors or managing body at the time of commencing the suit, or that the directors or a majority thereof are still under the con- trol of the wrong-doing defendants, so that a refusal of the man- aging body, if requested to bring a suit in the name of the cor- poration, may be inferred with reasonable certainty, then an action by a stockholder may be maintained without alleu'ing or proving any notice, request, demand, or express refusal.^ In like manner, if the plaintiff's pleading discloses any other condition of fact which renders it reasonably certain that a suit by the corporation would be impossible, and that a demand therefor would he iiugato- * Sears v. Hotchkiss, 25 Conn. 171. G5 Am. Dee. 557; Hawes v. Oakland, 104 U. S. 450, 26 L. od. 827; Corbus v. Alaska Treadwoll Gold :M. Co., 187 U. S. 4.55, 21 Pup. Ct. 156; Mason v. Harris, L. TJ. 11 Ch. Div. 97, 107. per Jessel, M. R. ; Winobiirirli v. U. S. etc. Co., 173 Mass. GO, 53 N. E. 145, 73 Am. St. Rep. 261. (sufficient demand made) : Ashton v. Dashaway Ass'n, 84 Cal. 61. 22 Pae. 660. -IP, Vno. 1001. 7 L. R. A. 800. (demand unnecosoete, 104 Mo. 315, 337, 15 S. W. 976. *Duniond v. Masree. 4 .Tohns. Ch. 318. 322. § 1120 EQUITY JUKISPKUDENCE. 648 has deserted his wife, or has by his cruelty compelled her to leave him, the court will order her maintenance out of the interest of her fortune, even though, by the marriage settlement, it was payable to him for life.- There is no jurisdiction in courts of equity to compel a husband generally to maintain his wife out of his own property or by his own labor. Such power, if it existed at all, l)elonged to the ecclesiastical courts, or was regulated by statute. § 1120. Alimony. — The subject of maintenance naturally sug- gests that of alimony, although the two have really nothing in common, except their being granted for the benefit of a wife. In its proper and only true sense, "alimony" is not a separate estate, nor is it a provision for maintenance generally, as described in the preceding paragraph. It is an incident of divorce; it is merely a provision for maintenance from day to day, decreed by a com- petent court to a wiie legally separated from her husband, either by a divorce a mensa et thoro or ex vinculis. Under the judicial system originally prevailing in England, it was granted and reg- ulated solely by the ecclesiastical courts, which had exclusive jurisdiction of divorce.^ It is very clear that the original jurisdic- tion of equity did not include the power to decree alimony as an incident of divorce; nor is there any jurisdiction to grant ali- mony to a wife as a provision to be made by her husband for her maintenance, unconnected with proceedings for a divorce.^ The American courts have generally conformed to this view, and have denied the existence of any jurisdiction to award alimony as a provision for the maintenance of a wife by her husband." In sev- eral states, however, such a power has ])een asserted and exercised as belonging to the general jurisdiction of equity.* - Eedes v. Eedes, 1 1 Sim. 5(59. ' In many of the states, jurisdiction over divoree has been given by statute to the courts of equity, and the suit for a divorce is treated as a suit in equity. The jurisdiction to grant alimony as an incident of divorce niaj', perhaps, have been sometimes confounded witli tlie general jurisdiction of equity. This may explain some American decisions concerning alimony cited in a subse- quent note. = Vandergueht v. De Blaquiere, 8 8im. .315, 5 itylne & C. 229. =* Parsons v. -Parsons, 9 N. H. 309, 32 Am. Dec. 302. Mn re Popejoy, 26 Colo. .32, ."d-t Pac. 1083, 77 Ajn. St. T^ep. 222, fat pp. 224- .■)); Kdgerton v. Edgerton, 12 Mont. 122, 29 Pac. 9GG, 33 Am. St. Rep. 557, 16 L. R. A. 94. 019 CONTIJACT.S OF MAUUIKD WOMKN. § 11 v I SECTION III. THE CONTRACTS OF jNIARRIED WOMEN. ANALYSIS. I 1121. The general doctrine. § 1122. Rationale of the doctrine. S 112;!. Extent of tlie liability. S 1124. For what contracts iier separate estate is liable. S 112.5. The same; the American doctrine. S 112G. To what contracts the American doctrine applies. § 1121, The General Doctrine. — At the common law the contracts of married women ar(; al)solutely void. Equity has never attempted to invade this fundamental policy of the law. it has never clothed married women with the capacity to bind themselves personally by contract. Their contracts, as recognized by equity, are only contracts sub modo ; the indebtedness Avhich they create is not a legal indebtedness, but only an equitable liability, enforced in a ]>eculiar manner by courts of equity. After it was settled that a mairied woman might hold property as a separate estate to her own separate use, free from the claims and interest of her husband, for some time the common-law incapacity of contracting was still applied to her. The glaring injustice of this condition soon l)e- came apparent. To permit a wife to hold separate property to her oAvn use. to enjoy its benefits, to deal with it in many respects as though she were a feme sole, and thus to be clothed with n.a ny indicia of complete ownership, but at the same time to withhold from lier creditors all claim against it or against her, Avas in the highest degree inecjuitable. The wife might, by her own act, directly dispose of her separate estate, and for the same reasons she ought to be able to render it liable for her obligations. Infiueneed by these considerations, the courts of equity gradually, by progressive steps, introduced and developed the doctrine, tliat although a married woman can create no personal liability against herself, her separate estate may be liable for her contracts made with reference to it. Tier contracts thus become equitable obliga- tions, and may be enforced in equity against her separate estate. No other doctrine of equity jurisprudence better Illustrates its ■wonderful freedom and power in modifying legal dogmas. Without attempting to trace the progress of the general doctrine through its whole course of development as it is now settled by the English courts, it is correctly formulated as follows: "If a married woman, having separate property, enters into an engagement, wdiich if she § 1123 EQUITY JLKISPKUDENCE. 050' ■was a feme sole would constitute a persoual obligation against hei% and in entering into such engagement she purports to contract, not for her husband | i. e., not on behalf of her husband as his agent], but for herself, and on the credit of her separate estate, and it was so intended by her, and so understood by the person with whom she is contracting, that constitutes an obligation for which the person with whom she contracts has the right to make her separate estate liable."^ § 1122. Rationale of the Doctrine. — It was once supposed that the doctrine was properly explaiiied by regarding the wife's con- tract as in reality the execution of her power of appointment, so that the contract, being an appointment, created an equitable charge or lien in the nature of a disposition upon her separate estate. This theory has been abandoned as utterly untenable.^ The true rationale of the doctrine is, that the liability of a wife's separate property for her engagements is a mere equitable incident of her separate estate, which is itself a creature of equity. In the language of Lord Justice James: "In equity, the liability'- is to have her separate estate taken from her for the benefit of a per- son with whom she has contracted on the faith of it. It is a special equitable remedy, arising out of a special equitable right. '^ In the pointed language of Lord Justice Cotton: "It is not the woman, as a woman, who becomes a debtor, but her engagement has made that particular part of her property which is settled to her separate use a dehtor; and liable to satisfy the engagement." The same theory is more fully expressed in the words of Lord Cot- tenham : "The view taken of the matter by Lord Thurlow In Ilulme V. Tenant is correct. According to that view, the separate property of a married woman being a creature of equity, it fol- lows that if she has a power to deal with it, she has the other power incident to property in general, namely, the power of contracting debts to be paid out of it ; and inasmuch as her creditors have not the means at law of compelling payment of those debts, a court of equity takes upon itself to give effect to them, not as personal liabilities, but by laying hold of the separate property as the only means by which they can be satisfied.^ § 1123. Extent of the Liability. — The restraint upon anticipa- tion, when inserted in the instrument creating the separate estate, applies to the wife's contracts as well as to her alienations. The ':Mrs. Malthewiiian's Case, L. R. 3 Eq. 781, 787 (per Kindersley, V. C). ' Pike V. Fitzgibbon, L. R. 17 Ch. Div. 454, p. 4G1 ; Shattotk v. ^Jliattock, L. R. 2 Eq. 182, per Lord Roniilly, M. R.; .Johnson v. Gallagher, 3 De Gex, F. & J. 49., (at p. 519). ^ Owens V. Dickinson, Craig & P. 48, 54, per Lord Cottenhaiu. 651 COXTltACTS OF MAUKJKD WOMEN. § 1124 separate property, therefore, M'hieli she liolds subject to tlie re- straint upon alienation or anticipation is not liable for any con- tracts or engagements which she can make/ Furthermore, it is now settled that her contracts can only be enforced against the separate estate, free from such restraint, which she held at the time of entering- into the engagement, or so much thereof as re- mains in her ownership) at the time when the judgment is rendered, and not against separate estate which she acquired after the time of making the engagement.- It is also now settled, contrary to the view which formerly prevailed, that when the wife has a life interest only to her own separate use, with power of appoint- ment over the corpus, either by deed or by will, such separate prop- erty is liable for her contracts, as well as when her interest is ab- solute." With regard to the remedy, of course no personal decree ran be made against a married woman.* So far as the separate estate is personalty, its corpus may be reached by the decree, and applied in discharge of the wife's engagement; so far as it is land, the remedy was confined by the earlier cases to the r<;nts and profits, unless the contract enforced be a specialt}^; and this is the ordinary form of the decree in England."' § 1124. For What Contracts her Separate Estate is Liable. — ^Although the fundamental doctrine of liability i, that the contract purported or was intended to be made on the credit of the sep- arate estate, yet this intention need not be expressed in the terms of the contract itself. The rule is firmly settled, and may be re- garded as the peculiar feature of the English law on this subject, which distinguishes it from that prevailing in many of our states, that the intent to contract on the credit of the separate estate is conclusiveh' inferred from the very form and nature of manj' kinds of engagements, including at least all those in the form of Avritten instruments. It is thus settled beyond dispute, by the English decisions, that the wife's separate estate is liable for her contracts under seal ;^ for her bills of exchange and promissory notes;- and for all her written agreements.^ Finally, after some fiuctuation in the decisions, the liability is extended to her ordinary general verb- al engagements and implied promises, if it appear that they were made with reference to and on the faith and credit of her separate Tike V. Fitzoi])l)on. L. K. 17 Ch. Div. 454, 459, 4G2, 463. ■' Crockett v. Doriot, 85 Va. 240, 3 S. E. 128. UJodfrey v. Haiben, L. R. 13 Ch. Div. 216. See ante, § 1106. * Francis v. Wigzell, 1 Madd. 258, 2G4. niulme V. Tenant, 1 Brown Cli. Ifi, per Lord Tluirlow. 'Hulnie V. Tenant. 1 Brown Cli. U). ^Davies v. Jenkins. L. W. r. Cli. Div. 728. 'Murrav v. Barlee, ?, Mylne & K. 209. § 11,26 EQUITY JLIilSPRUDEXCK. G53 property; and whether so made, will be determined by a consider- ation of all the surrounding circumstances.^ § 1125. The American Doctrine. — The general doctrine estab- lished by the English court of chancery, that, the wife's separate estate is liable for her engagements which purport to be with reference to it, and are intended to be made upon its faith and credit, has been accepted in all the American states where the .system of equity jurisprudence prevails. The divergence in many of the states from the conclusions reached by the English courts relates, not to this general doctrine, but to its applications; it is wholly confined to the cjuestion what kinds and forms of contracts do thus purpoi't to be entered into with reference to the separate estate, and in-c intended to be made on its faith and credit? As described in a i)receding paragraph, the equitable jurisdiction in enforcing the contracts of married women has been greatly en- larged by modern legislation in this country. Wherever the stat- utes have declared that the wife's property, real and personal, belonging to her in her own right, and l)y a legal title, shall con- stitute her legal or statutory separate estate, but have not further provided that her contracts shall create personal liabilities against her to be "enforced by ordinarj^ legal actions and judgments, it is settled that her contracts shall be enforced in ec^uity against this legal separate estate in the same manner and subject to the same rules as against an equitable separate estate.^ § 1126. To What Contracts the American Doctrine Applies. — It should be observed that, under the New York tyi>e of legislation concerning express trusts in land, where the express trust which is permitted for the benefit of a wife is created, the beneficiary talvcs no estate, has no power of disposition, and, as a consequence, can not charge her interest by contract, however express. With regard to the ai)plications of the general doctrine thi-re is a great variety of opinion and wide divergence of decision among the American cases. These cases, however, when classified according to broad lines of division, will be found to fall under three general types. Virsl hj])r: This includes a comparatively few states, in which the wife has no poAver of disposition over her separate es- tate, except such as is expressly or by necessity given in the in- strument creating it. Her separate estate is liable for those con- tracts Avhich are made for its benefit, and for those wdiich benefit the wife, if expressly and in terms charged upon it or made upon its ci'cdit, but is not, in general, liable for her contracts of surety- ^ Hodgson V. Williamson. L. R. 15 f'h. Ti'w. S7. 'Yale V. Dederer. IS N. Y. 2P)."i, 72 Am. Dof. fiO?,, 22 X. Y, 450, 78 Am. Dec. 210, OS N. Y. P.2n. and seo post. § 1120. note. G53 CONTRACTS OF MARRIED WOMEN. § ll'iG ship made entirely i'or the benelit of another.' In order, however, that any contract may be thus enforceable, it must be within tlic express or necessarily implied permission of the instrument creat- ing the estate. Second type: In the states belonging to this type, with perhaps a very few exceptions, the English doctrine concern- ing the wife's power of alienation is substantially adopted. The peculiar feature which distinguishes the type is, that the intent to contract upon the faith and credit of the separate estate, and tluis to render it liable, must affirmatively and expressly appear, and will not be implied or presumed from any mere external form of the engagement. The separate property is liable for all con- tracts of the wife made directly for its benefit, for all her contracts made for her own benefit, if expressly and in terms purporting 1o be on its faith and credit, and for her contracts of suretyship for the benefit of another, if the intention to charge the separate ])roperty thereby is clearly and unequivocally expressed.- Tliird type: In the states of this type the conclusions reached b^^ the English courts have been more closely followed. Its distinguishing feature is, that the intent to deal on the credit of the separate estate need not be expressed, but will -be inferred from the nature or form of the contract. The wife's separate estate is liable for all her contracts entered into for its ow^n benefit, and for all her written contracts made for her own benefit, such as her bonds, notes, bills of exchange, and the like, even though no intention to bind it is expressed in their very terms. In many and probabl}^ most of the states belonging to this class, the wife's contracts of suretyship must be expressly charged upon her separate property, in order to bind it, and her general verbal engagements must lilie- wise appear in some affirmative manner to be made on its faith and credit; wath regard to such contracts no intent is generally presumed.^ ... It has been uniformly held that the wife's equitable separate estate, and the equitable rules which govern it, do not come within the purview of the recent legislation con- cerning married women's property, and are not affected by its provisions. These modern statutes giving to the wife a legal sep- arate estate have, in combination wath the equitable doctrine con- cerning married wonien's contracts, created a very anomalous con- dition in the jni'isprudcnce of most of the states, — an extension of ' \\ilhnd Y. Easthan, 15 (-ray, 328. 77 Am. Dec. 366. - If the contract is in writinij. ami is not diiectly for tlie benefit of liie separate estate, the intention to make it liable should appear in the writing itself: Yale v. Dederer, tS X. Y. 265, 72 Am. Dec. 503, 22 N. Y. 450, 456, 78 Am. Dec. 210, 68 N". Y. 329. * Bradford v. Creenwaj^ 17 Ala. 797, 52 Am. Dec. 203. § 112G EQUITY JUI^SPKUDE^'CE. 654: a jurisdiction most distinctively equitable to an ordinary legal ownership of property. When the common-law dogmas were to be invaded, wiien the wife's legal estate and title were to be re- moved from all interest and control of her husband, and she was to be permitted to make contracts based upon its ownership, the better policj'' would have been to abrogate her common-law inca- pacities entirely, and to render her contracts enforceable against her as though she Avere single by legal actions and pecuniary re- coveries of judgment. In a few states the legislatures have carried this legal reform to its logical results, and have thus produced a system which is, in my opinion, consistent with itself, and simple and practical in its operation. . . . 655 LEGACIES. § il/37 CHAPTER THIRD. ESTATES AND INTERESTS ARISING FROM SUCCESSION TO A DECEDENT. SECTION I. LEGACIES. ANALYSIS. § 1127. Jurisdiction of equity. § 1128. The same: where originally exclusive. § 1129. The same: in the United States. §§ 1130-1134. Kinds of legacies. § 1130. Specific legacies. § 1131. Ademption of specific legacies. § 1132. General legacies. § 1133. Demonstrative legacies. § 1134. Annuities. §§ 1135-1143. Abatement of legacies. § 1135. Abatement in general: order of appropriating assets. § 1136. Nature of abatement. § 1137. Abatement of specific legacies. § 1138. Abatement of demonstrative legacies. § 1130. Abatement of general legacies. § 1140. Limitations; intention of testator. § 1141. Exceptions; legacies to near relatives. § 1142. The same; legacy for a valuable consideration. § 1143. Appropriation of a fund. § 1144. Lapsed legacies. § 1145. The same; statutor\' changes. § 1127. Jurisdiction of Equity. — At the comiiion law no action could be maintained to recover a legacy, unless it was a specific legacy of goods, and the executor had assented to it so that the property therein had vested in the legatee.^ The power of the ancient ecclesiastical courts over the subject-matter of succes- sions and administration was also very limited and imperfect, and was at best but a lame jurisdiction.- The court of chancery, therefore, took and exercised a concurrent jurisdiction over lega- cies, as a part of its broader jurisdiction over administrations. This > Decks v. Strutt, 5 Term Rep. 690. * See Pamplin v. Green, 2 Cas. Ch. 95. § 1128 EQUITY JUKISPRUDEKCE. 656 jurisdiction, as well over legacies as administrations, is based upon the trust relation existing between an executor or administrator and the creditors, legatees, and distributees; upon the necessity of a discovery, an accounting or a distribution of assets in order to determine the rights of all interested parties; and upon the fact that the remedies given by all other courts are inadequate, incom- plete, and uncertain. The jurisdiction, originally concurrent, but necessarily exclusive in certain species of legacies, became, and •itill continues to be, practically exclusive in England over the en- tire subject of legacies." § 1128. Where Jurisdiction of Equity was Exclusive. — Over cer- tain species of legacies the jurisdiction of chancery was originally and necessarily exclusive, since the ecclesiastical courts possessed no jurisdiction in such cases. These were legacies charged upon land,^ and legacies given in trust, or which involve the carrying into effect of a trust, either express or arising by operation of law.- In certain other cases the equitable jurisdiction was neces- sai-ily exclusive, because the relief given by the ecclesiastical courts was wholly inadequate to protect the rights of all the parties in- terested in the legacy or in the estate." Among the most important of these cases were the following: Where a discovery of assets- or a final settlement of the whole estate is required;* when a legacy is given to a married woman,^ or is given to an infant,'' and where a general legacy is given payable at a future day, since the court of equity, for purposes of security, can direct the executor to pay the amount into court, or such security to be given as the circum- stances may require;" and finally, when a specific legacy is given to one person for life, and on his death to another person absolutely, since a court of equity can protect the remainderman by requir- ing the life owner to give security where there is waste or danger of waste and consequent loss of the property.^ None of these in- cidents connected Avith a decree for the payment of legacies came within the cognizance of the ecclesiastical courts. ^ Adair v. Shaw, 1 Schoales & L. 243, 2G2, per Lord Redesdale. ' Sherman v. tShermaiij 4 Alien 392. - Anonymous, 1 Atk. 491. " In «ueh cases the court of chancer\' would, as a matter of course, restrain by injunction the proceedings begun in the ecclesiastical courts. VPratt V. >.ortham, 5 Mason 95, 105, Fed. Cas. Xo. 11,37(5. As to discovert, see §§23.5, 236, 346. ^ Because if the husband sues for it in the ecclesiastical court there was no power to compel him to make a settlement, and thus to protect the wife's equity: Anonymous, 1 Atk. 491. "Because the ecclesiastical court could not ])r<)vide for investing, securing, or accumulating the fund: Horrell v. VValdron, 1 Vern. 20. ' See Slanning v. Style. 3 P. ^^ nis. 334. * Foley V. Burnell, 1 Ih: Cli. 274, 279. 657 LEGACIES. § 1130 § 1129. Equitable Jurisdiction in the United States.— Suc-h bein^^ the ori.yinal jiinsdii-lioii as oxercisetl by the En.uli.sli court of chan- cery, it exists to its full extent, unabridged by statutes, in but a few of the states; in very many states it has been largely restricted, in some it has become practically obsolete, and in a few it has been expressly abrogated. . . , The probate courts in this country . . . have generally the power to decree payment of legacies, on the application of individual legatees, during the pendency of an administration, and to call the executor to a final account, and to decree a final settlement and distribution of the estate, and therein to determine and protect the rights of legatees, at least in all ordinary cases. In such proceedings the probate courts fol- low the settled doctrines of equity, and are able to grant some of the remedies originally peculiar to the court of chancery. While the equitable jurisdiction is thus rendered unnecessary under or- dinary circumstances, it nevertheless still exists in all those special cases which are not embraced within the legislation, and in some of the states it remains in its original extent, entirely unabridged. I purpose to add a very bi'ief outline only of the equitable doctrines concerning legacies — doctrines which control the action of probate courts, and which are embodied in the modern statutes upon tiie subject enacted in several of the states. § 1130. Kinds of Legacies — Specific Legacies. — With regard to their intriiisic natui'e and (jualities, legacies are of three kinds: specific, general, and demonstrative. A specific legacy is a beques*" of a specific article of the testator's estate, distinguished from al\ others of the same kind ; as, for example, a particular horse, or piece of plate, or money in a. eei'tain purse or chest, a particular stock in the public funds, a particular bond or othei* instrument for the payment of money.^ Whether a legacy is specific depends wholly upon the language of the will. Unless the language de- sci-ibed points out and identifies the particular thing given as a part of the testator's estate, distinguishing it from all other things of the same kind, then it is not specific. Although the testator may, at the time of executing the will, have an article or ai'ticles of the same kind as that which he purports to give, still, unless his language is sufficient to refer to, designate, and identify the very article itself as forming a pai-t of his estate, which he thereby gives, the legacy is not specific, hut general. Under these circumstances, the word ''my" is often operative in identifying the article.- A n'iflt V. roi-tor, 8 X. Y. 510: Farmiiii v. Ha Robinson v. Gfldard. .3 Macn. &: G. T.^o, 744, 745; Giddings v. Seward, 16 N. Y. 365; Ives v. Canby, 48 Fed. 718. -Giddings v. Seward, 10 N. Y. .365. ' F.mery v. Batchelder, 78 Me. 2,3.3, 3 Atl. 733. ^ Additon V, Smith, S3 :Me. 551, 22 Atl. 470. 661 LEGACIES. ^lin." may, of course, be determined by the testator, and these directions contained in his will are followed in the final settlement and dis- tribution. In the absence of any such directions by the testator, courts of equity have adopted certain fundamental principles, and have established a certain order upon the basis of these principles. by which the rights of all claimants upon the estate, as amonu' themselves, are to be finally settled, and in accordance with whicli the estate is to be applied in the discharge of their claims. These fundamental principles may be stated as follows: Creditors are entitled to be paid in full out of all assets subject to their debts, in preference to all mere volunteers, whether heirs, next of kin. legatees, or devisees.^ In the absence of contrary directions in the will, the personalty is the primary fund for the payment of debts and legacies. Property undisposed of by the will is primarily liable in preference to that which is expressly bequeathed or devised. By applying these principles, in combination with the general classes of directions which the testator mai/ prescribe, the order has been established as given in the foot-note.- ' In the states in this countiy. and at present in England, the land of the deceased testator or intestate is an asset liable for his debts. - This order has been motlified to a greater or less e.xtent by the statutes of various states. It forms, however, the basis of the legislation, and its funda- mental principles have been siihstantiaUy followed in the statutory system of most of the states which have legislated on the subject. In a few — as, for example, in California — all discrimination between real and personal pro])- erty has been practically abrogated. So far as tlie statutes have not inter- fered, the principles and order established by tlie court of chancery have been followed by the American courts. Tlie true meaning of the doctrine involved in this order should not be misapprehended. It furnishes a rule by which the rights of claimants and of those entitled to the different classes of funds, as a)iioiig tJieinselves, are to be adjusted in the final apportionment and dis- tribution of the whole estate. It does not necessarily and imder all circum- stances compel creditors or legatees to resort to the various classes of funds in the order laid down for the satisfaction of their demands. On the con- trary, so far as the rights of creditors are alone concerned, nil the classes of funds are in general liable; and so far as the rights of general legatees are alone concerned, several of the classes are certainly liable. The doctrine simply means that whenever subsequent classes of funds (e. g., the fourth or fifth) have been appropriated for the payment of debts or legacies which are primarily chargeable upon prior classes (e. g., the first, second, or tliird), so that the persons properly entitled to those subsequent classes would be dis- appointed, then such disa])pointed claimants may have the assets composing those prior classes of funds marshaled in their own favor — in other words, they then become entitled to resort to those prior classes (first, second, or third, as the case may be) for the satisfaction of their own demands which were otherwise primarily chargeable u])on the subsequent classes (the foudli or fifth). In this manner the doctrine secures, as far as possible, the crpiitahlf rights of all classes of claimants upon the estate, and an equi- table appropriation of all the classes of fun!See ante, § 411. G6d LEGACIES. § 1141 § 1137. Abatement of Specific Legacies. — Among legacies, the specific constitute the preferred class. Specific legacies do not abate in common with general legacies; they only abate if the de- ficiency of assets is so great as to render a resort to them neces- sary when the fund representing the general legacies is exhausted. Whenever it becomes necessary to resort to the class composed of the specific legacies and devises, all the legacies and devises in that class will abate pro rata. Specific legacies and devises stand upon the same footing, are subject to the same liability, are abated to- getlier under the same circumstances, and contribute ratably lor the payment of debts and charges.^ § 1138. Abatement of Demonstrative Legacies. — If the fund out of which they are primarily made payable exists as a part of the testator's estate at his death, demonstrative legacies are governed by the same rules as .specific legacies, and abate only with them nifabli/; but if the fund does not so exist, they become, in effect, general legacies, and must contribute pro rata with all the other general legacies.^ § 1139. Abatement of General Legacies. — The rule is settled, that, with one or two particular exceptions, and in the absence of a contrary intention expressed by the testator, all general legacies are liable to be abated to the extent of complete obliteration, in order to pay the debts in full, before resort is had to the specific legacies and devises, if the deficiency of assets is so great as to re- quire such an entire appropriation of the funds otherwise appli- cable to the payment of these legacies. When the deficiency is only partial, so that a complete abatement is unnecessary, all the gen- eral legacies must contribute ratably; in other Avords, they are all subject to a pro rata abatement. General annuities stand upon the same footing, and abate pari passu with other general legacies.^ § 1140. Limitations — Intention of the Testator. — This doctrine, although nearly universal, may still be overcome by a contrary in- tention of the testator plainly expressed in the will. If a testator uses language sufficiently showing an intention that a certain leg- acy or legacies otherwise general shall have preference, and be paid in full before the others, and not abate pro rata with them, such intention will be carried out, and the legacy or legacies will be preferred, although general.^ . . . § 1141. Exceptions — Legacies to Near Relatives. — It is the set- ' Powell V. Riley, L. R. 12 Eq. 175. ' Mullins V. fSniith, 1 Drew. & S. 204, 210. 'Titus's Adm'r v. Titus, 26 N. J. Eq. 111. 'Appeal of Trustees Univ. I'a. 07 Pa. fcst. 1S7; Additon v. Smitli, S3 Me. 551, 22 Atl. 470. ^ 11-14 EQUITY jrKI.SPKUDEXCi:. f)G4 tied rule of equity, iudependent of statutes, that among g-eneral legacies there is no precedence, no exemption from pro rata or com- plete abatement, in favor of legacies to a wife, child, or other near relative of the testator.^ If, however, the testator siiows an intent to give such legacies the preference, his intention will I)e followed; and a court of equity would easily discover such in- tention in favor of a widoAv, child, or descendant.- This general rule has been changed in several states by statutes which give legacies to near family relatives the preference over all other gen- eral legacies, and perhaps over those which are special or demon- strative. § 1142. The Same. Legacy for a Valuable Consideration. — One exception to the general rule of abatement has always been admitted by courts of equity. A general legacy given for a val- uable consideration — as, for example, to a widow in lieu and satis- faction of her doAver, or to a creditor in pa^^ment or discharge of a debt — has priority, and does not abate with the other legacies, provided the dower right or the debt still exists at the testator's death. 1 § 1144. Lapsed Legacies. — When the legatee is dead at the time of making the will, or dies afterwards during the testator's lifetime, by the common-law rule the legacy to him is said "to lapse": the gift to him Avholly fails; it does not pass to his personal representa- tives, next of kin, or heirs, nor has he the power to disspose of it by his own will. In short, the legacy becomes entirely nugatory, The same general rule of the common law applies to a devise of any real estate.^ Where a gift is made to a number of persf)ns r/.s a class, such class to be ascertained and fixed as it exists at the death of the testator or at any other specified time, the predecease of any member of the class will not occasion a lapse of his share: the class as it exists at the time designated will take the whole property.- Whenever a legacy lapses, the specific property be- queathed, if it was specific, or the amount of assets which would be re(juisite for its payment if it was general, falls into the residue, and passes, by the residuary clause, if there be one: but if there be no residuary clause, then as to such property the testator would in fact die intestate: the amount would be actually undisposed of by will. Where a devise lapsed, by the common-law rulo the land given by it would not fall into any residuary clause of the testator's 'Appeal of Trustees Univ. Pa. 07 Pa. St. 187. -Lewin v. Lewin. 2 Ves. Sr. 41.5. ' Brown v. Bro\\n. 79 Va. fi48. * Applet on V. Rowley. L. R. 8 Eq. 1^0. 'Sluittleworth v. Greaves, 4 :Mylne & C. 35. 665 DONATIONS CACSA MOKTIS. § 1116 real estate, but would descend to his heir or heirs at law. This latter rule of the common laAV has been altered in England and generally in the American states by statute.'' § 1145. The Same. Statutory Changes. — The foregoing rules of the common law were generally adopted in this country, and still form a part of our jurisprudence, except in the particular cases or under the particular circumstances where they have been al- tered by statute. Such modifying legislation, within certain well- defined limits, has been extensively enacted. One common type seems to have been followed. In England the modification is con- fined to a legacy or devise to a child or other descendant of the testator who shall predecease leaving issue living at the testator's death. The gift in such case shall not lapse. ^ American statutes have sometimes made the alteration of the old rule a little broadei' in its operation, but still have confined it to gifts bestowed upon near family relatives of the testator. Under the language of the English statute, it is held that the issue are not substituted in place of their deceased parent, but tlje legacy or devise actually vests in the original legatee or devisee to whom the testator gave it, so that it will pass by a will made by such legatee or devisee who dies be- fore the original testator.'- It woidd seem, however, that the lan- guage of some of the American statutes does not admit such an interpretation. SECTION II. DONATIONS CAUSA MORTIS, ANALYSIS. § 1146. General nature. § 1147. Is not testamentary. § 1148. The subject-matter of a valid gift. § 1149. Delivery. § 11-50. Revocation. § 1151. Equitable jurisdiction. §1146. General Nature. — A doiiMtion cansa mortis is a gift ab- ^ 1 Vict., c. 26, see. 25. A lapsed devise is made (o fall into the residue like a lapsed legacy. The reason of the common-law rule was found in tbo doctrine that a will of land, unlike that of personal property, speaks as from tbo date of its execution, and not from the testator's death. This distinction lias been generally abrogated by statute, so that in England and in most of our states wills of real and of personal property alike speak as at the time of the testator's death. ' 1 Vict., e. 26, sec. 3.3. ' Winter v. Winter, 5 Hare 306. § 1147 EQUITY JURISPUUDEXCE. GG6 solute in form, made by the donor in anticipation of his speedy death, and intended to take effect and operate as a transfer of the ti1le upon, and only upon, the happening of the donor's death. Between the time when the gift is made and the article donated is delivered, and the time when the donor dies, the donation is wholly inchoate and conditional; the property remains in the donor, await- ing the time of his death, and passes to the donee when the death, ill anticipation of which the gift was made, happens, unless the do- nation has in the meantime been revoked by the donor; the donee thus becomes a trustee for the donor, with respect to the article delivered into his possession, until the gift is made perfect by the donor's death. Tlie gift must be absolute, with the exception of tlie condition inherent in its nature depending upon the donor's death, as above described, and a delivery of the article donated is a necessary element ; but it is subject to revocation by the act of the donor prior to death, and is completely revoked by the donor's recovery from the sickness or escape from the danger in view of which it was made.^ Such a donation may be made by a donor who anticipates his speedy death because he is suffering at the time lUider an attack of severe illness wdiich he supposes to be his last, or because he is exposed, or expects soon to be exposed, to some great and unusual peril of his life; as by a soldier soon before enter- ing into battle, or by a person innnediately before undergoing a dangerous surgical operation. If a gift is actually made by the donor during his last sickness, or luider any other circumstances A\ hich Avould naturally impress him with an expectation of speedy death, it will be presumed to be a donation causa mortis, although the donor does not, in express terms, declare it to be such.- Al- though courts do not lean against gifts causa mortis, yet the evi- dence to establish them should be clear and unequivocal, and will be closely scrutinized. The burden of proof lies on the donee.' § 1147. Is not Testamentary. — A gift causa mortis is not a tes- ictneniary act; if it beconu's absolute, the title of the donee is de- rived directly from the donor in his lifetinu\ and not from or through his executors or administrators.^ For this reason, if a person intends to make a tesiamentary gift, which for any reason 'Ridden v. Thrall, 125 N. Y. 572, 20 X. E. 027, 21 Am. St. Rep. 758, II L. R. A. 084; Johnson v. C'olley, 101 Va. 414, 44 S. E. 721, 99 Am. St. Rep. 884, and note; Thomas's Adm'r v. Lewis, 89 Va. 1, 15 S. E. 389, 37 Am. St. Rep. 848, 18 L. R. A. 170; Leyson v. Davis, 17 Mont. 220, 42 Pac. 775, 31 L. R. A. 429; Staniland v. VVillott, 3 Macn. & C. GG4, 674-077, 080. 2 Gardner v. Parker, 3 Madd. 184, 185. ' Smith V. Smith's Adm'r, 92 Va. 090, 24 S. E. 2S0. M<:mery v. Clough. 03 N. H. 552, 50 Am. Rep. 543, 4 Atl. 796. 667 DONATION'S CAUSA iMORTIS. § i l-^^"^ is iueffectual, it CMiinot be supported as a donation causa mortis;" nor can an imperfeet gift inter vivos be sustained as a valid dona- tion causa mortis.^ It partakes, however, so much of the nature of a testamentary bequest that it is liable for the debts of the testator in case of a deficiency of assets.* A valid gift nuiy be nuide to any person, to the wife of the donor,^ or to one standing in fiduciary or confidential relations to him,** as Avell as to a!! others. § 1148. The Subject-matter of a Valid Gift.— All kinds of per- sonal property, using the word in its broad, mercantile sense, as equivalent to assets, which are capable of manual delivery, and of which the title, either legal or equitable, can be transferred by d(^- livery, may be the subject-matter of a valid donation causa ^mortis. That all actual chattels, including monej^, either coin or bank notes, may be donated, has never been questioned. Whatever doubt may have once been entertained, the rule is now well established that all things in action which consist of the promises or undertakings of third persons, not the donor himself, of which the legal or equit- able title can pass by delivery, may be the subjects of a valid gift, including promissory notes, bills of exchange, checks, bonds, mort- c'ages. savings-bank pass-books, certificates of deposit, policies of insurance, and the like; and it is settled by the recent cases that a valid donation of negotiable instruments may thus be made with- out indorsement.^ Debts due from the donee himself may be do- nated, either by giving back to him the written evidence of debt, or by canceling or destroying the same, or by delivering a receipt.- Things in action, on the other hand, in which the donor himself is the debtor party, cannot be the subject-matter of a valid gift. The reason is, that, whatever be their form, these gifts would = Basket v. Hassell, 107 U. fS. G02, 2 Sup. Ct. 415, 27 L. ed. 500. 'Edwards v. Jones, 1 Mylne & C. 226, Ames Trusts 140. * Borneinan v. Sidlinger, 15 Me. 429, 33 Am. Dee. 020. *Boutts V. Ellis, 4 De Gex, M. & G. 249, "In such ease the evidence must be most unequivocal: Thompson v. IlefTcrnan, 4 Dm. & War. 285 (to donor's spiritual adviser). •Promissory notes of third person: Grover v. Grover, 24 TMok. 201, 35 Am. Dec. 319, Ames Trusts 159. Savings-bank pass books: Ridden v. Thrall, 125 N. Y. 572, 26 N. E. 627, 21 Am. 8t. Kep. 758, 11 L. R. A. 684; but not the pass-book of an ordinary bank of deposit; Jones v. Weakley. 99 Ala. 441, 12 South. 420, 42 Am. St. Rep. 84, 19 L. R. A. 700. Policy of insurance: Williams v. Guile, 117 N. Y. 343, 22 N. E. 1071, 6 L. R. A. 360. Under the law of this country, with respect to the title of the assignee before transfer is made on the com])any's books. Ihere seems to be no reason aa'Iiv a certificate of stock may not be the subject of a valid gift — certainly if it has been indorsed in blaid<: but in my opinion such indorsement is not necessary. See Leyson v. Davis, 17 Mont. 220, 42 Pac. 775, 31 L. R. A. 429, where it is held tliat a delivery without indorsement is valid. = Moore v. Darton, 4 De Gex & S. 517, Ames Trusts 39. § nSO EQUITY JURISPRrDEXCE. 668 aiiKMint to nothing more than the donor's own naked executory iiroinlse to pay at some further day, without any consideration to support it; and such a voluntary promise cannot be enforced against the donor nor against his executors or administrators.^ § 1149. Delivery. — It is essential to the validity of a donation that the thing given be delivered to the donee or to his use. With- out a delivery the transaction would only amount to a promise to gi\e, which, being without consideration, would be a nullity. Tlie intention to give must be accompanied by a delivery, and the de- livery must be made with an intention to give. The practical (juestion therefore is, What is a sufficient delivery?^ The delivery may be made directly to the donee, or to an agent or trustee on his behalf, but not to an agent for the donor. It may be actual — a manual possession of the article itself by the donee or his agent — or constructive. If constructive, it must be more than any mere words, and more than any mere si/niholic act. A constructive delivery must be something which completely terminates the do- nor's custody and control of the article donated, and which places ir ^\ilolly under the donee's power, and enables him without further act on the donor's part to reduce it to his own manual possession. Ai! the cases which hold a constructive delivery to be good, what- ever be their special circumstances, will be found to conform to this {'literion : that the donor parts with all control and power of ex- ei'cising dominion, Avhile the donee obtains the exclusive power of talking physical possession and custody of the article, so that it is in fact placed under his sole dominion.- As a delivery is necessary, it follows, as a further requisite to a valid donation, that the donee must accept it. Such acceptance, however, will be presumed when the gift is for his advantage, in the absence of all contrary evidence. § 1150. Revocation. — The peculiar element of the donation causa mortis, which distinguishes it from the one inter vivos, is its rev- => Harris v. Glark. 3 X. Y. 93, 110, 51 Am. Dec. 352. ' Delivery of a savings-bank pass-book without any written assignment is usually held sufficient: Pierce v. Boston Savings Bank, 129 Mass. 425, 37 Am. Rep. 371. Previous and continuing jjossession of such a book by tlie donee, it is said, does not dispense with the necessity of actual delivery: Drew V. Hagerty, 81 Me. 231, 17 Atl. 63, 10 Am. St. Rep. 255, 3 L. R. A. 230. De- livery of the pass-book of an ordinary bank of deposit is not sufficient: Jones V. Weakley, 99 Ala. 441, 12 South. 420, 42 Am. St. Rep. 84, 19 L. R. A. 700. -The leading case is Ward v. Turner, 2 Ves. Sr. 431, 1 Lead. Cas. Eq. 1205. Deliveiy to an agent or trustee on behalf of the donee: Johnson v. rolley. 101 Va. 414, 99 Am. St. Rep. 884, 44 S. E. 721. As to constructive delivery by delivery of the key of a tnmk or other locked receptacle, compare Thomas's Adm'r v. Lewis, SO Va. 1, 15 S. E. 389, 37 Am. St. Rep. 848, 18 L. R. A. 170, with Keepers v. Fidelity Title, etc., Co., 56 N. J. Law 302, 28 Atl. 585, 44 Am. St. Rep. 397, 23 L. R. A. 1S4. 669 ADMIXISTRATIOX OF ESTATES. § 1153 ocable nature. Although it be absolute in its form, and althouiili Ihc thing- must be delivered to the donee, yet the transaction is inchoate, and the property remains in the donor until his death He may, therefore, at any time prior to his death, revoke and aTi- nul the gift by language sufficiently indicating such intent, U' the donee did not, therefore, voluntarily surrender up possession of the thing, he would retain it as a trustee for the donor's execu- tors or administrators, who could recover the same, or its value. The donor's recovery from his sickness, or his escape from the anticipated peril with his life, also operates as a revocation, and the donee would then hold the article as a trustee for the donor.' When a gift causa mortis is made during sickness, it is essential, in order to perfect it and prevent a revocation, that the donor should die of the very same sickness from which he is then suffer- ing, and that there should be no intervening recovery between that illness and his final death; and it seems that the donee must af- firmatively show the existence of all these facts.- . . . SECTION III. ADMIXISTRATiOX OF ESTATES. AN.\LYSIS. § 1152. Equitable jurisdiction in the United States. § 115.3. The same; fundamental principle; Rosenberg v. Frank. § 1154. The jurisdiction as administered in the several states; general resume — The states alphabetically arranged in foot-note. §1152. Equitable Jurisdiction in the United States.^ — § 1153. The Same. The Fundamental Principle. — One fumhi- mental principle should be constantly kept in mind; it underlies ail particular rules, and furnishes the solution for most of the spe- cial questions which can arise. In all those states which havp adopted the entire system of equity jurisprudence, whatever be the legislation concerning the powers and functions of the probate courts, and whatever be the nature and extent of the subjects com- mitted to their cognizance, the original eq'uitable jurisdiction ovet administrations does and must still exist, except so far and willi ' Stanilaiid v. Willott, 3 Macn. & G. 664. - But it is held that he need not die of the same disease of which he Avas apprehensive; as where a gift was made in anticipation of a surgical opera- tion, which was sxiccessful. but before the donor left the hospital he died of heart disease, from which he was also sutfcring at the time of the gift: Ridden T. Thrall. 125 X. Y. 572. 26 N. l-J, 627, 21 Am. St. Rep. 758, 11 L. R. A. 684. »See ante, S§ 1127, 1128- § 115-1: EQUITY JUIUSPHUDEXCE. ImO respect to such particulars as it has been abrogated by express prohibitory, negative language of the statutes, or by necessary im- plication from affirmative language conferring exclusive powers upon the probate tribunals. This equitable jurisdiction may be dormant, but, except so far as thus destroyed by statute, it must continue to exist, concurrent with that held by the courts of pro- bate, ready to be exercised whenever occasion may require or jimder it expedient.^ This general principle, so familiar, so funda- mental, running through all branches of the equitable jurisdiction, but so often lost sight of by American courts in dealing with the jurisdiction as applied to administrations, was admirably stated by one of the al)lest of American judges: "There is nothing in the nature of jurisdiction, as applied to courts, which renders it exclusive. It is a matter of common experience that two or more courts may have concurrent powers over the same parties and the same subject-matter. Jurisdiction is not a right or privilege be- longing to the judge, but an authority or power to do justice in a given ease, when it is brought before him. There is, I think, no instance in the whole history of the law where the mere grant of jni-isdiction to a i)articular court, without any words of exclu- sion, has been held to oust any other court of the powers which it before possessed. Creating a new forum with concurrent jurisdic- tion may have the effect of Avithdrawing from the courts which l)efore existed a portion of the causes which would otherwise have been brought before them; but it cannot affect the power of the old courts to administer justice when it is demanded at their hands. "- § 1154. The Jurisdiction as Administered in the Several States. — The states nia}^ be roiujhhj giouped into three classes, although there is still a considerable Jiversity among the individuals com- posing each class. In the states of the first class, the original equi- table jurisdiction over administrations remains unabridged by the statutes, concurrent witli that possessed by the probate courts. In many of them a suit for the administration, settlement, and dis- tribution of an estate may be brought, as a matter of course, in a court of ecjuity in the first instance, instead of in the court of })i'o])ate. In most, the general principle regulating the exercise of all concurrent jurisdiction prevails, that when either court has assumed jurisdiction of a particular case, the other tribunal will not ordinarily interfere. These states are Alabama, Illinois, Iowa, Kentucky, ^Maryland, Mississippi, New Jersey, North Carolina, Ehode Island, Tennessee (in certain special cases), Virginia, Dis- * Rosenberg v. Fi;ink, 58 Cal. 387. ^Delafield v. State of Illinois, 2 Hill, 159, 1G4, per Bronson, J. C?! ADMiMfeTKATLON OF KISTATKS. § 1154 triet of Columbia, and the United States courts. In the states of the second class, the jurisdiction of the probate courts over every- tliing pertaining to the reouhu' administration and settleinent of decedents' estates is virtually exclusive. The equitable jurisdic- tion over the subject is neitlier concurrent nor auxiliary and cor- rective. It exists only in matters which lie outside of the regular course of administration and settlement, Avhich are of purely e(iui- table cognizance, and which do not come within the scope of the l)robate jurisdiction. These states are Connecticut, Indiana, Maine, IMassachusetts, Michigan, Nebraska, Nevada, New Hamp- shire, Oregon and Pennsylvania. In the states of the third class, the equitable jurisdiction is not concurrent, but is sinq^ly auxiliary or ancillary and corrective. The probate court takes cognizance originally of all administrations, and has powers sufficient for all ordinary purposes. Equity interposes only in special or extraordin- ary eases, which have either been wholly omitted from the statu- tory grant of probate jurisdiction, or for which its methods and reliefs are imperfect and inadequate, or where its proceedings have miscarried and require correction. This class includes Ar- kansas, California, Georgia, Kansas, Missouri, New York, Ohio, South Carolina, Tennessee, Texas, Vermont and Wisconsin. Among the particular instances in which it has been held b}^ courts of states composing the third class, that equity has jurisdiction of matters belonging to administrations, the following are some of tlie most important, although it must not be understood that such cases have arisen and such decisions been made in all of these states. If a court of equity in those states where its jurisdiction is merely auxiliary and corrective can take cognizance of such special circumstances, then a fortiori a court of equity may do so in those states where its original jurisdiction is preserved concur- rent with that of the probate tribunals. In states of the second ciass, however, the probate court would furnish the onl}' relief iTi all these cases. Where an executor or administrator has dietl v."ithout rendering a final account, equit.y has jurisdiction of a suit to compel his personal representatives to account at the instance of an administrator de bonis non or other party interested in the original estate, even, as some cases hold, Avhere there is a surviv- ing executor or administrator, and the decree so rendered has been held to be binding upon the sureties of the deceased executor or ad- ministrator. This particular condition of fact seems to have Ix'cti emitted from the statutory jurisdiction of the probate coui'ts in several states.^ When a settlement purporting to be final has bcMMi decreed in the i)r()l)ate court, a jierson interested in the estate, who H'haiiuptle v. Ortct, (JO t'al. -liH ; ]iii-li v. Liiulsoy, 44 Ciil. 121. § 1151 EC^UITY JUPtlSPKUDEXCE. 673 was not a party to such proceedini'obate court may have ample power to settle his estate, yet the auxiliary jurisdiction of equity still remains, and will be gen- ei'ally exercised in states of the first and third classes, and prob- iibly in many of the second, by means of a suit for an accounting and settlement of the partnership affairs, either brought by the representatives of the deceased partner against the survivors, or by the survivors against snch representatives.^" In all the states of the first and third classes, and in a great majority it seems of those belonging to the second, equity retains its jurisdiction of suits for the foreclosure of mortgages upon the lands of deceased mortgagors or other deceased owners of land "encumbered by mort- gage ;^^ but in a very few of the states forming the second class, it appears that the mortgage must be enforced, like any other demand against the estate of the deceased mortgagor, in the reg- ular course of administration pending before the probate court. ^- Finally, throughout all the states, the original jurisdiction of equity over trusts remains unabridged and virtually unaft'ected by the jurisdiction given to probate courts. It is exercised in enforcing the performance of trusts and in controlling the conduct of trustees as well when trusts of real or of personal property are created by will as by deed. The equitable jurisdiction concerning the en- forcement of testamentary trusts is universally regarded as en- tirely separate and distinct from the jurisdiction over adminis- trations. ^Cameron v. Cameron, 82 Ala. 3P2, 3 South. 148; Patterson v. Allen. 50 Tev. 2.3. »Long V. Mitchell, 63 Ga. 709. "McDonald v. Alten. 1 Ohio St. 203. " Griggs V. Clark, 23 Cal. 427. "Meyers v. Farquharson. 40 Cal. inO; Willis v. Farley, 24 Cal. 494, 500. "^Cannon v. McDaniel, 46 Tex. 303. 43 § 115G EQUITY JUIUSPKUDENCE. 674 SECTION IV. CONSTRUCTION AND ENF0RCE:\IENT OF WILLS. AXALYSLS. § 1155. Origin of tlie jurisdiction. § list). Extent of the jvirisdiction : a branch of tliat over trusts, § 1157. The same; a broader jurisdiction in some states. § 1158. Suit to establish a \vill. § 1155. Origin of This Jurisdiction. — Since in England the court of chancery possesses and exercises a full jurisdiction over the ad- ministration and settlement of decedents' estates, whether the de- ceased died testate or intestate, it has never been doubted that equity has there the power, as an incident of this jurisdiction, to construe and enforce wills of personal property. Under its gen- eral jurisdiction over trusts, a court of equity has also the power to construe and enforce wills of real as Avell as of personal prop- erty, so far as they create, or their dispositions involve the crea- tion of, trusts. So far as a will of real property bequeaths purely legal estates, and the devisees therein obtain purely legal titles to the land given, the enforcement thereof belongs to the courts of law by means of the action of ejectment ; the courts of law have full power to cons^.riie and interpret the instrument and to determine the rights of the devisees; there is no necessity, and therefore no power, of resorting to a court of equity, in order to obtain a construction of such wills. The same rules Avould be recognized as regulating the action of the courts in all of the states of this country which have preserved the original juris- diction of equity over administrations, either as exclusive or as coneurrent with that given to the courts of probate. In the great niajority of the states, as has been shown, this original jurisdiction of equity over administrations has either been completely abro- gated, or has been so curtailed and restricted that it exists merely as auxiliary to and corrective of the prin(*ipal jurisdiction held by the probate tribunals. Throughout the American states there has necessarily arisen, as a supplement to the ordinary functions of the pi'obate courts, and for the purpose of supplying the defects in their methods and remedies, a special jurisdiction of equity "for the construction of wills," which it is the object of the l)i,esent section to describe. 5^ 1156. Extent of the Jurisdiction — A Branch of That over Trusts. — Although there is not an entire uniformity in the de- cisions by courts of different states npoii this particular subject, 675 COXSTIM'CTIOX AND EX FOHCKMENT OF AVILLS. § 1157 y(4 the doctrine wliieli seems to be both in harmony with principle and sustained by the weight of authority is, that the special equita- ble jurisdiction to construe wills is simply an incident of the gener- al jurisdiction over trusts; that a court of equity will never enter- tain a suit brought solely for the purpose of interpreting the pro- visions of a will without any further relief, and will never exercise a power to interpret a will which only deals with and disposes of purely legal estates or interests, and which makes no attemi)t to create any trust relations with respect to the property donated.* In the language of recent and well-considered cases, "The rule is, that to put a court of e(juity in motion, there must be an actual litigation in respect to matters which are the proper subjects of the jurisdiction of that court as distinguished from a court of law. It is by reason of the jurisdiction of courts of chancery over trusts that coiu'ts having equitable powers, as an incident oP that jurisdiction, take cognizance of and pass upon the interpre- tation of wills. They do not take jurisdiction of actions brought solely for the construction of instruments of that character, noi- when only legal rights are in controversy. It is when the court is moved on behalf of an executor, trustee, or cestui que trust, and to insure a correct administration of the power conferred by a will, that jurisdiction is had to give a construction to a doubtful or disputed clause in a will. The jurisdiction is incidental to that over trusts."- Even by courts which maintain this restricted doc- trine, it has been held that the jurisdiction extends to the con- struction of a doubtful will of personal property at the suit of the executor or of a legatee, although the instrument creates no express trust, on account of the implied trust relation always ex- isting between the executor and the legatees.^ In accordance with this doctrine, which regards a trust express or implied as essential to the jurisdiction, it necessarily follows that the suit can only bo maintained by some party fJirerfJi/ interested in the trust under the will: that is, by an executor or a trustee, or by a cestui que trust or a legatee: it cannot be maintained by an heir at law, or a devisee of a mere legal title, and much less by a creditor. § 1157. The Same. A Broader Jurisdiction in Some States. — It cannot be denied that there are decisions by able courts which take another and less restricted view of the jurisdiction. According to the doctrine of these cases, the jurisdiction to construe wills is not necessarily connected with the general jurisdiction over ' Simmons v. Hendricks, 8 Ivcd. Eq. 84. 85. 80. ">.-> Am. Doc. 430. -Chipninn v. ]\fontoomory. G?, N. Y. 221, 230, per Allen, J.; Bailey v. Brio^irfi, 56 N. Y. 407, per Fnlucr, .?. 3 Bowers v. Smitli, 10 Pai-je. 103. § 1157 EQUITY JLfRlSPRUDEN'CE. GTG trusts ; the presence of a trust express or implied is not made a criterion of its existence nor of its proper exercise ; it is regarded as arising- wholly from the complicated character of provisions in a will, from the difficulty of understanding their meaning, or the doubt and uncertainty as to the rights and interests of the parties claiming under them. In short, the jurisdiction to construe a will exists and is exercised whenever its terms are really difficult or doubtful, or their validity is contested, without reference to the presence or absence of any trust. ^ It is well settled that a court will never entertain a suit to give a construction or declare the rights of parties upon a state of facts which has not yet arisen, nor upon a matter which is future, contingent, and uncertain ;- nor upon a matter which is wholly past, as upon the past conduct of the executor.^ The jurisdiction will not, it seems, be extended so as to permit an administrator to obtain the direction of a court of equity with regard to the proper discharge of his duties.* 'Rosenberg- v. Frank, 58 Cal. 387. 'Minot V. Taylor, 129 Mass. 160. ^Sohier v. Burr, 127 Mass. 22L ^Clay V. Gurley, 62 Ala. 14, 677 coxvEKaioN of property. § 1159 CHAPTER FOURTH. EQUITABLE ESTATES ARISING FROM CONVERSION. SECTION I. THE CONVERSION OF REAL ESTATE INTO PERSONAL, AND OF PERSONAL ESTATE INTO REAL. ANALYSIS. § 1150. Definition and general nature. § 1160. 1. \A'hat words are sufficient to work a conversion. § 1161. The same; under a contract of sale. § 11G2. 11. Time from which the conversion takes effect. § 1163. The same; in contracts of sale with option. § 1164. 111. Effects of a conversion; land directed or agreed to be sold. § 1165. The same; money directed or agreed to be laid out in land. § 1166. Limitations on these effects. § 1167. Conversion by paramount authority; coinpulsory sale of land under statute: sale by order of court. § lies. Conversion as between life tenant and remainderman. § 1159. Definition and General Nature. — The fundamental prin- eipal that equity reuard.s that as done which ona^ht to be done, which underlies the doctrine of equitable conversion, and of which it is the most remarkable illustration, has been fully discussed and explained in a former volume.^ Conversion has been briefly and accurately defined as "that change in the nature of property by which, for certain purposes, real estate is considered as per- sonal, and personal estate as real, and transmissible as such."- No express declaration in the instrument is needed that land shall be treated as money althouGh not sold, or that money shall be deemed land although not actually laid out in the purchase of land. The only essential requisite is an absolute expression of an inten- tion that the lanfl f<]inll be sold and turned into money, or that the ^See ante, §§ 364-371. -See the more full definition given by Sir Thomas Sewell, ^L R., in Fletcher v. .Ashburner, 1 BrowTi Ch. 497, 1 Scott 606. See, also, Lorrillard v. Coster, 5 Paige 172, 218, Chancellor Walworth; Green v. Smith, 1 Atk. 572, 1 Ames Eq. Jur. 193, 1 Scott 313; Prentice v. Janssen, 79 N. Y. 478, 1 Scott 639, H. & B. 163; Moncrief v. Ross, 50 N. Y. 431, 3 Keener 960; Delaney V. :McCormack, 88 N. Y. 174, H,. & B. 407. § 1159 EQUITY JUKISPllUDENCE, 678 money shall be expended in the purchase of land. If this intention is sufficiently expressed, the circuraslance that the land has not yet been sold and turned into money, or that the money has not yet been laid out in land, is the very condition of fact in which the doctrine of conversion comes into play, to which the maxim. Equity regards that as done which ought to be done, applies.-" The true test in all such cases is a simple one: Has the will or deed creating the trust absolutely directed, or has the contract stii)ulated, that the real estate be turned into personal or the per- sonal estate be turned into real? As this doctrine of conversion is wholly a creation of equity jurisprudence, the estates or inter- ests which result from it are purely equitable, and of equitable cognizance alone. Equity has exclusive jurisdiction of suits to maintain and protect such interests, except where, in this country, the doctrine, as it effects the devolution of property, is recognized and followed by the probate courts in the settlement and distri- Inition of decedents' estates. The practical questions growing out of the operation of the doctrine are generally connected with the devolution — inheritance or succession — of the property converted upon the death of the person for whose benefit it was originally given, or with his transfer of it by assignment, or with the claims to it of thiixl parties.* ^ Lecliniere v. Ivirl of Carlisle, 3 P. Wms. 211, 215; tScudaniore v. Scudamore, I'rcc. C'h. 543, 1 Scott 315, 596, 3 Keener 947. ' For illustralioii. if money had been given by ^\ ill or deed to trustees upon trust to purchase land therewith and convey same to A in fee, and A died before the trustees had made the purchase, and while the money was in their hanfls. the inipoitant question as to A's interest would for the first time ])ractically arise: Was that interest real estate, so that it descended to A's heirs if he died intestate? or was it personal estate, so that it devolved upon his administrator? Would it pass by a general bequest of personal property, or by a general devise of lands? If A was a married man, was his \\ido\v entitled to dower in it? If A was a married woman, was her husband en- titled to curtesy? VMiere the parties to a contract for the sale of land die before execution, are the vendee's heirs or his personal representatives entitled to the benefit of tlie agreement? Does the purchase-money, when paid, belong- to the heirs or to the administrators of tlie vendor? These are the kinds of questions which are determined by the doctrine of conversion; and their solution depends upon the nature of the estates resulting from the opei'ation of that doctrine upon the interests of the original parties to the will. deed, or contract. No other docti'ine is perhaps more important in the equity juris- prudence of England, both because such trusts by wills, deeds, and family settlements are tliere very frequent, and because the common-law diflference between the descent of land and the succession of personal property is still preserved in all of its integrity. The applications of tiie doctrine to settlements often give rise to questions of great diltioTilty. In our own coiuitry the doctrine is theoretically adopted in all the states: Imt it-; applications are much less frequent and more simple than in England. \\ ith us, trust estates and family OT^' C0XVEi:SIO\ OF I'lv'Ol'KUTY. § 11(50 § 1160. I. What Words are Sufficient to Effect a Conversion. — Tlie whole scope and iiieaniiiti' ol' tlie fundamental principle un- derlying the doctrine are involved in the existence of a dulj/ rest- ing upon the trustees or other parties to do the specified act; for unless the equitable ought exists, there is no room for the operation of the maxim, Equity regards that as done which ought to be done.^ The rule is therefore firmly settled, that in order to work a con- version while the ]>roperty is yet actually unchanged in form, there jnust be a clear and imperative direction in the will, deed, or set- tlement, or a clear imperative agreement in the contract, to con- vert the property — that is, to sell the land for money, or to lay out the money in the purchase of the land. If the act of convert- ing — that is, the act itself of selling the land or of laying out the money in land — is left to the option, discretion, or choice of the trustees or other parties, then no eqnitable conversion will take place, becanse no duty to make the change rests upon them.- It ]s not essential, however, that the direction should be express, in order to be imperative; it may be necessarily implied. Where a power to convert is given without words of command, so that there is an appearance of discretion, if the trusts or limitations are of a description exclnsively applicable to one species of property, this circumstance is sufficient to outweigh the appearance of an op- tion, and to render the whole imperative. Thns, if a power is given to lay out money in land, hut the limitations expressed are applicable only to land, this will show" an intention that the money should be so laid out. and will amount to an imperative direction tc convert, for otherwise the terms of the instrument could not he carried into effect.' In fact, the whole result depends upon the settlements are coniparativoly very few. and the tendency of modern legislation in many of the states is towards a imiformity in the rules of law which regu- late the descent of lands and ilie devolution of personal property. In a few of the states the difference has been completely abolished, and both real and personal estate devolve in the same proportions to the same parties. It neces- sarily follows that many of the questions connected with conversion of the most frequent occurrence and of the highest importance in England are practically unknown in this country. ^ See ante. §§ 364, 30.5. -\i should be carefully noticed that the option or discretion spoken of in this rule means an option with respect to the very act of changing the fonn of tlve property. If the option is mereJii aft to the time when this shall be done, a conversion may take place, as will be more fully stated hereafter. The genera! rule of the text is illustrated by the following cases: In re Cooper's Estate. 206 Pa. St. 628. 08 Am. St. Eep. 790, .56 Atl. 67 ; Ford v. Ford, 70 Wis. 10. 33 N. W. 188, 5 Am. St. T?ep. 117. and note. Mere discretion as to the time or 7nanner of efl'ecting tlie sale does not prevent a conversion from taking place: Tazewell v. Smifh's Adm'r, 1 Ra:id. 3i:i. 10 Am. lice. .5.S.3. *Earlom v. Saunders. And). 241, 1 Scolt (w,~ . 3 Keener 0.il. § 11G3 EQUITY JLiaSPllLDEXCE. GSO intention. If by express language, or by a reasonable constniction of all its terms, the instrument shows an intention that the original form of the property shall be changed, then a conversion necessarily takes place.'* § 1161. Under a Contract of Sale. — A contract of sale, if all the terms are agreed upon, also operates as a conversion of the prop- ert}^, the vendor becoming a trustee of the estate for the pur- chaser, and the purchaser a trustee of the purchase-money for the vendor.^ In order to work a conversion, the contract must be valid and binding, free from inequitable imperfections, and such as a court of equitj' will specifically enforce against an unwilling pur- chaser.^ The fact that the contract of purchase is entirely at the option of the purchaser does not prevent its working a conversion, if he avails himself of the option.' § 1162. II. Time from which the Conversion Takes Effect.— This, like all other questions of intention, must ultimately depend upon the provisions of the particular instrument. The instrument might in express terms contain an absolute direction to sell or to pur- chase at some specified future time; and if it created a trust to sell upon the happening of a specified event which might or might not happen, then the conversion would only take place from the time of the happening of that event, but would take place when the event happened exactly as though there had been an absolute direction to sell at that time.^ Subject to this general modification, the rule is settled that a conversion takes place in wills as from the death of the testator, and in deeds, and other instruments inter vivos, as from the date of their execution. - § 1163. Time in Contracts of Sale v^ith Option. — In contracts of sale upon the purchaser's option, the question whether or not a conversion is eifected at all cannot, of course, be determined until tlie purchaser exercises his option; but the moment when he docs exercise it, the conversion, as between parties claiming title under the vendor, relates hack to the time of the execution of the contract. 'Thornton v. Hawley, 10 Ves. 129; In re Pforr's Estate, 144 Cal. 121, 77 I'ac. 825; Lent v. Howard, 89 X. Y. 169, 3 Keener 952. M4reen v. Smith, 1 Atk. 572, 1 Ames Eq. Jur. 193, 1 Scott 313; and see ante,. SS 368, 372. -Ante, §368, and notes: Mills v. Harris, 104 K C. 626, 10 S. E. 70f ■'Lawes v. Bennett, 1 Cox 167, 1 Scott fi02; Townley v. Bedwell, 14 Ves. 591, 2 Scott 400, 2 Keener 321. For further on the subject of such optional contracts, see post, § 1163. > Keller v. Harper, 64 :\ld. 74, 1 Atl. 65, 3 Keener 964. Ml'iHs.- Morris v. Griffiths, 26 Ch. Div. 601, 3 Keener 955; Lent v. Howard, 89 N. Y. 169. 3 Keener 952. BeefU: Griffith v. Ricketts, 7 Hare 299, 311; (^hirke V. Franklin, 4 Kay & J, 257, 1 Scott 628, 3 Keener 982. (isl cox\Ki;sioN OF I'liori'.iri'v. § 1104 'I'liiis where a lessee Avith an option to pureliasc — or any other jiircliaser with an option — duly declares his option after the death of the lessor or vendor, who is the owner in fee, the realty is thereby converted reirospectively as between those claiming under the lessor or vendor, or under his will ; that is, as between the heir or devisee on one side and the legatees or next of kin on the other, the proceeds will go to his personal representatives, though the heir or devisee Avill be entitled to the rents up to the time when the option is de- clared.^ It should be carefulh' observed, however, that this rule is confined to conversion as between the parties claiming title under the vendor or lessor, — his heirs or devisees, or his legatees, next of kin. and personal representatives, — and does not apply as l)e- tween the vendor and purchaser themselves." § 1164. III. Effects of a Conversion — Land Directed or Agreed to be Sold. — So far as is necessary to carr^" out the lawful purposes of the instrument, will, deed, settlement, or contract, and to tle- termine the property rights of all parties claiming under or through it. e(juity follows the doctrine into all of its legitimate consequences. inid treats the property, from the time at which the conversion takes l)laee. as to all intents of the kind and form into which it should h.ive been changed, and determines the rights of parties to it as in that kind and form.^ Land directed or agreed to be sold, although yet unsold, is regarded and treated as money. It will not pass under a devise of land or of real estate.- It will pass under a general gift. transfer, or bequest of personaltj^, or under a residuary bequest of personal property.^ In the absence of a will, it goes to the personal representative of the intestate who would have been or was entitled to it. It is therefore always personal assets in the hands of execu- tors and administrators for which they are accountable.* As in the case of a corporation, so in that of an alien, a bequest of land thus converted into money is valid, although a devise of land is or may be void.'* The same rules apply to the conversion wrought by con- tracts for the sale of land." 'Lawes v. Bennott, 1 Cox 107, 1 Scott G02 : Townley v. Bedwoll, 14 Vcs. .ir)], 2 Scott 400, 2 Keener .321 ; Weeding v. Weeding", 1 Johns & H. 424, 2 Keener .324; Ex parte Hardy, 30 Beav. 206, 2 Keener 327; In re Isaacs (1894), 3 Ch. 506, 2 .Vcott 402. -Edwards v. West, L. R. 7 Ch. Div. 858, 862, 863, 1 Scott 604. 'See cases cited ante, under §§1159, 1162. - Elliott V. Fisher, 12 Sim. 505. '•Welsh V. Crater, 32 X. J. Eq. 177. 3 Kcenor 000. 'Hoddel V. Pugh, 33 Beav. 480. 2 Scott 412: :\IniKriof v. Pvoss. .50 X. Y. 431, 3 Keener 960. » Craig V. Leslie. 3 ^;\nieat. 563, 1 Scolt 611. H. & U. 39, Shep. 66. ' See ante, § 368, and cases cited. § ll'jy EQUITY JURISPRUDEXCE. G8"-i § 1165. Money Directed or Agreed to be Laid out in Land. — Money and other personal property directed or agreed to be laid out in the purchase of land becomes, and is regarded, as land in equity. It will therefore pass under a general devise of lands or of real estate; it will descend to the heir; and will not be included in a bequest of money or personal property.^ If the heir die intestate before the purchase has been made, the fund will descend to his heir,- . . , The money of a married woman directed to be laid out in land is liable to her husband's curtesy, and without doubt, under analogous circumstances, such a fund of a husband is liable to his wife's dower.^ § 1166. Limitations on the Eifeots. — Notwithstanding these very general effects of a conversion, they are not absokitely universal. The doctrine seems to be correctly formulated by saying that the effects extend only to those persons who claim or are entitled to the property under or through the instrument, or directly from or luider the author of the instrument. . . . Two limitations appear to be well settled : one general, that the conversion does not take place as to persons whose claims or rights to the property are purely incidental, not at all connected with its devolution or trans- fei* from the author or through the instrument;^ and the other special, depending upon considerations of public policy, that the conversion shall not be permitted to take place so as to evade the statutes of mortmain, which invalidate gifts of land to charities - SECTION 11. RESULTING TRUST UPON A FAILUEE OF THE PURPOSES OF THE CONVERSION. ANALYSIS. S IK!!). Tlie questions stated; objeot and extent of the doctrine. S 1170. A total faihue of the purpose. § 1171. Partial failure; wills directing conversion of land into money. 8 1172. The same; wills directing the conversion of money into land. S 117.3. The same; deeds directing the conversion of land into money. § 1174. The same: deeds directing the conversion of money into land. § 1169. The Questions Stated — Object and Extent of the Doc- ' Oollins V. Champ's Heirs, 15 B. Mon. 118, 61 Am. Dec. 170. -Scudamore v. Scudamore. Pree. Ch. ,543, 1 Scott .31.5, .596, .3 Keener 947. ^Sweetapple v. F>indon, 2 Vern. 536, Ames Trusts 370; and see ante, §990, note 4. 'See Wilder v. Ranney, 95 N. Y. 7. 12. 3 Keener 002. = Brook V. Bradley, L. R. 3 Ch. 672, 674, per Lord Cairns. GS;> RESULTING TRUST ON I'AILURE OF CONVERSION. § IITO trine. — The purposes for -wliich a conversion is directed might be unlawful, or circumstanees might arise after the execution of the instrument which rendered the conversion unnecessar3^ In other words, the purposes of a conversion might fail totally or partially, either before the instrument had come into operation, or after the conversion had been de facto made by a sale of the land (u- by a laj'ing out of the money in land. The questions would then arise, To whom will the property — the entire amount in one case, the portion undisposed of in the other — then result, — the author of the tru.st, his heir, or his personal representatives? and in what form will it thus result, — in its original or in its converted form, as real or as personal estate? The case of a total failure is simple; that of a partial failure presents questions of greater difficult}^; and in dis- cussing this branch of the subject it will be expedient to consider separately cases arising under wills, and those arising under deeds of settlement and other instruments inter vivos. § 1170. A Total Failure. — AVhere a conversion of land into money or of money into land is directed, either by a will or by an instru- ment inter vivos, and the purposes and objects for which such con- version was intended totally fail before the directions for a con- version are carried into efifect, the property thus directed to be converted will remain in its original condition; it will result in its original unchanged form to the heirs or to the personal representa- tives of the testator, and to the settlor, or to his heirs or his personal representatives, as the case may be. If land is to be sold and con- verted into money, the property results as real estate to the heirs ; if money is to be paid out in land, the fund results as personal estate to the personal representatives. This rule is universal.^ 'Ackroyd v. Smithson, 1 Brown Cli. 503, 1 Lead. Cas. Eq., 4th Am. ed., 1171, 1181, 1107, 1 Scott 621, 3 Keener 977; Clarke v. Franklin, 4 Kay & -T. 257, 1 Scott G28, 3 Keener 982; Smith v. Claxton, 4 Madd. 484, 492, 1 Scott 625, 3 Keener 979. §1176 EQUITY JLUISI'KUDEXCE, G8-J- SECTION III. HECON VERSION. ANALYSIS. § 1175. Definition: Rationale of the doctrine. § 1176. Who may elect to have a reconversion. § 1177. Mode of election. § 1178. Double conversion. § 1175. Definition — Rationale of the Doctrine, — ^By reconversion is meant "that notional or imaginary proee.ss by which a prior coustnictii-e conversion is annnllecl and taken away, and the con- strnctirehi converted property is restored, in contemplation of a conrt of equity, to its original actual quality."^ Thus real estate is devised upon trust to sell and to pay the proceeds to A. By virtue of this absolute direction, the land is. in equity, converted into personal estate; it belongs to A as personalty. It may, how- ever, be made A's property as real estate; that is, A may prefer to receive it in its original unconverted form as land. In that event it is said to be reconverted, and the process is called recon- version. The rationale of this doctrine is clearly found in the right which every absolute owner or donee has to dispense Avith or forbid the execution of any trust' in the performance of which lie alone is interested. Eeconversion is the result of an election expressly made or inferred by a court of equity. It depends wholly upon the right of election held by the person entitled to the property to choose whether he will take the property in its converted condition or in its original and unconverted form. The whole discussion consists of answers to the questions, Who may thus elect? and how may such an election be made?- § 1176. Who may Elect to have a Reconversion. — As to personal capacities, the party, in order to elect, must be sui juris, or at least must not be subject to any incapacity which prevents liim from effectively dealing with his own property.^ With regard to the ^ Haynes's Onllines of Equity. 367. - For Anievican authorities on the general doctrine of reconversion, see Rank of rkiah V. Rice. 14.3 Cal. 26.5. 76 Pac. 1020. 101 Am. St. Rep. 118. ^A person absolutely entitled and sui juris: Prentice v. .lanssen. 70 X. Y. 47S. 1 Scott 639. 11. & P.. 163. Infants cannot elect, hut the court may. for their advantage. See Seeley v. Jago, 1 P. Wms. 3S0. 1 Scott 63.1: Carr v. Ellison. 2 Brown Ch. 56; Van v. Barnett. 10 Ves. 102; Robinson v. Robinson, 19 Beav. 404: In re Harrop. 3 Drew. 726. 734. Lunatics cannot. Married Women: In this country a married woman can doubtless elect by means of any (unb KECOX\EKSIOX. ^ 1177 nature and quantity of interest which must be owned in order that the party may effect a reconversion, if he is entitled to the whole absolute interest in possession, either to the laud to be sold for money, or to the money to be laid out in land, then he may, of course, elect, since his election could affect no other person's rights. If he owns, not the whole subject-matter but only an undivided share or a partial interest, the general rule is settled that he may elect, and can only elect, when such election could not by possibility injuriously affect the rights and interests of those who are associated with him in the total ownership as co- owners, life tenants, rcmaindonnon, reversioners, and the like.- § 1177, Mode of Election. — It being assumed that the party entitled to the property has the capacity to elect to receive it in its unconverted form, and thus to eft'ect a reconversion, the further question remains, how such election must or may he made. An express declaration of the intention in language is always suffi- cient, but is not necessary.^ An election may be inferred from acts or writings. Any act or writing which shows an uneciuivoeal intention to possess the property in its actual state and condition will amount to a valid election. - in>;tninient siifHcient to enable her to convey real estate. See Howell v. Tomp- kins, 42 N. .J. Eq. 305, 11 Atl. 3.3.3. ^A co-owner: ^Vhen the direction is to turn land into money, one co-owner cannot elect to keep Ma share in land. The others are entitled to have their share sold so as to receive the money, and plainly the sale of an undivided share of the land would produce a comparatively less amount than w'ould result from a sale of the whole: Deeth v. Hale, 2 Molloy 317, 1 Scott 641; Fletcher v. Ashburner, 1 Brown Ch. 497, 500, 1 Scott 606. On the contrary, when the direction is to lay out money in land for co-owners, one co-owner can elect to take his share in money; for thi.s would plainly produce no injury to the others: Seeley v. Jago, 1 P. Wms. 389, 1 Scott 635. 'Bradish v. Gee. Amb. 229, 1 Scott 636. = Prentice v. .Janssen, 70 N. Y. 478, 1 Scott 639, H. & B. 163; Bank of Ukiali V. Ptice, 143 Cal. 265, 76 Pac. 1020, 101 Am. St. Rep. 118. j^ 1179 EQUITY JLl-asrUUDEXCE. (-^Sti CHAPTER FIFTH. MORTGAGES OF LAND. SECTION I. THE ORIGINAL OR ENGLISH DOCTRINE. ANALYSIS. § 1179. The comuion-law doctrine: Statute of 7 (ieo. II., c. 20. § 1180. Origin and development of the equity jurisdiction; the '"'equity of redemption." § 1181. The equitable theory § 1182. The double system at law and in equity. § 1183. The legal and the equitable remedies. § 1184. Peculiarities of the English system. § 1185. Subsequent mortgages equitable, not legal. § 1179. The Common-law Doctrine. — In no other department luis the equity jurisprudence as administered in this country de- parted so widely from that administered in England as in the de- partment Avhich is concerned with mortgages, and the respective rights, liabilities, and remedies of the mortgagor and the mortgagee. No correct notion can be obtained of equity as it now exists with- in the United States without an accurate and full appreciation of these ditferences. At the common law the ordinary mortgage was to all intents and purposes a conveyance of the legal estate. A mortgage in fee immediately vested the mortgagee with the legal title, subject, however, to be defeated by the mortgagor's perform- ing the condition by paying the money upon the prescribed pay- day. If on that very day the mortgagor performed the condition by paying the money, he thereby put an end to the mortgagee's estate; the legal estate was revesfed in himself, and with it he had the right at once to re-enter upon the land, and to recover it.s pos- session by an appropriate action at law. But if the mortgagor for any reason suffered the pay-day to go by without paying or tender- ing the amount due. all his right was utterly and forever lost: the estate of the mortgagee, which had before been upon condition, now became absolute, with all the features and incidents of absolute legal ownership. This purely legal theory of the mortgage has con- tinued in force in England to the present day, until the existing 687 MORTGAGKS : THE EXGLISH DOCTIJIXE. § llSO judicature act went into operation ;* and during that interval it has constantly prevailed and been acted upon in the English courts ot* law Avithout modification except that introduced by a statute pas- sed during the reign of George II.- This statute has always been strictly construed, and held applicable only in the cases mentioned by its express terms, where a suit at law is brought by the mort- gagee." § 1180. Origin and Development of the Equity Jurisdiction. — The * "Equity of Redemption." — As this common-law doctrine. Avith all of its accompanying incidents, was exceedingly harsh in its oj>cration;> and often worked grievous wrong to mortgagors, equity interfered, and by degrees built up a distinct theory of mortgages which is one of the most magnificent triumphs of equity .juris- prudence. The basis of this system was the fundamental maxim that equity looks at the intent, rather than the form, and the re- sulting general principle that equity could and should relieve against legal penalties and forfeitures, when the person in whose behalf the}' were enforced could be fairly and sufficiently compensated by an award of money.^ As early as the reign of James I. the court of chancery had begun to relieve the mortgagor; and in the reign of Charles I. his right to redeem after a failure to perform the con- dition — that is, to come in and pay the debt and interest and recover the land after the pay-day — had become fully established and recognized as a part of the equity jurisprudence.- This equitable right of the mortgagor was termed his "ec[uity of redemption."' Avhieh is simply an abbreviation of his "right to redeem in equity." At first this right of the mortgagor was regarded as a mere right or thing in action; and at the close of the reign of Charles II. the equity of redemption was said to be a mere right to recover the land in equity after a failure to perform the condition, and not to be an > See this act, 36 & 37 Vict., c. 66, sees. 24, 25, ante, § 40, note 1. -7 Geo. 11., c. 20. This statute enacted that when an action at hiw was hrnnght on the bond, or ejectment to recover possession of the hind on tlie mortgage, the mortgagor might, pending the suit, pay to the mortgagee the debt, interest, and all costs expended in any suit at law or in equity; or, in case of a refusal to accept the same, might bring such money into court where the action was pending, which moneys so paid or brought into court wore declared to be a satisfaction of the mortgage, and the court was required to compel, by an order of the court, the mortgagee to assign, surrender, or reconvey tlic mortgaged premises to the mortgagor. This statute has been substantial! \- re-enacted in several of the American states. = Shields v, Lozear, 34 N. J. L. 496, 3 Am. Rep. 256. Kirch. 728. ' See ante, §§ 378, 381, 382, 433. where this maxim and its effects are explained. =■ Emanuel College v. Evans, 1 Rep. in Ch. 18, 1 Scott 31, Kirch. 704; 1 Jones on ilortgages, sees. 6, 7. § 1182 E(iUlTY JUIUSlTvUDEXCK. GS8 '!>>tate in the land.^ This narrow view, however, was soon abandoned-, the equitable theory was developed and became more consistent and complete, until, in 1737, Lord Hardwicke laid down the doctrine as alread}^ established, and Avhich has since been regarded as the very central conception of the equitable theory that an equity of re- demption is (in equity) an estate in the land which may be de- vised, granted, or entailed with remainders; that it cannot be con- sidered as a mere right only, but such an estate whereof there may be a seisin ; and that the person therefore entitled to the equity of redemption is considered as the owner of the land, and a mortgage in fee is considered as personal assets.* § 1181. The Equitable Theory. — While the mortgagee is still re- garded at law as vested with the legal title followed by all of its incidents, the following general theory is established as a part of the equity jurisprudence. The mortgagor, both after and before a breach of the condition, is regarded as the real owner of the land subject to the lien of the mortgage, and liable to have all his estate, interest, and right finally cut olf and destroyed by a foreclosure. Prior to such foreclosure, he is vested with an equitable estate in the land which has all the incidents of absolute ownership; it may be conveyed or devised, will descend to his heirs, may be cut up into lesser estates, and generally may be dealt with in the same manner as the absolute legal ownership, always subject, however, to the lien of the mortgage. On the other hand, the mortgage is regarded primarily as a security; the debt is the principal fact, and the mort- gage is collateral thereto; the interest which it confers on the mort- gagee is a lien on the land, and not an adate in the land; it is a thing in action, and may therefore be assigned and transferred with- out a conveyance of the land itself; it is personal assets, and on the death of the mortgagee it passes to his executors or administrators, and not to his heirs. ^ § 1182. The Double System at Law and in Equity. — As these two conflicting theories have existed side by .side, it follows that the rights, lial)ilities, and remedies of the mortgagor and mortgagee in. England have been very different when administered by the courts of law or the court of chancery. In law, the mortgagee is clothed with the entire legal estate, while the mortgagor has no estate what- ever, and after a default no right except that given by the statute, m.entioned in a former paragraph.^ In equity, the mortgagee has ^Eoscarrick v. Barton, 1 Cas. in Cli. 217, 1 Soott .32; 1 Jones on Mortsjages, sec. 6. M'ashonie v. Scarfe, 1 Atk. 00.3, 1 Sfott .S3. Shep. 213. " 3 A\ aslilnirn on Real Property, c. 16, sec. 4. ' See ante, sec. 1179. GSd ■\iouT(5A(;i:s: the English doctrine. §11^-5 no estate, but only a lien; while the mortgao'oi* is clothed with the e«iuitable estate called the "equity of redemption," which is to all ii.tents and purposes the full ownership, except that it is subject to be cut ott' and destroyed by a proceeding to enforce the mortgage. It should be carefully noticed that by this theory the mortgagor's estate is AvhoUy an equitable one; neither in 'equity nor at law is lie regarded as retaining the legal estate. In law, the mortgagee is en- titled to possession of the land even before the condition is broken, and may recover such possession upon his legal title, either before or after condition broken, in an action of ejectment against the mort- gagor, or against any other person not having a paramount title; while the mortgagor cannot maintain ejectment for the possession •even against a third person, since the legal title is outstanding in the mortgagee and a plaintiff can recover in ejectment only upon the strength of his own legal title.- In equity, neither the mort- gagee nor tlie mortgagor can maintain an action for the mere pos- session, since that remed}^ is -wholly a legal one ; but the mortgagor may maintain a suit to redeem from the mortgagee in possession, and having thus redeemed is entitled to a reconveyance and delivery of possession. In law, the mortgagee may convey the land itself hy deed, or devise it by will, and on his death intestate it will de- scend to his heirs. In equity, his interest is a mere thing in action assignable as such, and a deed of the land by him would operate merely as an assignment of the mortgage ; and in administering the estate of a deceased mortgagee, a court of equity treats the mortgage as personal assets, to be dealt with by the executor or administrator.^ § 1183. The Legal and Equitable Remedies. — The mortgagee can avail himself of both legal and equitable remedies; he may sue at law for the debt, or recover possession of the land bv ejectment, or resort to the equitable remedy of foreclosure. As a matter of fact, the mortgagee, in England, ordinarily enforces his security, upon the mortgagor's default, by obtaining possession of the land and appropriating the rents and profits. This possession he acquires either by voluntary surrender from the mortgagor or by a recovery in ejectment. Having obtained the possession, he may by a snit in ecpiity cut of^' and destroy the mortgagor's estate or equity of -The Enelish law is strictly logical in these conclusions, but the American Icfl'il theory, by a curious inconsistency, rejects them. The diflference between the Kn-jclish lepil theory and the American Ie<^al theory in this respect should be carefully noted. Even in those states which have preserved the lenjal and the equitable theories distinct, and which have to some extent adopted the. Knjrlish system, tlie lecal tiieory has been more or less modified b.y the equity doctrines. ^ 1 \A asiiburn on Real Property, e. IG, sec. 4, pars. 10-14, 34: Barrett v. Hinckley, 124 111. 32, 14 N. E. SG.3, 7 Am. St. Rep. 331, Kirch. 034, H. & B. 5.57. 44 § 1185 EQUITY Jt'RISPRUDEXCE. 690 redemption by a decree for a strict foreclosure. The method of foreclosing by a decree for a sale of the premises, which so generally prevails in the United States, is very seldom adopted in England. The mortgagee having obtained possession either by voluntary sur- render, b}^ entry, or by ejectment, the mortgagor may regain his title by means of the equitable suit for a redemption, whereby the mortgagee is compelled to account for the rents and profits which he has received, the amount due to him is fixed, and on its payment the interest of the mortgagee is ended, and the mortgagor becomes entitled to a reconveyance and the possession.^ § 1184. Peculiarities of the English System. — The peculiarity of this double system should be remarked : that while equity has care- fully built up its own theory, so differont in all points from that* prevailing at law, it has never attempted to interfere directly with the legal doctrines, nor have the law courts modified their own legal theory by vohuitaril}' introducing equitalile notions. The two theories have stood side by side, each administered by its own tri- bunals as though the other had no existence. Equity has so re- frained from any direct invasion of the legal domain, that when- ever a mortgagor has redeemed after a default, either by a payment of the debt voluntarily accepted or by means of a decree in a suit to redeem, the legal title does not thereby return to the mortgagor; having once been vested in the mortgagee, it can only be restored to the mortgagor by a legal conveyance. After a redemption oE any kind, therefore, a deed from the mortgagee to the mortgagor is necessary to invest the latter with the full legal title, and a decree in a suit for redemption directs such a conveyance to be executed as the only means of restoring the mortgagor to his original legal estate.^ § 1185. Subsequent Mortgages Equitable.— Another striking, but strictly logical, result of the system exists when the same mortgagor, being originally the legal owner, gives successive mortgages on the same land to different persons, Avhich are all outstanding together. If the legal owner in fee gives a first mortgage in fee to A, he thereby, as has been shown, conveys the entire legal estate, and A becomes vested with the legal title; and it is then impossible for the mortgagor to convey the legal estate to other persons by any subsequent deed or mortgage while the prior mortgage to A is out- standing, for he does not himself hold such legal estate. If, there- fore, the mortgagor executes any subsequent mortgage or morto-ages to B, C, D, upon the same land, these subsequent mortgagees do not thereby obtain the legal estate; they are not regarded, even M Washburn on Real Propert}'. c. Ifi, sec. 5, pars. IG-IS. ^1 Washburn on Real Property, c. 16, sec. 5, pars. 10-18, 691 MORTnAGEs: Tin: A:\ri:incAX doctrixi:. I^ 1180 by courts of law, as vested witli a leual title; their estate and title are purely equitable, and such subsequent mortgages are in every sense, even in courts of law, regarded and treated as cquiiahlo and not legal mortgages. The same doctrine is expressed by the state- ment that a mortgage of the equity of redemption is necessarily an equitable mortgage.^ SECTION II. THE AMERICAN DOCTRINE. ANALYSIS. § 11S6. In general: Two methods prevailing. § 11S7. First method: Both the legal and the equitable theories; states arranged alphabetically in foot-note. § 1188. Second method: The equitable theory alone; states arranged in foot-note. § 1180. The same: The mortgagee in possession. § 1190. The same: Equitable remedies of the parties. § 11 PI. Definition of mortgage. § 1186. In General — Two Methods Prevailing. — The English sys- tem, with the two theories, legal and equitable, standing so opposed to each other in every point, and each complete in itself, has not been wholly adopted in any of our states. The equitable principles have ])enetrated the legal theory, and more or less modified it in every state. The result i?, that even in those states which preserve the legal theory at all. and regard the mortgage as in any sense convey- ing a legal estate, many of the incidents of such legal title are abandoned: the mortgagee is the legal owner only for certain pur- poses and to a certain extent, — the legal owner as between himself and the mortgagor, — clothed with the legal title only so far as is considered necessary to preserve the mortgage as a valid security ; Avhile for all other purposes, and as against all other persons not claiming under or through the mortgagee, the mortgagor is regarded, even at law, as retaining the legal estate with all of its incidents and qualities.^ The courts and legislatures of nearly one-half of the 'By a strange inconsistency, this logical result of the legal theory is rejected by the courts of those states which have adopted the double system of law and of equity concerning mortgages; and they hold that in a series of prior and subsequent mortgages each and every mortgagee obtains the legal estate. Tliis is one of the marked differences between the lecjal system in England and that prevailing in American states. ' This conception of the mortgage is undoubtedly illogical and anomalous, a hybrid union of legal and equitable doctrines, and even more confusing than the shnri)ly defined double system of the English jurisprudence. Such a §1187 EQUITY JLKlSri;UDEXCE. ()d2 states have taken a further step, and by adopting- the equitable theory alone have completely reversed the positions occupied b}^ the mortgagor and the mortgagee under the English system. In tlie jurisprudence of the various states and territories of this country, two differing conceptions of the total nature and effect of mortgages now exist, — two distinct modes of regarding and reguhiting the rights, liabilities, and remedies of the parties. These two methods must be separately described, and the states adopting them must be arranged in two corresponding classes. § 1187. First Method — Both the Legal and the Equitable Theories. — The essential feature of this system, adopted by the courts of all the states in which the system prevails, is the doctrine that as between the mortgagor and the mortgagee, the mortgagee acquires and holds the legal estate at Jaw, while the estate of the mortgagor — his equity of redemption — is entirely an equitable estate. To this extent the system agrees with that prevailing in the English courts ; but this agreement is only partial.^ In all the states w^hich have adopted the method, the mortgagor ivhilc in possession is considered, ;it law as well as in equity, both after and before a breach of the cnudition, to be the legal owner as against all persons except the iMortgagee and those claiming under him ; and in most of the states he is regarded, against all such persons, as the legal owner, and as entitled to the possession, although he ma}^ not be in actual possession. The mortgage being a conveyance of the legal estate, and not a mere lien between the immediate parties thereto, the mortgagee is entitled to the possession of the premises, at least after the condition is broken, and may recover such possession from the mortgagor by a legal action; but in many, and even in most, of these states' the mortgagor may retain the possession until a (Icfaidt is made. In respect to the foregoing essential features there is a general agreement in the jurisprudence of all the states which compose this tirst class; but with regard to other and incidental matters there is a divergence in their rules which prevents any fur- tlier generalization. It should be added, however, that in most of ibese states the equitable theory is the one which chiefly prevails in practice; mortgagors are ordinarily left in possession and treated result necessarily follows from the action of courts in admitting equitable ])rinciples to be blended Avitli the legal dogmas, but without accepting those ])riiiciples in all their length and breadth, and abandoning wholly the legal tiieory maintained bj- the English courts of law. This last step, when taken, ])roduces a system single, uniform, consistent, and just. 'As illustrations of this class, see Barrett v. Hinckley, 124 111. 32, 14 X. E. S(i.=?, 7 Am. St. Rep. 3.S1, Kirch. 634, H. & B. .557; Ewer v. Hobbs. 5 Met. ], 3: Howard v. Robinson, ."> Cush. Hi), 123; Shields v. Lozear. 34 N. J. L. 4!)(;, 3 Am. Rep. 2.5(1, Kirch. 728; Trj'on v. Munson, 77 Pa. St. 250. €93 MORT(!A(iKs: Tin: a.mkimcax doctuixi:. §1188 as the owners, and the common remedy of the mort^'agee is a de- cree of foreclosure and for the sale of the mortgaged premises. In a few states, hovvever, it is customary for the mortgagee to recover possession, by action at law if necessary, and to cut off the mort- gagor's equity of redemption by a strict foreclosure. The states which have adopted this method in its substantial elements arc Alabama, Arkansas, Connecticut, Delaware, Illinois, Kentucky, ]\Taine, Maryland, AFassaehusetts, Mississippi, Missouri, New Hamp- shire, New Jersey, North Carolina, Ohio, Pennsylvania, Rhode Is- land, Tennessee, Vermont, Vii-ginia, and West Virginia. § 1188. Second Method— The Equitable Theory Alone.— In this method of treating mortgages, the conflict between the legal and the equitable conceptions is entirely removed. Partly through the adoption of equitable doctrines by the law courts, and partly through the operation of statutes, the legal theory of mortgages has been abandoned, and the equity theory has been left in full force, fur- nishing a single and uniform collection of rules recognized and ad- ministered, so far as necessary, alike by courts of law and of equity.^ The mortgas-e is liot a conveyance, nor does it confer upon the mortgagee any estate in the land. It creates a lien on the land, or, in the apt language already quoted, a "a potentiality to follow the land by proper process, and condemn it for payment" of the debt. The debt is the principal fact, and the mortgage is wholly incident- al or collateral thereto, and intended to secure its payment. Tlie .right or interest of the mortgagee from being a legal estate is changed into an etiuitable right enforceable by an equitable proceed- ing; it is for aU purposes and under all circumstances personal as- sets; it may be assigned, and passes to the mortgagee's personal rep- resentatives on his death. The mortgagee is not entitled to posses- sion of the mortgaged premises, and can maintain no legal action for their recovery, either before or after a breach of the condition ; in fact, the mortgagor's default produces no change in the rela- tions of the parties or in the nature of their respective interests, except that the mortgagee thereupon becomes enabled to enforce his lien by a proceeding of foreclosure. The mortgagee's interest being a mere lien, it is wholly destroyed, and the mortgagor's estate is left free and unencumbered, by a payment of the debt secured by it at any time before the premises are actually sold under a de- 'As illustrations of this class, see McMillan v. Richards, 9 Cal. 3G5,, 407, 70 Am. Dec. 635, and Button v. Warschaner, 21 Cal. 609, 621, 82 Am. Doc. 7(5.1, per Field, C. J.; Chick v. Willetts. 2 Kan. 384. 391, H. & B. SSo : .Jackson v. JJronson, 19 Johns. 325, Kirch. 629 (before the complete adoption of the equitable theory alone); Astor v. Hoyt, 5 Wend. 603. Kirch. 292: Trinim v. :\Iarsh, .54 X. V. 599, 13 Am. Rep. 623. Kirch. 299; Hubbell v. Moulson, 53 !s. Y. 225, 13 Am. Rep. 519, Kirch. 334. § 1189 EQUITY JL'ia.srRlDEN'CE. 694: cree of foreclosure; the estate does not then reved in the mortgagor, «ince it has never gone out of him. On the other hand, the mortgag- or's interest, instead of being an equitable estate, or right in equity to redeem the land from the mortgagee's ownership, is. for all ]>urposes, under all circumstances, and between all parties, the legal estate, with all the incidents and qualities of legal ownership, but at the same time encumbered by or subject to the lien of the mort- gage, and liable, therefore, to be cut oft' and divested by a sale under a decree of foreclosure if the debt is not paid according to ihe terms of the mortgage. It is an entire misuse of language to apply the name "equity of redemption" to this legal estate of the mortgagor; and the continued employment of the phrase in the legal nomenclature of the states which have adopted this theorj- of the mortgage is to be regretted, since it is the occasion of constant misapprehension and confusion of thought.- It is the natural and inevitable result of this system that in all the states where it pre- vails the mortgagor is not ordinarily, under ordinary circumstances, compelled to apply to a court t)f equity for relief. Being entitled to retain possession of the premises after a default, he is generally in a position to act on the defensive, and is not obliged to bring a suit in equity for a redemption. On the other hand, the mortgagee, not being permitted to recover possession and hold the land, is compelled to enforce his lien by a suit in equity, in Avhich he obtains a decree for a sale of the mortgaged premises. In several of the states, the remedy of a strict foreclosure has been denied to him by' statute. The mode of treating the mortgage thus described has been adopted in the following states and territories: California, Colorado, Dakota, Florida, Georgia, Indiana, Iowa, Kansas, I^ouis- iana, iMichigan, Minnesota, Nebraska, Nevada, New York, Oregon, South Carolina, Texas. Utah, and Wisconsin.^ § 1189. The Mortgagee in Possession under This Method.— The foregoing system, as it is administered in many of the states, con- tains one apparent inconsistency which requires a brief explanation. While the mortgagee is declared to have no legal estate, and is unable to recover possession of the land against an unwilling mort- gagor or owner of the fee subject to the mortgage, yet if the mort- gagee, while the mortgage is still subsisting, does in any lawful manner obtain possession, the courts have established the doctr-ine that his interest under the mortgage enables him to retain such ]>ossession, and lo defend it against the mortgagor or those succeed- ing to Ills title. In other Avords, the mortgagor is not permitted to recover back the possession, in an action at law, upon the strength -See (^hiek v. Willetls. 2 Kan. 3S4.H. & P.. 5.-)5. ]..'r ("rozior. C. J. * To tliese niiijlit iicrhaps Ix^ added Delaware, Mississippi, and Missouri. 695 mortgages: the amhkicax doctrixe. § 1190 of his own acknowledged legal estate ; but his only remedy is in equity by a suit to redeem. Undoubtedly this doctrine, when first admitted, was the result of the old common-law notions still linger- ing in the minds of the judges before the purely equitable theory had become fully developed ; but it is certainly difficult to reconcile the doctrine, on principle, with this theory. The more recent de- cisions have perceived and admitted the incongruity; and the courts, while retaining the doctrine as settled, have guarded against any inference from it that the mortgagee has acquired a legal estate by his possession ; his right to retain possession does not depend upon an estate held by him; his possession is protected by his lien. It is certainly more simple and just that the mortgagee should be left in possession, and the mortgagor forced to redeem, than that the mortgagor should be permitted to recover the possession by an ac- tion at law, and be immediately liable to the consequences of a fore- closure suit in equity brought by the mortgagee.^ § 1190. Equitable Remedies of the Parties under This Method. — It is plain from the foregoing outline that in the commonwealths named in the second division a complete revolution has been wrought in the equity jurisprudence concerning mortgages. According to the original theory as it has been administered in England and in a iiortion of the states, the estate of the morigafjov being wholly equi- table, the jurisdiction of equity deals chiefly, almost exclusively, with his interests, by protecting his rights, by enabling him to redeem the land from the mortgagee, and by compelling a recon- veyance of the legal title which had been forfeited by his failure to perform the condition, and by thus putting him in a position to regain the possession. On the other hand, the mortgagee, being vested w^ith the legal estate by means of the mortgage itself, and being able to obtain possession of the land by a legal action, is clothed with all the attributes of legal ownership, deals with tlie land as though it were his own, is amply protected by the legal remedies, and seldom resorts to the equitable remedy of a strict foreclosure by which the mortgagor's right of redemption is ex- tinguished. In the second class of states and territories, the change is complete; the positions of the two parties are exactly reversed. Equity deals primarily and almost exclusively with the mortgagee. His interest under the mortgage is no longer an estate; it is in all courts, of common law, of probate, and of equity, a mere lien, an appendage of the debt, personal assets, a thing in action assignable with the debt, but incapable of being separated from the debt and transferred by itself. lie has no legal remedy on the mortgage, 'Hubbell V. Moiilson, 53 N. Y. 225. 1.3 Ain. Rep. 5in, Kirch. 3:^4 ; Spect V. Spect, 88 Cal. 437, 22 Am. St. Eep. 314, 20 Pac. 203, 13 L. R. A. 137. § 1190 EQUITY JL'RISPKUDEXCE. C96 no power to recover possession of the land, and can enforce the lien against the land in no legal action. The remedy which the courts of equity grant is based upon the notion that his interest is a mere equitable lien, and not an estate. The relief no longer con- sists in an extinguishment of the mortgagor's right, by which the absolute title is left in the mortgagee. Its primary object is an enforcement of the lien by the sale of the mortgaged premises and an application of the proceeds upon the debt. The mortgagor's estate is, of course, destroyed, or. to speak more accurately, is iransf erred to the purchaser at the judicial sale. The term "fore- closure" is still applied to this process, but is evidently a misnomer Avhen used to describe the effect produced on the mortgagor's in- terest: no "equity of redemption" is foreclosed or cut off, but a legal estate is taken from the mortgagor and transferred to the })urchaser. The mortgagee is permitted to buy in the land at the sale, and may thus acquire the title; but he acquires it. not as mort- gagee, but as purchaser. The mortgagor, on the other hand, re- taining the full legal estate, subject only to the encumbrance, and being entitled to the possession, use, rents, and profits of the land up to the time when his title is finally divested by a judicial sale in a proceeding to enforce the lien, is enabled to defend his estate and possession, not only against third persons, but against the mort- gagee himself, by legal actions; and as long as he does not either expressly or impliedly surrender the possession io the mortgait'ee. he has no need nor occasion to invoke the aid of equity. There is, indeed, one situation possible in which he must resort to equity for relief. If. through his express consent, or through any other lawful means, the mortgagee has been permitted to obtain possession of the land, the mortgagor's only remedy is the ef|uitable suit for a redemption, in whit-h an account of the rents and profits received can be adjusted, the amount of the debt ascertained, the mort- gage extinguished, and the mortgagor restored. The situation which requires this interposition of equity on behalf of the mortgasfor is comparatively of very rare occurrence. The foregoing description of the equitable jurisdiction is especially applicable to the com- monwealths which I have grouped in the second division; but it is also practically correct wnth reference to several of those assigned to the first division. A practical and accurate criterion. I think, would be found in the kind of remedy to enforce the mortgagee's rights which commonly prevails. In states where the remedy by strict foreclosure is the ordinary one. the double system of laAV and equity invst necessarily exist in practice as well as in theory. Where the remedy l)y judicial sale under a decree is the usual one. the common-law notions if they exist at all. must be virtually theoret- ical. (iOr VAIUOUS lOK.MS AiNU KINDS OF MORTGAGE. ^ IVJo SECTION III. VARIOUS FORMS AND KJNDS OF MORTGAGE. § 1]92. In equity, a mortgafre is a security for a debt. § 1193. Once a mortgage, always a mortgage. § 1194. ^Mortgage, and conveyance with an agreement of repurchase, distinguished. § 1193. The general criterion: the continued existence of a debt. § 1196. A conveyance absolute on its face may be a mortgage. §5 1197-1199. Mortgage to secure future advances. § 1197. As between the immediate parties. § 1198. As against subsequent encumbrancers and purchasers, •§ 1199. As affected by the recordinor act. 55 1200-120.*?. Mortgages to secure several different notes. § 1200. As between the original parties. § 1201. Assignees of the notes: order of priority among them. § 1202. Effect of an assignment of the notes. § 1203. Priority between an assignee and the mortgagee. § 1192. In Equity, a Mortgage is a Seciarity for a Debt.— In the e'liiitable view, a mortcraoe may he descrihed in o-eneral terms as an assurance or pledare of or charge upon property, real or personal, for an antecedent, present, or future debt or loan, as security for and redeemable on the repayment of such debt.^ The fundamental principle of equity is, that whenever a conveyance of land is given for the purpose of securing payment of an existing debt, it is a mortgage. If the fact is established that a debt exists between the parties, and the transaction did not amount to a present payment, satisfaction, or discharge of that debt, but recognized it as still continuing, to be paid at some future time, and was intended to be a security for such payment, then the instrument is always regarded in equity as a mortgage, whatever be its form.- § 1193. Once a Mortgage, Always a Mortgage.— In general, all pcrsoiLS able to contract are permitted to determine and control their own legal relations by any agreements which are not illegal, c.v opposed to good morals or to public policy; but the mortgage forms a marked exception to this principle. The doctrine has been fiimly established from an early day that when the character of ' Seton V. Slade 7 Ves. 265, 273, 2 Scott 332. -Stinehfield v. Milliken. 71 Me. .567. H. & B. 47. Shep. 62: Campbell v. Dearbom 109 :\rass. 130. 12 Am. Rep. 671. Kirch. 191. If the instrument be in fact a mortgage, it is entirely immaterial that there is no provision for a i-edemjition, or no day fixed for the payment: Joynes v. Statham, 3 Atk. 388, 2 Scott 253. § 1194 EQUJTY Ji"i;i.si-i;rDi:xci:. (jyS a mortgage has attached at the commencement of the transaction, so that the instrument, whatever be its form, is regarded in equity as a mortgage, that character of mortgage must and will always continue. If the instruiuent is in its essence a mortgage, the parties cannot by any stipulations, however express and positive, render it anything but a mortgage, or deprive it of the essential attributes belonging to a mortgage in equity. The debtor or mortgagor can not, in the inception of the instrument, as a part of or collateral to its execution, in any manner deprive himself of his equitable right to come in after a default in paying the money at the stipulated time, and to pay the debt and interest, and thereby to redeem the land from the lien and encumbrance of the mortgage; the equitable right of redemption, after a default is preserved, remains in full force, and will be protected and enforced by a court of equity, no matter what stipulations the parties may have made in the original trans- action purporting to cut off this right. '^ § 1194. Mortgage, and Conveyance with Agreement of Repur- chase, Distinguished. — The principle that equity looks beneath the external form in determining questions connected wnth mortgage has frequently been applied to a particular mode of dealing with ^ This doctrine is based upon the relative situation of the debtor and the creditor: it rccotinixes the fact that tlie creditor necessarily has a power over his debtor which may be exercised inequitably; that the debtor is liable to yield to the exertion of such power; and it protects the debtor absolutely from the consequences of his inferiority, and of his own acts done through infirmity of win. The doctrine is universal in its application, and underlies many special rules of equity. It extends to stipulations limiting the time of redemp- tion, or the ])arties who may redeem: notwithstanding all such stipulations. the riglit to redeem is general: Howard v. Harris, 1 Vern. .3.3, Kirch. 430, f>hep. o7. And stipulations inserted in a mortgage, giving the mortgagee a collateral advantage not properly belonging to the contract of mortgage, are invalid: W'illett v. \\innell, 1 Vern. 488, Kirch. 469; Jennings v. Ward, 2 Vern. rv20, Kirch. 470: Broad v. Selfe, 9 .Tur. N. S. 885, Kirch. 473; Biggs v. Hoddinott (1808), 2 Ch. 307. Kirch. 47.^: Santley v. Wilde flSOn), 1 Ch. 747. l-iirch. 488; Noakes & Co., Ltd., v. Eice (1902), App. Cas. 24. On the other hand, an agreement with the mortgagor that the mortgagee shall have a prefc r- ence of purcliasing — a pre-emption — in case of a sale by the mortgagor is valid: Orby v. Trigg, 2 Eq. Cas. Abr. 599. pi. 24, 9 Mod. 2, Kirch. 470. The mortgagor may, at any 'time after the execution of the mortgage, by a separate and distinct transaction, sell or release his equity of redemption to the mort- gagee: Trull v. Skinner, 17 Pick 213, Kirch. 44.5: Pritchard v. Elton. 38 Conn. 434, Kirch. 458; De Martin v. Phelan. 115 Cal. 538. 47 Pac. 35fi. 50 Am. St. Pvcp. 115, Kirch. 405. This is a transaction, however, which a court of equity will examine strictly, in order to be satisfied that it is a perfectly fair and independ- ent proceeding, entirely unconnected with the original contract of mortgage: Villa v. Rodriguez, 12 Wall. 323. 20 L. ed. 400. Kirch. 453; H>Tidman v. Hynd- njan. 19 Vt. 9. 46 Am. Dee. 171, Kirch. 583; Holridge v. Gillespie, 2 Johns. Ch. 30. Kirch. 579. 091) VAinOUS FOItMS AXO Kl.XD.s OF .MOItTC.VGE. ^ U'>"'> real property. Where land is conveyed by an absolute deed, and an instrument is given back as a part of the same transaction, not containing the condition ordinarily inserted in mortgages, but being an agreement that the grantee will reconvey the premises if the grantor shall pay a certain sum of money at or before a specified time, the two taken together may be what on their face they pur- port to be, — a mere sale with a contract of repurchase, — or they may constitute a mortgage. In the first case, where the transaction is merely a sale and a contract of repurchase, the agreement must be fulfilled according to its terms. If the grantor fails to pay the money at the stipulated time, all his rights, either at law or in e(iuity, under the contract are gone ; there is no equity of redemp- tion.^ In the second case, if the transaction be a mortgage, all the qualities and incidents of a mortgage attach, whatever be its exter- nal form, and whatever be the collateral stipulations. The maxim. Once a mortgage, always a mortgage, applies to this condition of fact with especial emphasis. The rights of the two parties are re- ciprocal : that of the grantor to redeem after a default in payment at the specified time is complete ; that of the grantee to foreclose and cut off this equity of redemption is no less clear. - § 1195. The General Criterion — The Continued Existence of a Debt. — Whether any particular transaction does thus amount to a mortgage or to a sale w'ith a contract of repurchase must, to a large extent, depend upon its own special circumstances; for the question finally turns, in all cases, upon the real intention of the parties as .slioAvn upon the face of the Avritings, or as disclosed by extrinsic evidi^nce. A general criterion, however, has been established by an overwhelming consensus of authorities, which furnishes a suffi- cient test in the great majority of cases; and whenever the applica- tion of this test still leaves a doubt, the American courts, from ob- vious motives of policy, have generally leaned in favor of the mort- gage. This criterion is the continued existence of a debt or liabilitj^ between the parties, so that the conveyance is in reality intended as a security for the debt or indemnity against the liability. If there is an indebtedness or liability l)etween the parties, either a debt existing prior to the conveyance, or a debt arising from a loan made at the time of the conveyance, or from any other cause, and this debt is still left subsisting, not being discharged or satisfied by the conveyance, but the grantor is regarded as still owing and bound 'Conway v. Alexander. 7 Crancli 218. ?, L. od. 321, Kirch. 151; Coylc v. Davis, IIG V. >S. 109, 6 Sup. Ct. 314, 20 L. ed. 583. Kirch. 1.5G. -RussoII V. .Southard, 12 How. 130, 13 L. od. 027. Kirch. 157: Flajrg v. Mann, 2 Sum. 486, Fed. Cas. No. 4847, Kirch. 167; Peterson v. Clark, 15 Jolins. 205, Kirch. 412. § 1196 EQUITY JUinSPKUDENCE. 'iOO to pay it at some future time, so that the payment stipulated for in the agreement to reconvey is in reality the payment of this existing (kbt, then the whole transaction amounts to a mortgage, whatever language the parties may have used, and whatever stipulations they may have inserted in the instruments. On the contrary, if no such relation whatsoever of debtor and creditor is left subsisting, then the transaction is not a mortgage, but a mere sale and contract of repurchase.^ The writings may show on their face that the relation of debtor and creditor still continues, and that its existence and consequences are contemplated by the parties; or they may entirely fail to show any such fact, and may consist simply of an absolute conveyance and of a naked agreement to reconvey. While in the former case parol evidence is clearly inadmissible to contradict the terms of the writings, and to destroy their necessary character as a mortgage, in the latter case extrinsic parol evidence is ahva^^s admissible to show the real situation of the parties, the existence of a debt, their intention to secure payment of that debt, and the actual character of the instruments as constituting a mortgage. While each case must involve its own special facts, the foUoAving circumstances are regarded by the courts as important, and as throwing much light upon the real intent and nature of the trans- actions: The existence of a collateral agreement by the grantor to paj^ money; his liability to pay interest; where a debt existed antecedent to the conveyance, the surrender or cancellation of the evidences of such indebtedness, or the suffering them to remain outstanding and operative, or the substitution of others in their I)!ace; the price of the conveyance being inadequate; the grantor still left in possession; an application or negotiation for a loan preceding or pending the transaction. § 1196. A Conveyance Absolute on its Face may be a Mortgage. — Any conveyance of land absolute on its face, without anj^thing in its terms to indicate that it is otherwise than an absolute conveyance, and without any accompanying written defeasance, contract of I'c- purchase, or other agreement, may, in equity, by means of extrin- sic and parol evidence, be shown to be in reality a mortgage as between the original parties, and as against all those deriving title from or under the grantee, who are not bona fide purchasers for v;due and without notice. The principle Avhich imderlies this doc- ' Cases in ichich the transaction has amounted to a mortgafje: Keitliloy v. Wood, 151 111. 500, 38 N. E. 149, 42 Am. St. Rep. 205: Lounsbmy v. Xoiton, 59 Conn. 170, 22 Atl. 153; Bijjler v. Jack, 114 Iowa, 007. 87 X. W. 700. C(tf67, H. & B. 47, Shep. 62: Knapp v. Bailey, 79 Me. 201, 1 Am. St. Eep. 295, Atl. 122. H. & B. 75: Cnmyibcll v. Dearborn. 109 ^lass. ];!0; 12 Am. Rep. (i71. Kirch. 191: Odoll v. :Moiitross. 68 N. Y. 499, Kirch. 400. § 1198 EQUITY JI'RTSPRUDEXCE. 702 conveyauee upon his payment of the debt secured. If the grantee goes into possession, he is in reality a mortgagee in possession, and as such is liable to account for the rents and profits.^ § 1197. Mortgages to Secure Future Advances. — Whatever disin- clination may at any time have been felt by courts to sustain this kind of security, it is now well settled that mortgages given in good faith to secure future advances, either in addition to or without a present indebtedness, are valid and binding between the parties. When no claims of subsec^uent encumbrancers or purchasers have intervened, there is no longer any doubt that the mortgagee can en- force the security for all the sums which he has advanced to the mortgagor, under the mortgage and within its scope, both when such advances were optional on his part, and when he was bound to make them by some collateral agreement with the mortgagor. If the advances were actually made within the scope of the mortgage, the fact that they were originally optional or obligatory would be wholly immaterial between the parties them.selves.^ The fact that the mortgage is given to secure future advances need not appear on the face of the instrument itself. If it purports to secure the pay. ment of a specified amount, the mortgage need not express the in- tention or agreement of the parties that this amount of indebted- ness is to be made up wholly or in part by future advances: the agreement to that effect may be entirely verbal." More definiteness and certainty, however, are necessary to render the mortgage oper- ative against su1ise(iuent purchasers nnd encumlirancers. § 1198. The Same. As against Subsequent Encumbrancers or Purchasers. — As such a mortgage is a valid security between the parties, it is plainly an ecjually valid and effective security, and gives the holder thereof a prior lien, against subsequent purchasers and encumbrancers, for all advances made hcfore the execution of the .subsequent conveyances or mortgages by the mortgagor, or the dock- eting of the subsequent .judgments against him. The only real (luestion to be considered relates to the validity of the mortgage as a security for advances made afior the execution or recording of a subsequent mortgage by, or the docketing of a subsequent judg- ment against, the mortgagor; and in answering this question, there is. to some extent, a direct conflict of opinion among the American 'lecisions. It may be regarded as established that where a mortgage has been given to secure future advances, and advances are made in pursuance thereof nffer the execution or recording of a subsequent mortgage or the docketing of a subsequent judgment, but Avithout ' See Morris v. Budlong, 7S X. Y. .543, Kirch. 559. *Aekerman v. Hiinsieker, 85 X. Y. 43. 39 Am. Rep. 621. Kircli. 2S5. 'See Kirby v. Raynes, 138 Ala. 194, 100 Am. St. Rep. 39. 35 South. 118. 1^03 VAHIOUS FOK.MS AXI) KINDS OF .MOKTGAGE. § 1199 any notice to the mortgagee of such subsequent encumbrance, upon the general ]n'ineipk\s of equity, independently of the recording acts, the subsequent encumbrancer can claim no preference for his own security; in other words, the first mortgage remains prior in effect, as it is prior in time.^ § 1199. The Same. — As Affected by the Recording Acts.^The gen- eral doctrine being thus established that the mortgage constitutes a prior lien for all advances made in pursuance thereof before notice of a subsequent encumbrance or conveyance, the effect of the re- cording acts remains to be considered. It is at this point that the diversity of opinion among the American courts has chiefly arisen. The following conclusions seem to be in harmony with established principles, and to be sustained by the weight of authority; and they may be regarded, I think, as furnishing the prevailing rule: When a mortgage to secure future advances reasonably states the purposes for which it is given, its record is a constructive notice to subse(|uent purchasers and encumbrances; they are thereby put upon an incjuiry to ascertain what advances or liabilities have been made or in- curred. The record of a subsequent mortgage or conveyance, or the docketing of a subsequent judgment, is not a constructive notice of its existence to such prior mortgagee. The prior mort- gage, therefore, duly recorded, has a preference over subsequent recorded mortgages or conveyances or subsequent docketed judgments, not only for advances previously made, but also for advances made after their recording or docketing without notice thereof. As the record of the second encumbrance does riot operate as a constructive notice, it requires an actual notice to cut off the lien of the prior mortgage; and the subsequent encum- brancer may, by giving actual notice, at any time prevent further advances from being made to his OAvn prejudice.^ There is a group of decisions which adopt a different view, an opposite conclusion. They seem to regard the lien for securing future advances as only arising, or at all events as only perfected, so as to be available, at and from the time when the advance is actually made. An ad- ^'ance, therefore, although in pursuance of a prior mortgage duly recorded, if made after the record of a subsequent mortgau'e or conveyance, or the docketing of a subsequent judgment, is att'ected with constructive notice of such subsequent encumbrance or con- veyance, and its lien is consequently postponed to that of the second record. By this rule, a mortgage to secure future advances MTopkiii'^on v. Pvolt, 9 H. L. Cas. 514, 25 Beav. 401. ^Tlie courts wliic-h adopted this vnlo apply it aliko, whether the advarices ivero optional or ohlio-ntory: Ackprman v. Hiinsickor, 85 X. Y. 43, 50 Am, Eep. n of the mortgage as a bona fide purchaser for the value and witliont notice. = Johnson v, Zink, .51 N. Y. .333. 'Belmont v. Coman, 22 N. Y. 438, 78 Am. Doc. 213: Elliott v. Sackett. 108 U. S. 140, 2 Sup. Ct. 375, 27 L. cd. 080. •'Johnson v. Thompson, 129 Mass. 398; Pratt's Ex'r v. Nixon. 91 Ala. 192, 8 South. 751. 711 convey/xck by the moutgaook. § i'-iOG ing to the theory held by some courts, is the fact that the mortgage debt is included in tiie purchase price as a constituent part there- of, and the grantee actually pays or secures to his grantor only the balance of the gross price after deducting such debt. No particu- lar form of words is necessary to create a binding assumption; it is sufficient that the language shows uuequivocallj' an intent on the part of the grantee to assume the liability of paying the mort- ijage debt, but this intent must clearly appear.^ When the deed executed by the grantor contains a clause sufficiently showing such an intent, the acceptance thereof by the grantee consummates the assumption, and creates a personal liability on his part, which in- ures to the benefit of the mortgagee as though he had himself executed the deed." When a grantee thus assumes payment of the mortgage debt as a part of the purchase price, the land in his hands is not only made the primary fund for payment of the debt, but lu^ himself becomes personally liable therefor to the mortgagee or other holder of the mortgage. The assumption produces its most important effect, by the operation of equitable principles, upon the relations subsisting between the mortgagor, the grantee, and the mortgagee. As between the mortgagor and the grantee, the grantee becomes the principal debtor primarily liable for the debt, and the mortgagor becomes a surety, with all the conseciuenees flowing from the relation of suretyship. As between these two and the mortgagee, although he may treat them both as debtors and may enforce the liability against either, still, after receiving- notice of the assumption, he is bound to recognize the condition of suretyship, and to respect the rights of the surety in all of his subsequent dealings Avith them.^ Payment, therefore, by a grantee ^See Conistock v. Hitt, 37 111. 542, 546, 1 Ames Eq. Jiir. 131), 2 .Scott 482; Hopper V. Calhoun, 52 Kan. 703, 35 Pac. 816, 39 Am. St. Rep. 303 (evidence must be clear). -.(ohns V. Wilson, 180 V. S. 440. 21 Sup. Ct. 445, 45 L. ed. G13; Toe v. Dixon. 60 Ohio St. 124, 54 N. E. 86, 71 Am. St. Rep. 713. It is even held that a verbal promise by the grantee to pay the mortgage creates such a personal liability, even though the conveyance appears on the face of the deed to be merely subject to the mortgage: Ordway v. Downey, 18 Wash. 412, 51 Pac. 1047, 63 Am. St. Rep. 8!)2 (the agreement must be established by a clear preponderance of evidence). But this rule is denied in Shepherd v. ISIay, 115 U. S. 505, 6 Sup. Ct. 110, 29 L. ed. 456. ' Calvo V. Davies, 73 X. Y. 211, 215, 29 Am, Rep. 130; Poe v. Dixon, 60 Ohio St. 124, 54 X. E. 86, 71 Am. St. Rep. 713. Since such grantee thus becomes tiie ])rincipal debtor, primarily and absolutely liable for the debt, when he ])ays Uui mortgage it is completely extinguished, when he takes an assignment of it it is completely merged. He cannot by any form of assignment, legal or equitable, or by subrogation, keep the mortgage alive as against otlier liens on the land: Birke v. Abbott. 103 Ind. 1.1 X. E. 485, 53 Am. Rep. 474; and see ante, § 797. On the other Iiand. when the iDortgagor, iiaving become a 5 1^,)6 EQUITY JURISPRUDEN«CE, 713 who has assumed the entire mortgage debt completely extinguishes the mortgage; he cannot be subrogated to the rights of the mort- gagee, and keep the mortgager alive for any purpose. While the mortgagee may release the mortgagor without discharging the grantee, his release of the grantee, or his valid extension of the time of payment to the grantee, without the mortgagor's consent, would operate to discharge the mortgagor. In short, the doctrines concerning suretyship must control the dealings between these three parties.* When land is thus conveyed, with an assumption of a mortgage by the grantee contained in the deed, subsequent grantees holding under the conveyance are charged with notice, and the land continues to be the primary fund for payment, as though the fact were recited in their own deeds.^ In the foregoing statement of the general doctrine, it has been supposed that the grantee assumes paAnnent of the whole mortgage. If a grantee, in purchasing a part of the mortgaged premises, assumes payment of a part of the mortgage, he becomes personally and primarily liable only for such part.*' The general doctrine is well settled that a grantee who thus assumes payment, in whole or in part, of a mortgage as a portion of the purchase price of the land con- veyed to him cannot contest the validity of the mortgage on any ground and thus evade the liability which he has assumed.^ surety, pays off the mortgage, he is entitled to liold it by equitable assignment or subrogation, for the purpose of reimbursement from the grantee: Poe v. Dixon, liO Ohio «t. 124, 54 N. E. 86, 71 Am. St. Rep. 713; Rice v. Sanders, 152 Mass. 108, 24 N. E. 1079, 23 Am. St. Rep. 804, 8 L. R. A. 315. The dealings of the mortgagee Avith these two parties are also governed by the doctrines of suretyship, in his dealings with the grantee, at least after notice, the mortgagee must respect the rights of the mortgagor-surety. A valid extension of the time of payment, made by the mortgagee to the grantee, without the consent of the mortgagor, will therefore discharge the mortgagor from his liability: Calvo v. Davies, supra; Union Jlut. Life Ins. Co. v. Han- ford, 143 U. S. 187, 12 Sup. Ct. 437, 30 L. ed. 118; IMerriman v. Miles. 54 Xebr. 560, 74 N. W. 861, 69 Am. St. Rep. 731. On the question of the grantor's ))Ower to release the grantee from his assumption of personal liability, without the mortgagee's consent, there is some conflict. See Pom. Eq. Jur., note, at this point; compare Gifford v. Corrigan, 117 X. Y. 257, 22 >r. E. 756, 15 Am. St. Rep. 508, L. R. A. 610, with :\Ieech v. Ensign, 49 Conn. 191, 44 Am. Rep. 225. * Xelson v. Brown, 140 Mo. 580, 41 S. W. 960, 62 Am. St. Rep. 755. '•" Whether a remote grantee of the mortgagor is liable on his agreement to assume the debt in the case when his immediate grantor was not personally liable, is a question on which the cases disagree. Compare Enos v. Sanger, 96 Wis. 151, 70 N. W. 1069, 65 Am. St. Rep. 38, 37 L. R. A. 862, with Hicks v. Hamilton, 144 :\lo. 495, 46 S. W. 432, 66 Am. St. Rep. 431. "Snyder v. Robinson, 35 Ind. 311, 9 Am. Rep. 738. 'Scanlon v. Grimmer, 71 Minn. 351, 70 Am. St. Rep. 326, 74 X. W. 146 j Cramer v. Lepper, 26 Ohio St. 59, 20 Am. Rep. 756; and see ante, § 937. 713 ASSIGNMENT OF THE .MOKTCiAGi;. § 1209 §1207. Rationale of the Grantee's Liability, — The ground of the grantee's liability adopted by the courts of a large majority of the states is that of contract. It is an application of the general doctrine, so widely prevailing in this country that it may properly be called an American doctrine, — where A makes h promise directly to B, for the benefit of C, upon a consideration moving alone from E. (', being the party beneficially interested, may treat the promise as though nuide to himself, and may maintain an action at law upon it in his own name against A, the promisor. According to this generally accepted view, the liability of the grantee who thus assumes the payment of an outstanding mortgage does not depend upon any extension of the equitable doctrine concerning suln-oga- ■!ion; it is strictly legal, arising out of a contract binding at law; the mortgagee, instead of enforcing the liability by a suit in etjuity for a foreclosure, may maintain an action at law against the grantee upon his promise, and recover a personal judgment for tiie whole mortgage debt.^ Another and entirely different ration- ale is adopted by the^courts of certain states: that the liability of the grantee to the mortgagee does not arise from contract, and does not exist at law; but it results from an application, or more correctly an extension, of the equitable doctrine of subrogation. Since the mortgagor becomes a surety, the creditor is entitled by subrogation to all the securities which he holds from the principal debtor, and is thus entitled in equity to enforce the promise made to him by the grantee.-^ According to the general theory first above stated, the grantee's assumption and promise are so com- pletely for the benefit of the mortgagee that the grantor can main- tain no action thereon merely because the grantee has failed to perform his undertaking; it is only where the grantor has him- self paid the mortgage that he becomes subrogated to the rights of the mortgagee, aiul is entitled to enforce it against the grantee,^ § 1209. II, Assignment of the Mortgage. — In the few states which still retain, in the ordinary transactions of business and modes of administering justice, the strict legal theory according to which the mortgagee obtains and holds the legal estate in the land, an assignment of the mortgage fully elBcient and operative must necessarily amount to a conveyance of the legal estate in the mortgaged premises. Such an assignment must, therefore, be an ^ See Pomeroy on Remedies, see. 130, and cases cited: Sohniiicker v. Ribcrt, IS Kan. 104, 26 Am. Rep. 765; Starbird v. Cranston, 24 Colo. 20. 48 Pac. 652; AlcKay v. Ward, 20 I^tah 140. 57 Pae. 1024, 46 L. R, A. 623, •-■ Knapp V. Connecticut Mnt, L. Ins. Co., 85 Fed. 329. 29 C, C. A. 171. 40 L. R. A. 861: (Jreen v. Stone, 54 N. J. Eq. 387, 34 Atl. 1099. 55 Am. St. Rep. 577. 'Avres v. Dixon, 78 N. Y. 318, 322, 323. § 1210 EQUITY JURISPRUDENCE. 714 instrument under seal, or at least a written instrument sufficient to convey the legal title/ We are only concerned with that mode of assignment which is valid and efficient in equity, which operates to vest the assignee with all the mortgagee's interests, rights, reme- dies, and liabilities which are recognized and enforced in equity, and are capable of being transferred.- A formal written assign- ment by which the mortgagee in express terms transfers the mort- gage and the debt secured thereby, and the bond, note or other evi- dence of the debt, is always proper, and possesses many advan- tages, and should always be adopted, when possible, as a matter of expediency,^ but it is not essential. § 1210. Assignment of the Debt Carries with it the Mortgage — What Operates as an Assignment. — The fundamental principle upon which this doctrine of assignment rests is, that the debt is the prin- cipal thing, and the mortgage is only an acce.ssory or incident of the debt, and can have no separate independent existence.^ The doctrine is therefore universal, that any valid operative assign- ment of the debt, whether evidenced by a bond, note, or otherwise, is also an efficient assignment of the mortgage, and vests the as- signee with all the equitable rights, interests, and remedies of the mortgagee.- In the absence of a contrary statutory requirement, ^ It should be obsen^ed that in the cases involving these rules the question is, whether, in accordance with the strict legal theory, the assignment trans- ferred the legal estate in the land to the assignee — a question purely legal, and wholly foreign to the equitable system of mortgage which, practically at least, prevails in the great majority of the states, even in many of those Avhich also retain the legal view. See Barrett v. Hinckley, 124 111. .'52, 14 X. E. 863, 7 Am. fSt. Rep. 331, Kirch. 634, H. & B. 557. '■' It would, however, be very misleading to call this an "equitable" assign- ment, as distinguished from that first above mentioned, as though its operation were confined to courts of equity, and it conferred rights recognized only in equity. In England and in ^Massachusetts, and in a few other states, such an assignment is undoubtedly "equitable"; but in most of the states the rights which it confers are protected by all the courts. ' Among these advantages is the power of having the assignment recorded, with the protection which the recording acts give to the assignee. See ante, SS 733, 734. ' ' Carpenter, v. Longan, 16 Wall. 271, 275, 21 L. ed. 313, Kirch. 675. ^Tliis proposition is universal in equity. In all the states adopting the second system, as described in the previous section II., such assignment is complete and absolute. In some of the states adopting the first system, such assignment is regarded as simply equitable, since the assignee does not thereby acquire the legal estate in the mortgaged premises: but in several other states of the same class, I think this form of assignment is treated as practically complete and absolute: Page v. Pierce, 26 N. H. 317, Kirch. 630; Green v. Hart, 1 .lohns. 580, Kirch. fi22 : Perkins v. Sterne, 23 Tex. 561, 76 Am. Dec. 72. That an assignment of a part of the debt secured carries with it a propor- tionate part of the mortgage has already been sho\vn: Ante, § 1202, and 715 ASSIGNMENT OF THE MORTGAGE. § 1210 such assignment need not even be in writing; it may be merely verbal with delivery. It also ft)llows, as a necessary consequence of the same principle, that an assignment of the mortgage alone, without the debt, is wholly nugatory in equity, and passes no equitable rights to the assignee. Even in the states where the legal estate in the premises may be conveyed by the mortgagee, such an assignment would only vest the assignee with the naked legal title held by him in trust for the one who owned the debt.^ The rights of priority acquired by the assignee, as governed by the original doctrines of equity, and as modified by the recording acts, and how far he takes subject to or freed from existing equities in favor of the mortgagor and others, have already been considered in a previous chapter.* see iluller v. VVadlington, 5 S. C. 342. A verbal assignment with delivery is sutticient, in the absence of a statutory requirement of writing: Curtis v. Moore, 152 N. Y. 159, 46 X. E. 1G8, 57 Am. St. Rep. 506. ■'Carpenter v. Longan, 16 Wall. 271, Kirch. 675. * See ante, vol. 2, §§ 703-715. When a mortgage is given to secure a nrgotiable note, and the note and mortgage are assigned before maturity, the question whether the asf:ignee takes the mortgage free from all equities as in the case of a bona fide transferee of such a note alone, or whether he takes it subject to all equities, is examined ante, § 704, and cases are cited reaching exactly opposite conclusions. The following case, also, maintains the rule that such assignee takes the mortgage free from all equities: Carpenter V. Longan, 16 Wall. 271, 21 L. ed. .313, Kirch. 675. On the other hand, the following additional case holds such assignment to be controlled by the general rule, and therefore subject to all existing equities: Bailey v. Smith, 14 Ohio St. 396, 84 Am. Dec. 385, Kircli. 667. The reasons for the ruling tliat such assignee takes free from all equities are stated with as mucli force as possible by Swayne, J., in Carpenter v. Longan, supra. Reduced to their lowest terms, they amount to this: that tlie debt is the principal thing, and the mortgage is a mere adjimct of the debt, and has no existence separate from the debt. Admitting the full force of this reasoning, the conclusion is, in my opinion, the result of a false analogj'. The answer to it is very short, but, as it seems to me, very complete. The note and the mortgage do not together consti- tute a promissory note. The conclusion reached by this line of cases not only destroys the uniformity and consistency of the doctrines concerning mortgages, but misapprehends and misapplies the peculiar doctrines con- cerning negotiable instruments. The most distinctive feature of negotia- bility — the rule that the bona fide transferee takes a bill or note free from defenses — had its origin in the customs of merchants. It was first adopted by the courts, and lias ever since been maintainetl, solely with a vieic to pro- mote the interests of merchants, and to secure the success and freedom of mercantile and commercial dealings. A promissory note accompanied bj'^ a mortgage is not in any sense n mercantile or commercial security; all the reasons of the peculiar rule of the law merchant fail in their application to it. The courts which extend this rule to a note and mortgage are misled by a false analogy; in order to reach their conclusion, they are obliged to treat the mortgage as a nullity — not merely as an incident of the note, but as having ncliinllv no existence. I am strongly of the opinion that the § 1.^12 EQUITY JUKISPKUDEXCE. T16 § 1211. Equitable Assignment by Subrogation. — Under some eir- eiiinstances, the payment of the amount due on a mortgage, when made by certain classes of persons, is held in equity to operate as an assignment of the mortgage. By means of the payment, the mortgage is not satisfied and the lien of it destroyed, but equity regards the person making the payment as thereby becoming the owner of the mortgage, at least for some definite purposes, and the mortgage as being kept alive, and the lien thereof as preserved, for his benefit and security. This equitable result follows, although no actual assignment, written or verbal, accompanied the payment, and the securities themselves were not delivered over to the person making the payment, and even though a receipt was given speak- ing of the mortgage debt as being fully paid, and sometimes even though the mortgage itself was actually discharged and satisfied of record. This equitable doctrine, Avhich is a particular applica- tion of the broad principle of subrogation, is enforced whenever the person making the payment stands in such relations to the prem- ises or tc the other parties that his interests, recognized either by law or by equity, can only be fully protected and maintained by regarding the transaction as an assignment to him, and the lien of the mortgage as being kept alive, either wholly or in part, for his security and boncfit. § 1212. In whose Favor Such Equitable Assignment Exists. — Equit}' does not admit the doctrine of equitable assignment in favor of every person who pays off a mortgage. Such relations must exist toAvards the mortgaged premises or Avitli the other par- ties, that the payment is not a purely voluntary act, but is an equitably necessary or proper means of securing the interests of the one making it from possible loss or injury. The payment must be made by or on behalf of a person who had some interest in the premises, or some claim against other parties, which he is entitled, in equity, to have protected and secured. A mere stranger, there- fore, who pays off a mortgage as a purely voluntary act can never be an equitable assignee. In general, when any person having a subsequent interest in the premises, and who is therefore entitled to redeem for the purpose of protecting such interest, and who is not the principal debtor primarily, and absolutely liable for the mortgage debt, pays off the mortgage, he thereby becomes an equitable assignee thereof, and may keep alive and enforce the lien so far as may be necessary in equity for his own benefit; he is subrogated to the rights of the mortgagee to the extent necessary cases of wliioli the Illinois decisions are an example rest upon a tnic founda- tion of principle. 717 SUJUtOUATlON ox PAYMENT OF MOHTGAGE. § l"e]l the moi'tgaged jJremises in compliance with tiiis rule. In other states, tlie mortgagee is not thus directly controlled, but the rule is applied to tlie other parties, and regulates the mode in which their equities are worked out, as among themselves, by redemption and exoneration: Clowes v. Dick- enson, 5 Johns, Ch. 235; Lyman v. Lyman, 32 Vt. 79, 70 Am. Dec. 151; Farmers' iSav., etc., Ass'n v. Kent, 117 Ala. 024, 23 South. 757; Howser v. Cruikshank, 122 Ala. 256, 25 South. 200, 82 Am. St. Rep. 76. " It should be constantly remembered that the mortgagee possesses the absolute right to enforce the security of tlie mortgage for the whole amount tliereof, if necessary, against all the parcels in the hands of all the grantees. A single simple case will illustrate this equity of exoneration. A mort- gagor conveys one-half the i^remises by warranty deed to A, and afterwards tiie other half to B. As between the two grantees, the mortgage must be first enforced against B's parcel, but if its proceeds are not sufficient to satisfy the debt, then resort must be had to A's half. In other words, A"s ])arcel continues liable for so much of the mortgage debt as exceeds the \alue of B's parcel. This liability indicates the true measui'e and extent of A's rigid of exoneration against B. If A redeems the mortgage, or if A's parcel is sohl first by the mortgagee, he is not necessarily entitled to a comph^e exoneration by B; he is only entitled to a complete exoneration when B's parcel equals or exceeds in v.alue the amount of the mortgage debt, so that it would have satisfied the mortgage and freed A's land from the burden. If the mortgage debt exceeds the value of B's parcel, A is entitled to exon- eration from such an amount thereof as equals the value of B's land: the balance of the debt over and above that amount is A's individual burden, chargeable on his o\\ii land. The same reasoning clearly ap])lies to any number of successive grantees and determines the rights of exoneration among them. See cases in the last preceding note. 727 mortgages: contribuiiox and kxonkkation'. § 1225 rule of law, and if the peculiar e(iuitable reasons on which it rests are wanting, it ceases to operate.^ Whether it does or does not apply to any particular case may be certainly determined by a careful consideration of the following principles. The doctrine in its full scope and operation primarily depends upon the relation subsisting between the mortgagor, or other owner of the entii'e mortgaged premises, and his grantee of a parcel of the land. This relation, in turn, results from the form of conveyance, Avhich, being a warranty deed, or equivalent to a warranty, shows con- clusively an intention between the two that the grantor is to as- sume the whole burden of the encumbrance as a charge upon ///> own parcel, while the grantee is to take and hold his portion en- tirely free. Secondly, the conveyance may be of a different char- acter; by its special provisions it may expressly show, or by its general form it may impliedly indicate, that the grantee himself either assumes the whole mortgage debt and charges his parcel with the entire burden of the mortgage, or else takes and holds his parcel subject to and chargeable with its proportionate share of the encumbrance.- Thirdly, although the deeds are' warranties, so that the doctrine will otherwise apply, any particular grantee may by his subsequent omissions, or by his subsequent dealings with other grantees, disturb the order of the equities in his own favor, and create equities in behalf of other owners, and even render his own parcel primarily liable as between all, the grantees. Finally, whenever the equities of any original grantee towards the other parties have been fixed, either by the form of his deed, or by his own omissions or dealings, then any subsequent purchaser or en- cumbrancer from such grantee takes the parcel subject to the same equities which originally attached to it; the same equities folloAV the parcel in its devolutions. The equities among successive grantees, as determined by the general doctrine of the preceding par- agraph, will therefore be disturbed in the following instances: 1. Whenever a grantee of any parcel either expressly assumes the payment of the mortgage, or his deed is of such a form that he takes the parcel conveyed to himself suhjed to the mortgage as a port of the consideration, then, as has already been shown, the par- cel thus purchased becomes, in the hands of himself and of those holding under him, primarily chargeable with the mortgage debt as against the mortgagor-grantor, and consequently as against all subsequent grantees of other parcels from the moi'tgagor. By such an express or implied assumption, the doctrine of liability in the *See Kendall v. Woodruff. 87 N. Y. 1. 7, por Folder, C. J. * Stephens v. Clay 17 Colo. 481), 30 Pac. 43, 31 Am. St. Rep. 328. § l,-^-36 EQUITY JUKISPKUDKXCE. T3<5 inverse order of alienation, and all of its conse has no other notice of it, B has a right to assume that he himself is the first grantee, and that one— half of the land remains in the mortgagor's hands primarily liable for tUe mortgage debt. By putting his own deed on record, B thus obtains a precedence over A, which avails on behalf of piirchasers and mortgagees of the same parcel holding under him. B might, however be charged with notice of A.'s deed, although unrecorded; and if A were in open, exclusive possession of his parcel, this would generally operate as notice: (^ray v. Lumber Co., 128 Mich. 427, 87 N. W. 370, 54 L. R. A. 7:51. "Aderholt v. Henry. 87 Ala. 41(1. South. 025. 6 L. R. A. 451. 72S) mortgages: coxtkibutiox and exoxeratjox. ;f I'i'it; liOn. 70 Am. St. Rep. 8.51. ^Brooks V. Benhnm. 70 Conn. 92. :« Atl. OOS. -.V.) Atl. 1112. W, Am. St. Rep. 87 § 10-^7 EQUITY JURISI'RUDEXCK. 730 liable, in the order of their several Uahilities, from an amount of the mortgage debt equal to the value of the parcel released.* If the value of the parcel released equals the mortgage debt, then all the sub- sc(|uent parcels are wholly relieved from liability; if the value is less than the mortgage debt, the subsequent parcels can, at most, be liable, in their order, only for the excess of the debt over such \;ilue. In any case, this effect of a release may be obviated by till- consent of the other owners, and perhaps by special equities arising from the provisions of the mortgage, to which all of their parcels are subject. § 1227, V. Foreclosure. — The only equitable remedies of the jnortgagee for enforcing the lien of the mortgage when it has be- ccme due are the two actions to both of which the name "fore- closure" is ordinarily given. These two actions are the "strict foreclosure" and "foreclosure by judicial sale." The strict fore- closure is a remedy based upon the original conception that the mortgage vests the mortgagee with the legal estate in the mortgaged premises, and its object is to carry out that conception by render- ing the mortgagee's legal -estate and title absolute, and cutting oft' the equity of redemption held by the mortgagor and others claiming or holding under him. It is the common form of remedy in England. In this country it is confined as an ordinary remedy to. states which have adopted the first or legal theory of mortgages as heretofore described; and even in many of the states belouffing to this class the foreclosure by judicial sale seems to be the form M4oy V. J5raiiiliall. 10 X. .7. Eq. 56.3. 97 Am. Dpp. 687: Turner x. Fleiiiiikon. 164 Pa. St. 460, 30 All. 4S6. 44 Am. St. Rep. 624. This rule may be illustrated hv an example: A mortgasjor has conveyed all the premises in five lots, successively, to A, B. G. D, and E; these lots are liable to be sold in the order. E. D, C. B. A. If the mortgagee should release A's lot, his right to nitorce the mortgage in their order against the others would not be affected. If he should release E. and the value of his lot equaled the mortgage debt, the \\ liole mortgage would be discharged. If the value of E's lot was less than the mortgage debt, the mortgagee could tlien resort to D's lot for the excess only, and if its proceeds equaled that excess, all the remaining lots would be free: if there was a balance still due after the sale of D's lot. C's could be sold for that halance, and so on. Jf the mortgagee should first release C's lot. tlie situation would be more complicated. The mortgagee could still enforce the whole mortgage against E's lot first, and then for any excess against D's. If a balance was still clue after the sale of these two lots. E's would not be liable for all of that balance. The vrihie of C's lot which was released must be added to the proceeds of E's and D's. and this sum subtracted from the gross mortgage debt, and if any excess remained. B's lot. and finally A's. would be liable only for that excess: if there was no excess. B's and A's lots would be free. It should be observed that a release does not always thus operate as a discharge; it is not a technical discharge: it is a discharge only where, on principles of equity and justice, it ought to produce that effect. "i'ol FOKiXLosrui-: of moutgagks. § I'^'^S of remedy most frequently used. The strict foreclosure is incon- sistent with the theory which regards the mortgage as creating only an equitable lien, and as conveying no legal estate.^ In some of the states which have adopted this system, it is expressly prohibited by statute; in others, it has become practically obsolete, or is re- sorted to only under special circumstances, where the foreclosure l)y sale would be insufficient or impracticable.- The strict fore- closure assumes that the mortgagee is already in possession by virtue of his legal title. The decree ascertains and fixes the amount of the debt due and payable, after an accounting, if nccessarv: prescribes a period — say six months — within which redemption must l)e made by payment of this sum; and declares that upon default •of payment within the specified period, the legal estate and title of the plaintiff shall be absolute, and the equity of redemption of the mortgagor and of all other persons claiming under him. sul)- s(H|uent to the mortgage. Avho were made defendants in the suit, shall be forever barred, cut oft', and foreclosed. By operation of this decree, the mortgagee's legal title to the land, acquired by the mortgage as a conveyance, is finally confirmed and established, free from all equities of redemption. § 1228. Foreclosure by Judicial Sale.— This form of remedy, which is by far the most common in our own country, is based upon the notion that the mortgage simply creates an equitable lien upon the premises, as a security for the mortgage debt, and its object is to enforce that lien by a sale of the premises, in order that the proceeds may be applied in satisfaction of the debt. The decree ascertains the amount due, and orders that the mortgaged premises he sold at public auction by judicial sale, and the proceeds be ap- plied in payment of the amount thus ascertained, after satisfying the expenses of the sale itself. In many of the states, preparatory tn the decree, the court orders an inquiry to be made into the pres- ent situation and ownership of the premises, so that the equities of the owners may be provided for, and as far as possible secured by the terms of the decree. If the land has been conveyed in siic- ^Tofferson v. Coleman, 110 Ind. .^^l.^. 11 N. E. 405. "For example, where a mortgajre is in ihe form of an absolute deed of <'onveyance, and the Sfrantee-mortjraoee is in possession, a strict foreclosure may be appropriate for the purpose of makintr his title absolute; althouirli even in this case the foreclosure by sale is frequently adopted. The strict fore- closure is also proper in case of a land contract, in order to cut off the vendee's equitable rijrht. See post, §§ 1260-12^2. Also, where the land had been actually sold under a decree rendered in a sviit for foreclosiire by sale, and some sub- sequent encumbrancer or other person interested in the i)remises was not made a party defendant to tliat suit, so that his ri37 EQUITY JUltlSPKUDENCE. '*i -1^0 party making the contract, or property to be acquired by him in the future, although, with the exception of one particular species of things, it creates no legal estate or interest in the things when they afterwards come into existence or are acquired by the promisor,^ does constitute an equita])le lien upon the property so existing or acquired at a subsequent time, which is enforced in the same man- ner and against the same parties as a lien upon specific things exist- ing and owned by the contracting party at the date of the contract.- §1237. Form and Nature of the Agreement— Illustrations of Particular Agreements.— The form or particular nature of the agreement which shall create a lien is not very material, for equity looks at the final intent and purpose rather than at the form; and if the intent appear to give, or to charge, or to pledge property, real or personal, as a security for an obligation, and the property is so described that the principal things intended to be given or charged can be sufficiently identified, the lien follows.^ Among the kinds of agreement from which liens have been held to arise, the follow^ing are some important examples: Executory agreements which do not convey or transfer any legal estate in the property, but which stipulate that the property shall be security, or which pledge it, for the performance of au obligation.^ As an agreement to give a mortgage creates a lien, so a mortgage which, through some informality or defect in its terms or mode of execution, is not complete and valid as a true and proper mortgage, will nevertheless generally create an equitable lien upon the property described. The intent to give a security being clear, equity will treat the instru- ment as an executory agreement for such security.^ An assign- ^The excepted case is that of an agreement to sell chattels not yet in exist- ence, which are of the kind said to have a "potential existence," the most familiar examyile of which is an expected crop: Grantham v. Hawley, Hob. 132, Kirch. 40. "Holroyd v. Marshall. 10 H. L. Gas. 191, Kirch. 42. This subject is more fully treated in the subsequent chapter upon assignments. See post. §§ 1283, 1288. ^ Flagg V. Mann. 2 Sum. 48G. 533. Fed. Gas. No. 4847, Kirch. Ifi7. per Story, .1.: '"If a ti'ansaction resolve itself into a security, whatever may be its form, and whatever name the parties may choose to give it. it is in equity a mortgage flien]." - An agreement by which the maker incurs an obligation, and pledges the produce of certain land, or the land itself, or "gives a lien on the land" as security for the performance: Ghase v. Peck. 21 N. Y. ."iSl. Kirch. 124. For further illustrations of such agreements, see Bell v. Pelt. .'51 Ark. 43.3, 11 S. W. 684, 14 Am. St. Rep. ,57, 4 L. R. A. 247: Perry v. Board of Missions, 102 N. Y. no, N. E. no, Kirch. 135. ^V^'ayt V. Garwithen, 21 W. Va. 51G. 1 Scott 307; Atkinson v. Miller. 34 W. Va. 115, 11 S. E. 1007, L. R. A. 544, 1 Scott 308: where a mortgage pur- porting to be given by a corporation was not exocntod in its nnme nor attested by 741 LIENS AKI.SIXU FROM l.M PLIED CONTKACTS. >i 1238 iiient of the rents and profits of land as security for a debt is anotlier mode of creating an equitable lien on the land in favor of the assignee^ and the assignment of a lease by way of security produces the same effect/ The assignment for a similar purpose of a contract for the purchase and sale of land may in like manner operate to create an equitable lien in favor of the assignee.'^ The equitable liens which arise from such assignment must largely de- pend upon a performance of the conditions and stipulations con- tained in the original contracts, whatever be their form, which are assigned. . . . SECTION III. AEISING FROM IMPLIED CONTRACTS. AJNTALYSIS. § 1238. Nature of "implied contract" in equity. § 1239. General doctrine as to liens arising ex aequo et bono. § 1240. ExpenditTire by one joint o^vner. § 1241. Expenditure for the benefit of the true owner. § 1242. Expenditure by a life tenant. § 1243. In other special cases. ^1238. Nature of "Implied Contract" in Equity.— The term "implied contract" is a pure fiction of the common-law system of pleading, invented so that certain equitable liabilities, not aris- ing from express promise, but recognized as existing by the courts of law, might be consistently enforced by the action of assumpsit. The phrase is not only a misnom.er in equity, but it violates equi- table conceptions. There is no necessity for resorting to the notion of "implied contract" to account for the existence of any equitable rights and liabilities which do not arise from express promise. The class of equitable rights and liabilities which at law are referred to the fiction of "implied contract" really exist ex aequo et bono; they arise wholly from considerations of right and .I'ustice, and from the application to particular conditions of fact of those max- ims which lie at the foundation of equity jurisprudence. its corporate seal, but was executed in the name of its officers, they having nuthority, however, to bind the corporation by executing the mortgage in its name, it was held to create an equitable lien: Love v. Sierra Nevada Co., 32 Cal. 639, 652, 91 Am. Dec. 602. *Ex parte Wills. 1 Ves. 162. ■'' .-\ bond conditioned to convey by deed upon payment of tlio (uirchase price is in its operation tantamount to an agreement to convey, and the liens arising from it are identical Avith the liens of the vendor and the vendee arising from the ordinary contract f'^r the sale of land described in a subsequent section: (Tvaham v. McCarojibell, Meigs .52, 33 Am. Dec. 126, 1 Ames Eq. Jur. 205; Button v. Sehroyer, 5 Wis. 508, 1 Ames Eq. Jur. 225. §1241 EQUITY JUIU.SPRLDKXCK. 'H^ § 1239. General Doctrine as to Liens Arising ex Aequo et Bono. --In addition to the general doctrine that equitable liens are cre- ated by executory contracts which, in express terms, stipulate that property shall be held, assigned, or transferred as security for the promisor's debt or other obligation, there are some further instances where equity raises similar liens, without agreement therefor be- tween the parties, based either upon general considerations of jus- tice (ex aequo et bono), or upon the particular equitable principle tliat he who seeks the aid of equity in enforcing some claim must himself do equity, — that is, must recognize and admit the equitable rights of the opi)osite party directly connected with or arising out of the same subject-matter. I shall briefly describe the most im- portant instances Avhich belong to this species of equitable liens. § 1240. Expenditure by One Joint Owner. — Where two or more per.sons are joint purchasers or owners of real or other property, and one of them, acting in good faith and for the joint benefit, makes repairs or improvements upon the property which are permanent, and add a permanent value to their entire estate, equity may not only give him a claim for contribution against the other joint own- ers, with respect to their proportionate shares of the amount thus expended, but may also create a lien as security for such demand upon the undivided shares of the other proprietors.^ § 1241. Expenditure for the Benefit of the True Owner, — Such an equitable lien has not always been confined to cases in which a contract to reimliurse could be implied at law. The right to a con- tribution or reimbursement from the owner, and the equitable lion on the property benefited as a security therefor, have been extended to other cases where a party innocently and in good faith, though under a mistake as to the true condition of the title, makes im- provements or repairs or other expenditures which permanently in- crease the value of the property, so that the real owner, mlicn lie seels the aid of e(j}iHii to establish his right to the property itself, or to enforce some equitable claim upon it, having been substantially benefited, is recpiired, upon principles of justice and equity, to repay the amount expended.^ ^Lake v. (libson, 1 Eq. Cas. Abr. 290. pi. .3. 1 Seott 367. ^ In Older that there may be a claim for reimbursement and a lien as security therefor in any case of tliis general kind, either the aid of a court of equity nuist be requisite on behalf of the owner npiinst \\hom the claim for reim- bursement is made, so that he can be compelled to do equity, or else there must be some element of fraud in the transaction as ground of equitable interference. If. therefore, the true owner can recover his land by nn action at law, equity \\\\\ not. in the alisence of fraud, compel him to reimburse the occupant even in good faith for disbursements made in repairs and im- provements. (See ante, §55 807, 821 : Moore v. Cable, 1 Johns. Ch. 38,5, Kirch. 743 LIENS IKOM CllAliGES BY WILL OK DEED. § 1244 SECTION IV. ARISING FROM CHAKCES BY WILL OR BY DEED. ANALYSIS. § 1244. Oencial cloctrine; nature of a charge. § 1245. What amounts to a cliarge creating such a lion. § 1246. The same; express charge. § 1247. The same; implied charge; English and American rules stated in foot-note. § 1248. Observations upon Hie rules adopted by the American courts. § 1244. General Doctrine — Nature of a "Charge." — Another spe- cies of equitable lien not growino' out of contract directly between the parties arises when specific property — a lot of land, a fund of securities, or the land contained in a residuary devise — is con- veyed, devised, or bequeathed subject to or charged with the pay- ment of debts, legacies, portions, or annuities in favor of third persons given by the same instrument. The legal title to the prop- erty vests in the grantee, devisee, or other recipient, but a lien thereon is created in favor of the beneficiary named, which can be enforced in equity. Where, for example, land is devised charged with the payment of the testator's debts generally, a lien arises in favor of the creditors, and any one or more of these can enforce it against the land so devised; or where a lot is devised charged ■with the payment of a particular legacy, the legatee can in like manner enforce his lien against such tract in the hands of the de- visee.^ There is a plain distinction pointed out in the previous chapter on trusts, between a gift of property in trust merely to pay debts or legacies, and a gift of property charged with or sub- ject to the payment of debts or legacies. - .524, See. in general. Thomas v. Evans. 105 X. Y. G14. 12 N. E. .571, 59 Am. Rep. 510: Williams v. Vanderbiit. 145 111. 238, 251, 36 Am. St. Rep. 486, 404, 34 N. E. 476, 21 Tj. R. A. 480. Tliis rule has been changed by statute in several of the states, which allow compensation to defendants, even in actions of ejectment, when the land is recovered from them for the "better- ments" which they have added to the land. * \\'hpre the charge consists in a direction that the devisee shall pay a legacy or debt, his acceptance creates a personal liability: Brown v. Knapj). 70 N. Y. 136. But where there is no such direction, and the land is given simply subject to the payment, or tlie charge is in any manner made upon the land alone, the devisee assumes no personal liability; the remedy of the legatee or creditor, based upon sucli charjre. is confined to his enforcement of the lien upon the land: Clift v. Moses, 116 N. Y. 144, 22 N. E. 303. See, also, Nudd V. Powers. 136 Mass. 273. *See ante, S 1033, note. § 1-347 EQUITY JURISPRUDENCE. 744 § 1245. What Amounts to a Charge Creating Such a Lien. — Since, according' to the settled general doctrine, the personalty is ordinarily the primary fund for the payment of debts, and is the I)rimary and even only fund for the payment of legacies as between the legatees and the devisees, it follows that an intention on the l)art of the testator to change this natural order by a charge upon lands devised, which should render them primarily or even ratably- liable for the payment of all or of any particular debts or lega- cies, must clearly appear, either from the express language of the will or by fair and necessary implication from the various dispo- sitions made by the testator.^ A charge of debts or legacies upon lands devised may be either express or implied. § 1246. The Same. Express Charge. — A testator may in ex- press terms charge the payment of all his debts, or any individual debt, and all his legacies, or any of them, either upon the lands de- vised by a residuary clause, or upon any particular lot or parcel of land specifically devised, and the charge may be upon the cor- pus of the land, or upon the rents and profits alone. The same is true of an express charge upon any particular fund of personal property bequeathed, or npon the residue given to the residuary legatee. What language will amount to an express charge must always be a matter of construction and interpretation, depending: upon the terms employed in each individual case.^ § 1247. The Same. Implied Charge.— The intention of a testa- tor to charge debts and legacies npon the real estate devised may also be implied from the general dispositions of the will. — from tlie mode in which the real and the personal property are donated. The English and the American decisions all recognize this fact, hut they are not all agreed npon the effects produced by particular dispositions. ... SECTION V. THE GRANTOR'S LIEN ON CONVEYANCE. AXALY8TS. §§ 1249-1254. The ordinary grantor's lim for impaid purchase priee. § 1249. General doctrine: in what states adopted or rejected; states classified in foot-notes. S 12.50. Origin and rationale; Ahrend v. Odiorne, discnssed. S 1251. Requisites, .extent, and effects of this lien; great uncertainty and conflict in the results of judicial opinion. § 1252. How discliarged or waived; effect of taking other security, etc. ' Hoyt V. Hoyt, 85 N. Y. 142. 'See Merritt v. Bucknam, 78 Me. 504, 7 Atl. .'383; Metcalfe v. Hutchinson, L. R. 1 Ch. Div. 501. 745 THE oHANTon's Lri:x ox coxveyanck. S 1'^")0 § 1253. Against whom llic lien avails. § 1254. In favor oi whom tlie lien avails; whether or not assignable. §§ 1255-1259. Grantor's lien by reservation. § 1255. General description. § 125G. What creates a lien by reservation. § 1257. Essential nature of the lien. § 1258. Its operation and ettect. § 1259. The grantor's dealing with this lien: waiver: assignment. § 1249. General Doctrine — In What States Adopted or Rejected. — Although the grantor's and the vendor's lien are ordinarily treat- ed of together by one and the same description and discussion, yet they are essentially different, producing different consequences, and governed in many important and practical respects by ditt'er- ent rules. By presenting them separately, more accuracy and cer- tainty will result, and mueli nnnecessary confusi^m will, I think, be avoided. It is a firmly established doctrine of the English equity, that the grantor of land, who has sold and conveyed and delivered possession to the grantee, as well as the vendor in a con- tract for the sale and purchase of land who has delivered possession to his vendee, retains an equitable lien upon the land for the un- paid purchase-money, although he has taken no distinct agreement or separate security for it. and even though the deed recites that the consideration has been fully paid.^ The grantor's lien exists in the following states and territories: Alabama, Arkansas, Cali- fornia, Colorado. District of Columbia, Florida. Illinois. Indiana, Iowa. Kentucky. Maryland, Michigan, Minnesota, Mississippi, ^lis- souri. New Jersey, New York. Ohio, Tennessee, Texas. Wisconsin. In several of these commonwealths the lien has been recognized by statute: and in a few of them, it seems, nnder a somewhat modi- fied form, to be the ordinary mode of securing payment in convey- ances of land on credit. In the remaining states of the Union the doctrine has either been condemned by the courts, or after having been judicially accepted, has been abrogated by statute, or the question as to its existence does not seem to have been finally de- termined. The following states belong to this class, in which the lien does not exist, either because rejected or not adopted by the courts, or abolished by statutes: Connecticut. Delaware, Georgia, Kansas. IMaine. "Massachusetts. Nebraska. New Hampshire, North Carolina. [Oregon"!. Pennsylvania. Ehode Island. South Carolina, Vermont. Virginia. fWashington"]. West Virginia. - § 1250. Origin and Rationale. — With regard to the origin and »Mackrpth v. Symmons, 15 Vos. 329. 1 Load. Ca^. l^q.. 4th Am. ed., 447, 1 Scott 71: Garson v. Green, 1 Johns, (^h. .30S. 1 Scott 7f> : Chase v. Peck, 21 N. Y. .581, Kirch. 124. -Ahrend v. Odiorne, 118 Mass. 201. 19 .Am. Rej). 449. Kirch. 131. § DiV^O EQUITY JLKISPRUDKNCE. T4G rationale of the grantor's lien, there has been a great diversity of opinion. It has been accounted for as a trust; as an equitable mortgage; as arising from a natural equity; and as a contrivance of the chancellors to evade the unjust rule of the early common law by which land was free from the claims of simple contract creditors.^ Notwithstanding all these diifering theories, as illus- trated by the quotations in the foot-notes, the original and true ground of this lien appears to me very simple and obvious. It is clearly one of the many instances to be found in the early English jia'isprudence, whether legal or equitable, of the higher importance, consideration, and value given to real than to personal property. It is a most natural judicial conception that upon the sale of aiu/ thing on credit, the very identical thing sold should be regarded in some sort as ^ special fund out of which payment of the price was to be obtained, or at least secured, and that the seller should not be considered as parting absolutely with his whole interest and dominion until the price was fully paid. This natural conception would undoubtedl}^ have manifested itself in a universal rule, ap- plicable to the sales of all things, had not other considerations and motives of policy prevented. Such considerations and motives did interfere and prevail in the case of chafrels and all personal prop- erty. The interests of trade and commerce required that the trans- mission of these things should be free, and that ownership should go or appear to go with possession. These reasons, joined with the comparatively slight importance given to the ownership of personal property resulting from feudal institutions, prevented the appli- cation of the principle to the sale of chattels and things in action, in the same manner as, at a later day, the same reasons were ap- plied with even greater force to the transfer of negotiable instru- ments. Land, however, not being looked upon as a subject of commerce, being closely associated with family interests and social distinction, its free transmission not being considered as essential, and its ownership being highly favored and surrounded with senti- ments of peculiar feudal honor, it was inevitable that the natural principle which I have described should have been allowed its full force and effect upon the sale of real estate. Its ownership being so high and almost sacred a right, the proprietor selling on credit v/as not considered as parting with every interest or dominion over the particular tract, although he had delivered possession, until he had received full payment of the price which had been agreed upon as a substitute for the land itself. As the common-law rules ' riie last-namptl opinion was maintained in Alirend v. Odiorne, 118 Mass. 261, 206, 19 Am. Rep. 449, Kirch. 131, by Mr. Chief Justice dray. 747 T]iE (iRANTOir's LiK.v OX coxvj:ya>-ce. S I'iql furnished no means for workinii- out this idea, it was both natural and inevitable that ecjuity should make the conception practical un- der the familiar form of an equitable lien.- In later times, the equity judges, attempting- to give .some explanation of the doctrine, invented the theories of trust, mortgage, and the like. The cor- rectness of this rationale further appears from the fact that under some circumstances the lien has been extended by modern judges to sales of personal property, § 1251. Requisites, Extent, and Effect of this Lien — Uncertain and Conflicting Results of Judicial Opinion. — The grantor's lien, ■wherever recognized, is only permitted as a security for the unpaid purchase price, and not for any other indebtedness nor liability. There must be a certain, ascertained, absolute debt owing for the purchase price; the lien does not exist in behalf of an,y uncertain, contingent, or unliquidated demand.^ No other single topic be- longing to the equity jurisprudence has occasioned such a diversity and even discord of opinon among the American courts as this of the grantor's lien. Upon nearly every question that has arisen as to its operation, its waiver or discharge, the parties against whom it avails, and the parties in Avhose favor it exi.sts, the decisions in dififerent states, and sometimes even in the same state, are di- rectly conflicting. It is practically impossible to formulate any general rules representing the doctrine as established throughout ''It is evident from the foregoing account that the theory of trust is utterly without fomidation, while that lately adA'anced by the ]\Iassachusetts court is imperfect and unsatisfactory — substituting, in fact, an effect for a cause. The absence of any power at the common-laAv to make land liable for ordinary debts, instead of being the source of the grantor's lien, was itself only another instance and consequence of the same general superiority given to the ownership of land ; both were incidents of one common mode of treating real estate as compared with personal. I venture the opinion that it is also obvious from tlie explanation of the text that the original grounds and reasons for admitting the grantor's lien do not exist in our own country, and the lien itself is not in hai-mony with our general real-property law. The tendency both of our legislation and of our social customs is to make land a subject of commerce, and its transmission as free as possible; while the rights of grantors can be fully protected by mortgages which, in nearly all the states, are widely different from the instrument bearing the same name in England. See Frame v. Rliter, 29 Oreg. 121, 45 Pac. 290, .54 Am. St. Kep. 781. 34 L. R. A. «90. 'The lien did not exist in the following cases: Peters v. Turrell, 43 Minn. 473, 45 N. VV. 867, 19 Am. St. Rep. 2,52 (agreement to support grantor for life) ; Parrish v. Hastings, 102 Ala. 414, 14 South. 783, 48 Am. St. Pvcp. .50 (agree- ment to fence the land); Graham v. Moffett, 119 Mich. 303. 75 Am. St. Rep. 393, 78 N. VV. 132 (does not exist for unliquidated damages resulting from the vendee's fraudulent misrepresentations as to the value of personal property U'hich formed part of < he price). § j.2b2 EQUITY JUIMSPUUDKXCE. 748 the whole eoimtry. The subjects to be considered in the further treatment are: 1. When the lien is discharged or waived; 2. ^\gainst whojn it avails; and 3. In favor of whom it avails. § 1252. How Discharged or Waived. — It is a generally settled rule that the lien, if otherwise existing, is not waived or destroyed by the grantor's giving a receipt in full for the purchase price, or by a recital to that effect in the deed, nor by the grantee's giving- his own personal security — -his bond, note, bill — for the price. ^ If, however, the grantee's own bond, note, or other promise is given, not as a security for the price, but as a substitute for or in novation of the purchase price, so that no debt for tlie price any longer ex- ists, the lien is destroyed, and a fortiori this result follows where t!ie bond, or note, or engagement of a third person is thus given.- The complementary doctrine is also generally settled, that the ac- ceptance of distinct independent security for the purchase price, other than the grantee's own personal undertaking-, destroys or discharges the lien, unless the continued existence of the lien is agreed upon by the parties. While this doctrine is generally accept- ei!, there is much conflict of opinion in its application to particular r'onditions of fact.^ The securities which ordinarily produce this effect are, the grantee's mortgage on the very land conveyed; his mortgage on other land; the note, bill, bond, or undertaking of a third person ; the note or bill of the grantee indorsed or guaranteed by a third person, and the like; but the decisions are not unani- mous.^ Finally, after the lien has risen against the grantee, it may be waived as against third persons by the laches or affirmative acts of the grantor himself. In other words, the grantor nmy, by his negligence or other acts, postpone his lien, or estop himself from asserting it against third persons who have acquired title luuler the grantee.'' HJarson v. Greoii, 1 -rolins. Ch. ;?0S, 1 Scott 70; Maroney v. Boyle, 141 X. Y. 4G-2, m N. E. 511, 38 Am. St. Rep. 821 (orantee's own note, etc.); Hood v. Hammond, 128 Ala. .)()9, 30 South. 540, 86 Am. St. Rep. 159 (lien held to remain, altliougli tlie deht is barred by the statute of limitations). -Williams v. McCarty, 74 Ala. 295. " Some cases iiold that the acceptance of independent security is not con- clusive; that it merely raises a prima facie presumption of an intention to give up the lien, and that this presumption may be overcome and the lien established: Fonda v. -lones. 42 ^Miss. 792. 2 Am. Rep. 660; Woodall v. Kelly, vS3 Ala. 3(iS. 5 South. \(\-\. 17 Am. St. Rep. .'57. *See Avery v. f'lark, 87 C'al. fi]!). 2;") I'ae. nil), 22 Am. St. Rep. 272 (mort- gaoe by grantee) : Fouch v. Wilson, 60 Ind. 64, 28 Am. Rep. 651 (but lien not defeated by a forged security) : Kendrick v. Eggleston. 56 Iowa 128. 41 Am. Rep. 00, 8 N W. 786 (lien defeated by security which was valid but proves to be worthless). Personal undertaking or indorsement of third per- son defeats the lien. See Rice v. Rice. 36 Fed. 858. < ° Rice v. Rice, 2 Drew, 73, H. & B. 23, 1 Scott, 334. 749 THE (iHAXTOK's LIEN OX CONVEYANCE. § 12o-i: § 1253. Against Whom the Lien Avails. — The grantor's lien once arising', and not waived by any act or default of hi.s, avails against the grantee himself, his heirs, devisees, and other immediate suc- cessors in interest.^ It also avails against all subsequent purchasers and encumbrancers of the land under the grantee who are not bona lide purchasers for a valuable consideration and without notiee.- It does not prevail against a subsequent bona fide purchaser or mortgagee of the land for a valuable consideration and without no- tice of the grantee's equit3^•' Whether the grantor's lien is or is not superior to that of subsequent judgments recovered against the grantee is a question upon which the American decisions are in direct conflict; nor is it possible by any interpretation to recon- cile their opposing views. On principle, however, — and especially when considered in connection Avith the universal sj'stem of regis- try. — it seems to me clear that the subsequent judgment liens are entitled to precedence.^ §1254. In Favor of Whom the Lien Avails. — In England the prevailing opinion regards the lien not as merely personal to the grantor, but as an interest in land of which other parties may avail themselves by subrogation or marshaling, as legatees or judgment creditors of the grantor, or by direct assignment. In this countiy 'Mackretli v. yyninions, 15 Ves. 329, 1 Scott 71. -Pylant v. Reeves, 53 Ala. 132, 25 Am. Rep. (JOo ; Woodall v. Kelly, 85 Ala. 3GS, 5 South. 164, 7 Am. St. Rep. 57. = First Nat. Bank v. Tompkins, 57 Fed. 20, 6 C. C. A. 237. As to what constitutes notice by recitals in deed, by possession, etc., see ante, §§ 626, 628. ^ . . . The grantee holds the full legal title and estate, and he appears by the records to be the legal owner. The grantor's interest is purely an equitable lien, secret, undisclosed Iw the records. A judgment creditor of the grantee has a right to regard him as the complete owner in reliance upon the records; he has no knowledge, and ordinarily no means of knowledge, of the grantor's secret equitable lien. I'he judgment against the grantee is a legal lien upon the legal estate in his hands. It is not the case of two successive equitable liens of the same nature, where priority of time gives precedence. It is true tiiat a prior equitable eftafe may sometimes prevail against a subsequent legal lien by judgment ; but this doctrine is confined by the strong tendency of American decisions to true equitable estates. The grantor's interest is in no sense an equitable estalr; it is a mere lien, not efisentiaJh/ of a higher- nature than that of a judgment, while that of the judgment possesses the supe- riority of being legal. The doctrine that between a prior equitable interest and a subsequent Icr/aJ interest of equal character, the legal will prevail, seems to l)e controlling. In my opinion, it is plain frojn this analysis, oti principle, that the i)rior grantor's equitable lien nnist succumb to the subs('(|ucnl legal lien of the judgment against the legal estate of the grantee, when the judg- ment is recovered for a valuable consideration and without notice. Giving the judgment the precedence, see Cutter v. Ammon, 65 Iowa 281, 21 N. W. (■(04. (living the grantor's lien the precedence, see Waltim v. Ilargroves, 42 Miss. IS, 97 Am. Dec. 429. § 1256 EQUITY JLIUSI'KUDEXCE. 750 the strong tendency of the court has been, for reasons difficult to be understood, to ti'eat the lien as strictly personal to the grantor, and as incapable of being transferred, either by direct assignment or by equitable subrogation. It may, of course, be enforced by the grantor himself, and by his heirs or immediate successors. In Eng- land it may be enforced by an assignee, and an assignment of the debt, it seems, carries also the lien.^ The English doctrine is fol- lowed in a portion of the states, but in most of them the lien is held personal to the grantor, and not assignable.- By this theory, an assignment of the debt, either with or without an express assign- ment of the lien, does not carry the lien so that it may be enforced by or on behalf of the assignee. Where an express assignment is thus forbidden, it necessarily follows that no equitable assignment b}^ subrogation is possible. Notwithstanding this weight of au- thority, the restrictive rule seems to rest on no ground of principle. § 1255.^ Grantor's Lien by Reservation.— In several of the states the practice has become quite common of reserving a lien, as se- cui-ity to the grantor for the unpaid purchase price, by means of an express clause or stipulation in the deed of conveyance. Such a reservation creates a specific lien which in its essential na- ture more resembles the ordinary purchase-money mortgage given back by the grantee, than the implied equitable lien of the grantor heretofore described; for since it is contained in and recorded with the deed, it becomes notice to and takes precedence of all subse- quent purchasers and encumbrancers holding under or deriving title through the same conveyance-, and it generally has the same priority among other outstanding encumbrances which is accorded to the purchase-money mortgage. § 1256. What Creates a Lien by Reservation.— The provision which shall thus create a lien by reservation may be of various forms; but it must be something more than a recital that a speci- fied amount of the purchase price remains unpaid. It must show the amount of the purchase-money due which is to be secured by the lien, and must in some manner express an intent that the pay- ment of such amount is to be charged upon the land.— that the 'Dryden v. Frost, 3 :\lyliie i"c C. 670. 'Not assignable: Baum v. Grigshy. 21 Cal. 172, 81 Am. Dec. l.^S (Field. C. J.) ; Wellbom v. Williams, 9 Ga. 86. 52 Am. Dec. 427. Assignable: Sloan V. Campbell, 71 l\Io. ,387. 36 Am. Rep. 403: Kern v. Hazlerigg, U Tnd. 443, 71 Am. Dee. 860. WTienever, by nn avrangeinent between the parties, a note for the purchase price is given by the grantee to a third person instead of to the grantor, such person is generally held entitled to enforce the lien: Perkins v. Gibson, 51 Miss. 699, 24 Am. Rep. 644. 751 TIIK UUAXTOU'.S LIKX ON COXVKYAXCE. § 1259 land is conveyed subject to a definite charge for the payment of the sum/ § 1257. Essential Nature of This Lien. — This peculiar species of iien differs essentially from that which equity raises by implica- tion in favor of the grantor, since it is based upon and created by express contract. It is in all essential elements a mortgage. The deed is made to embody an informal mortgage or defeasance, and is thus prevented from being absolute so long as the price remains unpaid. The lien is made a matter of record, is thus a constructive notice to all subsequent dealers with the land, and it is in fact governed by the rules which regulate the effect of an ordinary mortgage.^ It is in fact an American mode of realizing the purely equitable conception of a mortgage stripped of all its legal forms and features. § 1258. Operation and Effect of This Lien. — It follows as a neces- sary consequence that when such a lien is expressly reserved in the deed, the grantee's title is. in a certain sense, imperfect until the price is paid; or, to speak more accurately, the title is encum- bered, and all persons holding or claiming under or through the deed are affected with notice of the lien, and their rights are neces- sarily subordinate to it.'^ On principle, the lien by reservation should give the grantor the same rights of priority over other gen- eral encumbrancers which are held by the mortgagee in a purchase- money mortgage. §1259. The Grantor's Dealing with the Lien— Waiver— Assign- ment. — The grantor's powers of dealing with the lien by reserva- tion are much more extensive than those over the equitable lien heretofore described. His acts which would destroy the implied equitable lien, such as taking other security on land from the grantee, or taking notes of third persons as security, and the like, do not thus affect the existence and validity of the expres.s lien. The grantor may of course Avaive his lien; whether he does so is a matter of intention, which must appear either expressly or by acts directly inconsistent with its existence and indicating a clear intent to waive.^ The doctrine is established by the great prepon- derance of authority, that this lien is not personal to the grantor, hut may be transferred: that it passes by an assignment of the note, bond, or other evidence of debt given for the purchase price. 'Heist V. Baker, 49 Pa. St. 0: Doosclier v. Dooscher, Gl Minn. .320, fiS N. W. 7.S6. 'To the general effect, that this lien is one by express contract resemblin": that by a mortgage: White v. Downs. 40 Tex. 225; Gordon v. Rixey. 7G Va. 694. MVarford v. Hankins. 1.50 Ind. 4S3, 50 N. E. 468. 'Coles V. Withers 33 C.ratt. 186. § 12G0 EQUfTY JURISPRUDENCE. 753 aiKl may be enforced by the assignee.- When notes given for in- stallments of the purchase price are secured by a lien reserved in the deed, and these notes are transferable, the lien or quasi mort- gage acquires some of the elements of negotiability.^ This lien is enforced in equity by a suit and relief similar in all respects to those for the foreclosure of a mortgage.* SECTION VI. THE VENDOR'S LIEN AND THE VENDEE'S LIEN ON CONTRACT FOR SALE AND PURCHASE. ANALYSIS. §§ 1260-12G2. Vendor's lien under contract of sale. S 12G0. General doctrine: vendor's lien and grantor's lien distinguished. S 12GL Essential nature and effects; vendor's interest determined by doctrine of equitable conversion. § 1262. How enforced. S 12(i.">. \'endee's lien for |)iirohav('-inoney paid. § 1260. Vendor's Lien under Contract of Sale. — It has been said in English and American decisions, that the vendor's lien may arise before conveyance as Avell as after; and the interest or right of the vendor under an ordinary contract for the sale of land, or a bond conditioned to sell and convey, or whatever may be the form of the agreement, has been called a vendor's lien, and treated in the same manner as the equitable lien arising in favor of the grantor upon an actual conveyance of the land where the purchase price in whole or in part is left unpaid.^ This is an unnecessary and an incorrect use of terms; it confounds legal notions Avhich are essentially different. There is a plain distinction between the lien of the grantor after a conveyance, and the interest of the vendor before conveyance. The former is not a legal estate, l)ut is a mere = Ober V. (xallagher, 93 U. S. inn. 23 L. ed. 82n : Dowdy v. Blake. r>0 Ark. 205. fi S. VV. 897, 7 Am. St. Rep. 88 i subrogation) . "Where several notes are thus secured by a lie'n of reservation, the whole seems to be analogous to a mortgage given to secure several notes. If the notes are transferred to different persons, the right of the holders to par- ticipate in and enforce the lien would seem to depend upon the same rules which apply to notes secured by a mortgage. See ante. §§ 1201-1203. Mving V. Young Men's Ass'n, 1 Woods. 380. Fed. Cas. No. 7811. ' For instances of such liens, see Haughwout v. Murphy, 22 N. J. Eq. 531, Shep. 198; Florida Southera R. R. Co. v. Hill, 40 Fla. 1, 74 Am. St. Rep. 124. 23 South. 560 (vendor's lien to secure damages resulting from the torlious taking of hind under the power of eminent domain). 753 VEXDOK S Ay,B VKXDEE S LIEN § 1261 equitable ciuirge on the land ; it is not even, in strictness, an equi- table lien until declared and established by judicial decree.- In the latter, although possession may have been delivered to the vendee, and although under the doctrine of conversion the vendee may have acquired an equitable estate, yet the vendor retains the legal title, and the vendee cannot prejudice that legal title, or do any- thing by which it shall be divested, except by performing the very obligation on his part which the retention of such title was in- tended to secure,— namely by paying the price according to the terms of the contract. To call this complete legal title a lien, is certainly a misnomer. In case of a conveyance, the grantor has a lien, but no title. -In case of a contract for sale before convey- ance, the vendor has the legal title, and has no need of any lien ; his title is a more efBcient security, since the vendee cannot defeat it by any act or transfer even to or with a bona fide purchaser.'' § 1261. Essential Nature and Effects.— In fact, the position of the vendor prior to conveyance is defined and determined by the doc- trine of equitable conversion, rather than- by that of mere ecpii- table lien. He holds the legal title as security for the performance of the vendee's obligation, and as trustee for the vendee, subject to such performance, and that title may be conveyed or devised, and will descend to his heirs. In equity, his real interest is per- sonal estate ; he becomes by equitable conversion the owner of the purchase-money, of which the vendee is his trustee, and this claim for the purchase-money passes on his death to his executors or ad- ministrators. On the other hand, the vendee becomes, by conver- sion, the real beneficial, although equitable, owner of the land ; his interest under the contract is. in equity, real estate, and descends ^Orinian v. Brown. 1 '.Ma>;on 101. Fed. Cas. Xo. 5441. by :\Ir. Justice Story. 'See Shaw v. Foster, L. R. 5 H. L. 321. and especially Lysaght v. Edwards, L. R. 2 Ch. Div. 409, .506. .507, 2 Keener 360, by Sir George Jessel, M. R. T'ractically. this lien consists in the vendor's right to enforce payment of the price, by a suit in equity against the vendee's equitable estate in the land, instead of by means of an ordinary action at law to recover the debt. Tn England the vendor's equitable remedy consists in a suit in the nature of a strict foreclosure, by which the vendee is decreed to pay the price within a limited time, and in default of such payment the contract is canceled, the vendee's equitable estate is foreclosed, and the vendor's legal estate becomes again absolute. In the United States the same mode of enforcing the lien by a suit, in the nature of a strict foreclosure is pursued: Button v. Schroyer, 5 Wis. 508. 1 Ames Eq. Jur. 225. Another mode seems to bo recog- 'iiized. at least in some of the states, by which the vendee's equitable estate under the contract is sold in pursuance of a judicial decree. Such a sale would operate as an assignment of the vendee's rights under the contract, and would not be a cancellation of the contract itself: Lewis v. Hawkins. 23 Wall. 110, H. X P.. 66.5. 48 § 1:^63 EQUITY JUIUSPRUDEN'CE. 754 to his heirs. The so-called lien of the vendor is only another mode of expressing his equitable interest thus arising from the doctrine of conversion; and so far as it has any distinctive signification, it simply means his right of enforcing his claim for the purchase- money against or out of the vendee's equitable estate by means of a suit in equity.^ §1262. How Enforced. — The equity action to enforce the so- called lien is simply an action to compel the vendee to make pay- ment of the purchase price within a specified time, or else be barred of all rights under the contract, — that is, an action to foreclose the contract. In actions at law to recover the purchase price, it is the uniform rule that the vendor must allege and show that he has tendered a conveyance in pursuance of the terms of the contract. Whether such tender of a deed is a prerequisite to the vendor's maintaining his suit in ecpiity, is a question upon which the Amer- ican decisions are in direct conflict, and the authorities do not seem to preponderate decidedly in favor of either view.^ §1263. The Vendee's Lien. — The lien of the vendee under a con- tract for purchase of land for the purchase-money paid by him be- fore a conveyance is the exact counterpart of the grantor's — or, as it is commonly called, the vendor's — lien, described in the last section but one. In the latter case, the legal title has been conveyed to the grantee, and yet the grantor retains an equitable lien upon tlic land as security for the purchase price agreed to be paid. In the former case, the legal title remains in the vendor, who has simply agreed to convey, while the vendee, although having as yet accpiired no legal interest in the land by virtue of the contract, does obtain a lien upon it as security for the purchase-money he has paid, and for the performance of the vendor's obligation to convey.^ In England, therefore, and in the American states where ^ See ante, vol. 1, §§ ;i()8, .372, and cases cited; also, cases in last preceding note: Moser v. .Johnson, 88 Ala. 517, 16 Am. St. Rep. 58, 7 South. 146 (since vendor holds legal title as security, he may restrain waste by vendee in possession). Waiver: It is not, in general, waived by the taking of other security for the purchase price, whether personal or on land : in this respect it differs from the ''grantor's lien": IMansfield v. Dameron. 42 W. Va. 794, 57 Am. St. Kep. 884, 26 S. E. 527. Priority: On principle, the vendor's right should have priority over subsequent judgments reeoverea against the vendee, irre- spective of the question of notice, since he retains the legal title; his position in this respect is entirely different from that of the grantor. See § 721. Assignment: When notes are given for the price, and these notes are assigned, the lien passes, and may he enforced by the assignee: Graham v. McCampbelL JMeigs (Tenn.) 52. 3.3 Am. Deo. 126. 1 Ames Eq. Jur. 205. ^ Freeson v. Bissell, 6.3 N. Y. 168 (no tender necessary). ' VVickman v. Eobinson. 14 Wis. 49.3. 80 Am. Dec. 789. 1 Scott 73. 755 LIEX F1{0:\1 A DEPOSIT OF TITLE DEEDS. j? I'2(i4 the grantor's lien has been adoi)U'd, the vendee's lien upon the lands contracted to be sold as a security for so much of the pur- chase price as he has paid prior to a conveyance, and for the per- formance by the vendor of his obligation, exists to the same extent against the same classes of persons, and governed by the same rules, as the corresponding lien of the grantor. The lien only arises, of course, when the vendor is in some default for not com- pleting the. contract according to its terms, and the vendee is not in default so as to prevent him from recovering the purchase-money paid. SECTION VII. ARISING FRO]M A DEPOSIT OF TITLE DEEDS. ANALYSIS. § 1204. The English doclriiie. § 12G5. The doctrine in the United States. § 1266. Distinction suggested as a conclu-ion from American cases. § 1267. How this lien is enforced. §1264. English Doctrine. — It is a well-settled doctrine of the English equity that a deposit of title deeds as a security for the payment of money, without any agreement, either verbal or writ- ten, to give a mortgage, creates an equitable lien, or, as it is ordi- narily called, an equitable mortgage, on the estate of the debtor of which the deeds constitute in whole or in part the title. The exact significance and effect of the transaction is, that the debtor thereby contracts that his estate in the land shall be liable for the debt, and that he will execute such mortgage or conveyance as may be nec- essary to convey the estate to the creditor as security for the pay- ment. The lien thus created is good between the parties, and as against all subsequent purchasers or encumbrancers of the de- positor who are affected with notice of the transaction, and all persons holding under him as volunteers.^ 'Russel V. Paissel. 1 Brown Ch. 200. 1 Lead. Cas. Eq. 4th Am. cd. 0:n. Kirch. 110: Ex parte Hooper. 1 ^NFcr. 7. Kirch. 114; Ex parte Kensington. 2 Vcs. & B. 79. Kirch. 111. Tlie doctrine rests upon the peculiar law and practice of England witli reference to conveyancing, and to the use of deeds as evidence of ownership. There is no general system of registration; the posses- sion of deeds is an evidence of ownership; they or their abstracts are ex- hibited to the intended purchaser for examination in every negotiation for ;; sale: they are delivered to the grantee almost as a luatter of course in all transfers of the fee; no transfer can safely be made without them; and no one is supposed to have a right to their possession unless he has some claim upon the land or estate wliich they represent. Whenever a supposed owner § 12G8 EQUITY JURISPRUDEXCE. 756 § 1265. The Doctrine in the United States.— The basis of fact which exists in England, as described in the foot-note- is not found in our law or our practice; and as the doctrine is opjDosetl to all our modes of treating real estate, and especially to our system of registry, it Avas inevitable that the doctrine of an equitable lien, resulting from a mere deposit of title deed.s with a creditor, shoulti not meet with any general and practical acceptance throughout the United States. Under our system of recording, there is no ne- cessity^ for the production, nor even for the preservation, of the original title deed ; owners look to the records as furnishing the real evidence of title, and as exhibiting the true condition of all interests in and claims upon the land which could affect the rights of purchasers or encumbrancers ; and to the, records all parties go, as a matter of course, even in preference to the original deeds.^ Iii fact, no presumption or inference would, in general, be raised fiom the mere possession of title deeds by a stranger. It follows that in several of the states, wliere the question has been judicially examined, the doctrine has been distincth^ repudiated or not adopt- ed, as being wludly inconsistent with our statutory system of regis- try and methods of conveyancing.- SECTION YIII. VARIOUS STATUTORY LIENS. ANALYSIS. § 1268. General .nature and temlency of American legislation on this subject; various examples. § 12(5!). How such liens are enforced. § 1268. General Nature of American Legislation on This Sub- ject. — In addition to the foregoing liens which belong to the gen- eral equity jurisprudence, the legislation of many states has, cre- ated or allowed a variety of other liens, the enforcement of which often comes within the ecjuity jurisdiction, and has thus enlarged its scope as administered throughout a large portion of our countr^^ This legislation differs so much in its details that I shall not at- tempt to give any circumstantial description of it, nor any ab- offers his estate for sale or mortgaae, he nuist produce his title deeds, and their absence from his possession, wheri demanded, inevitably casts a suspi- cion on his title, and puts the other party upon an inquiry. ' See Probasco v. Johnson. 2 Disn. 90. 98. -Bloomfield State Bank v. :\Iiller, .55 Xebr. 243, 70 Am. St. Rep. 381, 75 N- W. 509, 44 L. R. A. 387. 757 VARIOUS STATUTOHY LIENS. ^ i-i6i) straet of the statutes tlieniselves. The liens are sometimes charged upon real estate and sometimes upon chattels. Their general ob- ject is the protection of those who, by their labor, services, skill, or materials furnished, have enhanced the value of the specific property, which thus becomes subject to the lien as security for their compensation. The most familiar instance, which may be taken as the type of the whole class, is that known as the ''me- chanics' lien," found under some form in nearly everj^ state.^ § 1269. How Enforced. — Many of these liens are enforecvl by purely legal actions, and their effect resembles that produced by a Ifcgal attachment, enabling the lienor to retain or recover posses- sion of the thing, and to sell it at execution sale upon the judg- ment. Others are enforced by special proceedings authorized and regulated by statute. These tAvo classes have no equitable charac- ter, and do not come within the scope of equity jurisdiction. In some of the states, however, these liens, especially those charged upon real estate, as mechanics' liens, mining liens, and the like, are enforced by ordinary equitable actions, resulting in a decree for a sale and distribution of the proceeds, identical in all their features with suits for the foreclosure of mortgages by judicial sale.^ It is true that these liens, being created by statute, are legal in their essential nature, rather than equitable; but so far as they are enforced by equitable actions, they have added a peculiar ele- ment to the equity jurisdiction in several states. It is no part of my design to discuss the rules governing the existence, scope, and operation of such statutory liens; and the general reference is made to them in order to complete a survej^ of the liens which be- long to equity jurisprudence or may fall under the equity jurisdiction. ' It has been the policy in many states to protect in this manner those employed in their pecnliar local inc^iistries. In tlie Nortliwestern states, where lumberinjj is an important indnstry. a lien on loss is given to those engaged in "booming," or in cutting trees, and on lumber, to those engaged in sawing. In the mining states and territories of the Pacific coast, a system of liens exists on mines, mining-^iites. and mineral products, in favor of those engaged in working, "prospecting." or "locating" tliem. In the Southern states, a lien on the plantations, or products tlicreof. is given to those wlio by their materials or services aid in raising cro])f-. Tliere Is also a strong tendency, especially in the \Vestern states, to protect all artisans, workmen. h(!)orers, etc., by such liens. * The text is cited in De La Vergne, etc., Co. v. Montgomery Brewing Co.. 46 Fed. 829 (action is equitable) : Gilchrist v. Helena Co.. of? Fed. 708 (labor lien on railroad; where statute provides no metliod of enforcing lien, remedy IS in equity). i< l.ti^X) EQUITY JL"1U!?PKUU£XCE. 'ib& CHAPTER EIGHTH. ESTATES AND INTERESTS AKISING FROM ASSIGNMENTS. SECTION I. . ASSIGX:ilEXTS OF THINGS IX ACTION. ANALYSIS. § 1270. Oiigiiuil doctrines at luw and in equity. § 1271. Itationale of the equitable doctrine. § 1272. Assignment of things in action at common law. § 1273. The same; under statutory legislation. § 1274. Interpretation of this legishrtion as contained in the reformed procedure. § 1275. What things in action are or are not thus Icf/aUy a-signable. § 127G. Assignments forbidden by public policy. § 1277. The equitable jurisdiction; under the reformed procedui-e. § 1278. The ecjuitable jurisdiction; under the common-law procedure. § 1279. Incidents of an assignment. § 1270. Original Doctrines at Law and in Equity.— By the an- cient common law, things in action, expectancies, possibilities, and the liivc, were not assignable; an assignee thereof acquired no right which was recognized by a court of law, for the act of assignment was regarded as against pnblic policy, if not actnally illegal. Lord Coke states this doctrine as one of the peculiar excellencies of the system which he called the "perfection of human wisdom," but which was at his day in many respects semi-barbarous.^ The court of chancery from an earh^ day rejected this rule as narrow and even absurd. Acting upon the principle that a man may bind himself to do anything not impossible, and that he ought to per- form his obligations when not illegal, equity has always held that the assignment of a thing in action for a valuable consideration sliould be enforced:- and has also given effect to assignments of every kind of future and contingent interests and possibilities in real or personal property, when made upon a valuable considera- ' Lampet's Case, 10 Coke. 4(5 b. 4Sa. 2 Row V. Dawson, 1 Ves. Sr. 331; 2 Lead. Cas. Eq. 4th Am. ed. 153. 759 ASSIGNMENTS OF THINGS IN ACTION. § I'-i^J tion.-'' As soon as the assigned expectancy or possibility has fallen into possession, the assignment will be enforced.* § 1271. Rationale of the Equitable Doctrine.— It followed, there- fore, that the assignee of an ordinary thing in action — a debt or de- mand arising out of contract — acquired at once an equitable own- ership therein, as far as it is possible to predicate property or own- ership of such a species of right, while the assignee of an expect- ancy, possibility, or contingency acquired at once a present equi- table right over the future proceeds of the expectancy, possibility, or contingency which was of such a certain and fixed nature that it was sure to ripen into an ordinary equitable property right over those proceeds as soon as they came into existence by a trans- formation of the possibility or contingency into an interest in pos- session. There was an equitable ownership or property in abey- ance, so to speak, which finally changed into an absolute property upon the happening of the future event. Equity permitted the creation and transfer of such an ownership, while the original com- mon law rejected every such notion. At an early day this species of equitable ownership arising from assignments prohibited by the common law was the occasion of an extensive branch of the equity jurisdiction. This former condition has, however," been greatly modified, and the special jurisdiction based upon it has become very much diminished. § 1272. Assignment of Things in Action at Common Law. — The essential validity of the assignments of legal things in action, and the equitable ownership of the assignees thereunder, had long been recognized by the law courts, which permitted the assignee suing in the name of the assignor to have entire control of the action and the judgment, and treated him as the only person having an imme- diate interest in the recovery.^ In all ordinary cases, therefore, of assignment of legal things in action — debts, and the like — the as- signee had a complete and easy remedy at law, and the necessity of a resort to equity had ceased.^ § 1273. The Same. Under Statutory Legislation.— Statutes both in England and in the United States have gone much further, and. by allowing the assignee of things in action to sue at law in his own name, have made his interest or ownership to be legal, and no longer equitable. The earliest English statutes were confined MVarmstrey v. Lady Tanfield, 1 Ch. Ro]). 29; 2 Lead. Cas. Eq. 1530; 1 Scott 74; Wright v. ^Yrioht, 1 Ves. Sr. 400, 411; Hobson v. Trevor, 2 P. Wnis. 101; 1 Scott 75 (the mere expectancy of an heir at law). ^Holroyd v. jMarshall, 10 H. L. Cas. 191. Kirch. 42. ' :\Tastpr V. Miller. 4 Term. Rep. 320. 340, 341. = Hammond v. Messenger, 9 Sim. 327. Ames Trusts 59. § 12;5 EQUITY JLIilSl'UUDENCi:. 760 t(. policies of insurance, perniitting them to be legally assigned, so that the assignee could sue at law in his own name.^ Finally, by the supreme court of judicature act, it was provided that debts and all other legal things in action may be assigned at law, if the assignment is in writing and absolute, and not by way of charge only.- The legislation in many of the American states is much broader in its effects, though less specific in its language. In all the states and territories which have adopted the reformed procedure, abolishing the distinction between legal and equitable actions, and introducing one civil action for all purposes, it is provided that "every action must be prosecuted in the name of the real party in interest, except as otherwise provided in this statute."' § 1274. Interpretation of This Legislation in the Reformed Pro- cedure. — It is the settled interpretation of this provision in all the commonwealths where the reformed procedure prevails, that when- ever a thing in action is assignable, the assignee thereof must sue upon it in his OAvn name; and if the thing in action is itself legal, hi:; right and interest under the assignment have been made legal. The provision itself does not render any thing in action assignable; it does not affect in any way the quality of assignability: it simply acts upon things in action which are assignable, and if they are legal in their nature, and if the assignment is one which would have been recognized in a court of law by permitting the assignee to sue in the name of the assignor, then the interest of the assignee is legal. ^ § 1275. What Things in Action are or are not thus Assignable.— It becomes important, then, in fixing the scope of the equity juris- diction, to determine what things in action may thus be legally as- signed. The following criterion is universally adopted: All things in action which survive and pass to the personal representafives of a decedent creditor as assets, or continue as liabilities against the representatives of a decedent debtor, are, in general, thus assign- able: all which do not thus survive, but whicli die with the person of the creditor or of the debtor, are not assignable. The first of '30 & 31 Vict., c. 144; 31 & 32 Viet., c. 8G. " 36 & 37 Vict., e. 66, see. 2.), § 6. "The exceptions referred to embrace suits by executors, administrators, trustees of an express trust, and persons in whose names contracts are made for the benefit of others. 'See Pomeroy on Remedies, sees. 12.")-138. where the authorities sustain- ing the above conclusions are fully examined: Devlin v. The Mayor. 03 X. Y. 8. If the thinq- in action is a claim purely equitable in its nature, or if the assignment is one which courts of equity alone recognized,^as, for example, an order given upon a particular fund, or an assignment of a part of a single demand, — then the assignee's interest is still equitable. 761 ASSIGNMENTS Ol' THINGS IN ACTION'. ij I'^T? these classes; aoeording to the doctrine prevailing? throughout the United States, includes all claims arising from contract express or implied, with certain well-defined exceptions; and those arising from torts to real or personal property, and from frauds, deceits, and other wrongs, whereby an estate, real or personal, is injured, diminished, or damaged. The second class embraces all torts to the person or character, where the injury and damage are confined to the body and the feelings; and also those contracts, often implied, the breach of which produces only direct injury and damage, bodily or mental, to the person, such as promises to marry, injuries done by the want of skill of a medical practitioner, contrary to his im- plied undertaking, and the like;^ and also those contracts, so lon a specific fund, sum of money, or debt, actually existing or to become so in futuro, upon which the assignment may operate, and the agreement, direction for payment, or order, must be, in effect. an assignment of that fund or of some definite. portion of it. The sure ci'iterion is, whether the order or direction to the drawee, if assented to by hira, would create an absolute personal indebtedness payable by him at all events, or whether it creates an obligation only to make payment out of the particular designated fund.* Tlie agreement, direction, or order being treated in equity as an assignment, it is not necessary that the entire fund or debt should be assigned; the same doctrine applies to an equitable assignment of any definite part of a particular fund."' The doctrine that the - Some cases and books speak of tlic interest as merely an equitable lien or charge. That it is more than a lien, and is an equitable property, is plain from the remedy allowed. An equitable lien is ]iever enforced by a suit to o])tain possession, much less dominion over tlie thing: the remedy is, at most, a sale of the thing, so that its proceeds may be applied upon the obli- gation secuied. In this case, however, the assignee recovers possession and dominion of the fund as his own. The only equitable feature of the trans- action is, in fact, the mode of transfer. 'Brill V. Tuttle, 81 N. Y. 454, 37 Am. Rep. 31.5; Row v. Dawson, 1 Ves. Sr. :i:n, 2 Lead. Cas. Eq. 4th Am. Ed. 1531; Lowery v. Steward, 25 N. Y. 23!l, 82 Am. Dec. 346: Wheatley v. Strobe, 12 Cal. 92; 73 Am. Dec. 522: McDaniel A-. :\Iaxwell, 21 Oreg. 202; 27 Pac. 952; 2S Am. St. 740; Harrison v. Wright^ 100 Ind. 515, 50 Am. Rep. 805. 'Brill V. Tuttle, 81 N. Y. 454, 457; 37 Am. Rep. 515. 'James v. Newton, 142 Mass. 366, 56 Am. Rep. 692, S X. E. 122: Harris County V. Campbell, 68 Tex. 22, 35 S. W. 243, 2 Am. St. Rep. 467. Some American courts seem to have been troubled with the common-law rule which, forbids the assignment of a part of a debt, but the reasons iov this rule at law have no application whatever in equity. The main reason for the legal rule is, that the debtor should not be harassed with several different suits to 765 EQUITAKLK A8SlG.\.Mi:XT OF A FUND. § r.^82 equitcible assignee obtains, not simply a right of action ayainst the depositary, mandatary, or debtor but an equitable property in the fund itself, is carried out into all of its legitinuite consequences. Thus the assignee may not only recover the money from the original depositary, the drawee, but ma}^ pursue it or its proceeds under any change of form, as loiuj as it can he certainly identified, into the liands of third persons who have acquired possession of it from the depositary as volunteers, or with notice of the assignee's prior right. The fund in this respect resembles a fund impressed with a trust. § 1281. Notice to the Creditor-Assignee Essential. — Although whenever a debtor, in the manner above described, makes to his creditor an equitable assignment of a specific fund or debt in the hands of or owing by a third person, the assent of such third perso)t is not requisite to the effect of the transfer in equity, yet the assignment, appropriation, direction, or order is not absolute, but may be revoked by the debtor-assignor at an,y time before the creditor-assignee has been notified of it, and has expressly or im- pliedly assented thereto. In snch a case notice to and assent by the creditor-assignee are essential to an absolnte assignment. § 1282. A Mere Mandate to an Agent or Depositary is not an Assignment, but is Revokable. — In all cases, even when the assignee Avas not a creditor of the assignor, the order must be delivered to the intended payee, or he must be notified of it by the dn»w<'i''s pi'"- curement, in order that it may operate as an equitable assignment. A mere letter, communication, or other mandate to the agent, de- positary, or debtor, directing him to pay the fund to a designated person, will not of itself operate as an assignment, but it may be withdrawn or revoked at any time before the arrangement is com- pleted, by information given to the intended payee by or on behalf of the drawer.^ What shall amount to the present appropriation Avhich constitutes an equitable assignment is a question of intention, to be gathered from all the language, construed in the light of the surrounding circumstances. For example, while it is not essential recovor parts of one sinqle oljli^ation. In equity no such t'onse(]utMic(' could result. If parts of a demand are assigned to different persons, the riylils of all the assignees must be settled in one suit; in a suit by any one assignee, not only the debtor and the assignor, but all the other assignees, mu.st be made ])arties, so that the one decree may determine the duty of the debtor towards each claimant. There is no greater nor more unnecessary source of error than the importing le(j(tl notions as to parties and actions into the discussion of equitable doctrines: See for tlie legal lule, Mandeville v. Welch. 5 Wheat. 277. 2R() : ^^ T.. Ed. 87. M'.uni V. Carvalho. 7 Sim. 10!); 4 Mylne & C. GOO; Carvalho V. Burn. 4 Barn. & Adol. 382 j 1 Ad. & E. 883. § 1284 EQUITY JUItlSritUDENCE. 766 ti> the existence of an equitable assignment of a fund that the debtor, agent, or depositary should be expressly directed to pay over liie money to the assignee, the absence of such a direction may tend to show an intention not to transfer a present interest in the fund, but that the arrangement is wholly executory and prospeetive.- § 1283. Doctrine Extends to a Fund not yet in Existence. — Tlie e<|uitable doctrine with re-speet to the assignment of property to be acquired in future is extended to this species of equitable transfer. The fund need not be actually in being; if it exists potentially. — that is, if it will in due course of things arise from a contract or arrangement already made or entered into when the order is given, — the order will operate as an equitable assignment of such fund as soon as it is acquired, and will create an interest in it which a court of equity will enforce.^ § 1284. Bills of Exchange and Checks not, in General, Assign- ments. — An ordinary bill of exchange, or draft, drawn generally, and not upon any particular fund, whether aceeptecl or not by the drawee, does not operate as an equitable assignment. Its operation is not changed even when funds have been placed in the drawee's hands as a means of payment; for the drawee may apply these fu.nds to another use, and although this act might violate his duty to the drawer, the payee would obtain no interest in or claim upon the specific fund.^ According to the great preponderance of au- thority, a check is, in this respect, a bill of exchange, and does not act as an equitable assignment of a portion of the drawer's deposit equal in amount to the face of the check.- There are cases, how- ever, which hold that, under the circumstances in which it is ordinarily given, being drawn against an actual deposit, and not expected to be paid unless a sufficient amount stands to the credit of the drawer, a check is to all intents an order upon a particular ^See Rodick v. Caiidtll. 1 De (4ex. :\L & (i. 70:5, 778. ' For example, an order for the proceeds of yoods which are about to be sold by an agent of the drawer under an arrangement already made; an order by an employee upon th.e employer whom he has agreed to serve, direct- ing payment of future wages to be enmed; an oi'dcr by a contractor for future payments to become due, and the like. Tlie fund in all such cases is par- ticular and definite, although only potential: Ruple v. Bindley, 91 Pa. St. 29G; Shep. 219; Merchants & M. N. Bank v. Barnes, 18 Mont, 335, 48 Pac. 218, .56 Am. St. Rep. 586, 47 L. R. A. 737. 'Holbrook v. Payne, 151 Mass. 383, 24 X. E. 210, 21 Am. St. Rep. 450: for instance of draft upon a particular fund, see Lowery v. Steward, 25 N. Y. 239, 82 Am. Dec. 346. -Aetna Xat. Bank v. Fourth Xat. Bank, 46 X. Y. 82, 87. 7 Am. Rep. 314; Fourth St. Xat. Bank v. Yardley, 1G5 U. S. 634, 17 Sup. Ct. 439, 41 L. ed. 855 ; Cincinnati, H. & D. R. Co. v. Bank, 54 Ohio St. GO, 42 N. E. 700, 56 Am. St. Rep. 700, 31 L. R. A. G53. 7G? ASSIUX.AIENT OF FUTUIiE INTERESTS. § l-So j-'und within the meaning of the eciiiitable rule, and assigns a portion of that fund to the payee equal in amount to its face;' A cheek nui}' undoubtedly operate in this manner as an eciuitable assigimient when it is so drawn as to show an unmistakalile intention of th(.' drawer to transfer his exact deposit in the bank to the payee.* SECTION III. ASSIGNMENT OF POSSIBILITIES. EXPECTANCIES, AND PROPERTY TO BE ACQUIRED IN FUTURE. ANALYSIS. § 1285. Eqiiital)lo jurisdiction under modern leoislation. § 12SG. Essential elements and grades of contingencies, expectancies, and possibilities. § 1287. Assignment of possibilities. § 1288. Assignment of personal property to be acquired in the future; rationale of the doctrine; Holroyd v. Marshall. § 1289. Assignment of future cargo or freight. § 1290. Requisites of an assignment of property to be acquired in the future. § 1291. Extent of the doctrine; to ^vhat property and persons it ap- plies. § 1285. Equitable Jurisdiction under Modern Legislation. — ]^.Iodern English statute.s have so far changed the common laAV as to permit the assignment at law of contingent and future interests, expectancies, and possibilities coupled with an interest in real estate.^ The American legislation has generally been broader, and authorizes the assignment at laAV of such future expectancies and possibilities, when coupled with an interest, wdiether connected with real or with personal estate. Neither the English nor the American statutes allow the legal assignment of mere naked ]io>- sibilities or expectancies not coupled with an interest. The .iu.risdiction of equity continues to be exclusive over all other assignments of contingent, future, expectant interests and possi- })i!ities not embraced within this legislation. § 1286. Essential Elements and Grades of Contingencies, Expec- tancies, and Possibilities. — In determining the extent and limits of the tw^o juri.sdietions, legal and eciuitable, it is important to deter- mine the essential elements and different grades of contingent MVyman v. Fort Dearborn Nat. Bank, 181 111. 279. M N. E. 94(i. 72 Am. St. Rep. 259; Raesser v. National Exchange Bank. 112 Wis. 591, 88 N. W. 618, B8 Am. St. Rep. 979. MTarrisnn v. Wright, 100 Ind. .515, 50 Am. lU^p. 805. '8 & 9 Vict., c. lOG, sec. G. § 1287 EQUITY JUIIISPIJUDENCE. 7GS interests, expectancies, and possibilities. It should be carefully observed at the outset that they do not include future estates which are vested. A vested remainder is as truly a present fixed property or ownership as is an estate in possession. There may be interests or so-called estates in land or chattels, based upon some existing- limitation, conveyance, or will, which are future and contingent, as depending upon the happening of some uncertain event, or limited to some uncertain person, but which are nevertheless interests, and not mere hopes or expectancies without any existing legal founda- tion. The ordinary contingent remainders, executory devises, con- ditional limitations, and the like are illustrations. Secondly, a lower grade of future interests may be called the potentialitij of ac- quiring future property from the performance of some agreement or arrangement entered into, but which is still executory.^ Of course, the mere hope of acquiring future property without any {tresent source from which it maj' be obtained is neither an interest nor right, nor anything which has value or can be made the subject ot legal relations. But when a party has entered into a contract or arrangement by the ordinary and legitimate and natural opera- tion of which he will acquire property, his existing right thereunder is certainly not a mere naked hope; it is a possibility of acquiring property coupled with a legal interest in the contract. The cargo to be obtained or the freight to be earned by a ship on a voyage already contracted for, the wages to be earned under an existing enq^Ioyment, the payment to become due under an existing building contract, are familiar examples. Finally, there is a mere expect- ancy arising from some social or moral relation, and not based upon any limitation, trust, contract, or other legal relation, such, as the hope which an heir apparent or presumptive has of inheriting liis ancestor's estate, or the hope of a bequest under the will of i\ living friend. § 1287. Assignment of Possibilities. — Under the statutes de- scribed in a preceding paragraph, all future contingent interests in things real or personal, and also all possibilities, coupled iviih nti ihierest, of acquiring property, real or personal, may be granted or assigned at law, so that the grantee or assignee acquires a legal right or interest, the enforcement or protection of which comes within the jurisdiction of the law. So far as this legislation has not been adopted, such interests and rights are assignable only in ^ The phrase "potential existence" has a specific and teclinical meaninij. in formulating the general doctrine of the law concerning the sale of personal property not yet having an actual existence: See ante. § 1230. As used in the text above, the word "potentiality" is taken in a more general sense; and in this signification it has been employed in several modern decisions. 7G9 ASSIGXMKXT OF I'UTUIJK i XTKKKSTS. i5 1>!88 eiiuitv; and fiirtlierniore, possibilities not coupled with an interest, — mere possibilities or expectancies, — which are not embraced with- in these statutes, are, according to the general course of decision, assignable in equity for a valuable consideration; and equity will enforce the assignment when the possibility or expectancy has changed into a vested interest or possession.^ The explanation is fcometiraes given that the assignment operates as a contract by the assignor to convey the legal estate or interest when it vests in him, and that equity will specifically enforce such contract by decreeing a con- veyance. § 1288. Assignment of Personal Property to be Acquired in the Future. — Rationale of the Doctrine. — A particular instance of this doctrine is that which deals with tlie assignment of property to be acquired in the future. I have already referred to this subject in one of its phases, — the equitable lien created by contract upon such property.^ It is elementary, that a contract for the sale of chattels Avhich the vendor does not own wall not take effect upon the goods, when subsequently acquired, so as to pass a legal prop- erty in them to the purchaser, without some new act of the vendor after the property is acquired.- The doctrine of equity is dift'erent. A sale, assignment, or mortgage, for a valuable consideration, of cliattels or other personal property to be acquired at a future time, operates as an equitable assignment, and vests an equitable owner- ship of the articles in the purchaser or mortgagee as soon as they are acquired by the vendor or mortgagor, without any further act <>n the part of either; and this ownership a court of equity will protect and maintain at the suit of the equitable assignee." It is sometimes said that the sale, assignment, or mortgage, under these circumstances, operates in equity as a contract, which a court of equity will specifically enforce by decreeing a legal conveyance and delivery of the property to the purchaser or mortgagee, when it is subsequently acquired by the vendor or mortgagor. This view is MVarmstrej v. Lady Tanfield, 1 Ch. Kep. 2!J, 2 Lead. Cas. Eq.. 4th Am. ed.. 1530, 1559, 1605, 1 Scott 74. The expectancy of an heir to the estate of liis ancestor: Hobson v. Trevor, 2 P. Wms. 191, 1 Scott 75; In re Gareelon. 104 C'al. 570, 38 Pac. 414, 43 Am. St. Rep. 134, 32 L. E. A. 595, 1 Scott 77. The interest which one may take under tlie will of another who is still livini;: In re Wilson's Estate, 2 Pa. St. 325. See also Bayler v. Conun. 40 Pa. Si. 37, 80 Am. Dee. 551; Shep. 217: Rnple v. Bindley, 91 Pa. St. 290 : She]). 21'.r. ^See ante, § 1236. = yioody V. Wright, 13 Met. 17, 32. 46 Am. Dee. 706; Kirch 54. Chattel mortgage on crops not sown, held void in Rochester Distilling Co. v. Rasoy. 142 N. y. 570, 37 X. E. 632. 40 Am. St. Rep. 637. With reference to the excepted case of chattels having a "potential" existence, see ante, note under § 12.36. ^Holroyd v. Marshall. 10 IT. L. Cas. 101, Kirch. 42; Smithurst v. Edmunds, 14 N. .T. Eq. 408, KircH. 61. 49 § 1289 EQUITY JUniSPRUDEXCE. 1110 certainly supported by the very high authority of most able judges, such as Lord Westbury, and it is undoubtedly true in part. In my opinion, however, it fails to wholly explain the equitable doc- trine and jurisdiction, since transfers of personal property to be acquired in future are constantly enforced under the operation of this doctrine where a court of equity would hardly have decreed the specilic performance of the contract if it had been confined to property then in the ownership and possession of the vendor or as- signor/ In other words, the doctrine of equitable assignment of property to be acquired in future is much broader than the juris- diction to compel the specific performance of contracts. In truth, although a sale or mortgage of propertv^ to be acquired in future does not operate as an immediate alienation at law, it operates as' an equitable assignment of the present possiJjility, which changes into an assignment of the equitable oiouership as soon as the prop- erty is acfpiired by the vendor or mortgagor ; and because this own- ership thus transferred to the assignee is e(iuitable, and not legal, the jurisdiction by Avhich the right of the assignee is enforced, and is turned into a legal property, accompanied by the possession, must be exclusively equitable; a court of law has no jurisdiction to enforce a right which is purely equitable. This, in my opinion, is the onlj^ correct -and sufficient rationale of one of the most dis- tinctively equitable doctrines in the whole scope of the equity jiu"is- prudence. § 1289. Assignment of Future Cargo or Freig'ht. — A particular instance of non-existing property to be acquired in future which may be equitably assigned ii-:; the future cargo to be obtained, or ! he future freight to be earned, by a ship during an existing voy- age, or during a contemplated voyage on which she is about to depart. If a charter-party or other form of agreement has already been entered into for th.e contemplated voyage, the potentiality of obtaining a cargo or of earning freight seems to be a possibility coupled with an interest, and not a bare expectancy; and as such it is probably assignable even at law under statutes and decisions of many states. Whatever may be the rule at law, it is well settled tliat such possibility is assignable in equity; 'that an equitable own- ership vests in the assignee as fast as the cargo is obtained or the freight is earned; and that his interest or ownership will be pro- tected and enforced by a court of equity.^ In accordance WMth this doctrine, it has been held that a mortgage of a railroad and its franchises operates as an equitable assignment of the rolling stock, ■•The Uipory announced by Lord Westbuiy in Tlolioyd v. ^Marshall, siipia, -was also criticised in Tailby v. Otiicia! Pa'ccivcv. L. R. 13 App. Cas. 523. 'MitchnM v. \A inslow, 2 Story. GrJO, Fed. Las. No. <),(;7J. 1M ASSIGN JJKXT OF FUTURE IXTHKKSTS. §1290 — locomotives, cars, and the like, — which are acquired or niaiiut'ac- turcd by the company after the execution of the instrument, and i)as.ses an equitable owuersliip in or lien on such articles to the mortgagee. Other eases take a diii'erent view, and hold that the rolling stock are fixtures, and become part of the realty as soon as acquired, and that being so annexed to the soil, the legal title thereto is vested in the mortgagee, or that the lien of the mortgage extends to them.' Other illustrations of the doctrine as applied to particular transactions are given in the foot-note.^ § 1290. Requisites of an Assignment of Property to be Acquired in the Future. — It has been assumed through all the foregoing dis- cussion that the instrument dues amount to a sale, assignment, or mortgage of future-acquired property; but it should be carefully observed that every sale or mortgage dealing with future property tioes not necessarily have that effect; there is a plain distinction between an assignment of property to be acquired in future and a mere power to deal wath such property. In order to create an ecjuitable assignment, and thus let in the operation of the equitable doctrine, there must be on the face of the instrument expressly, or collected from its provisions by necessary implication, language of present transfer directly applying to the future as well as to the existing property, or .else language importing a present conlract or agreement between the parties to sell or assign the future propert}', or that the security of the mortgage should immediately attach to the future property, as the case may be. Where an assignment of existing chattels by way of mortgage contains a provision which simply amounts to an authority or license to the mortgagee to take possession of or to enter and seize after-acquired property, this does not operate as an equitable assignment of the after-acquired pro- perty, nor create in the mortgagee any present equitable interest in such property. It creates, at most, only a power; and a power is veiy different from an interest, — no interest in the property arises until the power has been exercised.^ ^:Moriill V. Xoyes, oG :\Ie. 4.38, 471, i)0 Am. Dee. 48G, Kiixli. !)2 ; Piercfi V. Emery, 32 X. H. 484, Kircli. SO. •''In some of these instances the assignments are evidentlj valid at Uiw: Assignments of payments to become due from tlic performance of an exist- ing contract: Ruple v. liindley, 91 Pa. tSt. 296, ISheii. 219. Assignment of future wages under existing contract of employment: Mallin v. VVenhaui, 209 111. 252, 101 Am. St. Rep. 23:^.. 70 X. K. 5(i4. See. also, Tailby v, Ofticial Receiver, 13 App. Cas. 523, Kii-cli. 100 (assignment of future book-debts, though not limited to book-debts in any particular business, valid) ; Collins' Ajjpeal, 107 Pa. St. 590, 52 Am. Rep. 474 (pledge of interest in a partner- .ship to be subsequenlly fnvnicd. valid). ' Eeeve v. ^Yhitmore, 4 Uc; (W\, J. & S. 1, lG-18, per Lord W'estbury. § 1291 EQUITY JUKISPKUDEIfCE, 772 § 1291. Extent of the Doctrine— To What Property and Persons It Applies. — The general doctrine concerning sales or mortgages of after-acquired property leads to the further conclusion, that when chattels which have been mortgaged or assigned as security are sold or exchanged by the owner, the lien upon the original articles will extend to the resulting fund or the substituted goods; and this lien will be valid in equity, not only against the mortgagee, but also against any person claiming title to such fund or goods under him as a volunteer. According to the general doctrine of equity established beyond any doubt by the highest judicial author- ity, the equitable assignment or the equitable lien upon property to be acquired in the future is valid and enforceable, not only against the contracting party himself, but also against subsequent judgment creditors, assignees in bankruptcy, and all other volun- teers holding or claiming under him, and against subsequent pur- chasers from him with notice of the assignment or lien.^ This oper- ation of the equitable doctrine as against other persons than the immediate parties is, however, very much restricted and limited in most of the states by statutes.^ The doctrine of equitable liens resulting from executory contracts, and that of equitable assign- ment of non-existing property, constitute two of the most remark- able and distinctive features of the equity jurisprudence. The particular rules which they involve are all drawn from the funda- mental maxims or principles of equity ; they exhibit in the most striking manner the opposing theories and methods of equity and of the law. ... 'See ante, cases cited under §§ 1236, 1288. - The statutes referred to are those concerning transfers and mortgages made with intent to hinder, delay, or defraud subsequent creditors and pur- chasers, and those concerning tiie filing or recording of chattel mortgages. The decisions giving a construction to this legislation have virtually abrogated the equitable doctrine in its application to subsequent creditors and pur- chasers. For example, in many states a chattel mortgage which purports to cover future-acquired goods in place of those which have been sold, and which thus expressly or impliedly permits the mortgagor to sell the original chattels embraced in the instrument, while the lien is extended to the newly acquired articles, is absolutely void as against subsequent creditors of the mortgagor. This statutory system and the rules created by it belong, how- ever, to the domain of the law, rather than to equity. DOCTHINK CONCl-li.NJ.Nti CONTKACTS. ^ l'i9?. CHAPTER NINTH. CONTRACTS IN EQUITY. SECTION I. GENEPxAL DOCTRINE COXCERXIKG CONTRACTS. ANALYSIS. § 1292. Object of this chapter. § 1293. What constitutes a contract. § 1294. Equitable contract by representations and acts. § 1295. Effects of a contract in equity; covenant creating an equitable servitude. § 129G. Effects of contracts in general. § 1297. Enforcement of contracts in equity. § 1293. What Constitutes a Contract.— Very little need he said under this head. The essential elements of a contract are the same in eqnity and at law. In general, the same rules prevail in botli jurisdictions as to ])arties and their capacity to contract, as to con- sideration, and as to the assent or aggregatio mentitim. In equity, as Avell as at law, "an agreement is the result of the mutual assent of two parties to certain terms, and if it be clear that there is no consensus, what may have been written or said becomes imma- tei'ial."^ To this general agreement between the equitable and the legal rules there is one important exception and one modifica- tion. While a married woman is as incapable of binding herself personally in equity to the same extent as at law, her contracts re- hiting to or made in view of her separate estate are so far valid and eflectual that they are enforceable against such separate estate. - ■riie modification mentioned relates to the requirement of a valu- able consideration. Equity will never enforce an executory agree- numt unless there was an actual valuable consideration ; and, unliki' the common law, it does not permit a seal to supply the place of a i-eal consideration. Disregarding mere forms, and loolxiiig at the I'inility, it requires an actual valuable considei'atinn as (^ssiMitial ' Per Lord West bury, in Chinnock v. ^Marchioness of Ely, 4 De Oex, J. & S. (;:?S, 643. = See ante, SS 1121-1120. § l^^MT) EQUITY JUIilSPRUDENCE. 77i ill every such agreement, and allows the Avant' of it to be shown, notwithstanding- the seal, in the enforcement of eoveno/iits, settle- ments, and executory contracts of every description."' In constru- ing- and applying the statute of frauds, in determining what con- tracts come within its scope, what memoranda are sufficient to a sale by its requirements, and all other matters of detail, courts of equity and of law adopt and follow the same rules.* Even when equity seems to depart from or disregard the statute, and specially in its enforcement of verbal contracts for the sale of land which have been part performed, it is only invoking the aid of its most salutary principles for the purpose of carrying out the ultimate objects of the statute. As the primary object of the statute is to prevent frauds, mistakes, and perjuries, by substituting written for oral evidence in the most important classes of contracts, courts of equity have established the principle, which they apply under various circumstances, that it shall not be used as an instrument for the accomplishment of fraudulent purposes ; designed to prevent fraud, it shall not be permitted to Avork fraud. This principle lies at the basis of the doctrine concerning part performance, but is also enforced wherever it is necessary to secure equitable results.'' § 1295. Effects of a Contract in Equity — Covenant Creating- an Equitable Servitude. — Before describing the general effects of contracts, I shall notice some particular agreements which create .special rights in eqnity, where no such rights, or perhaps no rights at all, between the same parties, exist at law. "When the owner of land enters into a covenant concerning it, when in a deed the grantor or the grantee covenants, or in a lease the lessor or the lessee covenants, concerning the land, concerning its use, restrict- ing certain specified uses, stipulating for certain specified uses, subjecting it to easements or servitudes, and the like, and the land is afterwards conveyed, or sold, or passes to one who has actual or constructive notice of the covenant, the grantee or purchaser will take the premi.ses bound by the covenant, and will be compelled in equity either to specifically execute it, or will be restrained from violating it. at the suit of the original covenantee or of any other person who has a sufficient equitable interest, although perhaps without any legal interest, in such performance. It makes no difference whatever, with respect to this equitable liability, and this right to enforce the covenant in equity, whether the covenant is or is not one Avhich in law "runs with the land."^ Subsequent ^ See ante, § 370. * See Pomeroy on Specific Performance of Contracts, sees. Tl-O.J. and cases cited. "^See ante, § 021 ; post. 5; 1409 et seq. ■•Tiilk V. Moxliav, 2 Plull. C'li. 774. 777. 1 Amc Eq. .Tur. 147. 2 Keener 54.5, 775 DocTiaxK co.\ci:i;xix(i cox tracts. § 12Ud o^^•uel•.s deriving title under deeds containing sucli covenants would, of course, have constructive notice tliereof. This equitable right 2 iScptt 486; and see ante, § (589. This doctrine may bo regarded as an equitable substitute for or addition to the legal rule concerning covenants running Avitli the land; or it may be explained by regarding the covenant as creating an equitable easement. The latter theory has been adopted by many able Ameri- can courts. In either view, the covenant confessedly creates an equitable burden on the land, which follows it into the hands of subsequent holders, with the single qualification that a subsequent owner who acquires the legal estate for value and without notice takes it free from this burden. A subse- posed that the remedy of interpleader is allowed to avoid the risk of two recoveries. This is entirely a mistaken view. If a party has in any way made himself liable, even for the same demand, to two claimants, he is not entitled to an interpleader. It is the essential fact that he should actually be liable to only one of the claimants. The true rationale of interpleader is, that the party thereby avoids the risk of being vexed by two or more suits. Kvcn though there is no danger of his being compelled to pay the same demand twice, the danger of two suits against him, with the consequent trouble and expense, is the sufficient ground for the remedy: Crawford v. Fisher, 1 Hare 436, 441; Y'arborough v. Thompson, 3 Smedes & M. (^Nliss.) 291, 41 Am. Dec. 626, 1 Keener 278. In Crawford v. Fisher, Wigrain, V. C, said: "The oflice of an interpleading suit is. not to protect a party against a double liahiUfii, but against double vexation in re- spect of one liability. ff the circumstances of a case show that the plaintiff is liable to both claimants, that is no case for interpleader. It is of the essence of an interpleading suit that the ])laintifl' shall be liable to one only of the claimants; and the relief which the court affords him is against the vexation of two proceedings on a matter ^\■hich may be settled in a single suit." The supreme object of an interpleader is to protect the plaintiff — the stakeholder — and not the claimants against him; to protect him from tht danger and vexation of two opposing suits for the same demand by those claimants, while he is ready and willing to pay the demand to the one who is judicially ascertained to be entitled to it: Farley v. Blood, 30 X. IT. 354, ^idl INTERPLEADER. i5 1321 shall litigate the matter amoug themselves, without involving the stakeholder in their controversy, with which he has no interest. It is plain, therefore, that the plaintiff can obtain no specific relief. So far as he is concerned, upon his filing the bill, and surrendering up the thing or money into the custody of the court, his remedy is exhausted by the decree that the defendants do interplead with each other, and that he be freed from or indemnified against their demands, and that he recover his costs; with the result of their dispute he has no concern. The ground of the jurisdiction is plain. The party seeking the remedy is exposed to the hazard, vexation, and expense of several actions at law for the same demand, while he is ready and willing to satisfy that demand in fa- vor of the claimant who establishes his right thereto. For this lia- bility the law furnishes no adequate remedy, and in most instances no remedy whatever. §1321. The Claims, Legal or Equitable. — The equitable juris- diction exists, although both or all the conflicting claims against the stake-holder are legaV since it depends upon the fact that distinct claims are made, rather than upon their intrinsic nature as being legal or equitable. It is not necessary, however, that all the claims should be legal; the remedy is granted when one of them is legal and the other equitable.- Indeed, if one or more 2 Ames Eq. Jur. 4. Such danger must be real; a mere suspicion of risk will not be sufficient to support a bill: Baltimore & O. R. Co. v. Arthur, 90 N. Y. 234, 2 Ames Eq. Jur. 13, 1 Keener 293. That the risk may depend upon a doubtful question of law, see Dorn v. Fox and Crane v. McDonald, supra. Such being the theory of the remedy, it is not essential that any suit should have been actually commenced by either claimant against the plaintiff: Angell V. Hadden, 15 Ves. 244, 1 Keener 214; JMorgan v. Marsack, 2 Mer. 107, 1 Keener 273; Farley v. Blood, 30 N. H. 354, 2 Ames Eq. Jur. 4. It is enough that the conflicting claimants make their respective claims and th'reaten suit: Yarborough v. Thompson, 3 Smedes & M. 291, 41 Am. Dec. 626, 1 Keener 278. That the plaintiff cannot interplead claimants who have reduced their claims to judgments, as this would be to increase instead of diminish tlie number of suits, and because of the rule (post, § 13B1 ) that a court of equity cannot give relief when the party might have made defense at law, see Yarborough v. Thompson, supra, and Larabrie v Brown, 26 L. J. Rep. Eq., N. S., 605, 1 Keener 284. 'Lowndes v. Cornford, 18 Ves. 209. -Lowndes v. Cornford, .supra; Morgan v. Marsack, 2 ■\lor. 107, 1 Keener 273; Wright V. Ward, 4 Russ. 215, 1 Keener 217; Hamilton v. Marks, 5 De Gex & R. 638, 1 Keener 280; Prudential Ass. Co. v. Thomas, L. R. 3 Ch. 74, 1 Keener 287; Farley v. Blood, 30 N. H. 354, 2 Ames Eq. Jur. 4. In England the necessity of a resort to equity is removed, although the equity jurisdiction is not at all affected, by the statute of 1 & 2 Wm. IV., c. 58, sec. 1, as amended and enlarged by the common-law procedure act (23 & 24 Vict., c. 126, sec. 12). which enabled a court of law, on motion, to direct what amounts to an interpleader in actions of debt, assumpsit, trover, and dciiinic. Tender the present system of procedure, equitable claims may be adjudicated upon g 1323 EQUITY JUrj^PRUDKXCE. 7it2 of the conflicting claims are purely equitable, there is the stronger reason for a resort to the equity juri>diction; and prior to recent legislation in England and in the United States, such a resort was indispensable under those circumstances. § 1322. Essential Elements. — From the description given in a previous paragraph, and from the whole course of authorities, it is clear that the equitable remedy of interpleader, independent of recent statutorj^ regulations, depends upon and requires the exist- ence of the four following elements, which may be regarded as its essential conditions: 1. The same thing, debt, or duty must be claimed by both or all the parties against whom the relief is de- manded; 2. All their adverse titles or claims must be dependent, cr be derived from a common source; 3. The person asking the i-elief — the plaintiff— must not have nor claim any interest in the subject-matter; 4. He must have incurred no independent liability to either of the claimants; that is, he must stand perfectly indiffer- ent betAveen them, in the position merely of a stake-holder. As the original equitable jurisdiction is founded, to a great extent, iqion these four propositions, I shall examine them separately. § 1323. First. The Same Thing, Debt, or Duty. — The same thing, debt, or duty must be claimed by both the parties against whom the interpleader is demanded.^ This requisite results from the very r.ature and object of the remedy. If the subject in dispute has ill an interpleader issue connected with a legal action. Analogous statutes have been passed in many American states. ^ Desborough v. Plarris, 5 De Gex, 'SI. & G. 430. 4.5.5. In Glyn v. Duesbury, n Sim. 139, 148, Shadwell. V. C, said: '•IVhcre the chiiiiis made hij fhe defendants are of different amounts, thei/ can never be identieal; but where they are the same in amount, that circumstance goes far to determine their identity. The amount, however, may not be sufficient of itself to determine the identity? for the amount may be the same and the debt may be diff^^rent." This dictum was approved in Pfister v. Wade. 56 Cal. 43. In my opinion, how- ever, that portion of the dictum which is italicized — the statement that claims of dilferent amounts can never be identical — is incorrect: it seems alike o])- ]iosed to principle and to authority. \^'here both defendants claim one. single, undivided debt, technically so called, the statement is undoubtedly true; a ditlerence in their amounts would be fatal to their identity. But it is clearly not necessarily so where the claims are for unliquidated damages. Where, for example, a chattel is in the plaintifi''s hands, to which both defendants claim title, they do not sue to recover the article itself, but allege a technical conversion, and seek to recover damages — tlie value of the chattel. Here the claim of the defendants would not be for a "thing." nor for a "debt." but it would be for a "duty" — a chose in net inn. If each defendant alleged a diflerent value, and claimed a difl'erent amount of damages, the dufi/ asserted Mould still be identically the same in each demand. Another instance of dif- ference in the amounts claimed by the diffei'ent defendants, where the debt or duty may still be the same, occurs in cases where a fund being in plaintiff's hands, the whole of it is claimed by one defemlant, and parts of it are claimed ']\)o INTEKPLICADER. § lo"-'4 a bodily existence, — is a thing. — there can be no doubt nor ques- tion as to the identity. The difficulty in applying the rule arises where the subject is a chose in action; and then the identity must be determined in each particular case, not by any general rules, but by the nature, constitution, and incidents of the debt, demand, or duty itself. § 1324. Second. Privity between the Opposing Claimants. — A second requisite is, that the adverse titles of the claimants must be C(>nnected, or dependent, or one derived from the other, or botli derived from a common source. It is not every instance of con- flicting' claims against a person for the same thing, debt, or duty v.liich will entitle him to the remedy of an interpleader. Where there is no privity between the claimants, wdiere their titles are in- dependent, not derived from a common source, but each asserted as wholly paramount to the other, the stake-holder is obliged. in the language of the authorities, to defend himself as weW as he can against each separate demand; a court of equit}' will not grant him an interpleader.^ by the others. With regard to such cases, Christiancy, J., said, in School Dis- trict V. Weston, 31 Mich. 85: "Upon the great weight of authority, both English and American, a much more liberal and reasonable nUe has been established, and bills of interpleader have been frequently maintained, where the several claimants, instead of claiming the whole fund or matter in dispute, have claimed different portions of the fund, when the aggregate of all the claims exceeded the full amount of the fimd ; and the claimant being, as in the present case, virtually a stakeholder, and iinable to determine to whom or in what proportions the payments should be made." In tliis case the plaintiff had let a contract for building a school house for a specified sum to a contractor, and portions of this contract price were claimed by suIj- contractors and material men, the total amount of their claims exceeding the whole contract price. Where the same ]n-operty had been taxed '.o the owner in two counties, in some cases for different amounts, in others for the same amount, a bill of interpleader liy the owner to determine whicli of the counties was entitled to the tax has been maintained: See Dorn v. Fox, r»l N. V. 2()4, 1 Keener 249; but. i>er contra, see (Treene v. Mumford. 4 11. 1. :}].■?. It is diflicult to perceive how the tax levied by two different cdunties, even though the amount of each tax is fhe same, is one and the same debt or duty, so as to sustain a bill of interpleader. ^^'here a chose in action is the subject-matter, it is impossible to lay down any general rule bj' which its identity shall be determined. The circumstances of each case can alone disclose whether the same debt or duty is claimed by all the defendants. See National Life Ins. Co. v. Pingrey, 141 Mass. 411, 2 Ames Kq. .)ur. .37, 1 Keener 2.'50 (insurance company issued a policy on the sur- render of a previous policy; question whether tlie company has incurre'er, said (p. 458) : "I may go further, and say that, in my opinion, if, after the common-law procedure act of 1800, a bill of interpleader had been filed, raising facts like tiiose in Crawshay v. Thornton, any .judge of the court of chancery would liave felt himself no longer bound by the somewhat narrow principle laid down by Lord Cotteniiam, Init would have acted upon the fuller powers contained in that statute." MMitchell v. Hayne, 2 Sim. & St. 03. 2 Ames Eq. -Tur. 12. 1 Keener 292; Shaw V. Coster, 8 Paige 339, 35 Am. Dec. 690, 1 Keener 235; Baltimore & 0. T95 INTKIiPLKADKR. >^ Vo'ld tiff can only obtain the remedy of an interpleader; and the cir- cumstances must be such that the entire rights of both defendants to the thing, fund, debt, or duty can be fully adjusted and deter- mined in the one suit. § 1326. Fourth. No Independent Liability to One Claimant. — The party seeking the relief must have incui'rcd no in(lei)cnd(Mit liability to either of the clainmnts. Such an independent liability may be incurred in two classes of cases: 1. In the first place, the agent, depositary, bailee, or other party demanding an interpleader, in his dealings with one of the claimants, may have expressly ac- knowledged the latter 's title, or may have bound himself by con- tract, so as to render himself liable upon such independent under- taking, Avithout reference to his possible liability to the rival claim- ant upon the general nature of the entire transaction. Under these circumstances, as the plaintiff* is liable at all events to one of the defendants, whatever maj- be their own respective claims upon the subject-matter as between themselves, he cannot call upon these defendants to interplead. He does not stand indiff'erent between the claimants, since one of them has a valid legal demand against him at all events.^ Even if the acknowledgment or promise has R. Co. V. Arthur, 90 X. Y. 234. 2 Ames Eq. Jur. 13, 1 Keener 293; Wing v. Spaulding, 64 Vt. 83, 23 Atl. 615, 1 Keener 308; Stone v. Reed, 152 Mass. 179, 25 M. E. 49, 1 Keener 304; Crass v. Memphis & C. R. Co., 96 Ala. 447, 11 youth. 480, 1 Keener 311. A frequent application of the principle is fur- nished by cases where the plaintiff claims the right to retain a portion of the fund in controversy as commission or charge for his services rendered in connection with the fund: Mitchell v. Hayne. supra (auctioneer's commission) ; Baltimore & (). R. Co. v. Arthur, supra (freight charges) ; Crass v. Memphis & C. R. Co., supra (carrier's lien for freight). It necessarily follows from the doctrine of the text that if the plaintiff expressly denies his liability in whole or in part to one of the defendants, he strikes at the very foundation of the remedy, and shows that he is not indifferent: Williams v. IMatthews, 47 N. J. Eq. 196. 20 Atl. 261, 1 Keener 301. The stakeholder — the person in possession of the thing or fund, or from whom the debt or duty is owing, and against whom two or more conflicting claimants assert their demands — must necessarily be the plaintiff. Xo in- terpleader suit can be maintained by one of the contestants against tlie other contestant and tlio stakeholdov: See Spragne v. West. 127 iMass. 471. 1 Keener 255. Hirawshay v. Thornton. 2 INIylne & C. 1, 19-24. 2 Ames Eq. Jur. 18, 1 Keener 220; Jew v. Wood, Craig & P. 185, 1 Keener 240; Lindsay v. Barron, 60 E. C. L. 291, 2 Ames Eq. Jur. 39; Plalte Valley State Bank v. Xational Livestock Ass'n, 155 III. 250. 40 X. E. 621. 2 Ames Eq. -lur. 29 (no indejjendent under- taking, within the meaning of the texl ) . Anotlior instance of the doctrine is, where the plaintiff, in stating the case in his bill, is obliged to admit himself to be a wrong-doer to either one of tlie defendants: he thus shows an independent liability to that defendant, and is not entitled to an interpleader; Siingsby v. Boulton, 1 Ves. & B. 334. 2 Ames Eq. Jur. 33. 1 Keener 21f). § 13-)7 L-QUITY JLliLSPKUDEXCK. ^Dfi been obtained by fraud or mistake, the right of the party thus deceived to be relieved in equity from his liability cannot be con- sidered and sustained in an interpleader suit. 2. In the second class ()<■ cases, the independent liability of the plaintiff to one of the defendants arises from the very nature of the original relation subsisting between them, without reference to any collateral ac- knowledgment of title, or promise to be bound. The most important examples of such relations are those subsisting between a bailee :ind his bailor, an agent or attorne}^ and his principal, a tenant and his landlord, and the like. In pursuance of the doctrine above stated, if a bailee is sued by his bailor, or an agent by his princi- pi\\, or a tenant by his landlord, and at the same time a third person asserts a claim of title adverse and paramount to that of the bailor, principal, or landlord, a suit of interpleader cannot, in gen- eral, be maintained against the two contiicting claimants, since, from the very nature of the relation, there is an independent per- sonal liability, with respect to the subject-matter, of the bailee to his bailor, of the agent to his principal, and of the tenant to his landlord. - § 1327. By Bailees, Agents, Tenants, and Parties to Contracts.— ^ The general doctrine which determines the rights of bailees, agents, tenants, and contracting parties to interplead their principals, bail- ors, landlords, and the like, and claimants who assert antagonistic ])aramount titles, has been stated in the preceding paragraph.^ The - For cases illustrating this conclusion, see the next following paragraph aiiou!ton, 1 Ves. & B. 334. 2 Ames Eq. Jur. 33. 1 Keener 216: Shaw v. Coster. 8 Paige 339. 35 Am. Dec. 690, 1 Keener 235. Nor can the sherilV compel tiie opposing claimants of a surplus in his hands after satisfying an execution to interplead; such claims van 5j 13-38 EQUITY JlRISl'lIUDEXCK. T98 • or landlord, and a third person setting np an opposing claim to the thing, fund, or duty. These cases may be described by one general formula, as those in which the title of the opposing claim- ant is derivative under, and not antagonistic and paramount to. that of the bailor, principal, or landlord. An interpleader is allowed wherever the adverse claim originates from some act of the bailor, principal, or landlord, done or suffered after the commencement of the bailment, agenc}^, or tenancy, and causing a dispute as to , A\hieh of the parties is entitled to the thing, fund, or duty. The claim of the third person, instead of being under an independent, antagonistic, paramount title, must be made under a title derived from that of the bailor, principal, or landlord; it must acknowledge, and not deny, such original title. § 1328. Pleadings and Other Procedure. — The bill of complaint must contain allegations which show that all of the requisites entitling the plaintiff' to the remedy exist in the case. It must al- lege positively that conflicting claims to sul)stantially the same thing, fund, debt, or duty are set up by the defendants; that plain- tiff' claims no interest in the subject-matter; that he is indiff'erent between the claimants, and is ready and willing to deliver the thing or fund, or pay the debt, or render the duty to the rightful claim- ant, but that he is ignorant or in doubt which is the rightful one, and is in real danger or hazard by means of such doubt, from their conflicting demands.^ The bill need not show an apparent title in either of the defendants. On the contrary, if the bill should show that plaintiff' was fully informed of the defendant's rights and of his own liability, or if it should show that one of the de- fendants was certainly entitled, on the facts alleged, to the thing, debt, or duty, in either case it would be demurrable: there would be no ground for an interpleader.- It is the settled practice that the bill of complaint must be accompanied by an affidavit of the plaintiff, stating that the suit is not brought in collusion with 1)0 adjusted by tlie court: Parkev v. Barker, 42 X. H. 78. 77 Am. Dec. 780. But see Child i^ Mann, L. R. 3 Eq. 806, 2 Ames Eq. Jur. 35. 1 Keener 240. Statutes in England and in many of the F-tates have authorized the sheriff to interplead the claimants of property seized by him under process. 'Farley v. Blood, 30 N. H. 354, 2 Ames Eq. Jur. 4; Killian v. Ebbinghaus, no r. 8. 568, 4 Sup. Ct. 232, 28 L. ed. 246, 2 Ames Eq. Jur. 47. I Keener 295: Crane v. McDonald. 118 X. Y. 648, 654. 23 X. E. 991, 1 Keener 262; Stone v. Reed, 152 Mass. 179, 25 X. E. 49, 1 Keener 304. -Crass V. Memphis & C. R. Co.. 96 Ala. 447. 11 South. 480, 1 Keener 311; Bassett v. Leslie. 123 X. Y. 396. 25 X. E. 386, 1 Keener 266, Shep. 319; Shaw V. Coster. 8 Paige 339. 35 Am. Dec. 690. 1 Keener 235. And if the ])laintiif denies liis liability to either of the defendants, he is not entitled to the remedy; he destroys tlie very foimdation on which it rests: ^McHenry V. Hazard, 45 X. Y. 580, 2 Ames Eq. .Jur. 118. 1^99 IMKin'I.KADKlL. § l:)-!) either of the defeudauts; and the oinissiou of such affidavit Jiiay generally be taken advantage of by demurrer.^ The plaintiff' must also bring or pay, or offer to bring or pay, the entire thing, fund, or money in controversy into court; an omission to do so renders the bill demurrable.* If the bill was properly filed, and if the plaintiff* has acted in good faith, he is generally entitled to his costs out of the fund in controversy, which costs, as between the de- iiendants, must ultimately be paid by the unsuccessful party.'' §1329. Interpleader in Legal Actions. — In England and in many of the American states a summary mode of interpleader by motion and order in certain legal actions is authorized.^ These statutes substantially provide that in actions specified the defendant may show by affidavit that the same thing or money is claimed by an- other person besides the plaintiff'; that he has sued or threatens to sue ; that defendant is not in collusion with him ; and that defendant is ready and willing to bring the thing or money into court. The court on motion may order such claimant to be substituted as de- fendant in the action in place of the original defendant. It is uni- versally held that these statutes do not at all limit nor affect the equitable jurisdiction by suit; they merely furnish another special, =■ Hamilton v. Marks, 5 De Gex & S. 638, 1 Keener 280; Farley v. Blootl, 30 N. H. 354, 2 Ames Eq. Jur. 4. The plaintiff's affidavit is conclusive; de- fendants cannot contradict it, even though the plaintifi' has filed supplemental affidavits: Stevenson v. Anderson, 2 Ves. & B. 407, 2 Ames Eq. Jur. 4.3, 1 Keener 270. *It was held in Farley v. Blood, 30 K. H. 354, 2 Ames Eq. Jur. 4, that in a suit concerning the defeiulants' rights to a conveyance under a land contract, the plaintifi" must ofl'er to convey, and must have the deeds executed ready for delivery. *Co^^•tan v. Williams, 9 Ves. 107, 2 Ames Eq. Jur. 8, 1 Keener, 213: Farley V. Blood, 30 N. H. 354, 2 Ames Eq. Jur. 4. Bill in the nature of a hill of interpleader. — A "bill in the nature of a bill of interpleader" is one in which the complainant seeks some relief of an equitable nature concerning the fund or other subject-matter in dispute, in addition to the interpleader of conflicting claimants; as, for exami)le, the redemption of a mortgage or other encumbrance on property where tliere are conflicting claimants to the debt secured. The complainant is not required, as in strict interpleader, to be an indifferent stakeholder, without interest, in the subject-matter. it is essential, however, that the facts on wliidi he relies entitle him to equitable, as distinguished from legal, relief: he is not permitted, under the guise of a bill in (>(|Hity. to litigate a i)urcly legal claim or interest in the subject-matter: Killian v. Ebbinghaus, 110 U. f^. 568, 4 Sup. Ct. 232, 28 L. ed. 246. 2 Ames Eq. Jur. 47, 1 Keener 295; Aleck V. Jackson. 49 N. J. Eq. 507. 23 Atl. 760. 2 Ames Eq. Jur. 45; Crass v. Memphis & ('. R. Co., 06 Ala. 447. 11 Soutli. 480, 1 Keener 311. ^ The English statute of 1 & 2 Wm. IV., c. 58. sec. 1, allowed this proceed- ing in actions of assumpsit, debt, trover, and detinue. For the amendment made by the common-law procedure act of 1860, see ante, note under § 1324, § lo-;?l» EQUITY J UiaSPIiUDEXCi:. Sl»0 cumulative, and concurrent remedy. The ordinary type of these statutes does not alter the settled doctrines concerning interpleader. The statutory remedy is a mere substitute for the equitable rem- edy by suit, in the kinds of actions to which it applies, and is gov- t'lened by the same rules." Of course, the statutes may change the equitable doctrines; may enlarge their scope of operation; and a few of them may have doubtless produced this effect, as in the clauses introduced by amendment into the statutes of England and California, already noticed." -JSlaney v. Sidney, 14 Mees. & W. 800, 2 Ames Eq. -lur. 11. ' See ante, note under § 1324. SOI RECKIVEUS. 5 looO CHAPTER SECOND. RECEIVERS. ANALYSIS. § 1330. Definition, general nature, and objects. § 1331. The appointment discretionary. ^§ 1332-1335. Cases in which a receiver may be appointed. § 1332. First chiss. § 1333. Second class. § 1334. Third class. § 133.5. Fourth class. § 1336. Their ])0\vers, rights, duties, and liabilities. § 1330. General Nature and Objects. — I purpose in this chap- ter to give a mere sketch of the general doctrines concerning this peculiar subject.^ A receiver is a person standing indifferent be- tween the parties, appointed by the court as a quasi officer or repre- .«!cntative of the court, to hold, manage, control, and deal with the property which is the subject-matter of or involved in the contro- versy, under the direction of the court, during the continuance of the litigation, either where there is no person entitled competent to thus hold it, — as. for example, in the' case of an infant, or in the interval before an executor or administrator of a deceased owner is appointed; or where two or more litigants are equally entitled, but it is not just and proper that either of them should retain it luider his control.- — as, for example, in some suits between partners; or where a person is legally entitled, but there is danger of his misapplying or misusing it. — as, for example, in some suits against an executor or administrator, or, under some particular circum- stances, in .suits for the enforcement of a mortgage; or he is ap- pointed in like manner and under like circumstances for the pur- pose of carrying into efiPect a decree of the court concerning the property, — as, for example, a decree for the winding up and s(M- tlement of a corporation, or the decree in a creditor's suit.- ' The subject of receivers has come to be one of great iiiiporlance. owing especially to its vastly increased application of late in the winding up of corporations both in England and in this country. The remedy is so peculiar, and the rules regulating it in all its phases and ajiplications are so special, that my limits of time and space will only jievmit a meager statemerd of i(s most general doctrines. ^ Often cited definitions of (he nature of tlie receiver's office are found in 51 I 1332 EQUITY JURISl'KUDEXCE. ''Oi § 1331. The Appointment Discretionary. — The appointment of a receiver is, as a general rule, discretionary/ The discretion is not arbitrary or absolute; it is a sound and judicial discretion, taking into account all the circumstances of the case, exercised for the purpose of promoting the ends of justice, and of protecting the rights of (/// the parties interested in the controversy and the sub- ject-matter, and based upon the fact that there is no other adequate remedy or means of accomplishing the desired objects of the judi- cial proceeding. One of the most material circumstances, without which the court would hardly make the appointment, is the reason- able probability that the plaintiff asking for a receiver will ultimate- ly succeed in obtaining the general relief sought for by his suit - § 1332. Cases in Which a Receiver may be Appointed. — As stated tlie leading cases: Booth v. Clark, 17 How. 322, 331, 15 L. ed. 1G4; Beverley v. Brooke, 4 Gratt (Va.), 187, 208; Mays v. Rose, Freem. Ch. (Miss.) 718, tShep. 32. ^ The discretion is not so absolute that it may not be reviewed, and its exercise, if improper, reversed: Le fSociete Francaise v. Dist. Court, 53 Cal. 495; Milwaukee, etc., R. R. v. Soutter, 2 Wall. 521. -In Owen v. Homan, 3 :Macn. & G. 378, 412, allirmed 4 H. L. Cas. 997, Shep. 324, the court said: '"It is unnecessary to do more than to state that the granting- a receiver is a matter of discretion to be governed by a view of the wliole circumstances of the case; one most material of which circumstances is the probability of the plaintiff being iiltimately entitled to a decree." In Bain- brigge v. Baddeley, 3 ]Macn. & G. 413, 419, the court, speaking of the general grounds for the appointment of a receiver, said: "There are, I apprehend, two grounds, and two only: 1. That there is a reasonable probability of suc- cess on the part of the plaintiff; and 2. That the property, the subject of the suit, is in danger." In Blondheim v. Moore, 11 Md. 3(55, Shep. 321, the following, rules controlling the exercise of the discretion were laid down, which have been frequently quoted as a correct generalization: "1. Tliat the power of appoint- ment is a delicate one, and is to be exercised with great circumspection; 2. That it nuist appear the claimant has a title to the property, and the court must be satisfied by aflidavit that a receiver is necessary to preserve tlie property; 3. That tliere is no case in which the court ajipoints a receiver merely because the measure can do no harm: 4. That fraud or inuninent dan- ger, if the interinetliate possession should not be taken by the court, must be clearly proved; and 5. That unless the necessity be of the most stringent character, tlie court will not appoint a receiver until the defendant is fii'st heard in response to the application." These rules, however, must be taken with some reservations; they are certainly too strong to be of universal ap- plication, especially the fourth. There are classes of cases in which a receiver is appointed almost as a matter of course, although no fraud nor imminent danger is proved. See, on the general matter of discretion. Mays v. Rose. Freem. Ch. (Miss.) 703, Shep. 322; American Biscuit, etc., Co. v. Klotz, 44 Fed. 721, H. & B. 891 (will not aid improper or illegal scheme) ; Simmons Hardware Co. v. Waibel, 1 S. Dak. 488, 36 Am. St. Rep. 755, 47 N. W. 418, 814; 11 L, R. A. 267, H. & B. 817; Bank of Florence v. U. S. S. & L. Co., 104 A\a.. 297, 16 South. 110, H. & B. 897 (as to reasonable probability of plain- ■titr's success) . 803 REC!i:iVERS. § 1333 i:; a previous parao-raph, the cases in which a receiver may be np- pt>inted, subject to the general rules regulating the exercise of the judicial discretion, may be reduced to four general classes. The tirst class contains those cases where there is no person enti- tled to the property who is at the same time competent to hold and manage it during the judicial proceeding. In instances of this class a receiver is appointed more readily and without proof of imminent danger, perhaps, than in any other. It includes, — 1. In- fants' estates.^ A court of equity exercises control over the prop- erty of its infant ward, where there is no trustee, by means of a receiver, even though there is a guardian. 2. Lunatics' estates. The control of the court over the property of a lunatic is ordinarily oxereised by means of a committee ; but instead of a committee, and especially where no person will act as a committee, the court may appoint a receiver.- 3. Estates of decedents. During the litiga- tion concerning the admission of a will to probate, and during the interval before an executor or administrator is appointed, a court of equity has power to ai)point a receiver of the personal property a lid of the rents and profits of the real estate, where there is any danger of their loss, misuse, or misapplication. The necessity of such a receiver has been greatly lessened by modern statutes au- thorizing the probate court to appoint an administrator ad litem, and enlarging his powers."' § 1333. The Same. Second Class. — The second class of cases is leased upon the fact that all of the parties are equally entitled to the possession of the property w^hich is the subject-matter of the controversy, but it is not just and proper, from the nature of the dispute and of their relations with each other, that either one of them should be allowed to retain possession and control during the litigation. While the foundation of the remedy is, of course, the danger, yet it is not always essential that there should be any ele- ment of actual fraud or breach of trust. The most important in- stances which do or may belong to this class are: 1. Suits between 'CJardner v. Blane 1 Hare 381; Butler v. Freeman, Amb. 301, 303; Duke of Beaufort v. Berty, 1 P. Wins. 703. The main reason for appointing a receiver, in the absence of a trustee, was that the guardian at common law had not full power of control and management. The necessity of a receiver in sucli cases may have been obviated in many states by statutes enlarging the ]K)W('rs of guardians. - See ante. S 1312, as to appointment of committees. ■'While this jurisdiction is well settled, the recent English decisions holil that it will not be exercised if tlie probate court has already appointed an administrator ad litem; but if no such temporary administrator has been a])pointed, the coui't of equity will still n])))oint a receiver: Whitworth v. Wliyddon. 2 Macn. & CJ. 52, 55; Veret v. Duprez, L. R. 6 Eq. 320: Parkin v. .Seddons, L. Pv. 10 Eq. 34. §1334 EQUITY JL'ltLSPnUDEXCE. 804 partners/ In suits for a dissolution or winding up of a partner- ship, and even in some very special cases without a dissolution, the court may appoint a receiver of the firm assets, when there is any misconduct on the part of the defendants, and even, perhaps, wh.ere the partners themselves are wholly unable to agree as to the management of the property and the settlement of the partner- ship affairs. The jurisdiction is, however, always exercised with great carefulness and caution. 2. In suits for partition between c«-owners.- In suits between co-owners of mines and collieries the I^uglish courts grant a receiver upon the same grounds and under the same circumstances as in those between partners; but in all or- dinary cases of partition between legal co-owners of land, a re- ceiver is not generally appointed unless some of the parties are in sole possession, to the exclusion of the others. 3. In suits be- tween confiieting claimants of land, especially between parties claiming under legal titles, a receiver will not ordinarily be aj)- pointed. The remedy', however, may be granted under special cii'cumstances, in cases of gross fraud, or great danger, or whei-e possession is maintained by violence, and the like, In such cases the court acts with great caution, only where the plaintiff's rights arf^ reasonably certain, and the danger is apparent.^ § 1334. The Same, Third Class. — The third class embraces those ' My limits do not permit a disciission of the particular circumstances under which a receiver will or will not be appointed ; the cases cited furnish many illustrations, in general, a dissolution must have occurred, or must be asked; although in extreme cases of misconduct and danger therefrom, an ad interim receiver may be appointed -without a dissolution. A disagree- ment among the partners themselves is essential: See Allen v. Hawley. Fla. 164, 63 Am. Dec. 198 (in exceptional cases only, the business may be continued by the receiver during the pendency of the action for dissolution) ; Harding v. Glover, 18 Ves. 281: Goodman v. Whitcomb, 1 Jac. & W. 589; Const V. Harris, Turn. & R. 517 (exclusion of partner from participation in the business a strong ground). In case of dissolution by death of a partner, the control of the surviving partner will not be wrested from liim except upon a clear showing: Huggins v. Huggins, 117 Ga. 151. 43 S. E. 750: and the same is true wiiere, after dissolution, one partner, by agreement, is winding up the affairs: Walker v. Trott, 4 Edw. Ch. 38; but in the absence of such agreement, a receiver is readily appointed after dissolution in case of a dispute between the partners: McElvey v. Lewis, 76 N. Y. 373. " Mines and collieries. The working of a mine or colliery by co-o^^^1ers is necessarily a business analogous to a pai-tnership: Jefferys v. Smith, 1 .lacob & W. 298. Partition between ordinary co-OA\Tiers: receiver is granted only in extreme cases: Freeman Co-ten. § 327. ^•Owen V. Homan, 3 Macn. & G. 378. 4 H. L. Cas. 907. Shep. 324; Bainbrigge v. Baddeley, 3 JNIacn. & G. 413; Earl Talbot v. Hope Scott. 4 Kay & J. 96. As to receivei-s of mining property, the title to which is in litigation, see Bigbee V. Summerour, 101 Ga. 201. 28 S. E. 642; Tornanses v. Melsing. 106 Fed. 775, 784. 45 C. C. A. 61.1. 805 RiXKivKiJs. § l->;)-l: eases in which the person hoUlinii' title to the property is iu a po- sition of trust or of (luasi trust, and is violating his fiduciary duties by misusing, misapplying, or wasting the property, and is thereby endangering the rights of other persons beneficially interested. In many, but not in all, the instances falling within this class, the ])laintift' has, and is seeking to enforce, some equitable estate or interest; but whatever be the nature of his right, the ground of the remedy is always the misconduct of the party holding the title, and the consequent danger of loss. Among the more important instances of this class in which a receiver may be appointed are the following: 1. Suits against trustees who have been guilty of a breach of trust ;^ 2. Suits under like circumstances against ex- ecutors or administrators;- 3. Suits to enforce a mortgage when the security is inadequate, the mortgagor is insolvent, or is committing- acts of waste, and the like, depreciating the value of the property ;' 4. Suits under like circumstances, to enforce equitable liens, in- cluding those by judgment creditors in the nature of an equitable ' Courts will not interfere with trustees' possession by a receiver unless there is real danger from their misconduct: tSee Latham v. Chafee, 7 Fed. 525. Receiver in place of assignee for creditors, see Haggarty v. Pitman, 1 Paige 298, 19 Am. Dec. 434. -In administration suits a receiver will not be appointed unless the executor or administrator has been guilty of misconduct, waste, misuse of assets, and the like, and there is real danger of loss: Randle v. Carter, 62 Ala. 95; Ex parte Walker, 25 Ala. 81. ^ In England an equitable mortgagee alone was, prior to 1860, entitled to a receiver, because a legal mortgagee could at any time gain possession, and thus secure the rents and profits: Berney v. 8ewell, 1 Jacob & W. 647. In this country no distinction is 7nade between legal and equitable mortgages. Th(> general rule is, that a receiver of the rents and profits will be appointed upon the commencement of a foreclosure suit, on a showing of two things: First, that the mortgaged property is an inadeqviate seciirity for the payment of the debt ; and second, that the moi-tgagor is insolvent, or beyond the juris- diction, or of doubtful financial responsibility: Schreiber v. Carey, 48 Wis. 208. 4 N. W. 124; Pasco v. Gamble, 15 Fla. 562: Lindsay v. American Mort- gage Co., 97 Ala. 412, 11 South. 770. This rule is usually adhered to even under statutes entitling the mortgagor to possession after default and before tlie foreclosure saje: Schreiber v. Carey, supra; but see contra, Wagar v. Stone. 36 Mich. 367. Other circumstances may aid the mortgagee's application for a, receiver, such as the mortgagor's neglect to pay taxes, etc.: Schreiber v. (\arey, supra. As to the effect of a stipulation in the mortgage that the mort- gagee may have a receiver appointed on the mortgagor's default, the cases are in conflict. See First Nat. Bank v. Illinois Steel Co.. 174 111. 140, 51 N. E. 200, H. & B. 871; Baker v. Varney, 129 Cal. 564, 79 Am. St. Rep. 140, 62 Pac. 100. As to receiver after the foreclosure, see First Nat. Bank v. Illinois Steel Co.. supra: as to receiver of a mortgaged homestead. Marshall, etc.. Bank v. Cady. 75 Minn. 241, 77 N. W. 831, H. & B. 864: as 1o receiver in behalf of a chattel mortgagee, Wiedemann v. Saun (N. J. Eq.), 31 All. 211. 11. .V H. 867. § 1331 EQUITY JUKISPKUDEXCE. 806 execution ;^ 5. Suits, under like circumstances, and for a like reason, by a vendor to enforce the specific performance of a contract for the sale of land against a vendee who is in j^ossession ;'' 6. In suits by creditors, although not strictly creditors' actions by judgment creditors, brought to enforce their demands from the debtors' prop- erty, under some very special circumstances involving great danger of loss, such as the debtors' non-residence, insolvency, and the like;" 7. Suits for the rescission of a contract for the sale of land under special circumstances;^ 8. Suits to enforce payment of the arrears of annuicies;* 9. Suits for the protection of remaindermen against the life tenant or other holder of the particular estate ;'' 10. Suits, under many circumstances, against corporations;^" 11. Suits and proceedings in bankruptcy.^^ * Receiver in a creditor's suit, where execution has been returned unsatisfied (see post, S 141")), is appointed very much as a matter of course: Bloodgood V. Clark, 4 Taige 574; and see Mays v. Rose, Freem. Ch. (Miss.) 718, Shep. 322. The same is true of statutory proceedings supplemental-}- to execution; see Coates v. Wilkes, 92 X. C. 376 (an admiraljle description of such proceed- ings) . ''In such a suit, or in the suit b}' the vendor to foreclose his "lien" (see ante, §1202), a receiver is usually appointed in accordance with the rule re- lating to receivers in mortgage foreclosure (see supra, note 3) ; Belding v. JNleloche, 113 Mich. 223, 71 N. W. 592, H. & B. 8G2. " A creditor's suit on a demand not reduced to judgment lies only in very special circumstances: See post, § 1415, note; Blondheim v. Moore, 11 Md. 3()5, iShep. 321. In a few states, however, it is authorized by statutes; for re- ceiver under such statutes, see Fechheimer v. Baum, 37 Fed. 167, 2 L. R. A, 153, H. & B. 837. •Loaiza v. Sui.erior Court, 85 Cal. 11, 20 Am. fSt. Rep. 197, 9 L. R. A. 37t). 24 i'ac. 707. end of opinion. * In Enghuid only when the payment cannot be enforced by distress: Sollory V. Leaver, L. R. 9 Eq. 22. '■■See St. Paul Trust Co. v. Mintzner, 65 Minn. 124, 60 Am. St. Rep. 444. 07 -\. W. 657, 32 L. R. A. 756. '" In appointing a receiver to displace the management of the board of directors of a, corjioration the court should act with great caution: Consoli- (hited, etc., Co. v. Consolidated, etc., Co., 43 Fed. 204. It cannot, unless authorized by statute, ajjpoint a receiver on tlie petition of the corporation itself: State V. Ross, 122 Mo. 435, 25 S. W. 947, 23 L. R. A. 534; nor, Avithout such authority, for the purjioso of dissolving the corporation and Avinding up its affairs: Walhice v. Pierce-Wallace Pub. Co., 101 Iowa 313, 03 Am. St. Rep. 389, 70 N. W. 216. 38 L. R. A. 122; but see Miner v. Belle Isle Ice Co., 93 Mich. 97, 53 N. W. 218. Subject to these limitations, it is now genei-ally conceded that the court has inherent power, imaided by statute, to appoint receivers of corpor.it ions; a power which is most fre— cjuently invoked: 1. In suits by stockliolders seeking a remedy for breach of fiduciary duty by the directors or officers, see ante, § 1095; State v. Second Judicial Dist. Ct., 15 Mont. 324, 48 Am. St. Rep. 682, 39 Pac. 316, 27 L. R. A. 392; Haywood v. Lincoln Lumber Co., 64 Wis. 039, 20 N. W. 184; see Ala- bama Coal & C. Co. v. Shackelford, 137 Ala. 224, 97 Am. St. Rep. 23. 34 South. 807 RECKiVKKs. § i;536 § 1335. The Same. Fourth Class. — Tliis class contains those cases in which a receiver is appointed alter judgment for tlie pur])Ose of carrying the decree into effect. In some instances the receiver ap- pointed on motion pending the action is continned in his office alter the decree; in others, he is appointed after the decree, when no appointment would be made before the final hearing-. In all instances the object of a receiver is to carry into effect a special decree, which woukl not otherwise be efficiently executed by ordi- nary process. Among the most im])ortant cases in which a receiver may thus be appointed are creditors' suits and suits to enforce other equitable liens, suits to enforce the contracts of married women against their separate estates, and suits or proceedings gen- erally statutory for the winding up of corporations. In the states adopting the reformed procedure, the codes of procedure generally contain provisions regulating the appointment of receivers. § 1336. Powers, Rig-hts, Duties, and Liabilities.— The appointment of a receiver during the ])cndency of a suit does not determine any rights or title of tlie litigant parties: it is made for the benefit of 83.3 (no sufficient grounds for recoiver). 2. After dissolution, for tlie purpo^;e of winding up the affairs of the corporation, a matter whicli is now generally resiilated by statute. 3. \Mien the corporation has no properly constituted governing hody. or there are sucli dissensions in its governing body as to make it impossible for the corporation to carry on its business with advantage, a temporaaiy receiver may be appointed: Sternberg v. ^^■olfl■, 56 N. J. Eq. 389, 67 Am. St. Rep. 494, 30 Atl. 397, 39 L. R. A. 762. Compare Republican JNIountain Silver JMines v. Brown. .58 Fed. 647, 7 C. C. A. 412, 24 L. R. A. 776 (ilissatisfaction of minority stoci*!fc rights"; a provision which has received varying interpretations; see Have- meyer V. Superior Court, supra.: Texas Trunk R. Co. v. State, 83 Tex. 1, 18 «. W. 199. "See P.ankruptey Act of 1898, sec. 2, clauses 3 & 5; Loveland Baid<;rui)lcy, § 77a. § 1336 EQUITY JURISPRUDENCE. 80S all. His possession, though impartial while the controversy is un- deeided, is regarded as on behalf of the one who is ultimately found to be entitled to the property. He is in reality an officer of the court, and will be protected by it from interference by third persons in the discharge of his duties; indeed, such interference without permission of the court would be a contempt. The re- ceiver, in all important matters, acts under special direction of the court. He must, in general, obtain its permission to bring suits, and suits cannot be properly brought against him without permis- sion. Although not strictly a trustee, because the legal title to the property is not vested in him, he occupies a fiduciary position, and must act with perfect good faith, and is liable to account. The exact nature of his duties depends upon the particular case.^ ' Rrceiver not appointed unthout notice to defendant. — By the settled practice of the court, a receiver cannot be appointed ex parte, before the defendant has had an opportunity to be heard in relation to his rights, except in those cases ■where he is out of the jurisdiction of the court or cannot be found, or where, for some other reason, it becomes absolutely necessary for the court to interfere, before there is time to give notice to the opposite pai-ty, to prevent the destruction or loss of the property: Verplanck v. Mercantile Ins. Co., 2 Paige 438. See, also. Mays v. Rose, Freem. Ch. (Miss.) 703, Shep. 322; Blondheim v. Moore, 11 Md. 365, Shep. 321; St. Louis, K. & S. R. Co. v. Wear, 1.3,5 Mo. 2.30. 33 I.. R. A. 341, 36 S. W. 357, 658, H. & B. 823; Bank of Florence v. U. S. Sav. & L. Co, 104 Ala. 297, 16 South. 110, H. & B. 897. Who may br appointed. — The selection of a receiver is a matter for the wise discretion of the court. As a general rule he should not be personally interested in the result of the suit. See Merchants', etc., Nat. Bank v. Kent Cir. J., 43 Mich. 292. 5 N. W. 627. H. & B. 855 (partner of attorney for one of the parties) : Olmstead v. Distilling, etc., Co., 69 Fed. 24 (stockliolder of the company). While it is preferable to take an insolvent company entirely out of the management which has resulted in its misfortune; Finance Co. of Penn. v. Charleston, etc.. R. Co., 45 Fed. 436; courts have frequently felt constrained to depart from the general iiile and appoint an officer of the com- ])any familiar with the details of its business: Fowler v. Jarvis-Conklin, etc., (^o., 63 Fed. 888, 66 Fed. 14. The receiver's possession, and interference therririfh. — In support of tlie text, see Pom. Eq. Rem. § 154, and quotations; esp. Morrell v. Noyes, 56 Me. 458, 96 Am. Dec. 486. The court receives the property into its custody im- , pressed with all the existing rights and equities, and the relative rank of claims and liens remain unaffected by the receivership (but see infi-a for an important exception to this rule in case of railroad receiverships) ; Am.erican Trust, etc., Bank v. McGettigan, 152 Ind. 582, 71 Am. St. Rep. 345, 52 N. E. 793; McRae v. Bowers Dredging Co., 86 Fed. 344; Duryee v. United States, etc., Co., 55 N. J. Eq. 311, 37 Atl. 155. In most proceedings, the receiver's title relates back to the time of the order appointing him; In re Schuyler Steam Towboat Co., 136 N. Y. 169, 32 N. E. 623, 20 L. R. A. 391; Connecticut River Banking Co. v. Rockbridge Co., 73 Fed. 709; but see Bank of Woodland V. Heron, 120 Cal. 614, 52 Pac. lOOB. The court may order parties to the suit or their agents to surrcTider possession to the receiver, and treat their dis- obedience as a contempt: Brandt v. Allen, 76 Iowa 50, 40 N. W. 82, 1 L. R. A. 801) KKCEIVKRS. § 1036 (55;{; compare Musgrove v. Gray, 123 Ala. 37G, 82 Am. St. Rep. 124, 2G South. 043. The appointing court jealously guards its exclusive authority over tlie fund or property in the receiver's custody. VV'iswall v. Sampson, 14 How. o2, 65, 14 L. ed. 322, Shep. 334 ; any disturbance of that possession, by force, by legal proceedings, or in any other manner, without the permission of the appointing court, constitutes a contempt; Russell v. East Anglian Ry.. 3 Alacn. & G. 104; Ryan v. Kingsberry, 88 Ga. 361, 14 S. E. 59G; Sercomb v. Catlin, 128 ill. 556. 15 Am. St. Rep. 147, 21 N. E. 606: and may be restrained by injunction: Davis v. Gray, 16 Wall. 203, 21 L. ed. 447, H. & B. 804, Shep. 325. Thus, the property in his hands is not subject, without leave of the coud, to attachment: Texas Trunk R. Co. v. Lewis, 81 Tex. 1, 26 Am. St. Rep. 776. 16 S. ^^'. 647; or garnisliment; Holbrook v. Ford, 153 III. 633. 46 Am. St. Rep. 917, 39 N. E. 1091. 27 L. R. A. 324; or execution sale (by weight of authority, such sale, even on a lien arising prior to the receiver's appointment, not only is a contempt, but passes no title to the property; see Wiswall v. Sampson, 14 How. 52, 14 L. ed. 322, Shep. 334; Ellis v. Vernon, etc.. Co.. 80 Tex. 109, 23 S. W. 858; Pelletier v. Greenville L. (^o.. 123 X. C. 596. 68 Am. St. Rep. 837, 31 S. E. 855; but see State v. Superior Court. 8 Wash. 210, 35 Pac. 1087. 25 L. R. A. 354; or even to levy and sale for taxes: In re Tyler, 149 U. S. 164, 13 Sup. Ct. 785, 13 L. ed. 689. Tiie interference by striking workmen with the operation of a railroad in a receiver's hands is punishable as contempt: Thomas v. Cincinnati, etc., R. Co., 62 Fed. 803. Suits agairifit the receiver. — Bringing suit against the receiver without the permission of the appointing court is a contempt of that court : Thompson V. Scott, 4 Dill. 508, Fed. Cas. No. 13,975; and it is even the prevailing rule that the court in which such suit is brought has no jurisdiction to hear and determine it: Barton v. Barbour, 104 U. S. 126, 26 L. ed. 673; contra, see dis- senting opinion of Miller, J., in the last case; St. Joseph & D. C. R. R. v. Smith, 19 Kan. 225, 231, per Brewer, J. This rule was productive of great hardship in many cases: Dow v. Memphis, etc., R. R. Co.. 20 Fed. 260, 268, and was abrogated, as respects acts or transactions of federal receivers in carrying on their business, by act of congress in 1887 (1 U. S. Comp. Stat. p. 582). see Central Trust Co. v. East Tenn., etc.. Co., 59 Fed. 523; Dil- lingham V. Hawk. 60 Fed. 494, 9 C. C. A. 101, 23 L. R. A. 517; Pom. Kq. Rem. §§ 173, 174. Apart from statute, the granting or withholding of the leave to sue the receiver, by petition or intervention in the suit in wliich he was appointed, or by an independent action, is entirely within the discretion of the court, but leave is not arbitrarily refused. See Minot v. Mastin. 95 Fed. 734, 37 C. C. A. 234 : Pacific Ry. Co. v. Wade, 91 Cal. 449, 450, 25 Am. St. Rep. 201. 27 Pac. 768, 13 L. R. A. 754. The receiver's liabilities are ofTicial, not per- sonal: McXuIta V. Lockridge, 141 U. S. 327, 12 Sup. Ct. 11. fruits by the receiver, also, can only be brought by the permission, either special or general, of the appointing court: Screven v. Clark, 48 Ga. 41; Phoenix Ins. Co. v. Schultz, 80 Fed. 337, 25 C. C. A. 453, but this rule has been changed by statute in many states. In siu'h suit the regularity of his appointment cannot be attacked collaterally; Bai'bour v. Nat. Exch. Bank, 45 Ohio St. 133, 12 N. E. 5. A defense good against the original party whom the receiver represents is good ngaiTist the receiver: Hyde v. Lyiidt', 4 N. Y. 387. As to set off, see Colton v. Drovers' Ass'n, 90 ^]d. 85, 78 Am. >^t. Rep. 431, 45 Atl. 23, 46 L. R. A. 388. H. & B. 899. But the statutory receiver of an in'^olvent corporation is usual 1\- held to represent not only the coi-poration. but its creditors as well : Peal)ody v. New England W. Co., 184 111. 625, 15 Am. St. Rep. 195, 56 N. K. 957. § looG EQUITY JURISPRUDENCE. 810 Receiver's management of the property. — While it is the duty of t ^t re- ceiver to keep and manage the property according to the directions and ordeb of the covirt, lie is allowed a discretion in many matters of administrative detail. «ee Vanderbilt v. Little, 43 N. J. Eq. U(i9, 12 Atl. 188. He has no authority to continue a business unless directed to do so by order of the court; by such order he is impliedly authorized to enter into necessary contracts ; as, to hire necessary employees : Continental Trust Co. v. Toledo, etc., R. Co., 59 Fed. 514. He is not bound to complete unfinished contracts, or leases, unless he sees tit to adopt them: Dayton H. Co. v. Felsenthall, 116 Fed. 9fil^ 54 C. C. A. 537. As to his right to employ attorneys, see Henry v. Henry, 103 Ala. 582, 15 South. 916. When the interests of the parties make ic desirable, a sale of the property may be ordered: First Nat. Bank v. Shedd, 121 U. S. 74, 7 Sup. Ct. 807, 30 L. ed. 877. Receivers of railroad corpora- tions, which owe a peculiar duty to the public to keep their properties in opera- tion, may be authorized to borrow money for that general purpose, and, as security, to issue "receiver's certificates," which shall constitute a lien on the property taking priority over the mortgage indebtedness : Union Trust Co. v. Illinois Midland Ry. Co., 117 U. fS. 434, 6 Sup. Ct. 809, 29 L. ed. 963; but this displacement of the mortgage priority by certificates is not allowed in case of purely jjrivate corporations : Fanners' Loan, etc., Co. v. Grape Creek Coal Co., 50 Fed. 481, H. & J3. 879. Payment of claims against the fund. — The claim of the state for taxes is paramount to all others. See Central Trust Co. v. New York, etc., R. Co., 110 N. Y. 250, 18 N. E. 92, 1 L. R. A. 260. In general, necessarj^ expenses of the administration of the receivership have priority over pre-existing mortgages or liens: McLane v. Placerville, etc., R. Co., 66 Cal. 606, 6 Pac. 748. Among such expenses is his liability for injuries resulting from the negligence of his servants in the operation of the property while it is in his charge: Bartlett v. Cicero Light, etc., Co.. 177 111. 68, 69 Am. St. Rep. 206, 52 N. E. 339, 42 L. R. A. 715. Unsecui-ed claims arising before the api>ointment of the receiver are, of course, inferior to tlie mortgage or other secured indebtedness as a general rule ; but an important and remarkable ex- ception has been made, in the last thirty years, in the case of railway receiver- ships. In such receiverships, priority is allowed to certain limited classes of claims for necessary operating expenses incurred within a reasonable time before the appointment of a receiver. "The controlling principle appears to be th:xt a railroad, having public duties to discharge, must be kept a going concern while in the hands of the courts, and that to that end debts due its employees and other current debts incurred for its ordinary operations, which it is not usually practicable to pay in cash, and wliich are therefore payable on short terms, should be paid as they would have been paid if the court had not taken away from the corporation the control of the railroad. A cessation of the rail- road's operations by failure to pay promptly the operatives or other such debts' as railroads must necessarily incur for their ordinary, current operations, must be prevented." Lackawanna, etc., Co. v. Farmers' Loan & Tr. Co., 79 Fed. 202. See Fosdick v, Schall, 99 U. S. 235, 25 L. ed. 339, Shep. 339 (the leading case) ; Kneeland v. Trust Co., 136 U. S. 89, 10 Sup. Ct. 950; Gregg v. ]\Ietro- politan Trust Co., 197 U. S. 183, 25 Sup Ct. 415; National Bank of Augusta V. Carolina, etc., R. Co., 63 Fed. 25 (president's salary not a preferential claim) ; Southern Ry. Co. v. Carnegie Steel Co., 176 U. S. 257, 20 Sup. Ct. 347, 44 L. ed. 458 (supplies for repairs) ; Farmers' Loan & Tr. Co. v. Northern Pac. R. Co., 74 Fed. 431 (claim for personal injuries received prior to appointment of the receiver not entitled to preference). Contra to the last case, see tlie vig- 811 RECEIVKRS. § 1336 orous opinion in Green v. Coast Line R. Co., 97 Ca. 15, 54 Am. St. Rep. 37i), 24 y. E. 814, 33 L. R. A. 800. Jieceiver'.s compensation. — ISee IStuart v. Rouhvare, 133 U. S. 78, 10 Sup. Ct. 244, 33 U. e(i. 5US; Mickey v. Parrot, etc., Co., 32 Mont. 143, 79 Pac. 698, 108 Am. St. Rep. 510. Foreign receivers. — As to tlio right of receivers to sue outside of the terri- torial jurisdiction of their appointment, see Booth v. Clark, 17 How. 322, 15 L. ed. 164, H. & B. 797, Shep. 327 (the leading case) ; Wyman v. Eaton, 107 Iowa, 217, 70 Am. St. Rep. 193, 77 N. W. 865, 43 L. R. A. 695, H.- & B. 888; Gilman V. Ketcham, 84 Wis. 60, 36 Am. St. Rep. 899, 54 N. W. 395, 23 L. R. A. 52; Catlin V. Wilcox Silver Plate Co., 123 Ind. 477, 18 Am. St. Rep. 338, 24 N. E. 250, 8 L. R. A. 62; Ward v. Conn. Pipe ^Ug. Co., 71 Conn. 345, 71 Am. St. Rep. 207, 41 Atl. 1057, 42 L. R. A. 706; Holbrook v. Ford, 153 111. 633, 46 Am. St. Rep. 917, 39 N. E. 109, 27 L. R. A. 324; American Waterworks Co. v. Farmers L. & T. Co., 20 Colo. 203, 46 Am. St. Rep. 285, 37 Pac. 269, 25 L. R. A. 338; Robertson v. Staed, 135 Mo. 135, 58 Am. St. Rep. 569, 36 S. W. 610, 33 L. R. A. 203; Barth v. Backus, 140 N. Y. 230, 37 Am. St. Rep. 545, 35 N. E. 425, 23 L. R. A. 47; Farmers' L. & T. Co. v. Bankers' Tel. Co., 148 K Y. 315, 51 Am. St. Rep. 690, 42 N. E. 707, 31 L. R. A. 403; Castleman v. Templeman, 87 :\Id. 546, 67 Am. St. Rep. 363, 40 Atl. 275, 41 L. R. A. 367; Cushing v. Perot, 175 Pa. St. 66, 52 Am. St. Rep. 835, 34 Atl. 447, 34 L. R, A, 737. g 13S7 EQUITY JUKiSI'UUUEXCE, 81^ GROUP SECOND. HEMEDIES PURELY ITvEVENTIVE. CHAPTER FIRST. INjrXCTIONS. § 1338. § 1339. § 1340. §^ 1341- -1344. § 1341. § 1342. § 1343. § 1344. § 1345. SECTION I. TO PROTECT OR RESTRAIN THE VIOLATION OF OBLIGATIONS AND RIGHTS OF PROPERTY OR OF CONTRACT, EITHER LEGAL OR EQUITABLE. ANALYSIS. § 1337. General nature and objects; Interdicts. Fundamental principle. To protect purely equitable estates or interests, and in aid of purely equitable remedies. The same: Particular instances. To prevent the violation of contracts. General doctrine, 1. Restrictive covenants creating equitable easements. 2. Contracts for personal services or acts. 3. Other agreements generally negative in their nature. Miscellaneous cases: Corporations and their ofTicers; between morlgagiu- and mortgagee; public officers; eminent domain. §1337. General Nature and Object. — The remedy of injunction was undoubtedly borrowed by the chancellors from the "inter- dicts" of tlie Eoman law.^ An injunction may be either a final ^ As to "interdicts," see Gaius's Inst., lib. 4, sees. 138-170; Poste's ed., 402-520; Just. Inst., lib. 4y tit. 15, sees 1-8; Sandars's ed., 1st Am. cd.. 5S, 570-580. Tlie general definition as given by Gains (Ibid., sec. 139) is as fol- lows: "Under eertain circumstances, chiefly Avhen jiossession or quasi pos- session [i. e., ])()ssession of a servitude] is in dispute, the first step in the legal proceedings is the interposition of tiie praetor or pro-consul, who com- mands some performance or forbearance ; which commands, formulated in solemn terms, are called interdicts." The most general formula was "vim fieri veto, exhibeas, restituas." "I forbid you to use violence, you must pro- duce, you must restore." There were tlius three distinct species of interdicts: 1. Tlie ])roliiliitory. wliei'e the defendant -was coininaiulcd to refrain or desist from SGjne act, answering to our ordinary injunction; 2. The exhibitorv', where 813 IXJLXCTIONS: GENEKAL nature and object. ^ looS remedy obtained by a suit, or a preliminary and interlocutory relief granted while the suit is pending. In the first case it is a decree, in the second, an order or writ. Whatever be its form, decree or order, the remedy by ordinary injunction is wholly pre- ventive, prohibitory, or protective. The same is true in theory und in form of a mandatory injunction, which always by its lan- guage prohibits the continuance of an act or of a structure, al- though in effect and in its essential nature it is wholly restorative, and compels the defendant to restore the thing to its original situa- tion. While injunctions may thus be final, or preliminary and an- cillary to other final relief, they all depend upon the same genenil p'rinciples, doctrines, and rules which determine and regulate the exercise of the jurisdiction to award them. In the states adopting the reformed procedure, the codes contain general j)ro- visions describing the cases in which an injunction may be issued, but these provisions do not materially alter tire settled equitable jurisdiction, except in reference to injunctions against actions or judgments at law. § 1338. Fundamental Principle. — In determining whether an in- junction will be issued to protect any right of property, to enforce any obligation, or to prevent any wrong, there is one fundamental I)rinciple of the utmost importance, which furnishes the answer to any questions, the solution to any difficulties which may arise. This principle is both affirmative and negative, and the affirma- tive aspect of it should never be lost sight of, any more than the negative side.^ The general principle may be stated as follows: Wherever a right exists or is created, by contract, by the ownershij) Un- defendant was commanded to produce and exhibit sometliinji- in liis pos- session, — exhibeas, which does not answer to any kind of injunction, but has some analogies witli certain comnion-hiw writs; .3. The restorative, where Ibe defendant was commanded to restore something to its original position, clearly resembling in its effect our mandatory injunction. Interdicts were granted where some danger was apprehended, or some injury was being done, to something of a quasi public character, as the stopping up of a highway, or to some private interest or right. One of the most common occasions of ihc interdict was to protect the plaintiff in his possession of a thing, in whicb case the interdict uti possidetis was used to protect possession of land and buildings, and the interdict utrubi for movables. In the interdict uti pos- sidetis, the defendant was forbidden to interfere with the possession "nee vi. nee clam, nee precario." The granting of interdicts belonged wholly to the "extraordinary" or equitable jurisdiction of the magistrate: See ante. vol. 1, § G. 'A comparison of the English and American reports will show that our courts have dwelt too much on the negative side of this principle, and ha\e almost ignored its affirmative aspect. While the English judges have gradu- ally but steadily enlarged the scope of the injuncticm. the tendency of the American decisions has been to narrow it even within the well-established § 13S'9 EQUITY JITKIHPRUDEXCE. 814 of property or otherwise, cognizable by law, a violation of that right toil J he prohibited, unless there are other considerations of policy or expediency which forbid a resort to this prohibitive remedy. The restraining poiver of equity extends, therefore, through the whole range of rights and duties ivhicli are recognized hy the laiv, and ivould be applied to every case of intended violation, were it not for certain reasons of expediency and policy ivhich control and limit its exercise. This juris- diction of equity to prevent the commission of wrong is, however, modified and restricted by considerations of expediency and of convenience which confine its application to those cases in which the legal remedy is not full and adequate. Equity will not inter- fere to restrain the breach of a contract, or the commission of a tort, or the violation of any right, when the legal remedy of com- pensatory damages would be complete and adequate. The in- completeness and inadequacy of the legal remedy is the criterion which, under the settled doctrine, determines the right to the equi- table remed.v of injunction.- In the treatment of* this twofold principle, I shall state the general rules Avhich have been derived from it, and which regulate the exercise of the jurisdiction, and shall illustrate these rules by enumerating the more important instances to which they have been applied. The general object of the dis- cussion will be to show when an injunction may be granted.' § 1339. To Protect Purely Equitable Estates or Interests, and in limits of the jurisdiction. If "an ounce of prevention is worth a pound of cure," tliis tendency is clearly opposed to the best interests of society. -Watson V. Sutherland, 5 \\all. 74, 1 Ames Eq. Jur. ,531, H. & B. 741. 1 Scott, 134, Shep. 22. • ■■•The general efl'ect produced by some text-books and judicial opinions might lead tlie reader to suppose that the main object of the writers or the judges was to show when injunctions could not be granted. The full force and effect of this most beneficial remedy, and the freedom with which it is granted by courts of the highest authority, can only be ascertained by an actual examination of the decided cases. Preliminary or ■interlocutor)/ injunctions are granted to preserve the prop- erty in statu quo pending the determination of the suit — "to prevent such a change of the conditions and relations of persons and property during the liti- gation as may result in irremediable injury to some of the parties before their claims can be investigated and adjudicated." City of Newton v. Levis, 79 Fed. 715, 25 C. C. A. 561, 49 U. S. App. 266. It is "a matter resting altogether in the discretion of the court, and ought not to be granted unless the injuiy is pressing and the delay dangerous": New York Printing, etc., Co. v. Fitch. 1 Paige, 97, 1 Keener. 562. It is not necessary, however, that the court be satisfied that the plaintiff will certainly prevail on the final hearing; a probable right, and a probable danger that such riglit will be defeated, without the special interposition of the court, is all that need be sho^^•n. When there is grave doubt as to the complainant's right, preliminary relief will generally be denied. See McHenry v. .Tewett, 90 N. Y. 58, H. & B. 743. See, also, post, H 1350a, 1352b, 1352d, 1357, n. 2, 1359. 815 iNJUxcTioxs : eolitablk ixtekests and I?KMEDIES. 5j loo!) Aid of Purely Equitable Remedies. — Tlu- juiisdictiuu to grant in- junctions restraining acts in violation of trusts and liduciary ob- ligatious, or in violation of any other purely equitable estates, in- terests, or claims in aud to specific property, is really commensurate with the equitable remedies given to enforce trusts and fiduciary duties, or to establish and enforce any other equitable estates, in- terests, or claims, with respect to specific things, whether lands, chattels, securities, or funds of money, or to relieve against mis- take, or fraud done or contemplated with respect to such things. In all such cases the question whether the remedy at law is ade- quate cannot arise ; much less can it be the criterion by which to determine whether an injunction can be granted; for there is no remedy at law. Since the estate, interest, or claim of the com- plainant is purely equitable, it is exclusively cognizable by equity; and if its existence is shown, a court of equity not only has the jurisdiction, but is bound to grant every kind of remedy necessary to its complete establishment, protection, and enforcement accord- ing to its essential nature. ]Many breaches of trust are of such a nature tliat, if accomplished, they would completely defeat tlie right of the beneficiary to the specific trust property. The equitable reliefs against mistake or fraud with respect to specific equitable property, aud the equitable remedies of all kinds to enforce trusts. express or by operation of law, and fiduciary duties concerning specific property, and to enforce any other equitable estate, interest, lien, or right in or over specific property, would be of comparatively little practical value, unless the court could by injunction restrain the alienation, transfer, or encumbrance of such property, and all other modes of dealing with it which would prejudice the rights of the coinplainant, and prevent him from acquiring the title, or from enjoying his estate, or from enforcing his claim, or from receiving the full benefits of his final relief.^ It may therefore be stated as a general proposition, that whenever the equitable relief against mistake or fraud with respect to specific property, or the equitable remedy of enforcing trusts or fiduciary duties concerning specific property, or of enforcing any other equitable estates, interests, or claims in or to specific property requires the aid of an injunction .. ' It is true that in suits concorning- land, tho statute aulhorizinjx a notice of lis pendens to bo filed afTords some security to the complainant against transfers and encumbrances pending the suit. But this statute does not affect tlie truth nor generality of the propositiou contained in the text. .1^ the utmost, it only shows that in such cases "the aid of an injunction is not required." But the notice of lis pendens is, at best, only a partial relief; it does not prevent a transfer; it does not even obviate the necessity of an in- junction in many suits concerning land; and it does not generally extend to other suits at all. § 1340 EQUITY JURlSPRLDRNCi:. 816 a court of equity has jurisdiction, and will exercise that jurisdic- tion, to grant an injunction, either pending the suit or as a part of the tinal decree, to restrain a breach of trust or of fiduciary duty, or to restrain an alienation, transfer, assignment, encum- brance, or other kind of dealing with the property, whieli would be in violation of the trust or fiduciary duty, or in fraud of the complainant's rights, and which would therefore interfere with and prejudice the ultimate remedies to which he may be entitled witl) respect to such property. The particular instances to which this doctrine is applied are almost numberless, and extend through the entire range of equitable remedies against mistake and fraud, or to enforce trusts and fiduciary duties, or to establish and enforce other equitable estates, interests, liens, and primary rights in and to specific property of any kind or form. § 1340. The Same. — Particular Instances. — Among the instances in which equity will grant an injunction, preliminary or final, in pursuance of the general doctrine as stated in the foregoing Pel ra graph, the following are some of the most important, and they fully illustrate and establish the doctrine itself, in all its generali- ty, and the grounds upon which it rests : To prevent the transfer of negotiable instruments, at the suit of the defrauded maker or acceptor, or of the party claiming to be the true owner, or to have an interest in them -^ or the transfer, under like circumstances, of stocks or other securities not strictly negotiable;- or even the transfer of chattels Avhen of a special nature and value, such as diamonds, and the like articles;^ to prevent a payment of money in violation of a trust;* to restrain a breach of trust;"' to prevent ' See post, chapter on cancellation. - 1(1. ■"The jnrisdictifni in such case depends upon the same reasons as the analofjous jurisdiction to compel the delivery up of such xmique chattels, or the specitic performance of contracts for their sale: Post, § 1402. * Drake v. Wild. 6.5 Vt. Oil, 27 Atl. 427. ' In suits l)y a beneficiary ayainst his trustee an injunction, if needed, will be granted as a matter of course. See Lee v. Simpson, 37 Fed. 12. 2 L. R. A. 1)59 (preliminary injunction to restrain alienation of land); Dance v. Golding— hiiiii, L. H. 8 Ch. 002 (sale with conditions attached which tend to depreciate the property). To restrain violations of confidence, by the disclosure or unfair use of knowl- edge which has come to the defendant in the course of a confidential employ- ment. Little V. Kingswood Coll. Co., L. R. 20 Ch. D. 733 (to prevent an attor- ney from acting against a former client) ; Gower v. Andrew, 59 Cal. 119, 43 Am. Rep. 242 (to ]>revent a confidential clerk from secretly securing for him- self ilie renewal (if the lease of his employer's business premises; see ante, g 10.10) : I'ollard v. Pholographic Co.. 40 Ch. D. :U.t. 1 Keener. 70. To restrain (lisrlosure of trade secrets. — An a))])lica( ic>n of the last mentioned principle is seen in the well established jurisdiction 1(i enjoin the disclosure or 817 INJUNCTION AGAINST BUKACJL OF CONTRACT. § 13-il a defendant from affecting or encumbering the property in litiga- tion by contract, conveyance, mortgage, or any other act;*^ and, in general, in all suits to enforce an equitable right against specific property, — as to enforce an etiuitable estate and compel the con- veyance of the legal title, to enforce a trust, or an equitable lien,' to compel the specific performance of a contract, and the like, — the court will grant an injunction to restrain a threatened transfer of the property, whether land, chattels, or securities, during the pendency of the action. § 1341. To Prevent the Violation of Contracts. — An injunction restraining the breach of a contract is a negative specific enforce- ment of that contract. The jurisdiction of equity to grant such injunction is substantially coincident Avith its jurisdiction to com- pel specific performance. Both are governed by the same doctrines and rules; and it may be stated as a general proposition that wherev- ei* the contract is one of a class which will be affirmatively spe- cifically enforced, a court of equity will restrain its breach by in- junction, if this is the only practical mode of enforcement which its terms permit. Where the agreement stipulates that certain acts shall not be done, an injunction preventing the commission of those acts is evidently the only mode of enforcement ; but the remedy of injunction is not confined to contracts whose stipulations are negative; it often extends to those which are affirmative in their provisions, where the affirmative stipulation implies or includes a negative. The universal test of the jurisdiction, admitted alike by the courts of England and of the United States, is the inadequacy of the legal remedy of damages in the class of contracts to which the particular instance belongs.^ This general doctrine is fullv iion V. Pickering, L. R. 16 Cli. Div. 371, 660 (in suit to enforce married woman's contract against her separate estate, an injiniction resti-aining her from alien- ing her property will not be granted, because her contract creates no lien or charge on her estate). ' As to enjoining breach of an allirmative slipulation wiiich implies or includes a negative, see post. S 1343, note. l^reaches of some particular stipulation have frequently been enjoined, not- witlislanding ihat otlier parts of the contract were in tlicii- nature incapable of .specific performance, either allirmatively or by injunction: see. for example. Wliiltaker v. Howe, 3 Beav. 3S3, 2 Keener, 209; Rolfe v. Rolfc, 15 Sim. 88, 2 § 1343 EQUITY JURISPKUDEXCK. 818 sustained by the eases cited in the succeeding paragraphs as illus- trations of its application. A clearer notion of the doctrine will perhaps be obtained by considering the contracts to which it ap- plies in three main classes : 1. Those restrictive covenants which create equitable easements; 2. Agreements stipulating for personal services or acts; 3. Other agreements, generally negative in their nature. § 1342. 1. Restrictive Covenants Creating' Equitable Easements.^ § 1343. 2. Contracts for Personal Services or Acts. — Where a contract stipulates for special, unicpie. or extraordinary personal services or acts, or for such services or acts to be rendered or done by a party having special, unique, and extraordinary qualifications, — as, for example, by an eminent actor, singer, artist, and the like, — it is plain that the remedy at law of damages for its breach might be wholly inadequate, since no amount of money recovered by the plaintiff might enable him to obtain the same or the same kind of services or acts elsewhere, or by employing any other per- son. It is. however, a familiar doctrine that a court of equity will not exercise its jurisdiction to grant the remedy of an affirmnfii-e specific performance, however inadequate may be the remedy of damages, whenever the contract is of such a nature that the decree for its specific performance cannot be enforced and its obedience compelled by the ordinary processes of the court. A specific per- formance in such cases is said to be impossible; and contracts stip- ulating for personal acts have been regarded as the most familiar illustrations of this doctrine, since the court cannot in any direct manner compel an actor to act, a singer to sing, or an artist to paint. Applying the same course of reasoning, the English courts formerly held that they could not negatively enforce the specific performance of such contracts by means of an injunction restraining their violation.^ Those courts have, however, entirely receded from Keener, 218; Dietrichsen v. Cabburn, 2 Phill. Ch. 52, 1 Ames Eq. ,Jur. 108, 2 Scott, 92, 2 Keener, 220; Liimley v. Wagner, 1 DeGex, M. & G. 604, 1 Ames Kq. Jur. 93, 2 8cott, 90, 2 Keener, 223, H. & B. 614; Donnell v. Bennett, L. R. 22 Ch. Div. 835, 1 Ames Eq. Jur. 114, 2 Scott, 114, 2 Keener, 275, H. & B. 627; Singer Machine Co. v. Union Button Hole Co., 1 Holmes, 253, Fed. Cas. No. 12, 904, 1 Ames Eq. Jur. 438, 2 Keener, 255; Peabody v. Norfolk, 98 Mass. 452. 96 Am. Dec. 064, 2 Keener 241 ; and see post, § 1405, note on "Mutuality." Contra, see Hills v, Croll. 2 Phill. Ch. 60, 1 Ames Eq. Jur. 427, 2 Scott, 90, 2 Keener 216; Iron Age Pub. Co. v. W. U. T. Co., 83 Ala. 498. 3 Am. St. Rep. 758, 3 South. 449, 2 Keener 834; Welty v. Jacobs, 171 HI. 024, 49 N. E. 723, 40 L. R. A. 98, H. & B. 592. SSee ante, § 1295. ' Kemble v. Kean, Sim. 333, 1 Ames Eq. Jur. 91; Kimberley v. Jennings, 819 INJL-\CTIO-\ AGAINST BHKACII OF COXTUACT. ,i^ i;]43 this latter conclusion. The rule is now firmly established in Enpland that the violation of such contracts may be restrained by injunction, Avhenever the leual remedy of damages would be inadequate, and the contract is of such a nature that its negative specific enforcement is possible. This rule was first applied to stipulations which were in form expressly negative, but was soon extended to affirmative .contracts which implied or involved negative stipulations.- 6 Sim. 340, 2 Keener 204; among early American cases to the same effect see tSanquirico v. Benedetti, 1 Barb. 315, 2 Scott 85. - The leading case is Lumley v. Wagner, 1 De Gex, M. & C4. 604. 1 Ames Eq. Jur. 93, 2 Scott 96, 2 Keener 223, H. & B. 614, in which the defendant, a "prima donna," had agreed to sing for a certain specified period in tlic plaintiff's opera-house, and also that she would not sing elsewiierc during that time. The opinion by Lord Chancellor St. Leonards contains a full review of the previous authorities, and a most able and convincing discussion of tlie principle. See, also, Daly v. Smith, 38 N. Y. Super. Ct. 158. 2 Keener 267; lyicCaull V. Braham, 16 Fed. 37, 2 Scott 116, H. & B. 607; Morris v. Colman, 18 Ves. 436, 1 Ames Eq. Jur. 89, 2 Scott 87, 2 Keener 197 (playwright enjoined from writing for another theater) ; Philadelphia Ball Club v. Lajoie, 202 Pa. St. 210, 90 Am. St. Rep. 627, 51 Atl. 973, 58 L. R. A. 227 (professional base- hall player enjoined from playing with any other club). In Montague v. Floekton, L. R. 16 Eq. 189. 1 Ames Eq. Jur. 105, 2 Scott 107, 2 Keener 246. II. & B. 622j the rule was extended to a contract by an actor that contained no negative stipulation. But in 1891 this case was overruled, and it was held that a negative stipulation will not be implied even where the defendant had agreed to give the "whole of his time" to the plaintiff's business. Whitwood Chemical Co. v. Hardman [1891]. 2 Ch. 416, 1 Ames Eq. Jur. 117. 2 Scott 110, 2 Keener 284. Shep. 296 (see also Clarke v. Price, 2 Wils. Ch. 157. 2 Scott 89, 2 Keener 199, H. & B. 612, where Lord Eldon refused to enjoin the defendant from writing law books for another firm, in the absence of an express nega- tive stipulation); but this rule of Wliitwood Chemical Co. v. Hardman applies- only to contracts for personal services ; in other kinds of contracts a negative may still be implied; see Metropolitan El. Svipply Co. v. Gender, [1901] 2 CIi. 799: also, De Mattos v. Gibson, 4 De Gex & J. 276, 1 Ames Eq. Jur. 102; and its restriction of the remedy to stipulations expressly negative seems to have had little infiuence in this country; see Cort v. Lassard, 18 Oreg. 221, 17 Am. St. Rep. 726, 22 Pac. 1054, 6 L. R. A. 653; Daly v. Smith, 38 N. Y. Sup. Ct. 158. 2 Keener 267. \\'here tlie services contracted for are neither special, extraordinary nor unique, so that the employer may readily obtain a substitute, equitable relief is refused: Rogers Mfg. Co. v. Rogers, 58 Conn. 356, 20 Atl. 467, 18 Am. St. Rep. 278. 7 L. R. A. 779, 2 Keener 295, H. & B. 629, Shep. 294; Carter v. Ferguson, 58 Hun 569, 12 N. Y. Suppl. 580 (actor) ; Cort v. Lassard, 18 Oreg. 221, 17 Am. St. Rep. 726, 22 Pac. 1054, 6 L. R. A. 653 (acrobat) ; Kimberly v. Jennings, 6 Sim. 340, 2 Keener 204. It has been held that an employee cannot restrain his employer from dis- charging him: Davis v. Foreman, [1894] 3 Ch. 654; see. also, Welty v. .Jacobs, 171 111. 024. 49 N. E. 723, 40 L. R. A. 98, II. & B. 592; see post. § 1405. note on Mutuality. An injunction will not be granted where the agreement is in- definite or incomplete: Metropolitan Exhibition Co. v. Ewing. 42 Fed. IS, 7 L. R. A. 381, H. & B. 631 ; or where the employer is unable to perform his ^ 13-ii EQUITY JclUSPKUDENCE. 820 § 1344. 3. Other Agreements Generally Negative in their Nature. — In all these agreenients, where the stipulations are expressly neg- ative in form, and where they belong to the class of which the specific performance would be enforced if they were affirmative in form, an injunction to restrain their violation will be granted as a general rule, and almost as a matter of course. The inadequacy of the legal remedy is the criterion; but the fact that the agree ment belongs to a class which would be specifically' enforced neces- sarily shows that the legal remedy is inadequate. The particular instances of this class are very numerous, and some of the most im- portant examples are placed in the foot-note.^ part of the agreement: Rice v. D'Arville, 1G2 Mass. 559, 39 N. E. 180, 2 Keener 1071. ^Agreements, not illegal (see ante, § 934), not to carry on a trade. Stipu- lations by tradesmen selling their bvisiness not to engage in similar business within prescribed limits may be enforced by injunction, as a general rule, because of the difiiculty of estimating damages for a breach of the contract: Holfe V. Rolfe, 15 .Sim. 88, 2 Keener 218; Williams v. Williams, 2 Swans. 253, 2 Keener 199; Angier v. Webber, 14 Allen 211, 92 Am. Dec. 748, 2 Scott 12(); Diamond Match Co. v. Roeber, 106 N. Y. 473, 60 Am. Rep. 464, 13 N. E. 419, 1 Ames Eq. Jur. 123; similar agreements between physicians: McClurg's Ap- peal, 58 Pa. St. 51, H. & B. 751: Wilkinson v. Colley, 164 Pa. St. 35, 30 Atl. 286, 26 L. R. A. 114, 2 Keener 300; or between lawyers: Whittaker v. Howe, 3 Beav. 383, 2 Keener 209. The benefit of the stipulation may be assigned with the business, and the assignee's rights protected by injunction: Francisco v. Smith, 143 N. Y. 488, 38 N. E. 980, I Ames Eq. Jur. 186. Other agreements not to compete; as, by a rival quarry not to supply stone to a municipal corporation during a certain period: Jones v. North, L. R. 19 Eq. 426, 2 Keener 273. Contracts "•ivino- the plaintitf the exclusive right to buy articles manufactured or pro- duced by the defendant, or constituting the plaintiff the sole agent for their sale, have frequently been enforced by enjoining the sale of the articles by the defendant to third parties: Dietrichsen v. Cabburn, 2 Phill. Ch. 52, 1 Ames Eq. Jur. 108, 2 Scott 92, 2 Keener 220; Donnell v. Bennett, L. R. 22 Ch. D. 835, 1 Ames Eq. Jur. 114, 2 Keener 275, 2 Scott 114, H. & B. 627; Singer Sewing [Machine Co. v. Union Button Hole Co., I Holmes 253, Fed. Cas. No. 12,904, 1 Ames Eq. Jur. 438, 2 Keener 255 (contracts making plaintift' sole agent for a patented article) ; Manhattan Mfg., etc., Co. v. New Jersey, etc., Co., 23 N. J. Eq. 161, H. & B. 747, 2 Keener 568. On the other hand, the court refused to enjoin the breach of a contract to sell to plaintiff all the coal defendants should get from a certain mine, since coal is an article of such a common character that an ordinary contract for the sale of it would not be specifically enforced: Fothergill v. Rowland, L. R. 17 Eq. 132, 1 Ames Eq. .Jur. Ill, 2 Scott 111, 2 Keener 261, PI. & B. 599. Miscellaneous contracts: agreements not to disclose trade secrets; see ante, § 1340; Salomon v. Hertz, 40 N. J. Eq. 400, 2 Atl. 379, 1 Ames Eq. Jur. 128; Peabody v. Norfolk, 98 Mass. 452, 96 Am. Dec. 664, 2 Keener 241; Fralich v. Despar, 165 Pa. St. 24, 30 Atl. 521, 2 Keener 304. In- junction against diverting water in bi-each of agreement: Dickenson v. Grand .Junction Canal Co., 15 Beav. 260, 2 Keener 312; against running trains past a station without stopping, in violation of contract: Hood v. North Eastern Ry.. L. K. 8 Eq. 666, 5 Ch. 525, 1 Ames Eq. Jur. 82, 2. Scott 76, 2 Keener 160. 821 IXJL'XCTJON : MISLELLAXEOLS CASES §1315 § 1345. Miscellaneous Cases. — As has already been slated, an injimction will always be granted, if necessary, to protect, aid, or enforce any equitable estate, interest, or primary right, or to secure and render efficient any purely equitable remedy'. Amoim the most important instances in which this general doctrine is ap- plied, in addition to those already mentioned, are the following: Against Corporations and their directors and officers, to re.strain acts which are illegal, ultra vires, or in violation of their fiduciary duties.^ While the right to membership in a corporation, or to be a corpora- tion officer, cannot, in general, be tested by means of an injunc- tion,- the improper or unlawful expulsion of a member from a vol- untary association without good cause, or in violation of its by- laws, may be restrained by injunction.^ Between Mortgagors and mortgagees.* Against Fuhlic Officers. An injunction will not be granted, in general, to restrain persons from acting as public offi- cers;^ but the illegal, unlawful, or improper acts of public offi- ' The general subject of suits against coi-porations, and their manaoing officers, based upon their trust rehitions, and their acts in violation thereof, has already been considered: Ante, §§ 1091-1096. In all such suits an in- junction may be granted either as the sole remedy, or in connection witli the remedies of rescission, cancellation, accounting etc. In connection with the cases there cited, see also the following as illustrations: To restrain ultra vires acts: (See Attorney Gen. v. Tudor Ice Co., 104 Mass. 239, 6 Am. .St. Rep. 227, Shep. 3; Kean v. Johnson, 9 N. J. Eq. 401; Byrne v. Schuyler E. M. Co., 65 Conn. 336, 31 Atl. 833, 28 L. R. A. 304. To restrain unlawful acts of directors or managing officers in violation of their fiduciary duties: Carlisle v. South Eastern Ry., 1 Macn. & G. 689 (payment of illegal dividends) : ^Memphis & C. R. Co. v. Woods, 88 Ala. 630, 16 Am. St. Rep. 81, 7 South. lOS. 7 L. R. A. 605. -Unless the question arises incidentally in a suit of which the court has jurisdiction on other grounds: Kean v. Union Water Co., 52 N. J. Eq. 813, 46 Am. St. Rep. 538, 31 Atl. 282. The proper remedy is by quo warranto. "Labouchere v. Earl of WharnelifTe, L. R. 13 Ch. D. 346; Ryan v. Cudahy, 157 111. 108, 48 Am. St. Rep. 305, 41 N, E. 760, 49 L. R. A. 353 (expulsion from a boai'd of trade without opportunity to make a defense). As to injunc- tion to protect the property rights of conflicting factions in an ecclesiastical body, see Watson v. Jones, 13 Wall. 679, 20 L. ed. 666. *To restrain mortgagee from improper sale under a power of sale, by ad- vertisement, etc.: Warner v. Jacob, L. R. 20 Ch. Div. 220; McCalley v. Otey, 99 Ala. 584, 42 Am. St. Rep. 87, 12 South 406. To restrain mortgagor from committing waste, tinder certain circumstances, or doing other acts to the property whereby the security would be imperiled. See post, under head of Waste. ''The legal remedy is, in general, adequate to test the right to a public office: Arnold v. Henry, 155 ]\lo. 48, 78 Am. St. Rep. 556, 55 S. W. 1089. Eqtiity has no jurisdiction to control an election to office, in any of its processes or stages: Fletcher v. Tuttle, 151 111. 41, 42 Am. St. Rep. 220, 37 N. E. 683, 25 L. R. A. 143; Alderson v. Commissioners. 32 W. Va. 640, 25 Am. St. Rep. 840, 9 S. E. 868, 5 L. R. A. 334; nor to restrain removal from office; In re § 1345 EQUITY JLTilSPKUDKNCE. 8"-^*^ cers may be restrained when they Avould produce irreparable in- jury, or create a cloud upon title, or Avhen such remedy is necessary to prevent a multiplicity of suits." To prevent a Cloud upon Tilii' Sawyer, 124 U. S. 200, 8 Sup. Ct. 482, 31 L. ed. 402, Shep. 5; White v. Berry. 171 U. S. 366, 18 Sup. Ct. 917, 43 L. ed. 199. It may, however, protect the possession of a de facto officer against the interference of an adverse cdaimant, pending the establishment of the disputed title by legal proceedings: State v. Superior Court, 17 Wash. 12, 61 Am. St. Eep. 893, 48 Pac. 741. " See Louisiana Board of Liquidation v. McConib, 92 U. S. 531, 23 L. ed. 623; People v. Canal Board, 55 N. Y. 390, 1 Keener 100; State v. Lord, 28 Oreg. 498, 43 Pac. 471, 31 L. R. A. 473. But an injunction will not issue to restrain political acts of public officers: State of Georgia v. Stanton, 6 Wall. 10, 18 L. ed. 721; nor where the suit is in efi'ect one against the state: Ex parte Ayres, 123 U. S. 443, 8 Sup. Ct. 164, 31 L. ed. 216. Injunctions against municipal corporations and their officers. The illegal acts of municipal officials form one of the most frequent subjects for injunction. Suit may be brought on behalf of the state by the attorney general or other proper officer: State v. County Court of Saline County, 51 Mo. 3.50, 11 Am. Kep. 454; but more commonly, at the present day, the suit is institvited by one 01- more tax-payers on behalf of the whole body of tax-payers of the munici- pality; the fact that the illegal act of the municipal officers, involving the expenditure of public moneys or the creation of public indebtedness, will usually result in increasing the burden of taxation, is considered to give the tax-payers, as a class specially injured, a sufficient standing in a court of equity. There is some analogy between the relation of tax-payers to the municipal government, and that of stockholders to the governing body of a private corporation: see ante, §§ 1088-1096; Dillon, Mim. Corp. § 915; Russell v. Tate, 52 Ark. 541, 20 Am. St. Kej). 193. 13 S. W. 130, 7 L. R. A. 180; in general, see Crampton v. Zabriskie, 101 r. S. 601, 25 L. ed. 1070 (a leading case) ; Xewmeyer v. Missouri & M. R. Co., 52 Mo. 81, 14 Am. Rep. 394; Mayor, etc., of Baltimore v. Gill, 31 Md. 375; Harney v. Indianapolis, etc., R. Co., 32 Ind. 244; Pom. Eq. Rem. § 345, and quotations. Among the acts most frequently thus enjoined are, the un- authorized issue of municipal bonds in aid of the construction of railways or other public works: Newmeyer v. R. Co., supra; incurring of indebtedness in excess of a limit prescribed by law: Honaker v. Board of Education, 42 W. Va. 170. 57 Am. St. Rep. 847, 24 S. E. ,544, 32 L. R. A. 413: violation of laws 1o tlie eftect that contracts must be let to the "lowest" or the "lowest responsi- ble" bidder, or the like: Adams v. Brenan, 177 111. 194, 69 Am. St. Rep. 222, 52 N. E. 314, 42 L. R. A. 718; other illegal expenditures of public moneys: The Liberty Bell, 23 Fed. 843; or use of public property for private purposes; Schofield V. School Dist., 27 Conn. 499 (use of vacant school house). The remedy is subject to some important limitations. It should, by the weight of authority, and as a general rule, be directed against the enforcement of the invalid ordinance, rather than against the legislative action of passing the ordinance: Alpers v. San Francisco, 12 Savw. 631, 32 Fed. .503. per Field. .].: Lewis v. Denver City Waterworks Co., 19 Colo. 236. 41 Am. St. Rep. 248, 74 I'ac. 993: Stevens v. St. Mary's Training School, 144 111. 336, 36 Am. St. Kep. 438, 32 N. E. 962, 18 L. R. A. 832; (for exceptions, see Pom. Eq. Rem. § 341 ; Roberts v. City of Louisville, 92 Ky. 95, 36 Am. St. Rep. 469, 17 S. W. 216, 13 L. R. A. 844) ; and it cannot interfere with the exercise of a discrelionary power, unless tainted witli fraud or manifestly abused: McCarmel v. Shaw, 155 111. 37, 46 Am. St. Rep. 311, 39 N. E. 584, 27 L. R. A. 580. A'oid munici- 823 INJUNCTION : MISCELLANEOUS CASES, § 1345 The use of the injunction to prevent acts which would create a cloud pal ordinances are frequently enjoined on other -grounds tlian that of injury to the plaintiti' in his capacity as a tax-payer: as, where tlie enforcement of such ordinance Avould result in a multiplicity of suits: Third Ave. R. R. Co. V. Mayor, 54 N. Y. 159, 2 Ames Eq. Jur. 102, 1 Keener, 167; City of Chicago y. Collins, 175 111. 445, 67 Am. St. Rep. 224, 51 N. E. 907, 49 L. R. A, 408, 2 Ames Eq. Jur. 92; ante, §§ 254, 261; or in irreparable injurj' to the plain- tiff's private rights: Manhattan Iron Works Co. v. French, 12 Abb. N. C. 44G, 2 Ames Eq. Jur. 107; City of Austin v. Austin City Cemetery Assn., 87 Tex. ;«0, 47 Am. St. Rep. 114, 28 S. W. 528. Injunction against taxation. — The rules in the different states, and in the federal courts, regarding the issuing of injunctions to restrain the collection Mf invalid taxes are far from uniform. In general, the states may be divided into two classes. In the states of the first class, the mere illegality of the tax is not ground for equitable relief. There must be in every case of the threatened enforcement of an invalid tax, "some special circumstance which distin- guishes it from a common trespass, and brings the case under some recognized head of equity jurisdiction before the extraordinary and preventive remedy of injunction can be invoked": Wells, Fargo & Co. v. Dayton, 11 Nev. 161; Dows v. City of Chicago, 11 Wall. 108, 20 L. ed. 65 (the leading case). Thus, an injunction rarely issues to prevent the collection of -an invalid tax on per- sonal property, since, if it be seized for non-payment of the tax, the officers are liable in trover or trespass, and damages are presumed to be full compen- sation: see White v. Stender, 24 W. Va. 615, 49 Am. Rep. 283; Shelton v. Piatt, 139 U. S. 595, 11 Sup. Ct. 646, 35 L. ed. 276; otherwise where the seizure will work irreparable injury: Southern Ry. Co. v. City of Asheville, 69 Fed. 359. Fraud is often mentioned as a proper ground for equitable relief; as in case of a systematic and illegal discrimination against the complainant: Louisville Trust Co. V. Stone, 107 Fed. 305, 46 C. C. A. 299. The avoidance of a multi- plicity of suits as a ground for jurisdiction has already been fully discussed ; see ante. §§ 258-260, 265, 266, 270, and notes. The prevention and removal of clouds on title is a familiar ground of equity jurisdiction; inasmuch as taxes on realty, and sometimes those on personalty as well, are generally made a lien upon real estate, relief against tax proceedings not defective upon their face is frequently had upon this ground: see post, §§ 1398, 1399. In nearly half of the states, the mere illegality of a tax is (subject to some limitations), a ground of jurisdiction for its injunction, apart from any ques- tion of irreparable injury, of multiplicity of suits, or of cloud on title. No distinction, in principle, is made between taxes on real and on personal pro]i- erty. Injunction is usiially a matter of right when property exempt from taxa- tion is sought to be taxed; on the other hand, where the question is one of an oppressive valuation the complainant must, as a general rule, first pursue the statutory remedy of appeal to the board of review or equalization. See Rom. Eq. Rem. § 363, ff. In both classes of states it is a principle of general application that mere irregularities in the assessment are not suflicient to warrant Ihe interference of equity; the defect which renders the tax invalid must be substantial; see Rob- inson v. City of Wilmington, 65 Fed. 856, 13 C. C. A. 177, 25 U. S. App. 144; Chicago, R. & Q. R. Co. v. Frary, 22 111. 34; and it is also a general rule, in application of the maxim, "He who seeks equity must do equity," that where a tax is valid in part and invalid in part, no relief will be awarded unless a payment or tender is made of Ihe valid portion: People's Nat. Bank v. Marve, § 1345 EQUITY JUKISPKUDENCE. 824 upon title is governed by the same rules which control the remedy of removing a cloud from title.' ]!»1 r. .S. 272, 24 Sup. Ct. 08, 48 L. ed. 180, and cases cited; State Railroad Tax Cases, 92 U. S. 616, 23 L. ed. 074. Injunction against exercise of the jiotcer of eminent domain. — Injunctions, in tliis class of cases, are not controlled by the principles which regulate injunctive relief against ordinary trespasses. The constitutional guaranty that "property shall not be taken for public vise without just compensation" by agents of the state to whom this power is delegated, is deemed to establish a rigid of so high and sacred a character that any threatened infringement of the right should be restrained, without consideration of the adequacy of the legal remedy, '■'rhe power is so capable of abuse, and those who are invested with it are often so prone to its arbitrary and oppressive exercise, that a court of equity, without incjuiring whether there is irreparable injury, or injury not susceptible of ade- quate redress by legal remedies, will intervene for the protection of the owner" ; East & VV. R. Co. of Alabama v. E. T. V. & G. R. Co., 75 Ala. 280; D. M. Osborne 6 Co. V. Mo. Pac. R. Co., 147 U. S. 248. 13 Sup. Ct. 299, 37 L. ed. 155: Bass v. Metropolitan W. S. El. R. Co., 82 Fed. 857, 27 C. C. A. 147, 39 L. R. A. 711; Jiolton V. McShane, 07 Iowa 207, 25 N. W. 135; Lewis, Em. Dom. § 632; Pom. ]•](]. Rem. § 465 and quotations. See, also, Gardner v. Newburgh, 2 Johns. Ch. 102. 7 Am. Dec. 526, 1 Scott 740, 1 Keener 054, H. & B. 707. The entry upon or appropriation of the plaintiff's land is the specific act enjoined; no injunction lies against the prosecution of condenniation proceedings when the matter which is set up as a ground for injunction may be urged as a defense in such proceedings: Black Hills, etc., R. Co. v. Tacoma Mill Co., 129 Fed. 312, 03 C. C. A. 544; Lewis, Em. Dom. § 646. It is the rule in most states that the owner of land abutting upon a public street, who owns the fee of the land included in such street subject to the easement in the pul)lic for legitimate street purposes, can enjoin the use and occupation of tlie street by a steani railroad in such a manner as to create an ''additional servitude" upon the street, if no com- ])ensation to such abutting owner has been ascertained or made: Williams v. X. ^■. Cent. R. Co., 10 X. Y. 97, 69 Am. Dec. 651, 1 Ames Eq. Jur. .521. 1 Scott 700-. Henderson v. N. Y. Cent. R. Co., 78 X. Y. 423, 1 Keener 023. 1 Scott 707. lint in nearly all the states, if the fee in the street is vested, not in the abutting owner but in the municipality, he has no remedy by injunction for the damage (ir injury to the enjoyment of his property caused by the authorized construc- licin or operation of a railroad in the street: Stetson v. Chicago & E. R. Co.. 7.") III. 74, 1 Ames Eq. .Inr. 595. A contrary and far more equitable rule was established in New York, as respects the elevated railroad structures of New \(irk City, in a great series of cases, beginning with Story v. N. Y^., etc.. R. R. Co., 90 N. Y. 122, 43 Am. Rep. 146, and inchiding Lynch v. Metropolitan El. R. Co., 129 X. Y. 274, 20 Am. St. Rep. 523, 29 N. E. 315, 15 L. R. A. 287. 1 Scott 124, Shep. 30 (damages as incidental to relief in equity) ; O'Reilly v. New York El. R. Co.. 148 N. Y. 347, 42 N. E. 1063. 31 L. R. A. 407 (no injunc- tion where no actual damage) ; Galway v. Met. El. R. Co., 128 N. Y. 145. 28 N. E. 479. 13 L. R. A. 788, 1 Ames Eq. Jur. 601, 1 Keener 822 (conduct not amount- ing to estoppel or acquiescence) . In view of the great public inconvenience that would have resulted from enjoining the operation of the elevated railroads pending condemnation proceedings, the courts in these cases determined the amount of permanent damages to which the plaintiff was entitled, and made the injunction conditional upon the refusal of the company to pay the sum so awarded. See, further, on the subject of railroads in streets, Pom. Eq. Rem. 825 INJUNCTIONS TO PHKVKNT TOUTS. § 1346 SECTION II. TO PREVENT OR RESTRAIN THE COMMISSION OF TORTS. ANALYSIS. § 134(5. Tlie estates and interests generally legal. § 1347. Kinds and classes of torts restrained. § 1348. Waste. I § 1348a. Equitable waste. ' § 1348b. Waste: relief granted; parties. § 1349. Nuisance: Public. § 1350. Nuisance: Private; when restrained. § 1350a. Same: Interlocutory injunction; balance of injur}'; laches and estoppel. § 1350b. Same: Form of decree; complete relief, etc. § 1351. Same: Instances; violations of easements. § 1352. Patent rights and copyrights. § 13o2a. Patent rights, continued. § 1352b. Same : temporarj^ injunctions. § 1352c. Same: complete relief. § 1352d. Copyrights. § 1353. Literary property as distinct from copyright. § 1354. Trade-marks. § 1354a.. Exclusive franchises. § 1355. Good-will. § 1356. Trespasses. § 1357. General doctrine; cases in which trespass may be enjoined. § 1358. Slander of title; libels: '-right of privacy"; strikes, boycotts, etc. § 1346. The Estates and Interests Generally Legal. — The estates, interests, and primary rights to be secured by injunctions of this kind are in most instances legal ; and the injunctions themselves, as a class, are frequently described as those for the protection of legal rights and interests. So far as they do thus sustain and en- force legal rights, they are, of course, supplementary to or in lieu of the legal remedies which courts of common law originally gave, and perhaps now give, by action, under the same circumstances. For this reason, the general test as stated in a former paragrajib applies with special force. The inadecjuacy of tbe legal remedies is the criterion which determines the exercise of this preventive §§ 467-470, and cases cited. As to injunction at the suit of abutting owntT against changing the grade of a street to his injure, see McElroy v. Kansas Citv, 21 Fed. 257, per Brewer, .7. As to the defense of acquiescence, in eminent domain eases, see Galway v. Met. El. R. Co.. supra; City of New York v. Pine, 185 V. S. 03, 22 Sup. Ct. 592, 4G L. ed. 820. 'See post, § 1398. § 134:7 EQUITY JUIUSPRUDEXCE. 826 jurisdiction ; and the criterion is enforced, especially by the Ameri- can courts, with great strictness. § 1347. Kinds and Classes of Torts Restrained. — The legal rem- edy is ordinarily considered as adequate in cases of torts to the ]»erson, and to j^roiDerty held by a legal title, and equity does not interfere.^ There are, however, certain species of torts, in respect to each of which, as a class, it is settled that the legal remedy is generally inadequate, so that equity will generally interfere to prevent the wrong by injunction. There are other species of torts, in respect to each of which, as a class, the legal remedy is ad- I'.quate, but may become inadequate, in individual instances, from tlieir particular circumstances, so that in those instances an injunc- ti(in will be granted. In the kind of torts for which the legal remedy is generally inadequate, so that an injunction is the proper I'cmedy, the title of the injured party must be clear, the injury real, and not merely temporary or transient. They are waste, nuisance, including interference with easements, servitudes, and siinilar rights, infrnigements of patent rights, of copyrights, of trademarks, and of other intangible property rights, the pecuniary value of which cannot be certainly estimated, such as literary l»roperty in manuscript writings and good-will. In ordinary tres- passes the injured party is left to his remedy of damages, but the circumstances of a trespass to property — especially to real pro- '^ Enjoining criminal acts. — An injunction is not granted to restrain a crim- inal act, when no property right is directly endangered by such act: see Cope v. District Fair Assn., 9!) ill. 489, .39 Am. Rep. 30. 1 Ames Eq. Jur. 29 (gambling) ; Ocean City Assn. v. Schurch, 57 N. .J. Eq. 2G8, 41 Atl. 914, 1 Scott 215 (vio- lation of Sunday laws). "Something more than the threatened commission of :ui offense against the laws of the land is necessary to call into exercise the injunctive powers of the court. There must be some interferences, actual or Uneatened, with property or rights of a pecuniary nature: but when such inter- ferences appear the jurisdiction of a court of equity arises, and is not de- sti'oyed by the fact that they are accompanied l)v or are themselves violations of the criminal law": In re Debs, 158 U. S. 564, 15 Sup. Ct. 900. 34 L. ed. 1092. Shep. 304. Thus, the fact that acts of intimidation by striking workmen are often criminal is no reason for not enjoining them, at the suit of an employer of labor whose property rights (often intangible rights; see post, § 1358, n.) are endangered thereby: Vegalahn v. Guntner. 107 Mass. 92, 57 Am. St. Rep. 443, 44 X. E. 1077, 35 L. R. A. 722, H. & B. 773; Hamilton-Brown Shoe Co. v. Saxey, 131 JMo. 212, 52 Am. St. Rep. 622, 32 S. W. 1106, H. & B. 779. And the fact that a public nuisance is also a crime is no reason why it should not be enjoined at the suit of an individual who suffers from it some special damage diflerent and otlier than that suffered by the rest of the community: Cranford V. Tj'rrel, 128 N. Y. .341, 28 N. E. 514, 1 Keener 788 (house of ill-fame) ; oi even where he does not suffer special damage, if suit by an individual is author-' ized by statute: Littleton v. Fritz, 65 iowa 488, 54 Am. Rep. 19, 22 N. W. 641, I Ames Eq, Jur. 31 (injunction against selling liquor). S27- IXJUNCTIOXS TO rUEVEXT TORTS. § DMS perty — may be such that the compensatory remedy is inadeqiiatf . and a court of equity will prevent the wrong by injunction, § 1348. Waste. — Waste is the destruction or improper deteriora- tion or material alteration of things forming an essential part of the inheritance, done or suffered by a person rightfully in possession by virtue of a temporarj^ or partial estate, — as, for example, a tenant for life or for years. The rightful possession of the wrong- doer is essential, and constitutes a material distinction between Avaste and trespass.^ I The common law "action of waste," as enlarged by early statutes. gave a remedy only in favor of one having an immediate estate of inheritance, so that a person holding any estate less than a fee.- or one whose estate in fee was preceded by a lesser, intermediate estate," had still no remecV at law.* The remedy by injunction. <-stabIished at an early day. rested partly on these defects in the connvion law,° but chiefly on the reason that waste is, in its nature, nearly always an irreparable injury. So far as the character of the injury is concerned, an injunction will be granted in nearly all cases where a legal action would lie to recover possession of the land wasted, or to recover damages.** To this rule there are three exceptions: Equity will not enjoin ''permissive" waste, such as neglect to make repairs;" nor "ameliorating" waste, i. e., an act which is technicallv waste, but in fact improves the inheri- ' ^tany acts are not waste in this country which would be waste in Enjiland, such as cutting- timber, and modes of using the soil, when done in accordance with the usual methods of good husbandry in the neighborhood: see Winshij) v. Pitts, 3 Paige 259, 1 Keener 473: Ci'o\ve v. Wilson, G5 Md. 479, 57 Am. Rep. 343, 5 Atl. 427. Legal waste, as dehned by American courts, is nearly identical with the "equitable waste" described below. ^Mollineux v. Powell, 3 P. Wms. 268, n. (F), 1 Ames Eq. Jur. 468, 1 Scott 664; Perrot v. Perrot, 3 Atk. 94, 1 Keener, 453. ^Anonymous. ]\Ioore 554 pi. 798, 1 Ames Eq. Jur. 467; Kane v. Vanderburgli, 1 dohns. Ch. 11, 1 Keener 455, 1 Scott 661. *2 Blaekst. Comm. 282, 283: 3 Id. 227. * Skelton v. Skelton, 2 Swanst. 170, 1 Ames Eq. Jur. 473, 1 Keener, 430, 1 Scott 656. "The commonest species of injury enjoined are, cutting timber: Kane v. \'anderburgh, 1 Johns. Ch. 11, 1 Keener 455, 1 Scott 661; Hawley v. Clowes, 2 Johns. Ch. 122, 1 Ames Eq. Jur. 484, 1 Scott 663; changing, destroying or removing buildings: Davenport v. ^Magoon, 13 Oreg. 1, 57 Am. Rep. 1; Maddox V. White, 4 Md. 72, 59 Am. Dec. 67 and notes; Klic v. VonBroock, 56 N. J. Eq. 18, 37 Atl. 469, 1 Scott 668; but see, as to erecting new buildings, Winship v. Pitts, 3 Paige 259. 1 Keener 473: taking minerals, stone, etc.: Whitfield v. Bewit, 2 P. Wms. 240, 1 Ames Eq. Jur. 460, 1 Keener 457, 1 Scott 674: but see as to working old mines, Gaines v. (Jreen Pond 1. 1X1. Co., 33 X. .T. Ep. 603, 1 Keener 494. ' Castlemain v. Craven, 22 Vin. Abr. 523, 1 Ames Eq. Jur. 466, 1 Keener 458. § 134Sb EQUITY JriUSIMUDKXCE. H28 tnnee;** nor trivial acts of Avaste, but will require that substantial damage be shown.'' ] [§ 1348a. Equitable Waste. — The doctrine as to "equitable'' waste is a remarkable instance of the re.straint by a court of equity of the unrighteous exercise of an admitted legal right. The words, "Avithout impeachment of waste," or equivalent words in a lease or other instrument creating an estate less than a fee are interpret- ed at law as giving the tenant an absolute power and dominion over the estate. Courts of equity from an early day, controlled him in the exercise of that power, upon the ground that they would "not permit an unconscientious use to be made of a legal power" ;' finally adopting as the test of the equitable waste wh-ch will not be permitted by a tenant without impeachment of waste, "that which a prudent man would not do in the management of his own property."- The chief instances of such acts are, the destruction or removal of buildings,^ carrying away of the soil,* cutting of trees or shrubs that had been planted for ornament or shelter,"' and stripping the land of timber to an extent forbidden by good husbandry."] [§ 1348b. Relief Granted — Parties. — The injunction is almost al- ways prohibitive, but in a proper ease may be mandatory, for the restoration of the thing destroyed.^ The court having acquired jurisdiction for the purpose of an injunction will give complete relief by an accounting for the waste already doner but such accounting will not be given, in cases of legal waste, if an injunc- !*Doherty v. Allniaii, L. R. 3 App. Cas. 700, 1 Ames Eq. Jur. 4G2, 1 Keener 476, 1 Scott 664; Mollineux v. Powell, 3 P. Wms. 268 n. (F.), 1 Ames Eq. Jur, 468, 1 Scott 664; Meux v. Cobley, [1892] 2 Ch. 253, 1 Scott 66.5. "Molliiiexix V. Powell, supra; Doherty v. AUman, supra; Barry v. Barry, 1 Jnc. & W. 651, 1 Keener 465. ' Micklethwait v. Micklethwait, 1 De G. & -1. 504, 524. -Turner v. Wright, 3 De Gex, F. & J. 234, 243, 1 Ames Eq. Jur. 476, 1 Keener 441. '■'■ W illianis v. Day, 2 Cas. in Cli. 32, 1 Ames Eq. Jur. 476, 1 Scott 646; Vane v. Lord Barnard, 2 Vern. 738, 1 Ames Eq. Jur. 470, 1 Keener 455; Rolt v. Lord Somerville, 2 Eq. Cas. Abr. 759, 1 Ames Eq. Jur. 471, 1 Keener 435, 1 Scott 647. * liisliop of London v. Web, 1 P. Wms. 527, 1 Keener 434. M^ickinoton's Case, 3 Atk. 215, 1 Keener 459, 1 Scott 649: CofTin v. CniTm, •lac. 70, 1 Keener 468; Wombwell v. Belasyse, 6 Ves. (2d ed.) 110, a note. 1 Keener 470, 1 Scott 654. For a case not amounting to waste, see Baker v. Se- bright, L. R. 13 Ch. D. 179, 1 Keener 515. n^ishop of Winchester's Case, 1 Rolle Abr. 380 (.7. 3), 1 Ames Eq. Jur. 469; Dimcombe v. Felt, 81 ]\Tich. 332, 45 N. W. 1004, H. & B. 760, 1 Keener 500. 'Vane v. Lord Barnard, 2 Vern. 738, 1 Ames Eq. Jur. 470. 1 Keener 433; Rolt V. Lord Somerville, 2 Eq. Cas. Abr. 759, 1 Ames 471, 1 Keener 43.5, 1 Scott 647; Klie v. Von Broock, 56 N. J. Eq. 18, 37 Atl. 469, 1 Scott COS. ^^See ante, § 237. S29 IXJL'NCTJOX.-S TO PRKVENT TOUTS. § 13i8lj tion is not demanded or is ret'nsed, since the remedy at l^vV iii th( n deemed to be adequate.'' In cases of equitable waste, hovever, since there is no legal remedy, an accounting may be had w.thom an injunction.^ The proceeds of the accounting go to t!:e re niainderman in fee, though there be an intermediate remUndet- 2nan for life or years,^ following the legal rule that the t>ersou in whom is the fee has title to, and may bring trover t^iv, tht personalty w^hieh results from acts of waste.*' In the frequent ease where there is a tenancy in A for life or years, remainder th B for life, remainder to C in fee, either B^ or C,^ who were wit'u out common law remedy, may enjoin waste by A. A tenant in tail will not be restrained from waste, because he may at any tim^; bar the entail and give himself a fee;" but a tenant in tail after possibility of issue extinct may be enjoined from committing equit- able waste, ^° and the same is true of an owner in fee subject to an executory devise.^ ^ A mortgagee may enjoin waste by the mortgagor in possession which threatens to impair the sufficiency of his securitj";^- and a similar protection is extended to the holders of other forms of security.^" Any acts of waste by a tenant in common that are inconsistent with prudent management of the ^ Lord Castlemain v. Lord Craven, 22 Vin. Abr. 52.3. 1 Ames Eq. Jur. 400. 1 Keener 458; Jesus College v. Bloom, Amb. 54, 3 Atk. 262, 1 Ames Eq. Jur. 481. 1 Keener 404, 1 .Scott 115; Watson v. Huntei', 5 Johns. Ch. 169, !) Ain. Dee. 295, 1 JScott 642. * Lansdo\\nie v. Lansdowne, 1 Madd. 116, 1 Keener 40G, 1 Scott 050; Baker V. Sebriglit, L. R. 1.3 Ch. D. 179, 1 Keener 515. ^ Rolt V. Somerville, 2 Eq. Cas. Abr. 759, 1 Ames Eq. Jur. 471, 1 Keener, 435,. 1 tScott 647; Gent v. Harrison, Johns. 517, 1 Keener 510. "Skelton v. Skelton, 2 Swanst. 170, 1 Ames Eq. Jur. 473, 1 Keener 430. 1 Scott 656; Bewick v. Whitfield, 3 P. Wms. 267, 1 Keener 505. ■Mollineux v. Powell, 3 P. Wms. 268 (n. F.), 1 Ames Eq. Jur. 468, 1 Scott (■(64; Kane v. Vanderburgli, 1 Johns. Ch. 11, 1 Keener 455, 1 Scott 661. So may trustees to preserve contingent remainders, who are tenants per auter vie: Perrot v. Perrot, 3 Atk. 221, 1 Keener 453; Lansdowne v. Lansdowne, 1 ^ladd. 1 1 6, 1 Keener 406, 1 Scott 650. "Anonymous, Moore 5-54, pi. 748, 1 Ames Eq. Jur. 467; Robinson v. Litton. 3 Atk. 209, 1 Keener 436. And an underlessee may be enjoined at the suit of the ground landlord: Farrant v. Lovel, 3 Atk. 723, 1 Keener 455, 1 Scott 600. "Turner v. Wright, 2 De Gex, F. & J. 234, 1 Ames Eq. Jur. 470, 1 Keener 441: Savile's Case, Cas. temp. Talb. 16, 1 Ames Eq. Jur. 472. '"Williams v. Day. 2 Cas. in Ch. 32, 1 Ames Eq. Jur. 47(i. 1 Scott 040. " Turner v. Wright, 2 De Gex, F. & J. 234, 1 Ames Eq. Jur. 476, 1 Keener 441. '- Usborne v. Usborne, Dick. 75, 1 Keener 452; King v. Smith, 2 Hare 230. 243. 1 Ames Eq. Jur. 483, note (what is a sufficient security) ; Brady v. Wal- dron, 2 Johns. Ch. 148, 1 Ames Kq. Jur. 483, 1 Scott 661. "Thus, a vendor who retains litio may enjoin waste by the vendee in ])osses- sion: Crockford v. Alexander, 15 \"es. 138, 1 Ames Eq. Jur. 221, 1 Keener 549. §1350 EQUITY JUKliSFRUDKXCK. 8oO estate or that jeopardize the interests of his co-tenants will be enjoined. ^^ I § 1349. Nuisance — Public. — A court of equity has jurisdiction to restrain existing- or threatened public nuisances by injunction, at the suit of the attorney-general in England, and at the suit of the state, or the people, or municipality, or some proper otticer representing the commonwealth, in thi.s country. A public nuisance must be established by clear evidence, before the preventive remedy will be granted.^ A public nuisance will also be restrained at the suit of a private person who suffers therefrom a special and particular injury distinct from that suffered by him in common with the public at large; but this injury must be real, and such that the legal remedy of damages would not be adequate.- §1350. Private Nuisance — When Restrained. — It is a well-set- tled doctrine that equity will restrain a private nuisance at the suit of the injured party. This remedy will not, however, be granted in every instance of alleged nuisance. The present or threatened injury must be real, not trifling, transient or temporary ;'' it must be one for which, on account of its essentially irreparable nature, or its repetition or continuance, the legal remedy of damages is inadequate.- The title of the plaintiff' must also be clear, or at "Hawley v. Clowes, 2 Johns. Ch. 484; 1 Ames Eq. Jur. 484, 1 Scott CC3. ' See Attorney-General v. Richards, 2 Anstr. 603, 1 Ames Eq. Jur. 615 (obstruc- tion to navigation) ; Coosaw Min. Co. v. South Carolina, 144 U. S. 550, 12 Sup. Ct. 689, 36 L. ed. 537, 1 Scott 729 (encroachment u])on property of the state) ; Attorney-General v. Williams, 174 Mass. 476, 55 N. E. 77, 1 Ames Eq. Jur. 619 (enforcing statute limiting height of buildings on certain streets) : State V. Ohio Oil Co., 150 Ind. 21, 47 L. R. A. 627, 49 N. E. 809, 1 Scott 731 (en- joining waste of natural gas to the detriment of the public wealth) ; Attorney- Oneral v. Hunter, 1 Dev. Eq. (N. C. ) 12, 1 Ames Eq. Jur. 621 (injury to public health) ; Attorney-General v. Fitzsimmons, 35 Am. Law Reg. 100, 1 Ames Eq. Jur. 622, 1 Scott 724 (prize-fight; an interesting case). -Corning v. Lowerre, 6 Johns. Ch. 439, 1 Scott 734 (obstruction of street); Harness v. Bulpitt, (Cal. App.) 81 Pac. 1022, 1 Scott 738 (same); Cranford V. Tyrrell, 128 N. Y. 341, 28 N. E. 514, 1 Keener 788 (bawdy-house) ; Dempsie V. Darling, 39 Wash. 125, 81 Pac. 152, 1 Scott 735 (same). ' The court refused to enjoin temporary or occasional nuisances in Attorney- (Jeneral v. Sheffield, etc., Co., 3 De Gex M. & G. 304, 1 Keener 682; Swaine v. (4reat N. Ry. Co., 4 De Gex, J. & S. 211, 1 Ames Eq. Jur. 569, 1 Scott 743; Cooke V. Forbes, L. R. 5 Eq. 166, 1 Keener 729. - Since the avoidance of repeated actions at law for damages is the ground for exercising the jurisdiction to restrain continuing or recurring uuisanct?^. it follows that the injunction should be granted in such cases though the dam- ages recovered in any one of the actions at law would be small or even nominal. It has been frequently so held in suits to enjoin the pollution, diver- sion or obstruction of streams. Clowes v. Statl'ordsliire. etc., Co., L. R. 8 Cli. 125; Dwight v. Hayes, 150 111. 273, 41 Am. St. Rep. 367, 37 N. E. 218; Mann V. Willey, 51 App. Div. (N. Y.) 109, 64 N. Y. Sup. 589, 1 Ames Eq. Jur. 572, S;U IXJ UNCTIONS TO rUKVK.NT TORTS. § looOcl least not subject to any substantial doubt or question. [According to the modern decisions, a mere denial of the plaintitf's title in the defendant's pleading will not prevent an injunction; but if the plaintiff's title is really disputed, and is in any real doubt, it must first be established by a verdict.^] The equitable jurisdic- tion is therefore based upon the notion of restraining irreparable mischief, or of preventing vexatious litigation, or a multiplicity of suits. I § 1350a. Same — Interlocutory Injunction — Balance of Injury — Laches and Estoppel. — Since the purpose of an interlocutory or temporary injunction is to preserve the property from irremediable injury pending the suit, it may issue at once, in a proper case, though the existence of the nuisance is disputed.^ On application for a temporary injunction it is appropriate and usual for the court to "balance the inconvenience or injury" which will be likely to result to the respective parties from the granting or with- holding of the injunction, and act accordingly; withholding it if the injury to the plaintiff from the continuance of the alleged nuisance during the suit will be slight in comparison with the injury to the affirmed IGS N. Y. 664, 61 N. E. 1131. A mandatory injunction may issue to remove an obstruction, and restore the stream to its original condition: Amsterdam Knitting Co. v. Dean, 162 N. Y. 278, 56 N. E. 757, 1 Ames Eq. Jur. 573. •Also, if the fact of the existence of a nuisance is doubtful, that fact must, be sstablished at law: see Crowder v. Tinkler, 19 Ves. 617, 1 Ames Eq. Jur. 555: :Melson v. Milligan, 151 111. 462, .38 N. E. 239. "But the Tule is one of expediency and policy, rather than an essential con- dition and basis of the equitable jurisdiction," ante, § 252. It is, therefore, well settled, with but little dissent, that if both the plaintifl''s title and the existence of the nuisance are free from doubt, a verdict is unnecessary: Busli V. Western, Free. Cii. 530 (1720), 1 Ames Eq. Jur. 553; Turner v. Mirfield. 34 lieav. 390, 1 Ames Eq. Jur. 558; Soltau v. Do Held, 2 Sim. X. S. 140. 151. 1 Keener 665, 1 tScott 717; Dwight v. Hayes, 150 111. 273, 41 Am. St. Rep. 367, 37 N. E. 218; Gardner v. Trustees of NeAvburgh, 2 Johns. Ch. 162, 7 Am. Dec. 52(i. 1 Keener 654, 1 Scott 740; Weakley v. Page, 102 Tenn. 178, 53 S. W. 551, 46 L. R. A. 552. Contra, Weller v. Smeaton, 1 Brown Ch. 532 (1784), 1 Ames Eq. Jur. 554. In determining whether the facts complained of constitute a nuisance, equity follows the law. "There is no such thing as an equitable nuisance," in the sense of something actionable in equity but not at law. Soltau v. De Held, 2 Sim. N. S. 133. 151, 1 Keener 665, 1 Scott 717; Baines v. Baker, 1 Amb. 158, 1 Scott 720. As to what constitutes an actionable nuisance, see, further, Lambton v. IMellish. [1894] 3 Ch. 163, 1 Scott 744; Rushmer v. Polsue, [1906] 1 Ch. 234. 1 Scoit 746; Gilbert v. Showerman, 23 Alich. 448, 1 Scott 756. A threatened nuisance may be enjoined, but only on a strong case of probability that the apprehended mischief will, in fact, arise: Atty.-Gen. v. ^Manchester, [1893] 2 Ch. 87, 1 Scott 721; Fletcher v. Bealey, L. R. 28 ("li. D. 688, 1 Keener 754. 'Cronin v. r.loemeeke, 58 X. J. Kq. 313, 43 All. 605, 1 Ames Eq. Jar. 560. § 1350a EQUITY JURISPRUDENCE. 8S"2 defendant from an improvident issuing of the temporary injunc- tion ;- and granting it, on the other hand, where that will inflict a loss or inconvenience upon the defendant slight in comparison with the injury threatened to the plaintiff while the suit is still in progress.^ It has sometimes been thought that ihe court is invested Avith the discretion to apply the same process of "bal- ancing the inconvenience" to its final decree, and should refuse a permanent injunction to a plaintiff whose interests at stake are greatly less than the defendant's;* especially in cases where the defendant's business is such that its interruption would cause great inconvenience to the public.^ But this notion has been emphatic- ally repudiated by the majority of the cases. Injunction against a proved, continuous nuisance of a serious character is not a mat- ter of grace or discretion, but of strict right. It proceeds upon the ground that repeated actions at law to recover damages are an inadequate remedy, and upon the further ground that the acts enjoined amount to an expropriation for a private use. or, at best, for a public use not authorized by the legislature.'' That the remedial right to an injunction is not a matter of grace or - Eaden v. Firth, 1 Hen. & M. 573, 1 Ames Eq. Jur. 564 ; Elmhurst v. Spencer, 2 Mac. & G. 45, 1 Keener 661 ; Herbert v. Pennsylvania Co., 43 N. J. Eq. 21, 10 Atl. 872, 1 Keener 860. = Pollock V. Lester. 11 Hare 837, 1 Keener 837. ^Richards's Appeal, 57 Pa. St. 105, 98 Am. Dec. 202, 1 Ames Eq. Jur. 574. In this case the court refused to enjoin the use of bituminous coal, necessary to the siYccessful operation of defendant's extensive iron works, but the smoke from which caused material injury to plaintiff's adjacent dwelling-house and cotton factory. See, also, Mountain Copper Co. v. U. S., 142 Fed. 625. 1 Scott 750. "Daniels v. Keokuk Waterworks, 61 Iowa 549, 16 N. W. 705, 1 Ames E(] Jur. 5S5 (defendant, whose works furnislied the only reliable means of cxtin guishing fires in the city, seriously damaged by smoke the plaintiff's adjacei,^ dAvelling-house). Frequent expressions to be found in favor of this nile in iiv two branches are nearly all mere dicta; see 1 Pom. Eq. Rem. § 530. n. ]l;x " Hennessy v. Carmony, 50 X. J. Eq. 616, 25 Atl. 374, 1 Ames Eq. Jur. 57S,. 1 Keener 806, 1 Scott 752 ; Chestatee Pyrites Co. v. Cavenders, etc., Co.. 1 1%. Ga. 255, 45 S. E. 267, 119 Ga. 354, 46 S. E. 422, 100 Am. St. Rep. 174 ("th* necessities of one man's business cannot be the standard of another man's rights") ; Clowes v. Staffordshire, etc., Co., L. R. 8 Ch. App. 125, 142, 143. Cases where the public would be inconvenienced by the injunction: Attorney- General V. Birmingham. 4 K. & J. 528, 539 ("so far as this court is concerned, it is a matter of ahnost absolute indifference whetlier the decision Avill effect a population of 250,000 or a single individual carrying on a manufactory for his own benefit"): Shelfer v. London El. L. Co. (1895) 1 Ch. 287, 1 Ames Eq. Jur. 589 ("courts of justice are not like parliament, which considers whether proposed works will be so beneficial to the public as to justify excep- tional legislation, and the deprivation of people of their rights with or without compensation") : Stock v. Jefferson, 114 Mich. 357, 72 N. VV. 132, 38 U H. A. 555. 833 INJUNCTIONS TO PUEVEXT TORTS. § 1351 discretion is further illustrated by the rule that the plaintiff's mere delay or laches, unaccompanied by circumstances amounting to an estoppel, constitutes no defense to the action, unless the delay has continued so long- as to defeat the legal right itself.' lie may, however, be estopped by conduct which has encouraged the defendant to make expenditures in reliance upon his inaction or a^'quiescenee.^] I § 1350b. Same — Form of Decree — Complete Relief, etc. — Where, on the final hearing in a case of nuisance . . . the relief is granted compelling the defendant to remove his obstructions or erections, and to restore the plaintiff to his original condition, and thereby to end the wrong, the remedy (usually called a mandatory injunc- tion) is in fact an ordinary decree for abatement" and is as much a matter of course as an ordinary prohibitive injunction.^ If the defendant's business is a lawful one, but conducted in a way to cause injury to the plaintiff, the decree should be so framed, if possible, as to prohibit onh^ that part of the thing complained of Avhich is injurious, saving to the defendant the right to continue his business if it can be conducted in a harmless way.- As in cases of waste, the decree should include damages for the past injury;'^ and if, after the institution of a suit to enjoin a nuisance which is properly the subject of an injunction the defendant ceases to commit or threaten the repetition of the nuisance, the court will nevertheless retain the bill for the purpose of awarding damages, rather than put the plaintiff to the expense and trouble of an action at law.* A landlord may enjoin a nuisance if it is one which will permanently damage the reversion.^ A tenant may also procure an injunction even when his tenancy is very brief or will soon terminate.^] § 1351. Same. Instances — Violations of Easements. — Among the •See ante, § 817; (Jalway v. Met. El. Ry. Co., 128 K Y. 132, 28 N. E. 470, 1.3 L. R. A. 788, 1 Ames Eq. Jur. 600. 1 Keener 822; Campbell v. Seaman, 03 ^. Y. .568, 20 Am. Rep. 567, 1 Keener 748. 'See ante, § 818; for conduct not amounting to estoppel, see Gahvay v. Met. El. Ry. Co., supra. 'Pom. ¥.(\. Jur. § 1359; Rotheiy v. N. Y. Rubber Co., 90 N. Y. 30, 1 Ames Kq. .lur. .567; Corning v. Troy, etc.. Factory. 40 N. Y. 191, 1 Keener 814; Troe V. Larsen, 84 Iowa 649, .51 N. W. 179, 35 Am. St. Rep. 336. As to preliminary mandatory injunctions, see post, § 1359. = Ling\vood v. Stowmarket Co., L. R. 1 Eq. 77, 336, 1 Keener 717. 'See ante, § 237. ♦ Meyer v. Phillips, 97 N. Y. 485, 49 Am. Rep. 538. ^Slielfer v. London El. L. Co. (1895) 1 Ch. 287, 1 Ames Eq. .Jur. 589. So, where no threatened injury to the reversion is proved, he cannot have an injunc- tion: Jones V. Cliappell. L. R. 20 Eq. 839, 1 Keener 744. 'Jones V. Chappell, supra. • ■ - 63 § 1351 EQUITY JURISPRUDENCE, S'S4: nuisances, or wrongs in the nature of nuisances, which equity readily prevents by injunction are those which consist in the in- terference with, disturbance, or destruction, actual or threatened, of easements and servitudes, whether created by grant or by cov- enant, or resulting from user. Some of the most common forms of such injuries which equity enjoins are the obstruction of ancient lights in England, and right of air or of prospect, by erections of any kind ; the removal of the lateral support of land bj^ ex- cavations; the interference with water rights by diverting or pol- luting streams. In fact, every disturbance of an easement or serv- itude, existing or threatened, will be thus restrained, whenever from the essential nature of the injury, or from its continuous character, the legal remedy is inadequate.^ No sufficient notion can be ob- tained of the scope and efficiency of this injunctive jurisdiction, except from an actual examination of the numerous and varying instances in which it has been exercised by the modern decisions. 'The jurisdiction, where equitable servitudes have been impressed upon land by covenants in deeds of conveyance, etc., has already been examined: See ante, § 1295. Interfering with easement of light and air: Att'y-Gcn. v. Nichol. 10 Ves. 338, 1 Ames Eq. Juv. 534, 1 Keener 651 ; Ryder v. Bentham, 1 Ves. Sr. 543, 1 Ames Eq. Jur. 545, 1 Keener 835; Jackson v. Duke of Newcastle, 3 De Gex, .7. & fS. 275, 1 Keener 707 ; \Yilson v. Townend, 1 Drew. & Sm. 324, 1 Ames Eq. Jur. 539; Yates v. Jack, L. E. 1 Ch. App. 295, 1 Ames Eq. Jur. 541: Smith v. Smith, L. R. 20 Eq. 500, 1 Ames Eq. Jur. 543; Martin v. Price, [1894] 1 Ch. 276, 1 Ames Eq. Jur. 537; Von Joel v. Hornsey [1895], 2 Ch. 774, 1 Ames Eq. Jur. 546. Interference n-itli rights of icag: See Thorpe v. Brumfitt, L. R. 8 Ch. App. 650, 1 Ames Eq. Jur. 547, 1 Keener 734; Krehl v. Burrell, 7 Ch. Div. 551, 1 Keener 850; Cadigan v. Brown, 120 INIass. 493, 1 Keener 189; Tucker v. Howard, 128 Mass. 361, 1 Keener 854, 1 Ames Eq. Jur. 548; Starkie v. Richmond, 155 Mass. 188, 29 N. E. 770, 1 Keener 871; Hart v. Leonard, 42 N. J. Eq. 410, 7 Atl. 865, 1 Ames Eq. Jur. 549, 1 Keener 856. liemoval of lateral support of land: Hunt v. Peake, Johns. 705; 6 Jur.„ \. S., 1071. Interfering with tcater rights Ig diverting streams, polluting streams, etc.: The cases on this subject are very numerous. The jurisdiction is exercised alike against private persons and against public bodies, municipalities, boards, commissioners, etc. Pollution: see Strobel v. Kerr Salt Co., 164 N. Y. 303, 79 Am. St. Rep. 643, 58 N. E. 142, 51 L. R. A. 687; Mann v. Wiley, 51 App. Div. 169, 64 N. Y. Supp. 589, 1 Ames Eq. Jur. 572. Diversion or Obstruction: see Gardner v. Trustees, etc., Xewburgh, 2 Johns. Ch. 102, 7 Am. Dec. 520. 1 Scott 740, 1 Keener 654, H. & B. 767; Amsterdam, etc., Co. v. Dean, 102 N. Y. 278, 56 N. E. 757, 1 Ames Eq. Jur. 573; Heilbron v. Fowler, etc., Co.. 75 Cal. 426, 7 Am. St. Rep. 183, 17 Pae. 535. Percolating Waters: see Katz v. Walkin- shaw, 141 Cal. 116, 99 Am. St. Rep. 35. and note, 70 Pac. 663, 74 Pac. 766, 64 L. R. A. 230. Ohstruction in narigohle waters, etc.: See ante, § 1349, and note; Revell V. People, 177 111. 408, 69 Am. St. Rep. 257, 52 N. E. 1052, 53 L. R. A, 790. 835 IXJUXCTIOXS TO PRKVEXT TORTS. § 1352a § 1352. Patent Rights and Copyrights. — When the existence of a patent right or of a copyright is cuiieecled, or has been established b}' an action at law, tlie jurisdiction of equity to restrain an in- fringement is too Avell settled and familiar to require the citation (jf authorities in its support. From the nature of the right and of the wrong, — the violation being a continuous act, — the legal remedy is necessarily inadequate. The ordinary form of relief is an accounting of profits and an injunction in equity; indeed, tlu^ action at law is seldom resorted to, except for the purpose of establishing the validity of the patent or copyright by the verdict of a jury when it is really contested. Under the constitution of the I.^nited States, the cognizance of suits for the infringement of these rights belongs exclusively to the federal courts. [§ 1352a. Patent Rights, continued. — A bill for a permanent in- junction (as distinguished from a motion for a preliminary in- junction) need not show that the plaintiff's right has been estab- lished at law^ or that it has been long acquiesced in by the public.' A court of equity may, and generally will, try the question of the validity of the jDatent Avithout the intervention of a jury,^ because of the intricacy of the question usually involved. The defendant's abandonment of the infringement before suit is no defense unless he pleads and proves that no further infringement is intended.^ Nor is the plaintiff's failure to use the patent and his refusal to al- low others to use it on reasonable terms, sufficient to warrant re- fusal of injunctive relief.-"' "Unreasonable delay and the deceitful acts or silence of a patentee which induce an infringer to incur 'Hicks V. Raineock, 2 Dick 647, 1 Ames Eq. Jur. G2G. "WiTt V. Hicks, 46 Fed. Rep. 71, 1 Ames Eq. Jur. 626. ■'Rovill V. Hitchcock, L. R. 3 Cli. App. 417; \Yyckoff v. Wagner Typewriter Co., 88 Fed. 515, per Lacombe, Cir. J. "When one remembers the careful study of intricate machinery, the manipulation of models, the reading and re- reading of technical evidence, the elaborate comparison of documents couched in language which certainly is not that of common speecli, the close, hard thinking, sometimes prolonged for weeks, which, in the cases of a complicated patent, has to be gone through with, before a judge, however long his experience M'ith such causes, is able to reach a conclusion on the issues of fact, which, even if erroneous, presents at least the appearance of a logical train of reasoning in its support, it seems safe to say, a priori, that the decision of such questions bj' an ordinary jury, imprisoned for a few hours, with naught but their vague recollections of the evidence, would be a lottery." * Cayuta \\heel & F. Co. v. Kennedy V. Mfg. Co., 127 Fed. 355, 1 Ames Eq. Jur. 638. '- Campbell :Mfg. Co. v. Manhattan Ry. Co., 49 Fed. 930, 1 Ames Eq. Jur. G30. A contrary rule would compel the patentee to sell his riglits to an infringer at a valuation fixed by llie court. Rut see Smith v. Sands. 24 Fed. 470 (whem tlie plaintiff has a fixed license fee for 'the use of the invention, his legal rcjjiedy is adequate). § lob-ih EQuriY . 1 Ames Eq. Jur. 627 (public acquiescence). Or the preliminaiy injunction may he based on an interference suit between the same parties in the patent office, decided in plaintifi''s favor: Smith v. Halkyard, 16 Fed. 414. "■ Edison Electric L. Co. v. Beacon, etc., Co., 54 Fed. 678, 1 Ames Eq. Jur. 630: Dull" ]\lfg. Co. V. :N'orton, 92 Feridge, ?> WnW. ."il. Is L. ed. 137. For the protection of a tiirupil.r. — Croton 'lurnpike Co. v. Ryder, 1 Johns. Ch. (ill; Ames Eq. Jur. 664, 1 Scdil 168. For the protection of an e.rclusirc ririlroad franchise. — Boston & Lnwdl R. Corp. V. Salem & LoAvell R. Co.. 2 Cray. 1. ■^ I'or early English cases contra, see Whitecliurcli v. Hide. 2 Atk. oOl ; .\nu-;. Cas. in Eq. .lur. 661; Anonymous. 2 Ves. 414, Ames 663. 1 Scott, 133. ' Tmlependently of statute, a good-will by itself without the hiisines-; on ■\vliicli it depends, cannot be assigned. - Wlien a }K'rson who had carried on a business at a certain locality trans- fers the business with its good-will, if he sliould set up the same business again so near the locality as to draw off tlie customers from the old place, this would be an infringement of the good-wiU. Tlie legal remedy would be inadequate, for it would always be very difficult, if not impossible, to osli male the pecuniary damages upon any cei-tain basis. The gist of the injury is undoid)tedly the breach of an implied contract arising from the transfer; and often Ihere is an express stipulation: See ante, under § 1344, cases con- cerning contracts in restraint of trade. 'The development and growth of the jurisdiction in England is illustrated by tiie following cases: Coulson v. White (1743). :! Atk. 21. 1 Scott 670; Mogg V. Mogg (1786), Dick. 670, 1 Scott 670. 1 Ames K(|. ,Inr. 1S6, 1 Keener 532; § 1357 EQUITY JURISPRUDENCE. 84>^ tion is now firmly established in its principles, although there is no little disagreement among the courts — and especially the Amer- ican courts — in applying these principles. § 1357. General Doctrine — Cases in Which Trespass may be En- joined. — If the trespass to property is a single act, and is temporary in its nature and effects, so that the legal remedy of an action at law for damages is adequate, equity will not interfere.^ The prin- cipJe determining the jurisdiction embraces two classes of cases, and may be correctly formulated as follows: If the ti'espass, al- though a single act, is or would be destructive, if the injury is or would be irreparable, — that is, if the injury done or threatened is of such a nature that, when accomplished, the property cannot be restored to its original condition, or cannot be replaced, by means of compensation in money, — -then the wrong will be prevented or stopped by injunction. 2. If the trespass is continuous in its nature, if repeated acts of wrong are done or threatened, although each of these acts, taken by itself, may not be destructive, and the legal remedy may therefore be adequate for each single act if it stood alone, then also the entire wrong will be prevented or stopped by injunction, on the ground of avoiding a repetition of similar ac- tions. In both cases the ultimate criterion is the inadequacy of the legal remedy. All these cases, English and American, have professed to adopt the inadequacy of legal remedies as the test and limit of the injunctive jurisdiction ; but in applying this crite- rion, the modern decisions, with some exceptions among the Ameri- can authorities, have certainly held the injury to be irreparable and the legal remedy inadequate in many instances and under many circumstances where Chancellor Kent would prol)ably have refused Hamilton v. Worsefokl (1786), 10 Ves. 291, note, 1 Scott 680; Mortimer v. Uottrell (1789), 2 Cox 205, 1 Scott 681; Pillsworth v. Hopton (1801), 6 Ves. ")!, 1 Scott 081, 1 Ames Eq. Jur. 488, 1 Keener 543; Mitchell v. Dors (1801), (i Ves. 147, 1 Scott 682, 1 Ames Eq. Jur. 488, 1 Keener 54.3; Hanson v. Gardiner (1802), 7 Ves. .305, 1 Keener 544; Smith v. Collyer (1803), 8 Ves. 89, 1 Scott 683, 1 Ames Eq. Jur. 489, 1 Keener, 547; Courthope v. Mapplesden (1804), 10 Ves. 290, 1 Scott 684, 1 Ames Eq. Jur. 490. 1 Keener 548; Crockford v. Alexander (1808), 15 Ves. 138, 1 Scott 685. 1 Ames Eq. Jur. 221; Kinder v. Jones (1810), 17 Ves. 110, 1 Ames Eq. Jur. 490, 1 Keener 550; Thomas V. Oakley (1811), 18 Ves. 184, 1 Scott 685, 1 Ames Eq. Jur. 401, 1 Keener, 551; Deere v. Guest (1836), 1 Mylne & C. 51B, 1 Ames Eq. Jur. 492, 1 Keener 564; Haigh v. Jaggar (1845), 2 Coll. 231, 1 Ames Eq. Jur. 494. 1 Keener 569; Davenport v. Davenport (1849), 7 Hare 217, 1 Ames Eq. Jur. 496, 1 Keener 574; Neale v. Cripps (1858), 4 Kay & J. 472, 1 Ames Eq. Jur. 498, 1 Keener 602; Lowndes v. Bettle (1864) 33 L. J. Ch. 451, 10 Jur. X. S. 220, 3 New. R. 409, 1 Scott 647. 1 Ames Eq. Jur. 499. 1 Keener 604; Goodson v. Richardson (1874), L. R. 9 Ch. 221, 1 Ames Eq. Jur. 502, 1 Keener 615. ' See Gates v. Johnstown LumJier (>v 1-2 I^;ass. 49^5, 53 :i^ J5. 736, 1 Ames Eq. Jur 520. 843 INJLNCTIOXS TO PUKVEXT TOUTS. §1357 to interfere. It is certain that many trespasses are now enjoined ■\vhieli, if committed, would fall far short of destroying the property, or of rendering its restoration to its original condition impossible. The injunction is granted, not merely because the injury i.s rssm- iiallij destructive, but because, being continuous or repeated, the full compensation for the entire wrong cannot be obtained in one ac- tion at law for damages.- While the same formula is employed ^ Tlie legal remedy is not atlequate sini])ly because a recovery of pecuniary damages is possible. It is only adequate when the injured party can, hy one action at lair, recover damages which constitute a complete and certain relict" for the whole wrong, — a relief virtually as efficient as that given by a court of equity. This conclusion is sustained by the consensus of modern decisions of tlie highest authority; although it cannot be claimed that the cases are unani- mous in its acceptance. Tlie principle, so far as it applies to the first class of tres])asses — those esseiitiaUy destructive — was stated by Chancellor Kent in two leading cases, whicli may be regarded as the counterparts of each otlicr: Livingston v. Livingston, 6 Johns. Ch. 497, 499; 10 Am. Dee. 353, 1 Scott 6S9, 1 Keener .500; and .Jerome v. Ross, 7 Johns. Ch. 315, 333; 11 Am. Dec. 484, 1 Scott 692. In Livingston v. Livingston, he granted an injunction. In Jerome v. Ross, supra, he refused to enjoin canal commissioners, acting under color of a state statute, from quarrying a ledge of rocks on complainant's land, it )i()t appearing that the stone had any market value, or that its removal would injure the freehold. He cited Stevens v. Beekman, 1 .John. Ch. 318, 1 Scott 088, 1 Keener 553. Whatever may be thought of the actual decision in .Jerome v. Ross, it cannot be denied that the tendency of Chancellor Kent's opinion in narrowing the jurisdiction to the comparatively few trespasses of an extra- ordinary and specially aggravated nature is opposed to the modem decisions of the highest ability and authority. For definitions of "irreparable" injury, substantially in accord with the text, see Wilson v. :\Iineral Point, 39 Wis. 160, H. & B. 760, Sliep. 318; (laus.; V. Perkins, 3 Jones Eq. (56 N. C.) 177, 69 Am. Dec. 728, 730. An injury wliich destroys the substance of the estate is iisually treated as per se "irrep- arable," without regard to the amount of damage; Richards v. Dower, 04 Cal. 02, 2S Pac. 113, 1 Ames Eq. Jur. 517 (running a tunnel under the land) ; ^^■alker v. Emerson, 89 Cal. 456, 26 Pac. 068, 1 Keener 644 (digging a ditch on the land) ; for cases holding contra, with Jerome v. Ross, see 1 Pom. Eq. Rem. § 495, note 9. Thus, extracting ores from a mine is an irreparable injury; Krhardt v. Boaro. 113 U. S. 537, 5 Sup. Ct. 565, 28 L. ed. 1-116, 1 Ames Eq. Jur. 507. 1 Scott 704, 1 Keener, 634; or the cutting of timber: Lowndes v. Bettle, 3 -New R. 409, 33 L. .}. Ch. 451, 10 Jur. N. S. 226, 1 Ames Eq. Jur. 499, 1 Scott 697, 1 Keener 604: Stanford v. Hurlestone. L. R. 9 Ch. App. 116, 1 Keener 013: King V. Stuart, 84 Fed. 540, 1 Scott 712; Griffith v. Tlilliard. 64 Vt. 643, 25 Atl. 427, 1 Keener 636, H. & B. 762, Shcp. 316; Musch v. Burkhart, 83 Iowa 301, 32 Am. St. Rep. 303, 48 X. W. 1025, 12 L. R. A. 484; contra, in a few states, Gause v. Perkins, 3 Jones Eq. (56 N. C.) 177, 69 Am. Dec. 728; 'l Pom. Eq. Rem. 8 495, note 12. Further examples: Eehelkamp v. Schrader, 45 Mo. 505. 1 Ames Eq. Jur. 511 (removal of building) ; Strawberry Valley Cattle Co. v. Chipman, 13 Utah 4.54, 45 Pac. 348, 1 Scott 712 (grazing sheep on plaintifi's land) : Beatiy v. Kurtz, 2 Pet. 566. 7 L. ed. 521 (interference wilh graves). Examples of continuing or repeated trespasses, without "irreparal>le" injury, enjoined: Goodson v. Ricluirdson, L. R. 9 Ch. 221, 1 Ames Eq. Jur. 502, § i:3oT EQUITY JLTUbPUUDEXCK. 8 M by the courts of equity in defining- their .jurisdiction, the jurisdic- tion itself has practically been enlarged; judges have been brought to see and to axiknowledge — contrary to the opinion held by Chan- cellor Kent — that the common-law theory of not interfering with }>crsons until they shall have actually committed a wrong is funda- mentally erroneous, and that a remedy Avhich prevents a threatened 1 Keener 615 (laying pipes through the land) ; ilusselman v. ^larquis, 1 Bush (Ky.) 463, 89 Am. Dec. 637, 1 Keener 193 (repeatedly throwing dowTi and removing fences) ; Warren Mills v. New Orleans 8eed Co., 65 Miss. 391, 7 Am. St. Rep. 671, 4 South. 298 (repeated trespasses to personal property). The insolvency of the defendant, and his consequent inability to respond in damages, is often a material part of the reason for granting an injunction: Hodgson \. Duce, 2 Jur. N. S. 1014, 1 Ames Eq. Jur. 523, and note, 1 Pom. Eq. Rem. § 497. As to injunction in eminent domain cases, see ante, § 1345, note. Mandatory injunctions, onlering the removal of buihlings or obstructions wiUully placed upon the plaintiff's land, are freely granted; London, etc., Ry. Co. V. Lancashire, etc., Ry. Co., L. R. 4 Eq. 174, 1 Ames Eq. Jur. 525; Wheel- ock V. Noonan. 108 X. Y. 179, 2 Am. St. Rep. 405, 15 N. E. 67. 1 Ames Y.(\. .Inr. 527, 1 Scott 94, 1 Keener 194, H. & ?>. 764 (injiuiction not refused on the ground that the plaintiff might himself remove the obstruction) ; Baron V. Korn, 127 N. Y. 224, 27 N. E. 804, 1 Keener 640; but in a few instances such injunction has been refused "where, by an innocent mistake, erections have been placed a little upon the plaintiff's land, and the damage caused to the defendant by a removal of them would be greatly disproportionate to the injury of which the plaintiff' complains"; Lynch v. I^nion Instit.. 159 ]\lass. 30fi. 34 N. E. 364, 20 L. R. A. 842, 1 Keener 647; Hunter v. Carroll, 64 X. H. 572. 15 Atl. 17. 1 Ames Eq. .lur. 529; see 1 Pom. Eq. Rem. S§ 507, 508. Title in dispute. — If tlie plaintiff's title is contested by the defendant, it is evident that a iKrmancnt injunction should not be granted until the title i^ established in the plaintiff's favor: Echelkamp v. Schrader, 45 Mo. 505. 1 Ames Eq. -lur. 511. The court of equity may at its discretion (by the weight of authority) determine the title itself; but the more usual course, from reasons of policy rather than of jurisdiction, is to send the question of title to be tried at law: see ante, § 252; 1 Pom. Eq. Rem. § 506; Griffith v. Hil- liard. 64 Vt. 643. 25 Atl. 427. H. & B. 762, Shep. 316, 1 Keener 636. Pending tlie determination of the title, a temporary injunction may be granted tn the phiintitt' if the injury is "irreparable" in its nature; Erhardt v. Boaro, supra: Shubrick v. Guerard,'2 Desaus. (S. C.) 616, 1 Scott 687; Duvall v. Waters, 1 r.hind Ch. (Md.) 569, 18 Am. Dec. 350. 361: Snyder v. Hopkins, 31 Kan. 557. 3 Pac. 367. 1 Ames Eq. Jur. 509; but not, it would seem, where the sole groiiiKl on which the equitable jurisdiction is invoked is that the tresspass is continuing or repeated: Xew York, etc.. Establishment v. Fitch. 1 Paige. 97, 1 Keener 502. The granting or wifhholding of a temporary injunction is affected by nuich the same considerations as to "balance of injury," laches, etc.. as in cases of nuisance: see ante, § 1350a. By some decisions a stronger case of injury is required to warrant a temporary injunction where the defendant, claiming title, is in possession: LoA\mdes v. Bettle. supra; see 1 Pom. Eq. Rem. § 503, and note 57. A defendant in possession will never, while the title IS undetei-mined, be enjoined from the mere ordinary and natural use of the premises in a manner not destructive of the substance; Snyder v. Hopkins, 31 Kan. 557. 3 Pac. 367. 1 Ames Eq. Jur. 509. Qi5 INJUNCTIONS TO PHKVKXT TOUTS. ^ 1358 Avroiij^ is in its essential nature better than a remedy which per- mits the wrong' to be done, and then attempts to pay for it by the pecuniary damages which a jury may assess. The ideal remedy in any perfect system of achiiinistering justice would be that wliich absolutely precludes the commission of a Avrong, not that whicii awards punishment or satisfaction for a wrong after it is commit- ted. . . . § 1358. Slander of Title— Libels— Wrongful Use of Name.— Part- ly by analogy with the restraint of trespasses, and partly by analogy with the restraint of that fraud upon the public and upon the proprietor which is involved in the use of counterfeited trade-mai-ks, the English courts have, by recent decisions, exercised the injunc- tive jurisdiction, to restrain injurious publications concerning prop- erty which operate as a slander of the owner's title, and libelous publications which are injurious to the plaintiffs business, trade, oi' profession, and the wrongful use of a name by which the public would be misled, and the plaintiff injured in his business.^ . . . The American courts seem, thus far, unwilling to follow the example of the recent English decisions, and they decline to extend the jurisdiction so as to restrain such torts as libels on business, slanders of title, and the like.' ' Tliis oxtension of the jurisdiction resulted from a general provision of the Judicature act that "an injunction may be granted . . . by an interlocutory order of the court in all cases in \vliich it shall appear to the court to be just or convenient that such order should be made" : 36 & 37 Vict. Ch. 66, sec. 25, subs. 8. Such publications may be restrained by preliminary as well as by final injunction. The jurisdiction is exercised with great caution, and only where the facts are clearly established, and the untruth of the publication is satisfactorily showTi. The following are the most important eases: Quartz Hill, etc., Co. V. Beall, L. R. 20 Ch. Div. 501, 507; Lewis 386; Loog v. Bean, L. R. 26 Ch. D. 306, Lewis 388; Collard v. Marshall (1892), 1 Ch. 571. Lewis 302. English decisions prior to the Judicature act had denied the jurisdiction to restrain a publication on the ground that it was libellous: Prudential Assur. Co. V. Knott (1874). 10 Ch. 142, 1 Keener 53, Lewis 314. - Biandreth v. Lance, 8 Paige 24, 34 Am. Dec. 368, 1 Keener 47. 1 Scott 228, Lewis 303; Boston Diatite Co. v. Florence Mfg. Co., 114 Mass. 69, 19 Am. Rep. 310, 1 Keener 51, Shep. 303, Lewis 320; Life Assoc, of America v. Booglier.. 3 .Mo. App. 173, Lewis 323. But while a publication will not be restrained merely because it is libellous, yet where there is other legitimate ground for injunction, the fact that the ])Tib]ication is libellous will not prevent the injunc- tion from being issued. A crime and a libel, in this respect, stand upon llie same tooting. See Emack v. Kane. 34 Fed. 46. Lewis 326 (defendant enjoine, Lewis 27(5. As to interference with the employees of a receiver, see ante, S 1336. note: United States v. Kane. 23 Fed. 748, Lewis 212. It is generally held that no injunction will lie to restrain persons inducing others by entreaty and persuasion, without intimidation, to leave the service of the plaintiff or not enter into his service: Reynolds v. Everett. 144 X. Y. 189, 39 X. E. 72. 26 L. R. A. 591, Lewis 270. The jurisdiction in strike cases does not extend te preventing workman from "striking" or leaving their employment in a body by concerted action ; since the effect of such a decree would be to enforce com- pulsory service: Arthur v. Oakes, 63 Fed. 310, Lewis 253. 647 MAXDATOUY IXJUXCTIOXS. § 1359 With easements, or continued trespass analogous to nuisance, the i-elief i;; ^.-nted compelling' the defendant to remove his obstruc- tions or ei^ctions, and to restore the plaintiff to his original condi- tion, and tl-£:»?eby to end the wrong, the_rem.edy is in faot-an -ordi- nary deer 5: for an abatement, and is in no proper sense an injunc- tion of £:i.; kind. But in these and similar eases 4he-^ii:^/t;>ii/mr^ injunetioii; while purporting simply to restrain the wrong, and^while negati'/el-a its terms, may be so framed that it restrains the defend- ant f?OTo permitting his previous wrongful act to operate, and there- fore vi"''taally compels him to undo it by removing the obstructions or erections, and b}- restoring the plaintiff to his former condition. Sucr 0n injunction is termed mandatory, and resembles in its effect the restorative interdict of the Roman law. It Js_useil_where the_mjury is immediate, and pressing, and irreparable, and clearly established hy the proofs, and not acquiesced in by the plaintiff', since an order directly compelling an abatement of the nuisance, or a removal of the obstructions, cannot be made upon interlocutory T.otion.^ The rule is fully established, at least by the English do- '•The boycott is economic pressure brought to bear on those who deal, or are about to deal, in a business way witli a third person to prevent them from dealing with such third person . . . — The method of persuasion used is always the threat of business harm, usually couched in the formula : If you deal with A, we won't deal with you" : W. D. Lewis, in 53 Am. Law Reg. 466. A boycott of a trader by laborers has nearly always been lield illegal and a proper subject for injunction: Casey v. Cincinnati Typographical Union, 45 Fed. 135, 12 L. R. A. 193, Lewis 241; Gray v. Building Trades Council, 91 Minn. 171, 103 Am. tSt. Rep. 477, 97 X. \V. G63, 03 L. R. A. 753, Lewis 294 (but a mere notification that the trader is "unfair," without threat or intimidation, should not be enjoined). Whether a boycott directed against members of a rival labor union, to prevent members of the latter from obtaining or retaining employment jnay be enjoined at the suit of the latter, is a question on which the cases are sharply in conflict: compare Erdman v. Mitchell, 207 Pa. St. 79, 99 Am. St. Rep. 783, 56 Atl. 327, Lewis 290 (injunc- tion granted) with National Protective Assn. v. Gumming, 170 X. Y. 315, SS Am. St. Rep. 648, 63 X. E. 369, 58 L. R. A. 135. An agreement or conspiracy among employers to refuse employment to certain laborers, generally carried into effect by a "blacklist" of the excluded laborers, circulated among the parties to the agreement, is in some respects the converse of the labor strike, and seems to be treated with leniency or approval by the courts: Worthington v. Waring, 157 Mass. 421, 34 Am. St. Rep. 294, 32 X. E. 744, 20 L. R. A. 342, Lewis 250 (no injunction). "The primaiy rights which are violated by strikes and boycotts, and tlie remedial rights whicl: thereby arise, are far from a condition of complete development or accurate definition. The law of this whole subject is to a large extent unsettled, and involved in dispute and difierence of opinion among judges and text-writers": Atkins v. W. & A. Fletcher Co., 65 X. .T. Vq. 658. 55 Atl. 1074, Lewis 281, by Stevenson. V. C. (an instructive opinion). ' Preliminary mandatory injunctions liave undoubtedly been granted more freely by the English courts than by the American. Indeed, it has been § 1359 EQUITY JURISPKUDKXCE. 848 eisions, and is not controverted by American authority, that in such cases, where the facts are clearly established and the injury_i5.i'6al, and the plaintiff acteH promptly upon his acquiring knowledge of the defendant's proceeding, a preirminary mandatory injunction may be granted, although the act complained of was fully com- pleted before the suit was commenced. It should be observed, how- ever, that no other equitable remedy is more liable to be defeated by acquiescence, or by delay on the plaintiff's part from which acquiescence may be inferred. The cases require of the plaintiff* a promptness in objecting and in taking steps to enforce his ob- jection, upon receiving notice of the defendant's structures or erec- tions which are sought to be restrained, if the circumstances are such that the defendant would be unnecessarily prejudiced by the plaintiff' 's delay .^ SECTION IV. TO RESTRAIN ACTIONS OR JUDGMENTS AT LAW. ANALYSIS. § 1360. Orijifiii of the jurisdiction. § 1301. When the jviri.sdiction is not exercised: General doctrine. § 1302. \Mien the jurisdiction may be exerci-sed: First class; ex- clusive equitable interests or rights involved. said in some American decisions that a mandatory interlocutory injunction would never be granted. This doctrine is not only opposed to the over- whelming weight of authority, but is contrary to the principle which regulates the administration of preventive relief, and is manifestly absurd. In Robinson v. Lord Byrem, 1 Brown Ch. 588, 1 Ames Eq. Jur. 500, 1 Keener 836, Lord Eldon granted a preliminary injunction restraining defen— «lant "from using and maintaining certain dams, gates, etc., so as to prevent water from flowing to plaintiff's mill as it liad done." This was done for the express purpose of compelling defendant to remove the dams, gates, etc., which lie had constructed. In Lane v. Newdigate, 10 Ves. 192, 1 Ames Eq. Jur. 74, 2 Scolt 73, 2 Keener 139, Lord Eldon granted a preliminary injunction restrain- ing defendant "from impeding plaintiff from navigating [a certain canal] by continuing to keep the canal banks and w^orks out of repair, by diverting the water, or by continuing the removal of the stop-gate." Lord Eldon said this would have the effect of causing defendant to restore the stop-gate and repair the banks; and he avowedly granted the injimction for that express object. These two cases are among the earliest, if not the very earliest, instances of preliminary injunctions intentionally and expressly mandatory in their opera- tion. The following cases Avill furnish illustrations, and will also show the limitations placed upon their use; Rogers Locomotive, etc., Works v. Erie Ry. Co. 20 N. J. Eq. 379, H. & B. 734; Longwood Val. R. Co. v. Baker, 27 N. J. Eq. 160, 1 Keener 847; Herbert v. Pennsylvania R. Co.. 43 N. J. Eq. 23. 10 Atl. 872. 1 Keener 800; Baily v. Schnitzius. 45 N. .L Eq. 178, 16 Atl. 020, 1 Keener 803. See also ante, §§ 1348b, 13501), 1357, note. - See ante. § 817. 849 KXJOlXIXCi LKCiAL ACTIONS Oil .HDUMKXTS. § 13l)l S 1303. The same: Second class; lej^al remedies inadequate. § 13()4. The same: Thii-d class; fraud, mistake, or accident in the trial at la\\'. § 1305. Jurisdiction to grant new trials at law in the United Stales. Equitable relief against executions. § 1360. Origin of the Jurisdiction. — The use of injunctions to stay actions at law was almost coeval with the establishment of the chanceiy jurisdiction. Without this means of interference to protect the rights of its suitors, the court of chancery could never have established, extended, and enforced its own jurisdiction.^ It is no exaggeration to say that, during its formative periods, the equitable jurisdiction was built up through the instrumentality of the injunction restraining the prosecution of legal actions, where the defendants sought the aid of chancery, which alone could take cognizance of the equities that would defeat a recovery at law against them. This was not accomplished, however, without a long and severe opposition from the common-law judges, whicli continued until the reign of James I.^ The jurisdiction then firmly established by judicial authority has never since been questioned.''' The reasons urged by the connnon-la'vv judges were frivolous. The injunction is not addressed to, nor does it operate upon, the courts of law; instead of denying or interfering Avith, it virtuall}^ admits and assumes, their jurisdiction. It is addressed to the litigant par- ties, and prohibits them from resorting to the legal jurisdiction, Ix'cause their c-ontroversies, depending upon equitable principles, or involving ecpiitable features, can only be fully and finally deter- mined by a tribunal having the equitable jurisdiction. Injunction is the remedy which, above all others, neceysarilj^ operates in i)er- st/uam. § 1361. When the Jurisdiction is not Exercised — General Doc- trine. — Where a court of laAv can do as full justice to the parties and to the matter in dispute as can be done in equity, a court of e(;uity will not stay proceedings at law,^ Equity will not restrain a legal action or judgment where the controversy would br de- cided by the court of equity upon a ground equally available at law, unless the party invoking the aid of equity can show some special equitable feature or ground of relief; and in the case a,s- ' See Spenc(!'s Eq. .Tur. G74. - For a full account of this memorable contest, and its settlement under .lames 1., see 1 Lord Cami)l)eII's Lives of the Chancellors, 23.5; 1 Spencc"s Eq. .Inr. (IT.",: 1 Hallam's Const. Hist. 472. '.Aylofle V. Duke. 2 Freem. Ch. 152 (A. D. 1G55) ; Hawkshaw V. Parkins. 2 Swanst. 530. 54S ; Franklyn v. Thomas, 3 :Mer. 225. 234. 'Southampton Dock Co. v. Southampton, etc.. Board, L. R. 11 Eq. 254. 54 § 1361 EQUITY JLTJ3PEUDEHCS» QBQ S»^2med, this special feature or grouiicl must necessarily be something ifjnnected with the mode of trying and deciding the legal action, «nd not with the cause of actioE. or the defense themselves.^ It is not such a special equitable ground of interference that the party has, by his own act or g mission, failed to effectually avail himself of a valid defense at 'avsTj nor that the court of law has decided a question of law oi of fact erroneonsly." The principle is well estalilished, and is u:o.iversal in its application, that when a cause belongs to the juri^clietion of the law courts, eojuity will never interfere to restrain tlie prosecution oi the action, nor to stay proceedings on the judgment or execution, upon any mere legal grounds, although it may be dsmonstrated tliE^t the complainant in equity (generally the def iiidant at law) had a valid legal defense, - Because it is assumed that the ground of decision is equally available at law and in equity, an:, therefore tlie special equitable feature must be (Something dehors the very ::ssi!ie3 and merits of tlae controversy: See Harri- son V. Nettleship 2 Mylne & K. 423. ^Simpson v. Lord Hoivcis;-!, 3 Mylne & C= Q7, 108, 2 Ames Eq. Jur. 124, '' Keener 323; Bateman v, WiHoe, 1 Sehoales & L. 201, 204, 206. In the lastv named case Lord Redesci.als stated ILis rale ia language vi^hicli has ever since been regarded as a corieeo exposition of the principle: "It is not sufficient to show that injustice hao bees done, but that it has been done under circumstances which authorize the rouTt to interfere. Because if a matter has already been investigated in a eov ■ i of justice, according to the common and ordinary rules of investigation, a court of equity cannot take on itself to enter into it again. Rules are establish'::!, some by the legislature, some by the courts themselves, for the purpose of ^iiitting an end to litigation, and it is more important tiiat an end should be put to litigation than that justice sliould be done in every rjase Th*^ iiiattention of parties in a court of law can scarcely be made ,. subject for t.i3 interference cf a eciirt of equity. There may be cases cognizable at Itw and also in equity, and of which cognizance cannot be effectually tak' _i at law; av.d therefore equity does sometimes interfere, as in cases of cMnpllcatecl aeeoiints, wfieire the party has not made a defense; because it w'.rj impossible fo'r liirn to do it eflfectually at law. So where a verdict has '.csa obtained by iraiicl, OT wfteie a party has possessed himself improperly is something'. Toy means of whieli he has an tmconscientious advantage i:t law, virhieh eqialty will pwi OBt of the way or restrain him from using. Bi't. withouit eircimistanees of that kind, I do not know that equity ever does interfere to graiat a trial of a matter wliieli has already been dis» cussed iO a eojirt of law, — a matter capable of being discussed tliere. and over whici a eoiirt oi law Iiad IbII Jiiifisdietion." It should be carefully observed that thf chaneelloT is Bot speakiBg of those eases which involve, in k. ''* very cause oi" aetloH or defense, features of interests cognizable only by courts of equity J no" o:? ths otfeir class of eases which, in ordinary phraseology, belong to the concurrent jurisdiction both of law and equiity; he refers to cases Avhich in themselves present no equitable aspect, and properly ccrne within the jurisdic- tion of the law, but which, for some reason or another, ka'se "been wrongly tried and (Ipeided hy the eonrt of law. There must have been some special equitable '^i-ound conn'""^"'' with this wrongful trial and decisions ia oirdsi,' iliat GGvity, ■nay interfere and restrain the judgment. 851 ENJOINING LEC4AL ACTION^ OEt J LDGMEXT&, ' § aS O.o \ wliicli was not made available either through the error of the 30ur^ in determining- the law or the facts, or the omissions of himselr or his counsel in presenting it, or in obtaining the evidence by which it could have been supported.** ^; 1362. When the Jurisdiction may be Exercised— First Class--« Equitable Rights. — I i)ass from this negative vievv^ to consider- ttie doctrine on its affirmative side. The cases in Avhich, according jc 'Hendrickson v. Hinckley, 17 How, 443, 445, 15 L. ed. 123, Shep. 292; Yar» borough V. Thompson, 3 ISmedes & M. 291, 41 Am. Dec, 62G» In HendrieksOTj V. Hinckley, Mr, Justice Curtis stated the principle in a very concise mannev^ '"A court of equity does not interfere with judgments at law, unless the com- plainant has an equitable defense of which he could not avail himself at laA\ because it did not amount to a legal defense, or had a good defense at law which he was prevented from availing himself of by fraud or acci=« dent unmixed with negligence of himself or his agents." It is immaterial whether the question or matter relied upon by the com-* pjainant in equity was considered by the law court or not. Omission to present or to make out a defense at 'av; is not a ground for equitable reliefs J^merson v. Udall, 13 Vt. 477, 3/ Am. Dec. 604. i'hat the legal defense was not successful, through the ignorance, negli-* genee, or mistake of the party's own attorney or counsel, is no ground for interference: Payton v. McC^uown, 97 Ky. 757, 53 Am. St. Rep. 437, and note, 31 S, W. 874, 31 L. R. A. 33. ignorance of the facts constituting the defense does not excuse the omis- sion of the party to make it, nor entitled him to the aid of equity, unless it can be shown that the party could not have acquired the information by the alligent and careful labor in preparing the cause for trial which he is bound to use: Mayor of New York v. Brady, 115 N. Y. 616, 22 N. E. 237. By Act of Congress (Mar. 2, 1793) federal courts are prohibited from en- joining proceedings in state courts, except in matters relating to bankruptcy proceedings: 1 U. S. Gomp. Stats., 1901, § 720; U. S. v. Parkhurst. etc., Co., 176 U. S. 317, 20 Sup. Ct. 423, 44 L. ed. 485; see Riverdale Cotton Mills JP, Alabama, etc., Co., 198 U. fS. 188, 25 Sup. Ct. 029 (injunction permitted IBrheu necessary to render efl'ective the federal court's own decree ) . As a general rule, a court of equity will not enjoin proceedings in another court of equity of co-ordinate jurisdiction; Furnald v. Glenn, 64 Fed. 49, 12 ti. C. A. 27, 26 U. S. App. 202. In general, a court of equity has no jurisdiction to enjoin criminal jiroceed- ings: In re Sawyer, 124 U. S. 200, 8 Sup. Ct. 482, 31 L. dd. 402, Shep. 5; Davis V. American Society, 75 N. Y. 362, 2 Ames Eq. Jur. 104, 1 Keener lOS; Crighton v. Dahnier, 70 ]\liss. 002, 13 South. 237, 21 L. R. A. 84, Shep. 15; Sauii V. -BroA\'ne. L. ft. 10 Ch. App. 64, 2 Ames Eq. Jur. 100. For exceptions in case ot prosecutions under a void municipal ordinance, see ante, §§ 254, 1345, note. Since a court ot equity acts in personam, it has the power to restrain ]mrties Ot whom it has jurisdiction from prosecuting suits in other states or foreign countru's, and will exercise the power -when necessary to prevent one citizen from obtaining an inequitalile advantage over another citizen: Lord Portar- lington V. Soulby, 3 Mylne & K. 104, 1 Ames Eq. .fur. 24, 1 Keener 15: Ivemp- SWii V. Kempson. 58 N. J, Eq, J-i. 4se requisites are absolutely indispensable; the rule is inflexible, and it is enforced with special strictness when the ground relied upon for relief is newly discovered evidence, which the party had failed to obtain, through ignorance amounting to accident or through fraud: Warner v. Conant, 24 Vt. 351; 58 Am. Dee. 178. § 1365 EQUITY jriUSPKUDENCE. 856 take of the other party, or from error or nilscouduct of the judge or the jury, there has been a failure of justice. In other words, the powers of the law courts to set aside verdicts or judgments are so ample as to meet all the requirements of equity and justice, and tlie special equitable jurisdiction with respect to this matter has l)ecome obsolete in the very large majority of the states, if not in all of them.^ The result is, in my opinion, that practicall}- the only jurisdiction now exercised by courts of equity to enjoin judgments at law. where no equitable right or interest is involved in the con- troversy, on account of wrongful acts or omissions connected with the trial, is a part of and incidental to the broad jurisdiction which ecpiity possesses to set aside and cancel judgments, deeds, contracts, and the like which have been obtained through fraud, undue in- fluence, or mistake. A court of ecjuity, in general, no longer assumes control over a legal judgment for the purpose of a new trial or any similar relief; it will, in a proper ca.se of fraud or mistake, set aside such judgment: and wherever it will grant this final remedy, it will, as a preliminary and incidental relief, restrain by injunction all proceedings upon the judgment. - ^ As an illustration, the California Code of Civil Procedure, sec. 657. au- tliorizes a new trial to be granted for the following causes: 1. Irregularity in the proceedings of tlie court, jury, or adverse party, or misconduct of the court; 2. ]\Iiseonduct of the jury: 3. Accident or surprise; 4. Newly discovered evidence; 5. Excessive damages; G. Insufficiency of the evidence; 7. Error of law. -The modern cases, Avhere such judgments at law have been enjoined, will be found, on examination, to have arisen under the more general power, which equity clearly possesses, of setting aside the most solenm proceedings when tainted by fraud. The equitable jurisdiction to entertain bills for a new trial, if it exist at all, nnist be confined to a very few states. I'fpiitable relief against executions. — When there is reason for relief against the judgment there is, of course, ground for relief against the execution based upon the judgment. In many cases, however, a judgment may be per- fectly valid and yet there may be some vice in tlie execution it-elf or in the lev}- which will warrant the interference of equity. A sale of real property exempt from exec\ition. or belonging not to the judgment debtor but to a third person, or a sale under an invalid execution, may pass" no title to the purchaser, yet it casts a cloud upon the title which renders the land unsaleable, and may, therefore, generally be enjoined or set aside: see post, §§ 1398, 1399; Bishop v. Moorman, 98 Ind. 1, 49 Am. Rep. 731. 2 Ames Eq. Jur. 15G. On the other hand, an injunction does net ordinarily lie to prevent the seizure or sale of personal property, since the actions of trespass, trover or replevin furnish ample relief: Parsons v. Hart- man. 25 Greg. 517, 42 Am. St. Pvep. 803. 37 Pac. Gl, 30 L. R. A. 98. If, however, these remedies are inadequate, as wliere the seizure would result in the ruin of the owner's business, injunction is proper: Watson v. Sutherland, 5 Wall. 74. 18 L. ed. 580, 1 Ames Eq. Jur. 531, 1 Scott 134. H. & B. 741, Shep. 22. An execution sale will not be enjoined or set aside for mere irregularities: Gardner v. Mobile, etc.. R. Co., 102 Ala. G35, 48 Am. St. Rep. 84, 15 South. 271. 85T EEFORMATION AND CAJsCELLAXlON. § 137§ THIRD GROUP. REMEDIES WHICH INDIRECTLY ESTABLISH OR PROTECT INTERESTS AND PRIMARY RIGHTS, EITHER LEGAL OR EQUITABLE. CHAPTER FIRST. REFORMATION AND CANCELLATION. ANALYSIS. § 1375. General nature and object. § 137(5. Reformation and re-execution of instruments. § 1377. Cancellation, surrender up, or discharge of instruments. § 1375. General Nature and Object. — The ultimate object of the remedies belonging- to this group is the establishment or protection of interests, estates, and primary rights; but this object is accom- plished indirectly. While these remedies are not so completely ancillary as interpleader and receivership, yet they are to a certain extent auxiliary. They do not, like a specific performance, or the execution of a trust, or an assignment of dower, or partition of land, operate directly and immediately to establish the plaintiff's title, and to confer upon him the complete dominion over his es- tate, — the ultimate relief which he seeks. Their effect in establishing his ultimate dominion is indirect. They are often used as the pre- paratory step which enables him to obtain, sometimes in the same action, and sometimes in a subsequent suit, the ultimate remedy which finally establishes his rights or obligations, or restores him to the full enjoyment of his estate. The reformation of a policy nf insurance is not a final remedy; but it establishes the real contract, and thus enables the assured to recover the amount actually due according to the terms of that contract. The reformation of a deed does not directly restore the grantee to the dominion and possession of the land which had been omitted; but it places him in a position which enables him, if necessary, to assert his dominion and recover the possession. The cancellation of a deed does not of itself directly establish the plaintiff''s title and put him in pos- session of the land, but it enables liim, it necessary, xo assert his title § ?.376 EQUITY JL'RISPRUDEJSrCE. 858 and obtain the possession. These remedies may be obtained on behalf of eitiier a legal or an equitable interest, by either a legal or an equitable owner. The remedies constituting this group are the two following; reformation or re-exeeution of instruments, and rescission, cancellation, surrender up, or discharge of instru- ments.^ Since they are chiefly occasioned by fraud or mistake, the general doctrines and rules determining the jurisdiction to grant them, and regulating their use, have already been fully examined in the preceding volume. - § 1376. Reformation and Re-execution of Instruments. — This sub- ject has already been treated under the head of Mistake, and little more need here be said.^ Equity has jurisdiction to reform written instruments in but two well-defined cases: 1. Where there is a mutual mistake, — that is, where there has been a meeting of minds, — an agreement actually entered into, but the contract, deed, set- tlement, or other instrument, in its written form, does not express what was reall^^ intended by the parties thereto; and 2. Where there has been a mistake of one party accompanied by fraud or other inequitable conduct of the remaining parties." In such cases the instrument may be made to conform to the agreement or transaction entered into according to the intention of the parties. The con- dition of fact giving rise to the exercise of the jurisdiction to grant reformation are numerous. Almost all written instruments may be reformed when a proper occasion is furnished.'' ' Keforniation and re-exeeution are in fact one and tlie same remedy, de- pending upon the same rules; and the same is true of rc-^eission. cancellation, surrender up, and discharge. The decree for cancellation generally includes a direction lor a surrender uj), and, if necessary, for a discharge of record, and is frequently accompanied by an injunction against a suit at law upon the instrument, or against the negotiation or transfer of the instrument to other peisons: ante. S 1340. -See ante. SS 83S-S71 (on mistake); §§ 872-021 (on actual fraud); and §§ 922-074 (on constructive fraud). A large number of cases cited in these cha])ters illustrate the remedies of "reformation" and "cancellation.'* In particular, see, as to jurisdiction to grant the relief of reformation Or of cancellation on account of mistake, and the conditions of fact which must exist. §§ 870. 871, and cases in notes. As to cancellation on account of fraud, see SS 910-921; English doctrine: § 912. The American doctrine: § 914. incidents of the relief, what is required of the plaintiff as a condition to granting the relief: §§ 915-917. Persons against whom granted: § 918. Illustrations: §S 919-921. '§§ 838-871. - § 870, and cases cited. •^ "If one should execute a release so broad in its terms as to release his rights in pi'operty. of which he was wholly ignorant, and which was not in contemplation of tlie parties at tlie time the bargain for the release was made," a court of equity may either cancel the release or by reformation, restrain its application as intended: Cholmondeley v. Clinton, 2 Mer. 352; 859 iiia<'ou-MATio^' and caxcellatiox. § 1377 § 1377. Cancellation and Surrender up or Discharge of Instru- ments, — The jurisdiction of equity to grant the remedy of cancel- laiion exists and will always be exercised when it is necessary Dungeis v. Angove, 2 Ves. 304, o Keener 205; Uainbinann v. Scliulting, 75 N. Y. 35, 3 Keener 202; Cleghoru v. Zunnvalt, 83 Cal. 155, 23 Pac. 294, 2 Ames Eq. Jur. 197, 3 Keener 322. Where the same mutual mistake has been repeated in each one of a chain of conveyances, under such circumstances as to entitle any one of the vendees to a reformation as against his immediate vendor, the equity will work back througli all, and entitle the la-,t vendee to a reformation against the original grantor: Blackburn v. Randolph, 33 Ark 119, 2 Ames Eq. Jur. 183. Similarly, it has been held that if there is a mutual mistake in a mortgage in the description of property, and the same mistake is continued in the foreclosure decree and in the sheriff's deed to the foreclosure purchaser, equity ^^ill go back to the original transaction and reform the mortgage and decree as well as the deed, so as to make them conform to the intention of the parties concerned, or if svich relief is impossible, the pur- chaser may be quieted in his possession against the mortgagor: Waldi'on v. Letson, 15 N. J. Eq. 126, 2 Ames Eq. Jur. 223. It has been held that relief will not be awarded to give a party a remedy exactly equivalent to one he has lost by his o\ra laches: Daggett v. Ayer, 65 N. H. 82, 18 Atl. 169, 2 Ames Eq. Jur. 232, 3 Keener 181. ISfo Reformation in Favor of a Volunteer. — As a general rule, equity will not interfere in favor of a volunteer. Hence no relief will be awarded to a grantee in an imperfect conveyance which is not supported by either a valuable or meritorious consideration, against either the grantor or his representatives: Else V. Kennedy, G7 Iowa, 37G. 25 N. W. 290, 3 Keener 429; Henderson v. Dickey. 35 Mo. 120. 2 Ames Eq. Jur. 185; Eaton v. Eaton, 15 Wis. 259, 2 Ames Eq. Jur. 244. The doctrine of "meritorious" consideration in equity is described, in another connection, ante, §§ 588-590. In some jurisdictions it is said that the rule is subject to the exception, that aftei* the death of the donor equit>' will interfere to rectify a disposition which is clearly proved to have failed, through mistake, to carry out the donor's intention: M'Mechan V. Warburton, L. R., Ir., 1 Ch. D. 435, 2 Ames TCq. Jur. 246. While reformation Avill not generally bo granted in favor of a volunteer grantee, it will be given to a donor who shows that, through mistake, his deed does not cany out his intention: Andrews v. Andrews, 12 Ind. 34S, 2 Ames Eq. Jur. 245. As to plaintiff's negligence, see ante, § 856: as to his laches, see ante, § 419; Citizens' Nat. Bank v. Judy, 146 Ind. 322, 43 N. E. 259; Bloomer v. Spittle, L. R. 13 Eq. 427, 2 Ames Eq. Jur. 309. 3 Keener 398; Sable v. Maloney. 48 Wis. 331, 4 N. W. 479, 2 Ames Eq. Jur. 310. As to the defense of bona fide purchase, see ante, § 776: Garrard v. Frankel, 30 Beav. 445, 3 Keener 261 ; Citizens' Nat. Bank v. Judy, 146 Ind. 322. 43 N. E. 259. 3 Keener 433: Cole v. Fickett, 95 Me. 205, 49 Atl. 1066, 2 Ames Eq. Jur. 178. As to priority between the equity for a reformation and the liens of subsequent attaching and judgment creditors of the defendant, see ante, §§ 721-724. In states where a married tvoman's deed must be executed with certain formalities, no reformation on account of defects arising from non-compliance with statutory provisions will be decreed, since it would not only contravene the policy of the law but require her to make a contract which she has not made: Hamar v. IMedsker. 60 Ind. 413. 2 Ames Eq. Jur. 228. See. also, Gebb V. Rose, 40 Md. 387, 3 Keener 425, A mere mistaken description in her executed § 1377 EQUITY JUKLSPKUDKXCE. 860 to protect or maintain equitable primary estates, interests, or rights; where, however, the estate, interest, or right is legal, the jurisdiction always exist.s, but its exercise depends upon the ade- quacy of the legal remedies,— a party being left to his affirmative or defensive remedy at law, where full and complete justice -can thereby be done.^ The occasions giving rise to the exercise of this jui'isdiction are mistake, fraud, and other instances where enforc- ing instruments or agreements would be inequitable or unjust.- A doubt was formerly entertained as to whether a court of equity ought to exercise its jurisdiction to order instruments absolute!}^ void at law, and not merely voidable, to be delivered up and can- celed, since the legal remedy of a party was adequate and com- plete, and no case was presented for equitable interference; but it is now well settled that jurisdiction will be exercised in such cases,^ except where the invalidity of the instrument is apparent on its face.* c(jnveyanee may, however, by the preponderance of authority be eorrectetl against her: Hamar v. Medsker, GO Ind. 413, 2 Ames Eq. Jur. 228; and in some states where there are no disabilities upon a married woman's power to contract and convey, an instrument may be corrected as against her to the same extent as against any other person: C'hristman v. Colbert, 3.3 ^linn. 509, 24 N. W. 301, 3 Keener, 428. 'See ante, §§ 911-914. In the exercise of the remedy of cancellation instru- ments are almost necessarily directed to be "delivered uj)." "Delivery up," un- der these circumstances, can hardly be called a distinct remedy. - The various rules as to when jurisdiction will be exercised, and the evi- dence necessary, in cases of fraud and mistake, have already been discussed, and the reader is referred to the sections on those subjects. As to cancellation for mistake, see ante, § 870. ■'Forged instruments: see Sliaron v. Hill, 20 Fed. 1, 30 Fed. 337, 2 Ames Kq. Jur. 161. SSinipson v. Lord Howden, 3 Mylue & C. 97, 2 Ames Eq. Jur. 124: Peirsoll v. Elliott, 6 Pet. 95, 98, Shep. 141; Town of Venice v. Woodruff, 62 N. Y. 4()2, 20 Am. Rep. 495. 2 Ames Eq. Jur. 133, H. & B. 794, Shep. 244. Subject to this limitation, the remedy at law is usualh' inadequate, and the jurisdiction of equity exercised as a matter of course. (1) where the invalid instrument creates a cloud on title to land: See post, §§ 1398, 1399. (2) Where the instrument is negotiable and not yet mature, because in such cases if the present unlawful holder, although the legal defense to an action by him would be perfect, should transfer the security to a bona fide purchaser, such legal defense would be cut off. In this case, it is usual to enjoin tlie transfer of the instrument, as well as to order its surrender: Ante, § 1340; Smith V. Aj'kAvell, 3 Atk. 566, 2 Ames Eq. Jur. 132. Where, however, the instrument against which the complainant claims a flefense does not fall within either of these classes — ^vhere it is not a cloud u])on the title to land, and where there is no danger that the defense will be lost by the transfer of the instrument to a bona fide purchaser. — there is the sharpest conflict among the authorities as to the propriety of the remedy of cancellation. On the one hand it is held, in a considerable group of S^61 EKFORMATIOX AXU CANCELLATION'. § 1377 eases, that the clanger of loss of evidence in support of the defense, through llie intentional delay of the holder of the instrument in bringing suit thereon, is sullicient to warrant the exercise of the jurisdiction: Martin v. Graves, a AUen, GOl, 2 Ames Eq. Jur. 137; Commercial Ins. Co. v. McLoon, 14 Allen, a,')!, o Keener 322 (insurance policy); Fuller v. Percival, 12G Mass. 381, 2 Ames Eq. Jur. Ill, 3 Keener 483 (promissory note, overdue, obtained l)y fraud) ; Sharon v. Hill, 20 Fed. 1, 2 Ames Eq. Jur. Kil (forged contract of marriage) ; (for further instances see ante, § 914) ; and this, too, even wlicrc tlie liolder of the instrument has already brought suit at law upon it, sine- tlie ])rosecution of such suit is within liis control, and may be delayed or withdrawn, and anotlier brought at a time when an unconscionable advantage may be taken: Buxton v. Broadway, 45 Conn. 540, 2 Ames Eq. Jur. 115 ("on til is question we can consider only what means of redress the law itself fur- nishes the petitioner, and not what he may chance to get through the indulgence of the respondent") : Andrews v. Frierson, 134 Ala. 62G, 33 South. G, 1 Scott lOS. But on the v\-lioIe. the majority of the cases repudiate the idea that the mere danger of loss of evidence to support a future defense is a sufficient gi-ound for immediate relief in equity against the instrument, unless some special circumstances are shown whicli render svich delay more than ordinaril.v lia/.nrdous: in many of the cases, the fact that the testimony of witnesses may I)e perpetuated under statutory provisions being assigned as a reason for holding that there is no danger of loss of evidence: See, in general, Globe Mut. L. Ins. Co. V. Reals, 70 X. Y. 202, 3 Keener 485 (insurance policy; suit to cancel for fraud brought after loss) : Erickson v. First Nat. Bank, 44 Xel). 022, 48 Am. St. Rep. 753, G2 X. W. 1078, 38 L. R. A. 377 (altered note) : Allerfon v. Belden, 49 X. Y. 373, 2 Ames Eq. Jur. 113 (unauthorized municipal bonds) : for further instances, see ante, § 914, but see, for cases where complain- ant IS exposed to a multiplicity of suits, ante, § 261, note. A fortiori the court refuses to interfere where an action at law has already been begun upon the instrument, and the defense may be interposed therein: Grand C'luite v. Wine- gar, 15 Wall. 373, 21 L. ed. 174, 2 Ames Eq. Jur. 116 (unauthorized municipal l>oiids) ; Insurance Co. v. Bailey, 13 Wall. 616, 20 L. ed. 501, 3 Keener 474; but here. too. exceptional circumstances may render a defense in the actions already brought an inadequate protection; as where several separate suits have been brought against complainant by persons claiming to be assignees of an instrur.n'r.t executed by him, and his defense is fraud in obtaining the instrument; intpr- ])leader cannot be had, since complainant denies any liability on the instiiuuont : and if left to his defense at law, he must try several actions to secur ■ a single right: McHenry v. Hazard, 45 X. Y. 580, 2 Ames Eq. Jur. 118. In another group of cases, in many of Avhich the complainant is a vendee of land or chattels, the question of inadequacy of the legal remedy concerns, not a legal drfewie in a future action against the complainant, but the alterna- tive legal i-emedy that may be pursiied by him, as for recoveiy of the purchase price, of damages for deceit, and the like. This question, in the main, depends upon the special circumstances of the individual case: See Boyce v. Gnindy. 3 J'et. 210. 7 L. ed. 655, Shep. 19 (rescission at suit of defrauded vendee of land: explained in Buzard v. Houston, 119 U. S. 347. 7 Sup. Ct. 249. 30 L. ed. 451, 3 Keener 487). For the defense of rnfificnfion in cases of cancellation, see ante. §§ 897. 916. 964: for the necessity of reaforation of the defendant to the condition in which he stood before the transaction, see § 910, and note; also, §§ 391, 937, 946. § 1378 EQUITY JUIUSPRUDENCE. i^^ FOURTH GROUP. REMEDIES BY WHICH ESTATES, INTERESTS, AND PRIMA- RY RIGHTS, EITHER LEGAL OR EQUITABLE, ARE DIRECT- LY DECLARED, ESTABLISHED, OR RECOVERED, OR THE ENJOYMENT THEREOF FULLY RESTORED. CHAPTER FIRST. SUITS BY WHICH PURELY LEGAL ESTATES ARE ESTAB- LISHED, AND THE ENJOYMENT THEREOF RECOVERED: NAMELY, ASSIGNMENT OP DOWER, ESTABLISHMENT OF DISPUTED BOUNDARIES, PARTITION OF LAND, AND OF PERSONAL PROPERTY. ANALYSIS. § 1378. (leneral nature and object of tliis group. § 1379. Xature and object of the first class. §§ 1380-1383. Assignment of dower. § 1380. Legal remedies. § 1381. Origin and grounds of the equitable jurisdiction. § 1382. The jurisdiction now concurrent. § 1383. Exclusive jvirisdiction over dower in equitable estates. § 1384. Establishment of disputed boundaries. § 1385. The same; equitable incidents and grounds. §§ 1380-1390. Partition of lands. § 138G. Common law remedy. § 1387. Equitable jurisdiction and remedies. § 1388. The title of the plaintiff. ^ 1389. Mode of partition. § 1390. Partition by means of a sale. § 1391. Partition of personal property. § 1392. The same; issue of title. § 1378. General Nature and Object of This Group.— All the remedies belonging- to this group have one most important dis- tinctive feature in common, which is apparent npon even a slight examination. In all of them the estate or interest of the com- plaining party, whether it be legal or equitable, is directly established or recovered, or the enjoyment thereof is directly re- stored. These remedies are not. therefore, provisional or auxiliary, but they are, for the purposes of the complaining party, as truly ^63 ASSIGNMENT OF DOWER. f 1380 final or ultimate reliefs as is the judgment in an action of eject- ment or of replevin.^ The estate, interest, or primary right to be established or recovered, or fully enjoyed by their means, ma;^ be either legal or equitable ; and when it is equitable, the establish- ment may consist in clothing the plaintiff with the legal estate.'^ The remedies composing this group are separated, by a natural line of division, into tJiree general classes, namely: 1. Suits by which purely legal estates are established, and the enjoyment thereof recovered ; 2. Suits by which some general right, either legal or equitable, is established; and 3. Suits by which some particular es- tate or interest, either legal or equitable, is established. § 1379. Nature and Object of the First Class. — Since the par- ticular cases belonging to this class are primarily adapted to purely legal interests, the common law gives similar relief by means of appropriate legal actions. The jurisdiction of equity Avas based wholly upon the superiority of the equitable methods and pro- cedure ; and while the equitable jurisdiction in cases of dower and partition has become so established that it has almost dis- placed the legal remedies, that of settling disputed boundaries still requires the presence of some special equitable incident or circumstance.^ I purpose to state the general doctrines and rules which regulate the jurisdiction to grant these remedies, and de- termine the circumstances under which and the parties between whom it will be exercised. § 1380. Assignment of Dovrer — Legal Remedies. — The right ' This is manifestly so in "assignment of dower," "settlement of disputed boundaries," and "partition of land," since in each of these instances the plain- tiff establishes his individual right to and obtains sole possession of a Specific tract of land, and in "partition of personal property," he procures the same with respect to specific chattels. The statement is no less true of the other suits included within this group. In a suit to construe a will, estates in specific property are directly established; in suits to quiet title, the very object of the judgment is to declare and establish the plaintiff's legal or equitable estate in some specific property, and perhaps to convert his equitable estate into a legal one. Even in suits to remove a cloud from title, although the relief is often obtained by means of a cancellation, yet from the nature of the whole proceeding, the plaintiff's estate is thereby established, and he is left in its full enjoyment. In strict foreclosure of mortgages or pledges, and in redemption of mortgages or pledges, the plaintiff plainly establishes his estate in. and secures his possession of, the specific land or chattels, free from any claim of the defendant. However much these remedies may differ in aj)- ])earance, they all have this same essential element which brings them within the same group. "As in some statutorv- suits to quiet litle, and some suits to remove a cloud from title. ^ Under ail ordinary circumstances, the action of ejectment is an adequate remedy by which to settle disputed claims to legal titles and estates. § 1383 EQUITY JL'RISPKL'DENCE. 864 known as the wife's right of dower was purely legal, and was asserted at law through the writ of right of dower, and the writ of dower unde nihil habet, both of which were in the nature of real actions. As early as the reign of Queen Elizabeth, courts of equity began to assume jurisdiction over cases of dower, but only tentatively, and as ancillary to proceedings at law.^ This jurisdiction, originally narrow and auxiliary, has, by the course of decision, and on familiar equitable principles, been expanded to the extent of affording complete relief between the parties. § 1381. Origin and Grounds of the Equitable Jurisdiction. — E(iuitable interposition in cases of dower was at first invoked for the removal of impediments in the way of recovery at law. As the title deeds to real estate were held by heirs, devisees, or trustees, it would be important, and even necessary, for the widow, in the event of a contest of her dower, to resort to equity, for the purpose of ascertaining the lands of which her husband had been seised during marriage. To accomplish this purpose, a bill of discovery would be entertained in equity; and where the land of the husband was an undivided interest in a greater portion, equity would decree a partition in aid of the assignment to the widow of her dower. ^ This jurisdiction was, in its earlier stages, strictly auxiliary; and if no obstacle in the way of recognition and assignment of dower at law was disclosed, the equitable pro- ceedings would be arrested." The equitable jurisdiction, having once attached, was not slow in maturing so as to confer full re- lief. When the widow came into equity for a discovery respecting tlie title deeds to her husband's estate, which were in the hands of the heir, it was held that she should have complete relief." If her title to dower was denied, it woidd be incumbent upon her to establish such title at law. Equity would, for that purpose, retain the bill for a reasonable time, and upon the determination of the issue at law in the widow's favor, would proceed to ad- minister final relief.* §1382. The Jurisdiction Now Concurrent. — Although it was thus, at one time, supposed that the jurisdiction of equity was an- cillary, and could not attach in the absence of impediments at MVild V. Wells 1 Dick. 3; Toth. 82. ^Moor V. Black, Cas. t. Talb. 126. = Sliute V. Shute, Prec. Ch. 111. 'Curtis V. Curtis, 2 Brown Ch. 620, 631, 632. * Curtis V. Curtis, supra. And assuming the widow's title to be established or conceded, equity will not only assist her by way of discovery and assignment, but will decree her a due share of the mesne profits, and this, not from the time of the demand merely, but from the time when her title accrued: Dormer v. Je^ortescue, 3 Atk. 124, 130, 1 Keener 523. 865 ASSIGNMEXT OF DOWEK. § 1383 law, it is uow well settled that courts of equity have concurrent jurisdiction in cases of legal dower, or dower in legal estates.^ The advantages of the equitable procedure are obvious. An out- standing term could be removed and satisfied;- a partition in the case of undivided interests could be decreed, and an account could he taken r fraudulent conveyances could be canceled;* and an- tagonistic claims to the subject-matter could be determined without multiplicity of suits.^ Equity will also award damages which could not be recovered at law on an application for dower.*' § 1383. Exclusive Jurisdiction over Dower in Equitable Estates. — In England since the statute of 3 and 4 William IV./ and in the United States from an early day, equity has assumed an exclusive jurisdiction over claims for dower in equitable estates. Where the husband's estate was an equity of redemption, the widow may proceed against the mortgagee by a bill in equity to redeem.^ . . . If the husband should die seised of land on which a part of the purchase-inoney was due, the widow may resort to equity for a sale of the land in satisfaction of the unpaid balance, and for her dower in the surplus.^ On the conversion of the husband's estate into money, equity will aAvard to the widow her proportion- ate share.'* And where the husband has sought, by fraudulent convcA'ances, to defeat the wife's dower, equity will, on her ap- plication, grant appropriate relief.^ The widow's right of dower, Avhile 3'et unmeasured and unassigned, may be transferred by her, or reached by her judgment creditors, and her voluntary trans- feree, or the receiver appointed in aid of the judgment creditor, may maintain a suit in equity to have the dower assigned to him." The assignment of dower is usually effected b}' a reference to a mas- ter and a commission, and the share is set out by metes and ^Mundy v. Mundy, 2 Ves. 122; Herbert v. Wren, 7 Crancli 370, Shep. 132; iJadgley v. Bruce, 4 Paige, 98. -Dormer v. Fortescue, 3 Atk. 124, 130, 1 Keener .'523. ' Herbert v. ^Vren, 7 Cranch, 370, Shep. 132. *8\vaine v. Ferine, 5 Johns. Ch. 482; 9 Am. Dec. 318. ^Goodbuni v. Stevens, 1 Md. Ch, 420. "Curtis V. Curtis 2 Brown Ch. 620, 632; Dormer v. Fortescue, 3 Atk. 124, 130, 1 Keener 523. > Chapter 10;"). = Gibson v. Crehore, 3 Pick. 475; Farwell v. Cotting, 9 Allen 211. * Thompson v. Cochran, 7 Humph. 72; 46 Am. Dec. 68. * *Higbie v. VVestlake, 14 N. Y. 281. ^vSwaine v. Ferine, 5 Johns. Ch. 482, 9 Am. Dec. 318; Petty v. Petty, 4 B. Mon. 215, 39 Am. Dec. 501. "McMahon v. Gray, 150 Mass. 289, 15 Am. St. Rep. 202, 22 N. E. 923, 5 L. R. A. 748 (creditors' bill) ; Payne v. Becker, 87 N. Y, 153 (receiver appointed in aid of an execution) ; Strong v. Clem, 12 Ind. 37; 74 Am. Dec. 200 (trans- feree; . 5^ j lobO EQUITY JURISPRUDENCE. 866 bounds. AVhere an account is needed, it may be taken by means of a similar reference. In many of our states summary proceed- ings have been provided by statute for the assignment of dower, especially where the widow's ri.uht thereto is not contested. § 1384. Establishment of Disputed Boundaries. — Where the boundaries between two adjacent parcels of land, even when held by their respective owners under purely legal titles, have become confused or obscure, equity has, from an early period, exercised a jurisdiction to settle them.^ Whether this jurisdiction originated in the consent of the parties, and proceeded by analogy to the writs de rationalibus divisis and de perambulatione facienda lused at law,'- or arose in avoidance of a midtiplicity of suits, ^ has been discussed; but the determination of the question remains uncertain and conjectural. The mere fact, however, that certain boundaries are in controversy is not of itself sufficient to authorize the inter- ference of equity ; and upon such a showing, the parties would be left to their rights and remedies at law. Courts of equity will not interpose to ascertain boundaries, unless, in addition to a naked confusion of the controverted boundaries, there is sug- gested some peculiar equity, which has arisen from the conduct, situation, or relations of the parties.* \ § 1385, Equitable Incidents and Grounds. — The fraud or neg- lect of duty of the party against whom relief is sought by way of establishment of boundaries will afford a sufficient ground for equitable interference.^ And where a settlement of the boundaries in dispute cannot be had at law without a multiplicity of suits, relief may be obtained in equity.- It may happen that such a re- lalion exists between the parties as to make it incumbent upon one of them to preserve the boundaries. Such would be the ease where one of the parties was a tenant or a copyholder; and in all such cases, equity will entertain the suit of the aggrieved party — as of a landlord — to compel the defendant — as in the example, a tenant— to preserve the boundaries from confusion.'' ... It is necessary for the complainant to show that some portion of the MVake. V. Conyers, 1 Eden .331, 2 Lead. Cas. Eq., 4th Am. ed. 8.50, 853, 860, = S])eer v. Crawter. 2 Mer. 410, 417. '■' Wake V. Conyers, supra. * Wake V. Conyers, supra ; Asliurst v. ]\IcKenzie, 92 Ala. 484, 9 South. 262, 1 Keener 381 ; Hinnboldt County v. Lander County, 22 Xev. 248, 58 Am. St. Kep. 7.50, 38 Pae. .578. 26 L. R. A. 749 (dispute between two counties) ; King V. Brioliam. 23 Ores. 202. 31 Pae. 601, 18 L. R. A. 361 (statutoiy jurisdiction in equity). M4uice V. Barr. 130 Ala. 570. 30 South. .563: 2 .Tones Eq. 470. -Wake V. Con^'ers. supra; Beatty v. Dixon. 56 Cal. 622. See ante. § 261. note. =* Aston V. Lord Exeter. 6 Ves. 288; see Ashurst v. 2>P'lenzie, 92 Ala. 484, & Soutli. 262, 1 Keener 381. 867 PARTITION OF LANDS. § 1387 lands, in respect of which the relief of establishing their boundaries is sought, is in the possession of the defendant.'* § 1386. Partition of Lands — Common-law Remedy. — At com- mon law, the writ of partition lay only in case of lands held in coparcenary.^ The remedy was afterwards extended by statute to joint tenancies and tenancies in conniion.- Where the tenure was copyhold, partition might be had in the lord's court by a plaint in the nature of a writ of partition. As the plaint and the writ have both been abolished by statute,^ this jurisdiction of equity is now, in the absence of statutory provision, exclusive. The operation of the common-law remedy, even after its exten- sion to joint tenancies and tenancies in common, was imperfect and narrow. The writ of partition lay only against the tenant in possession^ and was incompetent to reach the remainderman or the reversioner. As the judgment at law proceeded according to the titles proved, it was necessary for the plaintiff to show the title of the defendant as well as his own. And as partition at law was made by the sheriff' by actual division, it might happen that, where the undivided interests were incapable of exact ap- portionment, the judgment of the court would be powerless to compensate the inequalities. § 1387. Equitable Jurisdiction and Remedies. — These difficnlties, illustrating the inadequacy of the legal remedy, gave rise to the equitable interference. As early as the reign of Elizabeth, partition became a matter of equitable cognizance ;^ and noAv the jurisdic- tion is established as of right in England and in the United States.^ The remedy in equity is not confined to the tenants in possession, but extends to all persons interested, w^hether presently or in expectancy; and remaindermen, reversioners, infants, and persons not in esse may be bound by the decree.^ ^Att'y-Gen. v. Stephens, 6 De Gex, M. & G. 111. ^The reason given was, that as tenancy in coparcenary arose by operation of law, it was only proper that the law should afl'ord the means of severance. '31 Henry VIU., c. 1; 32 Henry Vlll., c. 32. •'3 & 4 W'm. IV., c. 27. ' 1 I'onbJanque's Equity, b. 1, c. 1, sec. 3, note f ; Speke v. Walrond, Toth. 155. -Agar V. Fairfax, 17 Ves. 533; 2 Lead. Cas. Eq., 4th Am. ed., 865, 880, 894; Hill V. Reno, 112 111. 154, 54 Am. Rep. 222; Rutherford v. Jones, 14 Ga. 521, 60 Am. Dec. 655. ' Ciaskell v. Gaskell, 6 Sim. 643. But a future estate cannot be partitioned at the suit of a eo-owmer thereof; Baldwin v. Aldrichs, 34 Vt. 532. 80 Am. Dec. 695; Savage v. Savage, 19 Oreg. 112, 20 Am. St. Rep. 795, 23 Pac. 890; and by the weight of authority compulsory partition cannot be had against the holder of a future conditional interest: Aydlett v. Pendleton, 111 N. C. 28, 16 S. E. 8, 32 Am. St. Rep. 776, and note, Only a parly having actual or con- structive possession can compel partition: Nichols v. Nichols, 28 Vt. 230, 67 ^ 1389 E(4U1TY JLiasFRLDEXCE. 868 §1388. The Title of the Plaintiff.— The difficulty under which the coinpiaiuaut labored at law iu proving the title as well of the defendant as of himself is, in equity, obviated by a discovery, and if need be by a reference to the master. The complainant must show title in himself, and such a title as will establish his right, as against the defendant, to a partition.^ Where the ecunplainant's legal title is disputed, courts of equity decline the jurisdiction to try this question; but, in analogy to the case of dower, they will retain the bill for a reasonable time, until the issue of title has been determined at law."^ If the disputed titles are equitable, courts of equity will exercise jurisdiction to settle them, and Avill then grant final relief by way of partition, under the same bill.-' Where the subject-matter of the suit is an equi- table estate* or an incorporeal hereditament,^ a partition may be had in equity. § 1389. Mode of Partition — Pecuniary Compensation. — In the original jurisdiction of equity the partition was elTected by means Am. Dec. G99, and note. A pending- lease for years is no obstacle to a pai-tition lietween the owners of the fee: Willard v. Willard, 145 U. S. 116, 12 Sup. Ct. 818, ?)(') L. ed. 644. The grantee of a co-tenant acquires all the rights of his grantor: :\Iee v. Benedict, 08 Mich. 260, 39 Am. St. Rep. 543, 57 N. W. 175, 22 L. R. A. 641. A co-tenant who has mortgaged his interest may have partition: Green v. Arnold, 11 R. 1. 364, 23 Am. Rep. 466. In general, all the tenants in common or joint tenants of the estate in the land to be partititmed should be made parties, either plaintiiT or defendant: see Gates v. Salmon, 35 Cal. 588, 95 Am. Dec. 139 (grantee). But the mort- gagees and judgment creditors of tenants in common are not necessary parties : Harwood v. Kirbv, 1 Paige 469; though if a mortgagee's interests require that lie be joined, he may be made a party: Whitton v. Whitton, 38 X. H. 127, 75 Am. Dec. 163. As to the mode of binding the estates of persons not in being w lio may become co-owners, see ]\Iead v. Mitchell, 17 X. Y. 210, 72 Am. Dec. 455. 'Agar V. Fairfax, 17 Yes. 533. su])ra. - Bearden v. Benner, 120 Fed. 690. As a general rule, the i^laintiff could Jiot have partition of property held adversely to him bj' his co-tenant: Froy V. Willougldjy, 63 Fed. 865, 27 U. S. App. 417, 11 C. C. A. 463; but statutes conferring legal and equitable powers iii)on the same court have generallj' been construed to permit the adjusting of all the conflicting claims in one action: Weston v. Stoddard 137 N. Y. 119, 33 Am. St. Rep. 697, 33 X. E. 62, 20 L. R. A. 624; and statutes often explicitly authorize the determination of tpiestions of title by the court of equity: see Pillow v. Southwest, etc., Co., 92 A'a. 144, 53 Am. St. Rep. 804, 23 S. E. 32. ■'■ \'reeland v. Yreeland, 49 X. J. Eq. 322, 24 Atl. 551. * Aspen M. & S. Co. v. Pucker, 28 Fed. 220. ' Equity, by reason of the flexibility of its decrees, may partition the right to the use of water in a flowing stream : Warren v. Westbrook Mfg. Co., 88 Me. 58, 51 Am. St. Rep. 372, 33 Atl. 665. 35 L. R. A. 388; but the actual partition of oil and gas among co-owners who did not own the surface was beyond the power of the court, in Hall v. Vernon, 47 W. Va. 295, 81 Am. St. Rep. 791, 34 S. E. 764. 809 PART'TIOX OF LANDS. ' § 1390 of mutual conveyances; and where the land was incapable of i^xact or fair division, the court had power to compensate for the inetiuality by awarding what was known as "owelty of partition," being a pecuniary compensation, or a charge upon the land by way of rent, servitude, or easement.^ And if one of the joint own- ers or owners in common has received more than his share of the rents and profits, the court will direct an account for the purpose of decreeing a reimbursement." And if it should appear that one of the parties had made improvements on the land of wliich partition is sought, he will be awarded suitable compensa- tion. ■' The inconvenience or difficulty attending the partition is no ground for refusing the relief."* § 1390. Partition by Means of a Sale. — On account of the diffi- cultly of making an equitable apportionment and division of the land, it might sometimes be expedient for the court to order a sale of the property and a division of the proceeds. By the origi- nal equitable jurisdiction, independent of any statute, if all the parties sui juris were willing, the court had power to decree a a sale; and this, even though infants might be among the parties interested.^ But where one of the parties sui juris refused his con- sent, the court had no option but to proceed with the ordinary mode of partition.- This restriction has in England been re- moved by a modern statute.^ In the United States an unquali- fied powder of sale has been conferred on the courts in very many of the states, the power to be exercised whenever it shall ap- pear to the court, independently of the consent of the parties, 'Earl of Clarendon v. Hornby, 1 P. Wms. 446; Updike v, Adams, 24 R. 1. 220, 96 Am. fSt. Rep. 711, 52 Atl. 991. - i.orimer v. Lorimer, 5 Madd. 363; Early v. Friend, 10 Gratt. 21. 78 Am. Dec. 649; Fenton v. Miller, 116 Mich. 45, 72 Am. St. Rep. 502, 74 N. W. 384. ■■•■ Ford V. Knapp, 102 N. Y. 140, 55 Am. Rep. 782, 6 N. E. 283 ; Ward v. Ward, 40 \V. Va. 611, 52 Am. St. Rep. 911 and monographic note, 29 L. R. A. 449, 21 N. E. 746. See also ante, § 1240. The same result may be reached li\' setting aside to such party the portion of the premises on which he has made the improA'ements. ' 111 one case the doctrine was carried to the extent of making partition of a house by buikling a wall through tlie middle of it: Turner v. INIorgan 8 Ves. 143. In general the right to partition is absolute: O'Pirien v. Mahoney, 179 Mass. 200, 88 Am. St. Rep. 371, 60 X. E. 493; unless the right is waived by agreement among the co-tenants: ]\Iartin v. Martin, 170 111. 639, 02 Am. St. Rep. 411, 48 N. E. 924. Equity will, of course, refuse to decree a division Axliere the property is charged with some trust or dedicated to some use wliich would be defeated by the partition: Latshaw's Appeal, 122 Pa. St. 142, 9 Am. St. Rep. 76, 15 Atl. 670. 'Davis V. 'rurvey, 32 Bcav. 554. '■'("odman v. Tinkliam 15 Pick. 364. = 31 & 32 \ict., c. 40, § 1303 EQUITY JURISPRUDEXCE. 870 that a sale would be more beneficial, or less injurious, than an f.etual division.* As between a sale and a partition, however, the courts will favor a partition, as not disturbing the existing form of the inheritance. § 1391. Partition of Personal Property — Equitable Jurisdiction and Remedy. — The rules and proceedings which obtained at com- mon law and by statute on the subject of partition related exclu- sively to real estate.' At common law the co-owner of a chattel could maintain an action respecting the common property against his co-tenant only where a loss, destruction, or sale of the property was provable against the defendant.- However expedient the par- tition of chattels might appear, or however desirable it might be to the co-tenants, the common law furnished no instrumentality by which the partition could be judicially efifected. There was not merely an inadecpiacy of legal remedy, there Avas an utter ab- sence of it. The situation clearly demanded the intervention of equity. And although the inception of the equitable jurisdiction for the partition of chattels is not traceable with certainty, the jurisdiction itself is unquestioned; and where a literal partition is not practicable, the coui't will order a sale." § 1392. The Issue of Title. — In the partition of real estate, the rule was well settled, that where the title of the complainant was put in issue, a court of equity would suspend its interference until the question of title had been determined at law in an action of ejectment. But no ejectment lay to try the title to personalty. A refusal, then, by a court of equity, in proceedings for the par- tition of chattels, to pass upon an issue of title would be tanta- mount to a complete failure of justice. Courts of equity, therefore, when partition of personalty is sought, have of necessity departed from the analogies of the law of real estate, and have assumed jurisdiction to determine as well the issue of title as any other issue pertinent to the case.^ *Steedman v. Weeks, 2 (Strob, Eq. 145, 49 Am. Dee. GGO; HoUej' v. Glover, 30 S. C. 404, 31 Am. 8t. Rep. 883, 15 S. E. G05, IG L. R. A. 77G. ' Allnatt on Partition. 48. -Gilbert v. Dickerson. 7 Wend. 449, 22 Am. Dec. 592. » Robinson v. Dickey. 143 hid. 205, 52 Am. St. Rep. 417, 42 K E. 679; Godfrey v. White. GO :Mieli. 443, 1 Am. St. Rep. 537, 27 X. W. 593. ^ Robinson v. Dickey supra. 871 BILLS OF PEACE. § 1393 CHAPTER SECOND. SUITS BY WHICH SO.AIE GENERAL RIGHT, EITHER LEGAL OR EQUITABLE, IS ESTABLISHED— BILLS OF PEACE AND BILLS QUIA TIMET QUIETING TITLE. ANALYSIS. § 1303. Nature and object. *i 13114. Bills of peace — Bills quia timet — Quieting. title. § 1393. Nature and Object. — In all the remedies belonuino- to this class, some general right, which may be either leoal or equi- table, is declared and established.^ The class includes suits to establish a will, suits to construe a will, and the bills of peace and bills quia timet for the purpose of quieting title, which belong- to the original general jurisdiction of equity.^ ' Some of the remedies of this class undoubtedly depend upon what the early chancellors called the "jurisdiction quia timet." Since the conception of a. quia timet jurisdiction is so broad and runs through so many diflerent branches of the remedial jurisprudence, T have not adopted it as a basis of classification. The object of suits to establish and to construe wills is plainly the establishment of a general right; and the same is no less true of those suits to quiet title, bills of peace, and the like, which belong to the original jurisdiction of equity. - All of these remedies have been fully considered in the preceding parts of this work. For suits to establish a will, see ante. § llo8. For suits to construe a will, see ante, §§ 1155-1157. For suit quieting title, bills of peace, etc., see ante, §§ 243-275. 131)6 EQUITY JUKIbPRUDENCE. 87Si CHAPTER THIRD. SUITS BY WHICH SOME PARTICULAR ESTATE, INTEREST, OR RIGHT, EITHER LEGAL OR EQUITABLE, IS ESTAB- LISHED—STATUTORY SUIT TO QUIET TITLE— SUIT TO REMOVE A CLOUD FROM TITLE. A>"ALYSIS. § 1395. Nature and object. § 139(5. (Statutory suit to quiet title; legislation. § 1397. The same; essential features and requisites; possession; title, S 1398. Suit to remove a cloud from title; to prevent a cloud. § 1399. The same; when the jurisdiction is exercised; general doctrine, § 1395. Nature and Object. — In all the instances of this class, a.s distinguished from those of the preceding one, the direct ob- ject of the remedy is to declare and establish some particular estate, interest, or right, either legal or equitable, in the property which is the subject-matter.^ The class as a whole embraces suit.s for the strict foreclosure of a mortgage or a pledge, suits for the redemption of a mortgage, suits for the redemption of a pledge,- statutory .suits to (piiet title, and suits to remove a cloud from title. § 1396. Statutory Suit to Quiet Title — Legislation. — The equity jnrisdiction to quiet title, independent of statute, was only in- voked by a plaintiff in i:)ossession, holding the legal title, when successive actions at law, all of which had failed, Avere brought against him by a single person out of possession, or when many per- sons asserted equitable titles against a plaintiff' in possession hold- ing the legal or an equitable title. The action has been greatly extended by statute, and in many states is the ordinary mode of ^ Some of these remedies, also, have been said to depend upon tlie quia timet jurisdiction. - These three remedies have already been considered : Strict foreclosure of a mortgage: Ante, § 1227: of a pledge: ante, § 1231. Redemption of a mort- gage: Ante, §§ 1219, 1220; of a pledge: ante, § 1231. I shall in this chapter only discuss the statutory suit to quiet title, and the suit to remove a cloud from title. The former of these suits has, in many of the states, become the most important and common of equitable remedies, and has even taken the place, to some extent, of the action of ejectment. The original equitable jurisdiction to quiet title has been greatly enlarged. 8To STATl'TOItY 811T TO QUI KT TITLK. § I ;')•)? trying disputed titles.^ The states adopting such statutes may be separted into two classes, the first and most numerous class re- (luiring the plaintil'i' to be in possession, and the second allow- ing the action to be brought by a plaintiflt' in or out of possession.'- In almost every instance the statutes, either by express terms or tlirough broatl and general language, allow tlie action to be main- tained by persons having e(|uitable titles: in other words, a plain- titV need not have a legal title."' § 1397. Essential Features and Requisites. — The essential fea- tures of the action brought in states of the first class, wherein it differs from the ordinary equitable suit to quiet title, are that the plaintiff may in all cases take the initiative, and need not wait for proceedings to be instituted against him; the statute is an enabling act; and the action may be brought against one or more claimants without regard to the interest or title — legal or equitable — which he or the plaintiflt' may hold.^ In addition to the foregoing differences, possession is not required in states of the second class; the action may therefore be brought here in cases where a party at common laAV would be left to his rem- edy by ejectment. Several of the statutes in express terms allow the action to be brought to remove clouds from title ; others are ^ Tlie action, also known as one for the "determination of adverse claims" exists in tlie '"Code" states and in several others including Alabama. Illinois, Louisiana. jNlicliijian, Mississippi, New .Jersey. The economic conditions which gave rise to these statutes are admirably described by Mr. Justice Field; see Curtis v. .Sutter, 15 Cal. 2(i3 ; Holland v. Challen. 110 U. 8. 21, ?, Sup. (H. 4!)5, 28 L. ed. (52. The action, if brought by a plaintift' in possession, or when both parties are out of possession, is almost nniformly held to be equitable in its nature; but when brought against a defendant in possession, it is usually iicld that he is entitled to a jury trial: see the application of the statutes in the L nited (States courts, ante, § 29,3. -In regard to the nature of the possession requisite to maintain the action, in states of the first class, there is some conflict. It has been held on the one- side that possession must be lawful, — must be accompanied by a claim of right, legal or equitable: Stark v. Starrs, Wall. 402: and on the other, that it' is immaterial how possession was obtained, — by collusion, fraud, or otherwise: Calderwood v. Brooks, 45 Cal. 519. ■■•See Pioneer Land Co. v. Mad.Iux, 109 Cal. 633. 50 Am. St. Rep. 07, 42 Pac. 295. 'See the various statutes; Curtis v. Sutter, 15 Cal. 259, 2(53. A possessory title is held sufficient to maintain the action to quiet title to a mining claim locatetl on public lands of the United States: Merced Min. Co. v. Fremont. 7 Cal. .317. 08 Am. Dec. 202. In states of the first class, while it is evident thai a party out of possession holding a legal title must resort to ejectment, as before, to recover possession: Curtis v. Sutter. 15 Cal. 259. 204; it is equall.v evident that the statutes do not prevent a party oul of possession from apply- ing for equitable relief, — as. for examjilc. 1o have a cloud removed or prevent a cloud from being cast on his title: King v. Carpenter, 37 jSIich. 303. § 131)9 EQUITY JURISPRUDENCE. 874 sufficiently general to inelnde this as well as other adverse claims.- § 1398. Suit to Remove a Cloud from Title. — The jurisdiction of courts of equity to remove clouds from title is well settled/ the relief being granted on the principle quia timet, — that is, that the deed or other instrument or proceeding constituting the cloud njay be used to injuriously or vexatiously embarrass or affect a plaintiff" 's title.- §1399. When fhe Jurisdiction is Exercised — General Doctrine. — -Whether or not the jurisdiction will be exercised depends upon the fact that the estate or interest to be protected is equitable in its nature, or that the remedies at law are inadequate where the estate or interest is legal,— a party being left to his legal remedy where his estate or interest is legal in its nature, and full and com- plete justice can thereby be done.^ While a court of equity -will -As to the nature of the adverse cUiims, the pleadings, and the decree, see 2 Pom. Eq. Rem. §§ 739-743. ^ "A bill will not lie to remove a mere verbal claim or oral assertion of ownership in property, as a cloud upon the title. Such clouds upon title, as may be removed by courts of equity, are instruments or other proceedings in writing, which appear upon the records and thereby cast doubt upon the validity of the record title": Parker v. Shannon, 121 111. 452, 13 N. E. 155, 2 Ames Eq. Jur. 160, 1 Keener 363. Formerly there seems to have been some doubt as to the jurisdiction. Cancellation is the ordinary remedy in removing clouds. It is equally well established that equity has jurisdiction to prevent, by means of injunctions, clouds from being cast on titles: See Bishop v. Moorman, 98 Ind. 1, 49 Am. Rep. 731, 2 Ames Eq. Jur. 156; Pixley v. Hug- <^ins, 15 Cal. 127, 2 Ames Eq. Jur. 153. The danger, however, in such cases must be imminent, and not merely speculative 'or potential: Sanders v. Vil- lage of Yonkers, 03 N. Y. 489. Cases for preventing and removing clouds from title depend generally upon the same principles, and will be discussed together. -The distinction between a bill of peace and a bill to remove a cloud is stated in Holland v. Challen, 110 U. S. 20, 3 Sup. Ct. 495, 28 L. ed. 52, by Field, J. ' It has been held that a cloud upon the title to personal property, even by matter appearing of record, cannot be removed : Loggie v. Chandler, 95 Me. 220, 49 Atl. 1059, 2 Ames Eq. Jur. 140 (chattel mortgage) ; but there seems no good reason for thus restricting the jurisdiction, and the instances are not infrequent where it has been exercised, in cases of void recorded chattel mort- gages, spurious issues of shares of stock, etc.: Sherman v. Fitch. 98 IMass. 59 2 Ames Eq. Jur. 141 (chattel mortgage) ; New York and New Haven R- R. Co. v. Schuyler, 17 N. Y. 592, 1 Keener 118. A party who has been in advei'se possession for a period of time, which, under the statute of limitations, vests him with a title against all the world, can bring his suit against a party claiming under a record title, to have the claim determined and adjudged null and void as against him, "The statute of limitations as against a party claiming under a written title would have per- formed but half its mission, as a statute of repose, if the party relying upon it must wait till he is attacked before he can reduce the evidence of his title 8T5 SUIT TO ui::move a cloud from title. § 1399 set aside a deed, agreement, or proceeding aifecting real estate, Avhere extrinsic evidence is necessary to show its invalidity, be- cause such instrument or proceeding may be used for annoying and injurious purposes at a time when the evidence to contest or resist it may not be as effectual as if used at once, still, if the defect appears upon its face, and a resort to extrinsic evidence is unnecessary, the reason for equitable interference does not exist, for it cannot be said that any cloud whatever is cast upon the title.- ... In the absence of statutes giving a prima facie validi- to the form of a permanent record": Arrington v. Liscom, 34 CaL 3G5, 94 Am. Dec. 722, 2 Ames Eq. Jur. 142. As to whether possession by a plaintiff is necessary before he can resort to equity to I'emove a cloud, there appears to be some conflict of opinion arising from loose and careless statements of judges, and an overlooking of the prin- ciples of equity in regard to the exercise of its jurisdiction. When the estate or interest to be protected is equitable, the jurisdiction should be exercised whether the plaintiff is in or out of possession, for under these circumstances legal remedies are not possible ; but when the estate or interest is legal in its nature, the exercise of the jurisdiction depends iipon the adequacy of legal rejnedies. Thus, for example, a plaintiff out of possession, holding the legal title, will be left to his remedy by ejectment, under ordinary circumstances: Whitehead y. Shattiick, 138 U. S. 146, 11 Sup. Ct. 276, 34 L. ed. 873. But where he is in possession, and thus unable to obtain any adequate legal relief, he may resort to equity: Bull's Appeal, 113 Pa. St. 510, 6 Atl. 540, 1 Keener 348. Where, on the other hand, a party out of possession has an equitable title, or where he holds the legal title under circumstances that the law cannot furnish him full and complete relief, his resort to equity to have a cloud removed ought not to be questioned: Echols v. Hubbard, 90 Ala. 309, 7 South. 817; Brown v. Wilson, 21 Colo. 309, 52 Am. St. Eep. 228, 40 Pac. 688; as, wiiere the plaintiff is a remainderman or reversioner unable to recover possession: Woodstock Iron Co. v. FuUenwider, 87 Ala. 584, 13 Am. St. Rep. 73, 6 South. 197; Oppenheimer v. Levi, 96 Md. 296, 54 Atl. 74, 60 L. R. A. 729. While it cannot be said that the cases are uniform on the above propo- sitions, still it is believed that the rule stated in the text and the above explanations are founded on principle and are sufficient to reconcile a vast majority of the conflicting, or apparently conflicting, judicial opinions and dicta on this question. In some of the cases the rule is so broadlj^ stated as to require a plaintiff, seeking to have a cloud removed, under all circum- stances to be in possession: Keane v. Kyne, 66 Mo. 216, 2 Ames Eq. Jur. 144: Avhile. on the other hand, it is as generally stated that possession is never essential. Both of these extreme views are open to criticism, and the cases should always be considered with reference to the facts actually before the court. ^Vhere neither party is in possession, or Avhere the lands are wild and im— occupied, it has been generally admitted that the remedy at law is inadequate and that equity has jurisdiction to prevent or remove a cloud: see Martin v. Graves. 5 Allen 601, 2 Ames Eq. Jur. 137; O'Brien v. Creitz, 10 Kan. 202, 2 Ames Eq. Jur. 146; Holland v. Challen, 110 U. S. 19, 3 Sup. Ct. 495, 28 L. ed. 52. a statutory suit to quiet title. ^ Simpson v. Lord Howden, 3 jMylne &- C. 97. 102, 103, 108, and cases cited, 2 Ames Eq. Jur. 124, 1 Keener 323; Scott v. Onderdonk, 14 N. Y. 9, 67 Am, § 131)!) EQUITY JURISPRUDEXCE. 87(5 ty to deeds or other proceedings, the following doctrine seems to be sustained by the great majority of American decisions: Where the instrument or proceeding constituting the alleged cloud is absolutely void on its face, so that no extrinsic evidence is necessary to show its invalidity, and where the instrument or pro- ceeding is not thus void on its face, but the party claiming under it. in order to enforce it, must necessarily offer evidence which will inevitably show its invalidity and destroy its efficacy, — in each of these cases the court will not exercise its jurisdiction either to re- strain or to remove a cloud, for the assumed reason that there is no cloud.^ While this doctrine may be settled by the weight of Dec. 106, 2 Allies Eq. Jur. 147, 1 Keener 331; Clark v. Davenport, 95 N. Y. 477, 1 Keener 344; Moores v. Towiisliend, 102 N. Y. 387, 7 X. E. 401, 1 Keener 355. In many states, deeds, certificates, and otlier instruments given on sales for taxes are made prima facie evidence by statute of the regularity of proceedings connected with the assessments and sales, and it is well settled tliat courts of equity will set aside such instruments for defects, although such defects are apparent on the face of the proceedings leading up to the execution of the instrument; or. in a proper case, the execution of such an instrument, prima facie valid on its face, may be enjoined. Scott v. Onderdonk, 14 N. Y. !), (i7 Am. Dec. lOG, 2 Ames Eq. Jur. 137, 1 Keener, 331. "IScott V. Onderdonk. 14 N. Y. 147, 07 Am. Dec. 106, 2 Ames Eq. Jur. 147, 1 Keener 331; VN'ashburn v. Burnham, 6:; N. Y. 132, 2 Ames Eq. Jur. 150 (extreme application of princijjle; in suit l\v (k>fciidant he must, by extrinsic proof, show power of attorney to execute the instrument, and relief therefore denied to coniphiiiiaiit) . it is a rule in many jurisdictions that where the title of both comphiinant and defendant are derived from a common source, but defendant's title appears by the records to have originated subsequently to the complainant's title, so that by an inspection of the whole record it appears that the defendant's title is prima facie inferior to that of the complainant, the complainant is still entitled to equitable relief, since he would be required, in an action by the delendant, to offer evidence of his owii prior title in order to defeat a recovery. '■'Hie true test, as we conceive, by which the qviestion, whether a deed would cast a cloud upon the title of the plaintiff, may be detennined, is this: Would tlie owner of the property, in an action of ejectment brought by the adverse party, founded upon the deed, be required to offer evidence to defeat a recovery? If such proof wovild be necessary, the cloud would exist; if the proof Avould be unnecessary, no shade would be cast by the presence of the deed" : Pixley v. Muggins, 15 Cal. 127, 2 Ames Eq. Jur. 153, by Field, C. J. (a leading case on the whole subject) ; Linnell v. Battey, 17 R. I. 241, 21 Atl. 606, 1 Keener 387. In New York, however, and a few other jurisdictions, the contrary is the rule; if it appears by the whole record that the complainant's title is paramount, there is no ch)ud to l)e removed: Bockes v. Lansing, 74 N. Y. 437. 2 Ames Ivp .Jur. 152 (complainant's title was derived from an assignee for benefit of creditors of (i. \\ ., and defendant's, through a sale by receiver of G. W.'s jiroperty, subsequently appointed. ''Those claiming under the receiver's sale could not establish any title, without first overthrowing the plaintiff's title by showing by extrinsic evidence that the assignment made b}' G. \V. was fraudulent and void"). S77 SUIT TO REMOVE A CLOUD FROM TITLE. § 13!)U authority, I iiiust express the opinion that it often operates to produce a denial of justice. It leads to the strange scene, almost daily in the courts, of defendants urging' that the instruments under which they claim are void, and tkercfure that thry ought to he penititted to stn)id unmolested, and of judges deciding that the court cannot interfere, because the deed or other instrument is void, wliile from a lousiness point of view every intelligent person knows that the instrument is a serious injury to the plaintiff's titie, gieatly depreciating its market value, and the judge himself who repeats the rule would neither buy the property while thus aft'ect- ed nor loan a dollar upon its security. This doctrine is, in truth, based uj)on mere verbal logic, rather than upon considerations of justice and expediency.* In pursuance of the general doctrine it is usually held that if the defendant's title IS derived from a complete stranger to the complainant's title, from one who never had any connection with the property, it does not constitute a cloud; as, where an execution is levied upon lands owned by complainant, issued upon a judgment, in an action to which he was not a party, against one who never had any interest in the lands : Lytle v. Sandefeer, 93 Ala. 396, 9 Soutli. 2()0, 1 Keener 383 (deed by widow of intestate not a cloud on title of his heirs) ; Thompson v. Etowah Iron Co., 91 Ga. 538, 17 S. E. 663, per Lumpkin, .)., and cases cited (an instructive opinion). But in several states such levy may be enjoined, on the general theory, obtaining in such states that a void act nnder color of judicial process is subject to injunction: Bishop v. Moorman, 98 Ind. 1, 49 Am. Rep. 731, 2 Ames Eq. Jur. 156. * This criticism has been adopted, and the doctrine repudiated in a few slates: Day Land & Cattle Co. v. .State, 68 Tex. 527, 4 S. W. 865, 1 Keener, .364. This j^assage has also been quoted in certain cases enjoining invalid execution sales, enumerated in the last note, Linnell v. Battey, Bishop v. Moorman. To the same effect are the early English case, Bromley v. Holland, 7 Ves. ,3, 21, 22: dicta of Chancellor Kent in Hamilton v. Cnmmings, 1 Johns. Ch. 517, 1 Keener 317, I Scott 104, and of Chief -Tustice Marshall in Piersoll V. Elliott, 6 Pet. 98, 8 L. ed. 334, Shep. 241, to the effect that the question should be one of discretion, not of jurisdiction, where the instrument was void on its face; see furthei-. Pom. Eq. Picm., § 734. § 1400 EQUITY JUEISPKUDENCE. SYi FIFTH GROUP. REMEDIES BY WHICH EQUITABLE OBLIGATIONS ARE SPECIFICALLY AND DIRECTLY ENFORCED. CHAPTER FIRST. SPECIFIC PERF0R:\IAXCE OF CONTRACTS. ANALYSIS. § 1400. Nature and object. § 1401. Specific perforinance of contracts; grounds of the jurisdiction. § 1402. Extent of the jurisdiction; inadequacy of damages; various Icinds of contracts; lands; chattels; things in action; awards; special contracts. § 1402a. No relief when decree would he nugatory; partnership agree- ments. § 1402b. Specific performance refused when court cannot render or en- force a decree. § 1402c. Same: arbitration agreements, etc. § 1402d. Same: contracts for personal services. § 1402e. Same: contracts for building oi' construction. § 1402f. Same: other contracts requiring continuous acts; railroad oper- ating agreements. § 1403. Extent of the jurisdiction: Impracticability of the legal rem- edy. ^ 1404. The jurisdiction discretionary. § 1405. Essential elements .and incidents: valuable consideration; cer- tainty: nuituality; fairness; hardship; doubtful title, etc. § 140G. Rights under the contract; effect of events Avithout the agency of the parties. § 1407. Performance by plaintiff a condition j^recedent. § 1408. Time as afi'ecting the right to a performance. S 1499. Enforcement of verbal contracts part performed. § 1409a. Same: acts of part performance; possession; impi'ovements. § 1409b. Same: payment. § 1409c. Same: oral promise to give. § 1409d. Same: marriage not part performance. § 1409e. S])ecific performance because of fraud, independent of doctrine of part performance. § 1409f. Partial performance with compensation. § 1410. Damages in place of a specific performance. § 1400. Nature and Object. — The remedies embraeed in this group are all purely equitable, and the rights of the complainant 879 SPECIFiq PERFORIMANCE OF CONTRACTS. § 1401 and obligations of the defendant which are enforced by their means are also equitable.^ They belong, therefore, to the exclu- sive jurisdiction of equity. Their distinctive object is to specifically enforce the complainant's equitable right, and to compel the de- fendant to specifically perform the actual equitable obligation which rests upon him. This group, as a whole, contains the specific performance of contracts, including the performance of verbal contracts for the sale of land which have been part performed, and the delivery up of specific chattels; the specific enforcement -of trusts, express and implied ; and the specific enforcement of obligations arising from fiduciary relations analogous to trusts.- § 1401. Specific Performance of Contracts — Ground of the Juris- diction. — The remedy of the specific performance of contracts is purely equitable, given as a substitute for the legal remedy of compensation, whenever the legal remedy is inadequate or impracti- cable. In the language of Lord Selborne: "The principle which is material to be considered is, that the court gives specific perform- ance instead of damages only when it can by that means do more perfect and complete justice."'^ The jurisdiction depending upon this broad principle is exercised in two classes of cases: 1. Where the subject-matter of the contract is of such a special nature, or of such a peculiar value, that the damages, when ascertained according to legal rules, would not be a just and reasonable sub- stitute for or representative of that subject-matter in the hands of the party who is entitled to its benefit ; or in other words, where the damages are inadequate ; 2. Where, from some special and prac- tical features or incidents of the contract inhering either in its ^ Although contracts may also give rise to a legal right, yet when equity compels their specific performance, it enforces the equitable obligation aris- ing from them, and not the legal duty. In most cases, it turns the vendee's equitable estate into a legal one. -The indirect specific enforcement of certain contracts by means of an injunction has already been considered in a preceding chapter {§§ 1341- 1344). and will not be here discussed. ^ Wilson V. Northampton, etc., R'y, L. R. 9 Ch. 279, 284. The foundation and measure of the jurisdiction is the desire to do justice, which the legal remedy would fail to give. This justice is primarily due to the plaintifl', but not exclusively, for the equities of the defendant are also protected. .Specific performance is, therefore, a conscious attempt on the part of the court to do complete justice to both the parties with respect to all the judicial relations growing out of the contract between them: See Buxton v. Lister, 3 Atlv. 383, 1 Ames Eq. Jur. 47, 2 Scott 21, 2 Keener 5; Wright v. Bell, 5 Price 325, 328, 329, 2 Keener 9; Adderley v. Dixon, 1 Sim. & St. 607, 010, 1 Ames Eq. Jur. 58. H. & B. 584, 2 Scott 14, 2 Keener 13; Ord v. Johnston. 1 Jur. N. S. 1063, 1064, 1 Scott 40. It follows, therefore, that the remedial right, if it exists at all, must be mutual ; each party must be able to enforce the remedy against the otiier: See post, S§ 1402, n. 2, 1405, n. 3. § 1402 EQUITY JUKlSriU'DENCE. 880 subject-matter, in its terras, or in the relations of the parties, it is impossible to arrive at a legal measure of damages at all, or at least with an}^ sufficient degree of certainty, so that no real compensation can be obtained by means of an action at law ; or in other words, where damages are impracticahle.- § 1402. Extent of the Jurisdiction — Inadequacy of Damages. — The object of the present discussion is to determine the general classes of contracts which come within the jurisdiction, and which may be specifically enforced. Whether any particular contract belonging to one of these classes will actually be thus enforced depends upon other ec^uitable elements, to be described hereafter. Lands: Where land, or any estate therein, is the subject-matter of the agreement, the inadequacy of the legal remedy is well settled, and the equitable jurisdiction is firmly established.^ When- ever a contract concerning real property is in its nature and in- cidents entii'cly unobjectionable, — when it possesses none of those features which, in ordinary language, influence the discretion of the court, — it is as inuch a matter of course for a court of equity to decree its specific performance as it is for a court of law to give damages for the breach.- Chattels: On the contrary, the doc- - The ground of the jurisdiction may be practically stated thus: that an award of damages will not put the party in a situation as beneficial to him as if the agreement were specifically performed. ^ Tlie remedy of specific performance is sometimes spoken of as one of 1 he most ancient heads of equity jurisdiction. Professor Ames, however ( 1 Green Bag, iiG; 1 Ames, Cas. Eq. Jur. 37), is of the opinion that the cases relied on to sixpport this belief were instances of other kinds of relief, and that with one exce])tion. dating from H.IS, no clear instance of specific performance is to be found earlier than the middle of the sixteenth centurj'. Soon after that, however, the remedy became common, as applied to contracts concerning land. The origin and early grounds of the jurisdiction concerning land contracts are thus conjectural. The accepted explanation of the rule that specific performance of such contracts is enforced may be found in the following passages: Adder- ley V. Dixon, 1 Sim. & St. (107. 1 Ames Eq. Jur. .58, H. & B. 584, 2 Scott 14, 2 Keener 1.3: '"Courts of equity decree the specific performance of contracts, not uj)on any distinction between realty and personalty, but because damages at law may not in the particular case afford a complete remedy. Thus, a court of equity decrees performance of a contract for land, not because of the real nature of the land, but because damages at law, which must be calculated upon the general money value of the land, may not be a comjilete remedy to the purchaser, to whom the land may have a peculiar and special value." Cud V. Kutter, 1 P. W'ms. 570, 2 Scott 44, 1 Keener 1 : "One parcel of land may vary from, and be more commodious, pleasant, or convenient than another parcel of land." It should be carefully obs(>rved, however, that the remedy in equity for the specific performance of land contracts is not refused because, in the individual case, these reasons may not hold good and damages in an action at la\\- may be adequate relief: See ante, § 221. -Among (vtiicr contracts thus enforced arc agreements to give or renew a lease: Buckland v. 'Paj)illoji, L. R. 2 Ch. App. G7, 2 Keener 442; contracts b81 sri:ciFic i'i:i;fok.maxck of contkacts. § 140'<:' trine is equally well settled that eciuity will not, in general, decree the specilic i)errornian("e of contracts concerning chattels, because for mortgages: Hermann v. Hodges, L. R. IG Eq. 18, 1 Ames Eq. Jur. 01, 2 Scott 58, 2 Keener 56; Hicks v. Turck, 72 Mich. 311, 40 N. W. 339, H. & B. 711, 2 Keener 57; family settlements: Wistar's Appeal, 80 Pa. St. 484; bonds to convey land: Ewins v. (lordon, 49 N. H. 444; judicial sales: Gregory v. Tingley. IS Neb. 319, 25 N. W. S8. The enforcement of contracts concerning land in another country or state is described in §§ 428 et seq., ante. Contract to Malce a Will of Lands. — A contract to devise land, though looked upon Avith some disfavor as a non-testamentary metliod of disposition of property at death, and consequently not subject to the statute of wills, nrll yet be in effect enforced by equity when the contract is clear, definite, and without doubt: Cassey v. Fitton (1679), 2 Hargrave, Juridicial Argu- ments. 296, 1 Ames Eq. Jur. 145; Johnson v. Hubbell, 10 N. J. Eq. 332. 04 Am. Dec. 773; Bolman v. Overall, 80 Ala. 451, 60 Am. Rep. 107, 2 South. 624. It is obvious that equity cannot compel direct specific performance of t lie- contract to devise land by ordering the promisor to make the devise before liis death, as performance is not due imtil the time of death. But e(iuity will tlo wliat is ecjuivalent to. giving specific performance, by fastening a trust upon the land, in the heir or devisee, and enforcing conveyance by the representative holding the legal title in favor of the purchaser under the contract to devise. Specific i)erforma7ice in favor of vendor. — It is Avell settled, with scarcely any dissent, that specffic performance is granted in favor of a vendor of land as freely as in favor of a vendee, though the relief actually obtained by him is usually only a recovery of money — the purchase price; "it differs from the suit to enforce a vendor's lien in the fact that the judgment is for the recovery of the money generally, and not out of the land itself as a special fund:" 1 Pom. Eq. Jur., § 112, note 1. Three theories have been advanced lo explain the rule: (1) It is said tliat the vendor's remedy in law by dam- ages is inadequate, since the measure of damages is the difference between liie agreed price and the market value, whereas the vendor might for par- ticular reasons stand in need of the whole sum agreed to be paid: Lewis v. Lechmere, 10 Mod. 503. See, also, Hodges v. Kowing. 58 Conn. 12, IS Atl. !I7!I, 7 L. R. A. 87, H. & B. 585, 2 Scott 62, 2 Keener 95. The objection to this theo- ry is. that it proves too much; since, if the same test were applied generally, dam- ages might be an inadequate remed}' in almost every instance of sale and ]Mirchase, of chattels as well as of land. (2) It is said that by the doctrine ot' ('(luitable conversion the A^endee is a trustee of the purchase price for the Acndor, and the vendor, in obtaining specific performance, enforces this trust : ante, S 221, note; Lewis v. Lechmere. 10 Mod. 503. To this it may be answered, that it proves too little; for t'he doctrine of equitable conversion is not supposed io extend to contracts for the sale and purchase of chattels or tilings in action, yet the eases are not infrequent where such contracts have been enforced at the suit of the vendors therein: See Withy v. Cottle; Adderley v. Dixon; Cogent V. (iihson, 33 Beav. .557 (vendor of patent); Kenney v. Wexham, infra; Bum- gardner v. Leavitt, 35 W. Va. 194, 13 S. E. 67, 12 L. R. A. 776, H. & B. 5SS. (3) The rule is more satisfactorily accounted for by reference to the doctrine of mutuality; viz.. that where an equitable remedial right in the vendee is recognized, a corresjionding remedial right should be admitted in fav(n" of the' ven to a partner the interests in property to which by the partnership agreement he is entitled.* § 1402b. Specific Performance Refused When Court cannot Ren- der or Enforce a Decree. — "Although the contract is valid, and the defendant is able to do what he has undertaken to do, if. through the want of appropriate means and instrumentalities, the court is unable, while pursuing its ordinary modes of administer- ing justice, either to render a decree or to enforce the decree when made, then the remedy will be refused. Cases ivliere the court cannot render a decree: The following species of contracts will not be thus enforced: Agreements concerning the manufacture and sale of secret medicines and other secret commodities, where the contract recognizes the secret as not to be disclosed.^ Contracts foi' the sale or transfer of a good-will, separate from or unconnected Iraet to lend or to borrow money cannot be specifically enforced: Rogers v. Cliallis, 27 Beav. 175, 1 Ames Eq. Jur. Gl, 2 Scott 60, 2 Keener 60 (agreement to borrow money not enforced, the court saying: "It is a simple money demand: the plaintiff says, I have sustained a pecuniary loss by my money remainijig idle, and by my not getting so good an investment for it as you contracted to give me. Tiiis is a mere matter of calculation, and a jury would easily assess the amount of the damage which the plaintiff has sustained") ; Sichel v. Rosenthal. 30 Beav. 371, 2 Keener 72 (not of contract to lend money). The remedy lias been applied to a great variety of special agreements, where tlie legal relief was inadequate: Very v. Levy, 13 How. 345, 14 L. ed. 173. 2 Keener 101 (agreement to accept goods in satisfaction of a bond and mortgage). ' Pom. p]q. .Jur.. § 1405, note. - Hercy v. Birch, 9 Ves. 357. See, also, JSomerby v. Buntin, 118 Mass. 27'.K 10 Am. Rep. 4.59. 2 Keener 78. ■■■ Seott V. Rayment, L. R. 7 Eq. 112, 2 Keener 75; Hyer v. Richmond Trac- tion Co.. 108 U. 8. 471, 18 Sup. Ct. 114, 42 L. ed. 547. It is clear that this broader statement cannot be sui)ported on the theory stated at the beginning of the section, but rather depends upon the doctrine described in the following sections. 'Somerby v. Buntin, 118 IMass. 27fl, 19 Am. Rep. 459, 2 Keener 78. In Homfray v. Eothergill, L. R. 1 Eq. 567, 2 Keener 26, a provision in a partner- ship deed that the other partners should have the first opportunity to purchase the share of any partner desiring to sell was specifically enforced. See, also, England v. Curling, 8 Beav. 129, 2 Keener 68. 'Newbery v. .Tames, 2 J\Ier. 446, 2 Scott 26. § 1402d EQUITY JURISPRUDENCE. 886 with the business and premises of which it is an incident.^ Cases where the court cannot enforce its decree: This class includes the following species cf contracts, for which the eciuitable remed}^ is refused;^" the more important of which, together with the ex- ceptions to the rule of non-enforcement, are described in the fol- lowing paragraphs : Agreements to submit to arbitration, and eon- tracts for sale at a price to be fixed by valuers; contracts for per- sonal services; contracts whose performance would be continuous, and would recpiire protracted supervision and direction, including, especially, contracts for building and construction, for w^orking mines, for operating railroads, and the like. § 1402c. Same. Arbitration Agreements, etc. — An agreement to submit a matter to arbitration, or to sell at a price to be fixed by valuers, if the mode of fixing the price is an essential part of the contract, will not be specifically enforced, since it is be- yond the power of the court to compel arbitrators to agree; nor will the court itself fix the j^rice, since that would be to make a new agreement for the parties.^ § 1402d. Same. Contracts for Personal Services. — It is a fa- miliar rule that contracts for personal services, where the full performance rests upon the personal will of the contracting party, will not be specifically enforced against him.^ It is also generally true that they will not be enforced where the plaintiff is the one who has contracted to render the services^ and there has been no full performance on his part, since nuituality in the equitable remedy is then lacking.- The indirect enforcement of contracts - Bozou V. Fallow, 1 ^ler. 459. But where the good-will is sold and trans- ferred, together with the business and premises, the agreement may be directly enforced, or negatively enforced by an injunction: Darbey v. Whitakei-, 4 Drew 134, 139, 140, 2 Keener 129; Whittaker v. Howe, 3 Beav. 383, 2 Keener 20!). See, also, ante, §§ 1344, 13,5.5. ' Pom. Eq. Jur. § 1405, n. 10. 'Pom. Spec. Perf., §§ 291, 309, 149-151; Milnes v. Gery, 14 Ves. 100, 2 Keener 111; Agar v. Macklew, 2 8im. & St. 418, 1 Ames Eq. Jur. 67; Vickers V. Vickers, L. R. 4 Eq. 529, 2 Keener 132. For instance where specific per- formance was decreed, the court fixing the value, see Town of Bristol v. Bristol & \V. Waterworks, 19 R. 1. 413, 34 Atl. 359, 32 L. R. A. 740 (the arbitration clause held to be a subsidiaiy j^art of the agreement, and the value therefore fixed by reference to the master). As to enforcing aicards, see ante, § 1402, n. 5. 'Pickering v. Bishop of Ely, 2 Younge & C. Ch. 249; Metropolitan Exhi-^ bition Co. v. Ewing, 42 Fed. 198, 7 L. R. A. 381, H. & B. 631; Rogers Mfg. Co. v. Rogers, 58 Conn. 356, 18 Am. St. Rep, 278, 20 Atl. 467, 7 L. R. A. 771), H. & B. 629, Shep. 294, 2 Keener 279; ante, § 1343. The opinion of Chancellor Walworth, in De Rivafinoli v. Corsetti, 4 Paige 270, 25 Am. Dec. 532, is a locus classicus of judicial humor. MVakeham v. Barker, 82 Cal. 46, 22 Pac. 1131, 1 Ames Eq. Jur. 87, and post, § 1405, n. 3. 887 SPECIFIC PERFOR.MAXCE OF CON TRACTS. § 140'2e for services of a unique and extraordinary character, by enjoin- ing the breach of an express or implied stipulation not to do acts inconsistent with the rendering of the services, is a subject that has been already treated.^ § 1402e. Same. Contracts for Building or Construction. — The general rule has long been settled, after a period of conflict and uncertainty in the early eases,^ that contracts for building and construction, and contracts to make repairs, will not be enforced 'in specie/^ on account of the inconvenience of enforcing a decree by the process of attachment for contempt, wheu numerous ques- tions must usually arise under the decree in such a case as to whether there has been substantial performance, whether defective per- formance may be excused, what compensation should be made for the deficiency, and the like. Moreover, if the building i.s to be done on the plaintiff's land, the remedy at law is usually adequate, since he maj'- do the work himself and sue at law for the cost. Several exceptions have been made to the rule by the English courts.^ One of these exceptions has become firmly established ^, See ante, § 1343. Mn Jones V. Parker, 163 Mass. 564, 47 Am. St. Rep. 485, 40 X. E. 1044, 1 Ames Eq. Jur. 73, 2 Scott 83, 2 Keener 192, Holmes, J., makes the sweeping assertion that courts of equity "have enforced such contracts from the earliest days to the present time"; but it has been pointed out that the cases dating from the fifteenth century bj^ which the learned jvidge supports his assertion are probably not cases of specific performance at all : 1 Ames Cas. Eq. Jur. 68, note 4. In tlie eighteenth century, however, such contracts were enforced rather frequently. Lord Hardwicke, in City of London v. Nash (1747), 3 Atk. 512, made the distinction that a covenant to build could be enforced, ''for to build is one entire single thing": but not a covenant to repair. By the end of that century, however, this distinction was abandoned: Lucas v. Comer- ford (1790), 1 Ves. Jr. 235, 3 Bro. C. C. 166. - The authorities are fully reviewed in the opinion of Mr. .Justice Miller in Ross V. Union Pac. Ry. Co., 1 Woohv. 26, Fed. Cas. No. 12,080, 2 Scott 6."). 2 Keener 145 (a railroad construction contract). See, also, Texas & P. Ry. Co. v. Marshall, 136 V. S. 393, 407. 10 Sup. Ct. 846. 34 L. ed. 385; Beck v. Allison, 56 N. Y. 366. 15 Am. Rep. 430, 1 Ames Eq. .Tur. 70, 2 Keener 167, 2 ScotI 79 (lessor's covenant to repair). SSee 4 Pom. f]q. .Jur.. § 1402, note 6. "I must confess that T cannot alto- gether understand the principle upon which courts of equity have acted in sometimes granting orders for specific performance in these eases and some- times not In early times they seem to have granted decrees for specific performance in such cases. [See note 1, supra.] Then came a period in which they would not grant such decrees on the groimd that the courts could not undertake to supervise the performance of the contract. Later on they seem to have attached less importance to this consideration, and returned to some extent to the more ancient practice, holding that they could order specific per- formance in certain cases in which the works were specified by the contract in a sufficiently definite manner"; Collins. L. J., in Mayor, etc., of Wolverhampton y. Emmons, (1901) 1 K. B. 515, 1 Ames Eq. Jur. 76. § 14U-3f EQUITY JURISPRUDENCE. 888 ''Where there is a definite contract, by which a person, who has acquired land in consideration thereof, has agreed to erect on the land so acquired a building [or other structure] of which the particulars are clearly specified, and the erection of which is of an importance to the other party which cannot adequately be measured by pecuniary damages . . . specific performance ought to be ordered/"^ § 1402f. Same. Other Contracts Requiring Continuous Acts — Railroad Operating Agreements. — The general doctrine that equity will not affirmatively decree specific performance of a contract re- quiring continuous acts, especially if those acts involve skill, judg- ment, and technical knowledge^ has been broken into, of late "* A. L. Sniitli, M. IJ., in ■Mayor, etc., of Wolverhampton, v. Ennnons, [li)01] \ K. a. 515, 1 Ames Eq. Jur. 76; Evan v. Mutual Tontine, etc., Assn., [1893] 1 Ch. 116, 128, 2 Keener 179. 8ee, also, Storer v. Great Western Ry. Co., 2 Younge & C. Ch. 48, 2 Keener 141 (a leading case; contract by railway com- ])any to build archway under track which divided plaintiff's farm) ; Wilson v. Furness Ky. Co., L. R. 9 Eq. 28, 2 Keener 164 (agreement to build road and wharf on land conveyed; per James, V. C. "It would be monstrous if the company, having got the whole benefit of the agreement, could turn roiind and say, 'This is a sort of tiling which the court finds a difficulty in doing, and will not do.' Rather than allow svieh a gross piece of dishonesty to go unre- dressed the court would struggle ^\•ith any amount of difficulties in order to perform the agreement"). The American cases directlj^ in point are not so numerous, but clearly support the foregoing exception; see, e. g., Lawrence v. (Saratoga Lake Ry. Co., .36 Hun 467, 2 Keener 171 (an instructive opinion; agreement by railway to build bridges for overhead crossings, and a "neat and tasteful station buihling," enforced). The decision in .lones v. Parker, 16.3 ]Mass. 564. 47 Am. St. Rep. 485. 40 X. E. 1044, 1 Ames Eq. Jur. 73, 2 Scott 83, 2 Keener 192 (Holmes, J.), that a covenant by a lessor "reasonably to heat and light the demised premises" from the time when possession was taken by the lessee, should be specifically enforced by a decree ordering the installation of the necessary apparatus, is clearly not within tlie above exception, and appears to be unsupported by modern aulhority; see contra, e. g., Keith v. National Tel. Co., [1894] 2 Ch. 147, 2 Keener 188, infra, in next note. ' For further instances of specific performance refused because the execu- tion of the decree would require supervision of acts, on part of plaintiff or defendant, extending over a considerable period of time; see Flint v. Brandon. 8 Ves. 159. 1 Ames Eq. .lur. 69, 2 Scott 70, 2 Keener 137 (1803; working a gravel pit): Blackett v. Rates. L. R. 1 Ch. Ai)p. 117, 2 Keener 154 (1865; agreement relating to repair and use of railway) ; Powell Duffryn Coal Co. v. Taff Vale Ry. Co.. L. R. 9 Ch. App. 331, 1 Ames Eq. Jur. 79 (1874; agreement as to operating railway) ; Ryan v. Mutual Tontine Westminster Chambers Assn.. [1893] 1 Ch. 116. 2 Keener 179 (by landlord, to appoint a porter who should perform various services) ; Keith, Prowse & Co. v. Nat. Telephone Co., [1894] 2 Ch. 147, 2 Keener 188 (to maintain telephone wires and apparatus for plain- tiff; but injunction against cutting wires) ; Rutland Marble Co. v. Ripley, 10 Wall. 339, 358, 19 L. ed. 955 (working a quarry) ; Texas & P. R. Co. v. Mar- sliaH. 136 U. S. 406, 10 Sup. Ct. 846, 34 L. ed. 390 (agreement by railroad. 889 SPECll'IC PERFORMANCE OF CONTRACTS. § 140'3f years, by an important exception in favor of certain contracts relat- ing; to the operation of railroads. In analogy to the cases men- tioned in the last section, where the company, in consideration of the conveyance to it of land, was compelled to comply with its agreement to erect certain structures for the grantor's benefit, its reasonable agreement to maintain a station on the land con- veyed for the plaintiff's convenience, and to stop trains thereat, will be enforced,- if that is consistent with the company's larger duty to operate its road so as to promote the public convenience.'' But the exception has taken a much wider scope than this. Track- age and operating contracts between railroads, of the utmost com- plexity, have recently been the subject of decrees of specific per- formance, although in making their decrees the courts have con- in consideration of large gift of land and money by plaintiff town, to establish its offices and shops there) ; Electric L. Co. v. Mobile & S. H. Ry. Co., 109 Ala. 190, 5'5 Am. 8t. Rep. 927, 19 South. 721 (agreement by plaintiff to furnish electric power, by defendant to operate cars) ; Stanton v. Singleton, 126 CaL 657, 59 Pac. 146, 47 L. R. A. 334 (plaintiff's agreement to develop and operate mines) ; see 68 Am. St. Rep. 753-762. for an excellent note reviewing the cases on this subject. The objections to the exercise of tlie jurisdiction are forciblj' stated in a leading case: "Even if the contract was sufficiently specific, so that the party, when ordered to operate the railroad, wovild know the manner and mode in Avhich the order was to be obeyed, still the question of obedience to the order must necessarily be left open. And the question of obedience to such an order might come uj) for solution, not once, as in the case of the archway, the erection of which was ordered in Storer v. Great Western Railway [supra, § 1402e, note 4], but in instances innumerable, and for an indefinite time. Instead of the final order being the end of litigation, it would be its fruitful and continuous source, and that, too. of litigation not in tlie regular course of judicial yiro- ceedings, but irregularly, on a summary application. And such application to be made by either party, one when he conceived there had not been a faithful compliance with the order, and the other when exemption from some provision might be claimed, on the ground of inability or unforeseen events" ; Port Clinton R. R. Co. v. Cleveland & T. R. Co., 13 Ohio St. 544, 556. The whole opinion in this case is one of the most instructive on the general subject. \Miile the passage above quoted states as forcibly as possible the reason usually given in support of the rule, — viz., the inconvenience to the court, — it seems to the editor that there is some ground for conjecture that the rule really rests upon a deeper reason of public policy; a feeling, perhaps not ex- pressed in the decisions, that the daily and hourly ordering of the affairs of an individual or a group of individuals, for an indefinite term of years, in obedience to the terms of a chancery decree, and Avith its personal sanction Tor disobedience, is, in effect, such an impairment of personal freedom as is hostile to -the whole spirit of English and American institutions. 'Hood V. North Eastern Ey. Co., L. R. 8 Eq. 666, 5 Ch. 525, 1 Ames Eq. Jur. S2, 2 Scott 76. 2 Keener 160 flSHH]: Lrnvrence v. Saratoga Lake I^y. Co.. 3r, Hun. 467. 2 Keener 171. "^ Conger v. New York, W. 8. & B. R. R. Co., 120 X. Y. 29, 23 N. E. 983. 1 Ames Eq. Jur. 412, H. & B. 723, 2 Scott 304. 2 Keener 1046. § 1-1'J3 ECiUiTY jLi:i.sL'ULDi;xci;. 890 ceded that they would be called upon from time to time to alter and adapt to changing circumstances their regulations for carrying the decrees into effect, during a long period of years."* In the first of the series of cases an important element affecting the de- cision was a direct public benefit that resulted from not leaving the complainant to its remedy of damages; but no such element appears to have been present in the cases that followed this pre- cedent. Whether this remarkable series of decisions is to be taken as a virtual abandonment, on the part of the influential courts which rendered them, of the rule against specific enforcement of continuing contracts, or merely as an arbitrary exception in favor of operating agreements among railroads, is a question on which, unfortunately, these decisions themselves shed little light.^ § 1403. Extent of the Jurisdiction. Impracticability of a Legal Remedy. — Tliis ground of the jurisdiction includes two classes of cases : 1. Where, from the lack of some legal formality or con- dition in the contract, no action at law can be maintained; 2. Where, from some peculiar feature of the contract, either in its Moy V. St. Louis, 138 U. 8. 1, 11 Sup. Ct. 243. 34 L. ed. 843 (1891; Blatcli- ford, J.) ; L nion Pac. Ky. Co. v. Chicago, R. 1. & P. Ry. Co. 163 U. S. 564, 10 Sup. Ct. 1173, 41 L. ed. 265 (1896; Fuller, C. J.), affirming Union. Pac. Ry. Co. V. Chicago, R. I. & P. Ry. Co., 51 Fed. 309, 2 C. C. A. 174, 10 U. S. App. •IS (1892; Sanborn, Cir. J.), and Chicago, R. I. & P. Rj. Co. v. Union Pac. l!y. Co., 47 Fed. 15 (ISOl; Bre\ver, .J.); Prospect Park & C. I. R. R. Co. v. Coney Island & B. R. R. Co. (1894), 144 N. Y. 152, 39 N. E. 17, 26 L. R. A. (ilO, 1 Ames Eq. .Jur. 83, H. & B. 641; Schmidt v. Louisville & N. R. Co., 101 Ky. 441, 41 S. W. 1013. 38 L. R. A. 809. \n Joy V. St. Louis, supra, tlie A. company acquired, under contract, the viiiht to riui its trains over the line of the B company, through a large public ]iark adjacent to tlie city of St. Louis, with the right to numerous terminal facilities. The contract was unlimited in time, and contained complicated pro- visions regulating the running of trains, and prescribing the duties of super- intendents, train masters, and other officers. A special reason for decreeing specific performance was found in tlie fact that railroads entering St. Louis from the west must cross this park and that it was desirable, in order to maintain its usefulness as a park, that tliey should all use a single set of tracks. Contra to tliese cases, see the instructive opinion in Port Clinton ±1. \l. Co. V. Cleveland & T. R. R. Co., 13 Oliio St. 544, an extract from whicli i-< given su])ra, note 1. "Several of the opinions meet the objection to tlie exercise of tlie jurisdiction in these cases by pointing to the experience of the courts of equity in rail- road management tiirough the instrumentality of receivers; one of them (47 Fed. 26, per Brewer, .1.)' even indulges in frank expressions of admiration for such management ; and in the Kentucky case the lower court is actually directed to place the road in the hands of a receiver "if that is deemed best" for fhe purpose of enforcing its orders. It hardly needs to be pointed out that a receiver has hitherto been supposed to be a provisional and temporary remedy, not one extending over a period of thirty or of nine hundred and ninety-nine vears. 891 SPECIFIC Pi:i{FOin[AXCE OF COXTHACTS. § 1401- sub.ject-matter or in its terms, or in the relations of the parties, it is impossible to arrive at a legal measure of damages at all, or at least with any sufificient degree of certainty.^ The most im- portant instances in which the jurisdiction is referable to this ground are, — 1. Contracts which the plaintifl' has not fully per- formed, or even cannot fully perform, on his part, but which equity enforces with compensation for his partial failure ; 2. Contracts invalid at law, especially verbal contracts concerning land; 3. Contracts which are incomplete in their terms. § 1404. The Jurisdiction Discretionary. — The ob.ject of the fore- going paragraphs is to formulate the general rules which deter- mine the classes of contracts in which the equitable jurisdiction may be exercised. But even when a particular contract belongs to such a cla.ss, the right to its performance is not absolute, like the right to recover a legal judgment. The granting the equitable remedy is, in the language ordinarily used, a matter of discre- tion, not of an arbitrary, capricious discretion, but of a sound judicial discretion, controlled by established principles of equity, and exercised upon a consideration of all the circumstances of each particular case. Where, however, the contract is in writing, is certain in its terms, is for a valuable consideration, is fair and just in all its provisions, and is capable of being enforced without hardship to either party, it is as much a matter of course for a court of equity to decree its specific performance as for a court of law to award a judgment of damages for its breach. This is the ordinary language of judges and text-writers. The term ''dis- cretionary" as thus used is, in my opinion, misleading and inac- curate. The remedy of specific performance is governed by the same general rules which control the administration of all other * Under this head are included, — 1. Contracts in which the plaintift" has not performed, or even cannot perform, all the conditions on his part, so as to maintain an action at law, but which equity still may treat as bind- ing and enforce. In siich cases, if the contract is othenvise a proper one, equity will decree a specific performance with such allowance or compensations as are just; even where t'^-^ partial failure or inability results from the plain- tiff's own fault: See post. § 1409f; Day v. Hunt, 112 N. Y. 191, 19 N. E. 414. 2 Keener 1114. 2. Contracts not valid at all at law, but which equity treats as binding on the conscience. By far the most important are verbal contracts concerning land which are invalid by the statute of frauds, but whicli if part performed, equity will enforce: See post. § 1409, where this subject is treated. Under this head are also included certain agreements void at the old common law, I)ut which equity enforces; e. g.. assignments of expectancies; agreements to assign things in action ; contracts between a man and woman, who afterwards marry; Cannel v. Buckle. 2 P. Wms. 243, 1 Scott 100. 3. Contracts incomplete in their terms: Buxton v. Lister, 3 Atk. 383, 1 Ames Eq. Jur. 47, 2 Scott 21, 2 Keener 5. § 1405 EQUITY JLinsPKlDEXCE. 802 equitable remedies. The right to it depends upon elements, condi- tions, and incidents, which eiiuity regards as essential to the ad- ministration of all its peculiar modes of relief. AYhen all these elements, conditions, and incidents exist, the remedial right is per- fect in eqiuty.^ So far as these essential elements and conditions do not relate to the existence of contracts binding in equity, they are nothing but expressions and applications of the fundamental l)rinciples, he who seeks e([uity must do e(iuity, and he W'ho comes into e([uity must come with clean hands. - § 1405, Essential^lements and Incidents. — Assuming that a con- tract has been completely concluded, and that it belongs to a class capable of being enforced, it must still possess certain es- sential elements and incidents, in order that a court of equity may exercise the jurisdiction to compel its performance. Some of these elements affect its validity; others its equitable character. It must b( upon a valuable consideration.^ It must be reasonably certain as to its subject-matter, its stipulations, its purposes, its parties, and the circumstances under which it was made.- It must be, in general, mutual in its obligation and in its remedy." The con- ' These elements, conditions and incidents, as collected from the cases, are tiie following: The contract must be concluded, certain, unambiguous, mutual, and upon a valuable consideration; it must be perfectly fair in all its parts; free from any misrepresentation or misapprehension, fraud or mistake, im- position or surprise; not an unconscionable or hard bargain; and its per- formance not oppressive upon the defendant; and finally, it must be capable of specific execution through a decree of the court. - For instances of the application of these maxims, see ante, §§ 392, ."^O;?, 400, 459. ' it nuist be a valuable, and not merely a good, consitleration, as blood and atlectioii; and a seal does not, for this purpose, import a valuable considera- tion: -lettVrys v. .Jetferys, Craig & P. 138, 1 Ames Eq. Jur. 261, 1 Scott 303, 2 Scott, 154, 2 Keener 700: Lamprey v. Lamprey, 29 :Minn. 15(5. 12 X. \V. 514. See, also, ante, S§ 370, 1293. As to inadequacy of the consideration as a de- fense, see ante, §§ 925-92S. ^^See Hamilton v. Harvey, 121 111. 409, 2 Am. St. Rep. 118 (uncertainty as to description) ; Russell v. Agar, 121 Cal. 396, 66 Am. St. Rep. 35, 53 Rac. 920 (promise to bequeath an undeterminable amount) ; as illustrating the correct use of parol evidence of surrounding circumstances to identify a subject- niatter vaguely described, see Minneapolis, etc., R. R. Co. v. Cox, 76 Iowa 306, 14 Am. St. Rep. 216; R. L & P. R. Co. v. Dimick, 144 111. 628, 32 N. E. 291, 19 L. R. A. 105; Peay v. Seigler, 48 S. C. 496, 59 Am. St. Rep. 731, 26 S. E. 885. ^Mutuality. — This doctrine is constantly stated by tlie courts, but there are so many exceptions that the rule is far from universal. It has no ap])lication to options for the purchase or sale of lands: See ^IcConnick v. Stephany, 57 N. J. Eq. 257, 41 Atl. 840. 1 Ames Eq. .Tin-. 431: O'Brien v. BoUand. 166 Mass. 481, 41 N. E. 602, 1 Ames Eq. Jur. 433; Borel v. Mead. 3 X. Mvx. 84, 2 Pac. 222, 1 Ames Eq. Jur. 434 : fomi>are C.raybill v. Brugh. 89 Va. 895. 37 Ani. St. Rep. 894, 17 S. E. 558, 21 L. R. A. 133, H. & B. 677. Lack of mutual- 893 SPECIFIC I'KUFUU.MANCK OF CONTRACTS. § 1105 tract must be free from any fraud, misrepresentation even thoiii^cli not fraudulent, mistake, or illegality.'* The elements which pe- culiarly affect the equitable character of the agreement and of the remedy are the following: The contract must be perfectly fair, equal, and just in its terms and in its circumstances." The cou- ity ill the obligation as well as in the remedy is illustrated by the rnle tluit an infant cannot have specific performance of liis contract, since the act of liling the bill by liis next friend cannot bind him: Flight v. Bolland, 4 Russ. 299, 1 Ames Eq. Jur. 422, 2 Scott 136, 2 Keener 800; but if the infant on reaching his majority files the bill on liis voidable conti-act, the lack (if mutuality is cured; Clayton v. Ashdown, 9 \'in. Abr. 393, pi. 2, 1 Ames Eq. Jur. 421, 2 Scott 133. Similarly, where husband and wife seek to enforce their con- tract against the vendee, the filing of the bill makes the remedy mutual: FennoUy v. Anderson, 1 Ir. Ch. 706, 1 Ames Eq. Jur. 423, 2 Scott 137. So, it is uniformly held that specific performance may be had of a contract for the sale of hinds signed only by the defendant, and therefore not binding on the plaintiti' until the bill is filed: Hatton v. Gray, 2 Cas. Ch. 164, 1 Ames Eq. Jur. 421. 2 Scott 129; Forthman v. Deters, 206 111. 159, 99 Am. St. Rep. 145, 69 N. E. 97. The doctrine as to mutuality of remedy finds its most frequent application in the eases where the plaintiff's promise calls for personal services, con- tinuous actSj etc., and is therefore of such a character that a court of equity cannot conveniently enforce a decree for specific performance: See supra, § 1402d; Hills v. Croll, 2 Phill. Ch. 60, 1 Ames Eq. Jur. 427, 2 Scott 90, 2 Keener 216; Stocker v. Wedderburn, 3 Kay & J. 393, 2 Keener 801; Iron Age Tub. Co. V. W. U. Tel. Co., 83 Ala. 498, 3 Am. St. Rep. 758, 3 South. 449. 2 Keener 834; Marble Co. v. Ripley, 10 Wall. 339, 19 L. ed. 955, Shep. 251; or where a decree would be nugatory, because the contract is terminable at the will of the plaintifi'r Rust" v. Conrad, 47 Mich. 449, 41 Am. Rep. 730, 11 N. W. 265, 1 Ames Eq. Jur. 435, 2 Scott 144; Marble Co. v. Ripley, supra. If. how- over, in the first class of cases the plaintiff has already performed liis unen- forceable promise, the lack of mutuality in remedy existing at the inception of the contract is no defense: Howe v. Watson, 179 Mass. 30, 60 N. E. 415, 1 Ames Eq. Jur. 429. In both classes of cases, if defendant's agreement con tains a negative clause, the courts have frequently found it possible to do substantial justice by enjoining violation of his agreement, and making the injunction conditional on the continued performance by the plaintiff of liis own unenforceable promise; if the plaintiff then fails to perform the injunc- tion will be dissolved: Singer Sewing Machine Co. v. Union Button-Hole Co., 1 Holmes 253, Fed. Cas. No. 12,904, 1 Ames Eq. Jur. 438, 2 Keener 255; and see ante, § 1343. *The effect of these incidents upon contracts in equity, and upon the remedy of specific performance, has already been discussed. As to parol evidence of mistake, fraud, or surprise, see §§ 857-859; defense of mistake in suits for specific performance: § 860; proof of mistake on plaintiff's part in same suits: §§ 861-863; effect of statute of frauds on the proof of mistake, fraud, or sur- prise: §§ 864-867. As to misrepresentations as a deferse, even when not intentional or witii knowledge, see S 889; also §899. Non-disclosure of facts a defense: § 905; inadequacy of consideration as a defense: §§ 925-928: illegal contracts, in general: §§ 929-936: 937-942. * If, then, the contract itself is unfair, onesided, unjust, unconscionable, or § 1405 EQUITY JUKlbPKUDEKCi:. S94 tract and the situation of the parties must be such that the rem- edy of specific performance will not be harsh or oppressive.'^ The affected by any other inequitable feature; or if its enforcement would be oppres- sive or hard on the defendant, or would prevent his enjoyment of his o^\^^ rights, or would work any injustice; or if the plaintiff has obtained it by sharp and unscrupulous practices, by overreaching, by trickery, by taking undue advantage of his position, by non-disclosure of material facts, or by any other unconsci- entious means, — then a specific performance will be refused. It necessarily folloAvs that a less strong case is sufficient to defeat a suit for a specific per- formance than is requisite to obtain the remedy. See, also, ante, § 948, as to pecuniary distress, illiteracy, etc.; Fish v, Leser, 69 111. 394, H. & B. 650; § 949, intoxication which is not a ground for rescission may be a defense to specific performance: Cragg v. Holme. 18 Ves. 14, n. 12. 1 Ames Eq. .Tur. 417; § 928, inadeqviacy of consideration coupled with other inequitable incidents: Higgins V. Butler, 78 Me. 520, 7 Atl. 276, 1 Ames Eq. Jur. 419: and see Friend v. Lamb, 155 Pa. St. 529, 34 Am. St. Rep. 672, 25 Atl. 577. 1 Ames Eq. Jur. 408. 2 Keener 1066, 2 Scott 306 (improvident contract of purchase by a married woman) ; Kelley v. York Cliffs Improvement Co.. 94 Me. 374, 47 Atl. 898, 1 Ames Eq. Jur. 402 (contract of sale which by inadvertence of the vendor, per- mitted the plaintiff to pay in almost worthless stock at its par value, not specifically enforced) ; inadvertence, as where a covenant bound trustees per- sonally in a warranty of land sold under the trust: Wedgwood v. Adams, 6 Beav. (iOO, 1 Ames Eq. Jur. 400: or Avliere. by the inadvertent act of a third party, there was a suppression of the bidding at an auction sale: Twining v. Morrice, 2 Bro. G. C. 326, 1 Ames Eq. Jur. 416. "This rule generally operates in favor of defendants; but may be invoked by a plaintiff when a defendant demands the remedy by counterclaim or cross— com])laint. The oppression or hardship may result from unconscionable provisions cr currency in payment). This is especially true where the plaintiff's own coiuluct is the cause of the hardship: Dowson v. Solomon, 1 Drew & S. 1, 1 Ames Eq. Jui'. 418 (plaintiff allowed insurance to expire, gave no notice to defendant and the house burned). Specific performance will be refused where it would be of little benefit to the plaintiff and greatly injure defendant: Clark V. Rochester, etc., R. Co., 18 Barb. 350. 1 Ames Eq. Jur. 410. 2 Scott 294: Miles v. Dover Furnace Co.. 125 X. Y. 294. 26 N. E. 261, 2 Keener 1048: Anierman v. Deane, 132 N. Y. 355, 30 X. E. 741. 28 L. R. A. 584, 2 Keener 1050 (restrictive covenant not enforced, where character of neighborhood has changed: see ante. § 1295): or where it would render the defendant liable to a forfeiture: Faine v. Brown. 2 Ves. Sr. 307. 1 Ames Eq. Jur. 397. 2 Scott 285; Peacock v. Pen-^on. 11 Beav. 3,")5. 2 Scott 288: provided such liability is not the result of defendant's own conduct: Helling v. Lumlev, 3 De Gex & J. 895 SrEClFlC I'EKFUK.MAxXCE OF CONTRACTS. § 1-105 vendor's title must be free from reasonable doubt. In suits by a vendor, the purchaser will not be compelled to complete the con- tract., unless the title is free from any reasonable doubt.'' The 493, 2 Keener 1022. But relief will not be refused because of changed eivcuni- stances which should liave been in contemplation of the parties as possible contingencies, when they entered upon the agreement; ]\Iarble Co. v. Ripley, 10 \Vall. 339, 357, 19 L. ed. 955, Shep. 251 ; Franklin Tel. Co. v. Harrison, 145 U. S. 459, 12 Sup. Ct. 900, 3(5 L. ed. 770, 2 Keener, 1055; Prospect Park, etc., Co. V. V. I. R. Co., 144 N. Y. 152, 39 N. E. 17, 26 L. R. A. 610, 1 Ames Eq. Jur. 83, H. & B. 641 ; Adams v. Weare, 1 Bro. C. C. 567, 1 Ames Eq. Jur. 397, 2 Scott, 286, 2 Keener, 1006; nor because the defendant has an independent claim against the plaintiff, wliich. by reason of the latter's insolvency, he may be unable to enforce: Ante, S 387 : Thompson v. Winter, 42 Minn. 121, 43 N. W. 796, 6 L. R. A. 236, H. & B. 654. 2 Keener, 1044. The remedy may be refused because it would work injury to third persons: Curran v. Holyoke Water Co., 116 .Mass. 90; or inconvenience to the public, with no corresponding benefit to the plaintiff: Conger v. N. Y. W. S. & B. R. Co., 120 N. Y. 29, 23 N. E. 983, 1 Ames Eq. Jur. 412, H. &- B. 723. 2 Scott, 304, 2 Keener, 1046 (agreement l»y railroad to stop express trains near plaintiff's house). ' This rule should not be misunderstood. It is wholly distinct from the ob- jection that the vendor has no title at all, or has only a partial or defective one, — an objection which may be raised hi/ either of the parties, and which, if proved, would either totally defeat a specific performnace or render it partial. The rule of the text assumes that the question whether the vendor's title is valid or imperfect is not definitely decided by the court. But if there arises, on the pleadings or from the proofs, a reasonable doubt as to the vendor's title, the -court, without deciding the question between the parties then before it, re- gards the doubt as a sufficient reason for not compelling the purchaser to carry ovit the contract and accept a conveyance. Where the purchaser is plain- tiff, he may elect to take a defective and partial title. The leading English case is Pyrke v. Waddingham, 10 Hare, 1, 1 Ames Eq. Jur. 269, 2 Scott, 361. "The rule rests upon this, that every purchaser is entitled to require a market- nl)le title. ... If the doubts arise upon a question connected with the general law. the court is to judge whether the general law upon the point is or IS not settled, enforcing specific performance iii the one case and refusing it ill the other. If the doubts arise upon the construction of particular instrvi- ments, and the court is itself doubtful upon the points, specific performance must, of course, be refused. ... If the doubts which arise n.ay be afl'ected by extrinsic circumstances, which neither the purchaser nor the court has the means of satisfactorily investigating, specific performance is to be refused. . . . . 1 cannot venture to hold that, because this court is of opinion in favor of the title, a purchaser is to be compelled to accept it. I think that each case must depend upon the nature of the objection and the weight which the court may be disposed to attach to it; and that, in determining whether specific per- formance is to be enforced or not, it must not be lost sight of that the exer- cise by the court of its jurisdiction, in cases of specific performance, is discre- tionarA'; and that the court has no means of binding the question as against adverse claimants, or of indemnifying the purchaser, if its own opinion should ultimately turn out not to be well founded." See, also, Fleming v. Burnhani. 100 X. Y. 1. 2 Keener. 1138; Moser v. Cochrane, 107 N. Y. 1, 2 Keener, 1143; Abiiott V. James. Ill X. Y. 673. 2 Keener. 1146; Moore v. Williams, 115 X. Y. 5S6. 12 Am. St. Re]). 844. 5 L. R. A. 654, 2 Keener, 1149; Hunting v, Damon> § i-tU7 EQUITY JURISPRUDENCE, 896 remaining essential elements and incidents relate more directly to the remedy itself, to the actual performance directed by the decree, and may be briefly stated as follows: The contract must bo such that its specific enforcement would not be nugatory.^ Al- tliough the contract by its terms can be specifically enforced, the defendant must also have the capacity and ability to perform it by obeying the decree of the court.'' Finally, the contract must be such that the court is able to make an efficient decree for its specific performance, and is able to enforce its own decree when niade.^" § 1406. Rights under the Contract — Effect of Events without the Agency of the Parties. — The effect of an executory contract foi- the .sale of land, in working an equitable conversion, and in clothing the purchaser with an equitable estate in the land^ and the vendor with an equitable ownership of the purchase price, has already been described.^ As soon as the contract is finally concluded, although it is wholly executory in form, these rights and estates become fixed and vested. It follows, therefore, that the purchaser, lieing the equitable owner, is entitled to all the benefits and assumes all the risks of ownership. § 1407. Performance by Plaintiff a Condition Precedent. — The doctrine is fundamental that either of the parties seeking a specific performance against the other must show, as a condition precedent to his obtaining the remedy, that he has done or offered to do. or is then ready and willing to do, all the essential and material acts required of him by the agreement at the time of commencing the .suit, and also that he is ready and willing to do all such acts ino Mass. 441, 2 Keener, 115G; Hedderly v. Johnson, 42 Minn. 443, IS Am. St. Kep. .521. •* See ante, § 1402a. ^ Total inahility. — If, at the time of the inability, the defendant is totally un- able to perform because he has no title at all, or a title completely defective, the remedy will not be granted. The rule applies even when the inability is caused by the defendant's own wrongful act; as where a vendor, after making the contract and before the suit, conveyed the land to a bona fide purchaser for value and without notice. A specific performance would be refused, although the court of equity might grant a decree for damages: See ante, § 237, n. 3. But if a vendor, after making a contract, should enter into a second agreement to sell the land to B, or should convey it to B under such circumstances that B is iiot a bona fide purchaser, etc., then the prior vendee can compel a specific per- formance against the vendor and B: See ante. §688. Partial incapacity. — Where the defendant's title fails as to a part of the subject-matter, or is partially defective, the plaintiff may elect and be entitled to a specific enforcement of the contract, so far as it can be enforced; and may claim and receive compensation for the deficiency: See post, § 1409 f. '" See ante, S 1402 b. et seq. 'See ante, §S 3(58, 1161. 69T ispjl;cii'ic pkhfok-MA-vck oi' contracts. § 1407 as shall be required of him in the specific execution of the contract according to its terms.' /With respect to the necessity of an actual tender and a demand of Performance before suit brought, the Amer- ican decisions are somewhat conflicting, and different rules seem to prevail in different/ states. The most important of these rules are given in the foot'-note.- ' In tlie language often used, he must show himself "ready, willing, desirous, ])roinpt. and eag^r." lliere are two apparent exceptions, depending upon strictly tHjuitable considerations: 1. A strict performance at the very stipulated time IS not always necessary: fSee post, § 1408; and 2. Partial and immaterial fail- ures of title or defects of the subject-matter, if admitting of compensation, may not prevent the vendor from enforcing the remainder of the agreement: See ])ost, S 1409f. Failure to perform conditions precedent. — In pursuance of this princ-ii)U' equity will not relieve against a failure to perform a condition precedent in a contract, however slight the failure. The right to specific performance has never vested for the party in default: Earl of Feversham v. Watson, Freem. Cli. 35, 1 Ames Eq. Jur. ."^17. Thus, equity will not enforce a contract of sale wiiere the price is to he lixcd by the parties or by arbitrators to be chosen by the parties; and for the plain reason that the contract sought to be enforced is incomplete in an essential particular: Milnes v. Gery, 14 Ves. 400, 407, 2 Keener, 111; and see ante, § 1402 c. Default in option to purchase — A'o relief. — There can be no relief against a failure to exercise an option after the day named for its expiration, for an op- tion is no more than an offer to sell, which the offerer is bound to keep open during the time set, but which expirees with that time, leaving nothing for equity to operate upon: Gannett v. Albree, 103 Mass. 372, 1 Ames Eq. Jur. 321; Lord Ranelagh v. Melton, 2 Drew & S. 278, 1 Ames Eq. Jur. 319. \'e)tdor as plaintiff; at what time he must furnish a good title. — It is a familiar application of the principle, as to performance by the plaintifi", that the vendor cannot force fierformance upon the purchaser, unless he is able to give a good title to the subject-matter. Where, however, the vendor gets in tile title before the decree, the doctrine of equity is, when time is not of the essence, a decree Mill be made against the purchaser, if -the seller can make a good title at the time of decree, unless there has been bad faith, or an improper s])fculation attempted. The weight of authority supports this rule: Langford v. Pitt, 2 P. Wins. G29, 2 Keener, 333, 2 Scott, 405; Pincke v. Curtis, 4 Bro. C. C. 329, 331, 2 Scott. 428; Bruce v. Tilson, 25 N. Y. 194, 1 Ames Eq. Jur. 345, 2 Keener, IISO. 2 Scott, 355; although there are several jurisdictions wiiich hold that, if the plaintiff could not make a good title at the time of Ibe agreement, specific performance will be denied him on the ground of lack of nmtuality: Norris v. Fox, 45 Fed. 406, 1 Ames Eq. Jur. 426; Ten Eyck v. Man- ning, 52 N. J. Eq. 47, 27 Atl. 900, 2 Keener, 849. These latter cases are incon- sistent with the view of the mutuality rule that is best supported by authority and on principle; since at the time of the decree the defendant is not left in any inequitable position. - Tender, when necessary. — In general, the rules of equity concerning the ne- cessity of an actual tender are not so stringent as those of the law. The fol- lowing special rules seem to be settled: 1. An actual tender by the plaintiff IS unnecessarj- when, from the acts of the defendant, or from the situation of the property, it would be wholly nugatoiy. Thus, if at the time fixed the vendor 57 § 1408 EQUITY JTRISPRUDEXCE. 898 § 1408. Time as Affecting the Right to a Performance. — The stipulations concerning time of performance in a contract are re- garded by equity either as immaterial, or as essential, or as mate- rial. In all ordinary cases of contract, equity does not regard time as of the essence of the agreement. In all ordinary cases of con- tract for the sale of land, if there is nothing special in its objects, subject-matter, or terms, although a certain period of time is stipu- lated for its completion, or for the execution of any of its terms, equity treats the provision as formal rather than essential, and per- mits a P'driy who has suffered the period to elapse to perform such acts after the prescribed date, and to compel a performance by the other party notwithstanding his own delay. ^ Time essential: Time may be essential. It is so whenever the intention of the parties is clear that the performance of its terms shall be accom- plished exactly at the stipulated day. The intention must then govern. A delay cannot be excused. A performance at the time is essential ; any default will defeat the right to a specific enf orce- is unable to convey, by reason of a defect in his title, etc.: Hall v. Wliittier, 10 11. 1. 530, 2 iScott, 323. 2. Where the stipulations are mutual and dependent, — tliat is, where the deed is to be delivered upon payment of the price, — an actual tender and demand by one party is necessary to put the other in default, and to cut off his right to treat the contract as still subsisting: Hvibbell v. Von Schoening. 49 N. Y. 326, 331, 2 Keener, 1105, 2 Scott, 350. 3. Time, essential: A\ here the time of payment by the vendee is made essential, and a fortiori where- if his payments are not made on the exact day named, the vendor may treat the eoiitnict as at an end, the vendee must make an actual tender of the price and a demand of the deed at a specified time. The same is true of the vendor when the time of conveying is made essential. This is the very meaning of time being" of tlie essence of the contract: Wells v. Smith, 2 Edw. Ch. 78, 2 Scott, 317, 2 Keener, 1082. Time not essential: Concerning the necessity of actual tender in contracts in which time is not essential, the American decisions are directly conflicting. According to one group of cases, the strict legal rule is enforced. Where the stipulations are mutually dependent, the plaintiff must make an actual tender, and must demand performance before bringing his suit. Some of the cases, however, dispense with the demand, and only require a tender. Suits by the vendee: Hall v. Whittier, 10 R. T. 530, 2 Scott, 323. Sails by vendor: Corbas v. Teed, 69 111. 205, 2 Scott, 481. Another group of decisions adopts a rule more in accordance with the principles of equity, viz., tliat in such contracts an actual tender or demand by the plaintiff, prior to the suit, is not essential. It is enough tliat he was ready and willing, and offered,, at the time specified, and even that he is ready and willing at the time of bringing the suit, unless liis rights have been lost by laches, and that he offers to jierform in his pleading. The plaintiff's performance will be provided for in the decree, and liis previous neglect will only affect his right to costs. Suits by vendee: Bruce v Tilson, 25 X. Y. 194. 197. 203. 1 Ames Eq. Jur. 345, 2 Scott, 355, 2 Keener. 1180. Siiits by vendor: Rutherford v. Haven. 11 Towa, 587. 1 Ames Eq. Jur. 342. 'Seton v. Slade. 7 Ves. 265. 271, 2 Scott, 332: Parkin v. Thorold, 16 Beav. 59. 1 Ames Eq. Jur. 327. 85iy SPIXIFIC PKKFOlf.MAXCK OF COXTKACTS. § 1408 inent.- 'Time nuiterial : Althoui;li time is not ordinarily essential, yet it is, as a general rnle, material. In order that a det'anlt may not defeat a party's remedy, the delay which occasioned it )inist he explained and accounted for. The doctrine is fundamental that a party seeking the remedy of specific performance, and also the party who desires to maintain an objection founded upon the other's laches, must show himself to have been "ready, desirous, prompt, and eager."" ' '"Time may be made essential by express stipulation. Xo particular form is necessary, but any clause will have the efl'ect which clearly provides that the contract is to be null, if the fulfillment is not within the prescribed time." Seton V. Slade, 7 \"es. Jr. 2G5, 271, 273, 2 Scott, 332; Sowles v. Hall, 62 Vt. 247. 22 Am. St. Rep. 101, 20 Atl. 810, 2 Keener, 1117. "Time may become es- sential from the subject-matter, or object of the contract; c. g., where the value of the subject-matter necessarily fluctuates and changes with the mere lapse of time." Taylor v. Longworth, 14 Pet. 172, 174, 10 L. ed. 405; from the situa- tion of the parties in relation to subject-matter; as King v. Ruekman, 24 N. J. Kq. 316, 351, 2 Keener, 390; the particvilar object of vendee; as in Tilley v. Thomas, L. 1\. 3 Ch. App. 61, 1 Ames Eq. Jur. 336, 2 Scott, 345, 2 Keener, 1001, Slu'p. 254 ; nature of property, — a lease of mines : MacBryde v. Weekes, 22 Reav. 533, 2 Keener, 1085. Though time was originally of the essence of the contract, yet the defendant may waive his right to insist upon strict perform- ance, either expressly or by acquiescence in plaintifi''s laches: Webb v. Hughes, L. II. 10 Eq. Cas. 281, 2 Keener, 1101. Time, not originally of the essence, may be made essential where one of the parties delays in fulfilling, and the other party, by a notice, prescribes a period within which the contract nmst be com- l)leted, or else be abandoned; but this period must be a reasonable one: Parkin v. Thorold, 16 Beav. 59, 1 Ames Eq. Jur. 327; MacBryde v. Weekes, supra; Webb v. Hughes, supra. Efl'ect of forfeiture clause in the contract. — Contracts often contain a clause that, if payment is not made at the day, the defaulting vendee shall forfeit all l>ayments previously made and also lose his right to the land. In England and most of the states such a clause will, if possible, be considered as a stipulation in the nature of a penalty for security of performance, and specific performance will be decreed against the vendor with compensation for delay by interest ou tile purchase-money: Vernon v. Stephens, 2 P. Wms. 66, 1 Ames Eq. Jur. 338; Kdgcrton v. Peckham, 11 Paige, 351, 2 Scott, 337. In other jurisdictions, how- ever, equity refuses to relieve against the forfeiture in behalf of the party thus in tlefault: Heckard v. Sayre, 34 111. 142, 1 Ames Eq. Jur. 340; Glock v. How- ard, etc., Co., 123 Cal. 1, 69 Am. St. Rep. 17, 55 Pac. 713, 43 L. R. A. 199; unless the forfeiture is waived by words or conduct: Cheney v. Libby, 134 U. S. 68, If) Sup. Ct. 498, 33 L. ed.'siS, H. & B. 695. ' Hiihbell V. Von Schoening. 49 X. Y. 326, 2 Scott, 3,50, 2 Keener, 1105; South- eastern Co. V. Knott, 2 Keenei-, 1177. To entitle the plaintiff to specific per- formance in general, lie must not have been grossly negligent: Hubbell v. \(m Schoening, 49 N. Y. 326, 2 Scott. 350, 2 Keener, 1105; the delay must not have been too great: Combes v. Scott. 76 Wis. 602, 45 N. W. 532. H. & B. 682. 2 Scott. 357, 2 Keener, 1194 (delay of six years) ; nor must it have seriously injured defendant's interests: Pincke v. Curtis, 4 Bro. C. C. 329, 331, 2 Scott, 428; and the plaintiff must show a reasonable excuse for the default: Brown v. Cuarantee Trust Co.. 128 C. S. 403. 9, Sup. Ct. 127. 32 L. cd. 468, 2 Keener, 1109; Hubbell v. Von § 1409 EQUITY JL-KI8Pi;UDEXCE. 900 § 1409. Enforcement of Verbal Contracts Part Performed. — The vloetrine was settled at an early day in England, and has been fully adopted in nearly all the American states, that a verbal contract for the sale or leasing of land, or for a settlement made upon consideration of marriage, if part performed by the party seeking the remedy, may be specifically enforced by courts of equity, not- withstanding the statute of frauds.^ The ground upon which the Scliooiiinj^-. 49 N. Y. 320, 2 Keener, 1105, 2 Scott, 350. Any indication of in- tention of abandonment of the contract by either party defeats his right to spe- cific performance: Benedict v. Lynch, 1 Johns. Ch. 370, 2 Keener, 1074. Mere lapse of time may amount to evidence of such an intention: Lloyd v. Collett, 4 Bro. C. C. 4()!), 2 8cott, 329; Benedict v. Lynch, supra; unless there is acquies- cence in the long delay: Benedict v. Lynch, supra. Where the delay of the vendor or vendee in seeking performance is for a speculative purpose, to await until time shall determine whether or not it is to his advantage to have the benefit of the contract, it is held by a considerable group of cases that equity will not aid him by any relief against liis failure to perform, whatever the situation otherwise: McCabe v. Matthews, 155 U. S. 550, 556, 15 Sup. Ct. 190, 39 L. ed. 257, 2 Keener, 1199. in the following cases delay on the part of the vendor, phiintiil, was held not material: Pincke v. Curtis, supra (no damage to vendee, and good title could be made in a reasonable time) ; in the following it was heUl material and the remedy was refused: Harrington v. Wheeler, 4 Ves. Jr. GSG, 2 Scott, 331 (seven years) ; Lloyd v. Collett, supra (his conduct evi- dence of abandonment of the contract). Delay on part of .vendee, plaint ifl', held not material in Edgerton v. Peckham, 11 Paige Ch. 351, 2 Scott, 3.^7; Hub- bell V. Von Schoening, supra; Day v. Hunt, 112 N. Y. 191. 19 N. E. 414, 2 Keener, 1114; hekl material, and relief refused, in Mackreth v. Marlar, 1 Cox, 2(50, 2 Scott. 328 (five years) ; Benedict v. Lynch, supra (no sufficient excuse) ; McCabe v. Matthews, supra (speculative delay of nine years). ^Fundamental ground of the jurisdiction. — The ground is equitable fraud; not an antecedent fraud in entering into the contract, but a fraud inhering in the consequence of setting up the statute as a defense. If the defendant knowingly permits the plaintiff to do acts in part performance of the verbal agreement, acts done in reliance on the agreement, wliich change the relations of the parties and prevent a restoration to their former condition, it would be a virtual frautl for the defendant to intei'pose the statute as a defense, and thus to secure for hin)self the benefit of the acts of part performance, while the plaintiff would be left not only without adequate remedy at law, but also liable for damages as a trespasser: See ante, §§804-867, 921, where this principle is discussed, it follows from this principle that the acts of part performance must be done by the party seeking to enforce the contract, and must be done in pursuance of the contract, and with the design of carrying the same into execution: iind nuist be done with the consent, express or implied, or knowl- edge, of the other party. It is also an important principle of the English, and many American cases, that the act of part performance must unequivocally, and without the aid of parol testimony to explain it, point to the existence of a contract relating to the specific land in question: Maddison v. Alderson, L. R. 8 App. Cas. 467, 1 Ames Eq. Jur. 295, 2 Scott, 210, 2 Keener. 675. Shep. 287. "It is in genei-al of the essence of such an act that the courts shall, by reason of the act itself, without knowing whether there was an agreement or not, find the parties unequivocally in a position difl'erent from that which, according to their le^al riiihts, thev would be in if there were no contrnct. . . . But 901 SPKCIFIC rKHFOUMAXCE OF CONTKAUTS. § l-lOlJa remedy in such eases rests is that of equitable fraud. It would be a virtual fraud for the defendant, after permitting the acts of part performance, to interpose the statute as a bar to the plaintiff's remedial right. The acts of part performance, therefore, in order to satisfy this principle, must be done in pursuance of the contract, and must alter the relations of the parties. The most important acts which constitute a sufficient part performance are actual pos- session, permanent and valuable improvements, and these two com- bined. § 1409a. Same. Acts of Part Performance — Possession — Im- provements.— The mere delivery and taking of possession in pui'sii- ance of the agreement is, by the weight of authority, sufficient part performance to warrant equity in granting relief.^ This is rested upon the ground that ''the acknowledged possession of a stranger on the land of another is not explicable, except on the supposition of an agreement, and has, therefore, constantly been received as evi- dence of an antecedent contract, and as sufficient to authorize an inquiry into its terms."^ The possession must be actual, notorious and exclusive," and must be taken with the consent or acquies- cence of the vendor.* Since the possession must be taken in pur- suance of contract, possession taken prior to the contract or pre- paratory to the contract is not sufficient.^ A mere holding over by a tenant after the expiration of his lease is not sufficient part performance to take the case out of the statute.*' Where, however, there is a change in the terms of the tenancy, as, for instance, in un act which, though in truth done in pursuance of a contract, admits of ex- planation without supposing a contract, is not in general admitted to consti- tute an act of part performance taking the case out of the statute of frauds; as, for example, the payment of a sum of money alleged to be purchase mone_y." "The payment of a sum of money is an equivocal act, not (in itself) imtil the connection is established by parol testimony, indicative of a contract concern- ing land." ^ Butcher v. fStapely, 1 Vern. 363, 1 Ames Eq. Jur. 279, 2 Scott, 188, 2 Keener, 022 : Clinan v. Cooke, 2 Schoale- & L. 22, 41, 2 Scott, 182, 2 Keener, G28 (dictum) j Gallagher v. Gallagher, 31 \V. Va. 9, 5 S. E. 297, 2 Keener, 696. - Morphett v. Jones, 1 Swanst. 172. ■'Gallagher v. Gallagher, 31 W. Va. 9, 5 S. E. 297, 2 Keener. 696. * Purcell v. Miner, 4 Wall. 513, 18 L. ed. 435, 2 Scott, 200. She]). 272 (this requirement not satisfied by proof of a scrambling and litigious possession) ; Nibcrt V. Baghurst, 47 N. J. Eq. 201, 20 Atl. 252, 2 Keener, 722. ^ For examples of acts of preparation held insufficient, see Clerk v. Wright. 1 Atk. 12, 1 Ames Eq. Jur. 294; Nibert v. Baghurst, 47 N. J. Eq. 201, 20 Atl. 252, 2 Keener, 722. " Such act is not unequivocnl, but may point to a tenancy at will equally as well as to an express agreement to renew the lease: Smith v. Turner, Prec. Ch. 501. 1 Ames Eq. .Inr. 282; Wills v. Stradling, 3 Ves. 378, 1 Ames Eq. Jur. 291, 2 Scott, 201. 2 Keener, 626; ]Maddison v. Alderson, L. R. 8 App. Cas. 295, 1 Ames Eq. Jur. 295, 2 Scott, 210, 2 Keener, 675, Shep. 287 (dictum). § l40!Jb EQUITY jui;ispnrni:xci:. 903 the amount of rent paid, or where the tenant makes substantial repairs or improvements, sueli circumstance in connection with the possession is sufficient to warrant relief." Possession obtained wrongfully is, of course, no ground for relief, for it does not refer to any contract whatever.* While the weight of authority un- doubtedly supports the view that possession alone is sufficient to take a case out of the operation of the statute of frauds, it will be found that in a large majority of the cases additional circum- stances have been present ; as, payment of the whole or part of the purchase price,^ or the making of valuable improvements. ^"^ § 1409b. Same. Payment. — It is the generally accepted doc- trine that payment of the whole or a part of the purchase price is not sufficient in itself to take a case out of the operation of the statute of frauds.^ Therefore, a conveyance by a plaintiff in pur- suance of an agreement for an exchange of lands is not sufficient l)art performance to warrant the court in granting equitable relief. - 'Increased rcjif.— Wills v. Stradlino-, .3 Ves. .378. 1 Ames Eq. Jiir. 291, 2 Scott, 201. 2 Keener, 02(5; Xiinn v. Fabian. L. R. 1 Cli. .S.5. 2 Keener, 630. I'epairs and improvements. — Shindy v. .TolliR'e, 5 Mylne & C. 167, 1 Ames Eq. Jiir. 289; Morrison v. Herrick, 130 111. 631, 20 X. E. 537. 2 Keener. 706. See, also. Wills V. Stradlino-, 3 Ves. 378, snpra. But see Frame v. Dawson, 14 Ves. 3S6. 1 Ames Eq. Jur. 283, 2 Scott, 202. 2 Keener, 632. H'ole V. White, 1 Bro. C. C. 409. 1 Ames Eq. Jnr. 282; Fiucell v. Miner, 4 Wall. 513, IS L. ed. 435, 2 Scott, 206, Shep. 272. M'ond V. Sheean. 132 111. 312. 23 X. E. 1018. 8 L. R. A. 414, 2 Keener, 715; Dunckel v. Dunekel. 141 X. Y. 427. 36 X. E. 405, 2 Keener. 735. ^"Morrison v. Herrick, 130 111. 631, 22 X. E. 537. 2 Keener. 706. As to the nature of the improvements, see Gallagher v. Gallagher, 31 W. Va. 9, 5 S. E. 297. 2 Keener, 696. Possession, coupled with both the making of improvements and the payment of part of the purchase jjrice is, of course, sufficient : Miller V. Ball. 64 X. Y. 286, 2 Keener, 657, 2 Scott, 196. Modifications and rejection of the doctrine. — The rule that delivery and ac- c('])tance of possession alone are sufficient to take a case out of the statute is not accepted by all the states. See Burns v. Daggett, 141 Mass. 368. 6 X. E. 727, 1 Ames Eq. Jur. 284 (acts must be such that adequate compensation can- not to be made except by a conveyance) ; Pond v. Sheean, 132 111. 312, 23 X. E. 1018, 8 L. R. A. 414. 2 Keener 715 (part payment necessary) ; and in a few states the doctrine of part performance is wholly rejected: Albea v. Griffin, 2 Dev. & B. 9. 1 Ames Eq. Jur. 288. 'Clinan v. Cooke, 1 Schoales & L. 22. 2 Scott. 182. 2 Keener, 628 (stating reasons for the rule) ; IMaddison v. Alderson. L. E. 8 App. Cas. 467, 1 Ames Eq. .lur. 295, 2 Scott, 210, 2 Keener, 675, Shep. 287; Lord Pengall v. Eoss, 2 Bi\. Abr. 46, 1 Ames Eq. Jur. 276; 2 Scott, 180; Peters v. Dickinson, 67 X. H. 389. 32 Atl. 154, 2 Keener, 733; Xibert v. Baghurst. 47 X\ J. Eq. 201, 20 All. 252. 2 Keener, 722: Miller v. Ball. 64 X. Y. 286, 2 Scott, 196, 2 Keener, 657; Gallagher v. Gallagher. 31 W. Va. 9, 5 S. E. 297, 2 Keener, 696. = Smith v. Hatch, 46 X. H. 146, 1 Ames Eq. Jur. 277 (dictum). Wliere, how- ever, there is in addition an act of part performance by the defendant, as by taking possession of the property conveyed, the plaintiff may liave specific per- 903 SPKCIFIC PKItFOKMANC'i; OF CONTItACTS. § 11091) AVhile sueh a conveyance is referable to a contract, it is not nec- essarily referable to a contract for the land sought to be recovered. Where the consideration is paid, not in the form of money, but in the form of personal services of a character such that they do not readily admit of a pecuniary estimate or recompense, shall this be considered an act of part performance? On this question the American jurisdictions are very evenly divided. On the one hand, pjivment in services no more points to a contract concerning spe- ciiie land than does payment in money; in fact, in the ordinary case, — domestic services by a relative or by an adopted child, — the fact of the services rendered gives rise to no inference of any contract whatever.-' On the other hand, if equitable fraud be taken as the ba.sis of the doctrine, and the impossibility of restoring the complainant to the situation in which he was before the contract was made, the rendering of services, for a long term of years, the value of which cannot be estimated by any pecuniary stand- ard, must be considered an act of part performance of the highest character; the fraud upon the complainant is often greater than that resulting from either the taking of possession or the making of improvements.^ The promise, in these cases, has nearly always been to make a will devising lands to plaintiff; the services ren- dered, the care of an aged or invalid relative, often coupled with an abandonment of the plaintift''s previous home or occupation; or. in a large group of cases, the entire change of situation re- . suiting from a virtual adoption of the plaintiff', when a minor, into the promisor's family, and the discharge of the domestic du- .ifs and obligations of affection flowing from such relation."' fonnance: Biyelow v. Ainies, 108 U. S. 10, 1 Sup. Ct. 83. 27 L. ed. 631, 2 Keener, ()G4. ■■.Maddison v. Aldersoii, L. R. 8 App. Cas. (H. of L.) 467, 1 Ames Eq. .Tur. 2!).-). 2 Scott, 210. 2 Keener. 075, Shep. 287; Pond v. Sheean, 132 111. 312. 23 -N. K. 1018. 8 L. R. A. 414, 2 Keener, 715 (adoption of child) ; Shahan v. Swan, 48 Ohio St. 25. 20 Am. St. Rep. 517. 20 X. E. 222. 2 Scott. 219. 2 Keener. 720 (adoption; but court intimates that there may be part jterformance by services in exceptional cases). *See supra, § 1400, end of note; Owens v. jMcXally. 113 Cal. 444. 45 Pac. 710. 33 L. K. A. 300 (but specific performance refused, since it would be hardship on promisor's \\ife, wlio married him in ignorance of the agreement) ; Svan- burg V. Fosseen. 75 :\rinn. 350, 74 Am. St. Rep. 400, 78 N. W. 4, 43 L. R. A. 427: Kofka v. Rosjcky. 41 Xeb. 328, 43 Am. St. Rep. 685, 59 N. W. 788, 25 L. R. A. 207 (adoption agreement) ; Vreeland v. Vreeland, 53 N. J. Eq. 387, 32 Atl. 3 (care of aged parent) ; Lothrop v. Marlle, 12 S. D. 511. 76 Am. St. Rep. 626. 81 X. W. 885 (services consisted merely in nursing a repulsive in- valid for a few days). ^ .]fi.5 1415 EQUITY JllMSPKl DEXCE. i)lr3 to allege and prove that he has taken the necessary proceedings at law before he can show a ease requiring the interposition of equit3^ Whether an equitable suit, analogous to the creditor's suit, will be allowed in aid of the lien created by an attachment, before the recovery of judgment, is a question to which the Ameri- can courts have given directly contacting answers. judgment having been obtained, where tiie debtor has absconded, or removed Ironi or resides out of the state: Merchants' Nat. Bank v. Paine, 13 R. 1. r)!t2. 1 Scott, 13G; First Nat. Bank v. Eastman, 144 Cal. 487, 103 Am. St. Hep. 05, 77 Fac. 1043. In a few of the states simple contract creditors are authorized by statute to sue in equitj' to set aside fraudulent conveyances; but these statutes liave not been followed by the federal courts: see ante, note to § 293. In aid of attachment. — An exception has been sought to be made in the case of attaching creditors, and the question has been presented whether equity will ever assist an attachment at law. It has been held, in accordance with the prevailing theory, that a creditor's suit may be maintained to reach real estate when a specific lien is created, that an attachment constitutes such a lien as to furnish ground for equitable interference to remove fraudulent obstructions or impediments on the property, real or personal, attached, with- out the requirement of a judgment obtained, or the steps subsequent thereto, necessary in ordinary creditors' suits : Chicago & A. Bridge Co. v. Anglo-American, etc., Co., 46 Fed. 584; Hunt v. Field. !l X. J. Eq. 30, 57 Am. Dec. 365. Other decisions hold that such a suit cannot oe maintained: Aigeltinger v. Einstein, 143 Cal. (JOU, 101 Am. St. Rep. 131, 77 Fac. UUU. !jl3 SLITS Foi; i:xo\i:katiox, § 1417 SEVENTH GROUP. re:\iedies in which the final eelief is wholly pecuniary, and is obtained in the form of a general pecuniary recovery. CHAPTER FIRST. SUITS FOR CONTRIBUTION, EXONERATION, AND SUBRO- GATION. ANALYSIS. § 1416. General nature, kinds, and classes. S 1417. Exoneration: rights of surety against the principal debtor. S 1418. Contribution. § 1419. Subrogation. § 1416. General Nature, Kinds, and Classes. — The remedies .. ^iposino^ this group belong to the concurrent jurisdiction of C' .mity, since the final reliefs are the same in form and substance a^j that granted under like circumstances by a judgment at law. — a general pecuniary recovery, — and since the primary rights and interests of the parties are generally recognized and protected b,y the law. Within the group are included suits by assignees of things in action; suits by equitable assignees of a fund ;^ suits for contribution in general ; suits for contribution, exoneration, and subrogation, growing out of suretyship; suits for an accounting iu general: and suits under various circumstances, and between ]iarticular parties, in which an accounting is a necessary element (if tlie relief.- — as, for example, between partners. § 1417. Exoneration — Rights of Surety against the Principal Debtor. — When a surety has actually paid or satisfied the princi- j)a]'s obligation, or any part thereof, he is entitled to be reimbursed by the principal debtor, and can maintain an equitable action for that purpose.^ He may also maintain a quia timet suit in ecpiity before any payment. 'As to suits by assignees of things in action, see ante, ?§ 1277, 1278; by equitable assignees of a fund: §§ 1280-1284. -The right, of recovery being based upon an implied contract of the jjrin- 5S' § 1418 EQUITY JUKISPRUDEXCE. 914 § 1418. Contribution. — Where there are two or more sureties for the same principal debtor, and for the same debt or obligation, whether on the same or on different instruments, and one of them has actually paid or satisfied more than his proportionate share of the debt or obligation, he is entitled to a contribution from each and all of his co-sureties, in order to reimburse him for the excess paid over his' share, and thus to equalize their common burdens. The same doctrine applies, and the same remedy is given, between all those who are jointly, or jointly and severally, liable on con- tract or obligation in the nature of contract.^ The right, however, may be controlled or modified by express agreement among the co-sureties or debtors. cipal, a jurisdiction at law to give the same relief has become established, and is ordinarily resorted to in this country. The equitable jurisdiction, how- ever, still exists. The surety is entitled to exoneration, whether his payment was voluntary or compulsory: Beal v. Brown, 13 Allen 114 (surety need not set up statute of frauds as defense) ; if compulsory, he can recover back his reasonably necessary costs and expenses: Butler v. Butler's Adm'r, 8 W. Va. H77„ The jurisdiction extends to all those who in reality stand in a position (if suretyship towards principal debtors; e. g-., to a surety for a prior siiretj/: Hall V. (Smith, 5 How. 96, 12 L. ed. 6G. If the surety satisfies the obligation at less than its full amount, he can only recover from the principal debtor wliat he has actually paid, or the value of the property given up: Bonney v. Seely. 2 V\'end. 481. Suit before jxii/nient. — After the obligation becomes payable, the surety, before he has paid it, and whether he has been sued by the creditor or not, may maintain a suit in equity against the debtor — in the nature of a bill (juia timet — to compel hi)ti to pay the debt or perfonn the obligation: pro- viiled the creditor can himself enforce payment or performance, and neglects or refuses to do so. The creditor is. of course, made a co-defendant: Dobie v. Fidelity, etc., Co., 95 Wis. 540, GO Am. St. Rep. 135. 70 N. W. 482. 'The doctrine of contribution rests upon the maxim. Equality is equity: See ante, S§ 405-412. Although contribution is based upon general considerations of justice, and not upon any notion of an implied promise, a jvirisdiction at law has become well settled which is sufficient in all ordinary cases of suretyship or joint liability. The equitable jurisdiction still remains, and has some mosi im- portant advantages. All the co-sureties and the principal debtor being parties to the equity suR, the liabilities of each and their exoneration by the principal debtor can be adjusted and established by a single decree. Tf one or more of llie co-sureties are insolvent, the plaintiff can in equity obtain a pi-oportionate increase of contribution from the others who are solvent. Bosley v. Taylor. 5 Dana 157, 30 Am. Dee. 677. See 2 Pom. Eq. Rem. § 915. There may be con- tribution among sureties whose liability depends upon different instruments, or arose at different times, so long as they are sureties for the same debt or obligation of the same principal debtor: Dering v. Earl of Winchelsea, 1 Cox 318, 1 Lead Cas. Eq. 120. 124, 134, 1 Scott 307. Shep. 01: Sloan v. Gibbes. 56 S. C. 480, 76 Am. St. Rep. 559, 35 S. E. 408. Thei-e is ordinarily no contribution among tort-feasors: Johnson v. Torpy, 35 Nebr. 604. 37 Am. St. Rep. 447, 53 N. W. 575; but see Farwell v. Becker. 129 HI. 261. 16 Am. St. Rep. 267, 21 N. E. 792, 6 L. R. A. 400 (where the complainant did the act witliout wrongful 915 SUITS FUi; .sriJKUGATION. § 1419 § 1419. Subrogation.— The surety who has paid or satisfied the priucipal's debt or obligation is entitled to be subrogated to and to have the benefit of all securities which may at any time have been put into the creditor's hands by the principal debtor^ or which the creditor may have obtained from the principal debtor. By the fact of payment, the surety becomes an e(iuitable assignee of all such securities, and is entitled to have them assigned and delivered up to him by the creditor, in order that he may en- force them for his own reimbursement and exoneration. If there- fore, the creditor refuses to surrender up such securities, the surety may maintain an equitable suit to compel their assignment and surrender.^ The doctrine and remedj^ of subrogation are extended intent). As to conti'ibution among co-trustees, see ante, § 1081; among owners of lands subj ct to incumbrance, §§ 1221-1226: among tenants in common, etc., §§ 1240, 1389; see also Rindge v. Baker, 57 N. Y. 209, 15 Am. Rep. 475, H. & B. 578. (contribution enforced by one who has constructed a party-wall). Con- tiihution may be liad though there was a good defense to the payment if tlie plaintiff was ignorant of that defense and acted in good faitli: Hichborn v. Fletcher, 66 INIe. 209. 22 Am. Rep. 562. As to contribution by the estate of a deceased joint surety, see ante. § 409. By the better rule, the complainant is entitled to contribution for reasonable costs and expenses incurred in a prudent defense of a suit: Connolly v. Dolan, 22 R. I. 60, 84 Am. St. Rep. 816, 46 Atl. 36. ' The doctrine of subrogation is of wide extent and operation in various de- partments of equity jurisprudence. Persons entitled to the remedy may be classified as follows: /?/-.sf. those who made the payment in performance of a legal duty, arising either by express agreement or by operation of law: in- cluding sureties: Darrnw v. Summerhill. 03 Tex. 92. 77 Am. St. Rep. 833. 53 S. W. 680 (surety on an injunction bond) : a fire insurance companj' that has paid a loss caused by the negligence of a third party, and is therefore subrogated to the claim of the insured against such party; Hart v. Western R. R. Co., 13 ^let. (Mass.) 99, 46 Am. Dec. 719; Packham v. German Fire Ins. Co., 91 Md. 51.-,. SO Am. St. Rep. 461. 46 Atl. 1066, 50 L. R. A. 828. A surety who has paid more than his fair share is entitled to subrogation against his co-surety; see Pace V. Pace's Admr.. 95 Va. 792, 30 S. E. 361, 44 L. R. A. 459. Second, those A\ho, while not legally bound to pay. yet might suffer loss if the obligation is not discharged, and so pay the debt in self -protection ; including subsequent en- cumbrancers and other owiiers of equities or partial interests who have paid cfl prior incumbrances. See ante. §§ 1211-1214. Third, those who have paid at the request of the debtor or some other party to the obligation ; see ante. § 1212. A person wiio attempts in good faith, to purchase property at a void judicial sale, and whose purchase-money is used to satisfy valid claims against tlie property, acts on an invitation from tlie puVdic. favored by public necessity and policy, and is therefore subrogated to the rights of the parties receiving the money: Bond v. Montgomery, 56 Ark. 563. 35 Am. St. Rep. 119. 20 S. W. 525; Hrewer v. Nash. Ifi R. I. 4.58, 27 Am. St. Rep. 749, 17 Atl. 857. Being a doctrine of purely equitable origin and nature, its operation is al- ways controlled by equitable principles. Bleakley's Appeal, 66 Pa. St. 187, Shep. 111. (one making payment to defraud another cannot have subrogation). It is, therefore, never enforced so as to defeai ni- interfere with the superior or equal equities of third persons, or with the legal right of third persons growing out of § 1419 EQUITY JUKISPRUDEXCE. • Q18 also to the creditor, who is subrogated to and entitled to the bene- fit of all securities given to a surety for purposes of his indemnifi- cation by the principal debtor; and also between co-sureties, so that one surety, in enforcing his rights of exoneration and of con- tribution, is subrogated to securities given to his co-surety.- It necessarily follows from the surety's right of subrogation that the creditor cannot, without the surety's assent, surrender, give up, release, or discharge any such securities, or render them in any way unavailable to the surety, either by his own acts or omissions. If he does so, the surety's liability is thereby discharged, AvhoUy or partially, as the case may be.-' express contract, ilakeel v. Hotel. kiss, 100 111. .311, 8.3 Am. St. Rep. 131, 60 X. K. .524. Ihe remedy of suhro.uation has been granted to snrotics mncli more favorably and extensively by the American equity jurisprudence than by the English. In England, prior to modern legislation, if a sui'ety paid a conti-act which he executed jointl_y with his princijial debtor, or paid a judgment recovered against him and his principal jointly, the contract or judgment was thereby ended and discharg- ed, and could not itself be enfoi'ced by the surety. The courts of all the American states, with very few exceptions, have extended the remedy of subrogation to such cases; they enable the surety to enforce such bond, or contract, or judgment immediately against the principal debtor, although the surety was himself di- rectly liable. In other words, by the English doctrine, the surety became equitable assignee only of collateral securities ; by the American doctrine he becomes equitable assignee, not only of collateral securities, but of the principal under- taking. See Subiett v. ^McKinney, 10 Tex. 438, Shep. 73; favoring the English doctrine, see IVebles v. Gay. 115 X. (". 3S. 44 Am. St. Rep. 429, 20 S. E. 173. " See Henderson-Achert Lith. Co. v. .Tohn Shillito Co., 64 Ohio St. 236, 83 Am. St. Rep. 745, 60 N. E. 205. ^ See Mingus v. Daugherty, 87 Iowa 56, 43 Am. St. Rep. 354, 54 N. W. 66. ^i'i SLiia iUiC A.N ACCULNli-NG. CHAPTER SECOND. SUITS FOR AX ACCOUNTING. § 1420. Origin of the equitable jurisdiction. § 1421. Extent of the equitable jurisdiction; when exercised. § 1420. Origin of the Equitable Jurisdiction. — The action of account-render was one of the most ancient actions known to the common law.'^ From the narrow scope and technical rules of this action, the inability of common-l^w courts to obtain a discoveiy from the defendant on his oath, the difficulty met with in cases of mutual and complicated accounts, and the impossibility of other- W'se doinsT complete justice, it is easy to understand why the action of account-render fell into disuse, and a jurisdiction in equity to entertain suits for an accountino- grew up.- The juris- diction exists, therefore, and is well established; but the question arises, since there is a similar jurisdiction at law. When may a suit in equity for an accounting be brought? This question, of course, does not arise in those cases where an accounting is decreed as an incident to other eciuitable relief; nor should it arise where ^ Tills action ^vas exceedinfily narrow in its operation: for it lay only in cases where there was eitlier a privity in deed, as against a bailiff or receiver ap- pointeil by tlie ])arty. or a ]Mivity in law. ex provisione legis. as against guardians m socage: Co. Lit. 90 b. By the la^' merchant, also, the action could be brought by a person, naming himself a merchant, against another, naming him a mer- chant, and charging him as a receiver: Co. Lit. 172 a. Statutes afterwards extended tlie action, which was strictly confined to these parties, to their exe- cutors and administrators: ?, & 4 Anne, c. 10: 13 Edw. T., c. 23: 31 Edw. 111., c. 11. Tlie method of procedure was, first, to obtain a preliminary judgment that tlie defendant do account, quod computet, before auditors, and then a second judgment that he pay the plaintiff the balance foimd to be due him: 3 Black. Com. Ifi3. But if the balance was in favor of the defendant, the plaintiff could not be compelled to pay it: 1 Spence's Eq. Jur. fi.'iO. Besides this defect in tlie common-law procedure, the aTiditors had no power, prior to statute, of examining the parties on oath; and any disputes which arose before them on the items of account could only be settled by as many issues in court: Jeremy's Eq. Jur. 504. This action of account-render was the only means which the com- mon law furnished of obtaining a settlement of an account, except that assumpsit might be brought for a determinate balance: 3 Black. Com. 162. But if the bal- ance was disputed, it was necessary for the jury to investigate the items one by one, a task which Avas practically inipossilde. - 1 Spence's Eq. Jur. 640; Mitford's Eq. PI. 120. 123: Bacon Abr.. tit. Accompt. The action of account-render is perfected in several states by statute. § 1421 EQUITY JLr.lSPKlDKXCE. 918 the subject-matter is an equitable interest or estate, for here the jurisdietio-n should be exercised as a necessary consequence, with- out regard to legal remedies.-^ It is not in every matter of account cognizable at law that the equitable jurisdiction will be exer- cised, the general rule being that a proper case is presented when the remedies at law are inadequate.* § 1421. Extent of the Equitable Jurisdiction — When Exercised. — The instances in which the legal remedies are held to be inade- ([uate, and therefore a suit in equity for an accounting proper, are: 1. Where there are mutual accounts between the plaintiff and the defendant, — that is, where each of the two parties has received and paid on account of the other -j^ 2. Where the accounts are all on one side, but there are circumstances of great complication, or difficulties in the ^way of adequate relief at law;- S'. Where a lidueiary relation exists between the parties, and a duty rests upon The defendant to render an account.^ A plea of stated account = Ante, §§ 218, 219. *Ante, §§ 170, 178. ^ The accounts must be nuitual, as distinguislied from matters of set-off, and accounts on one side only: Dinwiddle v. Bailej', 6 Ves. 136, 1 Ames, Eq. Jur. 442; Phillips V. Phillips, 9 Hare, 471, 1 Ames, Eq. Jur. 449; Fluker v. Taylor, 3 Drew. 183, 3 Keener 906; Garner v. Reis, 25 ]Minn. 475, 3 Keener 920: Haywood v. Hutchins, 65 N. C. 574, 1 Ames Eq. Jur. 459 (accounts on both sides, but liaving no connection with each other). For a definition of a mutual account, see Phillips v. Phillips, supra. -Taff Vale R'y v. Nixon, 1 H. L. Cas. 110; 1 Ames Eq. Jur. 454, 3 Keener 888; Barry v. Stevens, 31 Beav. 258, 1 Ames Eq. Jur. 451, 3 Keener 910 (court will not take jurisdiction merely because the items are very numerous.) To determine wliat degree of complication is required before a court of equity will entertain jurisdiction for that reason, independent of other circumstances, the rule was established in England that the account should be so complicated that a court of law would be incompetent to examine it at nisi prius with the necessary accuracy: Taff Vale R'y v. Nixon, supra; Foley v. Hill, 2 H. L. Cas. 28, 40, 1 Ames Eq. Jur. 446, 3 Keener 897. But under the |)resent practice in England, matters of account may now be referred to officers or referees, so that the rule as above stated can now hardly be followed. Tiie facts of each particular case should govern, and if it is doubtful whether ade- quate relief could be obtained at law, equity should entertain jurisdiction. Foley V. Hill, supra; Marvin v. Brooks, 94 N. Y. 71, 3 Keener 924; Uhlman v. New York Life Ins. Co., 109 N. Y. 421, 433, 4 Am. St. Rep. 482, 17 N. E. 363 (relief refused when it will be of very great inconvenience and possible oppression to the defendant). In the important case of Pierce v. Equitable Life Assnr. Snc, 145 Mass. 56, 12 N. E. 858, 3 Keener 929, the defendant company Avas compelled to account to the holder of a "tontine" policy, to show that it had complied with its promise "equitably to apportion" to the plaintiff his share in the accumula- tions made through the operation of the tontine provisions in his policy. Relief Avas granted on the ground of the extreme complexity of the accounts. But in Uhlman v. N. Y. Life Ins. Co., supra, relief was refused or similar facts. ^This will embraces suits against trustees — including directors of corporations 919 SUITS FOR AN ACCOUNTING. § 14 U obviously constitutes a bar to a suit in equity for au accountiug, — which, as before stated, are particularly of equitable cognizance. Also suits for an accounting between partners; see Pom. Eq. Rem. §§ 937-942. The jurisdic- tion of equity to compel guardians and executors and administrators to account is governed to a great extent in the United (States by the powers given to courts of probate: ante, § 1154. The principal difficulty is as to when equity will take jurisdiction of an accounting between principal and agent. The mere relation of principal and agent, without more, — the relation not being really fiduciary in its nature, and no obstacle intervening to a recoveiy at law,— is insufficient to enable a principal to maintain the action against his agent: King v. Rossett, 2 Young & J. 33, 3 Keener, 886; Moxon v. Bright, L. R. 4 Ch. 292, 1 Ames Eq. • lur. 450, 3 Keener, 918. But where the relation is such that a confidence is rei)osed by the principal in his agent, and the matters for which an accounting is sought are peculiarly within the knowledge of the latter, equity will assume jurisdiction: Makepeace v. Rogers, 11 Jur., N. S. 215, 3 Keener, 916; ^Mackenzie V. Johnston, 4 Madd. 373, 1 Ames Eq. Jur. 444, 3 Keener. 885; Moxon v. Bright, L. R. 4 Ch. 292, 1 Ames Eq. Jur. 452, 3 Keener, 918; Marvin v. Brooks, 94 N. Y. 71, 3 Keener, 924. While the rules are thus settled in favor of a principal, it does not follow that the reverse is true, and that an agent may come into equity for an accounting against his principal, since generally there is no trust or confidence reposed in the latter, and no duty on his part to account: Padwick V. Stanley, 9 Hare, 627, 3 Keener, 905,; Smith v. Leveaux. 2 Tie Gex. J. & S. 1, 3 Keener, 913. But there are cases where an agent may maintain the action against his principal; as, for example, where his salary depends on the profits made by his employer: Harrington v. Churchward, 6 Jur., N. S. 576, 1 Ames Eq. Jur. 457; Cliannon v. Stewart. 103 111. 541, 3 Keener, 922; Alpaugh v. Wood, 45 N. J. Eq. 153, 16 Atl. 676, 3 Keener, 943; and persons, although not techni- cally partners, who are to receive a certain share of the profits of an undertaking, may likewise maintain the action: Pratt v. Tuttle, 136 Mass. 233, 3 Keener, 928. The foregoing rules are applicable, for similar reasons, to part owners: Sliirley v. Goodnough, 15 Oreg. 642, 16 Pac. 871: and to tenants in common and joint tenants taking more than their share of rents and profits: Early v. Friend, 16 Graft. 21, 78 Am. Dec. 649. An action by one tenant in common against another in exclusive possession to recover a share of rents, profits, and issues, amounting in the aggregate to a certain sum, cannot be maintained in equity: Pico V. Columbet, 12 Cal. 414, 73 Am. Dee. 550. At the common law, no action of account for taking rents and profits lay against a joint tenant or tenant in nonunon by another, unless the defendant was constituted bailiff: Co. Lit. 200 b; hut tliis was remedied by the statute of 4 Anne, c. 16, sec. 27, and the action could be brought against the defendant as bailiff for receiving more than his sliare or proportion. Tliis statute has been substantially re-enacted in many of the American states, but the equity jurisdiction exists notwithstanding. An accounting is often an incident to a suit for partition between joint tenants and tenants in common: See ante, § 1389. The relation of banker and customer is not fiduciary in its character, and unless there are other circumstances, there can be no accounting between them in equity: Foley v. Hill, 2 H. L. Cas. 28, 1 Ames Eq. Jur. 446, 3 Keener, 897. The rule is sometimes laid down by text-writers and judges, that where ac- counts are ail on one side, but a discoveiy is necessary, a proper case is pre- sented for equitable interference, but such a rule seems to be only applicable to cases partaking of a fiduciary character: See cases ante, in tliis note. As to discovery enlarging the equitable jurisdiction over accounting, see ante, §§ 223 et seq. § 14'-il EcjuiTY jri;isPi;LDi:xci;. 920 since in that case the remedy at law is entirely adequate ;* but of course, a stated account may be opened for fraud or error.^ The remedy of accounting is in most instances a necessary incident and part of the relief granted in suits brought by those beneficially in- terested, against trustees, either express or implied, and persons standing in fiduciary relations, such as administrators, executors, guardians, directors, and the like. The equitable jurisdiction is also ])raetically exclusive in proceedings for an account and settlement of partnership affairs, including suits for an accounting and settle- ment of the firm affairs between the copartners themselves; suits for a settlement of the firm affairs between the survivors and the executors or administrators of the deceased when a partner has died; and suits to settle the affairs of an insolvent firm, and to adjust the demands of the firm creditors and the creditors of the individual partners. The ecpntable jurisdiction over partnerships is a necessary outgrowth of the jurisdiction over accounting, and the remedies of dissolution, injunction, and receivership are in- cidents necessary to a final and complete relief." * Weed V. !Sinall, 7 Paige, 573. ^ Barrow v. Rhinelander, 1 Johns. Cb. 550, 1 Scott, 409. " Tlie subject of partnersliip is so broad, requiring so much discussion for its adequate treatment, that 1 shall not attempt to consider it. See Pom. Eq. Hem., §§ 936-945. TABLE OF CASES CITED. TABLE OF CASES CITED. Abbott V. James, 111 N. Y. 673, 2 Keener 1166, p. 895. Abbott V. Sworder, 4 De Gex & S. 448, 2 Keener 483, p. 483. Abbott V. Treat, 78 Me. 121, 125, 3 Atl. 44, p. 445. Abernathy v. Hutchinson, 1 Hull & T. 28. 40, 3 L. J. Ch. 209, p. 839. Ackerman v. Hunsicker^ 85 X. Y. 43, 47, 39 Am. Eep. 621, Kirch. 285, p. 702, 703. Ackroyd v. Sniitlison, 1 Biowu Ch. 503, 1 Lead. Cas. Eq. 4th Am. ed., 1171, 1181, 3 Keener 977, 1 Scott 621, p. 587, 683. Acton V. Acton, Prec. Ch. 237, Kirch. 202, p. 779. Acton V. Woodgate. 2 ]\lylne & K. 492, p. 555. Adair v. Craig, 135 Ala. 332, 33 South. 902, p. 518. Adair v. Shaw, 1 Schoales & L. 243, 262, p. 5.50. 656. Adams v. Adams. 21 Wall. 185, 22 L. ed. 504, Ames Trusts. 227, p. 567, 607. Adams v. Angell, L. R. 5 Ch. Div. 634, 635, p. 381. Adams v. Brenan, 177 111. 194, 69 Am. St. Rep. 222, 52 N. E. 314, 42 L. R. A. 718, p. 822. Adams v. Hill, 29 N. H. 202, p. 345. Adams v. Messinger, 147 Mass. 185, 6 Am. St. Rep, 679, 17 N, E. 491, 1 Ames Eq. ,Tur. ,50, 2 Scott 48, 2 Keen- er 41, p. 882, 883. Adams v. Rutherford. 13 Oreg. 78, 8 Pac. 896, p. 219. Adams v. Vanderbeck, 148 Ind. 92, 45 N. E. 645, 47 N. E. 24, 62 Am. St. Rep. 497, p. 360. Adams v. Weare, 1 Pro. C. C. 567, 1 Ames Eq. Jur. 397. 2 Scott 286, 2 Keener 1006, p. 895. Addcrley v. Dixon, 1 Sim. & St. 007, 608, 610, 1 Ames Eq. Jur. 58, H. & B. 584, 2 Scott 14, 2 Keener 13, p. 879, 880, 881, 882, 883. Additon v. Smith, 83 Me. 551, 22 Atl. 470, p. 660, 663. Aden v. City of Vallejo, 139 Cal. 165, 72 Pac. 905, p. 360. Aderholt v. Henry, 87 Ala. 416, 6 South. 625, 6 L. R. A. 451, p. 728. Adlington v. Cann, 3 Atk. 141, 145. 149, 151, p. 566. Adsit V. Adsit, 2 Johns. Ch. 448, 451, 7 Am. Dec. 539, p. 235. Alden v. White, (Ind. App.) 66 N. E. .509, p, 707. Alderson v. Comm'rs, 32 W. Va. 640, 25 Am. St. Rep. 840, 9 S. E. 868. 5 L. R. A. 334, p. 821. Aldrich v. Coopei% 8 Ves. 382, 395, 2 Lead. Cas. Eq. 228, 255, 291, 305, p. 68, 725, 909. Aleck V. Jackson, 49 X. J. Eq. 507, 23 All. 760, 2 Ames Eq. Jur. 45, p. 799. Alexander v. Merrick. 121 111. (106, 13 X. E. 190, p. 180. Alexander v. Mortgage Co. of Scotland, 47 Fed. 131, 134, p. 80. Aetna Xat. Bank v. Fourth Bk. of X. Y., 46 X. Y. 82, 87, 7 Am. Rep. 314, p. 766. Agar V. Fairfax, 17 Ves. 533. 2 Lead. Cas. Eq., 4th Am. ed. 865-919, 880, 894. p. 67. 867, 868. Agar V. Macklew, 2 Sim. & St. 418, 1 Ames Eq. Jur. 67, p. 886. Agar-Ellis v. Lascelles, 24 Ch. Div. 317. p. 783. Ager V. IMurray, 105 U. S. 126, 26 L. ed. 942. p. 910. Agnew V. R. R. Co., 24 S. C. 18, 58 Am. Rep. 237, p. 381, 382. Ahrend v. Odiorne, 118 Mass. 261, 19 Am. Rep. 449, Kirch. 131, p. 745, 746. (923). 924 TABLE OF CASES CITED. Aigeltinger v. Einstein, 143 Cal. 609, 101 Am. St, Rep. 131, 77 Pac. UGU, p. iJll, 912. Akin V. Kellogg, 119 N. Y. 441, 23 X. E. 104(i, p. 238. Alabama & Vicksburg Ry. Co. v. Jones, 73 Miss. 110, 55 Am. St. Rep. 488, 19 South. 105, p. 415. Alabama Coal & C. Co. v. Shackelford, 137 Ala. 224, 97 Am. St. Rep. 23, 34 South. 833, p. 806. Albany City Savings Inst. v. Burdick, 87 X. Y. 39, 3 Keener 378, p. 429. Albea v. Griffin, 2 Dev. & B. 9, 1 Ames Eq. Jur. 288, p. 902. Alger V. Anderson, 92 Fed. 090, 700, 710, p. 99. Alleard v. Skinner, 3G Ch. D. 145, 187, p. 510, 522, 526. Allen V. Allen, 13 S. C. 512, 30 Am. Rep. 716, p. 246, 247, 248, 249. Allen V. Hammond, 11 Pet. 63, 2 Scott .582. p. 437. Allen V. Hawley, 6 Fla. 164, 63 Am. Dec. 198, p. 804. Allen V. Jackson, 121 111. 507, 13 N. E. 840, p. 523. Alh-n V. Jackson, L. R. 1 Ch. Div. 399, p. 489. Allen V. Poole, 54 Miss. 323, 333, p. 284. 285, 286. Allen V. Stevens, 161 N. Y. 122, 55 X. E. 568, H. & B. 430, p. 577. Allerton v. Belden, 49 X. Y. 373, 2 Ames Eq. Jur. 113, p. 861. Allfrey v. Allfrey, 1 :\lacn. & G. 87, 99. 1 Scott 394, p. 521. Allis V. Jones, 45 Fed. 148, p. 174. Allore V. Jewell, 94 U. S. 506, H. & B. 320, Shep. 90, p. 476, 506. Almy V. Jones, 17 R. I. 265, 21 Atl. 616, 12 L. R. A. 414, p. 577. Aljiaugh V. \Aood, 45 X. J. Eq. 153, 16 Atl. 676, 3 Keener 943, p. 919. Alpers V. San Francisco, 12 Sawy. 631, 32 Fed. 503, p. 822. Amanda Consol. G. ^M. Co. v. People's :\r. & M. Co., 28 Colo. 251, 64 Pac. 21 S. p. 222. American Bell Tel. Co. v. Kitsell, 35 Fed. 521, p. 837. American Biscuit Co. v. Klotz, 44 Fed. 721, H. & B. 891, p. 802. American Braided Wire Co. v. Thomp- son, 44 Ch. Div. 274, p. 837. American Freehold L. & ]M. Co. v. Sewell, 92 Ala. 163, 9 South. 143, 13 L. R. A. 299, p. 179. American Freehold L. M. Co. V. Walk- er, 31 Fed. 103, p. 410. American Moi'tgage Co. v. Hutchinson, 19 Oreg. 334, 24 Pac. 515, 517, p. 363. American Surety Co. v. Pafily, 170 U. S. 133, 18 Sup. Ct. 552, p. 308. American Trust etc. Bank v. McGetti- gan, 152 Ind. 582, 71 Am. St. Rep. 345, 52 X. E. 793, p. 80S. American Washboard Co. v. Saginaw Mfg. Co., 103 Fed. 281, p. 840. American Waterworks Co. v. Fanners'^ L. & T. Co., 20 Colo. 203, 46 Am. St. Rep. 285, 37 Pac. 209, 26 L. R. A. 348, p. 811. Amerman v. Deane, 132 X. Y. 355, 28 Am. St. Rep. 584, 30 X. E. 741, 28 L. R. A. 584, 2 Keener 1050, p. 777, 894. Ames V. Richardson, 29 ]\Iinn. 330, 13 X. W. 137, Shep. 64. p. 157. Aiiiick V. Woodworth, 58 Ohio St. 86, 50 X". E. 437, p. 717. Amsterdam Knitting Co. v. Dean, 162 X. Y. 278, 56 X. E. 757, 1 Ames Eq. •Tur. 573, p. 831, 834. Anderson v. Eggers, (X'. .J. Eq.) 49 Atl. 578, reversing 61 X. J. Eq. 85, 47 Atl. 727, p. 471, 473. Anderson v. Xicholas, 28 N. Y. 600, p. 333. Andrews v. Andrews, 12 Ind. 348, 2 Ames Eq. Jur. 245, p. 859. Andrews v. Frierson, 134 Ala. 626, 33 South. 6, 1 Scott 108, p. 861. Angell v. Angell, 1 Sim. & St. 83, 93, 2 Ames Eq. Jur. 168. p. 84, 85. Angell V. Hadden, 15 Ves. 244, 1 Keener 214, p. 791. Angier v. Webber, 14 Allen 211, 92 Am. Dec. 748. 2 Scott 126, p. 820. Angus V. Cliftord, [1891] 2 Ch. 449, p. 451. Anketel v. Converse, 17 Ohio St. 11, 91 Am. Dee. 115, p. 304. TABLi: Of CASKS CITED. 923 Anonymous, 1 Alk. 401, p. G.")(i. Anonymous, iloore 554 pi. 798, 1 Ames Eq. Jur. 467, p. 827, 829. Anonymous, 3 fSwunston 79, u. (a), Ames Trusts 508, p. Oil. Anonymous, 2 Ves. 414, 1 Ames Eq. Jur. 611. 1 Scott 168, p. 841. Anonymous, Year liook, 5 Edw. l\'. 7, pi. 18, Ames Trusts 352, p. 552. Anthony v. Boyd, 15 R. I. 495, 8 Atl. 701, 10 Atl. 657, p. 428. Anthony v. Wheeler, 130 111. 128, 17 Am. St. Rep. 281, 22 N. E. 494, p. 269. 270, 367. Appleton V. Rowley, L. R. 8 Eq. 139, Ames Trusts 381, p. 552, 644, 604. A. R. Beck Lumber Co. v. Rupp, 188 111. 562, 80 Am. St. Rep. 190, 59 N. E. 429, p. 278, 342. Arguello, In re, 97 C'al. 190, 31 Pac. 937, Ames Trusts 482, p. 611. Armstrong v. flayer, (Xebr.) 95 N. AV. 51. p. 101. Anult V. Griggs, 134 U. S. 316, 10 Sup. Ct. 557, p. 207. Arnold v. Henry, 155 Mo. 48, 78 Am. St. Rep. 556, 55 S. W. 1089, p. 821. Arnold v. Pawtuxet Val. Water Co., 18 R. I. 189, 26 Atl. 55, 19 L. R. A. 602, p. 76. Arrington v. Wiscom, 34 Cal. 365, 94 Am. Dec. 722, 2 Ames Eq. Jur. 142, p. 875. Arthur v. Oakes, 03 Fed. 310, Lewis 253, p. 840. Ashcraft v. DeArmond, 44 loAva, 229, p. 505. Ashton V. Dashaway Ass'n, 84 Cal. 61, 22 Pac. 000, 23 Pac. 1091, 7 L. R. A. 809, p. 633. Asliton V. Thompson, 32 Minn. 25, 41, 42, 2 Scott 703, p. 521, 522. Ashurst V. McKenzie, 92 Ala. 484, 9 South 202, 1 Keener 381, p. 860. Askew V. Rooth, L. R. 17 Eq. 426, p. 639. Aspen Mining & S. Co. v. Rueker, 28 Fed. 220, p. 868. Aston V. Lord Exeter, Ves. 288. p. 860. Astor V. Hoyt, 5 Wend. 603, Kircli. 292, p. G93. Atcliesoii V. :\Iallon, 43 X. Y. 147, 3 Aui. Rep. 678, p. 492. Atkins V. W. & A. Fletcher Co., 05 \. J. Eq. 658, 55 Atl. 1074, p. 84,". Atkinson v. Leonard, 3 Brown Cii. 2 IS, 224, 1 Scott 138. p. 131, 132. Atkinson v. Miller, 34 Va. 115, 11 S. E. 1007, 9 L. R. A. 544, 1 Scott 30S, p. 740. Atlantic Cotton Mills v. Iiuliau Orchard Mills, 147 Mass. 2(iS. 17 \. E. 496, 9 Am. St. Rep. 098, ]>. :;()S. Attenborough v. London etc. Dock Co., L. R. 3 C. P. D. 450, p. 794. Att'y-Gen. v. Abbott, 154 Alass. 323, 28 X. E. 346, 13 L. R. A. 251. p. 271. Att'y-Gen. v. Algonquin Club, 153 Alass. 447, 27 X. E. 2, 11 L. R. A. 500, 2 Keener 319, p. 776. Atfy-Gen. v. Birmingliam, 4 Kay & J. 528, p 832. Att'y-Gen. v. Briggs, 104 Mass. 561, 567, 42 X. E. 118, p. 581. Att'y-Gen. v. Corporation of London, 2 JIacn. & G. 247, 256, 257. 13 Beav. 313, p. 80. Att'y-Gen. v. Fitzsimmons, 35 Am. Law Reg. 100, 1 Ames Eq. Jur. 622, 1 Scott 724, ]). 830. Att'y-Gen. v. Gaskill, L. R. 20 Ch. Div. 519, p. 74, 75. Att'y-Gen. v. Great West. R'y., L. R. 7 Ch. 707, p. 030. Att'y-Gen. v. Hickman, 2 Eq. ('as. \hr. 193, Ames Trusts 224, p. 580. Att'y-Gen. v. Hunter, 1 Div. Eq. fX. C.) 12, 1 Ames Eq. Jur. 621, ]). 830. Att'y-Gen. v. Landisfield, 9 j\Iod. Rep. 280, Ames Cas. on Trusts, 210. j). 549. Att'y-Gen. v. Manchester. [1893] 2 Cli. 87, 1 Scott 721, p. 831. Att'y-Gen. v. Xichol, 16 Ves. 338, 342, 1 Ames Eq. Jur. 534, 1 Keener 651, p. 834. Att'y-Gen. v. Richards, 2 Austr. 603, 1 Ames Eq. Jur. 615, p. 830. Att'y-Gen. v. Sheffield Gas. Co., 3 De Gex'. ]\r. & G. 304, 1 Keener 682. p. 830. Att'y-CJen. v. Stejdiens, De Gex, M. & G. 11 L 133. p. 867. 926 TABLE OF CASKS CITED. Att'y-Gen. v. Tudor Ice Co., 104 :Mass. 239, Am. Kep. 227, bhep. 3, p. 821. Att'y-Gen. v. \\illiams, 174 Mass. 476, 55 N. E. 77, 1 Ames Eq. Jur. 619, p. 830. Att'y-Gen. v. Wilson, Craig & P. 1, 28, p. 621. Att\\oo(l V. Small, 6 Clark & F. 232, 359, p. 455, 458, 460. Austin V. Bell, 20 Johns. 442, 11 Am. Dec. 297, p. 556. Austin V. Underwood, 37 111. 438, 87 Am. Dec. 254, p. 345. Aveling v. Knipe, 19 Ves. 441, p. 189. Averill v. Taylor, 8 N. Y. 44, p. 38(i. Avery v. Clark, 87 Cal. 619, 25 Pac. 919, 22 Am. St. Rep. 272. p. 748. Aydlett v. Pendleton, 111 N. C. 28. 16 S. E. 8, 32 Am. St. Rep. 776, p. 867. Ayers v. Dixon, 78 X. Y. 318, 322, 323. ]). 713. Ayloffe V. Duke, 2 Freem, Cli. 152, p. 849. Ayres Ex parte, 123 U. S. 443, 8 Sup. Ct. 164, 31 L. ed. 216, p. 822. Ayres v. Duprey, 27 Tex. 593, 605, 86 Am Dec. 057, p. 343. B. Backer v. I'jTie, 130 Ind. 288, 30 X. E. 21, 30 Am. St. Rep. 231, p. 459. Bacon v. Bronson, 7 Johns. Ch. 194, 201. 11 Am. Dec. 449, p. 473. Baddeley v. Baddeley, L, R. 9 Ch. Div. 113, Ames Trusts 170, p. 559. Bado-er v. Badger, 2 Wall. 87, 94, 17 L. ed. 836, 2 Scott 766, p. 199, 476. Badger v. Boardman, 16 Gray, 559, 2 Keener 473, p. 776. Badgley v. Bruce, 4 Paige 98, p. 865. Baers Appeal, 127 Pa. St. 360, 18 Atl. 1, 4 L. R. A. 609, p. 614. Raggett V. Meux, 1 Phill. Ch. 627, 1 Coll. C. C. 138, p. f)43. Bailey v. Bailey, 2 Del. Ch. 95, p. t)25. Bailey v. Barnes, [1894] 1 Ch. 25, 7 Reports, 9, p. 269. Bailey v. Briggs, 56 X. Y. 407, p. 675. Bailey v. Duncan, 4 ^lon. 256, 2 Keener 343, 2 Scott 417, p. 102. Bailey v. Gardner, 31 W. Va. 94, l> S. E. 636, 13 Am. St. Rep. 847, p. 638. Bailey v. Hemenway, 147 Mass. 326, p. 590. Bailey v. Piper, L. R. 18 Eq. C83, 2 Keener 343, p. 905. Bailey v. Schnitzius 45 X. J. Eq. 178, 16 Atl. 620, 1 Keener 863, p. 848. Bailey v. Tillinghast, (C. C, A.) 99 Fed. 801, 807, p. 119. Baily v. Hornthal, 154 N. Y. 648, 661, 61 Am. St. Rep. 645, 652, 49 X. E. 56, p. 63, 68. Baily v. Smith, 14 Ohio St. 396, 84 Am. Dec. 385, Kirch. 667, p. 329, 715. Baily v. Taylor, 1 Russ. & il. 23, 1 Ames Eq. Jur. 654, p. 838. Bainbrigge v. Baddeley, 3 Macn. & G. 413, 419, p. 802, 804. P>aines v. Baker, 1 Amb. 158, 1 Scott 720, p. 831. I'.akei- V. Biddlc, 1 Bald. 394, 403-411, p. 144. Baker v. Bliss, 39 X. Y. 70, 74, 78, p. 269, 270. Baker v. Bradley, 7 De Gex, ]\I. & G. 597, p. 522. Baker v. Cunningham, 162 ]Mo. 134. 62 S. W. 445, 85 Am. St. Rep. 490, p. 198. I'.akor V. Humphrey, 101 U. S. 499, p. 520. Baker v. Mather, 25 Mich. 51, 53, p. 281. Baker v. :Monk, 4 De Gex, J. & S. 388, p. 523. Baker v. Sebright, L. R. 13 Ch. D. 179, 1 Keener 515, p. 828, 829. Baker v. Varney, 129 Cal. 564, 79 Am. St. Rep. 140, 62 Pac. 100. p. 805. ISaker v. Vining, .30 Me. 121, 126, 50 Am. Dec. 617, p. 591. Bald Eagle Val. R. Co. v. Xittaiiy Val. R. Co.. 171 Pa. St. 284, 50 Am. St. Rep. 807. 33 Atl. 239, 29 L. R. A. 423, p. 776. Baldwin v. Aldrichs, 34 Vt. 532, 80 Am. Dec. 695. p. 867. I'.aldwin V. Davidson, 139 Mo. 118, 61 Am. St. Rep. 460, 40 S. W. 765, p. 8.54. Baldwin v. Sager, 70 111. 503, p. 365. TABLE OF CASKS CITED. 927 3all V. Tompkins, 41 Fed. 4S(i, 489. p. 142. Ballon V. Inhabitants of Hopkinton, 4 (h-ay, 324, ;}28, 1 Keener 174, p. 113. Baltimore & O. K. Co. v. Arthur, 90 X. Y. 234, 2 Ames Eq. Jur. 13, 1 Keener 293, p. 791, 794, 795. Banco De Lima v. Anglo-Penivian Bank, L. R. 8 Ch. Div. 160, 175, p. 30(5. Bancroft v. Consen, 13 Allen, 50, p. 295. Bancroft v. Otis, 91 Ala. 279, 24 Am. St. Rep. 904, 8 South. 286, p. 514. Bank v. Sneed, 97 Tenn. 120, 56 Am. St. Rep. 788, 36 S. W. 716, 34 L. R. A. 274, p. 505. Bank of Florence v. U. S. S. & L. Co., 104 Ala. 297, 16 South. 110, H. & B. 897, p. 802, 808. Bank of Hindustan v. Alison, L. R. 6 Com. P. 54, 222, p. 395. Bank of Kentucky v. Stone, 88 Fed. 383, 391, p. 108. Bank of Mendocino v. Baker, 82 Cal. 114, 22 Pac. 1037, (i L. R. A. 833, p. 275. Bank of Ukiah v. Rice, 143 Cal. 265, 76 Pac. 1020, 101 Am. St. Rep. 118, p. 684, 685. Bank of United States v. Davis, 2 Hill. 451, 461, 464, p. 304. Bank of Utica v. Mersereau, 3 Barb. Ch. 528, 49 Am. Dec. 189, 7 Paige, 517, p. 81. Bank of Woodland v. Heron, 120 Cal. 614, 52 Pac. 1006, p. 808. Baptist Ass'n. v. Hart's Ex'rs, 4 Wheat. 1, p. 580, 582. Barbour v. Xat. Exch. Bank, 45 Ohio St. 133, 12 N. E. 5, p. 809. Barker v. Vansommer, 1 Brown Ch. 149, p. 486, 497. Barker's Trusts, In re, 1 Ch. Div. 43, Ames Trusts, 223, H. & B. 54. p. 624. Barnard v. Campau, 29 !Mich. 162. p. 270. Barnard v. Campbell. 55 N. Y. 453. 462. 463, p. 398. Bavned Banking Co.. In re, 39 L. J. Ch. 635, Ames Trusts 42, p. 569. Barned's Bank, In re, L. R. 2 Ch. 350, p. 79. Barnes v. McClinton, 3 Penr. «S: W. 67, 23 Am. Dec. 62, p. 264. Barnes v. Milne, 1 Rich. Eq. 459, 24 Am. Dec. 422, p. 854. Barnes v. Sanimons, 128 Ind. 596, 27 N. E. 747, p. 133. Barnes v. Wood, L. R. 8 Eq. 424, 1 Ames Eq. Jur. 249, 2 Scott 395, 2 Keener 1228, p. 906. Barnesly v. Powel, 1 Ves. Sr. 284, 287, p. 439. Barnett v. Cline, 60 Me. 205, p. 2757. Barnett v. Nelson, 54 Iowa, 41, 37 'Am. Rep. 183, 6 N. W. 41, p. 718. Barney v. McCarthy, 15 Iowa, 510, 83 Am. Dee. 427, p. 372. Baron v. Korn, 127 N. Y. 224, 27 X. E. 804, 1 Keener 640, p. 844. Barrett v. Baker, 136 Mo. 512, 37 S. W. 130, p. 266. Barrett v. Hartley, L. R. 2 Eq. 789, 795, p. 622. Barrett v. Hinckley, 124 111. 32, 14 X. E. 863, 7 Am. St. Rep. 331, Kirch. (')34. H. a B. 5.57, p. 689, 692, 714. Barrett v. Weber, 125 X. Y. 18, 25 X. E. 1068, p. 497. Barrier v. Kelly, (Miss.) 33 South. 974, p. 230, 231. Barrow v. Barrow, 18 Beav. 529, 2 Ames Eq. Jur. 199, p. 430. 437. Barrow v. Rhinelander, 1 Johns. Cii. 5.50, 1 Scott 469. p. 920. Barrow v. Richard, 8 Paige, 351. 35 Am. Dec. 713, 1 Ames Eq. Jur. 173, 2 Scott 521, 2 Keener 461, p. 319, 776. Barrow v. Trustees, [1891] 1 Q. B. 417. p. 226. ]?arry v. Barry. 1 Jac. & W. 651, 1 Keener 465, p. 828. Barry v. Stevens, 31 Beav. 258. 1 Ames Eq. Jur. 451, 3 Keener 910, p. 918. Barstow v. Savage ^Mining Co.. 64 Cal. 388. 49 Am. Rep. 705, 1 Pac. 349. p. 332. Harth v. Backus, 140 X. Y. 230, 37 Am. SI. Rep. 545. 35 X. E. 425, 23 L. R. A. 47, p. 811. 928 TABLE OF CASES CITED. Barth v. Ueiiel, 11 Colo. 494, 19 Pac. 471, p. 557. Bartle v. Coleman, 29 U. S. (4 Pet.) 184, 7 L. eel. 825, Shep. 109, p. 185. Eartlett v. Cicero Light etc. Co., 177 111. ()8, 69 Am. 8t. Rep. 206, 52 N. E. 339, 42 L. E. A. 715, p. 810. Haiton V. Barbour, 104 U. S. 126, 20 L. ed. 673, p. 809. Bascombe v. Beckwith, L. R. 8 Eq. 100. 2 Keener 963, p. 431. Basket v. Hassell, 107 U. S. 602, 2 Sup. Ct. 415, 27 L. ed. 500, p. 667. Basket v. Moss, 115 X. C. 448, 20 S. E. 733, 44 Am. St. Rep, 463, 48 L. R. A. 842, p. 494, 501. Bass V. Met. W. S. El. R. Co. 82 Fed. 857, 27 C. C. A. 147, 39 L. R. A. 711, p. 824. Basset V. Nosworthy Cas. T. Finch, 102, 2 Lead. Cas. Eq. 1, 4, 31, 33-42, 46, 73-96, and notes, 1 Scott 340, 498, p. 196, 314, 357, 358, 370. Bassett v. Leslie, 123 X. Y. 396, 25 X. E. 386, 1 Keener 266, Shep. 319, p. 790. 793, 798. Batavia v. Wallace. 102 Fed. 240, 42 C. C. A. 310, p. 303. Bate V. Hooper, 5 De Gex, ^1. & G. 338, p. 613. Bateman v. ^^'illoe. 1 Sclioales & L. 201, 204, 206, p. 850. Bates V. American Mortgage Co., 37 S. C. 88, 16 S. E. 883, 21 L. R. A. 340. p. 303. Bates V. Hurd, 65 Me. 180, H. & B. 368, p. 566, 567. Bates V. .Johnson, Jolins. 304, Ames Trusts 292, p. 373. Bath Sav. Inst. v. Hathorn, 88 Me. 122, 51 Am. St. Rep. 382. 33 Atl. 836, 32 L. R. A. 377, H. & B. 400, p. 558, 559. Batty V. Gliester, 5 Beav. 103, 3 Keener 849, p. 496, 500, 501. Batty V. Lloyd, 1 Vern. 141, 2 Scott 672, 3 Keener 504, p. 484. Baum V. Grigsby, 21 Cal. 172, 81 Am. Dee. 153, p. 750. Baxendale v. Scale, 19 Beav. 601, 2 Keener 943, p. 428. Bay City Bridge Co. v. Van Etten, 36 Mich. 210, p. 65. Bayler v. Comm, 40 Pa. St. 37, 80 Am- Dec. 551, Shep. 217, p. 769. Bayspoole v. Collins, L. R. 6 Ch. 228, 232, p. 533. Bay State Iron Co. v. Goodall, 39 X. H. 223, 230, 75 Am. Dec. 219, p. 910. Beal V. Brown, 13 Allen 114, p. 914. Beal V. Warren, 2 Gray, 447, p. 534. Beall V. Smitli. L. R. 9 Ch. 85, 91, p. 786. Bearden v. Benner, 120 Fed. 690, p. 868. Beatty v. Clark, 20 Cal. 11, 30, p. 410. Beatty v. Dixon, 56 Cal. 622, p. 866. Beatty v. Kurtz, 2 Pet. 566, 584, 7 L. ed, 521, p. 843. Beaufort v. Collier, 6 Humph. 487, 44 Am. Dec. 321, p. 639. Beaupland v. McKeen, 28 Pa. St. 124, 131, 70 Am. Dec. 115, p. 395. Beavan v. Earl of Oxford, 6 De Gex, :M. & G. 507. .-il7, 518, p. 341. Beaver v. Beaver, 117 X. Y. 421, 18 Alii. St. Rep. 531, 6 L. R. A. 403, 22 X. E. 940, H. & B. 396, p. 559, 569. Beck V. Allison, 56 X. Y. 366, 15 Am. Rep. 430, 1 Ames Eq Jur. 70, 2 Keener 167, 2 Scott 79, p. 887. Beck V. Flournoy Live-Stock & R. K. Co., 65 Fed. 30, 12 C. C. A. 497. 27 U. S. App. 618, p. 494. Beck V. Uhrich, 13 Pa. St. 636. (i39. 53 Am. Dec. 507, 16 Pa. St. -J'.!9. p. 365. Beck Lumber Co. v. Rupp, 188 111. 562. 80 Am. St. Rep. 190, 59 X. E. 429, p. 278, 342. Beekman v. Hudson, 20 W'end. 53, p. 489. Belchier, In re, Ambler, 218, Ames Trusts 516, p. 611. Belding v. Meloche, 113 Mich. 223, 71 X. W. 592, H. & B. 862, p. 806. Bell V. Cundall, Amb. 102, 2 Scott 640, p. 374. Bell V. Pelt, 51 Ark. 433, 11 S. W. 684, 14 Am. St. Rep. 57, 4 L. R. A. 247, p. 740. Bell V. Pleasant. 145 Cal. 410. 78 Pac. 957, p. 367. Bell V. Twilight, 22 X. H. 500, p. 282. TABLIO 01' CASi;.s CI'l'Kl). 929 Bell V. Walker, 1 Bro. C C. 451, 1 Ames Eq. Jur. 650, p. S38. Bellairs v. Bellairs, L. R. IS Eq. 510, ]>. 4S!». Bellamy v. Sabine, 1 De Gex & J. 5(50, 578, 580, 584, p. 283, 287, 288. Belmont v. Coman, 22 X, Y. 438, 78 Am. Dec. 213, p. 710. Belt's Estate, In re, 29 Wash. 535, 92 Am. St. Rep. 910, 70 Pac. 74, p. G09. Benbow v. Low, L. R. 16 Ch. Div. 93, p. 80. Benbow v. Townseud, 1 divine & K. 506, p. 592. Bence v. Shearman, [1898] 2 Ch, 582, ]). 328. Bench v. Sheldon, 14 Barb. 06, p. 465. Benedict v. Lynch, 1 -lolins. Ch. 370, 7 Am. Dec. 484, 2 Keener 1074, p. 900. Bennett, Ex parte, 10 Ves. 381, 393, 394. p. 515. Bennett v. Bennett, (Xebr.) 91 N. W. 409, p. 506. Bennett v. Butterworth, 11 How. 669, 674, 675, 13 L. ed. 859, p. 139. Bensick v. Cook, 110 IMo. 173, 19 S. W. 642, 33 Am. St. Rep, 422. p. 385. Benson v, Markoe, 37 Minn. 30, 33 N.. W. 38, 5 Am. St. Rep. 816, p. 416. Bentley v. Craven, 18 Bear. 75, H. & B. 5.30, p. 517, 518, 523. Bergman v. Bergman, 43 Oreg. 456, 72 Pac. 1086, 73 Pae. 341, 99 Am. St. Rep. 771, p. 2a6. Bernard v. Toplitz, 160 INIass. 162, 35 N. E. 673, 39 Am. St. Rep. 465, p. 721. Berney v. Sewell, 1 .Jacob & W. 647, p, 805. Bcrnz v. Marcus Sayre Co., 52 N. J. Eq. 275, 30 Atl. 21, p. 65. Berry v. ilut. Ins. Co., 2 Johns. Ch. 603, 608, 1 Scott 331, Shep. 104, p. 195. 314, 339. Bertman v. Whipple, (R. T.) 57 Atl. 379, p. 510. Bethea v. Bethea, 116 Ala. 265, 22 South. 561, p. 178. Bethel! v. Abraham. L. R. 17 Eq. 24. p. 614. Betlie'l V. Bethell, 92 Ind. 318, 327, p. 444. 59 Itethlelieni v. Annis, 40 X. H. 34, 40, 77 Am. Dec. 700, p. 761. Beverley v. Brooke, 4 Gratt. 187, 208, p. 802. Bewick v. Whitfield, 3 P, Wms. 267, 1 Keener 505, p. 829. Bickerstaff v. :\Iarlin. GO Miss. 509, 45 Am. Rep. 418, p. .521. Bidwell V. Astor Ins. Co., 10 X. Y. 203, 267, p. 100. Bigbee v. Summerour, 101 C4a. 201, 28 S. E. 642, p. 804. Bigelow v. Amies, 108 U. S. 10. 1 Sup. Ct. 83, 27 L. ed. 631, 2 Keener (i»i4. p. 903. Biggs V. Hoddinott, [1898] 2 Ch. 307, Kirch. 475, p. 698. Bigler v. Jack, 114 Iowa, 667, 87 X. W. 700, p. 700. Bigley v. Jones, 114 Pa. St. 517, 7 At!. 54, p. 372. Billage v. Southee, 9 Hare 534, 540, 594, p. 513. Bindseil v. Smith, 61 X. J. Eq. 654. 47 Atl. 456, p. 68. Bingel v. Volz, 142 111. 214, 31 X. E. 13, 34 Am. St. Rep. 64, 16 L. R. A. 321, p. 438. Bingham v. Bingham, 1 Yes. Sr. 126. 2 Ames Ecj. .lur. 264, 3 Keener 5, 2 Scott 543, p. 424, 425, 437. Bingham's Appeal, 64 Pa. St. 345. p. 253. Binghamton Bridge, The, 3 Wall. 51, 18 L. ed. 137, p. 841. Birch V. Anthony, 109 Ga. 349, 34 S. E. 501. 77 Am. St. Rep, 379, p. 488. P.irke v. Abbott, 103 Ind. 1, 1 X. E. 485, 53 Am. Rep. 474, p. 711. 717. Birmingham v. Kirwan, 2 Schoales & L. 444, 449, 450, 452, p. 235. Birmingham Trust & Sav. Bank v. Louisiana Xat. Bank, 99 Ala. 379, 13 South. 112, 20 L. R. A. (iOO, p. 303. Bisco v. Earl of Banbury, 1 Cas. Ch. 257, p. 280. Bishop V. Moorman, 98 Ind. I, 49 Am. Rep. 731, 2 Ames Eq. Jur. 156, p. S.-.d. 874. 877. Bishop V. Woodward, 103 Ga. 281, 20 S. E. 968, p. 132, 930 TABLE OF CASES CITED. Eishop of Hereford v. Adams, 7 Ves. 324, p. 577. Bishop of London v. Web, 1 P. Wms. 527, 1 Keener 434, p. 828. Bishop of Winchester's Case, 1 Rolle Abr. 380, 1 Ames Eq. Jur. 469, p. 828. Black V. Black, 26 N. J. Eq. 431, p. 77. Black V. Boyd, 50 Ohio St. 4G, 33 N. E. 207, p. 68. Black V. Shreve, 7 N. J. Eq. 440, 456, 457, p. 108. Blackburn v. Randolph, 33 Ark. 119. 2 Ames Eq. Jur. 183, p. 859. Blackett v. Bates, L. R. 1 Ch. 117, 2 Keener 154, p. 888. Black Hills etc. R. Co. v. Tacoma Mill Co., 129 Fed. 312, 03 C. C. A. 544, p. 824. Eiackstone v. Blackstone, 3 Watts, 335, 337, 27 Am. Dec. 359, p. 658. Blake v. Greenwood Cemetery, 14 Blatchf. 342, Fed. Cas. No. 1, 497, p. 837. Blakeman v. Blakeman, 39 Conn. 320, 3 Keener 72. 2 Scott 569, p. 424. Bland v. Bland, 90 Ky. 400, 29 Am. St. Rep. 390, 14 S. W. 423, 9 L. R. A. 599, p. 551. Bland v. Dawes, L. R. 17 Ch. Div. 794, 797, p. 039. . Elamly v. Widmore, 1 P. Wms. 324, 2 Vern. 209, 2 Lead. Cas. Eq., 4th Am. ed. 834, 842, Shep. 126, 1 Scott 326, p. 252. Blatch V. Wilder, 1 Atk. 420, p. 570. Bleakley's Appeal, 66 Pa. St. 187, 191, H. & B. 31, Shep. Ill, p. 183, 185, 186, 915. Blew V. McClelland, 29 Mo. 304, 1 Ames Eq. Jur. 237, p. 163. Bliley v. Wheeler, 5 Colo. App. 287, 38 Pac. 603, p. 225. Bliven v. Seymour, 88 N. Y. 469, p. 659. Blondheim v. :Moore, 11 Md. 365, Shep. .321, p. 802, 806, 808. Bloodgood V. Clark. 4 Paige 574, p. 806. Bloomer v. Henderson. 8 ]Mich. 395, 402, 404, 405. 77 Am. Dec. 453, p. 277. Bloomer v. Spittle, L. R. 13 Eq. 427, 2 Ames Eq. Jur. 309, 3 Keener 398, p. 859. Bloonitield State Bank v. Miller, 55 Xebr. 243, 70 Am. St. Rep. 381, 75 X. W. 569, 44 L. R. A. 387, p. 756. lilouin V. Phaneuf, 81 Me. 176, 46 Atl. 540, p. 570. Blumer v. Hunter, L. R. 8 Eq. 46, p. 531. Boals V. Bachman, 201 HI. 340, 66 X. E. 336, p. 180. Bockes V. Lansing, 74 X. Y. 437, 2 Ames Eq. Jur. 152, p. 876. Boddy V. Henry, 113 Iowa, 462, 85 N. VV. 771, 53 L. R. A. 769, p. 450. Bodley v. Taylor, 5 Cranch, 191, 221, 222, p. 144. ISoggs V. ^kleroed M. Co., 14 Cal. 279, 367, 368, 379, p. 393. Bohart v. Chamberlain, 99 Mo. 622, 13 S. W. 85, p. 132. Boisseau v. Boisseau, 79 Va. 73, .52 Am. Rep. 016, p. 608. Boles & British Land Co.'s Contract, In re, [1902] 1 Ch. 244, p. 515. Bolman v. Overall, 80 Ala. 451, 60 Am. Rep. 107, 2 South. 624, p. 881. Bolton V. McShane, 67 Iowa 207, 25 X. W. 135, p. 824. Bond V. Hopkins, 1 Schoales & L. 413, 429, 433, p. 30. iJoiul V. ^Montgomery, 56 Ark. 563, 20 S. W. .525, 35 Am: St. Rep. 119, p. 503, 915. Bonney v. Seely, 2 Wend. 481, p. 914. Booker v. Wingo, 29 S. C. 116, 7 S. E. 49, p. 501. Boone v. Citizens' Sav. Bank, 84 N. Y. S3, 38 Am. Dec. 498, p. 550. I'.oone V. Clark, 129 HI. 466, 21 N. E. 850, 5 L. R. A. 276, p. 181. Boos V. Morgan, 130 Ind. 305, 30 Am. St. Rep. 237, 30 N. E. 141, p. 382, 385. Booth V. Clark. 17 How. 322, 331, 15 L. ed. 164, Shep. 327, p. 802, 811. Bore! v. iNIead, 3 X". Mex. 84, 2 Pac. 222. 1 Ames Eq. Jur. 434, p. 892. Borer v. Chapman, 119 U. S. 587. 600, 7 Sup. Ct. 342. 348, 1 McCrary, 50, 51, 1 Fed. 274, p. 142. TABLE OF CASKS CITED. 931 Bornenian v. Sidlino;er, 15 Me. 42i), 33 Am. Dec. ()2(), p. 007. Bosaiiquett v. Dashwood, Cas. t. Talb. 38. 40, 41, 2 Scott 067, p. 497, 500. Ijoslier V. Richmond etc. Land Co., 89 Va. 455, 10 S. E. 300, 37 Am. St. Rep. 879, p. 118, 474. Bosley v. Taylor, 5 Dana 157, 30 Am. Dec. 077, p. 914. Rossick Min. Co. v. Davis, 11 Colo. 130, 17 Pac. 294 p. 377. Boston V. Robbins, 120 31ass. 384, p. 007. Boston & Lowell R. Corp. v. Salem & L. R. Co. 2 Gray 127, p. 841. Boston Diatite Co. v. Florence ^Ifg. Co., 114 Mass. 09, 19 Am. Rep. 310, 1 Keener 51, Sliep. 303, Lewis 320, p. 845. Bostwick V. Beach, 105 X. Y. 061, 12 N. E. 32, H. & B. 003, p. 163. Bosworth V. Allen, 168 X. Y. 157, 164, 85 Am. St. Rep. 067, 61 X. E. 163, 55 L. R. A. 751, p. 007. Bottomly v. Lord Fairfax, Precedents in Ch. 336, Ames Trusts 375, p. 552. Botts V. Gooeh, 97 ilo. 88, 11 S. W. 42, 10 Am, St. Rep. 286, p. 638. Bouck V. Wilbur, 4 Johns. Ch. 405, 2 Keener 125, p. 884. Boursot V. Savage, L. R. 2 Eq. 134, 142, p. 303, 308. Boutts V. Ellis, 4 De Gex, M. & G. 249, ]). 6()7. Bovill V. Hitchcock, L. R. 3 Ch. App. 417, p. 835. Bovill V. Crate, L. R. 1 Eq. 388, p. 837. Bowen V. Prout. 52 111. 354, p. 360. Bowers v. Smith, 10 Paige, 193, p. 075. Bowers Dredging Co. v. X. Y. etc. Co., 77 Fed. 980, p. 836. Bowker v. Pierce, 1.30 INLiss. 262. p. 623. Bowles v. Round. 5 Ves. 508, 1 Ames Eq. Jur. 361, 2 Keener 853. j). 458. Bowling V. Cook. 39 Town. 200. p. 350. T5owman v. P]iillips, 41 Kan. 364. 21 Pac. 230. 13 .\iii. St. Rep. 292, 3 L. R. A. 631, p. 490. Boxheimer v. Gunn, 24 Mich. 372. ]>. 710. Boyce v. Allen, 105 Iowa, 249, 74 X. \V. 948, p. ijo. Boyce's Ex'rs v. Grundy, 3 Pet. 210, 215, 9 L. ed. 127, Shep. 19, p. 143, 144, 853, 861. Boyer v. East, 161 X. Y. 580, 76 Am. St. Rep. 290, 56 X. E. 114, p. 521. Boykin v. Ancrum, 28 S. C. 486, (i S. E. 305, 13 Am. St. Rep. 698, p. 379. Boyle V. Boyle, 152 Pa. St. 108. 34 Am. St. Rep. 629, 25 Atl. 494, p. 571. Boylston v. Rankin, 114 Ala. 408, 21 South. 995, 62 Am. St. Rep. Ill, p. 398. Boynton v. Hubbard, 7 3Iass. 112, 119, p. 512, Bozon V. Farlow, 1 :\Ier. 459, p. 886. Brace v. Duchess of Marlborougli, 2 P. Wms. 491, 1 Scott 330, 350, p. 195, 347, 373, 737. Bradford v. Greenway, 17 Ala. 797, 805. 52 Am. Dec. 203, p. 642, 653. Bradford v. Union Bank, 13 How. 55, 57, 66, Shep. 259, p. 432. Bradish v. Gee, Amb. 229, 1 Scott 636, p. 685. Bradley v. Riches, L. R. 9 Cli. Div. 189, 195, 196, p. 307, 339," 340. Brady v. Waldron, 2 Johns. Ch. 148, 1 Ames Eq. Jur. 483, 1 Scott 661, p. 829. lirage v. City of Stockton, 27 Fed. 509, p. S37. Bragg Mfg. Co. v. City of Hartford, 56 Fed. 292, p. 838. Brainard v. Buck, 184 U. S. 99, 22 Sup. Ct. Rep. 458, 46 L. ed. 449, p. 590. Bramley v. Alt, 3 Ves. 620, p. 493. Brandon v, Robinson. 18 Ves. 429. Ames Trusts 394, p. 551. Brandreth v. Lanee, 8 Paige 24. 34 An>. Dec. 368, 1 Keener 47, 1 Scott 228, Lewis 303, p. 845. Brandt v. Allen, 76 Iowa 50. 40 X. W. 32. 1 L. R. A. 653, p. 808. Brant v. Brant, 40 Mo. 266, p. 236. Brant v. Virginia Coal Co., 93 U. S. 326, 335, p. 393. 932 TABLE OF CASES CITED. Braxton v. State,, 25 Ind. 82, p. 191. Breed v. National Bank of Auburn, 68 N. Y. Supp. G8, 57 App. Div. 4G8 ; affirmed, 171 N. Y, G48, 63 N. E. 1115, p. 181. Breslin v. Fries-Brcslin Co., (N. J. Eq.) 58 Atl. 313, p. 402. Breton's Estate, In re, 17 Ch. Div. 416, Ames Trusts 171. p. 559. Brewer v. Herbert, 30 Md. 301, 96 Am. Dec. 582, H. & B. 173, 1 Scott 425, 2 Keener 421, p. 163, 407. Brewer v. Marshall, 19 X. J. Eq. 537, 97 Am. Dec. 679, 2 Keener 557, p. 491, 776. Brewer v. Nash, 16 R. 1. 458, 27 Am. St. Rep. 749, 17 Atl. 857, p. 915. Brice v. Stokes, 11 Ves. 319, 324, 2 Lead. Cas. Eq., 4th Am. ed. 1738, 1748-1790, 1791-1805, p. 621. Bridge v. Wheeler, 152 Mass. 343, 25 N. E. 612, p. 326. Bright V. Buckman, 39 Fed. 243, p. 276, 29.5, 369. Brill V. Tuttle, 81 N. Y. 454, 4.57, 547, 37 Am. Rep. 515, p. 764. BrinkerhoflF v. Brown, 6 Johns. Ch. 139 151, 156, p. 118. Brinkman v. Jones, 44 Wis. 498, 517, 519, 521, 523, p. 262. Brinkman v. Sunken, 174 Mo. 709, 74 S. W. 963. p. 591. Brison v. Brison. 75 Cal. 525, 7 Am. St. Rep. 189, 17 Pac. 689, p. 445, 523. Broad, Ex parte, 13 Q. B. D. 740, Ames Trusts 19, p. 569. Broad v. Selfe, 9 Jur., N. S., 885, Kirch. 473, p. 698. Broadbent v. State, 7 ild. 416, p. 78. Broadway Nat. Bank v. Adams, 133 Mass. 170, 43 Am. Rep. 504, Ames Trusts 397, p. 551. Brock V. Berry, 132 Ala. 95, 90 Am. St. Rep. 896, 31 South. 517, p. 101. Eroder v. Conklin, 121 Cal. 282, 53 Pac. 699, p. 515. Broderick's Will, In re, 21 Wall. 503, 504, 22 L. ed. 599, p. 142, 473. Brodie v. Barry, 2 Ves. & B. 127, p. 233. Bromley v. Holland, 7 Ves. 3, 16, 18, 19-21, p. 131, 877. Brook V. Badley, L, R. 3 Ch. 672, 074, p. 682. Brooks V. Benham, 70 Conn. 92, 38 Atl. 908, 39 Atl. 1112, m Am. St. Rep. 87, p. 729. Brooks V. Martin, 2 Wall. 70, 81, 2 Scott 790, p. 500. Brooks V. Todd, 79 Ga. 692, 4 S. E. 156, p. 498. Brooks V. Twichell, 182 Mass. 443, 94 Am. St. Rep. 662, 65 N. E. 843, p. 854. Brothers v. Bank of Kaukauna, 84 \\is. 381, 54 N. \V. 786, 36 Am. St. Rep. 932, p. 306. Brotzman's Appeal, 119 Pa. St. 645, 13 Atl. 483, p. 186. Brougliton v. Cofler, 18 Graft. 184, p. 427, 434. Broughton v. Hutt, 3 De Gex & J. 501, 3 Keener 32, p. 421, 424. Brown v. Bigne, 21 Oreg. 260, 28 Pac. 11, 28 Am. St. Rep. 752, 14 L. R. A. 745, p. 497. Brown v. Brabb, 67 :\lich. 17, 34 N. W. 403, 11 Am. St. Rep. 549, p. 3(il. Brown v. Brown, 79 Va. 648, p. 664. Brown v. Cole, 14 Sim. 427, Kirch. 698, p. 721. Brown v. Gellatly. L. R. 2 Ch. 751, Ames Trusts 489, p. 613. Brown v. Guarantee Trust Co., 128 L'. S. 403, 9 Sup. Ct. 127, 32 L. ed. 468, 2 Keener 1109, p. 899. Brown v. Higgs, 8 Ves. 561, 569, 570. 574, p. 565. Brown v. Jacobs Pharmacy Co., 115 Ga. 429, 41 S. E. 553, 90 Am. St. Rep. 126, 57 L. R. A. 547, p. 184. Brown v. Kimball Co. 84 Me. 492, 24 Atl. 1007, p. 910. BrowTi V. Knapp, 79 N. Y. 136, 140, p. 743. Brown v. ]\IcDonald, 130 Fed. 964, p. 75. Brown v. McGill, 87 Md. 161, 67 Am. St. Rep. 334, 39 Atl. 613, 39 L. R. A. 806, p. 551. Bro\\n V. jVlontgomery, 20 N. Y. 287, 75 Am. Dec. 404, 3 Keener 202, p. 464, 466, 468. TABLE OF CASES CITED. 933 Brown v. Norman, C5 iliss. 369, 4 Soulli. 2i)3, 7 Am. St. Rep. 663, 3 Keener U99, 2 Scott 747, p. 470, 471. Brown v. Pierce, 7 \\all. 205, H. & J3. 320, 1 Scott 708, p. 341. Brown v. Simons, 44 X. H. 475, 45 N. H. 211, p. 281. Brown v. Swann, 10 Pet. 497, p. 94. Brown v. Volkening, 64 N. Y. 76, 82, 83, p. 202. Brown v. .Welch, 18 111. 343, 68 Am. Dec, 549, p. 320, 359. Brown v. Wilson, 21 Colo. 309, 52 Am. St. Rep. 228, 40 Pac. 688, p. 875. Brown & Pollak I. Co. v. H. B. I. Co., 105 Iowa 624, 75 N. W. 499, 67 Am. St. Pep. 319, p. 367. Browne's Will, In re, 27 Beav. 324, Ames Trusts, 458, p. 610. Bruce v. Tilson, 25 N. Y. 194, 1 Ames Eq. Jur. 345, 2 Keener 1180, 2 Scott 35.5, p. 897, 898. Bruen v. Gillet, 115 N. Y. 10, 21 N. E. 676, 12 Am. St. Rep. 764, 4 L. R. A. 529, p. 622. Ihnimmond v. Krause, 8 X. Dak. 573, 80 X. W. 686, p. 500. I'rundage v. Biggs, 25 Ohio St. 652, 656, p. 287. Bruschke v. Wright, 166 111. 183, 57 Am. St. Rep. 125, 46 X. E. 813, p. 315. I'rusli V. Fisher, 70 Mich. 469, 38 N. W. 446, 14 Am. St. Rep. 510, p. 439, 478. Brydges v. Brydges, 3 Ves. 120, 125a, 12(), p. 380, 550. Br\ son v. Whitehead, 1 Sim. & St. 74, 2 Scott 124, p. 491. Bul)b's Case, Freem. Ch. 38, 1 Ames Eq. .Tur. 194, p. 164. Buck V. Buck, 11 Paige, 170, 2 Keener 337, p. 162. ]',uck V. Ward, 97 Va. 209, 33 S. E. 513. p. 55, 474. Buckland v. Papillion, L. R. 2. Ch. 67. 2 Keener 442. p. 880. Buckle V. :klitchell, IS Ves. 100. Ill, ]). 321. Buehler v. IMcCormick, 169 HI. 269, 48 X. E. 287, p. 329. Hull V. Kentucky Nat. Bank, 90 Ky. 452, 14 S. W. 425, 12 L. R. A. 37. p. 551. Bullard v. Town of Sliivlcy, 153 Mass. 559, 27 X. E. 766, 12 ].. R. A. 110, J). 582. Bullitt V. Farrar, 42 Minn. 8, 43 X. W. 566, 18 Am. St. Rep. 485, (> 1.. R. A. 149. p. 4.V2. Bullivant v. Attorney-General, [1901 | App. Cas. (H. L.) 196, p. 81. liullock, In re, 60 L. J. Ch. 341, Ames Trusts 401, p. 551. Bumgardner v. Leavitt, 35 W. Va. 194. 13 S. E. 67, 12 L. R. A. 776, H. & B. 588, p. 881, 884. liureh V. Breckinridge, 16 , B. ilon. 482, 63 Am. Dec. 553, p. 642. Burck V. Taylor, 152 U. S. 634, 14 Sup. Ct. 696, ]). 293. Burden v. Stein, 27 Ala. 104, 62 Am. Dec. 758, p. 401. Burdick v. Jackson, 7 H\in, 488, Kirch. 129, p. 739. Burgess v. Wheate, 1 W. Black, 123, 129, 152, 1 Eden, 177, 184, 195, 210, 223, 256, Ames Trusts 356, 1 Scott 58, p. 58, 158, 550, .552. Burgess's Case, L. R. 15 Ch. Div. 507, p. 450. Burgoyne v. Ohio Life Ins. etc. Co., 5 Oliio St. 586, 587, p. 191. Burn V. Carvalho, 4 :\Iylne & C. 690. 702, p. 765. Burnes v. Scott, 117 U. S. 582, 587, 6 Sup. Ct. 868. p. 133. Burnham v. Burnham, (Wis.) 97 X^. W. 176, p. .508. Burns v. Daggett, 141 Mass. 368, 6 X. E. 727, 1 Ames Eq. Jur. 284, p. 902. Burrowes v. Lock, 10 Ves. 470, 474, 475. 476, 1 Scott 559, 1 Ames Eq. • lur. 263, p. 266, 454, 455, 483, 484. Burwell v. Burwell, (Va.) 49 S. E. 68, p. 518. 522. Bush V. Lathrop, 22 X. Y. 535. 538, p. 332, 338. Bush V. Lindsey, 44 Cal. 121, 125, p. 671. P.ush V. Western, Prec. Ch. 530, 1 Ames Eq. Jur. 553, p. 831. 934 TABLE OF CASKS CITED. Butcher v. Stapely, 1 Vern. 3G3, 1 Ames Eq. Jur. 27!), 2 Keener 622, 2 Scott 188, l^. 2(17. !)01. Butcher v. Yocum, (51 Pa. 8t. 168, 171, 100 Am. Dec. G25, p. 264, 267. Butler V. Bank of Mazeppa, 94 Wis. 351. 68 N. W. 998, p. 351. Butler V. Butler's Adm'r. 8 W. Va. 677, p. 914. Butler V. Douglas, 3 Fed. 612, p. 357. Butler V. Freeman, Amb. 301, 303, p. 803. Butler V. Haskell, 4 Desaus. Eq. 651, 2 Scott 674, p. 483. Butler V. Hyland, 89 Cal. 575, 26 Pac. 1108. p. 521. Button V. Schroyer, 5 Wis. 598, 1 Ames Eq. Jur. 225, j). 741, 753. Buttrick v. Holden. 13 :\Iet. 355, 357, p. 264. Buxton V. Broadway, 45 Conn. 540, 2 Ames Eq. Jur. 115, p. 861. Buxton V. Lister, 3 Atk. 383, 1 Ames Eq. Jur. 47. 2 Scott 21, 2 Keener 5, p. 879, 883, 891. Buzard v. Houston. 119 U. S. 347, 351, 355. 7 Sup. Ct. 249, 30 L. ed. 451, H. & B. 208, 3 Keener 487, p. 65, 94, 143, 473. 474, 861. Byars v. Stubbs, 85 Ala. 254, 256, 4 South. 755, 1 Ames Eq. Jur. 370, p. 468. Byers v. McAuley, 149 U. S. 616-623, 13 Sup. Ct. 908-911, p. 142. Byrne v. Schuyler E. M. Co., 65 Conn. 336, 31 Atl. 833, 28 L. Pv. A. 304. p. 821. C. Cabot V. Christie. 42 Vt. 121, 126. 1 Am. Rep. 313, p. 453. Cadigan v. Brown, 120 Mass. 493, 495, 1 Keener 189, p. 112, 834. Cadman v. Horner, IS Yes. 10, 1 Ames Eq. Jur. 351, 2 Keener 881, 1 Scott 284, 2 Scott 236, p. 462, 403. Calder v. Chapman, 52 Pa. St. 359, 91 Am. Dec. 163, p. 298. Calderwood v. I'rooks, 45 Cal. 519. p. 873. Caldwell v. Depew, 40 Minn. 528, 42 N. W. 479, 2 Keener 1000, p. 418, 432. Calhoun V. INIillard, 121 N. Y. 69, 77, 24 X. E. 27. 8 L. B. A. 248, 1 Scott .388, p. 199, 401, 476. Callanan v. Edwards, 32 N. Y. 483, 486, p. 327. Calverly v. Williams, 1 Ves. 210, 2 Scott 259, p. 432. Calvo V. Da vies, 73 N. Y. 211, 215, 29 Am. Rep. 130, 8 Hun, 222, p. 711, 712. Cambridge Valley Bank v. Delano, 48 N. Y. 326, 336, 339, p. 269. Cameron v. Cameron, 82 Ala. 392, 3 South. 148, p. 673. Camp V. Bruce, 96 Va. 521, 31 S. E. 901, 70 Am. St. Rep. 873, 43 L. R. A. 140, p. 492, 496, .500. Camp V. Ward, 69 Vt. 286, 60 Atu. St. Rep. 929, 37 Atl. 747, p. 78. Campbell v. Bainbridge, L. E. 6 Eq. 269, p. Campbell v. I'ampbell, 130 111. 466, 22 X. E. 020, 6 -. R. A. 167, p. 506. Campbell v. Dearborn, 109 Mass. 130, 12 Am. Rep. 671, Kirch. 191, p. 097. 701. ( ampbell v. Rust, 85 Va. 653, 8 S. E. 664, p. 65. Campbell v. Seaman, 63 N. Y. 568, 20 Am. Rep. 567. 1 Keener 748, p. 833. Campbell v. Sidwell, 61 Ohio St. 179, 55 N. E. 609, p. 195. Campbell ]\Ifg. Co. v. Manliattan Ry. Co., 49 Fed. 930. 1 Ames Eq. Jur. 639, p. 835. Canedy v. :Marcy. 13 Gray, 373-377, 2 Ames Eq. Jur. 256. 3 Keener 35, 2 Scott 552, p. 419, 431. Cann v. Cann, 33 Weekly Re]). 40. Ames Trusts. 481. p. 611. Cannel v. Buckle. 2 P. Wms. 243, 1 Scott 100. p. 779, 891. Cannon v. McDaniel, 46 Tex. 303, p. 673. Caplen's Estate. In re, 45 L. J. Rep. 280, Ames Trusts, 49, p. 563. Carilen v. Lane, 48 Ark. 210, 316, 2 S. W. 709. 3 Am. St. Rep. 228, p. 483. Carew's Estate, In re, 26 Beav. 187, p. 492. TABLE OF CAoES CITED. 935 Cargill V. Bower, L. R. 10 Ch. Div. 502. 514, p. 450. Carhart v. Harshaw, 45 ^^ is. ;U0, 30 Am. Rep. 752, p. 532. Carlisle v. South East. R'y, 1 Macn. & G. 689, p. 821. Carlton V. Hiilett, 49 :\Iinn. 308, 51 X. \V. 1053, 3 Keener 709, p. 471. Carlton v. NeNMiian. 77 jNle. 408, 1 Atl. 194, p. 11(1. Carpenter v. Carpenter, 25 N. J. Eq. 194, p. 531. Carpenter v. Carpenter, 12 R. I. 544, 34 Am. Rep. 71(i. p. 610, 612. Carpenter v. Longan, 16 Wall. 271, 273, 21 L. ed. 313, Kirch. 675, p. 329, 714, 715. Carr v. Breese, 81 X. Y. 584, 588. 590, 591, p. 530, 533. Carr v. Ellison, 2 Brown Ch. 56, p. 684. Carrodlis v. Sharp, 20 Beav. 56. 2 Keener 350, 2 Scott 421, p. 163. Carroll v. Johnston, 2 Jones Eq. 120, 123. p. 366. Carroll v. Lee, 3 Gill & J. 504. 22 Am. Dec. 350, p. 639. Carstair v. Bates, 3 Camp. 301. Ames Trusts, 12, p. 569. Carter v. Carter, 3 Kay & J. 617, 636, 637, 642, 1 Scott 345, p. 347. 370, 373. Carter v. Champion, 8 Conn. 548, 549, 554. 21 Am. Dec. 695, p. 293. Carter v. City of Portland, 4 Oreg. 339, 350, p. 263. Carter v. Ferguson, 58 Hun 569, 12 X. Y. Supp. 580, p. 819. Carter v. Tice, 120 111. 277, 11 X. E. 529. p. 522. Carter v. Williams. L. R. 9 Eq. 678, 2 Keener 565, p. 776. Carteret v. Petty, 2 Swans. 323, 1 Ames Eq. Jur. 21, p. 208. Cartwright v. Green, 8 Ves. 405. 408. p. 81. Carvalho v. Burn, 4 Barn. & Add. 382, 1 Ad. & E. 883, p. 765. Gary v. Lovell Mfg. Co., 24 Fed. 141, p. 836. Casborne v. Scarfe. 1 Atk. 003. Shep. 213, 1 Scott 33, p. 173, 688. Casco Xational Bank v. Clark, 139 X. V. 307. 34 X. E. 90^, 36 Am. St. Uc]). 705. p. 305. Case V. Boughton, 11 Wend. 106, 109, ]). 734. Case V. :Minot, 158 Mass. 577, 22 L. R. A. 536, 33 X. E. 700, p. 99. Casey v. Typographical Union, 45 Fed. 135. 12 L. R. A. 193, Lewis, 241. p. 845, 847. Cass V. Rudele, 2 Vern. 280, 2 Seott 488, p. 162. Casserleigh v. Wood, 119 Vvd. 3()!t. p. 496, 500. Cassey v. Fitton, " Harg. Jurid. Arg. 290, 1 Ames Eq. Jur. 145, i). 8SL Castellain v. Preston, L. R. 11 Q. B. D. 380, 2 Keener 427, p. 163. Castell & Brown, In re, [1898] 1 Cli. 315, p. 318, 340, 350. Castle V. Wilkinson, L. R. 5 Ch. 534, 1 Ames Eq. Jur. 252, 2 Scott 395. 2 Keener 1208, p. 906. Ca.stleman v. Craven, 22 Vin. Abr. 52.S. 1 Ames Eq. Jur. 466, 1 Keener 458. p. 827, 829. Castleman v. Templeman, 87 JNId. 546. 67 Am. St. Rep. 363, 40 Atl. 375. 41 L. R. A. 367, p. SIL Gates V. Allen, 149 U. S. 451, 457, l:! Sup. Ct. 883, 977. 37 L. ed. 804, p. 142. Catliu V. Wilcox Silver Plate Co. 12;> Ind. 477, IS Am. St. Rep. 338, 24 X. E. 250, 8 L. R. A. 62, p. 811. Caton V. Caton, L. R. 1 Ch. 137. 147. 2 Keener 641, p. 904. Caton V. Rideout. 1 Macn. & G. 59M, 601, 603. p. 640. Catt V. Tourle, L. R. 4 C!i. 654. 2 Seott 493, p. 491. Caulfield v, Sullivan, 85 X. Y. 153, ]>. 240. Cave V. Cave, L. R. 15 Ch. Div. 639. <;43, 646, 1 Scott 517, Ames Tr. 311, p. .308. 339, 346. Cavender v. Ca vender, 114 U. S. 464, 5 Sup. Ct. 955, 29 L. ed. 212, p. (;i4. Cayuta Wheel & F. Co. v. Kennedy, V. :Mfg. Co.. 127 Fed. 355, 1 Ames Eq. Jur. 638, p. 835, 936 TABLE OF CASES CITED. Central Trust Co. v. Chattanooga, etc., Co., 94 Fed. 275, 36 C. C. A. 241, p. 807. Central Trust Co. v. East Tenn. etc. Co. 59 Fed. 523, p. 809. Central Trust Co. v. New York, etc. R. Co., 110 N. Y. 250, 18 N. E. 92, 1 L. R. A. 260, p. 810. Central Trust Co. v. West India Imp. Co., 169 K Y. 314, 02 X. E. 387, p. 346. Central Trust & S. D. Co. v. Respass, 112 Ky. 606, 66 S. W. 421, 99 Am. St. Rep. 317, p. 486. Chaffee V. Lvimber Co., 43 Nebr. 224, 61 N. W. 637, 47 Am. St. Rep. 753, p. 361. Chaffin V. Kimball, 23 111. 36, p. 534. Chalmers v. Storil, 2 Yes. & B. 222. p. 236. Chambers v. Chambers, 98 Ala. 454, 13 South. 674, p. 64. Champlin v. Laytin, 18 Wend. 407, 422, 31 Am. Dec. 382, G Paige, 189, 203, 1 Edw. Ch. 467, p. 282. Channon v. Stewart, 103 111. 541, 3 Keener 922, p. 919. (Jhapin v. Brown, 83 Iowa, 156, 48 N. W. 1074, 32 Am. St. Rep. 297, 12 L. R. A. 428, p. 491. ( liapman v. Chapman, 91 Va. 397, 21 S. E. 813, .50 Am. St. Rep. 846, p. 274, 279, 303. Chapman v. Gibson, 3 Brown Ch. 229, p. 410. Cliaquette v. Ortet, 60 Cal. 591, 594, p. 671. Charleston & W. C. R'y Co. v. Hughes, 105 Ga. 1, 70 Am. St. Rep. 17, 30 S. E. 972, p. 175, 176, 180. (barter v. Stevens, 3 Denio, 33, 45 Am. Dec. 444, p. 735. Chas. S. Higgins Co. v. Higgins Soap Co. 144 N. Y. 462, 43 Am. St. Rep. 769, 39 N. E. 490, 27 L. R. A. 42, p. 840. Chase V. Chase, 20 R. I. 202, 37 Atl. 804, p. 198. Chase v. Peck, 21 N. Y. 581, 585, 586, Kirch. 124, p. 740, 745. Chase's Appeal, 57 Conn. 236, 18 Atl. 96, p. 392, 395. Chateau v. Singla, 114 Cal. 91, 45 Pac. 1015. 55 Am. St. Rep. 63, 33 L. R. A. 750, p. 496. Cheney v. Libby, 134 U. S. 68, 19 Sup. Ct. 498, 33 L. ed. 818, H. & B. 695, p. 899. Cheslyn v. Dalby, 2 Younge & C. 170, p. 520. Chestatee Pyrites Co. v. Cavenders, etc. Co., 118 Ga. 255, 45 S. E. 267, 119 Ga. 354, 46 S. E. 422, 100 Am. St. Rep. 174, p. 832. Chesterfield v. Janssen, 2 Ves. Sr. 124, 125, 157, 1 Lead. Cas. Eq., 4th Am. ed., 773, 809, 825, 1 Atk. 314, p. 481, 524. Cheuvront v. Cheuvront, (W. Va.) 46 S. E. 233, p. 513. Cliicago & A. Bridge Co. v. Anglo- American, etc. Co., 46 Fed. 584, p. 912. Chicago & N. W. R. Co. v. Wilcox, (C. C. A.) 116 Fed. 913, p. 428. Cliicago, B. & Q. R. R. Co. v. Frary, 22 111. 34, p. 823. Chicago Gas Light Co. v. Gas Light Co., 121 111. 530, 13 N. E. 169, 2 Am. St. Rep. 124, p. 491. Chicago, M. & St. P. R. R. v. Durant, 44 Minn. 361, 46 N. W. 676, H. &. B. 701, 2 Keener 1211, p. 905, 906. Chicago, R. I. & P. R. R. Co. v. Union Pac. Ry. Co., 47 Fed. 15, p. 890. (hick V. Willetts, 2 Kan. 384, 391, H. & B. 555, p. 693, 694. Child V. Douglas, 5 De Gex, M. & G. 739, 2 Keener 467, p. 776, 777. Cliild V. Mann, L. R. 3 Eq. 806, 2 Ames Eq. Jur. 35, 1 Keener 246, p. 798. China Steamship Co., In re, L. R. 7 Eq. 240, p. 330. Chinnock v. Marchioness of Ely. 4 De Gex, J. & S. 638, 643, p. 773. Chinnock v. Paterson, etc. Co., 112 Fed. 531, p. 837. Chipman v. Montgomery, 63 X. Y. 221, 230, p. 675. Chippendale, Ex parte, 4 De Gex, M. & G. 19, 52, p. 626, 628. Cholmondeley v. Clinton, 2 Mer. 352, p. 858. TABLE OF CASKS CITED. 937 Christian v. Taylor, 11 Sim. 401, j). 82. Cliristman v. Colbert, 33 Minn. 50'.>. 24 X. \V. 301. 3 Keener 428, p. 800. Ciuirch V. Bull, 2 Den. 430, 43 Am. Dec. 754, .i Hill, 270, p. 235. Cincinnati H. & D. R. R. Co. v. Bank, 54 Ohio 8t. 60, 42 N. E. 700, 56 Am. St. Rep. 700, 31 L. R. A. 653, p. 7tR). Citizens' Bank v. Sluiw, 14 S. Dak. I!l7. 84 X. \V. 779, p. 363. Citizens' Nat. Bank of Attica v. Judy, 146 Ind. 322, 43 X. E. 250, 3 Keener 433, p. 198, 426, 437, 859. Citizens' X^at. Bank of Middletown v. Trustees, 5 Del. Cli. 59G, p. Citizens' State Bank v. Julian, 153 Ind. 655. 55 X^ E. 1007, p. 350. City Council of Charleston v. Ryan, 22 S. C. 339, 53 Am. Rep. 713, p. 349. City National Bank v. Kusworm, 88 Wis. 188, 26 L. R. A. 48, 59 N. W. 564, 43 Am. St. Rep. 880, 3 Keener 795, p. 509. City of Albert Lea v. Nielson, 83 Minn. 246, 80 N. W. 83, p. 118. City of Austin v. Austin City Cem. A.ss'n, 87 Tex. 330, 47 Am. St. Rep. 114, 28 S. W. 528, p. 823. City of Bloomington v. Smith, 123 Ind. 41, 23 N. E. 972. 18 Am. St. Rep. 310, p. 408. City of Chicago v. Collins, 175 111. 445, 51 X. E. 907, 67 Am. St. Rep. 224, 49 L. R. A. 408, 2 Ames Eq. Jur. 92, p. 116, 117, 823. City of Chicago v. Union Stock Yards & Transit Co., 164 111. 224, 45 N. E. 430. 35 L. R. A. 281, p. 178, 184. City of London v. Nash, 3 Atk. 512, 515. p. 887. City of London v. Perkins. 3 Brown Pari. Cas., Tomlins's ed., 602, 4 Brown Pari Cas. 157, p. 111. City of Newton v. Levis, 79 Fed. 715, 25 C. C. A. 501, 49 U. S. App. 2()6, p. 814. City of New York v. Pine, 185 U. S. 93, 22 Sup. Ct. 592, 46 L. ed. 820. p. 825. (lallin V. Claflin, 149 Mass. 19, 14 Am. St. Rep. 393, 20 N. E. 454. 3 L. R. A. 370, Ames Trusts, 455, p. 553. Clapham v. Shillito, 7 Beav. 140, 149, 150, p. 396, 457. Clark V. Brown, 3 Allen, 509, p. 340. Clark V. Clark, 108 Mass. 522, Ames Trusts, 232, p. 559. Clark V. Clark, 50 N. H. 105, p. 384. Clark V. Clark, 8 Paige, 152, 35 Am. Dec. 676. p. 622. Clark V. Davenport, 95 X". Y. 477, 1 Keener 344, p. 876. Clark V. Flint, 22 Pick. 231, 33 Am. Dec. 733, p. 361. Clark V. Fosdick, 118 N. Y. 14, 22 X. E. nil, 16 Am. St. Rep. 733, 6 L. R. A. 132, p. 487. Clark V. Glos, 180 111. 55(i, 54 X. E. 631, 72 Am. St. Rep. 223, ]). 382, 383. Clark V. Jetton, 5 Sneed, 229, H. & B. 155, p. 247, 248. Clark V. McX^eal, 114 N. Y. 295. 21 X. E. 405, 11 Am. St. Rep. 638, p. 364. Clark V. Muni'oe, 14 Mass. 351, p. 344. Clark V. Smith, 13 Pet. 195, 203, p. 141. Clark V. Wooster, 119 U. S. 322, 7 Sup. Ct. 217, 30 L. ed. 392, p. 837. Clarke v. Clarke, 46 S. C. 230, 24 S. E. 202, 57 Am. St. Rep. 675, p. 171. Clarke v. Franklin, 4 Kay & J. 257, 1 Scott 628, 3 Keener 982, p. 680, 683. Clarke v. Hart, 5 Jur., N. S., 447. p. 402. Clarke v. Parker, 19 Ves. 1, 13, 15, 16, IS, 22, p. 489, Clarke v. Perry, 5 Cal. 58, 60, 63 Am. Dec. 82, p. 672. Clarke V. Price, 2 Wils. Ch. 157. 2 Scott 89, 2 Keener 199, H. & B. 012. p. 819. Clarke v. Ramuz, [1891] 2 Q. B. 456, 1 Ames Kq. Jur. 222, 2 Keener 38(». 2 Scott 424, p. 163, Clarke v. Rochester etc. R. R.. 18 Barb. 3.-)n, 1 Ames Eq. Jur. 410, 2 Scott 294, p. 894. 938 TABLE OF CASES CITED. Clay V. Fry, 3 Bibb, 248, 6 Am. Dec. 054, p. 132. Clay V. Gurley, 62 Ala. 14, p. 676. Clayton v. Akin, 38 Ga. 320, 95 Am. Dec. 393, p. 236. Clayton v. Ashdown, 9 Vin. Abr. 393, pi. 2, 1 Ames Eq. Jur. 421, 2 Scott 133, p. 893, Clayton v. Johnson, 36 Ark. 406, 38 Am. Eep. 40, p. 556. Cleghorn v. Minnesota T, I. & T. Co., 57 Minn. 341, 47 Am. St. Rep. 615, 59 N. W. 320, p. 735. (leghorn V. Zumwalt, 83 Cal. 155, 23 Pac. 294, 2 Ames Eq. Jur. 197. 3 Keener 322, p. 438, 859. Clement v. Hyde, 50 Vt. 716, 28 Am. Rep. 522, p. 577, 580. Clements v. Tillman, 79 Ga. 451, 11 Am. St. Rep. 441, 5 S. E. 194, Shep. 194, p. 207. Clerk V. Wright, 1 Atk. 12, 1 Ames Eq. Jur. 294, p. 901. Cleveland v. Springfield Inst, for Sav., 182 Mass. 110, 05 N. E. 27, p. 568. Clift V. Moses, 110 N. Y. 144, 22 X. E. 393, p. 743. ( linan v. Cooke. 1 Schoales & L. 22, 41, 2 Scott 182, 2 Keener 028, p. 901, 902. Clinton E. Worden & Co. v. Cal. Fig Syrup Co., 187 U. S. 516, 23 Sup. Ct. 121, 47 L. ed. 282, p. 494, 840. Cloud V. Clinkinbeard, 8 B. ]Mon. 397, 48 Am. Dec. 397, p. 242. Clowes V. Dickenson. 5 Johns. Ch. 235, p. 725, 720. Clowes V. Staffordsliire etc. Co., L. R. 8 Ch. 1,25, p. 830. 832. Coaks V. Boswell, 11 App. Cas. (H. L.) 232, 3 Keener 590, p. 405. Coates V. Wilkes, 92 X. C. 370, p. 800. Cochran v. Coeliran, 02 Xebr. 450, 87 X. W. 152, p. 910. ( 'ocks V. ^Manners, L. R. 12 Eq. 574, p. 576, 580. Codman v. Tinkham, 15 Pick. 344. p. 869. Codrington v. Lindsay, L. R. 8 Ch. 578, p. 231. Coffin V. Coffin, Jac. 70, 1 Keener 468, p. 828. Cogent V. Gibson, 33 Beav. 557, * Ames Eq. Jur. 56, 2 Scott 147, 2 Keener 80, p. 881, 882, 883. Coger's Ex'rs v. McGee, 2 Bibb, 321. 5 Am. Dec. 610, p. 427. Coit V. Comstock, 51 Conn. 352, 50 Am. St. Rep. 29, p. 580. Cole V. Fickett, 95 Me. 265, 49 AtL 1066, 2 Ames Eq. Jur. 178, p. 859. Cole V. Mette, 65 Ark. 503, 47 S. W„ 407, 67 Am. St. Rep. 945, p. 353. Cole V. White, 1 Bro. C. C. 409, 1 Ame» Eq. .Jur. 282. p. 902. Coleman, In re, 39 Ch. D. 443, Ames Trusts 339, p. 551. Coleman v. Dunton, (Me.) 58 Atl 430, p. 373. Coles V. Sims, 5 De Gex, M. k G. \ Kay, 50, 70, p. 401. Coles V. Trecothick, 9 Ves. 234, 246, 2 Keener 768, p. 483, 516. Coles V. Withers, 33 Gratt. 186, p. 751. Cole's Com, v. Cole's Adm'r, 28 Gratt. 305, p. 634, Cole's Estate, In re, 102 Wis. 1, 72 Am. St. Rep. 854. 78 X. W. 402, p. 553, 60S. Colgate V. Compagnie Francaise du Tel- egraphe, 23 Fed. 82, p. 79. Collard v. Marshall, [1892] 1 Ch. 571, Lewis 392, p. 845. Collier v. Davis, 47 Ark. 367, 58 Am. Rep. 758, p. 556. Collins V. Archer, 1 Russ. & M. 284, p. 371. Collins V. Campbell, 97 Me. 23, 2S. 53 Atl. 837, 94 Am. St. Rep. 458, 403, p. 3.30. Collins V. Castle, L. R. 36 Ch. D. 243. 2 Keener 523, p. 776, 778. Collins V. Champ's Heirs, 15 B. ^Mon. 118. 01 Am. Dec. 179, p. 682. Collins's Appeal, 107 Pa. St. 5!)0. 52 Am. Rep. 479, p. 771. Collister v. Fassitt, 163 X. Y. 2,S1. 57 X. E, 490, 79 Am. St. Rep. 580, p. 008. Colman v. Sarrel. 3 Bro\\Ti Ch. 12. 1 Ves. 50, Ames Trusts 133, p. 559. Colton V. Colton, 127 U. S. 300, 317, 319, 320, 8 Sup. Ct. Rep. 1x64, p. 571, 572. TABLE OF CASES CITED. 939 Colton V. Drover's Ass'n, 90 .Mil. S5, 78 Am. St. Rep. 431, 45 Atl. 23, 46 L. R. A. 388, H. & B. 899, p. 809. Colton V. Stanford, 82 Cal. 30 1, 3oO, 389, 10 Am. St. Rep. 137, 150, 23 Pac. 10, p. 515, 523. Columbia Ave. Sav. Fund etc. Co. v. City of Dawson, 130 Fed. 152, 170, p. 44. Columbia Bank v. Jacobs, 10 Mich. 349, 81 Am. Dec. 792, p. 342. Colyer v. Finch, 19 Beav. 500, 5 11. L. Cas. 905, 921, p. 357. Combs V. Fisher, 3 Bibb (Ky.) 31, 2 Scott 453, p. 163. Combs V. Scott, 76 Wis. 662, 45 N. w. 532, H. & B. 682, 2 Scott 357. 2 Keener 1194, p. 100. 899. Commercial ^Mutual Ins. Co. v. ]\lc- Loon, 14 Allen, 351, 3 Keener 472, p. 474, 861. Commercial Xat. Bank v. Burch, 141 111. 519, 31 X. E. 420, 33 Am. St. Rep. .331, p. 332. Commercial Xat. Bk. v. Hamilton Nat. Bk. 42 Fed. 880, Ames Trusts 15, p. 569. Commonwealth v. Stauffer, 10 Pa. St. 3.50, 51 Am. Dec. 489, p. 489. CommonAvealth v. Susquehanna etc. R. R. Co. 122 Pa. St. 306, 15 Atl. 448, 1 L. R. A. 225, p. 558. Comstock V. Hitt, 37 111. 542, 546, 1 Ames Eq. Jur. 139, 2 Scott 482, p. 711. Comstock V. Johnson, 46 X. Y. 015, H. & B. 26, Shep. 108, p. 178. Condit V. Bigalow, 64 X. J. Eq. 504. 54 Atl. 160. p. .565. Conger v. X. Y. W. S. & B. R. R. Co., 120 X. Y. 29, 23 X. E. 983, 1 Ames Eq. Jur. 412, H. & B. 723, 2 Scott .304, 2 Keener 1046. p. 889, 895. Connecticut Mut. Life Ins. Co. v. Smith, 117 Mo. 261, .38 Am. St. Rep. 656, 22 S. W. 623. p. 265. Connecticut ]\Iut. Life Ins. Co. v. Wes- terhoff, .58 Xebr. 379, 78 X. W. 724, 70 Am. St. Rep. 10], p. 218. Connecticut River Banking Co. v. Rockbridge Co. 73 Fed. 709, p. 808. Connolly v. Branstler, 3 Bush, 702. 96 Am. Dec. 278, 1 Scott 583, p. 399. Connolly v. Dolan, 22 R. I. 60, 84 Am. St. Rep. 816, 46 Atl. 36, p. 915. Connor v. Stanley, 72 Cal. 556, 1 Am. St. Rep. 84, 14 Pac. 306, p. 522. Conover v. Van Mater, 18 N. J. Eq. 481, p. 351. Consolidated etc. Co. v. Consolidated etc. Co., 43 Fed. 204, p. 806. Const v. Harris, Turn. & R. 496, p. 804. Constant V. University of Rochester, 111 X. Y. 604, 19 X. K. 631, 7 Am. St. Rep. 769, 2 L. R. A. 734, p. 306, 307. Continental Bank v. Bank of the Com- monwealth, 50 X. Y. 575, 581, 582, p. 392, 398. Continental Xat. Bank v. Hcilman, 66 Fed. 184, p. 75. Continental Trust Co. v. Toledo, etc. R. Co. 59 Fed. 514, p. 810. Conway's E.x'rs v. Alexander, 7 Cranch, 218, 3 L. ed. 321, Kirch. 151, p. 699, 700. Conybeare's Settlement, Ex parte. I Wkly. Rep. 458, Ames Trusts, 222, p. 625. Cook v. Addison, L. R. 7 Eq. 466, 470, p. 618. Cook V. Fountain, 3 Swanst. 585, 591, 592, 600, p. 29. Cook V. Gilmore, 133 111. 139, 24 N. E. 524, H. & B. 542, p. 623. Cooke v. Clay worth, 18 Ves. 12, p. 508. Cooke V. Crawford, 13 Sim. 91, Ames Trusts, 509, p. 611. Cooke V. Forbes, L. R. 5 Eq. 166, I Keener 729, p. 830. Cookes V. Mascall, 2 Vern. 200, 2 Keen- er. 748, p. 479. 905. Cooley V. Coolej^ 172 Mass. 476, 52 X. E. 631, p. 591. Coblidge v. Schering, 32 Wash. 557, 73 Pac. 682, p. 402. Coons V. Coons, 95 Va. 434, 64 Am. St. Hep. 804, 28 S. E. 885, p. 98. Cooper V. Cooper, L. R. 6 Ch. 15, 16, 20, p. 231. (^ooper V. Cooper, 56 X. J. Eq. 48, 38 Atl. 198, p. 236. 940 TABLE OF CASES CITED. Cooper V. Plii'oI)s. L. R. 2 H. L. 149, 170. 2 Ames Eq. Jur. 2GG, 2 Scott 559, 3 Keener 43, Shep. 148, p. 417, 424. Cooper's Estate, In re, 206 Pa. St. 628, 98 Am. St. Rep. 799, 56 Atl. 67, p. 679. Coosaw ]\Iin. Co. v. South Carolina, 144 U. S. 550, 12 Sup. Ct. 689, 36 L. ed. 537, 1 Scott 729, p. 830. Cope v. District Fair Ass'n, 99 1.1. 489, 39 Am. Rep. 30, 1 Ames Eq. Jur. 29, p. 826. Copis V. Middletou, 2 Madd. 409, 410. 428. 430. 2 Scott 738, p. 528. C'oquillard's Ad'mr v. Bearss, 21 Ind. 479, 83 Am. Dec. 362. p. 761. Corhas v. Teed, (i9 111. 205, 2 Scott 481, p. 898. Corhin v. Tracy. 34 Conn. 325, H. &: B. 709, 2 Scott 46, 2 Keener 34, p. 883. Corbus V. Alaska Treadwell Gold M. Co., 187 U. S. 455, 23 Sup. Ct. 156, p. 633. Corby v. Bean. 44 Mo. 379, p. 179. Cordova v. Hood, 17 WaW. 1, 21 L. ed. 587, p. 269. Corley v. Lord Stafford, 1 De Gex & J. 238, p. 523. Corliss V. E. W. Walker Co.. 57 Fed. 434. 64 Fed. 280. Lewis 337, p. 846. Cornell v. ^^■oodruff, 77 X. Y. 203, 206. p. 710. Coniiiifi V. Lowerre, 6 Johns. Ch. 439. 1 Scott 734, p. 830. Corning; V. Troy Iron & Xail Factory, 40 X. Y. 191, 1 Keener 814, p. 833. Cornisli v. Abington, 4 Hurl. & X. 549. p. 397. Cort V. Lassard, 18 Oreg. 221. 17 Am. St. Rep. 720, 22 Pac. 1054, L. R. A. 653. ]). 819. Cory V. Eyre. 1 Do Gex, J. & S. 149. 163. 167. KiS. 169, L. R. 4 Ch. 143. 146, p. 315, 316. Cotheal v. Talmage, 9 N, Y. 551, 61 Am. Dec. 716, p. 221. Cotterell v. Purchase. Cas. t. Talb. 61. Kirch. 175, p. 701. Coulson V. Allison, 2 De Gex, F. & J. 521, p. 523. Coulson V. White, 3 Atk. 21, 1 Scott 679, p. 841. Counter v. :\racpherf;on. 5 Moo. P. C. C 83, 2 Keener 412. j). 163. Countess of Strathmore v. Bowes, 2 Brown Ch. 345, 1 Yes. 22. 1 Lead. Cas. Eq. 605, 611-617, 618-623, p. 645. Count Ranelaugh v. Hayes, 1 Vera. 189, 1 Ames Eq. Jur. 64. p. 884. County of Schuylkill v. Copley, 67 Pa. St. 386. 5 Am. Rep. 441, p. 477. Courthope v. Mapplesden, 10 Ves. 290, 1 Scott 684, 1 Ames Eq. Jur. 490, 1 Keener 548, p. 842. Cousins V. Smith, 13 Ves. 542. p. 80. Coventry v. Barclay, 3 De Gex, J. & S. 320, 328, p. 157. Cowee V. Cornell. 75 X. Y. 91, 99, 100, 31 Am. Rep. 428. H. & B. 316, p. 504. 50(;. .i07. Coweii V. Adams, 78 Fed. 536, 543, 552, 47 U. S. App. 676, (C. C. A.) p. 51.3. Cowin V. Hurst. 124 IMich. 545. 83 Am. St. Rep. 344, 83 X. W. 274, p. 602. Cowles V. Pollard. 51 Ala. 445, 447. p. 97. ( 'owper V. Cowper. 2. P. Wms. 720, 753. Sliep. 84, 1 Scott 296, p. 205. Cowtan V. Williams. 9 Ves. 107. 2 Ames Eq. Jur. 8. 1 Keener 213. p. 797, 799. Coyle V. Davis, 116 U. S. 109. 6 Sup. Ct. 314. 29 L. ed. 583, Kirch. 156. p. 699. Cradock v. Piper, 1 Macn. & G. 664, p. 622. Cragg V. Holme, 18 Ves. 14, n. 12, 1 Ames. Eq. Jur. 417, p. 894. Craig V. Hukill, 37 W. Va. 520, 16 S. E. 363. H. & B. 60, p. 227. Craig V. Leslie, 3 Wheat. 563, 577. 582. 4 L. ed. 460, H. & B. 39, Sh. 66. 1 Scott 611, p. 167, 554, 681. Cramer v. Lepper, 26 Ohio St. 59, 20 Am. Rep. 756, p. 712. Cramer v. Reford. 17 X. J. Eq. 367, 90 Am. Dec. 594, p. 532. Crampton v. Zabriskie, 101 U. S. 601, 25 L. ed. 1070. p. 822. Crane v. Conklin, 1 X. J. Eq. 346, 22 Am. Dec. 519, p. 508. TABLE OF CASES CITED. 941 Crane v. McDonald, 118 N. V. 048. 23 :N. E. !)'J1, 1 Keener 262, p. 7!M). 7!ll, 7i)4. 7!)7, 798. Cranford v. Tyrrell. 128 X. Y. 341. 28 X. E. 514, 1 Keener 788, p. 830. Crass V. Memphis & G. R. Co., 90 Ala. 447, 11 South. 480, 1 Keener 311, p. 1.32, 795, 798, 799. Crawford v. Chicago etc. R. Co., 112 111. 314, p. 282. Crawford v. Crawford, 24 Xev. 410, 56 Pac. 94, p. 513. Crawford v. Fisher, 1 Hare, 430, 440, 441. p. 790. Crawford v. Kirksey, 55 Ala. 282, 28 Am. Rep. 704, p. 531. Crawford v. Tyrrel, 128 N. Y. 341, 28 X. E. 514, 1 Keener 788. p. S20. Crawsliay v. Thornton. 2 Mylne & C. 1, 19-24, 2 Ames Eq. Jur. 18, 1 Keener 220, p. 790, 793. 794, 795, 796, 797. Creely v. Bay State Brick Co., 103 Mass. 514, p. .52, 53. Crenshaw v. Carpenter, 69 Ala. 572, 44 Am. Rep. 539, p. 236. Cri-hton v. Dahmer, 70 Miss. 002, 13 Soutli. 237, 21 L. R. A. 84, Shep. 15, p. 851. ^rippen v. Chappel, 35 Kan. 495, 11 Pac. 453, 57 Am. Rep. 187, p. 717. Crockett v. Doriot, 85 Va. 240, 3 S. E. 128, p. 651. Crockford v. Alexander, 15 Ves. 138, 1 Ames Eq. -Jnr. 221, 1 Keener .549, 1 Scott 685, p. 829, 842. Croft V. Goldsmid, 24 Beav. 312, p. 224, 226. Croft V. Graham, 2 De Gex, ,T. & S. 155. p. 511. Cronin v. Bloemicke, 58 X. J. Eq. 313, 43 All. 605, 1 Ames Eq. .Jur. 560, p. 831. Crook V. Corporation of Seaford, L. R. Ch. 551, L. R. 10 Eq. 678, p. 401. Crookston Imp. Co. v. Marshall, 57 Minn. 333, 47 Am. St. Rep. 612, 59 X. W. 294, p. 427. Crosby v. Taylor. 15 Gray, 04, 77 Am. Dec. 3.32, p. 382. Cross V. United States Trust Co.. 131 X. Y. 330. 27 Am. St. Rep. 597, 30 X. E. 135, 15 L. R. A. 006, p. 549. Croton Turnpike Co. v. Ryder, "L .Tohns. Ch. Oil, 1 Ames Eq. Jur. 611, 1 Scott 168, p. 841. Crowder v. Tinkler, 19 Ves. 017, 1 Ames Eq. .Jur. 555, p. 831. Crowe V. Ballard, 3 Brown CIi. 117, 119. 120. 2 Cox, 253, 2 Scott 7.59, p. 512, 524. Crowe V. Leevin, 95 X. Y. 423, 3 Keener 283, p. 437. Crowe V. \Yilson. 05 Md. 479, 57 Am. Rep. 343, 5 Atl. 427, p. 827. Crowell V. Young, (Ind. T.) 04 S. W. 007, p. 99. Cruwys v. Coleman, !) Ves. 319, 322, 323, p. 568. Cud V. Rutter, 1 P. Wms. 570, 571, 2 Scott 44, 2 Keener 1, p. 880, 884. Cumberland Coal Co. v. Sherman, 20 Md. 117, p. 524. Cunnack v. Edwards, [1890] 2 Ch. 679, [1895] 1 Ch. 489, p. 575. Curdy v. Berton, 79 Cal. 420, 12 Am. St. Rep. 157, 21 Pac. 858, H. & B. .501, p. 603. Curran v. Holyoke W. Co., 110 :\Iass. 90, p. 895. Curran v. Houston, 201 111. 442. 00 X. E. 228, p. 218. Curre v. Bowj'er, 5 Beav. 6, 1 Ames Eq. .Jur. 196, p. 164. Curtice V. Crawford County Bank, 118 Fed. 390, p. 305. Curtis V. Curtis, 2 Brown Cli. 020. 031, 032, p. 864, 865. Curtis V. Moore, 152 X". Y. 159, 40 N. E. 108, 57 Am. St. Rep. 500. ]>. 383, 715. Curtis V. Sutter, 15 Cal. 259. 203, 264, p. 873. Gushing v. Blake, 30 X. ,J. Eq. 689, p. 564. Gushing v. Drew, 97 Mass. 445, p. 219. Gushing v, Perot, 175 Pa. St. 66, 52 Am. St. Rep. 835, 34 Atl. 447, 34 L. R. A. 737, p. 811. CusJiman v. Thayer :Mfg. Co., 76 X. Y. 365, 371, 32 Am. Rep. 315, p. 67, 907. Cutler V. Anunon, 65 Towa, 281, 21 N. W. 004, p. 749. 942 TABLE OF CASES CITED, Cutter V. Butler, 2r> N. H. 343, 57 Am. Dee. 330, p. 642. Cutting V. Dana, 25 N. J. Eq. 2G5, 2 Keener 267, p. 883. Cutting V. Gilbert, 5 Blatch. 259, 261- 263, p. 123. D. Daggett V. Aver, 65 N. H. 82, 18 Atl. 169, 2 Ames Eq. Jur. 232, 3 Keener 181, p. 859. Daggett V. Rankin. 31 Cal. 321, 326, p. 158, 167, 739. Daire v. Beversham, Nelson 76, 1 Ch. Ca. 39. 1 Ames Eq. Jur. 192, p. 162. 3)ale V. Robinson, 51 Vt. 20, 31 Am. Rep. 669, p. 642. Dalston v. Coatsworth, 1 P. Wms. 731, 1 Scott 407, p. 409. Daly V. Palmer. 6 Blatclif. 256, Fed. Cas. No. 3, 552, p. 838. Daly V. Smith, 38 N. Y. Super. Ct. 158, 2 Keener 267, p. 819. Dambmann v. Schulting, 75 N. Y. 55, 61, 63. 3 Keener 202, H. & B. 227, p. 428, 464, 859. Damm v. Damm, 109 Mich. 619, 67 N. W. 984, 63 Am. St. Rep. 601, p. 724. Dance v. C4oldingham, L. R. 8 Ch. 902, p. 810. Daniel v. Hester, 29 S. C. 147, 7 S. E. 65, p. 275. Daniel v. Hill, 52 Ala. 430, p. 521. Daniels v. Davison, 16 Ves. 249, 17 Ves. 433, 2 Scott 472, p. 276, 319. Daniels . v. Keokuk Waterworks, 61 Iowa 549, 16 N. W. 705, 1 Ames Eq. Jur. 585, p. 832. Danser v. Warwick, 33 N. J. Eq. 133. Ames Trusts 186, p. 567. Darbey v. Whitaker, 4 Drew. 134, 139. 140, 2 Keener 129, p. 886. D'Arcy v. Blake, 2 Schoales & L. 387, Ames Trusts 376, p. 552. Dargin v. Hewlitt, 115 Ala. 510, 22 South. 128, p. 65. Darling, In re, [1896] 1 Ch. 50, p. 576. Darragh v. H. Wetter INIfg. Co.. 78 Fed. 7, 23 C. C. A, 609, p. 142. Darrow v. Summerhill, 93 Tex. 92, 77 Am. St. Rep. 833, 53 S. W. 680, p. 915. Darst V. Phillips, 41 Ohio St. 514, Shep. 24. Daubenspeck v. Piatt, 22 Cal. 330, 335, p. 720. Davenport v. Davenport, 7 Hare 217, 1 Ames Eq. Jur. 496, 1 Keener 574, )). 842. Davenport v. Magoon, 13 Oreg. 1, 57 Am. Rep. 1, p. 827. Davies v. Fowler, L. E. 16 Eq. 308, p. 658. Davies v. Jenkins, L. R. 6 Ch. Div. 728. p. 651. Davies v. Sear, L. R. 7 Eq. 427, 432, 433, p. 273. Davies v. Topp, 1 Brown Ch. 524, 526. 527, p. 662. Davis, In re, 112 Fed. 129, p. 587. Davis v. Am. Soe. etc., 75 N. Y. 362, 2 Ames Eq. Jur. 104, 1 Keener 108, p. 851. Davis V. Bechstein, 69 N. Y. 440, 25 Am. Rep. 218, p. 332. Davis V. Earl of Strathmore, 16 Ves. 419, 428. p. 289, 367. Davis V. Ely, 104 N. C. 16, 10 S. E. 138. 17 Am. St. Rep. 667, 5 L. R. A. 810. H. & B. 262. p. 436. Davis V. Foreman, [1894] 3 Ch. 654, 2 Keener, p. 819. Davis V. Gray, 16 Wall. 203, H. & B. 804, Shep. 325, p. 809. Davis v. Rock Creek etc. Co.. 55 Cal. 359. 36 Am. Rep. 40, p. 601, 617. Davis v. Strathmore, 16 Ves. 419, p. 289, 367. Davis V. Turvey, 32 Beav. 554, p. 86!). Davis v. Ward, 109 Cal. 186, 41 Pac. 1010, 50 Am. vSt. Rep. 29, p. 295. 362, 363. Davis V. Wetherell. 13 Allen 60, 90 Am. Dec. 177, p. 386, 721. Davis V. Whitaker, 114 N. C. 279. 19 S. E. 699, 41 Am. St. Rep. 793. p. 294. Davis V. Williams, 130 Ala. 530. 537, 538. 89 Am. St. Rep. 55. 60. 61. .10 Soutli. 488, 54 L. R. A. 749, p. 204. TABLE OF CASKS CITED. 943 J>avoiie r. Fanning, 2 Johns. Ch. 251, . 2.52. 253, 258, 260, 2 Scott 690, p. 515, 619. Day V. Cummings, 19 Vt. 495, 496, p. 132. Day V. Hunt, 112 N. Y. 191, 19 N. E. 414, 2 Keener 1114, p. 891, 900. Day V. Newman, 2 Cox, 77, 10 Ves. 300, 2 Seott 227, p. 482. Day V. Wells, 30 Beav. 220, 1 Ames Eq. Jiir. 380, 2 Keener 951, p. 432. Day Land etc. Co. v. State, 68 Tex. 527, 4 S. W. 865, 1 Keener 364, p. 877. Dajiion H. Co. v. Felsenthall. 116 Fed. 961, 55 C. C. A, 537, p. 810. Deacon v. Smith, 3 Atk. 323, 1 Scott 327, p. 252. Dean v. Long, 122 111. 447, 14 N. E. 34, p. 550. Dean v. Robertson, 64 Miss. 195. 1 South. 159, p. 179. Dean's Heirs v. Mitchell's Heirs, 4 J. J. Marsh (Ky.) 451, 1 Ames Eq. Jur. 204, p. 163. Dearie v. Hall, 3 Russ. 1, 48, Ames Trusts 323, p. 322, 323, 325. Deason V. Taylor, 53 Miss. 697. 701. H. & B. 97, p. 281. Debell V. Foxworthy, 9 B. Mon. 228, p. 285. Debenham v. Ox, 1 Ves. Sr. 270, 2 Scott 666, p. 487. De Berry v. Wheeler, 128 ]\Io. 84. 49. Am. St. Rep. 538, 30 S. W. 338. p. 397. Debs, In re, 158 U. S. 564. 15 Sup. Ct. 900, 34 L. ed. 1092, Shep. 304, p. 826. De Bussche v. Alt, L. R. 8 Ch. Div. 286. 314, p. 518, 524. Decatur Mineral Land Co. v. Palm, 113 Ala. 531, 21 South. 315, 59 Am. St. Rep. 140. p. 631. Deck V. Tabler, 41 W. Va. 332, 23 S. E. 721, 56 Am. St. Rep. 837, p. 591. Deck V. Yerke, 12 Cal. 433, 436, 73 Am. Dec. 555, p. 672. Decker v. Adams, 28 N. J. Law, 511, 78 Am. Dec. 65, p. 1226. Decker v. Boice, 83 N. Y. 215, p. 351. Deeks v. St.i-utt, 5 Term Rep. 69, p. 655. Doore v. Guest, 1 Mylne & C. 510, 1 Ames Eq. Jur, 492, 1 Keener 564, p. 842. Deeth v. Hale, 2 Molloy, 317, 1 Scott 641, p. 685. De Graft", Vrieling & Co. v. Wickham, 89 Iowa, 720, 52 N. W. 503. p. 220. De Gray v. Monmouth Beech Clubhouse Co. 50 N. J. Eq. 329, 24 Atl. 388, 2 Scott 534, p. 776. Dclafield v. State of Illinois, 2 Hill. 159, 164, p. 670. Delaney V. McCormack, 88 N. Y. 174, H. & B. 407, p. 677. De Laurencel v. De Boom, 48 Cal. 581, p. 567. De La Vergne Refrig. ]\Iach. Co. v. ]\Iontgomery Brewing Co., 46 Fed. 829, p. 757. De :\Iartin v. Phelan, 115 Cal. 538, 47 Pac. 356, 56 Am. St. Rep. 115, Kirch. 405, p. 698. De :\rattos v. Gibson, 4 De Gex & J. 276, 1 Ames Eq. Jur. 102. p. 819. Demeter v. Wilcox, 115 Mo. 634, 22 S. W. 613, 37 Am. St. Rep. 422. p. 345. Deming v. ]\Iiles, 35 Nebr. 739, 53 X. W. 665, 37 Am. St. Rep. 464, p. 204. Dempsie v. Darling, 39 Wash. 125, 81 Pac. 152, 1 Scott 735, p. 830. Demuth v. Old Town Bank, 85 Md. 315, 37 Atl. 266, 60 Am. St. Rep. 322, p. 351. Dcnison Mfg. Co. v. Thomas ^Ifg. Co., 94 Fed. 651, Lewis 171, p. 840. Dennis v. Jones, 44 N. J. Eq. 513, 14 Atl. 913, 6 Am. St. Rep. 899, 3 Keener 728, p. 401, 475. Dennis v. Northern Pac. R. Co.. 20 Wash. 320, 55 Pac. 210, p. 277. Denny v. Hancock, L. R. 6 Ch. 1. 3 Keener 969, p. 431, 432, 444. Denton v. MacNeil, L. R. 2 Eq. 352, ]). 449, 526. Dering v. Earl of Winehelsea, 1 Cox, 318, 1 Lead. Cas. Eq., 4th Am. ed.. 120, 124, 134-188, Shep. 94, 1 Scott 367, p. 56, 68, 914. De Rivafinoli v. Corsctti. 4 Paige, 204, 25 Am. Dec. 532, p. 886. Derry v. Peek, 14 App. Cas. (H. L.) 337, p. 451, 452. 944 TAELE OF CASKS CITED. Desborough v- Harris, 5 De Gex, M. & G. 439, 455. p. 792. Desinare v. United States, 93 U. S. G05, p. 494. Detroit Copper & Brass Rolling Mills Co. V. Ledwidge, 162 111. 305, 44 N. E. 751, p. 79. Devlin v. The Mayor, 63 N. Y. 8, p. 760, 761. De Walsh v. Braman, 160 111. 415, 43 N. E. 597, p. 177. DeAvar v. Maitland, L. R. 2 Eq. 834, 838, p. 233. Dewey v. Allgire, 37 Nebr. 6, 55 N. W. 276, 40 Am. St. Rep. 468, p. 505. De Witt V. Yates, 10 Johns. 156. 6 Am. Dec. 326, H. & B. 144, p. 244, 245. Dexter v. Arnold, 2 Snm. 108, Fed. Cas. No. 3,858, Kirch. 522. p. 719. Dial V. Hair, 18 Ala. 798, 54 Am. Dec. 179, p. 494. Diamond v. Lawrence Co. Bank, 37 Pa. St. 353, 78 Am. Dec. 429, p. 286. Diamond Match Co. v. Roeber, 106 N. Y. 473, 13 N. E. 419, 60 Am. Rep. 464, 1 Ames Eq. Jur. 123, p. 491, 820. Dickenson v. Grand June. C. Co., 15 Beav. 260, 270, 2 Keener 312, p. 820. Diekerson v. Tillinghast, 4 Paige, 215, 25 Am. Dee. 528, p. 356. Dickinson v. Burrell, L. R. 1 Eq. 337, p. 592. Dickinson's Appeal, 152 Mass. 184, 25 N. E. 99, Ames Trusts 478, p. 615. Dickson's Trusts, In re, 1 Sim., N. S., 37, 43, 44, 46, p. 489. Dietrichsen v. Cabburn. 2 Phill. Ch. 52, 1 Ames Eq. Jur. 108, 2 Scott 92, 2 Keener 220, p. 818, 820. Dillard v. DiHard, 97 Va. 434, 34 S. E. 60, p. 607. Dilley v. Love, 61 Md. 603, p. 248. Dillingham v. Howk, 60 Fed. 494, 9 C. C. A. 101, 23 L. R. A. 517, p. 809. Dillon V. Heller, 39 Kan. 599, 18 Pac. 693, 1 Ames Eq. Jur. 14, 1 Scott 246, p. 207. Dilly V. Doig, 2 Ves. 486, 2 Ames Eq. Jur. 58, 1 Keener 117, p. 106. Diman v. Providence R. R., 5 R. T. 130. 135, 3 Keener 256, p. 414, 429, 438. Dimmick v. Delaware, L. & W. R. R. Co., 180 Pa. St. 468, 36 Atl. 866, p. 133. [ Dineley v. Dineley, 2 Atk. 394, p. 79. j Dingman v. Roniine, 141 Mo. 466, 42 S. W. 1087, p. 50(). Dinwidde v. Bailey, 6 Ves. 136, 1 Ames Eq. Jur. 442, p. 918. Dinwiddle v. Self, 145 111. 290. 33 N. E. 892, 3 Keener 137, p. 198, 419. Distilled Spirits, 11 Wall. 356, {). 302, 306, 307. D. M. Osborne & Co. v. Mo. Pac. R. Co., 147 U. S. 248, 13 Sup. Ct. 299, 37 L. ed. 155, p. 824. Dobbin v. Cordiner, 41 Minn. 1()5. 42 X. W. 870, 16 Am. St. Rep. 683, 4 L. R. A. 333, Shep. 130, p. 399. Dobie v. Fidelity etc. Co., 95 Wis, 540,. (iO Am. St. Rep. 135, 70 N. W. 482, ]). 914. Dock v. Dock, ISO Pa. St. 14, 57 Am. St. Rep. 617, 36 Atl. 411, p. 80. Docker v. Somes, 2 ^Slylne & K. 665, p. 617. Dodd V. Hartford, 25 Conn. 232. 238, 2 Ames Eq. Jur. 691, p. 123, 124. Dodkin v. Brunt, L. R. 6 Eq. 580, Ames Trusts 226, p. 567, 625. Doescher v. Doescher, 61 Minn. 326. 63 N. W. 736, p. 751. Doherty v. Allman, L. R. 3 Apj). Cas. 709, 1 Ames Eq. Jur. 462, 1 Keener 476, 1 Scott 664, p. 828. Dolman v. Nokes, 22 Beav. 402. 3 Keener 565, p. 464, 468. Domestic & F. Missionary Soc. of tlie P. E. Church v. Eels, 68 Vt. 497, 54 Am. St. Rep. 888, 35 Atl. 463, p. 473. Donaldson v. Donaldson. Kay. 711, 719, Ames Trusts 146, p. 559, 562. Doniol v. Commercial Fire Ins. Co.. 34 \'. J. Eq. 30, 2 Ames Eq. Jur. 237, p. 438. Donk V. Alexander, 117 111. 330. 7 X. E. 672, p. 381. Donley v. Hays, 17 Serg. & R. 400, p. 707. Donnell v. Bennett, L. R. 22 Ch. Div. 835, 1 Ames Eq. Jur. 114, 2 Scott 114. 2 Keener 275, H. & B. 627, p. 818, 820, TABLE OF CASES CITED. 945 Dooley v. Watson, 1 Gray, 414, p. 222. Doran v. Dazey, 5 N. D. 167, U4 N. W. 102;5, 57 Am. St. Rep. 550, p. 297. Dormer v. Forteseue, 3 Atk. 124, 130, 132, 1 Keener 523, p. 864, 8(i5. Dorn V. Fox. Gl N. Y. 264, 1 Keener 249, p. 790, 791, 793. Dorr V. fSliaw, 4 Johns. Ch. 17, p. 181. Doswell V. Buclianan's Fx'rs, 3 Leigh, 365, 381, 23 Am. Dec. 280, p. 365. Dow V. Mempliis etc. R. Co., 20 Fed. 260, 268, p. 809. Dowdy V. Blake, 50 Ark. 205, 6 S. W. 897, 7 Am. St. Rep. 88, p. 752. Dowell V. Goodwin, 22 R. I. 287, 84 Am. St. Rep. 842, 47 Atl. 693. 51 L. R. A. 873, p. 855. Dower v. Seeds, 28 W. Va. 113, 57 Am. Rep. 646, p. 473. Dowie V. Driscoll, 203 Til. 480, 68 X. E. 56, p. 510. Dowling V. Betjemann, 2 Johns. & H. 544, 1 Ames Eq. Jur. 40, 2 Scott 41, 2 Keener 20, p. 882. Dows V. Chicago, 11 Wall. 108, 20 L. ed. 65, p. 823. Dowson V. Solomon, 1 Drew. & S. 1, 1 Ames Eq. Jur. 418, p. 894. Drake v. Storr, 2 ^ir^em. 205, p. 635. Drake v. Wild, 65 Vt. 611, 27 Atl. 427. p. 816. Draper v. Bryson, 26 Mo. 108, (i9 Am. Dec. 483, p. 343. Drew V. Hagerty, 81 Me. 231, 17 Atl. 63, 10 Am. St. Rep. 255, 3 L. R. A. 230, p. 668. Drewe v. Corp., 9 Ves. 368, 2 Scott 394. ]). 905. Dreyfus v. Penivian Guano Co., L. R. 41 Ch. Div. 151, p. 77. Drinkale v. Movius State Bank, 11 X. Dak. 10, 88 X. W. 724, 95 Am. St. Rep. 693, 57 L. R. A. ,341, p. 499. Dryden v. Frost, 3 Mylne & C. 670, p. 750. Du Bois V. Ray, 35 X. Y. 102, p. 43^^. Ducie V. Ford, 138 U. S. 587, 11 Sup. Ct. 417, 34 L. ed. 1091, p. 590. Duckett V. Bank, 86 Md. 400, 38 Atl. 983, 63 Am. St. Rep. 513. 39 L. R. A. 84. p. 620. Dudley V. Dudley, Free. Cii. 241, 244, p. 24. 60 Dueber Watch-Case Mfg. Co. v. Daugh -• erty, 62 Ohio St. 589, 57 N. E. 455, p. 326, 333, 337, 346, 347. Dufi" .Mfg. Co. V. Norton, 92 Fed. 921, ]). 830. Dugan V. Vattier, 3 Blackf. (Ind.) 245, 25 Am. Dec. 105. ]>. 362. Du Hourmelin v. Sheldon, 4 Mylne & C. 525, 1 Beav. 79, p. 549. Duke of Beaufort v. Berty, 1 V. Wms. 703, p. 803. Duke of Bedford v. Trustees. 2 ?tlylne & K. 552, 2 Keener 1010. p. 777. Duke of Dorset v. Girdler. Free. Ch. 531, 2 Ames Eq. Jur. 166, p. 84, 85. Duke of Leeds v. Amherst, 2 Pliill. Ch. 117, 123, p. 524, 525. Diduun V. Dunn, 42 X. J. Eq. 431, 7 Atl. S!42. 3 Keener 819, p. 519. Durant v. Crowell, 97 X'. C. 367, 2 S, E. 541, p. 348. 946 TABLE OF CASES CITED. Durfee's Petition, 14 R. I. 47, p. 23G. Durham v. Legard, 34 Beav. 611, 1 Ames Eq. Jiir. 395, 2 Scott 385, 2 Keener 1206, p. 905. Durst V. Daugherty, 81 Tex. 650, 17 8. W. 388, p. 282, 362. Duryee v. United States etc. Co., 55 N. J. Eq. 311, 37 Ail. 155, p. 808. Dutton V. Warschauer, 21 Cal. 609, 621, 623, 82 Am. Dec. 765, p. 693. Duval V. Wellman, 124 N. Y. 158, 26 N. E. 343, p. 487, 501. Duvall V. Farmers' Bank, 4 Gill & J. 283, 290, 23 Am. Dec. 558, p. 647. Duvall V. Waters, 1 Bland, 569, 18 Am. Dec. 350, p. 844. Dwight V. Hayes, 150 111. 273, 41 Am. St. Rep. 367, 37 N. E. 218. p. 830, 8:51. Dyer v. Dyer, 2 Cox, 92, 1 Lead. Cas. Eq., 4th Am. ed., 314, 319, 333, H. & B. 452, Shep. 208, p. 590, 591, 602. Dyer v. Hargrave, 10 Ves. 505, 506, 1 Ames Eq. Jur. 245, p. 456, 458. Dyke's Estate, In re, L. R. 7 Eq. 337, p. 411. Dysart v. Crow, 170 Mo. 275, 70 S. ^^^ 689, p. 132. E. Eaden v. Firtli. 1 Hen. & M. 573, 1 Ames Eq. Jur. 564, p. 832. Eaglesfield v. Mai'quis of Londonderry, L. R. 4 Ch. Div. 693, 702, 703, 709. p. 422, 445. Earl of Bath v. Sherwin, Free. Ch. 261, 10 Mod. 1, 3, 4, 1 Brown Pari. Cas. 266, 270. 2 Brown Pari. Cas., Tom- lin's ed., 217, 2 Ames Eq Jiir. 95, 1 Keener 153, p. 27, 105, 108. Earl of Chesterfield v. Janssen, 2 Ves. Sr. 125, 1 Atk. 301, 1 Lead. Cas. Eq.. Eng. ed., 773, 809-825, 4th Am, ed., 825-836, 1 Scott 455, p. 443. Earl of Clarendon v. Hornbj, 1 P. Wms. 446, p. 869. Earl of Feversham v. Watson, Fi-eem. Ch. 35, 1 Ames Eq. Jur. 317, p. 897. Earl of Oxford's Case, 1 Ch. Rep. 1, 2 Lead. Cas. Eq., 4th Am. ed., 1291, Shep. 26, p. S52. Earloui v. Saunders, Amb. 241, 1 Scott 637, 3 Keener 951, p. 679. Earl Spencer v. Peek, L. R. 3 Eq. 415. 2 Ames Eq. Jur. 170, p. 84, 85. Earl Talbot v. Hope Scott, 4 Kay & J. 96, p. 804. Early v. Friend, 16 Gratt. 21, 78 Am. Dec. 649, p. 869, 919. East & West R. Co. of Ala. v. E. T. V. & G. R. Co., 75 Ala. 280, p. 824. East Birmingham Land Co. v. Denison, 85 Ala. 565, 5 So. 317, 7 Am. St. Rep. 73, 2 L. R. A. 836, p. 332. East India Co. v. Vincent, L. R. 35 Ch. D. 694, 1 Ames Eq. Jur. 310, p. 904. East Moline Plow Co. v. Weir Plow Co., 95 Fed. 250, p. 221. Eaton v. Benton, 2 Hill, 576, 578, p. 243. Eaton V. Eaton, 15 Wis. 259, 2 Ames Eq. Jur. 244. p. 859. Echelkamp v. Schrader, 45 Mo. 505, 1 Ames Eq. Jur. 511, p. 843, 844. Echols V. Hubbard, 90 Ala. 309, 7 South. 817, p. 875. Economy Sav. Bank v. Gordon, 90 Md. 486, 45 Atl. 176, 48 L. R. A. 63, H. & B. 19, p. 197, 372. Edgerton v. Edgerton, 12 Mont. 122, 29 Pac. 966, 33 Am. St. Rep, 557, 16 L. R. A. 94, p. 648. Edgerton v. Peckham, 11 Paige 352, 359, 2 Scott 337, p. 899, 900. Edgington v. Fitzmaurice, 29 Ch. Div, 459, p. 445. Edison Electric L. Co. v. Beacon etc. Co.. 54 Fed. 678, 1 Ames Eq. Jur. 630, p. 836. Edison Electric Light Co. v. U. S. Electric Light Co., 45 Fed. 55, 58, p. 80. Edmeston v. Lyde, 1 Paige, 637, 19 Am. Dec. 454, p. 910. Edwards v. Hill, 59 Fed. 723, 19 LT. S. App. 493, p. 140. Edwards v. Jones, 1 Mylne & C. 226, 235, 238, Ames Trusts 140, p. 559, 562, 607. Edwards v. McLcay, 2 Swanst. 287, Coop. & Eld. 308, 2 Scott 718, p. 462. 'rAiii.i: oi- ('\si:s ciTEn. 947 Edwards v. IMcyrick, 2 Hare. (iO, 7.1, p. 519. Edwards v. Kainier's Ex'rs, 17 Ohio St. 597, H. & B. 14G, p. 244, 245. Edwards v. Tlioinpson, 71 N. C. 177, 179. p. 278. Edwards v. West, L. R. 7 Ch. Div. 858, 8G2, 863, 1 Scott 604, p. 681. Edward Thompson Co. v. American Law Book Co., 122 Fed. 923, 59 C. C. A. 148, p. 838. Eodes V. Eedes, 11 Sim. 569, p. 648. Efland v. Efland, 96 N. C. 493, 1 S. E. 858, p. 132. Egbei't V. Greenberg, 100 Fed. 447, p. 838. Eggeman v. Eggeman, 37 Mich. 436, p. 345, 349. Eldridge v. Dexter & P. R. R. Co., 88 Me. 191, 33 Atl. 974, 3 Keener 158, p. 418. Electric L. Co. v. Mobile & S. H. Ry. Co., 109 Ala. 190, 55 Am. St. Rep. 927, 19 South. 721, p. 889. Ellard v. Lord Llandaff, 1 Ball & B. 241, 1 Ames Eq. Jur. 363, 2 Keener 854. 2 Scott 246, p. 468. Elliott V. Fisher, 12 Sim. 505, p. 681. Elliott V. Sackett, 108 U. S. 140, 2 Sup. Ct. 375, 27 L. ed. 680, p. 710. Elliott V. Whitmore. 23 Utah, 342, 65 Pac. 70. 90 Am. St. Rep. 700, p. 395. Ellis V. Ellis's Adm'rs, 15 Ala. 296, 50 Am. Dec. 132, p. 571. Ellis V. Lewis, 3 Hare, 310, 315, p. 236. Ellis V. Vernon etc. Co., 86 Tex. 109, 23 S. W. S58. p. 809. p:ilison V. Ellison, Ves. 656, 1 Lead. Cas. Eq., 4th Am. ed., 382, 389, 415, 423. Ellison V. Moffatt, 1 Johns. Ch. 46, 1 Scott 387. 2 Scott 758, Shep. 118, p. 198. Ellsworth V. Lockwood, 42 N. Y. 89, 97. ]). 717. Elmbaiik. The, 72 Fed. 610. p. 325. 358, 359, 360. Elmhirst v. S[)eneor. 2 Macn. & G. 45, 1 Keener 661, p. 832. Klmore v. Johnson, 143 111. 513. 3(i Am. St. Rep. 401, 404, 406, 407. :!2 N. E. 413, 21 L. R. A. 366, H. & B. 343, p. 518, 520. Else V. Kennedy, 67 Iowa 376, 25 X. W. 290, 3 Keener 429, p. 859. Elting V. First Nat. Bank, 173 111. 368, 50 N. E. 1095, p. 477, 515, 522. Ely V. Wilcox, 20 Wis. 523, 530, 531, 551, 91 Am. Dec. 436, p. 368. Elyton Land Co. v. Dowdell, 113 Ala. 177, 20 South. 981, 59 Am. St. Rep. 105, p. 630. Emack v. Kane, 34 Fed. 46, Lewis 326. p. 845. Emanuel College v. Evans, 1 Rep. Chan. 18, 1 Scott 31, Kirch. 704. p. 687. Embrey v. Jemison, 131 U. S. 336, 9 Sup. Ct. 776, p. 486. Emerson v. Udall, 13 Vt. 477, 37 Am. Dec. 604, p. 851. Emery v. Batchelder. 78 Me. 233, 3 Atl. 733, p. 660. Emery v. Clough, 63 N. H. 552, 56 Am. Rep. 543, 4 Atl. 796, p. 606. England v. Curling, 8 Beav. 129, 2 Keener 68, p. 885. England v. Do^\tis, 2 Beav. 522. p. 487. English V. Lindley, 194 111. 181, 62 N. E. 522, p. 365. Enos V. Sanger, 96 Wis. 151, 70 X. W. lOfiO, 65 Am. St. Rep. 38, 37 L. R. A., 862, p. 712. Equitable Gas Light Co. v. Baltimore etc. Co., 63 Md. 285. 2 Keener 35. p. 882. Erdraan v. Mitchell, 207 Pa. St. 79, 9!) Am. St. Rep. 783, 56 Atl. 327, Lewis 290, p. 847. Erhardt v. Boaro, 113 U. S. 5.37. 5 Sup. Ct. 565, 28 L. ed. 1116, 1 Amos Eq. Jur. 507, I Scofct 704, 1 Keener 634, p. 843. Erickson v. First X^at. Bank, 44 Xob. 622. 48 Am. St. Rep. 753, 62 X. U". 1078, 38 L. R. A. 377. p. 861. Erkens v. Nicolin, 39 Minn. 461, 40 N. W. 567, H. & B. 216. Shep. 152, p. 425. 948 TABLE OP CA,S]:S CITED. Eschweiler v. Stowell, 78 Wis. 316, 47 N. W. 361, 23 Am. St. Rep. 411, p. 634. i^Ispin V. Pemberton, 3 De Gex & J. 547, 554, 555, 556, 4 Drew, 333, p. 304. Essex V. Atkins, 14 Ves. 542, p. 640. Essex Co. Bank v. Harrison, 57 N. J. Eq. 91, 40 Atl. 209, p. 300. Estes V. Gunter, 122 U. S. 450, 7 Sup. Ct. Rep. 1275, 30 L. ed. 1228, p. 556. Estis V. Jackson, 111 X. C. 145, 32 Am. St. Rep. 784, 16 S. E. 7, p. 396. Evans v. Hunter, 86 Iowa, 413, 41 Am. St. Rep. 503. 53 X. W. 277, 17 L. R. A. 308, p. 657. Evans's Appeal, 51 Conn. 435, p. 238. Kvcrson v. Equitable Life Assur. Co., 68 Fed. 258, p. 78. Everts V. Agnes, 4 Wis. 343, 65 Am. Dec. 314, p. 377, 378. Ewer V. Hobbs, 5 Met. 1, 3, ]). 692. Ewing V. Smith, 3 Desaus. Eq. 417, 5 Am. Dec. 557, p. 642. Ewins V. Gordon, 49 X. H. 444. p. 881. Exon V. Daneke, 24 Oreg. 110, 32 Pac. 1045, p. 277. Eyre v. Countess of Shaftsbury, 2 P. Wms. 103, 2 Lead. Cas. Eq., 4th Am. ed., 1416, 1446, 1487, p. 782. Eyre v. Everitt, 2 Russ. 381, 382, p. 131. F. Factors' etc. Ins. Co. v. Murphy, 111 U. S. 738, 4 Sup. Ct. 679, p. 383. Faine v. Brown, 2 Ves. Sr. 307, 1 Ames Eq. Jur. 397, 2 Scott 285, p. 894. Fairbanks v. Sargent. 104 X. Y. 108, 117, 9 X. E. 870, 58 Am. Rep. 490, s. c, 117 X. Y. 320, 22 X. E. 1039. 6 L. R. A. 475, p. 337. Fairfield Sav. Bank v. Chase, 72 Me. 226, 39 Am. Rep. 319, p. 302. Fairland v. Percy. L. R. 3 P. & D. 217. Ames Trusts, 423. p. r)24. Falcke v. (iray. 4 Drew. 651, H. & B. 655. p. 431, 483. 882. Fallass v. Pierce, 30 Wis. 443. p. 368. Fanning v. Dunham. 5 Johns. Ch. 122. 142, 143, 144. 9 Am. Dec. 283. 1 Scott 271, p. 178, 179, 486, 497. Fant V. Miller, 17 Graft. 187, p. 88. Farabee v. McKerrihan. 172 Pa. St. 234, 33 Atl. 583, 51 Am. St. Rep. 734, p. 294. Farina v. Silverlock, 6 De Gex, M. & G. 214, 217, p. 839. Farington v. Parker, L. R. 4 Eq. 116, p. 640. Farley v. Blood, 30 X. H. 354, 2 Ames Eq. Jur. 4, p. 790, 791, 797, 798, 799. Farley v. Turner, 26 L. J. Ch. 710, Ames Trusts 40, p. 569. Farmers & Mechanics' Bank v. Butch- ers' etc. Bank, 16 X. Y^ 125, 69 Am. Dec. 678, 14 X. Y. 623, p. 391. Farmers & Merchants' Bank v. Far well, 58 Fed. 633, 7 C. C. A. 391, 19 U. S. App. 256, p. 323. Farmers' Bank v. Diebold Safe & Lock Co., 66 Ohio St. 367, 64 X. E. 518, 90 Am. St. Rep. 586, 58 L. R. A. 620. p. 337. Farmers' L. & T. Co. v. Bankers' Tel. Co.. 148 X. Y. 315, 51 Am. St. Rep. (i90, 42 X. E. 707, 31 L. R. A. 403, p. 811. Farmers' L. & T. Co. v. Denver, L. Sc G. R. Co., 126 Fed. 46, 60 C. C. A. 588, p. 177. Farmers' Loan etc. Co. v. Grape Creek Coal Co., 50 Fed. 481, H. & B. 879, p. 810. Farmers' L. & T. Co. v. Maltby, 8 Paige, 361, j). 298. Farmers' Loan & T. Co. v. Xorthern Pac. R. Co., 74 Fed. 431, p. 810. I'armers' L. & T. Co. v. Pennsylvania Plate Glass Co., 103 Fed. 132. 151, 43 C. C. A. 114, 56 L. R. A. 710, p. 739. Farmers' Savings & B. & L. Ass'n v. Kent, 117 Ala. 624, 23 South. 757, p. 726. Farmington Corp. v. Bank, 85 Me. 46, 52, 26 Atl. 965, p. 122. Farnsworth v. Duflfner. 142 U. S. 43, 12 Sup. Ct. 164, p. 457. 458. Fa mum v. Bascom, 122 :Mass. 282, p. 657. Karrand v. Yorkshire Banking Co., L. \\. 40 Ch. Div. 182. p. 318. 349. Far rant v. Blanchford, 1 De Gex, J. & S. 107, 119, 120, p. 522. TABLK OF CA!SES CITED. 949 Farrant v. Lovel. 3 Atk. 723, 1 Keener 45;5. 1 Scott (itiO. p. 821). Fanar v. \\'int('iton, ;5 Beav. 1. 8, p. Farwell v. Becker, 129 111, 2U1, IG Am. St. Rep. 207. 21 X. E. 792. tJ L. R. A. 400, p. 914. Farwell v. Bigelow, 112 Mich. 28.5, 70 N. W. 579, p. 909. Farwell v. Cotting, 8 Allen. 211, p. Stio. Faulkner's Adni'r v. Harwood, Rand. 125. p. 77. Fay V. Valentine. 12 Pick. 40, 22 Am. Dec. 397, p. 349. Fechheinier v. Bauni. 37 Fed. ICu. 2 L. R. A. 153, H. & B. 837, p. 80(i. Feeney v. Howard, 79 Cal. 525, 530, 12 Am. St. Rep. 162. 21 Pac. 984, 4 L. R. A. 82<). p. (504. Fehlherg v. Cosine. 16 R. I. 162, 13 Atl. 110, 3 Keener 312, p. 438. Fellowes v. Lord Gwydyr, 1 Sim. 63, 1 Russ. & M. 83, 2 Keener 889, p. 462. Fellows V. Rij)ley. 69 X. H. 410. 45 Atl. 1.38, p. 547. Fells V. Read, 3 Vcs. 70, 2 Scott 37, II. 882. Fennelly v. Ashdown, 1 Ir. C'li. 706. 1 Ames Kq. Jur. 423, 2 Scott 137, p. 893. Fenton V. Miller, 116 Mich. 45, 72 Am. St. Rep. 502, 74 X. W. 384, p. 869. Ferchen v. Arndt. 26 Oreg. 121, 46 Am. St. Rep. 603, 37 Pac. 161. 29 L. R. A. 664, p. 605. Ferris v. Van Vechten, 73 X. Y. 113, H. & B. 461, p. 599. Fesmire's Estate, 134 Pa. St. 67. 19 Am. St. Rep. 676, 19 Atl. 502. p. 621. Festorazzi v. St. Joseph's Catholic Church, 104 Ala. 327, 18 South. 394, 53 Am. St. Rep. 48, 25 L. R. A. 360, p. 576. Fidelity Tr. & G. Co. v. Fowler Water Co., 113 Fed. 560, p. 101. Field V. City of Xew York. 6 X. Y. (2 Seld.) 179. .57 Am. Dec. 435, p. 330. Field V. Field. [1894] 1 Ch. 425, Ames Trusts 505, p. Gil. Fifield V. Van Wyck, 94 Va. 557. 27 S. E. 446, 64 Am. St. Rep. 745. p. 231. Filley v. Duncan, 1 Xebr. 134. 9;', Am. Dec. 337. ]>. 377. Finance Co. of Penn. v. Charleston etc. R. Co., 45 Fed. 436, p. 808. Finch V. Shaw, 19 Beav. 500, 511. 5 H. L. Cas. 905, p. 357. Finnegan v. Fernandina, 15 Fla. 379, 21 Am. Rep. 292, p. 65, 201. First Xat. Bank v. Albertson. (X. .7. Ch.) 47 Atl. 818. p. 132. First Xat. Bank v. Binninger, 26 X. .T. Eq. 345, 2 Ames Eq. ,lur. 24, p. 796. First Xat. Bank v. Browne, 128 Ala. 557, 86 Am. St. Rep. 156, 29 Soutli. 552, p. 909. First Xat. Bank v. Christopher. 40 X. J. L. 435, 29 Am. Rep. 262, p. 308. First Xat. Bank v. Eastman. 144 Cal. 487, 103 Am. St. Rep. 95. 77 Pac. 1043, p. 912. First Xat. Bank v. Illinois Steel Co., 170 in. 140. 51 X. E. 200. H. & B. 871, p. 805. Fir.st Xat. Bank v. Sarlls, 129 hid. 201, 28 Am. St. Rep. 185, 28 X". E. 434. 13 L. R A 401, p. 113. First Xat. Bank v. Schween, 127 111. 573. 11 Am. St. Rep. 174. 20 X. E. 681, p. Fir.st Xat. Bank v. Shedd. 121 U. S. 74. 7 Sup. Ct. 807, 30 L. ed. 877, p. 810. First Xational Bank v. Tompkins. 57 Fed. 20, 6 C. C. A. 237, p. 749. Fish V. Benson, 71 Cal. 429. 12 Pac. 4.54, p. 375. Fish V. Le.ser, 69 111. 394, 395, H. & B. 650, p. 184. 485, 507, 894. Fisher v. Mellen, 103 :\[ass. 503, p. 45.3. Fitzhugh V. Hubbaid, 41 Ark. 64, H. & B. 232, p. 232. Fitzsimmons v. Ogden, 7 Cranch. 2. 18, ]). 196, 311, 314, 346, 347. Flagg V. INIann. 2 Sum. 486, 487. 518, 533. 534. 554, 557. 560, Fed. Cas. Xo. 4.847. Kirch. 167, p. 278, 699. 740. Flannery v. Jones. 180 Pa. St. 338, 36 Atl. 85G, 57 Am. St. Rep. 648, p. 493. 950 TABLE OF CASES CUTED. llcishner v. Citizens' R. E. & I. Co., 25 Oreg, 119, 35 Pac. 174, p. 98. Fleming v. Burnham, 100 N. Y. 1, 2 Keener 1138, p. 895. Fletcher, In re, L. R. 38 Ch. Div. 373, p. 242. Fletcher v. Ashburner, 1 Brown Ch. 497, 500, 1 Lead. Cas, Eq., 4th Am. ed., 1118, 1120, 1123, 1157, 1 Scott ()06, p. 166, 167, 554, 677, 685. Fletcher v. Bealey, L. R. 28 Ch. D. t)88, 1 Keener 754, p. 831. Fletcher v. Tuttle, 151 111. 41, 42 Am. St. Rep. 220, 37 X. E. 683, 25 L. R. A. 143, p. 821. Flight V. Bolland, 4 Russ. 298, 1 Ames Eq. Jur. 422, 2 Scott 136, 2 Keener 800, p. 893. Flint V, Brandon, 8 Ves. 159, 164, 1 Ames Eq. Jur. 69, 2 Scott 70, 2 Keener 137, p. 888. Flint V. Woodin, 9 Hare, 618, p. 493. Flint etc. R'y Co. v. Auditor-General, 41 Mich. 635, p. 557. Florida Southern R. R. Co. v. Hill, 40 Fla. 1, 74 Am. St. Rep. 124, 23 South. 566, p. 752. Fluegel V. Henschel, 7 X. Dak. 276, (i6 Am. St. Rep. 642, 74 N. W. 996, p. 265. Fluker v. Taylor, 3 Drew, 183, 3 Keener 906, p. 918. Flynt V. Arnold, 2 Met. 619, p. 368. Fogg V. Blair, 133 U. S. 534, 10 Sup. Ct. 338, 33 L. ed. 721, p. 595. I'oley V. Burnell, 1 Brown Ch. 274, 279, p. 656. Foley V. Greene, 14 R. I. 618, 51 Am. St. Rep. 419, p. 502. I'oley V. Hill, 2 H. L. Cas. 28, 46, 1 Ames Eq. Jur. 446, 3 Keener 897, p. 918, 919. I'ollette V. Mutual Accident Ass'n, 110 X. C. 377, 14 S. E. 923, 28 Am. St. Rep. 693, 15 L. R. A. 668, p. 303. Fonda v. Jones, 42 Miss. 792, 2 Am. Rep. 669, p. 748. Fontain v. Ravenel, 17 How. 369, 384, p. 143. Foose V. Whitmore, 82 N. Y. 405, 37 Am. Rep. 572, p. 572. Forbes v. Moffatt, 18 Ves. 384, p. 382. Ford V. Ford, 70 Wis. 19, 33 X. W, 188, 5 Am. St. Rep. 117, p. 679. Ford V. Foster, L. R. 7 Ch. 611, Lewis 144, p. 840. Ford V. Hill, 92 Wis. 188, 66 X. W. 115, 53 Am. St. Rep. 902, p. 855. Ford V. Knapp, 102 X. Y. 140, 55 Am. Rep. 782, 6 X. E. 283, p. 869. Ford V. Unity Church Society, 120 :\Io. 498, 25 S. W. 394, 41 Am. St. Rep. 711, 23 L. R. A. 561, p. 298, 369. Forman v. Brewer, 62 X. J. Eq. 748, 48 Atl. 1012, 90 Am. St. Rep. 475^ p. 314. Fornanses v. Melsing, 106 Fed. 775, 784, 45 C. C. A. 615, p. 804. Forster v. Hale, 3 Ves. 696, p. 567. Fortescue v. Barnett, 3 ilylne & K. 36, Ames Trusts 136, p. 559, 562. Forth V. Duke of Xorfolk, 4 :Madd. 503, p. 551. Forthman v. Deters, 206 111. 159, 69 N. E. 97, 99 Am. St. Rep. 145, p. 379, 383, 384, 385, 893. Fosdick V. Schall, 99 U. S. 235, 25 L. F:d. 339, Shep. 339, p. 810. Foster V. Deacon, 3 Madd. 394, 2 Keen- er 341, p. 163. Fothergill v. Rowland, L. R. 17 Eq. 132, 141, 1 Ames FZq. Jur. Ill, 2 Scott 111, 2 Keener 261, H. & B. 599, p. 820, 883. Fouch V. Wilson, 60 Ind. 64, 28 Am. Rep. 651, p. 748. Fourth Street Xat. Bank v. Y'ardlcy, 161 U. S. 634, 17 Sup. Ct. 439, 41 L. ed. 855, p. 766. Fouse V. Gilfillan, 45 W. Va. 213, 32 S. E. 178, 185, p. 281. Foveaux, In re, [1895] 2 Ch. 501, 507, p. 576, 577. Fowler v. Black, 136 111. 363, 26 X. E. 596, 2 Ames Eq. Jur. 293, 3 Keener 100, 2 Scott 555, p. 418. Fowler v. Jarvis-Conklin, etc. Co., 63 Fed. 888, 66 Fed. 14, p. 808. Fox V. Gibbs, 86 Me. 87, 29 Atl. 940, p. 579. Fox V. Mackreth, 2 Brown f'h. 400, 420, 2 Cox, 320. 322, 1 Lead. Cas. Eq. 188, 212, 237, 2 Dick. 689, p. 466. TABLE OF CASKS CITED. 951 Fox V. Scard, 33 Beav. 327, p. 222. Fralith v. Despar. 1«)5 Pa. St. 24, 30 Atl. 521, 2 Keener 304, p. 820. Frame v. Dawson, 14 Ves. 386, 1 Ames Eq. Jur. 283, 2 Scott 202, 2 Keener 332, p. 902. Frame v. Sliter, 29 Oreg. 121, 45 Pac. 290, 54 Am. St. Rep. 781, 34 L. R. A. 690, p. 747. Francis v. Wigzell, 1 Madd. 258, 2(i4. p. 1)51. Francisco v. Smith, 143 N. Y. 488, 38 X. E. 980, 1 Ames Eq. Jur. 186, p. 820. Franklin Sav, Bank v. Taylor, 53 Fed. 854, 4 C. C. A. 55, 9 U. S. App. 406, p. 361. Franklin Tel. Co. v. Harrison, 145 U. S. 459, 12 Sup. Ct. 900, 36 L. ed. 776, 2 Keener 1055, p. 895. Franklyn v. Thomas, 3 Mer. 225, 234, p. 849. Frederick v. Emig, 186 111. 319, 59 N. E. 883, 78 Am. St. Rep. 283, p. 344. Frederick v. Frederick, 1 P. Wms. 710. 1 Scott 311, p. 156, 157. Free v. Buckingham, 57 N. H. 95, 3 Keener 478, p. 474. Freeman v. Cooke, 2 Ex. 654, 661, p. 396. Freeman v. Eacho, 79 Va. 43, p. 253. Freeman v. Freeman, 43 N. Y. 34, 3 Am. Rep. 657, 1 Ames Eq. Jur. 300, 2 Scott 205, 2 Keener 654, p. 904. Freeman v. Hartman, 45 111. 57, 92 Am. Dec. 193, p. 645. Freeman v. Pope, L. R. 5 Ch. 538, 544, p. 530. Freer v. Freer, 22 Ch. Div. 622, p. 659. Freeson v. Bissell, 63 N. Y. 168, 170. p. 754. French v. French, 6 De Gex, M. & G. 95, p. 531. French v. Macale, 2 Dru. & ^^'ar. 2(*)9. 274, p. 217, 222. Frere v. Green, 19 Ves. 320, p. 85. Freshfield's Trusts, In re, L. R. 11 Ch. Div. 198, 200, 202, p. 325. Frey v. Willoughhy, 63 Fed. 865. 27 U. S. App. 417, 11 C. C. A. 463. p. 868. Frick V. Christian Co., 1 Fed. 250, p. 439. Friend v. Lamb, 155 P. St. 529, 34 Am. St. Rep. 672, 25 Atl. 577, 1 Ames Eq. Jur. 408, 2 Keener 1060, 2 Scott 306, p. 894. Frink v. Adams, 30 N. J. Eq. 485. p. 372. Frost V. Beekman, 1 Johns. Cli. 288, 298, 1 Scott 531, p. 294, 302. 365. Frost V. ^Yolf, 77 Tex. 455. 14 S. W. 440, 19 Am. St. Rep. 761. p. 174, ' 318. Frost V. Yonkers Sav. Bank, 70 N. Y. 553, 26 Am. Rep. 627, p. 721. Frue V. Loring, 120 Mass. 501, p. 590. Fry V. Lane, L. R. 40 Ch. Div. 315. p. 511. Fry V. Porter, 1 Cas. Ch. 138. 1 :\Iod. 300, 307, (22 Car. II) 1 Scott 145, p. 30. Fuller V. Percival, 126 Mass. 381. 2 Ames Eq. Jur. Ill, 3 Keener 483, p. 474. 861. Fulhvood V. Fulhvood, L. R. 9 Ch. Div. 176, p. 401. Fulton V. Loftis, 63 X. C. 393. 1 Scott 486, p. 509. Furnald v. Glenn, 64 Fed. 49, 12 C. C. A. 27, 26 U. S. App. 202, p. 851. G. Gaffoe, In re, 1 Macn. & G. 541, 545, 1 Lead. Cas. Eq. 713, p. 644. Gaines v. Green Pond, etc. Co.. 33 X. J. Eq. 603, 1 Keener 494. p. S27. Gaines v. Miller, 111 U. S. 395. 4 Sup. Ct. 426, p. 65. Gaines v. Xew Orleans, 6 Wall. 642, 716, p. 312. Galbraith v. Lunsford, 87 Tenn. 89. 9 S. W. 365, 1 L. R. A. 522. H. & B. 117. p. 391, 392. 393, 399. Gale V. Lindo, 1 Vern. 475, 2 Scott 732, ]). 487. Gallagher v. Gallagher, 31 W. Va. 9, 5 S. E. 297, 2 Keener 696. p. 901, 902. Galland v. Jackman, 26 Cal. 79, 87, 85 Am. Dee. 172, p. 367. Galusha v. Wendt, 114 Iowa, 597, 87 X. W. .-)12. p. 65. Galveston, H. & S. A. R'y Co. v. Dowe, 70 Tex. 5, 7 S. W. 368, p. 109. 952 TABLK OF CASES CITED. Galway v. :\Ialcho\v, 7 Xebr. 285, 289, p. 341. Galway v. Met. El. K. Co., 128 X. Y. 132, 28 N. E. 479, 13 L. R. A. 788, 1 Ames Eq. Jur. 601, 1 Keener 822, p. 198, 824, 825, 833. Candy v. Fortner. 119 Ala. 303, 24 South. 425, p. 550. Gannett v. Albee, 103 Mass. 372, 1 Ames Eq. Jur. 321, p. 897. Carber v. Gianella, 98 Cal. 527, 529, 33 Pac. 458, p. 297. Carcelon, In re, 104 Cal. 570, 584, 33 Paf. 414, 43 Am. St. Pvep. 134, 953, 32 L. K. A. 595, 1 Scott 77, p. 511, 709. Gardner v. Blane, 1 Hare, 381, p. 803. (iardner V. Mobile, etc. R. Co., 102 Ala. 035, 48 Am. St. Rep. 84, 15 South. 271. p. 856. Ciardner v. Newburgh, 2 Johns. Ch. 162, 165, 7 Am. Dec. 526, 1 Scott 740, 1 Keener 654, H. & B. 767, p. 824. 831, 834. C;ardner v. Ogden, 22 X. Y. 327, 332- 339. 78 Am. Dee. 192, 1 Ames Eq. Jur. 6, p. 208. Gardner v. Parker, 3 .Madd. 184, 185, J). 6()6. Garner v. Reis, 25 Minn. 475, 3 Keener 920, p. 918. Garrard v. Frankel, 30 Beav. 445, 451, 3 Keener 261, p. 4.30, 431, 438, 859. • Carson v. Green, 1 Johns. Ch. 308, 1 Scott 70, p. 745. 748. i (iaskell V. Gaskell. 6 Sim. 643, p. 867. [ (Jason V. Wordswortli, 2 \'es. Sr. 336, j p. 85. (iaston V. Drake, 14 Xev. 175, 33 Am. Rep. 548, p. 494. \ Gates V. Johnstown Lumber Co. 172 :\Iass. 495, 52 X\ E. 736, 1 Ames Eq. Jur. 520, p. 842. Gates V. Salmon, 35 Cal. 576, 95 Am. Dec. 139, p. 868. Gates Iron Works v. Cohen, 7 Colo. App. 341, 43 Pac. 667, p. 317. Gause V. Perkins. 3 Jones Eq. 177, 69 Am. Dec. 728, p. 843. Gavin v. Curtin. 171 111. 640. 49 X'. E. 523. 40 L. R. A. 776, p. 202. Gay V. Parpart. 106 U. S. 679, 690, 1 Sup. Ct. 456, p. 206. Gay Mfg. Co. v. Camp, 05 Fed. 794, 25 U. S. App. 134, 13 C. C. A. 137. 68 Fed. 67, 25 C. S. App. 376, 15 C. C. A. 226, p. 220. Gay's Estate, 138 Cal. 552, 71 Pac. 707, 94 Am. St. Rep. 70, p. 575. Gebb V. Rose, 40 ild. 387, 3 Keener 427, p. 416. 859. Gee V. Pritcliard. 2 Swanst. 402, 413, 414, 1 Keener 59, 1 Scott 149, Lewis 44, p. 30, 839. Gee V. Spencer, 1 Vern. 32, 2 Scott 568, p. 421. Geishaker v. Pancoast, 57 X. J. Eq. 60, 40 Atl. 200, p. 288. Gent V. Harrison, Johns. 517, 1 Keener 510, p. 829. George v. Braddock, 45 X. J. Eq. 757. 18 Atl. 881, 14 Am. St. Rep. 754, L. R. A. 511, p. 577. Gerdine v. Menage, 41 ]\Iinn. 417, 43 X. \y. 91, 2 Ames Eq. Jur. 286, p. 424. Gest V. Packwood, 34 Fed. 368, p. 361. Gething v. Keighley, L. R. 9 Ch. Div. 547, p. 439. Getty V. Binsse, 49 X. Y. 385, 388, 389, 10 Am. Rep. 379, p. 192. Ghormley v. Smith, 139 Pa. St. 584, 23 Am. St. Rep. 215, 21 Atl. 135, 11 L. R. A. 505, p. 551. (iibbs V. Marsh, 2 Met. 243, 251, p. 411. Gibler v. Triiiil>h'. 14 Oliio, 323, p. 366. Gibson v. Barber, 100 X. C. 192, S. E. 766, p. 515. Gibson v. Crehore. 3 Pick. 475. 5 Pick. 146. Kirch. 698, p. 721, 723. 865. Gibson V. -Teyes. fi Ves. 266. 271. 273. 277. p. 519. Giddings v. Baker. 80 Tex. 308. 16 S. W. 33. p. 4.52. Giddings v. Seward. 16 X'. Y. 365. p. 660. Gifford V. Corrigan. 117 X\ Y. 257. 22 X. E. 756, 15 Am. St. Rep. 508. 6 L. R. A. 610. p. 712. Gilbert v. Diekerson, 7 Wend. 449, 22 Am. Dec. 592. p. 870. Gilbert v. Showerman, 23 Mich. 448, 1 Scott 756, p. 831. TABLE OF CASKS CITED. 953 Gilchrist v. Helena H. S. & S. R. Co., oS Fed. 708, 710, 711, 712, p. 757. Giles V. Austin, 38 N. Y. Sup. Ct. 215, 62 N. Y. 486, p. 214. Giles V. Perkins, 9 East, 12, Ames Trusts, 9, p. 569. Gillam v. Taylor, L. R. 16 Eq. 581. 584, p. 577. (lillespie v. Holland, 40 Ark. 28, 48 Am. Rep. 1, p. 522. Gillespie v. Moon, 2 Jolins. Ch. 585. 7 Am. Dec. 559, 1 Scott 437, p. 436. Gillett V. Wiley, 126 111. 310, 9 Am. St. Rep. 587, 19 X. E. 287, p. 521. Gilliam v. Chancellor, 43 Miss. 437. 448, 5 Am. Rep. 498, p. 97, 243, 250. Gilliam v. McCormack, 85 Tenn. 597. 4 S. W. 521, p. 909. Gillis V. Hall, 7 Phila. 422, 2 Brewst. 342, p. 219. Gihnan v. Brown, 1 ]Mason, 191, 210, Fed. Cas. No. 5,441, p. 753. Gihnan v. Ketchani, 84 Wis. 60, 36 Am. St. Rep. 899, 54 N. W. 395, 23 L. R. A. .52, p. 811. Gilmer v. Stone, 120 U. S. 586, 7 Sup. Ct. Rep. 689, p. 568. Girard v. Flutterer, 84 Ala. 323. 4 South. 292, p. 607. Gladding v. St. Matthew's Church. (R. T.) 57 Atl. 860, p. 581. (Mass V. Hulbert, 102 Mass. 24, 28. 41. 43, 3 Am. Rep. 418, H. & B. 254. 3 Keener 327, Shep. 264, 2 Scott 619. p. 434, 435. Glegg V. Rees, L. R. 7 Ch. 71, p. 555. Glen V. Fisher, 6 Johns. Ch. 33, .^6, 10 Am. Dec. 310, p. 647. Glcnoall V. Frazer, 2 Hare, 99 p. 32. Globe :\rut. L. Ins. Co. v. Reals, 79 N. Y. 202, 3 Keener 485, p. 474, 861. Clock V. Howard & Wilson Colony Co., 123 Cal. 1, 69 Am. St. Rep. 17. 55 Pac. 713, 43 L. R. A. 199, p. 899. Gloucester Isinglass, etc. Co. v. Russia C. Co.. 154 Mass. 92. 26 Am. St. Rep. 214. 27 N. E. 1005, 12 L. R. A. 563, 2 Keener 51, p. 882. Glyn V. Duesbnry, 11 Sim. 139, 147, 148, p. 792. Godfrey v. Harben, L. R. 13 Ch. Div. 216, p. 651. Godfrey v. Watson, 3 Atk. 517, Kirch. 563, p. 719. Godfrey v. White, 60 Mich. 443, 1 Am. St. Rep. 537, 27 N. W. 593, ]). 870. Goff V. Gott, 5 Sneed (Tenn.). 562, 2 Ames Cas. Eq. Jur. 281, p. 424. Golden's Appeal, 110 Pa. St. 581, 1 Atl. 660, p. 556. Goldman v. Rosenberg, 116 X. V. 78, 15 Am. St. Rep. 410, 22 X. E. 397, 2 Keener 431, p. 163. Goodale v. Mooney, 60 X. H. 528. 49 Am. Rep. 334, p. 579. Goodbar v. Daniel, 88 Ala. 583, 7 South. 2.52, 2.54, 16 Am. St. Rep. 76, p. 303, 305. Goodburn v. Stevens, 1 :Md. Ch. 420, p. 865. Goodman v. Wliitcomb, 1 .Jacob & W. 589. p. 804. Goodman v. Winter, 64 Ala. 410, 38 Am. Rep. 13, p. 782. (ioodrich v. Lathrop, 94 Cal. 56. 28 Am. St. Rep. 91, 29 Pac. 329. 2 Ames Eq. Jur. 187, p. 470, 471. Goodson V. Ellison, 3 Russ. 583, Ames Trusts 451, p. 610. Goodson V. Richardson, L. R. 9 Ch. 221, 1 Ames Eq. Jur. 502, 1 Keener 615, p. 842, 843. Goodwin v. Richardson, 11 ^lass. 469, p. 190. (Gordon v. Graham, 2 Eq. Cas. Abr. 598. pi. 16, p. 704. Gordon v. Rixej% 76 Va. 694, ]>. 751. Gormly v. Gormly, 130 Pa. St. 467, 18 Atl. 727, 3 Keener 184. p. 425. Gorringe v. Reed, 23 Utah, 120, 63 Pac. 902, 90 Am. St. Rep. 692. p. 497. 502. Gotthelf V. Stranahan, 138 X. Y. 345, 34 X. E. 286, 20 L. R. A. 455, H. & B. 706. p. 894. Gotzian. In re, 34 Minn. 159, 57 Am. Rep. 43, 24 X. W. 920, p. 234. Gotzian v. Shakman, 89 Wis. 52, 46 Am. St. Rep. 820, 61 X^. W. 304, p. 909. Gough V. Pratt, 9 Md. 526, p. ISl, 954 TABLE OF CASES CITED, Gould V. Emerson, 160 ]\[ass. 438. 35 N. E. 1065, 39 Am. St. Rep. 501, 3 Keener 324, p. 437. Gould V. Lynde, 114 Mass. 366. H. & B. 446, p. 589. Gould V. Murch, 70 Me. 288, 35 Am. Rep. 325, 2 Keener 426, H. & B. 661, p. 163. Gower v. Andrew, 59 Cal. 119, 43 Am. Rep. 242, p. 816. Graff V. Bonnett. 31 X. Y. 9, 88 Am. Dec. 236, p. 552. GraflFam v. Burgess, 117 U. S. 184, 6 Sup. Ct. 686, 3 Keener 512, p. 485. Graoj? V. :\rartin, 12 Allen, 498. 90 Am. Dec. 164, p. 528. Graiiam v. MeCampbell. Meigs, 52, 33 Am. Dec 126, 1 Ames Eq. .Tur. 205, p. 741, 754. Graliam v. Moffett, 119 Mich. 303. 75 Am. St. Rep. 393, 78 N. W. 132, p. 747. Graliam v. Thompson, 55 Ark. 296, 18 S. W. 58, 29 Am. St. Rep. 40. p. 396. Graham v. Wintridge, (Md.) 58 Atl. 3(), p. 547. Graham Paper Co. v. Pembroke, 124 Cal. 117, 56 Pac. 627, 71 Am. St. Rep. 26. 44 L. R. A. 312, 6.32, p. 325, .326. Grand Cliutc v. Winegar, 15 Wall. 373, 21 L. ed. 170. 2 Ames Eq. .Tur. 116, p. 66, 143, 473. 853, SC)]. Grand Rapids, etc. Co. v. Haney, 92 Mich. 558, 31 Am. St. Rep. Oil. 52 N. W. lOOn. 16 L. R. A. 721, p. 854. Grant v. Saunders, 121 Iowa. 80. 100 Am. St. Rep. 310, 95 X. W. 411, p. 579. Grantham v. Hawley, Hob. 132, Kirch. 40, p. 740. Gratz V. Land & River Imp. Co.. 82 Fed. 381. 27 C. C. A. 305, 40 L. R. A. 393, p. 367. Gray v. Building Trades Council, 91 Minn. 171, 103 Am. St. Rep. 477, 97 X. W. 663. 63 L. R. A. 753. Lewis 294, p. 847. Gray v. H. INI. Loud & Sons' Lumber Co., 128 Mich. 427. 87 X. W. 376, 54 L. R. A. 731, p. 728. Grabill v. Brugh, 89 Va. 895, 37 .\m. St. Rep. 894, 17 S. E. 558, H. & B. 677, p. 321, 892, 906. Graydon v. Graydon, 23 X. J. Eq. 229. p. 488. Great Falls Co. v. Worster, 23 X. H. 462, 1 Scott 241, p. 208. Great Western R'y v. Oxford etc. R'y, 3 De Gex, M. & G. 341, 359, p. 197. Greaves v. (iouge, 69 X. Y. 154, 157. p. 631. Greaves v. Tofield, L. R. 14 Ch. Div. 563. 577, 1 Scott 235, p. 212, 299, 348. Greedup v. Franklin County, 30 Ark. 101, 109, p. 116, 125. Greeley v. De Cottes, 24 Fla. 475. 5 South. 239, p. 439. Green v. Arnold, 1 1 R. I. 364, 23 Am. Rep. 466. p. 868. Green v. Coast Line R. Co., 97 Ga. 15, 54 Am. gt. Rep. 379, 25 S. E. 814, 33 L. R. A. 806, p. 811. Green V. Givan. 33 X. Y. 343. p. 317. Green v. Hart, 1 Johns. 580, Kirch. 622. Green v. ISIorris, 12 X. J. Eq. 165, 170, H. & B. 193, 3 Keener 25, p. 421. Green V. Price, 13 Mees. & W. 695, 701, 16 ]\rees. & W. 346, 3.54, ],. 220, 221. Green v. Rick, 121 Pa. St. 130, 6 Am. St. Rep. 670, 760, 15 Atl. 497, 2 L. R. A. 48, p. 286. Green v. Smith. 1 Atk. 572, 1 Ames Eq. Jur. 193, 1 Scott 313, p. 162, 677. 680. Green V. Stewart, 45 X. Y. Supp. 982. 19 App. Div. 201, p. 99. Green v. Stone, 54 X. J. Eq. 387. 55 Am. St. Rep. 577, 34 Atl. 1099, p. 713. Green v. Weaver, 1 Sim. 404, 427, 432. p. 81. Green v. Wilkie, 98 Iowa, 74, 66 X. W. 1046, 60 Am. St. Rep. 184, 36 L. R. A. 434, p. .507. Greene v. Keene. 14 R. T. 388, 51 Am. Rep. 400, p. 910. Greene v. IMumford, 4 R. I. 313, p. 793. TABLE OF CASKS CITED. 955 Greene v. Warnick, G4 N. Y. 220. 224. 225, p. 340. Greenfield's Estate, 14 Pa. St. 489, r)0(i, 507. p. 519. Greenhill v. Greenhill, 2 Vern. 079. 1 Scott 595, p. 554. Greenlee v. Gaines, 13 Ala. 198. 48 Am. Dec. 49, p. 852. Greenway, Ex parte, 6 Ves. 812, 813, I Scott 413, p. 407, 408. Greenwood v. Fenn, 136 111. 146. 26 N. E. 487, 3 Keener 732, p. 461. Gregg V. Landis, 19 N. J. Eq. 356. 8.50, 21 X. J. Eq. 494, 507, 511, 514. p. 226. Gregg V. Metropolitan Trust Co. 197 I'. S. 183, 25 Sup. Ct. 415, p. 810. Gregory v. Edmondson. 39 Cli. Div. 253, Ames Trusts 95, p. 571. Gregory v. Tingley, 18 Neb. 319, 25 N. -W. 88. p. 881. Gresham v. Ware, 79 Ala. 132, p. 382. Gresley v. ]\Iousely. 4 De Gex & T. 78, 90. 91, 92. 93, 3 De Gex, F. & .1. 4.33. p. .520, 535. Gribben v. Maxwell, 34 Kan. 8. 7 Pac. 584, 55 Am. Rep. 233, p. 505. Grider v. American Freehold L. & ]\I. Co.. 99 Ala. 281, 12 South. 775. 42 Am. St. Pvep. 58, p. 180. Griffin v. Fries, 23 Fla. 173, 2 South. 266. 11 Am. St.. Rep. 351, p. 408. Griffith V. Hilliard, 64 Vt. 643, 25 Atl. 427, 1 Keener 636, H. & B. 762, Shep. 316, p. 843, 844. Griffith V. Ricketts, 7 Hare, 299, 307, 311, p. 680. Griffith V. Tower Pub. Co., [1897] 1 Ch. 21, p. 761. Griggs V. Clark, 23 Cal. 427. p. 673. Grissell v. Swinhoe, L. R. 7 Eq. 291. 295, p. 234. Grissler v. Powers, 81 N. Y. 57, 37 Am. Rep. 475, p. 330. 399, 402. Griswold v. Haven. 25 X. Y. 595. 82 Am. Dec. 380. p. 391. Griswold v. Hazard. 141 T"'. S. 260. II Sup. Ct. 972, 999. 2 Ames Eq. Jur. 259, H. & B. 197. 3 Keener 107. p. 419. GrofT V. State Bank, 50 Minn. 234. 52 N. W. 651, 36 Am. St. Rep. 640. p. 277. Grove v. Hodges, 55 Pa. St. .504. 519, p. 445. Grover v. Grover, 24 Pick. 261, 35 Am. Dec. 319, Ames Trusts 159, p. (i67. Grover v. Wakeman, 11 Wend. 187, 201, 203, 25 Am. Dec. 624. 4 Paige, 23. p. 556. Grubb V. Sharkey, 90 Va. 831. 20 S. E. 784, H. & B. 736, p. 100. Grumley v. Webb, 44 Mo. 444, 100 Am. Dec. 304, p. 517. (h-us V. Evans, 1 Dak. 387, 1 Scott 546, p. 264. Guarantee Trust, etc. Co. v. Delta, etc. Co., 104 Fed. 5, (C. C. A.), p. 207. Guice V. Barr, 130 Ala. 570, 30 South. 563, p. 866. Guidot V. Guidot, 3 Atk. 254, 256. 1 Keener 949, 1 Scott 600. p. 107, 554. Guion V. Knapp, 6 Paige. 35, 42, 2!t Am. Dec. 741, p. 729. Gun V. McCarthy, L. R.. Ir. 13 Ch. 1). 304, 2 Ames Eq. ,Tur. 238, p. 438. Gunster v. Scr^nton Ilium., H. & P. Co., 181 Pa. St. 327. 37 Atl. 550. 59 Am. St. Rep. 650, p. 308. G\\ynne v. Heaton. 1 Brown Ch. 1. 9, 3 Keener 505, p. 483, 512. H. Hacker v. White, 22 Wash. 415. 60 Pac. 1114, 79 Am. St. Rep. 945. p. 343. Hadden v. Dandy, 51 N. J. Eq. 154, 32 L. R. A. 625, 26 Atl. 464, p. 580. Hadden v. Spader. 20 Johns. 554. }>. 910. Hadley v. McDougall, L. R. 7 Ch. 312. p 82. Haffey v. Lynch, 143 N. Y. 241, 38 N. E. 298, H. & B. 703, 2 Keener 1213. p. 905. Ilafner v. City of St. Louis, 161 Mo. 34, 61 S. W. 632, p. 550. Hagar v. Buck, 44 Vt. 285. 290. 8 Am. Rep. 368. p. 215, 225. Haggavty v. Pitman, 1 Paige, 298. 19 Am. Dec. 434, p. 805. Hahn v. Concordia Soc. 42 Md. 460. p. 222. Haigh V. Jaggar, 2 Coll. 231. 1 Ames Eq. Jur. 494, 1 Keener 569, p. 842. 956 TABLE OF CASKS CITED. Kale V. Allinson, 102 Fed. 790, 791, 792, 188 U. S. 56, 23 Sup. Ct. 244, 250-254, p. 122. Hale V. Hale, 146 111. 227, 33 N. E. 858, 20 L. R. A. 247, p. 784. Hale V. Stery, 7 Colo. App. 165, 42 Pac. 598, p. 508. Hall V. Crowley, 5 Allen, 304, 81 Am. Deo. 745, p. 221. Hall V. First Nat. Bank, 173 Mass. 16, 53 N. E. 154, 73 Am. St. Rep. 255, 44 L. R. A. 319, p. 427. Hall V. Hall, 37 L. J. P. & M. 40. L. R. 1 P. & M. 481, p. 509. Hall V. Hardy, 3 P. Wms. 187, 1 Ames Eq. Jur. 65, 2 Scott 54, 2 Keener 109, p. 884. Hall V. Otterson. 52 X. J. Eq. 522, 28 Atl. 907, 3 Keener 401, 2 Seott 635, p. 198, 421, 523. Hall V. Potter, Show. Pari, C. 76, 3 Lev. 411, 2 Scott 663, p. 487. Hall V. Smith, 5 How. 96, 12 L. ed. 66, p. 914. Hall V. Vernon, 47 W. Va. 295, 81 Am. St. Rep. 791, 34 S. E. 764, p. 868. Hall V. Warren, 9 Ves. 605, H. & B. 575, p. 549. Hall V. Wescott, 15 R. I. 373, 5 Atl. 629, Kirch. 598, p. 710. Hall V. Wheeler, 37 ]Minn. 522. 35 X. W. 377, 2 Ames Eq. Jur. 288, 3 Keener 99, p. 425. Hall V. \A hittier, 10 R. I. 530. 2 Scott 323, p. 898. Hallett V. Wylie, 3 Johns. 44, 3 Am. Dec. 457, p. 406. Hallett's Estate, In re, 13 Ch. Div. 696, p. 32, 598. Hallett's Trusts, In re, 18 Weekly Rep. 416, Ames Trusts 221, p. 625. Halsey v. (irant, 13 Ves. 73, 77, 2 Scott 379, p. 905. Hamaker v. Schroers, 49 Mo. 406, p. 221. Hamar v. Medsker, 60 Ind. 413. 2 Ames Eq. Jur. 228, p. 859, 860. Hamer v. Sidway, 124 N. Y, 538, 550. 27 N. E. 256, 12 L. R. A. 463. 21 Am. St. Rep. 693, Ames Trusts, 33, p. 568, 569. Hamilton v. Cummings, 1 Johns. Ch. 517, 1 Scott 104, 1 Keener 317, p. 853, 877. Hamilton v. Hamilton, 2 Rich. Eq. 355, 46 Am. Dec. 58, p. 492. Hamilton v. Harvey, 121 111. 469, 2 Am. St. Rep. 118, p. 892. Hamilton v. JNlarks, 5 De Gex & S. 038, 1 Keener 280, p. 791, 797, 799. Hamilton v. Steele, 22 W. \a. 34S, p. 591. Hamilton v. Traber, 78 Md. 26. 44 Am. St. Rep. 258, 27 Atl. 229. p. , 785, 780. Hamilton v, Worsefold, 10 Ves. 291, 1 Scott 680, p. 842. Hamilton-Brown Shoe Co. v. Saxey, 131 Mo. 212, 52 Am. St. Rep. 622, 32 S. W\ 1106, H. & B. 779, Lewis 276, p. 826, 846. Hamilton's etc. Iron Works, In "re, L. R. 12 Ch. Div. 707, 710. 711. p. 341. Hammond v. ilessenger, 9 Sim. 327, 332, Ames Trusts 59, p. 759, 762. Hammond v. Pennock, 61 X. Y. 145, 151, 152, 3 Keener 688, p. 470. 471. Hampsliire Land Co., In re, [1896] 2 Ch. 743, p. 303. Hampson v. Edelen, 2 Harr. & J. 64, 66, 3 Am. Dec. 530, 2 Scott 708, p. 342. Hancock v. Carlton, 6 Gray, 39, p. 225. Handley v. Jackson, 31 Oreg. 552, 65 Am. St. Rep. 839, 50 Pac. 915, p. 855. Haney v. Legg, 129 Ala. 619, 30 South. 38. 87 Am. St. Rep. 81, p. 599. Hansard v. Robinson, 7 Barn. & C. 90, 1 Scott 412, p. 408. Hanson v. Gardiner. 7 Ves. 305, 1 Keener 544, p. 842. Hanson v. Keating, 4 Hare, 1-6, 1 Scott 274, p. 170, 179. Harbison v. Lemon, 3 Blackf. 51, 23 Am. Dee. 376, p. 508. Harding v. Glover, 18 Ves. 281. p. S04. Harding v. Glyn. 1 Atk. 469. 2 Lead. Cas. Eq.. 4th Am. ed.. 1833. 1834- 1848, 1857-1866, Ames Trusts 78, Shep. 212, p. 565, 571. TABLE OF CASES CITED. 957 Harding v. Handy, 11 Wheat. 103. p. 50(5. Hardy, Ex parte, 30 Beav. 206, 2 Keener 327, p. 080. Hardy v. Martin, 1 Brown Ch. 419, note. 1 Cox, 26, 2 Scott 123, p. 215, 222. Harkness v. Fraser, 12 Fla. 336, 341, p. 514. Harland v. Trigg, 1 Brown Ch. 142, Ames Trusts 79, p. 571. Harmood v. Oglander, 8 Vos. 106, 124, 125, p. 062. Harness v. Bulpitt, (Cal. App.) 81 Pac. 1022, 1 Scott 738, p. 830. Harney v. First Nat. Bank, 52 N. J. Eq. 097, 29 Atl. 221, p. 317. 341. 312. Harney v. Indianapolis etc. R. R. Co., 32 Ind. 244, p. 822. Harper v. Cla^-ton, 84 Md. 356, 35 Atl. 1083, 35 L. R. A. 211, 57 Am. St. Rep. 407, p. 24, 910. Harper v. E^, 70 111. 581. Kirch. 563, p. 721. Harrigan v. Gilchrist, (Wis.) 99 N. W, 909, 933. 981, p. 44, 202. Harrington v. Churchward, 6 Jur. X. S., 570, 1 Ames Eq. Jur. 457, p. 919. Harrington v. Erie Co. Savings Bank, 101 N. Y. 257, 4 N. E. .346, p. 515. Harrington v. Grant. 54 Vt. 236, p. 502. Harrington v. Wheeler, 4 Ves. 086, 2 Scott 331, p. 900. Harris v. Clark. 3 X. Y. 93, 51 Am. Dec. 352, p. 668. Harris v. Fergusson, 16 Sim. 308, p. 189. Harris v. Kemble, 1 Sim. 111. 120^, 122. 5 Bligh, N. S., 730. 731. p. 447. 464. Harris v. Tyson, 24 Pa. St. 347. 360, 64 Am. Dec. 661, 3 Keener 561, p. 466. 484. Harris County v. Campbell, 68 Tex. 22. 3 S. W. 243, 2 Am. St. Rep. 467, p. 764. Harrison v. I'orth. Prec. Ch. 51, 1 Scott 500, p. 365. Harrison v. Guest, De Gex, M. & G. 424, 8 H. L. Cas. 481, 742, p. 485, 500. Harrison v. Xettleship, 2 Mylne & K. 423, p. 850. Harrison v. Wright, 100 Ind. 515, 50 Am. Rep. 805, p. 764, 767. Harrop, In re, 3 Drew. 726, 734, p. 684. Hart V. Leete. 104 Mo. 315, 15 S. W. 976, p. 647. Hart V. Leonard, 42 X. J. Eq. 416, 7 Atl. 865, 1 Ames Eq. Jur. 549, 1 Keener 856, p. 834. Hart V. Sansom, 110 U. S. 155, 3 Sup. Ct. 586, 1 Ames Eq. Jur. 11, p. 206, 207. Hart, V. Western R. R. Co., 13 Met. 99, 40 Am. Dec. 719, p. 915. Hartford Fire Ins. Co. v. Bonner Mer- cantile Co., 44 Fed. 151, 11 L. R. A. 023, p. 478. Hartley v. Ostler, 22 Beav. 449, p. 245. Hartman v. Strickler, 82 Va. 225, p. 510. Harvard College v. Amorv, 9 Pick. 446, H. & B. 520, p. 615. Harvard College v. Weld, 159 Mass. 114, 34 X. E. 175, p. 608. Harvard Unitarian Soc. v. Tufts, 151 Mass. 76, 23 X. E. 1006. 7 L. R. A. 390, p. 057. Harvey v. Linville Imp. Co., US X. C. 093, 24 S. E. 489, 54 Am. St. Rep. 749, 32 L. R. A. 205, p. 501. Harvey v. Merrill, 150 Mass. 1. 22 X. E. 49, 15 Am. St. Rep. 159, 5 L. R. A. 200, p. 498. Harwood v. Kirby, 1 Paige, 469, p. 868. Hastings v. Cutler, 24 X. H. 481, p. 205. Hatch V. Cobb, 4 Johns. Ch. 559. 2 Scott 343, p. 99. Hatch V. Hatcli, 9 Ves. 292. 297, 298. p. 513, 520, 521. Hatch's Estate. In re, 62 Vt. 300. 18 Atl. 814, 22 Am. St. Rep. 109, p. 237. Hathaway v. Brady, 23 Cal. 122. 2 Ames Eq. Jur. 299, p. 431. 958 TABLE OF CASKS CITED. Hattersley v. Bissett^ 51 N. J. Eq. 597, 40 Am. St. Rep. 532, 29 Atl. 187, p. 2.31. Hatton V. Gray, 2 Cas. Cli. 1G4, 1 Ames Eq. Jur. 421, 2 Scott 129, p. 893. Baiighwout V. Murphy, 22 N. J. Eq. 531, 21 N. J. Eq. 118, Sliep. 198, p. 161, 162, 287, 752. Haiiselt V. Harrison, 105 U. S. 401, 26 L. ed. 1075, p. 739. llavemeyer v. Superior Court, 84 Cal. 327, 363, 18 Am. St. Rep. 192, 24 Pae. 121, 10 L. R. A. 627, p. 807. Haven v. Foster, 9 Pick. Ill, 112, 19 Am. Dec. 353, p. 427. Havens v. Sackett, 15 N. Y. 365, p. 233. Haviland v. Willetts, 141 N. Y. 35, 35 N. E. 958, 2 Ames Eq. Jur. 273, 3 Keener 144, p. 421. Hawes v. Oakland, 104 U. S. 450, 26 L. ed. 827. p. 631, 633. Hawkshaw v. Parkins, 2 Swanst. 539. 548, p. 849. Hawley v. Bibb, 69 Ala. 52, p. 498. Hawley v. Clowes, 2 Johns. Ch. 122, 1 Ames Eq. Jur. 484, 1 Scott 663, p. 827, 830. Hawralty v. \Yarren, 18 X. J. Eq. 124, 90 Am. Dec. 613, 2 Scott 140. p. 906. Ha\rthorne, In re, 23 Ch. D. 743, Shep. 77, p. 208. Hayden v. Charter Oak Driving Park, 63*Conn. 142, 27 Atl. 232, p. 320, 362. Haydock v. Haydock, 33 N. J. Eq. 494, 3 Keener 807, p. 510. llaydon v. Xicoletti, IS Xev. 290, 3 Pac. 473, p. 329. Hayes v. Livingstone. 34 Mich. 384. 22 Am. Rep. 533, p. 391. Haygarth v. \Yeaving, L. R. 12 Eq. 320, 327, 328. p. 446. Haywood v. Brunswick etc. Soc. L. R. 8 Q. B. Div. 403, 1 Ames Eq. Jur. 176, 2 Scott 515, 2 Keener 580. ]). 778. Ha^nvood v. Cope. 25 Beav. 140, p. 467. • Haywood v. Hutchins. 65 X. C. 574, 1 Ames Eq. Jur. 459. p. 918. Haywood v. Lincoln Lumber Co., 64 Wis. 639, 26 N. W. 184. p. 806. Head V. Porter, 70 Fed. 498, 1 Ames Eq. Jur. 644, p. 837, 838. Heard v. Stamford, Cas. t. Talb. 173, 1 Scott 293, p. 203. Heath v. Erie R. R., 9 Blatch. 316. p. 75. Heatli v. \Yaters, 40 Mich. 457. p. 620. Heckard v. Sayre, 34 111. 142, 1 Ames Eq. Jur. 340, p. 899. lledderly v. Johnson, 42 :\Iinn. 443, 18 Am. St. Rep. 521, p. 896. Hedges v. Dixon County, 150 U. S. 182, 14 Sup. Ct. 71, 1 Scott 298. p. 204. Hegenmyer v. Marks. 37 ]\Iinn. 6, 5 Am. St. Rep. 808, 32 X. W. 785, p. 517. Heilbron v. Fowler, etc. Co., 75 Cal. 426, 7 Am. St. Rep. 183, 17 Pac. 535. p. 8.34. Heintze v. Bentley, 34 X. J. Eq. 562, p. 704. Heist v. Baker, 49 Pa. St. 9, p. 7."51. Helberg v. Schumann, 150 111. 12, 37 X. E. 99, 41 Am. St. Rep. 339, p. 505. Helling v. Lumley, 3 De Gex & J. 493, 2 Keener 1022, p. 894. Helme v. Philadel))hia Ins. Co., 61 Pa. St. 107, 100 Am. Dec. 621, p. 225. Helme v. Strater, 52 X"'. J. Eq. 591, 30 Atl. 333, p. 236. Hempstead v. ^Yatkins, 6 Ark. 317, 355, 368, 42 Am. Dec. 696, p. 131, . 132. , Henderson v. Adams, 15 Utah, 30. 48 Pac. 398, p. 547. Henderson V. Dickey, 35 Mo. 120, 2 Ames Eq. Jur. 185, p. 101, 859. lienderson v. Hall. 134 Ala. 455. .32 South. 840, p. 24. Henderson v. Lacon, L. R. 5 Eq. 249, 263, p. 453. Henderson V. Xew York Cent. R. R. Co., 78 X. Y. 423, 1 Keener 623, 1 Scott 707. p. 824. Henderson v. Wanamaker, 79 Fed. 736, 25 C. C. A. 181, p. 287. TABLE OF CASES CITED. 959 Henderson-Achert Lith. Co. v. John Shillito Co., 04 Ohio St. 236, 83 Am. St. Rep. 745, GO X. E. 29,5, p. 916. Hendricks v. Robinson, 2 Johns. Cli. 283, p. 910. Hendrickson v. Hinckley, 17 How. 443, 15 L. ed. 123, Shep. 292, p. 851. Hennessey v. Carmony, 50 X. J. Eq. 616, 25 Atl. 374, 1 Ames Eq. Jur. 578, 1 Keener 800, 1 Scott 752, p. 832. Henry v. Henry, 103 Ala. 582, 15 South. 916, p. 810. Henn' v. Tupper 29 Vt. 358, p. 226. Hensman v. Fiyer, L. R. 3 Ch. 420, 2 Eq. 627, p. 602. Herbert v. Pennsylvania Co., 43 X. J. Eq. 21. 10 Atl. 872, 1 Keener 860, p. 832, 848. Herbert v. Wren, 7 Cranch, 370, 378, 379, Shep. 132, p. 235, 865. Hercy v. Birch, 9 Ves. 357, p. 885. Hermann v. Hodges, L. R. 16 Eq. 18, 1 Ames Eq. Jur. 0], 2 Scott 58. 2 Keener 56, p. 881. 884. Herndon v. Gibson, 38 S. C. 357. 37 Am. St. Rep. 765, 17 S. E. 145, 20 L. R. A. 545, p. 492. Hervey v. Smith, 22 Beav. 299, p. 265. Hesse v. Briant, 6 De Gex, M. & G. 023, 2 Keener 858. p. 519, 520. Hewitt V. Loosemore. D Hare, 449, 456. 458, p. 318, 349. Heyder v. Excelsior B. & L. Ass'n, 42 X. J. Eq. 403, 8 Atl. 310, 59 Am. Rep. 49, H. & B. 70, p. 318, 349. Hibbs V. Insurance Co., 40 Oliio St. 543, p. 240. Hichborn v. Fletehor, (;6 :*Ie. 209, 22 Am. Rep. 502, p. 915. Hickey v. Parrot, etc. Co., 32 ]Mont. 143, 79 Pac. 098, 108 Am. St. Rep. 510, p. 811. Hicks V. Hamilton. 144 :\Io. 495, 46 R W. 432, 06 Am. St. Rep. 431. p. 712. Hicks V. Raincock, 2 Dick. 047. 1 Ames Eq. Jur. 026. p. 835. Hicks V. Stevv-ns. 121 111. ISO. 11 X. E. 241. H. & B. 273. 3 Keener 615, p. 455, 450, 459, 461. Hicks V. Jurck, 72 Mich, 311, 40 X. W. 339, H. & B, 711, 2 Keener 57, p. 881, 884. Higbie v. ^^"estIake, 14 X. Y. 281, p. 805. Higgins V. Butler, 78 :\Ie. 520, 7 All. 276, 1 Ames Eq. Jur. 419, p. 894. Hill V. Barclay, 16 Ves. 402, 403, 405, 406, 18 Ves. 30, 56, 58-64, p. 224, 226. Hill V. Lane, L. R. 11 Eq. 215, 219, p. 471. Hill V. Reno, 112 111. 154, 54 Am. Rep. 222, p. 867. Hill V. Spencer, Amb. 041, 830, 2 Scott 774, p. 496. Hills V. Croll, 2 Phill. Ch. 60. 1 Ames Eq. Jur. 427, 2 Scott 90, 2 Keener 216, p. 818, 893. Hills V. Rowland, 4 De Gex, ]M. & G. 430, p. 226. Himrod v. Gilman, 147 111. 293, 35 X. E. 373, p. 351. Hindman v. O'Connor, 54 Ark. 627. 16 S. W. 1052, 13 L. R. A. 490. p. 521. Hindson v. Wetherill, 1 Smale & (i. 604, 5 De Gex, M. & G. 301, p. 514, 519. Hipp V. Babin, 19 How. 271, 278, 15 L. cd. 633, p. 53. Hitclicock V. Giddings, 4 Price. 135. 2 Ames Eq. Jur. 192. p. 437. Hitchins v. Pettingill, 58 X'. H. 3S0. H. & B. 246, 2 Ames Eq. Jur. 307. 2 Scott 627, 3 Keener 1145, p. 429, 436. Hoare v. Bremridge, L. R. 8 Ch. 22, 14 Eq. 522,. 2 Ames Eq. Jur. 121, p. 472. 853. Hobbs V. Xorton, 1 Vern. 136, 1 Scott 554, p. 376. Hobson V. Trevor, 2 P. Wms. 191, 1 Scott 75, p. 759, 769. Hoddel V. Pugh, 33 Beav. 489, 2 Scott 412, p. 164, 681. Hodge v. Amerman. 40 X. J. Eq. 99, 2 Atl. 257. p. 279. Hodge v. Ludlum. 45 Minn. 290, 47 X. A\". 805, p. 399. 960 TABLE OF CASES CITED. Hodge V. Sloan, 107 N. Y. 252, 1 Am. St. Rep. 816, 17 N. E. 335, 1 Ames Eq. Jur. 184, 2 Scott 508, 2 Keener 585, p. 776. Hodges V. Rowing, 58 Conn. 12, 18 Atl. 979, 7 L. R. A. 87, H. & B. 585, 2 Scott 62, 2 Keener 95, p. 881. Hodges V. Winston, 94 Ala. 576, 10 South. 535, p. 277. Hodges' Estate, In re, 66 Vt. 70, 44 Am. St. Rep. 820, 28 Atl. 663, p. 620, 623. Hodgson V. Duce, 2 Jur. N. S. 1014, 1 Ames Eq. Jur. 523, p. 844. Hodgson V. Williamson, L. R. 15 Ch. Div. 87, p. 652. Hoefl'er v. Clogan, 171 111. 462, 49 N. E. 527, 03 Am. St. Rep. 241, 40 L. R. A. 730, p. 576. Hoene v. Pollak, 118 Ala. 617, 24 South. 349, 72 Am. St. Rep. 189, p. 395. Hoffman v. Mackall, 5 Ohio St. 124, 130, 64 Am. Dec. 637, p. 557. Hoffman v. Postill, L. R. 4 Ch. 673, p. 75, 78. Hogg V. Link, 90 Ind. 346, 350, p. 477. Hogg V. Scott, L. R. 18 Eq. 444, 1 Ames Eq. Jur. 655, p. 838. Holbrook v. Ford, 153 111. 633, 46 Am. St. Rep. 917, 39 N. E. 1091, 27 L. R. A. 324, p. 809, 811. Holbrook v. Pa^^le, 151 Mass. 383, 24 X. E. 210, 21 Am. St. Rep. 456, p. 766. Holden v. New York and Erie Bank, 72 N. Y. 280, 292, p. .303, 306, 308. Holland v. Anderson, 38 Mo. 55, 58, p. 99. Holland v. Brown, 140 N. Y. 344, 35 N. E. 577, p. 279. Holland v. Challen, 110 U. S. 15, 16, 19, 3 Sup. Ct. 495, p. 142, 873, 874, 875. Holland v. Citizens' Sav. Bank, 16 R. I. 734, 19 Atl. 654, 8 L. R. A. 553, p. 718. Holland v. Holland, L. R. 4 Ch. 449, Ames Trusts 236, p. 620. Holley V. Glover, 36 S. C. 404, 31 Am. St. Rep. 883, 15 S. E. 605, 16 L. R. A. 776, p. 870, Holliday v. Franklin Bank, 16 Ohio 533, p. 342. HoUins V. Brierfield etc. Iron Co. 150 U. S. 371, 379, 14 Sup. Ct. 127, 128, 37 L. ed. 1113, p. 595, 807. Hollis V. Whiteing, 1 Vern. 151, 2 Keener 747, p. 905. Hollochcr V. Hollocher, 62 Mo. 267, p. 510. Holmes v. Gilman, 138 N. Y. 376, 34 Am. St. Rep. 463, 34 N. E. 205, 20 L. R. A. 566, p. 597. Holmes v. Goghill, 7 Ves. 499, 12 Ves. 206, p. 253. Holmes V. Powell, 8 De Gex, M. & G. 572. p. 274, 275, 279. Holmes v. Walter, 118 Wis. 409, 95 N. W. 380, p. 549. Holmes' Appeal, 77 Pa. St. 50, p. 454. Holridge V. Gillespie, 2 Johns. Ch. 30, Kirch. 579, p. 098. Holroyd v. Marshall, 10 H. L. Cas. 191, Kirch. 42, p. 740, 759, 769, 770. Hoist V. Stewart, 161 Mass. 516, 37 N. E. 755, 42 Am. St. Rep. 442. p. 459. Holt V. Thurman, 111 Ky. 84, 63 S. W. 280, 98 Am. St. Rep. 398, p. 761. Home Sav. & State Bank v. Peoria Agricultural & Trotting Soc, 20() 111. 9. 99 . Am. St. Rep. 132, 69 N. E. 17, p. 356. Homfray V. Fothergill, L. R. 1 Eq. 567, 2 Keener 26, p. 885. Honaker v. B'd of Education, 42 W. Va. 170, 57 Am. St. Rep. 847, 24 S. E. 544. 32 L. R. A. 413, p, 822. Honore's Ex'r v. Bakewell, 6 B. Mon. 67, 43 Am. Dec. 147, p. 281. Hood V. Hammond, 128 Ala. 569, 30 South. 540, 86 Am. St. Rep. 159 p. 748. Hood V. North East. R'y, L. R. 8 Eq. 666, 5 Ch. 525, 1 Ames Eq. Jur. 82, 2 Scott 76, 2 Keener 160, p. 820. Hood-Barrs v. Heriot, [1896] A. C. 174, p. 643. Hooper, Ex parte, 1 Mer. 7, Kirch. 114, p. 755. TABLE OF CASKS CITED. 961 Hooper v. Central Trust Co., 81 Md. 559, 32 Atl. 505, 29 L. R. A, 262, p. 175, 318, 345, 349. Hope V. Lyddell, 21 Beav. 183, p. 281. Hopkins v. Grimshaw, 165 U. S. 342, 17 Sup. Ct. 401, 23 L. ed. 392, p. .")S8. Hopkins v. Hopkins, 1 Atk. 581, 590, 591, 592, p. 545, 546. Hopkinson v. Rolt, 9 H. L. Cas. 514, 25 Beav. 461, p. 703, 704. Hopler V. Cutler, (X. J. Eq.) 34 Atl. 746. p. 344, 345. Hopper V. Calhoun, 52 Kan. 703. 35 Pac. 816, 39 Am. St. Rep. 363, p. 711. Hoppin V. Doty, 25 Wis. 573, 591, p. 265. Horlock, In re, [1895] 1 Ch. 516, p. 242. Honi V. Cole, 51 X. H. 287, 289, 12 Am. Rep. Ill, H. & B. 101, p. 389, 395, 397. Horrell V. Waldron, 1 Vern. 26, p. 656. Hotchkin v. Third Xat. Bank, 127 N. Y. 329, 27 N. E. 1050, 3 Keener 581, p. 469. Hotz's Estate, 38 Pa. St. 422, 80 Am. Dec. 490, p. 489. Hough V. Richardson, 3 Story, 659, p. 444. Houghton, Ex parte, 17 Ves. 251, 253, p. 590. Houlton V. Xichol, 93 Wis. 393, 67 N. W. 715, 57 Am. St. Rep. 928, 33 L. R. A. 166, p. 495. House V. Dexter, 9 Mich. 246, 2 Scott 414, p. 162. Houston V. Bryan, 78 Ga. 181. 6 Am. St. Rep. 2.52, 1 S. E. 252, p. 515. Houston V. Timmerman, 17 Oreg. 499, II Am. St, Rep. 848, H. & B. 98, p. 286. Hovey v. Bradbury, 112 Cal. 620, 44 Pac. 1077, p. 199. How V. Tenants of Bromsgrove, 1 Vern. 22, 2 Ames Eq. Jur. 55, 1 Keener 113, p. 104. Howard v. Clark, 71 Vt. 424, 45 Atl. 1042, 76 Am. St. Rep. 782, p. 381. 61 Howard v. Harris, 1 Vern. 190, 2 Lead. Cas. Eq., 4th Am. ed., 1945, 1949, 1952, 1983, Kirch. 430, Shej). 57, p. 173, 698, 721. Howard v. Robinson, 5 Cush. 119. 123, p. 692. Howard v. Turner, 155 Pa. St. 349. 26 Atl. 723, 35 Am. St. Rep. 883, p. 475. Howard Ins. Vo. v. Halsey, 8 X. Y. 271, 59 Am. Dec. 478, p. 281. Howe V. Taylor, 6 Oreg. 284, 291, 292, p. 408. Howe V. Watson, 179 Mass. 30, 60 X. E. 415, 1 Ames Eq. Jur. 429, p. 893. Howell V. Tompkins, 42 X. J. Eq. 305, 11 Atl. 333,1). 685. Hoyland v. Xorris, 1 Cox C. C. 59, 2 Scott 371, p. 905. Howser v. Cruikshank, 122 Ala. 256, 25 South. 206, 82 Am. St. Rep. 76, p. 726. Hoxie V. Chaney, 143 Mass. 592, 58 Am. Rep. 149, 10 X. E. 713, p. 840. Hoy V. Bramhall, 19 X. J. Eq. 563, 97 Am. Dec. 687, p. 728, 730. Hoyt V. Hoyt, 85 X. Y. 142, 146, 149, p. 744. Hubbard, Matter of, 82 X. Y. 90, 92, p. 783. Hubbard v. Weare, 79 Iowa, 678, 44 X. W. 915, p. 450. Hubbell V. Moulson, 53 X. Y. 225. 13 Am. Rep. 519, Kirch. 334, p. 693. 695, 719. Hubbell V. Von Schoening. 49 >s. Y. 326. 330, 2 Keener 1105, 2 Scott 350, p. 898, 899, 900. Hudkins v. Ward, 30 W. Va. 204. 8 Am. St. Rep. 22, 3 S. E. 600, p. 909. Hudson Bros. Com. Co. v. Glencoe etc. Co., 140 Mo. 103, 41 S. W. 450, 62 Am. St. Rep. 722, p. 380. Huggins V. Huggins, 117 Ga. 151, 43 S. E. 759, p. 804. Hughes V. Jones, 116 X. Y. 75, 15 Am. St. Rep. 386, 22 X. E. 446, 5 L. R. A. 632, p. 786. Huguenin v. Baseley, 14 Ves. 273, 2 Lead. Cas. Eq., 4th Am. ed., 1156, 1174, 1192. 1242, p. 463, 514. Hulme V. Tenant, 1 Brown Ch. 16, 1 Lead. Cas. Eq. 679, p. 504, 651. 962 TABLE OF CASES CITED. Humboldt County v. Lander County, 22 Xev. 248, 58 Am. St. Eep. 750, 38 Pac. 578, 26 L. R. A. 749, p. 866. Hume V. Dixon, 37 Ohio St. 66, p. 341. Hun V. Cary, 82 N. Y. 65, 70, 37 Am. Rep. 546, H. & B. 507, p. 612, 626, 631. Hunt V. Fowler, 121 111. 269, 12 N. E. 331, 17 N. E. 491, H. & B. 438, p. 577, 579, 580, Hunt V. Hunt, 4 De Gex, F. & J. 221, 1 Ames Eq. Jur. 131. p. 487. Hunt V. Hunt, 72 X. Y. 217, 228-230, 28 Am. Rep. 129, p. 52. Hunt V. Luck, [1901] 1 Ch. 45, [1902] 1 Ch. 428, p. 278. Hunt V. Peake, Johns. 705, G Jur., N. S., 1071, p. 834. Hunt V, Rousmaniere, 8 Wheat. 174, 212, 213, 1 Pet. 161, 2 Mason, 342, H. & B. 177, 182, 2 Ames Eq. Jur. 250, 3 Keener G, 2 Scott 544, p. 191, 416, 417, 419. Hunter v. Bilyeu, 30 111. 228, 246, H. & B. 248, p. 434, 436. Hunter v. Carroll, 64 N. H. 572. 15 Atl. 17, 1 Ames Eq. Jur. 529, p. 844. Himter v. ilcLaughlin, 43 Ind. 38, p. 446. Hunter v. Walters, L. R. 11 Eq. 292, p. 340. Hunter v. Watson, 12 Cal. 363, 377, 73 Am. Dec. 543, p. 295. Hunting v. Damon, 160 Mass. 441. 2 Keener 1156, p. 895. Hurlbert v. T. D. Kellogg Lumber & Mfg. Co., 115 Wis. 225, 91 N. W. 673, p. 446. Hurricane Tel. Co. v. Mohler. 51 W. Va. 1, 41 S. E. 421, p. 73, 78. Hutchinson v. Maxwell, 100 Va. 169, 40 S. E. 655, 93 Am. St. Rep. 944, 57 L. R. A. 384, p. 551. Hutton V. Rossiter, 7 De Gex, M. &. G. 9, 18, 19, 22, 23, p. 472. Hyde v. Lynde. 4 N. Y. 387, p. 809. Hyer v. Richmond Traction Co., 168 'u. S. 471, 18 Slip. Ct. 114, C2 L. ed. 547, p. 885. Hyndman v. Hyndman, 19 Vt. 9, 46 Am. Dec. 171, Kirch. 583, p. 515. 098. I. Ibbottson V. Rhodes, 2 Vem. 554. p. 376. Ide V. Trorlicht Co., 115 Fed. 137, 148, 53 C. C. A. 341, 1 Ames Eq. Jur. 642, p. 198, 836. Illinois Central R. R. v. McCuilough, 59 in. 166, p. 277. Ind, Coope & Co. v. iiimmerson, L. R. 12 App. Cas. 300, p. 370. huliana, Bloomington & W. R. R. Co. V. Bird, 116 Ind. 217, 18 X. E. 837, 9 Am. St. Rep. 842, p. 375. Indiana, I. & I. R. Co. v. Swannell, 157 111. 616, 41 N. E. 989, 30 L. R. A. 290, 297, p. 319. Ingham, In re, [1893] 1 Ch. 352, p. 349. Ingle V. Richards, 28 Beav. 361, p. 51G. Inhab. of Cranfovd Tp. v. Watters, 61 X. J. Eq. 248, 48 Atl. 316, p. 68. Innerarity v. Merchants' Nat. Bank, 139 Mass. 332, 1 N. E. 282, 52 Am. Rep. 710, p. 308. Ins. Co. V. Bailey, 13 Wall. 616, 620, 621, 623, 20 L. ed. 501, 3 Keener 474, p. 66, 143, 473, 474, 853, 861. Interstate B. & L. Ass'n v. McCartha, 43 S. C. 72, 20 S. E. 807, p. 294. Irish V. Antioch College, 126 111. 638, 9 Ajn. St. Rep. 638, 18 N. E. 768, p. 557. Iron Age Pub. Co. v. W. U. T. Co., 83 Ala. 498, 3 Am. St. Rep. 758. 3 South. 449, 2 Keener 834, p. 818, 893. Irwin V. Dane, 2 Biss. 442, Fed. Cas. Xo. 7,081, p. 837. Invin V. Williar, 110 U. S. 510, 4 Sup. Ct. 160, p. 486. Isaacs, In re, [1894] 3 Ch. 506, 2 Scott 402, p. 681. Ives V. Canby, 48 Fed. 718, p. 660. Jackson v. Bronson, 19 Johns. 325, Kirch. 629, p. 693. Jackson v. Duke of Xewcastle. 3 De Gex, J. & S. 275, I Keener 707, p. 834. TABLE OF CA.SES CITED. 963 Jackson v. LudelinjT, 21 Wall. GIG, 22 L. ed. 492, p. 028. Jackson v. Lynch, 129 111. 72, 21 N. K. 580, 22 N. E. 246, p. 197. Jackson v. Phillips, 14 Allen 539, 556, H. & B. 410, p. 575, 577. Jackson v. Stevenson, 156 jNIass. 496, 32 Am. St. Rep. 476, 31 N. E. 691, 1 Ames Eq. Jur. 179, p. 777. Jackson's Case, Lane 60, 1 Ames Eq. Jur. 143, 2 Scott 471, p. 319. Jackson Square L. & S. Ass'n v. Bart- lett, 95 Md. 661, 53 Atl. 426, 93 Am. St. Rep. 416, p. 551. Jacob V. Revell, [1902] 2 Ch. 858, p. 463. Jacobs V. Morange, 47 N. Y. 57, Shcp. 153, p. 416. Jacques, In re, [1903] 1 Ch. 267, p. 248. Jaggar v. Winslow, 30 Minn. 263, 15 N. W. 242, p. 445. James v. Kerr, 40 Ch. Div. 449, p. 496, 507. James v. Morey, 2 Cow. 246, 286, 298, 300. 313, 14 Am. Dec. 475, p. 293. 328, 380. James v. Newton, 142 jNIass. 366, 56 Am. Rep. 692, 8 N. E. 122, p. 764. Jamieson v. Wallace, 167 111. 388, 59 Am. St. Rpp. 302, 47 X. E. 762, p. 498. Jamison v. Brady, 6 Serg. & R. 466, 9 Am. Dec. 460, p. 639. Janes v. Throckmorton, 57 Cal. 368, p. 568. Janney v. Buel, 55 Ala. 408, p. 133. Jaques v. Weeks, 7 Watts, 261, 270. 275, p. 298. Jaquith v. Hudson, 5 Mich. 123, H. & B. 62, p. 219, 220. Jeakins v. Frazier, 64 Kan. 267. 67 Pac. 864, 2 Ames Eq. Jur. 268, ]>. 424. Jefferson v. Coleman, 110 Ind. 515. 11 X. E. 465, p. 731. Jefferys v. Jeffer^s. Craig & P. 138. 141, 1 Ames Eq. .Tur. 261, 2 Keener 700. 1 Scott 303, 2 Scott 154, p. 173. 892. Jefferys v. Smith, 1 Jacob & W. 298. p. 804. Jenkins v. Morris, L. R. 14 Ch. Div. 074, p. 505. Jennor v. Tunier, 16 Ch. Div. 188, p. 488. Jennings v. Bank of California, 79 Cal 323, 21 Pac. 852, 12 Am. St. Rep. 145, 5 L. R. A. 233, p. 330. Jennings v. Broughton, 5 De Gex, M. & G. 126, 17 Beav. 234, p. 447, 453, 458, 526. Jennings v. Moore, 2 Vern. 609, p. 319. Jennings v. Ward, 2 Vcm. 520, Kireli. 470, p. 608. Jerome v. Ross, 7 Johns. Ch. 315, 333. 11 Am. Dec. 484, 1 Scott 692, p. 843. .Jersey City Printing Co. v. Cassidy, 63 N. J. Eq. 759, 53 Atl. 230, 1 Scott 768, p. 846. Jervis v. Berridge, L. R. 8 Ch. 351, p. 428. Jervis v. Smith, 1 Hoff. Ch. 470, 1 Ames Eq. Jur. 313, p. 779, Jesson V. Jesson, 2 Vern. 255, p. 250. Jesus College v. Bloom, 3 Atk. 262. 263, Amb. 54, 1 Scott 115, 1 Ames Eq. Jur. 481, 1 Keener 404, p. 98, 829. Jevon V. Bush, 1 Vern. 342, Ames Trusts 217, p. 549. Jew V. Wood, Craig & P. 185, I Keener 240, p. 795. Jewell V. Lee, 14 Allen 145, 92 Am. Dec. 744, 2 Keener 479, p. 776. Jewett V. Bowman, 29 N. J. Eq. 174, p. 65. Jewett V. Palmer, 7 Johns. Ch. 65, 11 Am. Dec. 401, p. 362. Johns V. McLester, 137 Ala. 283, 34 South. 174, 97 Am. St. Rep. 27, p. 631. Johns V. Wilson, 180 U. S. 440, 21 Sup. Ct. 445, 45 L. ed. 613, p. 711. John's Will, In re, 30 Oreg. 494, 47 Pac. 341, 50 Pac. 226, 36 L. R. A. 242. p. 577, 580. Jolinson, In re. 15 Ch. Div. 548, Ames Trusts, 426. p. 024. Johnson v. Atkinson, 3 Anstr. 798, 2 Amos Eq. Jur., p. 793, 797. Johnson v. Christian, 128 U. S. 374, 9 Sup. Ct. 87, 31 L. ed. 820, p. 852. 964 TABLE OF CASES CITED. Johnson v. Colley, 101 Va. 414, 99 Am. St. Rep. 884, 44 S. E. 721, p. H66, 668. Johnson v. Cook, 24 Wash. 274, 64 Pac. 729, p. 221. Johnson v. Crook, L. R. 12 Ch. Div. 639, 649, p. 28, 33. Johnson v. Callafrlier, 3 De Gex, F. & J. 494, 509-520, 521, p. 504, 636, 650. Jolinson V, Hess, 126 Ind. 298, 25 N. E. 445, 9 L. R. A. 471, p. 294, 295. Johnson v. Hubbell, 10 N. J. Eq. 332, 66 Am. Dec. 773, p. 881. Johnson v. National B. & L. Ass'n, 125 Ala. 465, 28 South. 2, 82 Am. St, Rep. 257, p. 445. Johnson v. Thompson, 129 Mas3. 398, p. 710. Johnson v. Torpey, 35 Nebr. 604, 37 Am. St. Rep. 447^ 53 N. W. 575, p. 914. Johnson v. Webster, 4 De Gex, M. Sc G. 474, p. 385. Johnson v. Zink, 51 N. Y. 333, p. 710. Johnstone v. Cox, L. R. 16 Ch. Div. 571, p. 325. Johnstone's Settlement, In re, L. R. 14 Ch. Div. 162, p. 659. Johnston's Estate, 185 Pa. .St. 179. 64 Am. St. Rep. 621, 39 Atl. 879, p. 549. Jones V. Beach, 2 De Gex, jNI. & G. 886, p. 192. Jones V. Chappell, L. R. 20 Eq. 839, 1 Keener 744, p. 833. Jones V. Davis, 121 Ala. 348, 25 South. 789, p. 340. Jones V. Gregoiy, 2 De Gex, J. & S. 83, p. 473. Jones V. Hardy, 127 Ala. 221, 28 South. 564, 2 Ames Cas. Eq. Jur. 91, p. 122. Jones V. Higgins, L. R. 2 Eq. 538, 544, p. 640. Jones V. Jones, 8 Sim. 633, p. 315. Jones V. Lamar, 34 Fed. 454, p. 385. Jones V. Lloyd. L. R. 18 Eq. 265, 274, 275. p. 786. Jones V. Lowery Bkg. Co., 104 Ala. 2.52, 16 South. 11, p. 323. Jones V. MacKenzie, 122 Fed. 390, p. 64. Jones V. McNarrin, 68 Me. 334, 28 Am, Rep. 66, p. 286. Jones V. Mason, 5 Rand. 577, 16 Am, Dec. 761, p. 249. Jones V. North, L. R. 19 Eq. 426, 2 Keener 273, p. 820. Jones V. Parker, 163 Mass. 564. 47 Am. St. Rep. 485, 40 N. E. 1044, 1 Ames Eq. Jur. 73, 2 Scott 83, 2 Keener 192, p. 887, 888. Jones V. l^eid, 12 W. Va. 350, 29 Am. Rep. 455, p. 639. Jones V. Smith, 1 Hare 43, 55, 60-70, 1 Phill. Ch. 244, 256, p. 266, 278. Jones V. Weakley, 99 Ala. 441, 12 South. 420, 42 Am. St. Rep. 84, 19 L. R. A. 700, p. 667, 668. Jones' Appeal, 8 Watts & S. 141, 143, 147, 42 Am. Dec. 282, p. 612. Jordan v. Cheney, 74 Me. 359, p. 706. Jordan v. Phillips & Crew Co., 126 Ala. 561, 29 South. 831, p. 64, Jordan v. Stevens, 51 Me. 78, 81 .\m. Dec. 556, H. & B. 188, 3 Keener 25, p. 421. Jordan v. Volkenning, 72 N. Y. 300, 306, p. 446. Jorden v. ]\Ioney, 5 H. L. Cas. 185, p. 395. Joy V. St. Louis, 138 U. S. 1, 11 Sup. Ct. 243, 34 L. ed. 843, p. 890. Joynes v. Statham, 3 Atk. 388, 2 Scott 253, p. 431, 697, 701. Judson V. Corcoran, 17 How. 612, p. 326, 337, 338. Justis V. English, 30 Gratt. 565, p. 639. K. Kahn v. Walton, 46 Ohio St. 195. 20 N. E. 203, 3 Keener 859, H, & B. 32, p. 499. Kane V. Vanderburgh, 1 Johns. Ch. 11. 12, 1 Keener 450, 1 Scott 661, p. 827, 829. Kansas & A. V. R. Co. v, Fitzhugh, 61 Ark. 341, 54 Am. St. Rep. 311, 33 S. W. 960, p. 854. Karberg's Case, [1892] 3 Ch. 1, p. 4.50. Katz V. Walkinshaw, 141 Cal. 116, 99 Am. St. Rep. 35, 70 Pac. 663, 74 Pac. 766, 64 L. R. A. 236, p. 834. TABhH OF CA!S8. 31 L. R. A. 779, 51 Am. St. Kep. 700. p. 332. Knox V. Gye, L. R. 5 H. L. 056, 675, p. 594, 595. Knox V. Knox, 59 Wis. 172, 48 Am. Rep. 487, 18 N. W. 155, p. 572. Knox V. Singmaster, 75 Iowa, 64, 39 N. W. 183, 3 Keener 813. p. 522. Koch V. Brigps, 14 Cal. 256, 73 Am. Dec. 651, p. 557. Koehl V. Burrell. L. R. 7 Ch. Div. 551, 1 Keener 850, p. 834. Koen V. Brill. 75 Miss. 870, 65 Am. St. Rep. 633, 23 South. 481, p. 909. Kofka v._ Rosieky, 41 Neb. 328, 43 Am. St. Rep. 685, 59 X. W. 788, 25 L. R. A. 207, p. 903. Konvalinka v. Schlegel, 104 N. Y. 125, 58 Am. Rep. 494, 9 X. E. 868, H. & B. 1.32, p. 236. Kopper V. Dyer, 59 Vt. 477, 9 Atl. 4, 59 Am. Rep. 742, H. & B. 166, 1 Scott 400, p. 225, 404, 409. Kountz V. Kirkpatrick. 72 Pa. St. 376, 13 Am. Rep. 687, p. 330. Kowalke v. Milwaukee E. R. & L. Co., 103 Wis. 472, 79 N. W. 762, 74 Am. St. Rep. 877, 2 Scott 603, p. 428, 429. Krutz V. Robbins, 12 Wash. 7, 40 Pac. 415, 50 Am. St. Rep. 871, 28 L. R. A. 676, p. 220. Kuhl V. Gaily Universal Press Co., 123 Ala. 452, 26 South. 535, 82 Am. St. Rep. 135, p. 486, 499, 502. Kunkle v. Wherry. 189 Pa. St. 198, 69 Am. St. Rep. 802. 42 Atl. 112, H. & B. 61, p. 219. Kyle V. Fehley, 81 Wis. 67, 51 N. W. 257, 29 Am. St. Rep. 866, 3 Keener 131, p. 421. L. Labouchere v. Earl of Whamcliffe, L. R. 13 Ch. Div. 346, p. 821. Lacey, Ex parte, 6 Ves. 625, 627, p. 516. Iiackawanna etc. (.'o. v. Farmers' Loan & Tr. Co., 79 Fed. 202, p. 810. Lacon v. Briggs, 3 Atk. 105, 2 Scott 754, p. 198. Lacy, In re, [1899] 2 Ch. 149, p. 575. Ladd V. Judson, 174 111. 344, 66 Am. St. Rep. 267, 51 N. E. 838, p. 911. Ladue v. Detroit etc. R. R., 13 Mich. 380, 87 Am. Dec. 759, p. 704. Lady Elibank v. Montolieu, 5 Ves. 737, 1 Lead. Cas. Eq. 623, ()39-669, 670- 679, p. 646, 647. Laing v. McKee, 13 Mich, 124, 87 Am. Dec. 738, p. 603. Lake v. Gibson, 1 Eq. Cas. Abr. 290. 294. pi. 3, 1 Lead. Cas. Eq., 4th Am. ed., 264, 268, 1 Scott 367. p. 189, 742. Lake v. Hancock, 38 Fla. 53, 20 South. 811, 56 Am. St. Rep. 159, p. 367. Lake View M. & M. Co. v. llannon, 93 Ala. 87, 9 South. 539, p. 609. Lamar v. Micou, 112 U. S. 452, 465, 5 Sup. Ct. Rep. 221, 26 L. ed. 774. H. & B. 515, p. 015. Lambe v. Eames, L. R. 10 Eq. 267, 6 Ch. 597j Ames Trusts 85, p. 571. Lambton V. Mellish, [1894] 3 Ch. 163, 1 Scott 744, p. 831. Lamoille Co. Nat. Bank v. Bingham, 50 Vt. 105, 28 Am. Rep. 490, p. 498. Lamont v. Cheshire, 65 N. Y. 30. 37, 38, p. 287. Lampet's Case, 10 Coke, 46b, 48a. j). 758. Lamprey V. Lamprey, 29 Minn. 156. 12 N. W. 514, p. 892. Lancey v. Randlett, 80 Me. 169. 13 Atl. 686, 6 Am. St. Rep. 169, 1 Scott 409, p. 75, 93. 94, 409. Lane V. Debenham, 11 Hare, 188, Ames Trusts 513, p. 607. Lane v. Newdigate, 10 Ves. 192. 1 Ames Eq. Jur. 74, 2 Scott 73. 2 Keener 139, p. 848. Lane & Bodley Co. v. Locke, 150 I'. S. 193, 14 Sup Ct. 78, p. 836. Langdon v. Astor's Ex'rs, 16 N. Y. 9, p. 247, 249. Langdon v. Sherwood, 124 U. S. 74, 8 Sup. Ct. 429, Shej). 79. p. 207. Langford v. Pitt. 2 P. Wms. 629, 2 Scott 405, 2 Keener 333, p. 162, 897. Langridge v. Payne, 2 Johns. & H. 423, p. 218. 968 TABLE OF CASES CITED, Lang Syne Gold Mining Co. v. Ross, 20 Nev. 127, 19 Am. St. Rep. 337, 18 Pac. 358, p. 271. Lanoy v. Duke of Athol, 2 Atk. 444, 446, 1 Scott 374, p. 181. LansdoAvne v. Lansdowne, 2 Jacob & W. 205, Mos. 304, 365, 3 Keener 1, 2 Scott 540, p. 424. Lansdo\me v. LansdoAvne, 1 Madd. 116, 1 Keener 406, 1 Scott 650, p. 829. Larabrie v. Brown, 26 L. J. Eq. N. S. 605, 1 Keener 284. Lamed v. Donovan, 155 N. Y. 341, 49 N. E. 942, p. 350. Larrowe v. Beam, 10 Ohio 498, p. 357. Lart, In re, [1896] 2 Ch. 789, p. 395. La Societe Francaise v. Dist. Court, 53 Cal. 495, p. 802. Latham v. Chafee, 7 Fed. 525, p. 805. Lathrop V. Bampton, 31 Cal. 17, 89 Am. Dec. 141, p. 605. Latshaw's Appeal, 122 Pa. St. 142, 9 Am. St. Rep. 76, 15 Atl. 676, p. 869. Lattin v. McCarty, 41 N. Y. 107, 109. 110, p. 101. Lawes v. Bennett, 1 Cox, 167, 1 Scott 602, p. 680, 681. Lawrence v. Gayetty, 78 Cal. 126. 20 Pac. 382, 12 Am. St. Rep. 29. p. 445. Lawrence v. Saratoga Lake R'y Co., 36 Hun 467, 2 Keener 171. p. 8S8. 889. Lawson v. Copeland, 2 Br. Ch. Cas. L56 Ames Trusts, 492, p. 610, 612. Lawton v. Estes, 167 Mass. 181, 45 X. E. 90, 57 Am. St. Rep. 450, p. 1 86. Leak v. Morrice, 2 Cas. in Ch. 135, 2 Keener 746, p. 905. Leake v. Watson, 58 Conn. 332, 18 Am. St. Rep. 270, 20 Atl. 343, 8 L. R. A. 666, p. 597. Learned v. Tritch, 6 Colo. 432, p. 372. Leather v. Simpson, L. R. 11 Eq. 398. p. 472. Leavitt v. Reynolds, 79 Iowa 348, 44 N. W. 567, 7 L. R. A. 365, p. 706. Lechmere v. Earl of Carlisle, 3 P. Wms. 211, 215, 222, p. 252, 678. Lee V. Cole, 17 Oreg. 559, 21 Pac. 819, p. 739. Lee V. Hewlett. 2 Kay & J. 531, Ames Trusts 329, p. 326. Lee V. Kirby, 104 Masg. 420, 428, 2 Scott 300, p. 484. l^e V. Lee, 4 Ch. Div. 175, 179, p. 638. Lee V. Munroe, 7 Cranch, 366, 368. p. 349. Lee V. Percival, 85 Iowa, 135, 52 N. W. 543, 3 Keener 135, p. 419. Lee V. Simpson, 37 Fed. 12, 2 L. R. A. 659, p. 816. Leech v. Schweder, L. R. 9 Ch. 463, p. 778. Leffler v. Armstrong, 4 Iowa, 482, 68 Am. Dec. 672, p. 558. Lehigh Valley R. R. Co. v. McFarlan, 30 N. J. Eq. 135, 2 Ames Eq. Jur. 85, 31 N. J. Eq. 730, 754, 759-761, 1 Keener 133, p. 114, 122. Leigh V. Harrison, 69 Miss. 923, 11 South. 604, 18 L. R. A. 49, p. 551. Leighton v. Orr, 44 Iowa, 679, p. 510. Leitch V. Wells, 48 Barb. 637, 48 X. Y. 585, 602, 609, p. 288. Le May v. Baxter, 11 Wash. 649, 40 Pac. 122, p. 76. Lemke v. Dietz, (Wis.) 98 N. W. 936, p. 494. Le Xeve v. Le Xeve, Amb. 436, 2 Lead. Cas. Eq. 1-108, 109, and notes, 227, 2 Lead. Cas. Eq., 4th Am. ed., sees. 140-142, 3 Atk. 646, 1 Ves. Sr. 64, 1 Scott 536. p. 197, 256, 299, 301, .•?02, 303, 314, 318. Lent V. Howard, 89 X. Y. 169, 3 Keener 952, p. 680. Lenzberg, In re, L. R. 7 Ch. Div. 650, p. 527. Leonard V. Poole, 114 X. Y. 371, 21 X. E. 707, 11 Am. St. Rep. 667, 4 L. R. A. 728, 2 Scott 787, p. 500. Le Roy v. Rogers, 3 Paige, 234, p. 9i0. Levi V. Blackwell, 35 S. C. 511, 15 S. E. 24S, p. 179. Lewin V. Lewin, 2 Ves. Sr. 415, p. 604. Lewis, In re, 81 N. Y. 421, p. 550. Lewis V. Allenby, L. R. 10 Eq. 668, p. 578. Lewis V. Arbuckle, 85 Iowa, 335, 52 X. W. 237, 16 L. R. A. fi77. p. .505. Lewis V. Cocks, 23 Wall. 466, 409, 470, » 23 L. ed. 70, Shep. 17, p. 64, 14S. TAHLK OF CASKS CITED. 960 Lewis V. Denver City Waterworks Co., 19 Colo. 2:m, 41 Am. St. Rep. 248, 74 Pac. 99;{, p. 822. Lewis V. Gollner, 129 N. Y. 227, 26 Am. St. Rep. 516, 29 N. E. 81, 1 Ames Eq. Jur. 152, 2 Scott 496, 2 Keener 612, p. 777. Lewis V. Hawkins, 23 Wall. 119, H. & B. (565, p. 75.S. Lewis V. Holdre}i:e, 56 Nebr. 379, 76 N. W. 890, p. 182. Lewis V. Kirk. 28 Kan. 497, 42 Am. Rep. 173, p. 329, 350. Lewis V. Lord Lechmere, 10 Mod. 503. p. 881. Lewis V. Smith, 9 N. Y. 502, 504, 510, 511, 61 Am. Dec. 706, p. 235. Lewis V. Town of Xorth Kinf!:sto\\Ti, 16 R. I. 15, 26 Am. St. Rep. 724, 11 Atl. 173, p. 99. Lewis's Appeal, 67 Pa. St. 166, p. 184. Leyland v. lllingworth, 2 De Gex, F. & J. 248, 252, 254, p. 463. Leyson v. Davis, 17 Mont. 220, 42 Pac. 775. 31 L. R. A. 429, p. 666, 667. Liberty Bell, The, 23 Fed. 843, p. 822. Life Ass'n of Am. v. Boo. 887, 888. ]Mayor of York v. Pilkington, 1 Atk. 282, 283, 2 Ames Eq. Jur. 55, 1 Keener 114, p. 111. Mays v. Rose, Freem. Ch. (Miss.) 718, Shep. 32, p. 802, 806, 808. Mays V. Taylor, 7 Ga. 238, 243, 244, p. 98. ]Meaeham v. Bunting, 156 111. 586, 41 X. E. 175, 47 Am. St. Rep. 239, 28 L. R. A. 618, p. 644. Mead v. Bunn, 32 N. Y. 275, p. 459. :Mead V. Mitchell, 17 N. Y. 210, 214, 72 Am. Dec. 455, p. 868. Mee V. Benedict, 98 Mich. 260, 39 Am. St. Rep. 543, 57 N. W. 175, 22 L. R. A. 641, p. 868. Meech V. Ensign, 49 Conn. 191, 44 Am. Rep. 225, p. 712. :\Ieelian v. Williams, 48 Pa. St. 238, p. 279. Meeker V. Warren, (N. J. Eq.) 57 Atl. 421, p. 342. 3ileguire v. Corwine, 101 U. S. 108, p. 494. Meier v. Hess, 23 Oreg. 599, 32 Pac. 755, p. 325. ]Melms V. Pabst Brewing Co., 93 Wis. 140. 153, 66 N. W. 244, 518, 57 Am. St. Rep. 899, p. 476. Memphis & C. R. R. Co. v. Grayson, 88 Ala. 572, 7 South. 122, 16 Am. St. Rep. 69, p. 402. ^Memphis & C. R. Co. v. Woods, 88 Ala. 630, 16 Am. St. Rep. 81, 7 Soutli. 108, 7 L. R.A. 605. :\lenk1er v. U. S. Sheep Co., 4 X. Dak. 507, 62 X^ W. 594, 33 L. R. A. 546. p. 911. Mercantile Nat. Bank v. Parsons, 54 Minn. 56, 55 N. W. 825, 40 Am. St. Rep. 299, p. 266, 282. Mercantile Trust Co. v. Missouri, K. & T. R. Co.., 36 Fed. 221. 1 L. R. A. 397. p. 807. Merced Min. Co. v. Fremont, 7 Cal. 317, 319, 68 Am. Dec. 262, p. 873. TABLE OF CASES CITED. 975 flerchants & M. X. Bank v. Barnes, 18 Mont. 335, 48 Pac. 218, 56 Am. St. Rep. 58(5, 47 L. R. A. 737, p. 70G. Merchants' Bank v. Weill, 163 N. Y. 486, 79 Am. St. Rep. 605, 57 N. E. 749, p. 350. Merchants' etc. Nat. Bank v. Kent Cir. J., 43 Mich. 292, 5 N. W. 627, H. & B. 855, p. 808. Merchants' Nat. Bank v. Paine, 13 R. 1. 592, 1 Scott 136, p. 912. Meredith V. Heneage, 1 Sim. 542, 550, 551, 553, p. 573. Merrill v. Beckwith, 163 Mass. 503, 10 N. E. 855, 1 Ames Eq. Jur. 19, p. 207. ?: V. Wilson, 60 Mich. 232, 33 N. W. 716, p. 475. Merrill v. Wright, (Nebr.) 91 N. W. 697, p. 287. ^Nlerriman v. Miles, 54 Nebr. 5()6, 74 N. W. 861, 69 Am. St. Rep. 731, p. 712. Merriman v. Walton, 105 Cal. 403, 45 Am. St. Rep. 50. 38 Pac. 1108, 30 L. R. A. 786, p. 854. Merritt.v. Buchnam, 78 Me. 504, 7 Atl. 383, p. 744. Metcalf V. Hervey, 1 Ves. Sr. 248, 1 Keener 203, p. 797. Metcalfe v. Hutchinson, L. R. 1 Ch. Div. 591, p. '744. Metliodist Episcopal Churcli v. Jackson Square Evangelical Church, 84 Md. 173, 35 Atl. 8, p. 588. Meth. Epis. Ch. v. Jaques, 3 Johns. Ch. 77, 90-92, 1 Scott 68, p. 640. Methven v. Staten Island L., H. & P. Co., 66 Fed. 113, 13 C. C. A. 362, 35 U. S. App. 67, p. 323. Metler's Adm'rs v. Metier, 18 N. J. Eq. 270, 19 N. J. Eq. 4.57, p. 73. Metropolitan El. Supply Co. v. Gender, [1901] 2 Ch. 799, p. 819. Metropolitan Exhibition Co. v. Ewing, 42 Fed. 18, 7 L. R. A. 381, H. & B. 631, p. 819, 886. INIeux V. Cobley [1892] 2 Ch. 253, 1 Scott 665, p. 828. Meyer v. Phillips, 07 N. Y. 485, 49 Am. Rep. 538, p. 833. Meyers v. Farquharson, 46 Cal. 190, p. 673. Mich. Paneling M. & M. Co. v. Parcell, 38 Mich. 475, 480, p. 401. Michigan Pipe Co. v. Fremont Ditch, Pipe Line & Reservoir Co., Ill Fed. 284, 49 C. C. A. 324, p. 182, 183, 184. Michoud V. Girod, 4 How. 503, 561, Shep. 181, p. 476, 515, 526. Mickles v. Dillaye, 17 N. Y. 80, Kirch. 526, p. 719. Micklethwait V. Micklethwait, 1 De Gex & J. 504, p. 828. Micklethwaite v. Atkinson, 1 Coll. C. C. 173, p. 78. ]\Iiddleton V. Spicer, 1 Br. CJh. Cas. 201, Ames Trusts 364, p. 552. Mildred v. Austin, L. R. 8 Eq. 220, p. 721. Miles V. Dover Furnace Iron Co. 125 N. Y. 294, 26 N. E. 261, 2 Keener 1048, p. 894. Miles V. Miles, (Miss.) 37 South. 112, p. 426. Milhaus v. Sally, 43 S. C. 318, 21 S. E. 268, 885, 49 Am. St. Rep. 834, p. 186. Milkman v. Ordway, 106 Mass. 232, 253, 1 Scott 119, p. 99, 100. Miller v. Ball, 64 N. Y. 2S(), 2 Keener 657, 2 Scott 196, p. 902. Miller V. Cook, L. R. 10 Eq. 641. p. 511. Miller v. Merine, 43 Fed. 261. p. 318. Miller v. Miller's Adm'i, 92 Va. 510, 23 S. E. 891, p. 638. Miller v. Sauerbier, 30 N. ,T. Eq. 71, p. 527. j\liller V. Scammon, [1873] 52 N. H. 609, H. & B. 265, p. 93. 95, 473, 474. Miller v. Thurgood, 33 Beav. 496, p. 234. Miller Brewing Co. v. Manasse, 99 Wis. 99, 67 Am. St. Rep. 854, 74 N. W^ 535, p. 351. Mills v. Harris. 104 N. C. 626, 10 S. E. 704, p. 680. Milnes v. Gery, 14 Ves. 400, 403, 2 Keener 111. p. 779, 886, 897. Milroy v. Lord, 4 De Gex, F. & J. 204, 274, Ames Trusts 149, p. 559, 560. 976 TABLE OF CASES CITED. Milwaukee & Minn. R. R. Co. v. Sout- ter, 2 Wall. 521, p. 802, 807. Miner v. Atherton's Ex'rs, 35 Pa. St. 528, 537, p. 247. Aliiier V. Belle Isle Ice Co., 93 Mich. 97, 53 X. W. 218, p. 806. ]Mingiis V. Daugheity, 87 loAva, 56, 43 Am. St. Rep. 354, 54 X. W. 66, p. 916. Minneapolis, etc. R. R. Co. v. Cox, 7() Iowa, 306, 14 Am. St. Rep. 216, p. 892. Minns v. Billings, 183 Mass. 126, 97 Am. St. Rep. 420, 66 N. E. 593, p. 577. Minot V. Baker, 147 Mass. 348, 17 N. E. 839, 9 Am. St. Rep. 713. p. 581, 582. Minot V. Martin, 95 Fed. 734, 37 C. C. A. 234, p. 809. :\linot V. Taylor, 129 Mass. 160. p. 676. jSIinturn v. Seymour, 4 Johns. Ch. 497. 1 Scott 302, p. 173. ^Missouri, K. & T. Trust Co. v. Krum- seig, 172 U. S. 359, 19 Sup. Ct. 179, s. c, 77 Fed. 32, 23 C. C. A. I, 40 U. S. App. 620, p. 179, 501. Mitchel V. Reynolds, 1 P. Wms. 181, 1 Smith's Lead. Cas. 705, p. 491. Mitchell V. Denson, 29 Ala. 327. 65 Am. Dec. 403, p. 410, 411. :\Iitchell V. Dors, 6 Yes. 147, 1 Scott 682, I Ames Eq. Jur. 488, I Keener 543, p. 842. Mitchell V. C4reene, 10 Met. 101, p. 93. ]Mitehe]l v. Hayne, 2 Sim. & St. 63. 2 Ames Eq. Jur. 12, 1 Keener 292. p. 794, 795. Mitchell V. Ladew, 36 Mo, 526, 88 Am. Dec. 156, p. 706. Mitchell V. McDougall, 62 111. 498, H. & B. 279, p. 467. Mitchell V. Reed, 61 N. Y. 123, 139, 19 Am. Rep. 252, H. & B. 48, p. 600. Mitchell V. Smith, 1 Paige, 287, Shop. 346, p. 77. ^Mitchell V. Winslow, 2 Stoiy, 630, Fed. Cas. Xo. 9.67.3, p. 770. Moale V. Buchanan, 11 Gill & J. 314. 325, p. 434. Moelle.v. Sherwood, 148 U. S. 21, 13 Sup. Ct. 426, p. 363, 364. Moetzel & Muttera v. Koch, (Iowa) 97 X. W. 1079, p. 508. .Mogg V. Mogg, Dick. 670, 1 Scott 679, 1 Ames Eq. Jur. 186, 1 Keener 532, p. 841. Mollineux V. Powell, 3 P. Wms. 268, n. (F), 1 Ames Eq. Jur. 468, 1 Scott 664, p. 827, 828, 829. Molony v. Scanlan, 53 111. 122. p. 244. ?kIonahan V. Monahan, (Yt.) 59 Atl. 169. p. 592. Moncricf v. Ross, 50 X. Y. 431. 3 Keener 960, p. 677, 681. Monotuck Silk Co. v. Flanders, 87 Wis. 237, 58 X. W. 383, H. & B. 468, p. 598. ^lonroe v. Armstrong, 96 Pa. St. 307, p. 226. Montacute v. IMaxwell, 1 P. Wms. 618, 1 Strange, 236, I Eq. Cas. Abr. 19, 1 Ames Eq. Jur. 27, 2 Keener 623, p. 449, 904. INlontagu v. Earl of Sandwich, L. R. 32 Ch. Div. 525, p. 250. ?ilontague v. Flockton, L. R. 16 Eq. 189, 1 Ames Eq. Jur. 105, 2 Scott 107, 2 Keener 246. H. & B. 622, p. 819. ^lontana Ore-Purchasing Co. v. Boston. 6 :^I. Consol. C. & S. Min. Co.. 27 Mont. 536, 70 Pac. 1114, 71 Pac. 1005, p. .54. :\lontford v. Cadogan, 17 Yes. 485, 489, 19 Yes. 035, 638, p. 567. Montgomery v. Keppel, 75 Cal. 128, 7 Am. St. Rep. 125, 19 Pac. 178, p. 267. ]\Ioody V. Wright, 13 Met. 17, 32, 46 Am. Dec. 706, Kirch. .54, p. 769. INloor V. Black, Cas. t. Talb. 126, p. 864. Moore v. Baker, 4 Ind. A])p. 115. 51 Am. St. Rep. 203, 30 X. E. 629, ].. 232. Moore v. Cable, 1 Johns. Ch. 385, 387, 388, Kirch. 524, p. 719, 742. Moore v. Crawford, 130 U. S. 122. 128. 9 Sup. Ct. Rep. 447, 32 L. ed. 878. p. 602. ■\loore V. Dart on. 4 De Gex & S. 517, Ames Trusts 39, p. 563, 667. TABLE or ca. 285. Onslow V. Wallis, 1 Hall & Twells, 513. Ames Trusts 462, p. 587. Ontario Bank v. Munford, 2 Barb. Ch. 596. 615, p. 133. Oppeniieimer v. Clunie, 142 Cal. 313, 75 Pac. 889, 899, p. 461. Oppenheimer v. Levi, 96 ^Id. 296, 54 Atl. 74. 60 L. R. A. 729, p. 875. Orby v. Trigg, 2 Eq. Cas. Abr. 599, pi. 24, 9 Mod. 2, Kirch. 470, p. 698. Ord V. Johnston, 1 Jur., N. S., 1063, 1064, 1065, 2 Scott 40, p. 839. Ord way v. Downey, 18 Wash. 412, 51 Pac. 1047, 63 Am. St. Rep. 892, p. 711. O'Reilly v. New York El. R. Co., 148 X. Y. 347, 42 X. E. 1063, 31 L. R. A. 407, p. 824. Ormrod v. Huth, 14 Mees. & W. 650, p. 4.50, 451. Orth v. Orth, 145 Ind. 184, 57 Am. St. Rep. 185, 42 N. E. 277. 44 N. E. 17, 32 L. R. A. 298, p. 593. Orvis v. Newell, 17 Conn. 97, p. 298. Osborn v. Lea, 9 Mod. 96, p. 376. Osborn v. JlcClelland, 43 Ohio St. 284, 298-.307, 1 X. E. 644, p. 332, 333, 335. Osborn v. Morgan, 9 Hare, 432, 434, p. 646. Osborne & Co., D. U., V. Mo. Pac. R. Co.. 147 U. S. 248. 13 Sup. Ct. 299, 37 L. ed. 155, p. 824. Oscanyan v. Arms Co., 103 U. S. 261, p. 495. Oswego Starch Factory v. Lendrum, 57 - nva, 573, 10 X. W. 900, 42 Am. Rep. 53, p. 469. OswoU v. Probert, 2 Ves. 680, 682. jj. 646. Otis v. Gregory, 111 Ind. 504, 13 X. E. 39, p. 176. Ottenheimer v. Cook, 10 Heisk. 309, 3 Keener 71, p. 416. Ottumwa Screen Co. v. Stodghill. 103 Iowa. 437, 72 X. W. 669, p. 327. Overton v. Banister, 3 Hare, 503, .lOfi. p. 185. Owen v. Homan. 3 Macn. & G. 378, 412; affirmed 4 H. L. Cas. 997, Shep. 324, p. 802, 804. Owens V. Dickenson, Craig & P. 4S, 53, 54, p. 650. Owens V. McXally, 113 Cal. 444, 45 Pac. 710, 33 L. R. A. 369, p. 903. Pace V. Bartles, 47 X. J. Eq. 170. 20 Atl. 352, p. 700. Pace V. Pace's Adm'r, 95 Va. 792, 30 S. E. 361, 44 L. R. A. 459, p. 915. Pacific Postal Tel. Cable Co. v. West- ern Union Tel. Co. 50 Fed. 493, p. 491. Pacific R. R. V. Ketehum, 101 U. S. 289, p. 520. Pacific R"y Co. v. Wade, 91 Cal. 449, 456, 25 Am. St. Rep. 201, 27 Pac. 768, 13 L. R. A. 754, p. 809. Packard v. Stevens, 58 X. J. Eq. 489. 46 Atl. 250, p. 793. Packham v. German F. Ins. Co. 91 Md. 515, 80 Am. St. Rep. 461, 46 Atl. 1066, 50 L. R. A. 828, p. 915. Packington's Case, 3 Atk. 215, 1 Keen- er 459, 1 Scott 649, p. 828. Padbury v. Clark, 2 Macn. & G. 298. 306, 307. p. 239. Padwick v. Stanley. 9 Hare, 627, 3 Keener 905, p. 919. Page v. Higgins, 150 Mass. 27, 22 X- E. 63, 5 L. R. A. 152, p. 437. Page V. Pierce. 26 X. H. 317, Kirch. 630. p. 714. Page v. Waring, 76 X. Y. 463, 467- 469, p. 369. 982 TABLE OF CASES CITED. Paget V. :^Iarshall, L. R. 28 Ch. D. 255, 2 Scott tilO, 3 Keener 295, p. 438. Paine v. Meller, 6 Ves. 349, 1 Ames Eq. Jur. 227, 2 Scott 450, 2 Keener 403, p. 162. Palmer v. De Witt, 47 N. Y. 532, 7 Am. Rep. 480, Lewis 64, p. 839. Palmer v. Hartford Ins. Co., 54 Conn. 488, 9 Atl. 248, 3 Keener 317, p. 429, 438. Palmer v. Nea:ve, 11 Ves. 165, p. 487. Pamplin v. Green, 3 Cas. Chan. 95, p. 655. Panama etc. Tel. Co. v. India Rubber etc. Co., L. R. 10 Ch. 515, 526, 3 Keener 550, p. 517. Pankhurst v. Howell, L. R. 6 Ch. 136, p. 249. Parfitt V. Chambre, L. R. 15 Eq. 36, p. 217. Park Bros. & Co. v. Blodgett & Clapp Co., 64 Conn. 28, 29 Atl. 133, H. & B. 234, 3 Keener 150, p. 419. Parker v. Barker, 42 N. H. 78, 77 Am. Dec. 789, p. 798. Parker v. Carter, 4 Hare, 400, 409, p 534. Parker v. Garrison, 61 111. 250. 1 Ames Eq. Jur. 44, p. 883. Parker v. Nightingale, 6 Allen, 341, 344, 83 Am. Dec. 632, 2 Keener 475. p. 775. Parker v. Randolph, 5 S. Dak. 549, 59 N. W. 722, 29 L. R. A. 33, p. 363. Parker v. Sears, 1 Fish. Pat. Cas. 93. Fed. Cas. Xo. 10,748, p. 836. Parker v. Shannon, 121 111. 452, 13 N. E. 155, 2 Ames Eq. Jur. 160, 1 Keener 363, p. 874. Parker v. Taswell, 2 De Gex & J. 559, p. 558. Parkey v. Ramsey, (Tenn.) 76 S. W. 812, p. 394. Parkin v. Seddons, L. R 16 Eq. 34, p. 803. Parkin v. Tliorold, 16 Beav. 59, 1 Ames Eq. Jur. 327, p. 898, 899. Parkinson v. Hanbim', L. R. 2 H. L. 1, 2 De Gex, J. & S. 450, Kirch. 550, p. 718. Parkist v. Alexander, 1 Johns. Ch. 394, p. 292. Parrish v. Hastings, 102 Ala. 414, 14 South. 783, 48 Am. St. Rep. 50, p. 747. Parrish v. Mahany, 10 S. Dak. 276. 73 N. W. 97, 66 Am. St. Rep. 715, p. 368. Parrish v. Mahany, 12 S. Dak. 278. 76 Am. St. Rep. 604, 81 N. W. 295, p. 368. Parry v. Rogers, 1 Vern. 441, 2 Ames Eq. Jur. 165, p. 84. Parsons v. Hartman, 25 Oreg. 547. 42 Am. St. Rep. 803, 37 Pac. 61, 30 L. R. A. 98, p. 856. Parsons v. Martin, 86 Ala. 352, 5 South. 467, p. 706. Parsons v. Parsons. 9 X. H. 309, 32 Am. Dec. 362, p. 648. Parsons v. Winslow, 6 Mass. KiO. 4 Am. Dec. 107, p. 489. Partridge v. Chapman, 81 111. 137, p. 363. Pasco V. Gamble, 15 Fla. 562, p. 805. Patch V. Ward, L. R. 3 Ch. 203, 207, p. 452. Paterson etc. R. R. v. Jersey City, 9 X. J. Eq. 434, p. 108. Patterson v. Allen, 50 Tex. 23, p. 673. Patterson v. Bloomer, 35 Conn. 57, 95 Am. Dec. 218, 2 Keener 956, p. 427, 4.30. Patterson v. Hewitt, 195 U. S. 309. 25 Sup. Ct. 35, 49 L. ed., p. 199. Patterson v. Rabb, 38 S. C. 138. 17 S. E. 463, 19 L. R. A. 831, p. 332. Patton V. Campbell, 70 111. 72, H. & B. 171, p. 132, 408. Patty V. Middleton, 82 Tex. 586, 17 S. W. 909, p. 372. Paul V. Connersville etc. R. R., 51 Ind. .527, 530, p. 265. Pnvesich v. Xew England Life Ins. Co., (Ga.). 50 S. E. 68, 1 Scott 194, p. 846. Pawson V. Bro^vn, L. R. 13 Ch. Div. 202, p. 587. Payne v. Becker, 87 N. Y. 153, p. 865. Payne v. Hook, 7 Wall. 425, 430. 19 L. ed. 262, p. 142. Payton v. ]\IcQuo^^^^, 97 Ky. 757. 53 Am. St. Rep. 437. 31 S. W. 874, 31 L. R. A. 33, p. 851. TABLFJ OF CASES CITED. 983 Pea body v, Fenton, 3 Barb. Ch. 451, 4U4, 4G5, p. 357. Peabody v. New England W. Co., 184 111. 625, 75 Am. St. Rep. 195, 56 N. E, 957, p. 809. Peabody v. Norfolk, 98 Mass. 452, 96 Am. Dec. 664, 2 Keener 241, p. 491, 817, 818, 820. Peaclij' V. Duke of Somerset, 1 Strange, 447, 452-456, Prec. Ch. 568, 2 Eq. Cas. Abr. 227, 228, p. 170, 214. Peacock v. Evans, 16 Ves. 512, p. 178. Peacock v. Monk, 2 Ves. Sr. 190, p. 640. Peacock v. Penson, 11 Beav. 355, 2 Scott 288, p. 894. Peacock's Trusts, In re, L. R. 10 Ch. Div. 490, 495, 496, p. 639. Pearne v. Lisle, Amb. 75, 77, 1 Scott 86, p. 882. Pearson v. Cardon, 2 Russ. & ]M. 606, 609, 610, 612, p. 793, 794. Pearson v. Morgan, 2 Brown Ch. 384, 388, p. 266. Peay v. Seigler, 48 S. C. 496, 59 Am. St. Rep. 731, 26 S. E. 885, p. 892. Peck V. Ashley, 12 Met. 478, 481, p. 73. Peck V. Conway, 119 Mass. 546, 1 Ames Eq. Jur. 162, 2 Scott 527, 2 Keener 509. p. 775, 776, 778. Peck V. Jenness, 7 How. 612, 620, 12 L. ed. 841, p. 736. Peek V. List, 23 W. Va. 338, 48 Am. Rep. 398, p. 493. Peck V. Peck, 110 N. Y. 64, 74, 17 N. E. 383, p. 723. Peebles v. Gay, 115 N. C. 38, 44 Am. St. Rep. 429, 20 S. E. 173, p. 916. Peek V. Gurney, L. R. 13 Eq. 79, 113. 6 H. L. 377, p. 449, 450. Peek V. Peek, 77 Cal. 106, 19 Pac. 227. 11 Am. St. Rep. 214, 1 L. R. A. 185, 1 Scott 463, 2 Keener 756, p. 479, 905. Peeler v. Levy, 26 N. J. Eq. 330, 2 Keener 1236. p. 906. Peers v. Lambert, 7 Beav. 546, 2 Scott 375, p. 905. Pegge V. Skjiiner, 1 Cox. Eq. Cas. 23, Ames' Cas. on Trusts, 218, p. 549. Peirsoll v. Elliott, 6 Pet. 95, 98, 8 L. ed. 334, Shep. 141, p. 860, 877. Pellettier v. Greenville L. Co., 123 N. C. 596, 68 Am. St. Rep. 837, 31 S. E. 855, p. 809. Pencille v. State F. M, H. Ins. Co., 74 Minn. 67, 76 N. \Y. 1026, 73 Am. St. Rep. 326, p. 633. Penn v. Guggenheimer, 76 Va. 839, 846, 847, 850, 851, H. & B. 123, p. 234, 239. Penn v. Lord Baltimore, 1 Ves. Sr. 444, 2 Lead. Cas. Eq., 4th Am. ed., 1806, I Keener 12, 1 Scott 236, p. 208. Pennell v. Defl'ell, 4 De Gex, :M. & G. 372, 388, p. 601. Pennoyer v. Neff, 95 U. S. 714, p. 207. Pennoyer v. Willis, 26 Oreg. 1, 36 Pac. 568, 46 Am. St. Rep. 594, p. 304. Penny v. Martin, 4 Johns. Ch. 566, 569, 1 Scott 454, p. 429. Pennybacker v. Laidley, 33 W. Va. G24, II S. E. 39, 3 Keener 493, p. 454, 482, 485. Pensacola v. Lehman, 57 Fed. 324, 330, 13 U. S. App. 411, 6 C. C. A. 349, p. 43. People V. Canal Board, 55 N. Y. 390, 1 Keener 100, p. 822. People v. Chicago, 53 111. 424, 428. p. 98. People's Bank v. Bogart, 81 N. Y. 101, 108, 37 Am. Rep. 481, 3 Keener 575, p. 464, 467, 468. People's Nat. Bank v. Marve, 191 U. S. 272, 24 Sup. Ct. 68, 107 Fed. 570, p. 180, 824. Percival v. Harger. 40 Iowa, 286, p. 455. Perkins v. Ede, 16 Beav. 193, 1 Ames Eq. Jur. 247, 2 Scott 376, 2 Keener 1128, p. 905, 906. Perkins v. Gibson, 51 Miss. 699, 24 Am. Rep. 644, p. 750. Perkins v. Partridge, 30 N. J. Eq. 82, Shep. 171, p. 444, 446. Perkins v. Sterne, 23 Tex. 561, 76 Am. Dec. 72, p. 714. Perkins' Appeal. 108 Pa. St. 314, 56 Am. Rep. 208, Shep. 206, p. 623. Perrot v. Perrot. 3 Atk. 94, 1 Keener 453, p. 827, 829. Perry v. Board of ^Missions, 102 N. Y. 99, 6 N. E. 116, Kirch. 135, p. 740. 984 TABLE OF CASES CITED. I'eters v. Dickinson, G7 N. H. 38f), 32 Atl. 154, 2 Keener 733, p. 902. Peters V. Mortimer, 4 Ed\v. CJi. 2"!). ]). 497. Peters v. Turrell, 43 Minn. 473, 45 N. W. 867, 19 Am. St. Rep. 252, p. 747. Peterson v. Clark, 15 Johns. 205, Kirch. 412, p. 699. Peterson v. McCauley, (Tex. Civ. App.) 25 S. W. 826, p. 365. I'etty V. Petty, 4 B. Mou. 215, 39 Am. Dec. 501, p. 865. Peugh V. Davis, 96 U. S. 332, 24 L. ed. 775, Shep. 59, p. 701. Pfister V. Wade, 56 Cal. 43, p. 792. Pfolil V. Simpson, 74 N. Y. 137. p. 103. Pforr's Estate, In re, 144 Cal. 121, 77 Pac. 825. p. 680. Phalen v. CUark, 19 Conn. 421. 50 Am. Dec. 2.53, p. 476. Plielan v. Brady, 119 N. Y. 587, 2:5 N. E. 1109, 8 L. Pv. A. 211, p. 275, 276. Philadelphia Ball Club v. Lajoie, 202 Pa. St. 210, 90 Am. St. Pep. 627, 51 Atl. 973, 58 L. R. A. 227, p. 819. Pliillips V. Bergrer. 2 Barb. 608, 2 Keener 98, p. 882. I'hillips v. Ferguson, 85 Va. 509, 8 S. E. 241, 17 Am. St. Rep. 78, 1 L. R. A. 837, p. 489. Phillips V. Homfray, L. R. 6 Ch. 770, p. 467. Phillips V. Medbury, 7 Conn. 568, p. 489. Pliillips V. Phillips, 4 De Gex, F. & J. 208, 21.5, 216, 218, H. & B. 72. Ames Trusts 331, 1 Scott 333, 511, p. 195, 197, 314, 315, 339, 357, 371, 374, 377. Phillips v. Phillips, Hare, 471,' 1 Ames Eq. Jur. 449, p. 918. Phillips V. Pullen, 45 N. J. Eq. 5, 16 Atl. 9, H. & B. 308, p. 482. 483. Phillips V. Sylvester, L. R. 8 Ch. 173, 2 Keener 356, p. 163. Phillips' Estate, In re, 205 Pa. St. 515, 55 Atl. 213, 97 Am. St. Rep. 746. p. 324, 325. Phinizy v. Guernsey, 111 Ga. 346, 78 Am. St. Rep. 207, 36 S. E. 796, H. & B. 671. Phipps V. Lovegrove, L. R. 16 JOq. 80, p. 622. Phoenix Ins. Co. v. Schultz, 80 Fed. 337, 25 C. C. A. 453, p. 809. Phyfe V. Warden, 5 Paige, 268, 28 Am. Dec. 430, p. 600. Pickard v. Sears, 6 Ad. & E. 469, 474, p. 392. Pickering v. Bishop of Ely, 2 Younge & C. Ch. 249, p. 886. Pico V. Cohn, 91 Cal. 129, 25 Am. St. Rep. 159, 25 Pac. 970, 27 Pac. 537. 13 L. R. A. 336, p. 854. Pico V. Columbet, 12 Cal. 414, 73 Am. Dec. 550, p. 919. Pidding v. How, 8 Sim. 477, Lewis 125. p. 840. Pierce v. Boston Sav. Bank, 12!) Mass. 425, 37 Am. Rep. 371, p. 668. Pierce v. Emeiy, 32 N. H. 484, Kirch. 80. p. 771. Pierce v. Equitable Life Assur. Soc, 145 Mass. 56, 12 N. E. 858, 3 Keener 929, p. .918. Piggott V. Stratton, 1 De Gex, F. & .7. 33, 49, p. 445. Pike V. Fitzgibbon, L. R. 17 Ch. Div. 454, p. 636, 643, 650, 651. Pilcher v. Rawlins, L. R. 7 Ch. 259, L. R. 11 Eq. 53, p. 372. Pillow V. Southwest etc. Co., 92 Va. 144, 53 Am. St. Rep. 804, 23 S. E. 32, p. 868. Pillsworth V. Hopton, Ves. 51. 1 Scott 681. 1 Ames Eq. Jur. 488. 1 Keener 543, p. 842. Pincke v. Curtis, 4 Bro. C. C. 329, 331, 2 Scott 428, p. 897, 899, 900. Pine Mt. Iron & Coal Co. v. Bailey. 9^ Fed. 258, 36 C. C. A. 229, p. 303. Pinkerton v. INIanchester etc. R. R. 42 K. H. 424, p. 327. Pioneer Land Co. v. Maddux, 109 Cal. 633. 50 Am. St. Rep. 67, 42 Pac. 295. p. 873. Piper V. Hoard, 107 ^'. Y. 73, 13 N. S. 626, 1 Am. St. Rep. 785, 789, p. 462. Pironi v. Corrigan, 47 N. J, Eq. 135, 20 Atl. 218, p. 522. Pitcher v. Hennessey, 48 N. Y. 415, 2 Keener 65, p. 419. TABLE OF CASKS CITED. 985 Pitts V. Rhode Island Hospital Trust Co., 21 R, I. 544, 79 Am. St. Rep. 821, 45 Atl. 553, 48 L. R. A. 783, p. 784. Pittsburg INlin. Co. v. Hpooner, 74 Wis. 307, 17 Am. St. Rep. 149, 42 N. W. 259, p. 619. Pi.xley V. Huggins, 15 Cal. 127, 2 Ames Eq. Jur. 153, p. 874, 87G. Piatt V. Threadgill, 80 Fed. 192, p. 854. Platte Val. State Bk. V. National etc. Assn, 155 III. 250, 40 N. E. 621, 2 Ames Eq. Jur. 29, p. 795, 797. Plenderleith, In re, [1893] 3 Ch. 332. p. 785. Plj'mpton V. Malcolmson, L. R. 20 Eq. 37, 1 Ames Eq. Jur. 632, p. 836. Pocahontas Light & Water Co. v. Browning, 53 W. Va. 436, 44 S. E. 207, p. 393. Poe V. Di.xon, 60 Ohio St. 124, 54 N. E, 80, 71 Am. St. Rep. 713, p. 711, 712. Poe V. Paxton, 26 W. Va. 607, p. 319. Pokegama S. P. L. Co. v. Klamath R. L. & I. Co., 96 Fed. 34, 55, p. 225. Polhemus V. Holland Trust Co., 59 N. J. Eq. 93, 45 Atl. 534, p. 65. Pollard V. Photographic Co., 40 Cli. D. 345, 1 Keener 76, p. 816, 839. Pollock, In re, L. R. 28 Ch. Div. 552, 556, p. 249. Pollock V. Lester, 11 Hun 837, 1 Keener 837. Pollock V. National Bank, 7 N. Y. 274, 57 Am. Dec. 520, p. 907. I'ond V. Sheean, 132 111. 312, 23 N. E. 1018, 8 L. R. A. 414, 2 Keener 715, p. 902, 903. Pope V. Cole, 55 N. Y. 124, 14 Am. Rep. 198, p. 191. Pope V. Dafray, 176 111. 478, 52 N. E. 58, p. 003. Poi)ejoy, In re, 26 Colo. 32, 55 Pac. 1083, 77 Am. St. Rep. 222, p. 64S. Port Clinton R. R. v. Cleveland etc, R. R., 13 Oliio St. 544, 549, 556, p. 889, 890. Porter V. Woodruff. 36 N. J. Eq. 174, 185, H. & B. 296, p. 517, 615. Port To\\^lsend Xat. Bank v. Port TowTisend Gas & Fuel Co., 6 Wash. 597, 34 Pac. 155, p. 327. Post V. Mason, 91 N. Y. 539, 43 Am. Rep. 689, p. 519. Post V. Toledo, C. & St. L. R. Co., 144 Mass. 341, II N. E. 540, 59 Am. Kep. 86, Shep. 344, p. 77. Postlethwaite v. Rickman, L. R. 35 Cli. Div. 744, p. 81. Poston V. Balch, 69 Mo. 115, p. 475. Potter V. Ellice, 48 N. Y. 321, 2 Seott 415, p. 164. Potter V. Taggart, 59 Wis. 1, 10 N. W. 553, 632, 3 Keener 673. p. 470. Potter V. Titcomb, 22 Me. 300, p. 475. Potter's Appeal, 56 Conn. 1, 12 Atl. 513, 7 Am. St. Rep. 272, p. 452. Powell V. Elliot, L. R. 10 Ch. 424, p. 463. Powell V. Heisler, 16 Oreg. 412, 19 Pac. 109, p. 429. Powell V. Morisey, 98 N. C. 426, 2 Am. St. Rep. 343, 4 S. E. 185, p. 252. Powell V. Powell, 80 Ala. 11. p. 515. Powell V. Powell, [1900] 1 Ch. 243, p. 516. Powell V. Powis, 1 Younge & J. 159, 1 Keener 170, p. 104. Powell V. Riley, L. R. 12 Eq. 175, p. 603. Powell V. Smith, L. R. 14 Eq. 85, 90, p. 417. Powell V. Smith, 30 Mich. 451. Powell DuffrT^'n Coal Co. v. Tafi" Vale R'y Co.^ L. R. 9 Ch. 331, 1 Ames Eq. Jur. 79, p. 888. I'ower's Appeal, 125 Pa. St. 175, 17 Atl. 254, 11 Am. St. Rep. 882, 1 Scott 264, p. 401. Powys V. Mansfield. 3 :Mylne & C. 359, 374, 376, 6 Sim. 544, p. 247, 249. Pratt V. Douglas, 38 N. J. Eq. 516, p. 239. Pratt V. Northam, 5 [Mason, 95, 104, 105, Fed. Cas. No. 11,376, p. 96, 656. Pratt V. Taunton Copper Co., 123 ]\Iass. no, 25- Am. Rep. 37, p. 336. 907. Pratt V. Tuttle, 136 Mass. 233, Ames Trusts. .32. 3 Keener 928, p. 919. Pratt's Ex'r v. Xixon. 91 Ala. 192, 8 South. 751, p. 710. 986 TABLE OF CAS]:S CITED. Prentice v. Janssen, 79 N. Y. 478, 1 Scott 639, H. & B. 163, p. 677, 684, 685. Preston v. Kindrick, 94 Va. 760, 64 Am. St. Rep. 777, 27 S. E. 588, p. 855. Prewitt V. Trimble, 92 Ky. 176, 36 Am. 8t. Rep. 586, 17 S. ^y. 356, H. & B. 287, p. 454. Price V. Dyer, 17 Ves. 350, 2 Scott 266, p. 434. Price V. Krasuoff, 60 S. C. 172, 38 S. E. 413, p. 550. Price V. Macauley, 2 De Gex, M. & G. 339, 346, p. 455, 459. Price V. McDonald, 1 Md. 403, 412, 54 Am. Dec. 657, p. 264. Price V. Stratton, (Fla.) 33 South. 644, p. 178. Pride v. Andrews, 51 Ohio St. 405, 38 • X. E. 84, p. 185. Priest V. Rice, 18 Mass. (1 Pick.) 164, 11 Am. Dec. 156, p. 342. Primmer v. Patten, 32 111. 528, p. 78. Prince Albert v. Strange, 1 Macn. & G. 25, 1 Hall & T. 1, 2 De Gex, & S. 652, p. 839. Pringle v. Dunn, 37 Wis. 449, 460, 461, 464, 465-467, 19 Am. Rep. 772, H. & B. 92. p. 262, 263, 267, 281, 293, 294, 306, 364, 365. Prioleau V. United States and Andrew Johnson, L R. 2 Eq. 659, p. 77. Pritchard v. Elton, 38 Conn. 434, Kirch. 458, p. 698. Probasco v. Johnson, 2 Disn. 96, 98, p. 756. Probert v. McDonald. 2 S. Dak. 495, 51 N. W. 212, 39 Am. St. Rep. 796, p. 98. Procter v. Cooper, 2 Drew. 1, 18 Jur. 444, 1 Jur., N. S., 149, p. 289. Proctor V. Thrall, 22 Vt. 262, 2 Ames Eq. Jur. 270, p. 416. Prospect Park & C. I. R. R. Co. v. Coney I. & B. R. R. Co., 144 N. Y. 152, 39 N. E. 17, 26 L. R. A. 610, 1 Ames Eq. Jur. 83, H. & B. 641, p. 890, 895. Prosser v. Rice, 28 Beav. 68, 74, p. 260. Prout V. Roby, 15 Wall. 471, 21 L. ed. 58, p. 638, 639. Provisional Municipality of Pensacola V. Lehman, 57 Fed. 324, 331, 13 U. S. App. 411, p. 43. Prudential Ass. Co. v. Knott, L. R. 10 Ch. 142, 1 Keener 53, Lewis 314, p. 845. Prudential Ass. Co. v. Thomas, L. R. 3 Ch. 74, 1 Keener 287, p. 790, 791, 797. Pry or v. Adams, 1 Coll. 382, 1 Am. Dec. 533, p. 94. Pugh V. Highley, 152 Ind. 252, 53 N. E. 171, 71 Am. St. Rep. 327, 44 L. R. A. 392, p. 343. Pullman Palace Car Co. v. Central Transportation Co., 65 Fed. 158, 3 Keener 870, p. .503. Pulsford V. Richards, 17 Beav. 87. 94. 95, 96, 2 Scott 661, p. 453, 455, 462. Pulvertoft V. Pulvertoft, 18 Ves. 84, 86, p. 321, 533. Purcell V. Miner, 4 Wall. 513. 18 L. ed. 435, 2 Scott 206, Shep. 272, p. 902. Purdy V. Huntington. 42 N. Y. 334, 1 Am. Rep. .532, p. 351. Pusey V. Desbouverie, 3 P. Wms. 315, 320, 3 Keener 2, 1 Scott 430, p. 424. Pusey V. Pusey, 1 Vern. 273, 1 Lead. Cas. Eq. 1109, 1114, 1117. H. & B. 573, 1 Scott 86, Shep. 278, p. 67, 882. Pye, Ex parte, 18 Ves. 140, 151, 152, 154, 2 Lead. Cas. Eq., 4th Am. ed., 741, Ames Trusts 123, p. 246, 247, 249, 558, 559. Pylant v. Reeves, 53 Ala. 132, 25 Am. Rep. 605, p. 749. Pym V. Lockyer, 5 Mylne & C. 29, 34, 46. 48, p. 246, 247. Pyrke v. Waddingham, 10 Hare, 1, 1 Ames Eq. Jur. 269, 2 Scott 361, p. 895. Q. Quartz Hill etc. Co. v. Beall. L. R. 20 Ch. Div. 501, 507, Lewis 386. p. 845. R. Radford v. Carwile, 13 W. Va. 572, p. 642, 643. TABLE OF CASKS CITED. 987 Haeaser v. National Exchaufjfc Bank, 112 Wis. 591, 88 N. W. G18. 88 Am. St. Rep. 979, p. 7()7. Ragsdale v. Holmes, 1 S. C. 91, p. 072. Rakestraw v. Lanier, 104 Ga. 188, 30 S. E. 735, 69 Am. St. Rep. 154, H. & B. 310, p. 491. Ralston v. Turpin, 25 Fed. 7, 18, af- firmed, 129 U. S. 663, 9 Sup. Ct. 420, p. 518, 521. Ramshire v. Bolton, L. R. 8 Eq. 294, p. 471. Randall V. Lingwall, 43 Oreg. 383, 73 Pac. 1, p. 278. Randle v. Carter, 62 Ala. 95, p. 805. Randolph v. Webb, 116 Ala. 135, 22 Sovith. 550, p. 361. Rankin v. Coar, 46 N. J. Eq. 566, 22 Atl. 177, 11 L. R. A. 661, p. 279. Rapps V. Gottlieb, 142 N. Y. 164, 36 N. E. 1052, affirming 67 Hun, 115, 22 N. Y. Supp. 52, p. 330. Raritan Waters Co. v. Veghte, 21 N. J. Eq. 463, 478, 19 N. J. Eq. 142, p. 273. Rau V. Von Zedlitz, 132 Mass. 164, 3 Keener 784, 1 Scott 487, p. 510. Ravenswood, S. & G. R'y Co. v. Wood- yard. 46 W. Va. 558, 33 S. E. 285, p. 605. Rawlins v. Wickham, 3 De Gex & J. 304, p. 453. Raymond v. Flavel, 27 Oreg. 219. 40 Pac. 158, p. 262, 267. Rayner v. Preston, L. R. 18 Ch. D. 1, 1 Ames Eq. Jur. 229, 2 Scott 458, p. 163. Read v. Mosby, 87 Tenn. 759, 11 S. W. 940, 5 L. R. A. 122, p. 511. Rpade v. Livingston, 3 Johns. Ch. 481, 8 Am. Dec. 520. p. 638. Redfield v. Gleason, 61 Vt. 220. 17 Atl. 1075, 15 Am. St. Rep. 889, p. 432. Redgrave v. Kurd, L. R. 20 Ch. Div. 1, 13. 14, 2 Keener 896, Shep. 173. p. 456. 459, 460. Red River Val. L. & I. Co. v. Smith, 7 X. Dak, 236, 74 N. W. 194, p. 277. Reed v. Dickerman, 12 Pick. 145. 146, 149, H. & B. 134, p. 233, 235, 236. Reed v. Equitable F. & M. Ins. Co., 17 R. I. 785, 24 Atl. 833, 18 L. R. A. 4!)6, p. 303. Reed v. HoUiday, 19 Fed. 325, p. 838. Reed v. Lukens, 44 Pa. St. 200, 84 Am. Dec. 425, 2 Scott 455, p. 163. Rees v. Berrington, 2 Ves, 540. 2 Lead. Cas. Eq., 4th Am. ed., 1867, 1870. 1896, p. 174. Rees V. C;ity of Watertown, 19 Wall. 121, H. & B. 5, Shep. 53, 1 Scott 260, p. 201. Reese v. Bank of Commerce, 14 Md. 271, 74 Am. Dec. 536, p. 330. Reese River Mining Co.. In re, L. R. 2 Ch. 604, 609, p. 449. Reeve v. Whitmore, 4 De Gex, J. & S. 1, 16-18, p. 771. Reeves v. Kimball, 40 X. Y. 299, .304, 311, p. 330. Reeves v. Morgan, 48 X. J. Eq. 415, 21 Atl. 1040, p. 408. Reid v. Shergold. 10 Ves. 370, 380, p. 410. Renals v. Cowlishaw, L. R. 9 Ch. D. 125, 1 Ames Eq. Jur. 159. 2 Scott 501. 2 Keener 512, p. 776. Renard v. Clink, 91 Mich. 1, 30 Am. St. Rep. 458, 51 N. W. 692, H. & B. 212, p. 424. Rennie v. Young, 2 De Gex & J. 136, p. 396. Republican Mountain Silver Mines v. Brown, .58 Fed. 647, 7 C. C. A. 412, 24 L. R. A. 776, p. 807. Revell v. People, 177 111. 468, 69 Am. St. Rep. 257, 52 N. E. 1052, 53 L. R. A. 790, p. 834. Revett V. Harvey, 1 Sim. & St. 502, p. 521. Reynell v. Spr\e. 1 De Gex, M. & G. 656, 660, 679. 688, 689, p. 185, 448, 455. 461. Reynolds v. Burgess Sulphite Fibre Co., 71 N. H. 332, 339. 341-345, 346, 51 Atl. 1075, 57 L. R. A. 949. 93 Am. St. Rep. 535. 544-549, 1 Scott 45, p. 73, 75, 77. Reynolds v. Crawfordsville Bank, 112 U. S. 410, 5 Sup Ct. 216, p. 140. Reynolds v. Everett, 144 N. Y. 189, 39 X. E. 72. 26 L. R. A. 591, Lewis 270, p. 846. 988 TABLE OF CASES CITED. Reynolds v. Pitt, 19 Ves. 134, 140, p. 214, 22G. Reynolds v. Sumner, 12G 111. 58, 9 Am. St. Rep 523, and note, 18 N. E. 334, 1 L. R. A. 327, p. 590. Rhodes v. Bate, L. R. 1 Ch. 252, p. 513. Ribou V. R. R. Cos., 16 Wall. 446, p. 630. Riee v. Boston etc. Aid Soc, 56 N. H. 191, p. 245. Rice V. Boyer, 108 Ind. 472, 58 Am. Rep. 01, 9 N. E. 420, p. 505. Rice V. Bunce, 49 Mo. 231, 234, 8 Am. Rep. 129, p. 392. Rice V. D'Arville, 162 :Mass. 559, 39 N. E. 180, 2 Keener 1071, p. 820. Rice V. Rice, 2 Drew. 1, 73 H. & B. 23, 1 Scott 334, p. 193, 311, 314, 315, 331. 339, 341, 748. Rice V. Rice, 36 Fed. 858, 860, p. 748. Rice V. Sanders, 152 Mass. 108, 24 N. E. 1079, 23 Am. St. Rep. 804, 8 L. R. A. 315, p. 712. Rice V. Williams, 32 Fed. 437, p. 839. Richards v. Collins, 45 N. J. Eq. 283, 14 Am. St. Rep. 726, 17 Atl. 831. p. 783. Richards v. Delbridge, L. R. 18 Eq. 11, 13, Ames Trusts 130, H. & B. 385, Shep. 204, p. 559, 561. Richards v. Dower, 64 Cal. 62, 28 Pac. 113, 1 Ames Eq. Jur. 517, p. 843. Richards v. Humpiireys, 15 Pick. 133, 135, 136, p. 250. Kichai'ds v. Jackson, 18 Ves. 472, 474, p. 80. Richards' Appeal, 57 Pa. St. 105, 98 Am. Dec. 202, 1 Ames Eq. Jur. 574, p. 832. Richardson v. Chickering, 41 X. H. 380, 77 Am. Dec. 769. p. 376. Richardson v. De Giverville, 107 Mo. 422, 17 S. W. 974, 28 Am. St. Rep. 426, p. 638. Richardson v. Greese, 3 Atk. 64, 65, 68, p. 242. Richardson v. Richardson, L. R. 3 Eq. 686, Ames Trusts 156. p. 559. 561. Eichi V. Chattanooga Brewing Co., 105 Tenn. 651, 58 S. W. 646, p. 98. Richmond v. Dubuque etc. R. R.," 33 Iowa, 422, 487, 488, p. 108. Ridden v. Thrall, 125 N. Y. 572, 26 N. E. 627, 21 Am. St. Rep. 758, 11 L. R. A. 684. p. 666, 667, 669. Rider v. Kidder, 10 Ves. 360, p. 590. Riegel v. American L. Ins. Co., 140 Pa. St. 193, 21 Atl. 392, 23 Am. St. Rep. 225. 11 L. R. A. 857, H. & B. 221, 3- Keener 191, p. 437, 439. Riesz's Appeal, 73 Pa. St. 485, 1 Ames Eq. Jur. 254, p. 906. Rigden v. Vallierj 3 Atk. 735, 2 Ves. Sr. 252, 257, 258, p. 189, 545. Riggs V. American Tract Society, 95 N. Y. 503, p. 505. Rigney v. Tacoma Light & W'ater Co., 9 Wa.sh. 576, 38 Pac. 147, 26 L. R. A. 425, 429, p. 401. Riley v. Bell, 120 Iowa, 618, 95 X. W. 170, p. 451. Riley v. Martinelli, 97 Cal. 575. 32 Pac. 599, 33 Am. St. Rep. 209, 21 L. R. A. 33, p. 343. Rindge v. Baker, 57 X. Y. 209, 15 Am. Rep. 475, H. & B. 578, p. 68, 915. Ringgold V. Ringgold, 1 Har. & G. 11, 18 Am. Dec. 250, p. 622. Ringo V. Binns, 35 U. S. (10 Pet.) 2()9. p. 518. Ripple V. Ripple, 1 RaAvle, 386, p. 264. Ritcliie V. (4riffiths, 1 Wash. 429. 25 Pac. 341, 22 Am. St. Rep. 155, 12 L. R. A. 384, p. 294. Riverdale Cotton Mills v. Alabama etc. Co., 198 U. S. 188, 25 Sup. Ct. 629, p. 851. Roane v. Baker, 120 III. 308, 11 X. E. 246. p. 345. Bobbins v. Larson, 69 Minn. 436, 72 X. W. 456, 65 Am. St. Rep. 572, p. 350. Roberson v. Rochester Folding Box Co., 171 X. Y. 538, 546. 64 X. E. 442, 89 Am. St. Rep. 828, 59 L. R. A. 478. 1 Scott 178, Lewis 354, p. 25, 29, 846. Roberts v. City of Louisville. 92 Ky. 95, 36 Am. St. Rep. 469, 17 S. W. 216, 13 L. R. A. 844, p. 822. Roberts v. Doan, ISO 111. 187, 54 X. E. 207, p. 340. Robertson v. Cooper, 1 Ind. App. 78, 27 X. E. 104, p. 330. TABLE OF CASKti CITED. 989 Robertson v. Staed, 135 .Mo. 135, 58 Aiu. .St. Hci). 5()9, 3() S. VV. (ilO, 33 L. K. A. 203, p. 811. Robertson v. Wheeler, 102 111. 5«(J. 44 X. E. 870, p. 300. Robinson v. City of Wilmington, 65 Fed. 85G, 13 C. C. A. 177, 25 U. 8. . App. 144, p. 823. Robinson V. Dickey, 143 Ind. 205, 52 Am. St. Rep. 417, 42 N. E. 679, p. 68, 870. Robinson v. Geldard, 3 Macn. & G. 735, 744, 745, p. 660. Robinson v. Holt, 39 X. H. 557, 75 Am. Dec. 233, p. 528. Robinson v. Litton, 3 Atk. 209, 1 Keener 436, p. 829. Robinson v. Lord Byron, 1 BrowTi Cli. 588, 1 Ames Eq. Jur. 566, 1 Keener 836, p. 848. Robinson v. Pickering, L. R. 16 Ch. Div. 371, 660, p. 817. Robinson v. Pierce, 118 Ala. 273, 72 Am. St. Rep. 160, 24 South. 984, 991, 45 L. R. A. 66, p. 596, 597. Robinson v. Robinson, 19 Beav. 494, p. 684. Robinson v. Robinson, 1 De Gex, }>l. & G. 247, 254, 257, Ames Trusts 495, p. 613, 614, 615, 617, 620. Robinson v. Suburban Brick Co., ( C. C. A.) 127 Fed. 804, p. 491. Robinson v. Wall, 10 Beav. 61, 2 Phill. Ch. 372, p. 493. Robinson v. Wheelright, 6 De Gex, M. & G. 535, 546, 21 Beav. 214, p. 644. Robinson v. Williams, 22 X. Y. 380, Kirch. 274, p. 703. Rol)son V. Doyle, 191 HI. 566, 61 X. E. 435, p. 73, 80. Robson V. Flight, 4 De Gex, J. & S. 608, p. 607. Roby V. Bismarck Xat. Bank, 4 N. Dak. 156, 59 X. W. 719, 50 Am. St. Rep. 633, p. 345. Roby V. Colehour, 135 111. 300, 25 X. E. 777. p. 513. Rochester v. Levering, 104 Ind. 562, 4 X. E. 203, p. 517. Rochester Distilling Co. v. Rasey, 142 X. Y. 570, 37 X. E. 632, 40 Am. St. Rep. 637. p. 769. Rock Island & P. R. Co. v. Dimick, 144 111. 628, 32 X. E. 291, 19 L. R. A, 105, p. 892. Rodgers v. Marshall, 17 Ves. 294, p. 252. Rodick V. Gandell, 1 De Gex. M. & G. 763, p. 766. Rogers v. Challis, 27 Beav. 175, 1 Ames Eq. Jur. 61, 2 Scott 60, 2 Keener 66. p. 885. Rogers v. Ingham, L. R. 3 Ch. Div. 351, 356, 357, 3 Keener 75, Shep. 157, 2 Scott 572, p. 425, 426, 437. Rogers v. .Jones, 3 Ch. Div. 688, 689, H. & B. 131, p. 230, 240. Rogers v. Rogers, 17 R. I. 623, 24 Atl. 46, p. 64. Rogers v. Rogers, 67 S. C. 168, 45 S. E. 176, 100 Am. St. Rep. 721, p. 658. Rogers v. Tucker, 94 Mo. 346, 7 S. W. 414, p. 345. Rogers v. \^'iley, 14 111. 65, 56 Am. Dec. 491, p. 266. Rogers Locomotive Works v. Erie R. R., 20 X. J. Eq. 379, H. & B. 734, p. 848. Rogers Mfg. Co. v. Rogers, 58 Conn. 356, 20 Atl. 467, 18 Am. St. Rep. 278, 7 L. R. A. 779, 2 Keener 295, H. & B. 629, Shep. 294, p. 819, 886. Rohrschneider v. Knickerbocker Ins. Co., 76 X. Y. 216, 32 Am. Rep. 290, p. 447. Rolfe V. Gregorj', 4 De Gex, J. & S. 576, 579, p. 472, 476, 594. Rolfe V. Peterson, 2 Brown Pari. C, Tomlin's ed. 436, p. 220. Rolfe V. Rolfe, 15 Sim. 88, 2 Keener 218, p. 817, 818, 820. Roll V. Rea, .50 X. .1. Law, 264, 12 All. 905, p. 281. Rolland v. Hart. L. R. 6 Ch. 678. 681- 683, p. 307. Rolt V. Lord Somerville, 2 Eq. Cas. Abr. 759, 1 Ames Eq. .Jur. 471, 1 Keener 435, 1 Scott 647, p. 828, 829. Romaine v. Chauncey, 129 X"". Y. 566, 26 Am. St. Rep. 544, 29 X. E. 820, 14 L. R. A. 712, p. 910. Romaine v. Hendrickson, 27 X^. J. Eq. 162, p. 515. Roman v. Mali, 42 Md. 513, p. 475, 990 TABLE OF CASES CITED. Romanoff Land & Min. Co. v. Cam- eron, 137 Ala. 214, 33 South. 864, p. 461. Hooke's Case, 5 Coke, 99b, p. 204. Rooney v. Michael, 84 Ala. 585, 4 South. 421, p. 132. Root V. L. S. & M. S. R. Co., 105 U. S. 189, 26 L. ed. 975, Lewis 13, p. 837. Rorer Iron Co. v. Trout, 83 Va. 397, 419, 2 S. E. 713, 5 Am. St. Rep. 285, p. 275, 377, 378. Roscarrick V. Barton, 1 Cas. Chan, 217, 1 Scott 32, p. 688. Rose V. Harden, 35 Kan. 106, 57 Am. Rep. 145, 10 Pae. 554, p. 518. Rosenberg v. Frank, 58 Cal. 387, p. 670, 676. Ross V. Union Pac. R'y, 1 Woolw. 26, 36, Fed. Cas. No. 12,080, 2 Scott 05, 2 Keener 145, p. 887. Rothery v. N. Y. Rubber Co., 90 N. Y. 30, 1 Ames Eq. Jur. 567, p. 833. Rouse V. Merchants' Nat. Bank, 46 Ohio St. 493, 22 X. E. 293, 15 Am. St. Rep. 644, 5 L. R. A. 378, p. 595. Row V. Dawson, 1 Ves. Sr. 331, 2 Lead. Cas. Eq., 4th Am. ed., 1531, p. 758, 764. Rowley v. Bigelow, 12 Pick. 307, 23 Am. Dec. 607, p. 375. Royal Baking Powder Co. v. Royal, 122 Fed. 337, 58 C. C. A. 499, p. 840. Ruckman v. Decker, 23 N. J. Eq. 283, p. 312. Rudd V. Lascelles, [1900] 1 Ch. 815, 1 Ames Eq. Jur. 256, p. 906. Rudy V. Austin, 56 Ark. 73, 35 Am. St. Rep.. 85, 19 S. W. Ill, p. 5.32. Ruple V. Bindley 91 Pa. St. 296, 299, Shep. 219, p. 769, 771. Rushmer v. Pol.sue, [1906] 1 Ch. 234, 1 Scott 746, p. 831. Russ V. Mebius 16 Cal. 350, p. 589. Russel V. Russel, 1 Brown Ch. 269, 1 Lead. Cas. Eq., 4th Am. ed., 931, Kirch. 110, p. 739, 755. Russell V. Clark's Ex'rs, 7 Cranch, 69, p. 94. t.ussell V. East Anglian R'y, 3 Ma en. & G. 104, p. 809. Russell V. Pistor, 7 N. Y. 171, 57 Am. Dec. 509, p. 385. Russell V. Russell, 129 Fed. 434, p. 523. Russell V. Tate, 52 Ark. '541, 20 Am. St. Rep. 193, 13 S. W. 130, 7 L. R. A. 180, p. 822. Russell V. Wakefield Water W. Co., L R. 20 Eq. 474, 479, 481, p. 030. Rust V. Conrad, 47 Mich. 449, 41 Am. Rep. 720, 11 X. W. 265, 1 Ames Eq. .lur. 435, 2 Scott 144, p. 893. Rust V. Ware, 6 Gratt. 50, 52 Am. Dec. 100, p. 854. Rutherford v. Haven, 11 Iowa 587, 1 Ames Eq. Jur. 342, p. 898. Rutherford v. Jones, 14 Ga. 521, 60 Am. Dec. 055, p. 867. Rutland Electric L. Co. v. Bates, 68 Vt. 579, 54 Am. St. Rep. 904, 35 Atl. 480. p. 619. Ryall V. Rowles, 1 Ves. Sr. 348, 1 Atk. 165, 2 Lead. Cas. Eq., 4th Am. ed., 1533, J 579. p. 324. Ryall V. Ryall, 1 Atk. 59, p. 591. Ryan v. Cudahy, 157 111. 108, 48 Am. St. Rep. 305, 41 X. E. 700, 49 L. R. A. 353. Ryan v. Dox, 34 X. Y. 307, 90 Am. Dec. 696, H. & B. 488, p. 003. Ryan v. Kingsberry, 88 Ga. 361, 14 S. E. 596, p. 809. Ryan v. Maxey, 14 Mont. 81, 35 Pac. 515. p. 911. Ryan v. Mutual Tontine etc. Assn. [1893] 1 Ch. 116, 2 Keener 179, p. 888. Ryder v. Bentham, 1 Ves. Sr. 543, 1 Ames Eq. Jur. 545, 1 Keener 835, p. 8.34. S. Sabin V. Anderson, 31 Oreg. 487, 49 Pac. 870, p. 911. Sable V. Maloney, 48 Wis. 331, 4 X. W. 479, 2 Ames Eq. Jur. 310, p. 431, 859. Saccharin Corporation v. Chemicals & Drugs Co., [1900] 2 Ch. 550, p. 80. Sackvill V. Aylesworth, 1 Vem. 105, 2 Ames Eq. .Jur. 105. p. 84. SafTold V. Wade's Ex'r, 51 Ala. 214, p. 372. Saflford v. Ensign Mfg. Co., (C. C. A.) 120 Fed. 480, 483, p. 93. TABLE OF CASKS CITED. 991 SaflFron etc. Soc. v. Rayner, L. R. 14 Ch. Div. 406, 409, 415, p. 302, 305. St. Aubyn v. Smart, L. R. 5 Eq. 183, 3 Ch. 646, 650, p. 471. St. James' Orphan Asylum v. Shelby, 60 Nebr. 796, 84 N. W. 273, 83 Am. St. Rep. 553, p. 579. St. Jo. Mfg. Co. V. Daggett, 84 111. 556, p. 398. St. Joseph & D. C. R. R. v. Smith, 19 Kan. 225, 231, p. 809. St. Louis, K. & S. R. Co. v. Wear, 135 Mo. 230, 33 L. R. A. 341, 36 S. W. 357, 658, H. & B. 823, p. 808. St. Paul Trust Co. v. Mintzner, 65 Minn. 124, 60 Am. St. Rep. 444, 67 X. W. 657, 32 L. R. A. 756, p. 806. Salomon v. Hertz, 40 X. J. Eq. 400, 2 Atl. 379, 1 Ames Eq. Jur. 128, p. 817, 820. Salter v. Salter, 80 Ga..l78, 4 S. E. 391, 12 Am. St. Rep. 249, p. 646. San Antonio Nat. Bank v. Bamberger, 77 Tex. 48, 13 S. W. 959, 19 Am. St. Rep. 738, p. 446. Sanborn v. Doe, 92 Cal. 152, 23 Pac. 105, 27 Am. St. Rep. 101, p. 761. Sanborn v. Kittredge, 20 Vt. 632, 636, 50 Am. Dee. 58, p. 93. Sanders v. Soutter, 136 N. Y. 97, 32 N. E. 638, p. 96, 97. Sanders v. Steele, 124 Ala. 415, 26 South. 882, p. 590. Sanders v. Vautier^ 4 Beav. 115, Ames Trusts, 454, p. 553. Sanders v. Village of Yonkers, 63 N. Y. 489, p. 874. Sanford v. Head, 5 Cal. 297, 298, 299, p. 672. Sanquirico v. Benedetti, 1 Barb. 315. 2 Scott 85. p. 819. Santley v. Wilde. [1899] 1 Ch. 747 Kirch. 488, p. 698. Sarles v. McGee, 1 N. Dak. 365, 48 N. W. 231, 26 Am. St. Rep. 633, p. 297. Satterfield v. I\Ialone, 35 Fed. 445, 1 L. R. A. 35, p. 303. Saull V. Browne, L. R. 10 Ch. 64. 2 Ames Eq. Jur. 100. p. 851. Saunders v. Dehew, 2 Vern. 270, 271, Ames Trusts 289. p. 319, 347, 373. Saunders v. Xevil. 2 Vern. 428, Ames Trusts 449, p. 610. Savage v. Foster, 9 Mod. 35 1 Scott 576, p. 376, 504, 505. Savage v. Hall, 12 Gray, 363, p. 383. Savage v. Murphy, 34 X. Y. 508, 90 Am. Dec. 733, 8 Bosw. 75, p. 604. Savage v. Savage, 19 Oreg. 112, 20 Am. St. Rep. 795, 23 Pac. 890, p. 867. Savannali Xat. Bank v. Haskins, 101 :\Iass. 370, 3 Am. Rep. 373, p. 408. Savile's Case, Cas. temp. Talb. l(i, 1 Ames Eq. Jur. 472, p. 829. SaA\yer, In re, 124 U. S. 200, 8 Sup. Ct. 487, 31 L. ed. 402, Shep. 5, p. 822, 851. Sawj-er v. White, 122 Fed. 223, (C. C. A.) p. 506. Saxon L. Ins. Co., In re, 1 De Gex, J. & S. 29, 2 Johns. & H. 408, 2 Ames Eq. Jur. 265, p. 424. Say v. Barnes, 4 Serg. & R. 112. 8 Am. Dec. 679, p. 521. Scanlon v. Grimmer, 71 Minn. 351, 70 Am. St. Rep. 326, 74 X. W. 146, p. 498, 712. Schafer v. Reilly, 50 N. Y. 61, 67. 68, p. 332. Scheerer v. Cuddy, 85 Cal. 271. 24 Pac. 713, p. 279. Schell, Matter of, 53 X. Y. 263, 265, H. & B. 543, p. 623. Sohelling v. Mullen, 55 Minn. 122. 56 X. W. 586, 43 Am. St. Rep. 475, p. ;}30. Schlessinger v. Mallard, 70 Cal. 326, 11 Pac. 728, p. 587. Schmidt v. Louisville & X. R. Co., 101 Ky. 441, 41 S. W. 1015, 38 L. R. A. S09, p. 890. Schmucker v. Sibert. 18 Kan. 104, 26 Am. Rep. 765, p. 713. Schneider v. Sellers, (Tex.) 84 S. W. 417, p. 370. Schoiield v. School Dist. 27 Conn. 499. 1>. 822. Schofield V. Ute Co., 92 Fed. 269. 34 C. C. A. 334, p. 911. Scholle V. Scholle, 101 X. Y. 172. 4 X. E. 334, p. 515. School District Xo. 1 v. Weston, 31 Mich. 85, p. 793. School District Xo. 82 v. Taylor, 19 Kan. 287, p. 348. 992 TAULE OF CASES CITED. Schott V. Dosh, 49 Nebr. 187, 68 N. W. 346, 59 Am. St. Rep. 531, p. 364. Schreiber v. Carey, 48 Wis. 208, 4 N. W. 124. p. 805. Schuyler v. Curtis, 147 N. Y. 434, 49 Am. St. Rep. 671, 42 N. E. 22, 31 L. R. A. 286, Lewis 344, reversing 27 Abb. X. C. 387, 15 N. Y. Supp. 787, 64 Hun 594, 19 N. Y. Supp. 264, 1 Keener 93, p. 846. Schuyler Steam Towboat Co., In re, 136 X. Y. 169, 32 X. E. 623, 20 L. R. A. 391, p. 808. Schwoerer v. Boylston Market Ass'n, 99 Mass. 285, 2 Keener 483, p. 775. Scofield. V. City of Lansing, 17 Mich. 437, p. 115. Scotch Lumber Co. v. Sage, 132 Ala. 598, 90 Am. St. Rep. 932, 32 South. 607, p. 297. Sc-ott V. Freeland, 7 Smedes & M. 409, 45 Am. Dec. 310, p. 520. Scott V. Hanson, 1 Sim. 13, 1 Russ. & M. 128, 1 Ames Eq. Jur. 353, 2 Keen- er 887, 2 Scott 240. p. 457. Scott V. Neely, 140 U. S. 106, 11 Sup. Ct. 712. 714, 35 L. ed. 358, p. 140, 142. Scott V. Onderdonk, 14 X. Y. 9, 67 Am. Dec. 106, 2 Ames Eq. .Tur. 147. 1 Keener 331, p. 875. 876. Scott V. Rayment. L. R. 7 Eq. 112, 2 Keener 75, p. 885. Scott V. Tyler, 2 Brown Ch. 431. 2 Dick. 712, 2 Lead Cas. Eq., 4th Am. ed., 429, 475, 478-480, 48-3-485, 486- 493, 494-499, p. 488, 489. Screven v. Clark, 48 Ga. 41, p. 809. Scribner v. Collar, 40 Mich. 375, 29 Am. Rep. 541, p. 517. Scudamore v. Scudamore, Prec. Ch. 543, 1 Scott 315, 596, 3 Keener 947, p. 678, 682. Seagrave v. Seagrave, 13 Ves. 439, 443, p. 644. Sears v. Hotchkiss, 25 Conn. 171, 65 Am. Dec. 557, p. 633. Seavey v. Drake, 62 X". H. 393, 1 Ames Eq. .Jur. 308. p. 904. Seeley v. Bacon, (X. .T. Eq.) 34 Atl. 139, 3 Keener 139, p. ,340, 429. Seeley v. Jago, 1 P. Wms. 389, 1 Scott 635, p. 684, 685. Selby V. Alston, 3 Ves. 339, p. 58, 379. Selby V. Case, 87 Md. 459, 39 Atl. 1041, p. 173. Sell V. West, 125 Mo. 621, 46 Am. St. Rei). 508, 28 S. W. 969, p. 24. Sellon V. Braden, 13 Iowa, 365. p. 191. Sengf elder v. Hill, 21 Wash. 371, 58 Pac. 250, p. 356. Sen^enderfer v. Kemp, 83 Mo. 581, p. 263. Sercomb v. Catlin, 128 111. 556, 15 Am. St. Rep. 147, 21 X. E. 606, p. 809. Seton V. Slade, 7 Ves. 265, 273, 2 Scott 332, p. 697, 898, 899. Sewall V. Boston Water Works, 4 Allen, 277, 81 Am. Dec. 701, p. 336. Sexton V. Wheaton, 8 Wheat. 229. 230, 1 Am. Lead. Cas., 4th Am. ed. 17, .50, 51, p. 531. Seymour v. Cushway, 100 Wis. 580, 7 X. W. 769, 69 Am. St. Rep. 957, p. 604. Seymour v. Delancey, 6 Johns. Ch. 222, 224, 225, 3 Cow. 455, 15 Am. Dec. 270, 2 Keener 772, p. 482, 483. Seymour v. McKinstry, 106 X. Y. 230. 238, 12 X. E. 348, 14 X. E. 94, p. 367. Shaeffer v. Chambers, 6 X. .T. Eq. 548, 47 Am. Dec. 211, Kirch. 548. p. 718, 719. Shahan v. Swan, 48 Ohio St. 25. 29 Am. St. Rep. 517, 26 N. E. 222, 2 Scott 219, 2 Keener 726, p. 903. Shappirio v. Goldberg, 192 U. S. 232. 24 Sup. Ct. 259, p. 475. Sharon v. Gager, 46 Conn. 189, 2 Scctt 713, p. 509. Sharon v. Hill, 20 Fed. 1, 36 Fed. 337, 2 Ames Eq. Jur. 161, p. 860, 861. Sharon v. Tucker, 144 U. S. 542, 12 Sup. Ct. 720, 1 Keener 392, Shep. 47. Sharp V. Ropes. 110 Mass. 381, 2 Keener .504, p. 776. Sharp V. Wightman. 205 Pa. St. 285, 54 Atl. 888, p. 244. Sharpe v. Foy. L. R. 4 Ch. 35, 37, 40, 41, p. 365, 376. .504. TA15LK or CASES CITED. 993 Sharpies v. Adams, 32 Beav. 213, 2IU, p. 347. Shattock V. Shattock, L. K. 2 Eq. 182, p. 650. Shaw V. Coster, 8 Paige, 339, 35 Am. Dec. 690, 1 Keener 235, p. 790, 794, 797, 798. Shaw V. Foster, L. R. 5 H. L. 321, p. 753. Shea's Appeal, 121 Pa. St. 302, 15 Atl. 629, 1 L. R. A. 422, p. 514. Sheehan v. Hamilton, 2 Keyes, 304, 4 Abb. App. 211, p. 380. Slieffield Furnace Co. v. Witherow, 149 U. S. 574, 579, 13 Sup. Ct. 936, 37 L. ed. 853. p. 141. Sheffield Water Works v. Yeomans, L. R. 2 Ch. 8, 11. 2 Ames Eq. Jur. 67, 1 Keener 130, Shep. 39, p. 111. .Shelfer v. London EI. L. Co., [1895] 1 Ch. 287. 1 Ames Eq. Jur. 589. p. 832, 8.33. Shelton v. Piatt. 139 U. S. 595, 11 Sup. Ct. 646. 35 L. ed. 276, p. 823. Shepherd v. May, 115 U. S. 505, 6 Sup. Ct. 119, 29 L. ed. 456, p. 711. Sheppard v. McEvers, 4 Johns. Ch. 136, 8 Am. Dee. 561, p. 624. Sheriden v. Andrews, 49 N". Y. 478, p. 284. Sherman v. Fitch, 98 Mass. 59, 2 Ames Eq. Jur. 14. p. 874. Sherman v. Lewis. 44 Minn. 107, 46 N. W. 318, p. 232. Sherman v. Sherman, 4 Allen 392, p. 656. Sherrill v. Sherrill, 73 N. C. 8, p. 402. Sherrj' v. Perkins, 147 Mass. 212. 9 Am. St. Rep. 689, 17 N. E. 307. 1 Scott 766, 1 Keener 771, H. & B. 770, p. 846. Sherwood v. Sherwood, 45 Wis. 357, 30 Am. Rep. 757, p. 438. Shields v. Lozear, 34 X. J. L. 496, 3 Am. Rep. 256, Kirch. 728, p. 687, 692. Shipman v. Furniss, 69 Ala. 555, 44 Am. Rep. 528. p. 523. Shirley v. Goodnough, 15 Oreg. 642, 16 Pac. 871, p. 919. Shoemaker v. Hinze, 53 Wis. 116, 10 N. W. 86, Ames Trusts 29, p. 569. 63 Sliotwell V. Smitli, 20 N. J. Eq. 7!), p. 77. Shotwell V. Strube, 21 X. J. Eq. 31, I.. 82. Siireve v. Brereton, 51 Pa. St. 175, 180, p. 221. Shropshire Union Railways & Canal Co. V. Reg., L. R., 7 IL L. 496, Ames Trusts 300, p. 338. Shubrick v. Guerard, 2 Desaus. (S. C.) 616, 1 Scott 687, p. 844. Shute V. Shute, Prec. Ch. Ill, p. 864. Shuttleworth v. Greaves, 4 Mylne & C. 35, p. 664. Shuttleworth v. Laycock, 1 Vern. 244, 1 Scott 264, p. 178. Sichel V. Mosenthal, 30 Beav. 371. 2 Keener 72, p. 885. Sidenberg v. Ely, 90 X. Y. 263, 43 Am. Rep. 163, Kirch. 564, p. 719. Simmons v. Burlington, C. R. & X. R'y Co., 159 U. S. 278, 16 Sup. Ct. 1, 40 L. ed. 150, p. 732. Simmons v. Hendricks, 8 Ired. Eq. 84, 86. 55 Am. Dec. 439, p. 675. Simmons v. Oliver, 74 Wis. 633, 43 X. W. 551, H. & B. 524, p. 615. Simmons v. Palmer. 93 Va. 389, 25 S. E. 6, 3 Keener 393. p. 428. Simmons Creek Coal Co. v. Doran, 142 U. S. 417, 12 Sup. Ct. 239. 35 L. ed. 1063, 1 Scott 549. p. 199, 274, 279. Simmons Hardware Co. v. ^^ail)el. 1 S. Dak. 488, 36 Am. St. Rep. 755, 47 X. W. 418, 11 L. R. A. 267, H. & B. 817, p. 802, 817. Simpson V. Hinson. 88 Ala. 527. 7 South. 264, p. 266. Simpson v. Lord Tfowden, 3 iMylne & C. 97, 108, 2 Ames Eq. Jur. 124, 1 Keener 323, p. 850, 860, 875. Simpson v. Pearson, 31 Ind. 1, 5. 99 Am. Dec. 577, p. 399. Simpsoft V. Vaughan, 2 Atk. 31, 2 Scott 542, p. 191. Singer Mfg. Co. v. June Mfg. Co.. 163 U. S. 169, p. 840. Singer Sewing-Mach. Co. v. I'nion etc. Co.. 1 Holmes. 253, Fed. Cas. Xo. 12.904, 1 Ames Eq. Jur. 438, 2 Keener 255, p. 818, 893. 994 TABLE OF CASES CITED. Sinnett v. Herbert, L. R. 7 Ch. 232, p. 581. Sipley V Wass, 49 N. J, Eq. 463, 24 Atl. 233, p. 252. Skarf V. Soulby, 1 Macn. & G. 364, 374, p. 530. Skellinger's Ex'rs v. Skellinger's Ex'rs, 32 X. J. Eq. G59, H. & B. 442, p. 589. Skelton v. Skelton, 2 Swanst. 170. 1 Ames Eq. Jur. 473, 1 Keener 430, 1 Sfott 656, p. 827, 829. Skinner v. Dayton, 2 Johns. Ch. 526, 534, 535, 17 Johns. 339, 357, p. 214, 224. Skinner v. Juclson. 8 Conn. 528, 21 Am. Dec. 691. p. 81. Skipwith V. Strother, 3 Rand. 214. p. 499. Slack V. Blacky 109 Mass. 496. p. 78. Slaney v. Sidney, 14 Mees. & W. 800, 2 Ames Eq. Jur. 11, p. 800. Slanning v. Style, 3 P. Wnis. 334, 337-339, Ames Trusts 164, p. 638, 656. Slater v. Oriental Mills, 18 R. I. 352, 27 Atl. 443, H. & B. 466, p. 598. Slaughter's Adm'r v. Gerson, 13 Wall. 379, 2 Scott 721, p. 455, 458. Sleeper v. Davis, 64 N. H. 59, 6 Atl. 201, 10 Am. St. Rep. 377, p. 361. Slegel V. Herbine, 148 Pa. St. 236, 23 Atl. 996, 15 L. R. A. .547, p. 100. Slim V. Croucher, 1 De Gex, F. & J. 518, 523, 524, 525, 528, 2 Giff. 37, p. 471. Slingerland v. Slingerland, 39 Minn. 197, 39 N. W. 146, 2 Keener 701, p. 904. Slingsby v. Boulton, 1 Ves. k B. 334, 2 Ames Eq. Jur. 33, 1 Keener 216, p. 795, -797. Sloan V. Campbell, 71 :Mo. 387, 36 Am. Rep. 493, p. 750. Sloan V. Gibbes, 56 S. C. 480, 76 Am. St. Rep. 559, 35 S. E. 408, p. 914. Sloman v. Walter, 1 Bro^\^l Ch. 418, 2 Lead. Cas. Eq., 4th Am. ed., 2014, 2023, 2044, p. 170, 214. Slowey V. McMurray. 27 Mo. 113, 116, 72 Am. Dec. 251, p. 700. Smith, In re, 108 Cal. 115, 40 Pac. 1037, p. 239. Smith V. Allen, 1 N. J. Eq. 43, 21 Am. Dec. 33, p. 434. Smith V. Aykwell, 3 Atk. 566, 2 Ames Eq. Jur. 132, p. 860. Smith V. Bank of New England, 69 N. H. 254, 45 Atl. 1082, 2 Ames Cas. Eq. 79, p. 117, 124. Smith V. Bergengren, 153 Mass. 236, 26 X. E. 690, 10 L. R. A. 768, p. 217. Smith V. Bowen, 35 X. Y. 83, p. 568. Smith V. Burgess, 133 Mass. 513, p. 280. Smith V. Butler, 11 Oreg. 40, 4 Pac. 517, p. 439. Smith V. Cherrill, L. R. 4 Eq. 390, 395, p. 531. Smith V. Clark, 12 Ves. 477, p. 464. Smith V. Claxton, 4 :Madd. 484. 492. 1 Scott 625, 3 Keener, 979, p. 683. Smith V. Clay, 3 Brown Ch. 63S. 1 Scott 379, p. 198. Smith V. Collyer, 8 Ves. 89, 1 Scott 683, 1 Ames Eq. Jur. 489, 1 Keener 547, p. 842. Smith V. East India Co., 1 Phill. Ch. 50, p. 81. Smith V. Halkyard, 16 Fed. 414, p. 830. Smith V. Hatch, 46 X. H. 146, 1 Ames Eq. Jur. 277, p. 902. Smith V. Kay, 7 H. L. Cas. 750, 775, 779, p. 509, 513. Smith V. Leveaux, 2 De Gex, J. & S. 1, 3 Keener 913, p. 919. Smith V. Lucas, L. R. 18 Ch. Div. 531, p. 639. Smith V. Matthews, 3 De Gex, F. & J. 139, p. 568. Smith V. Newton, .38 111. 2.30, p. 396. Smith V. Richards, 13 Pet. 26, 36. 3 Keener 525, 2 Scott 652, p. 452, 453, Smith V. Roberts, 91 X. Y. 470, p, 382, 383. Smith V. Sands, 24 Fed. 470, p. 835. Smith V. Smith, 3 Atk. 304, p. 785. Smith V. Smith. L. R. 20 Eq. 500, 1 Ames Eq. Jur. 543, p. 834. Smith V. Smith, 148 Mass. 1, 18 X. E. 595, 2 Ames Cas. Eq. Jur. 64, p. 117. Smith V. Smith's .\dm'r, 92 Va. 696, 24 S. E. 280, p. 666. TABLE OF CASES CITED. 995 Smith V. TowTishend, 27 Md. 3G8, 92 Am. Dec. 637. j). .51(i. Smith V. Turner, Prec. Ch. 561, 1 Ames Eq. Jur. 282, p. 901. Smith V. White, L. E. 1 Eq. 626, p. 500. Smith V. Whitmore, 2 De Gex, J. & S. 297, p. 478. Smith V. Willard, 174 111. 538, 51 N. E. 835., 66 Am. St. Rep. 313, p. 373. Smith V. ^Yorster. 59 Kan. 640, 644, 54 Pac. 676, 68 Am. St. Rep. 385, 388, p. 287. Smith V. Yiile, 31 Cal. 180, 89 Am. Dec. 167, p. 300. Smithsonian Institute v. Meech, 169 U. S. 398, 18 Sup. Ct. Rep. 396, 42 L. ed. 793, p. 591, 592. Smithurst v. Edmunds, 14 N. J. Eq. 408, Kirch. 61, p. 769. Smoot V. Judd, 161 Mo. 673, 84 Am. St. Rep. 738, 61 S. W. 854, p. 854. Smythe v. Henn,^, 41 Fed. 715, p. 76. Sniythe v. Xew Orleans C. & B. Co., 34 Fed. 825, affirmed, 141 U. S. 656, 12 Sup. Ct. 113, p. 122. Sncll V. Atlantic Ins. Co., 98 U. S. 85, 3 Keener 80, p. 419. Snover v. Squire, (X. J. Eq. ) 24 Atl. 365, p. 326. Snowden v. General Dispensary, 60 Md. 85, p. 103. Snyder v. Grandstaff, 96 Va. 473. 31 S. E. 647, 70 Am. St. Rep. 863, p. 367, 374. Snyder v. Hopkins, 31 Kan. 557, 3 Pae. 367, 1 Ames Eq. Jur. 509, p. 844. Snyder v. Martin, 17 W. Va. 276, 41 Am. Rep. 670, p. 342. Snyder v. Partridge, 138 111. 173, 29 N. E. 851, 32 Am. St. Rep. 130, j.. 319. Snyder v. Robinson, 35 Ind. 311, 9 Am. Rep. 738, p. 712. Societe Generale de Paris v. Walker, 11 App. Cas. 20, affirming 14 Q. B. D. 424, p. 328. Sohier v. Burr, 127 Mass. 221, p. 580. CuG. Solinger v. Earlo. 82 N. Y. 393, 397. 399, H. & B. 527, p. 498, 500, 527. Sollory V. Leaver, L. R. 9 Eq. 22, p. 806. Soltau V. De Held, 2 Sim. N. S., 133. 1 Keener 665, 1 Scott 717, p. 831. Somerby v. Buntin, 118 Mass. 279, 287, 19 Am. Rep. 459, 2 Keener 78, p. 885. Sonley v. Clock Makers' Co., 1 Br. Ch. Cas. 81, Ames Trusts. 225. p. 567. Sopwith V. Mangham, 30 Beav. 235, 239, p. 238, 239. Sourwine v. Supreme Lodge, 12 Ind. App. 447, 452, 453, 54 Am. St. Rep. 531, .532, 536, 40 X. E. 646, 1 Scott 320, p. 44, 157, 164. Southard v. Curley, 134 X. Y. 148, 31 X. E. 330, 30 Am. St. Rep. 642, 16 L. R. A. 561, 3 Keener 460, 2 Scott 646, p. 431. Southerland v. Fremont, 107 X. C. 565, 12 S. E. 237, p. 361. Southern B. & L. Ass'n v. Anniston L. & T. Co., 101 Ala. 582, 29 L. R. A. 120, 15 South. 123, 46 Am. St. Rep. 138, p. 227. Southern Development Co. v. Silva, 125 U. S. 247, 8 Sup. Ct. 881, H. & B. 282, p. 446, 453, 457, 458. Southern R'y Co. v. Carnegie Steel Co., 176 U. S. 257. 20 Sup. Ct. 347. 44 L. cd. 458, p. 810. Southern R'y Co. v. City of Asheville. 69 Fed. 359, p. 823. Soutliwestevn Brush etc. Co. v. La. etc. Co., 45 Fed. 893. Sowles V. Hall, 62 Vt. 247. 22 Am. St. Rep. 101. 20 Atl. 810, 2 Keener 1117, p. 899. Spain V. Hamilton, 1 Wall. 604, 624, p. 325. Sparks v. Company etc. of Liver])ool Water Works, 13 Ves. 428, 433. 434. p. 227. Sparks v. Woodstock Iron etc. Co.. 87 Ala. 294, 6 South. 195, p. 172. Spect v. Spect, 88 Cal. 437. 22 Am. St. Rep. 314, 26 Pac. 203, 13 L. R. A. 137, p. 695. Speer v. Craw-ter^ 2 Mqt. 410. 417, p. 866. Speight v. Gaunt. 22 Ch. Div. 727, on appeal, 9 App. Cas. (H. L.) 1. Ames Trusts 518, p. 611, 612. 996 TABLE OF CASES CITED. Speke V. Walrond, Toth. 155, p. 867. f^pence V. Har\'ev, 22 Cal. 337, 83 Am. Dec. 69, p. 495. Spielmann v. Kliest, 30 N. J. Eq. 199, 202, 206, p. 293. Spinning v. Sullivan, 48 Mich. 5, 11 N. W. 758, p. 330. Spirett V. Willows, 3 De Gex, J. & S. 293, 302, 303, p. 530, 532. Spooner v. Travelers' Ins. Co., 76 Minn. 311, 77 Am. St. Rep. 651, 79 X. W. 305, p. 911. Sporle V. Wliayman, 20 Beav. 607, 2 Keener 55, p. 884. Sprague v. West, 127 Mass. 471, 1 Keener 255, p. 795. Spread V. Morgan, 11 H. L. Cas. 588, p. 238, 239. Springhead Spin. Co. v. Riley, L. R. 6 Eq. 551, 1 Scott 763, Lewis 204, p. 846. Spurlock V. Bro\\Ti, 91 Tenn. 241, 18 S. W. 868, p. 416. Squire v. Harder, 1 Paige, 494, 19 Am. Dec. 446, p. 589. Stackpole v. Beaumont, 3 Ves. 89, 95, 96, p. 488. Stafford v. Fetters.. 55 Iowa, 484, 8 N. W. 322, H. & B. 191, 3 Keener 86, p. 419. Staflford v. Stafford, 1 De Gex & J. 193, 197, p. 399. Staines v. Sliore. 16 Pa. St. 200, 55 Am. Dec. 492, p. 493. Standard El. Co. v. Crane El. Co.. 56 Fed. 718, 6 C. C. A. 100, 1 Ames Eq. Jur. 663, p. 836. Stanford v. Hurlstone, L. R. 9 Ch. 116, 118, 119, 1 Keener 613, p. 843. Staniland v. Willott, 3 JIacn. & G. 664, 674-677. 680, p. 666, 669. Stanton v. Singleton, 126 Cal. 657, 59 Pac. 146, 47 L. R. A. 334, p. 889. S^apilton v. Stapilton, 1 Atk. 2, 2 Lead. Cas. Eq., and notes, 1675, 4th Am ed., p. 428. Starbird v. Cranston, 24 Colo. 20, 48 Pac. 652, p. 713. Stark V. Starr.s, 6 Wall. 402, p. 873. rstarkie v. Richmond, 155 Mass. 188, 29 N. E. 770, 1 Keener 871, p 534. State v. County Court of Saline Coun- ty, 51 Mo. 350, 11 Am. Rep. 454. p. 822. State v. Hall, 70 Miss. 678, 13 South. 39, p. 227. State v. Kittelle, 110 N. C. 560, 28 Am. St. Rep. 698, 15 L. R. A. 694, 15 S. E. 103, p. 302. State v. Lord, 28 Oreg. 498. 43 Pac. 471, 31 L. R. A. 473, p. 822. State v. McBride, 76 Ala. 51, p. 227. State v. Ohio Oil Co., 150 Ind. 21, 47 L. R. A. 627, 49 X. E. 809, 1 Scott 731, p. 830. State V. Ross, 122 Mo. 435, 25 S. W. 94T, 23 L. R. A. 534, p. 806. State V. Second Judicial Dist. Ct. 15 Mont. 324, 48 Am. St. Rep. 682, 39 Pac. 316, 27 L. R. A. 392, p. 806. State V. Superior Court, 8 Wash. 210, 35 Pac. 1087, 25 L. R. A. 354, p. 809. State V. Superior Court. 17 Wash. 12, 61 Am. St. Rep. 893, 48 Pac. 741, p. 822. State Bank v. Belk, (Xeb.) 94 X. W. 617, p. 911. State Bank v. Frame, 112 Mo. 502, 20 S. W. 620, p. 361. State of Georgia v. Stanton, 6 Wall. 10, 18 L. ed. 721, p. 822. Stead V. Mellor, L. R. 5 Ch. Div. 225, Ames Tinists 91, p. 571, 572. Stearns v. Perrin, 130 Mich. 456, 90 N. W. 297, p. 236. Stearns-Roger Co. v. Bro\\Ti, 114 Fed. 939, (C. C. A.), p. 837. Steedman v. Weeks, 2 Strob. Eq. 145, 49 Am. Dec. 660, p. 870. Stephens v. Board of Education, 79 X. Y. 183, 35 Am. Rep. 511, p. 476. Stephens v. Clay, 17 Colo. 489, 30 Pac. 43, 31 Am. St. Rep, 328, p. 727. Sternberg v. Wolff, 56 X. J. Eq. 389, 67 Am. St. Rep. 494, 39 Atl. 397, 39 L. R. A. 762, p. 807. * Sternberger v. McGovern, 56 N. Y. 12, 2 Keener 12.32. p. 906. Sterne v. Beck, 1 De Gex, J. & S. 595, 600, 601, 11 Week. Rep. 791, p. 218. TABLE OF CASES CITED. 997 Steriy v. Arden, I Johns. Ch. 261, 270, 12 Johns. 536, 1 Scott 502, p. 533, 534. Stetson V. Chicago & E. R. Co., 75 111. 74, 1 Ames Eq. Jur. 595, p. 824. Stevens v. Beekman, 1 Johns. Ch. 318. 1 Keener 553, 1 Scott 688, p. 843. Stevens v. Dennett, 51 N. H. 324, 330, 333, p. 389. Stevens v. Grand Central Min. Co., (C. C. A.) 133 Fed. 28, p. 199. Stevens v. Keating, 2 Ph. Ch. 333, 1 Ames Eq. Jur. 627, p. 836. Stevens v. Ludlum, 46 Minn. 160, 24 Am. St. Rep. 210, 48 N. W. 771, 13 L. R. A, 270, p. 397. Stevens v. St. Mary's Training School, 144 111. 336, 36 Am. St. Rep. 438, 32 N. E. 962, 18 L. R. A. 832, p. 822. Stevenson v. Anderson, 2 Yes. & B. 407, 2 Ames Eq. Jur. 43, 1 Keener 270, p. 799. Stewart v. Austin, L. R. 3 Eq. 299. 306, p. 452. Stewart V. East India Co., 2 Vem. 380, p. 79. Still V. Ruby, 35 Pa. St. 373, Ames Trusts 219, p. 549. Stinchfield v. Milliken, 71 Me. 567, H. & B. 47, Shep. 62, p. 697, 701. Stock V. Jefferson, 114 Mich. 357, 72 N. W. 132, 38 L. R. A. 355, p. 832. Stockbridge Iron Co. v. Hudson Iron Co., 107 Mass. 290, 3 Keener 54, p. 419. Stocker v. Wedderbuni, 3 Kay & J. 393, 2 Keener 801, p. 893. Stone V. Bevans, 88 Minn. 127, 97 Am. St. Rep. 506, 92 N. W. 520, p. 634. Stone V. Godfrey, 5 De Gex, M. & G. 76, 90, p. 418. Stone V. Pratt, 25 111. 25, 34 H. & B. 652, 2 Scott 293, p. 184. Stone V. Reed, 152 Mass. 179, 25 N. E. 49, 1 Keener 304, p. 795, 798. Stone V. Stone. 32 Conn. 142, p. 65. Stone V. Westcott, 18 R. 1. 685, 29 Atl. 838, p. 552. Storer v. Great \V. R'y. 2 Younge ft C. Ch. 48, 2 Keener 141, p. 888, 889. Storrs V. Barker, 6 Johns, Ch. 166, 168, 10 Am. Dec. 316, p. 318. 394. Story V. N. Y. etc. R. R. Co., 90 N. Y. 122, 43 Am. Rep. 146, p. 824. Stout V. Philippi Mfg. & Merc. Co., 41 W. Va. 339, 23 S. E. 571. 56 Am. St. Rep. 843, 853-878, p. 284, 285. Stovall V. McCutcheon, 107 Ky. 577, 92 Am. St. Rep. 373, 54 S. W. 969, 47 L. R. A. 287, p. 108. Stratton v. Edwards, 174 Mass. 374, 54 N. E. 886, p. 566. Stratton v. Gildersleeve, 41 Atl. 1117 (N. J.), p. 564. Strickland v. Symans, 26 Ch. Div. 245, Ames Trusts, 418, p. 624, Strobel v. Kerr Salt Co., 164 N. Y. 303, 79 Am. St. Rep. 643, 51 L. R. A. 687, 58 N. E. 142, p. 834. Strong V. Clem, 12 Ind. 37, 74 Am. Dec. 200, p. 865. Strong V. Van Deursen, 23 N. J. Eq. 369, p. 345. Strong V. Williams, 12 Mass. 389, 7 Am. Dec. 81, H. & B. 140, Shep. 127, p. 242. Stronge v. Hankes, 4 De Gex, M. & G. 186, 4 De Gex & J. 632, p. 349. Stuart V. Boulware, 133 U. S. 78, 10 Sup. Ct. 244, 33 L. ed. 568, p. 811. Stuart V. City of Easton, 74 Fed. 8.54, 21 C. C. A. 146, 39 U. S. App. 238, p. 578. Stump V. Gaby, 2 De Gex, M. & G. 623, 630, p. 168, 535. Sturgis V. Champneys, 5 Mylne & C. 97, 101, 102, 105, p. 176, 646. Sturgis V. Work, 122 Ind. 134, 22 N. E. 996, 17 Am. St. Rep. 349. p. 438. Stuj'vesant v. Hall, 2 Barb. Ch. 151, 158, p. 296. Stuyvesant v. Hone, 1 Sand. Ch. 419, p. 296. Sublett V. McKinney, 19 Tex. 483, Shep. 73, p. 916. Suessenguth v. Bingenheimer, 40 Wis. 370, p. 445. Suisse V. Lowther, 2 Hare, 424, 429- 438, p. 244, 240. Summers v. Griffiths. 35 Beav. 27, 3 Keener 509, p. 483, 485. 998 TABLE OF CASES CITED. Sumner v. Seaton, 47 X. J. Eq. 103, 19 Atl. 884. p. 396. Sumner v. Waugh, 56 111. 531, 539, p. 315, 338. Sun Printinj,' and Pub. Ass'n v. Moore, 183 U. S. 642, 22 Sup. Ct. 240. p. 220. Sunday Lake Min. Co. v. Wakefield, 72 Wis. 204, 39 X. W. 13(i, p. 225. Sunset Telephone & T. Co., v. City of Eureka, 122 Fed. 961, p. 80. Supreme Tent Knijjlits of Maccabees V. Stensland. 206 111. 124, 68 N. E. 1098, 99 Am. St. Rep. 137, p. 398. Svanburg v. Fosseen, 75 Minn. 350, 74 Am. St. Rep. 490, 78 N. W. 4, 43 L. R. A. 427, p. 903. Swaine v. Great X. R'y Co., 4 De Gex, J. & S. 211, 1 Ames Eq. Jur. 569. 1 Scott 743, p. 830. Swaine v. Ferine, 5 Johns. Ch. 482, 490, 9 Am. Dec. 318, p. 865. Swa island v. Dearsley, 29 Beav. 430, 1 Ames Eq. Jur. 376, p. 432. Swan V. Chorpenning, 20 Cal. 182, p. 492. Swartz's Ex'rs v. Leist, 13 Ohio St. 419, p. 705. Swasey v. Emerson, 168 Ma.ss. 118, 46 X. E. 426. 60 Am. St. Rep. 368, p. 350. Sweeney v. Williams, 36 X. J. Eq. .627, 1 Scott 141, p. 66, 131, 132. Sweet V. Henry. 175 X. Y. 268, 67 X. E. 574, p. 281. Sweetapple v. Bindon, 2 Vern. 536, Ames Trusts, 379. p. 552, 682. Swinburne v. Swinburne. 28 X. Y. 568. p. 601. Sykes v. Beadon. L. R. 11 Ch. Div, 170. 183, 193, 196, 197, p. 500. Symes v. Hughes, L. R. 9 Eq. 475, 479, p. 549. Tabor v. Brooks, L. R. 10 Ch. Div. 273, p. 608. Taflr Val. R'y v. Xixon, 1 H. L. Cas. 109, 110, 1 Ames Eq. Jur. 454, 3 Keener 888, p. 918. Tailby v. Official Receiver. 13 App. Cas. (H. L.) ,523, Kirch. 100, p. 770, 771. Talbot V. Shrewsbuiy, Free. Ch. 394, p. 241. Talmage v. Fell, 9 Faige, 410, p. 78. Taniplin v. James, L. R. 15 Ch. Div. 215, 1 Ames Eq. Jur. 388, 2 Keener 979, 2 Scott 277, p. 432. Tapia v. Demartini, 77 Cal. 383, 19 Fac. 641, 11 Am. St. Rep. 288, p. 567. Tarbell v. Durant, 61 Vt. 516, 17 Atl. 44, p. 728. Tarver v. Torrance, 81 Ga. 261, 12 Am. St. Rep. 311, 6 S. E. 177, p. 610. Tate v. Pensacola, Gulf L. & D. Co., 37 Fla. 439. 20 South. 542, 53 Am. St. Rep. 251, p. 375. Tate V. Williamson, L. R. 2 Ch. 55, 60, 61, 1 Eq. 528, .536, H. & B. 337, Shep. 193. p. 465, 467, 485, 513, 514, 520, 523. Tayloe v. Merchants' etc. Ins. Co.. 9 How. 390, 13 L. ed. 187. 1 Ames Eq. Jur. 59, 2 Scott 31, 2 Keener 53, p. 884. Taylor v. Ashton, 11 Mees. & W. 401, p. 451. Taylor v. Bro\\Ti, 112 Ga. 758, 38 S. E. 66, p. 564. Taylor v. Carroll, 89 Md. 32, 42 Atl. 920, 44 L. R. A. 479, p. 285. Taylor v. Great Indian R'y, 4 De Gex & J. 559, 574, p. 477. Taylor v. Joues. 2 Atk. 600, p. 528. Taylor v. Kelly, 3 Jones Eq. 240, 1 Ames Eq. Jur. 215, p. 162. Taylor v. Lanier. 3 :\Iurph. 98. 9 Am. Dec. 599. p. 250. Taylor v. London and Coimty Bank- ing Co., [19011 2 Ch. 231, 254, 259, 260ff, p. 350, 372, 373. Taylor v. Longworth, 14 Fet. 172, 174, 10 L. ed. 405. p. 899. Taylor v. Louisville & X. R. Co., 88 Fed. 350, 359, 60 U. S. App. 185, 31 C. C. A. 537, p. 119. Taylor v. Sleads, 4 De Gex, J. A S. 597, 604-607, p.. 636, 640. Taylor v. Russell, [1891] 1 Ch. 9, p. 347. TABLE OF CASES CITED. 999 Taylor v. Stearns, 18 Gratt. 244, 278, p. 557. Taylor v. Stibbert, 2 Ves. 437, 440, 2 Keener 450, p. 274, 276, 281. Taylor v. Times Newspaper Co., 83 Minn. 523, 85 Am. St. Rep. 473, 86 N. W. 760, p. 220. Tazewell v. Smith's Adm'rs, 1 Rand. 313, 320, 10 Am. Dec. 533, p. 167, 679. Teasdale v. Teasdale, Sel. Cas. Ch. 59, 1 Scott 558, p. 376. Teft V. Stewart, 31 Mich, 367, H. & B. 271, p. 474. Telegraph Co. v. Davenport, 97 U. S. 369, p. 907. Ten Eyck v. Manning, 52 N. J. Eq. 47, 27 Atl. 900, 2 Keener 849, p. 897. Ten Eyck v. Witbeck, 135 N. Y. 40, 31 N. E. 994, 31 Am. St. Rep. 809, p. 359. Tennant v. Stoney, 1 Rich. Eq. 222, 44 Am. Dec. 213, p. 639. Tennessee Mfg. Co. v. James, 91 Tenn. (7 Pickle) 154, 18 S. VV. 262, 30 Am. St. Rep. 865, 15 L. R. A. 211, p. 226. Tesson v. Atlantic Ins. Co., 40 Mo. 33, 36, 93 Am. Dec. 293, p. 434. Texas & P. R'y Co. v. Marshall, 136 U. S. 393, 407, 10 Sup. Ct. 846, 34 L. ed. 385, p. 887, 888. Texas Trunk R. Co. v. Lewis, 81 Tex. 1, 26 Am. St. Rep. 776, 16 S. W. 647, p. 809. Thackrah v. Haas, 119 U. S. 501, 7 Sup. Ct. 311, 2 Scott 746, 3 Keener 697, p. 471, 474, 508. Thayer v. Daniels, 113 Mass. 129, p. 325. Third Ave. R. R. Co. v. Mayor etc. of New York, 54 N. Y. 159, 162. 163, 2 Ames Eq. .Tur. 102, 1 Keener 167, p. 109, 823. Third Nat. Bank v. Atlantic City, 126 Fed. 413, p. 325. Third Nat. Bank v. Lumber Co.. 132 Mass. 410, 2 Ames Eq. Jur. 27, 1 Keener 257, p. 797. Thomas v. Beals, 154 Mass. 51, 27 N. E. 1004, 3 Keener 707, p. 470. 471. Thomas v. Burnett, 128 111. 37, 21 N. E. 352, 4 L. R. A. 222, H. & B. 90, p. 278. Thomas v. Cincinnati etc. R. Co., 62 Fed. 803, p. 809. Thomas v. Evans, 105 N. Y. 614, 12 N. E. 571, 59 Am. Rep. 519, p. 743. Thomas v. Howell, L. R. 18 Eq. 198, 34 Ch. D. 166, 1 Ames Eq. Jur. 196, p. 164. Thomas v. Lennon, 14 Fed. 849, p. 839. Thomas v. Oakley, 18 Ves. 184, I Scott 685, 1 Ames Eq. Jur. 491, 1 Keener 551, p. 842. Thomas v. \Miitney, 186 111. 225, 57 N. E. 808, p. 513. Thomas's Adm'r v. Lewis, 89 Va. 1, 15 S. E. 389, 37 Am. St. Rep. 848, 18 L. R. A. 170. p. 666, 668. Thompson v. Betts, 74 Conn. 576, 51 Atl. 564, 92 Am. St. Rep. 235, p. 245. Thompson v. Central Ohio R. R. Co., 6 Wall. 134, 18 L. ed. 765, p. 139. Thompson v. Cochran, 7 Humph. 72, 46 Am. Dec. 68, p. 865. Thompson v. Etowah Iron Co., 91 Ga. 538, 17 S. E. 663, p. 877. Thompson v. Gould, 20 Pick. 134, 1 Ames Eq. Jur. 234, 2 Keener 406, p. 163. Thompson v. Heflferman, 4 Dm. & War. 285, p. 667. Thompson v. Hudson, L. R. 4 H. L. 1, 15, p. 216, 218. Thompson v. Scott, 4 Dill. 508, Fed. Cas. No. 13,975, p. 809. Thompson v. Thompson, 1 Jones (N. C.) 430, 1 Ames Eq. Jur. 201, p. 162, 595. Thompson v. Winter, 42 Minn. 121, 43 N. W. 796, 6 L. R. A. 236, H. & B. 654, 2 Keener 1044^ p. 895. Thomdike v. Hunt, 3 De G*x & J. 563, 570, 571, p. 196. 311, 373. Thorne v. Deas, 4 Johns. 84, p. 606. Thornton v. Hawley, 10 Ves. 129. p. 680. Thornton, Town of, v. Oilman, 67 N. H. 392, 39 Atl. 900, p. 521. 1000 TABLE OF CASKS CITED. Thorpe v. Bnimfitt, L. R. 8 Ch. 650, 1 Ames Eq. Jiir. 547, 1 Keener 734, p. 834. ThreadgiU V. Bickerstaflf, 87 Tex. 520, 24 S. W. 757, p. 364. Thum Co. V. Tloczynski, 114 Mch. 149. 68 Am. St. Rep. 469, 72 N. W. 140, 38 L. R. A. 200, H. & B. 755, p. 817. Thynn v. ThjTin, 1 Vern. 286, 296, 1 Scott 457, p. 603. Tibbetts v. Gate, 66 N. H. 550, 22 All. 559, p. 223. Tibbits V. Tibbits, 19 Ves. 656, 663, p. 238. Tidd V. Lister, 5 Madd. 429, Ames Trusts 465, p. 553. Tierney v. Wood. 19 Beav. 330. Ames Trusts 182, p. 562, 566. Tifft V. Porter. 8 N. Y. fjlC, p. 657. 660. Tilley v. Thomas, L. R. 3 Ch. 61, 67, 69, 72, 1 Ameo Eq. Jur. 336. 2 Scott 345. 2 Keener 1091, Shep. 254, p. 899. Tillinghast v. Champlin, 4 R. I. 173, 204. 215, 67 Am. Dec. 510, p. 265. Tillman v. Thomas, 87 Ala. 321, 13 Am. St. Rep. 42, 6 South. 151, p. 269. Tilton V. Davidson, 98 Me. 55, 56 Atl. 215, p. 550. Tinsley v. Rice, 105 Ga. 285, 31 S. E. 174, p. 285. Tipping V. Clarke, 2 Hare, 383, 389, p. 82. Title Guarantee Co. v. Wrenn, 35 Oreg. 62, 56 Pac. 271, 76 Am. St. Rep. 454, p. 382. Titsworth v. Stout. 49 111. 78, 95 Am. Dec. 577, p. 383, 384. Titus V. Rochester G. Ins. Co., 97 Ky. 567, 31 S. W. 127, 53 Am. St. Rep. 427, H. & B. 213, p. 421, 425. Titus's Adm'r v. Titus, 26 N. J. Eq. Ill, p. 663. Tobey v. Moore. 130 Mass. 448, 2 Keener 516, p. 776. Tobias v. Ketchum, 32 N. Y. 319, 326, 327-331, H. & B. 374, p. 235, .568. 569. Tolbert v. Horton, 31 Minn. 518, 18 N. W. 647, p. 367. Toller V. Carteret, 2 Vera. 494, 1 Ames Eq. Jur. 22, 1 Scott 235, p. 208. Toilet V. Toilet, 2 P. Wms. 489, 1 Lead. Cas. Eq., 4th Am. ed., 365, 2 Ames Eq. Jur. 305, 1 Scott 420, p. 253, 410, 411. Tompkins v. Craig, 93 Fed. 885, 2 Ames' Cas. Eq. Jur. 87, p. 122. Tompkins v. Halleck, 133 Mass. 32, 43 Am. Rep. 480, Lewis 69, p. 839. Tompkins v. Hollister, 00 Midi. A'eller v. Jersey City, H. & P. SI. R'y Co., 06 N, J. Eq. 11, 57 All. 730, p. 761. Weller v. Smeaton, 1 Cox, 102, 1 BrowTi Ch. 573, 1 Ames Eq. Jur. 554, p. 831. Welles V. Yates, 44 N. Y. 525, 3 Keener 272, H. & B. 790, Shep. 247, p. 437. Wells V. Smith, 2 p:dw. Ch. 78, 2 Scott 317, 2 Keener 1082, p. 898. Wells, Fargo & Co. v. Dayton, 11 Nev. 161, p. 823. Welsh V. Crater, 32 X. .1. Eq. 177, 3 Keener 990, p. 681. Welsh V. Phillips, 54 Ala. 309, 25 Am. Rep. 679, p. 379. Welty V. Jacobs, 171 111. 624, 49 N. E. 723, 40 L. R. A. 98, H. & B. 592, p. 818, 819. West V. Camden, 135 U. S. 507, 10 Sup. Ct. 838, p. 494. ^\est V. Jones, 1 Sim., N. S., 205, 207, 208, p. 376. West V. Mayor etc. of New York, 10 Paige, 539, 1 Keener 161, p. 109. Westbrook v Gleason. 79 X. Y. 23, 28. 30, 31, 36, p. 350, 351, 360, 372. West Coast Safety Faucet Co. v. Wulff, 133 Cal. 315, 85 Am. St. Rep. 171, 65 Pac. 622, p. 327. Western v. Mac Dermot, L. R. 2 Ch. 72, 75, 2 Scott 511. p. 777. Western El. Co. v Keystone Tel. Co.. 115 Fed. 809, p. 836. Western Nat. Bank v. Maverick Nat. Bank, 90 Ga. 339, 16 S. E. 942, 35 Am. St. Rep. 210. p. 332, 338. Western R. R. v. Babcock, 6 Met. 346, 937, 2 Keener 256, p. 414, 432. Weston V. Stoddard. 137 N. Y. 119, 33 Am. St. Rep. 697, 33 N. E. 62. 20 L. R. A. 624, p. 868. West Publishing Co. v. La^^ers' Co- op. Pub. Co., 53 Fed. 265. p. 838. Wethered v. Wethered, 2 Sim. 183, p. 487. Wetmore v Parker.. -52 X. Y. 450. p. 575. Wetmore v. Porter, 92 X. Y. 76. 77, Ames Trusts 262. p. 319, 501, 597. Wettlaufer v. Ames, ( Mich. ) 94 N. W. 950, p. 380. 1006 TABLE OF CASES CITED. Whalley v. Whalley, 1 Mer. 436, p. 484. Wheatley v. Strobe, 12 Cal. 92, 98, 73 Am. Dec. 522, p. 764. Wheelock v. Noonan, 108 N. Y. 179, 2 Am. St. Rep. 405, 15 N. E. 67, 1 Ames Eq. Jur. 527, 1 Scott 94, 1 Keener 194, H. & B. 764, p. 844. Whichcote v Lawrence, 3 Ves. 740, p. 515. White V. Damon, 7 Ves. 30, p. 483. White V. DowTis, 40 Tex. 225, 226, p. 751. White V. Equitable Nuptial Benefit Union, 76 Ala. 251, 52 Am. Rep. 325, p. 487. White V. Foster, 102 Mass. 375, 380, p. 282 W'hite V. Xutt, 1 P. Wms. 61, 1 Ames Eq. Jur. 226. 2 Scott 450, 2 Keener 404, p. 163, 407. White V. Patterson, 139 Pa. St. 429, 21 Atl. 360, p. 162. White V. Rankin, 90 Ala. 541, 8 South. 118, p. 327. White V. Sherman, 168 111. 589, 606, 611, 61 Am. St. Rep. 132, 140, 48 N. E. 128, p. 615, 618, 622. White V. Slender, 24 W. Va. 615, 49 Am. Rep. 283, p. 823. White V. Warner, 2 Mer. 459, p. 224, 226. White V. Williams, 8 Ves. 193, p. 82. Whitechurch v. Hide, 2 Atk. 391, 1 Ames Eq. Jur. 601, p. 841. Whitehead v. Shattuek, 138 U. S. 146, 151. 11 Sup. Ct. 276, 277, 34 L. ed. 873, p. 140, 142, 875. White's Trusts In re, 33 Ch. Div. 449, p. 581. Whitfield V. Bewit, 2 P. Wms. 240, 1 Ames Eq. Jur. 460, 1 Keener 457, 1 Scott, 674, p. 827. Whitfield V. Fausset, 1 Ves. Sr. 387, 392, 1 Scott 409, p. 409. Whitfield V. Riddle, 78 Ala. 99, p. 285. Whitinfi V. Adams, 66 Vt. 679, 30 Atl. 32, 44 Am. St. Rep. 875. 25 L. R. A. 598, p. 718, 719. Whitmore v. Turquand, 3 De Gex, F. & J. 107, p. 555. Whitney v. Hay, 181 U. S. 77, 21 Sup. Ct. Rep. 537, 45 L. ed. 758, p. 603. Whitney v. Union Railway, 11 Gray, 359, 364. 71 Am. Dec. 715, 2 Keener 547, p. 775, 776, 777. Whitridge v. Parkhurst, 20 Md. 62, 72, p. 239. Whittaker v. Howe, 3 Beav. 383, 2 Keener 209, p. 817, 820, 886. Whittemore v. Farrington, 76 N. Y. 452, 2 Ames Eq. Jur. 208, 2 Scott 600, 3 Keener 209, p. 437. Whittemore v. Whittemore, L. R. 8 Eq. 603, p. 463. Whitton V. Russell, 1 Atk. 448, p. 407. Whitton V. Whitton, 38 N. H. 127, 135, 75 Am. Dec. 103, p. 868. Whitwood Chemical Co. v. Hardman, [1891] 2 Ch. 416, 1 Ames Eq. Jur. 117, 2 Scott 110, 2 Keener 284, Shep. 290, p. 819. Whitworth v. Gaugain, 3 Hare, 416, 1 Phill. Ch. 728, Ames Tr. 408, p. 317. Whitworth v. Whyddon, 2 Macn. & G. 52, 55, p. 803. Wickman v, Robinson, 14 Wis. 493, 494. 80 Am. Dec. 789, 1 Scott 73, p. 754. Widdicombe v. Childers, 84 Mo. 382, p. 319. Wiedemann v. Sann, (N. J. Eq.), 31 Atl. 211, p. 805. Wieland v. Kobick, 110 HI. 16, 51 Am. Rep. 676, p. 400. Wigg V. Wigg, 1 Atk. 382, 384, p. 365. Wilbanks v. Wilbanks, 18 111. 17. H. & B. 129, p. 240. Wilcocks V. Wilcocks, 2 Vern. 558, 2 Lead. Cas. Eq. 833, Shep. 129, 1 Scott 324, p. 252. Wilcox V. Allen, 36 Mich. 160. p. 218. Wilcox V. Howell, 44 N. Y. 398, p. 399. Wild V. Wells, 1 Dick. 3, Toth. 82, p. 864. TABLE OF CASES CITED. 1007 Wilder v. Brooks, 10 Minn. 50, 88 Am. Dec. 49, p. 292. Wilder v. I'igott, L. R. 22 Ch. Div. 263. p. 237. Wilder v. Ranney, 95 N. Y. 7, 12. 3 Keener 992, p. 607, 682. Wilding V. Balder, 21 Beav. 222, Ames Trusts, 221, p. 625. Wiles V. Wiles, 3 Md. 1, 56 Am. Dec. 733, p. 647. Wilhelm v. Eaves, 21 Oreg. 194, 27 Pac. 1053, 14 L. R. A. 297, p. 219, 221. Wilhelm v. Wilken, 149 N. Y. 447, 44 N. E. 82, 52 Am. St. Rep. 743, 32 L. R. A. 370, p. 364. Wilkinson v. Colley, 164 Pa. St. 35, 30 Atl. 286, 26 L. R. A. 114. 2 Keener 300, p. 820. Wilkinson v. Dent, L. R. 6 Ch. 339, 340, p. 234. Wilkinson v. Henderson, 1 Mylne & K. 582, p. 191. Wilkinson v. Tousley, 16 Minn. 299, 10 Am. Rep. 139, p. 486. Willard v. Eastham, 15 Gray. 328, 77 Am. Dec. 366, p. 653. Willard v. Tayloe, 8 Wall. 557, 565, 19 L. ed. 501, 1 Ames Eq. Jur. 404, 2 Keener 1026, H. & B. 644. Shep. 112, 2 Scott 33, p. 184. 484, 894. Willard V. Wilhird. 145 U. S. 116, 12 Sup. Ct. 818. 36 L. ed. 644, p. 868. Willes V. Greenliill. 4 De Gex, F. & J. 147, 1.50. p. .303. Willet V. Sandford. 1 Ves. Sr. 186, p. 546. Willett V. Winnell, 1 Vern. 488. Kirch. 469. p. 698. Williams v. Bayley, L. R. 1 H. L. 200, 218, 3 Keener 773. p. 507, 509. Williams v. Crabb, 117 Fed. 193, 59 L. R. A. 425, p. 142. Williams v. Crarj', 5 Cow. 368. 8 Cow. 246, 4 Wend. 443, 450, p. 243. Williams v. Cudd, 26 S. C. 213, 2 S. E. 14, 4 Am. St. Rep. 714. p. 411. Williams v. Day. 2 Cas. in Ch. 32, 1 Ames Eq. Jur. 476, 1 Scott 646, p. 829. Williams v. Guile, 117 N. Y. 343. 22 X. E. 1071, 6 L. R. A. 366, p. 667. Williams v. Harlan, 88 Md. 1, 71 Am. St. Rep. 394, 41 Atl. 51, p. 817. Williams v. Hollingsworth, 1 Strob. Eq. 103, 47 Am. Dec. 527, p. 343. Williams v. Keyes, 90 Mich. 290, 51 N. W. 520, 30 Am. St. Rep. 438, p. 350. \Mlliams v. Lambe, 3 Brown Ch. 263, 264, p. 371. Williams v. McCarty, 74 Ala. 295, p. 748. Williams v. Matthews, 47 N. J. Eq. 196, 20 Atl. 261, 1 Keener 301. p. 795. Williams v. New York Cent. R. R. Co., 16 N. Y. 97, 69 Am. Dec. 651, 1 Ames Eq. Jur. 521, 1 Scott 706, p. 824. Williams v. Rand, 9 Tex. Civ. App. 631, 30 S. W. .509, p. 354. Williams v. Vanderbilt. 145 111. 238, 251, 36 Am. St. Rep. 486, 494, 34 N. E. 476. 21 L. R. A. 489, p. 743. Williams v. Williams. 8 N. Y. 525, p. 583. Williams v. Williams. 2 Swanst. 253, 2 Keener 199, p. 820. Williamson v. Brown, 15 N. Y. 354, 360, 362. H. & B. 86. p. 260. 263, 268. 270, 279. Williamson v. Jones, 43 W. Va. 562, 563. 64 Am. St. Rep. 891. 27 S. E. 411. 38 L. R. A. 694, 702, 703. p. 399. Willis V. Farley, 24 Cal. 490. 500, p. 673. Willmott V. Barber. L. R. 15 Ch. Div. 96, 106, p. 402. Wills. Ex parte. 1 Ves. 162, 2 Cox, 233, p. 741. Wills V. Stradling, 3 Ves. 378. 1 Ames Eq. Jur. 291, 2 Scott 201. 2 Keener 626. p. 901, 902. Willson V. Love, [1896] 1 Q. B. 626, p. 221. Wiliiiot V. Woodhouse, 4 Brown Ch. 227. p. 244. Wilson V. Campbell, 110 IMich. 580, 68 N. \Y. 278, 35 L. R. A. 544, p. 351. 1008 TABLE OF CASES CITED. Wilson V. CoDsol. Store Service Co., 88 Fed. 286, 31 C. C. A. 533, p. 836. Wilson V. Eigenbrodt, 30 Minn. 4, 13 N. W. 907, p. 707. Wilson V. Furness R'y, L. R. 9 Eq. 28, 2 Keener 164, p. 888. Wilson V. Little, 2 N. Y. 443, 51 Am. Dec. 307, p. 734. Wilson V. McCnllough, 23 Pa. St. 440. 62 Am. Dec. 347, p. 262, 267. Wilson V. Mayor etc. of Baltimore. 83 Md. 203, 55 Am. St. Rep. 339, 34 Atl. 774, p. 219, 226. Wilson V. Mineral Point, 39 Wis. 160, H. & B. 766, Shep. 318, p. 843. Wilson V. Northampton etc. R'y, L. R. 9 Ch. 279, 284. p. 879. Wilson V. O'Leary, L. R. 12 Eq. 525, 527, 7 Ch. 448, p. 244. Wilson V. Thornbury, L. R. 10 Ch. 239, 248, 249, p. 237, 239. Wilson V. Townsend. 1 Drew. & Sm. 324, 1 Ames Eq. Jur. 539, p. 834. Wilson V. Williams, 3 Jur. N. S. 810. 2 Scott 392, p. 906. Wilson V. Wilson, 41 Oreg. 459, 69 Pac. 923, p. 198. Wilson's Estate, In re, 2 Pa. St. 325, p. 769. Wineburgh v. U. S. etc. Co., 173 Mass. 60, 53 N. E. 145, 73 Am. St. Rep. 261, p. 633. Winfield Nat. Bank v. Croco, 46 Kan. 620, 26 Pac. 939. p. 507, 509. Wing V. Harvey. 5 De (lex, ]M. & C 265, p. 224. Wing V. Spaulding, 64 Vt. 83, 23 Atl. 615, 1 Keener .308, p. 795. Wing & Evans v. Hartupee, 122 Fed. 897, (C. C. A.) p. 515. Winship v. Pitts, 3 Paige, 259, 1 Keener 473, p. 827. Winter v. Montgomery C L. Co., 89 Ala. 544. 7 South. 773. p. 338. Winter v. Winter, 5 Hare, 306, p. 665. Wirt v. Hicks, 46 Fed. 71, 1 Ames Eq. Jur. 626, p. 835. Wiser v. Lawler, 189 U. S. 260, 23 Sup. Ct. 624. p. 396. Wistar's Appeal, 80 Pa. St. 484, p. 881. Wiswall V. Sampson, 14 How. 52, 65, 14 L. ed. 322, Shep. 334, p. 809. Witczinski v. Everman, 51 Miss. 841, p. 704. Withers v. Yeadon, 1 Rich. Eq. 324, 329, p. 411. Withy V. Cottle, 1 Sim. & St. 174, 1 Ames Eq. Jur. 57, p. 881, 883. ^^■ittenbrock v. Parker^ 102 Cal. 93, 101, 36 Pac. 374, 41 Am. St. Rep. 172, 24 L. R. A. 197, p. 303, 305, 307. Wombwell v. Belasyse, 6 Ves. (2 ed.) 110, a, note, 1 Keener 470, 1 Scott 654. Wood V. Chapin, 13 N. Y. 509, 67 Am. Dec. 62, p. 359. Wood V. GriHitli, 1 Swanst. 43, 2 Keener 114, p. 884. \\ood V. Hudson, 96 Ala. 469, 11 South. 530, p. 75. ^^■ood V. Mann, 1 Sum. 506, 507-509, 578. Fed. Cas. Nos. 17,951, 17,952, 1 Scott 507, p. 362, 364, 375. Wood V. Midgley, 5 De Gex, M. & G. 41, 2 Keener 750, 1 Scott 462, p. 479, 905. Wood V. Rabe, 96 X. Y. 414, 48 Am. Rep. 640, p. 478, 604. Wood V. Rowcliffe, 3 Hare. 304, 308, 2 Pliill. Cli. 382, 1 Ames Eq. Jur. 43. 2 Scott 40, p. 883. Woodall V. Kelly, 85 Ala. 368, 7 Am. St. Rep. 57, 5 South. 164, p. 748, 749. Woodburn's Estate, 138 Pa. St. 606. 21 Am. St. Rep. 932, 21 Atl. 16, p. 238. Woodbury v. Gardner, 77 Me. 68, 75. p. 478. Woods V. Farmere, 7 Watts. 382, 387, 388, 32 Am. Dec. 732, 772, p. 274, 277. Woods V. Woods, 1 Mylne & C. 401. ]). 570. Woodstock Iron Co. v. Extension Co., 129 U. S. 643, 9 Sup. Ct. 402, p. 495. ^Voodstock Iron Co. v. Fullenwider. 87 Ala. 584, 13 Am. St. Rep. 73. 6 South. 197. p. 875. Woodsworth v. Tanner, 94 Mo. 124, 7 S. W. 104, p. 64. TABLE OF CASES CITED. 1009 Woodward v. Gyles, 2 Vera. 119; 2 Scott 121, p. 222. WooUani v. Heam, 2 Lead. Cas. Eq. !t20. i»44-1040, 4th Am. ed., 7 Ves. 211, 2 Ames Eq. Jur. 297, 2 Scott 262, p. 433. Woolums V. Horsley. 93 Ky. 582. 20 S. W. 781, 2 Keener 926, 2 Scott 251, p. 468. Worden v. California Fig Syrup Co., 187 U. S. 516, 23 Sup. Ct. 161, p. 494, 840. Workingman's B. & S. Ass'n v. Wil- liams, (Tenn. Ch. App.) 37 S. W. 1019, p. 340. Wonall V. Harford, 8 Ves. 4, 8. Ames Trusts. 415. p. 623, 624. W'orthington v. ^loon, 53 N. J. Eq. 46. 30 Atl. 251. p. 227. Worthington v. Waring. 157 Mass. 421, .34 Am. St. Rep. 294, 32 N. E. 744, 20 L. R. A. 342, Lewis 250, p. 847. ' Wray v. Steele, 2 Ves. & B. 388. p. 590. Wright V. Bell. 5 Price. 325. 328, 329, 2 Keener 9. p. 879. 883. Wright V. Carter, [1903] 1 Ch. 27. p. 519. Wright V. Fisher, fi5 Mich. 275. 32 N. W. 605, 8 Am. St. Rep. 886. p. 508. Wright V. Stewart, 130 Fed. 905. 921. p. 502. Wright V. Vanderplank, 8 De Gex, AL & G. 133, 137, 146, p. 522, 526. Wright V. Ward. 4 Russ. 215-220, 1 Keener 217. p. 791. 797. Wych V. Meal, 3 P. Wms. 311. 312. p. /9. VN'yche v. Greene, 16 Ga. 49, 2 Ames Cas. Eq. Jur. 289. p. 419. Wyeth V. Renz-Bowles Co., 23 Ky. Law Rep. 23, .38, 66 S. W. 825, p. 362. Wyllie V. Pollen. 3 De Gex, .T. & S. 596, 601, p. 304. 307. Wyman v. Eaton. 107 Iowa. 217, 70 Am. St. Rep. 193, 77 N. W. 865, 43 L, R. A. 695. H. &. B. 888, p. 811. Wyman v. Fort Dearhoi-n Nat. Bank, 181 111. 279. .54 X. E. 946, 72 Am. St. Rep. 259, H. & B. 909, p. 181, 707. 64 Wynn(' v. Callander, 1 Russ, 293, 296, 297, p. 499. Yale V. Dederor, 18 N. Y. 265, 72 Am. Dec. 503, 22 X. Y. 450, 456, 78 Am. Dec. 216, 68 X. Y'. 329, p. 652, 653. Y'^ale Gas Stove Co. v. Wilcox, 64 Conn. 101, 42 Am. St. Rep. 159, 29 Atl. 303, 25 L. R. A. 90, p. 523, 618, 619, 631, 634. Y'arborough v. Thompson, 3 Smedes & M. 291, 41 Am. Dec. 626, 1 Keener 278, p. 790, 791, 851. Yarnell v. Brown, 170 111. 362. 48 X. E. 909, 62 Am. St. Rep. 380. p. 362. Yates V. Jack, L. R. 1 Ch. App. 29:), 1 Ames Eq. Jur. 541, p. 834. Yeakel v. McAtee, 156 Pa. St. 600. 27 Atl. 277. p. 522. York V. Hinkle, 80 Wis. 624, 50 X. W. 895, 27 Am. St. Rep. 73, 3 Keener 770, p. 509. York V. McXutt, 16 Tex. 13, 67 Am. Dec. 607, p. 315. Young V. Guy, 87 N. Y. 462, 1 Ames Eq. Jur. 207, p, 360. Young V. Overbaugh, 145 X. Y^. 158, 39 N. E. 712, 2 Keener 743, p. 904. Young V. Paul. 10 X. J. Eq. 401, 64 Am. Dec, 456, 2 Keener 1219. p. 906. Young V. Young. L. R. 3 Eq. 801, p. 373. Young V. Y^oung, 80 X. Y. 422. 436, 36 Am. Rep. 634, H. & B. 387, p. .559, 561, 562, 567, 568. Youngblood v. Sexton, 32 Mich. 406, 410. 20 Am. Rep. 654, p. 123. Younge v. Furse, 8 De Gex, M. & G. 756. p. 489. Youst V. Martin. 3 Serg. & R. 423, ,p. 362. Zabriskie v. SaKor. 80 X. Y. 555. p. 723. Zabriskie v. Smith. 13 X. Y. 322, 333, 04 Am. Dec. 551, p. 761. 1010 TABLE OF CASES CITED, Zeile, Estate of, 74 Cal. 127, 133, 15 Pac. 455, p. 245. Zimmerman v. Fraley, 70 Md. 561, 17 Atl. 560, p. 614. ZSeller v. Riley, 100 N. Y. 108, 2 N. E. 388, 53 Am. Rep. 157, p. 364, 376. INDEX. INDEX.* A ABATEMENT, order of. appropriatinfj assets of decedonts, 1135. what, is, and nature of, 11.10. of specific lepfacies. 11. S7. demonstrative. 11.33, 113S. general, 1 130. doctrine of, subject to testator's intention, ILS.*!. 1140, 1141. no exemption from, of fieneral legacies in favor legacies to near relatives, 1141. general legacies for valuable consideration preferred in, 1142. ACCIDENT, definition of. 823. rationale of equity jurisdiction over. 824. general limitations on equity jurisdiction over. 825. instances in whicli jurisdiction occasioned by. does not exist. 826-829. non-performance of contracts occasioned by. 826. supplying lost or destroyed records, 827. where, is result of negligence or fault, 828. where })arty has no vested right, but expectancy or hope. 828. jurisdiction on ground of, not exercised against bona fide purchaser, 776. 82!). not exercised against one witli equal equity, 829. instances in which jurisdiction occasioned by, exists, 830-837. in suits on lost bonds and sealed instruments, 831. in suits on lost or destroyed unsealed instruments. 832. penalties inciirred through, relieved against. 826. 833. forfeitures occasioned by, relieved against, 451, 454. 826. 833. defective execution of powers through, aided, 589, 590, 834, 835. judgments set aside or enjoined, when defense prevented by, 836, 1364. ACCOUNTING. origin of equitable jurisdiction for. 1420. jurisdiction, when exercised; inadequacy of legal remedies. 1420. 1421. ADMINISTRATIONS, jurisdiction of equity over, 1152-1154. exists where full equity jurisprudence adopted, unless expressly abro- gated. 1153. a.s administered in United States courts. 293. note, as administered in the several states, 1154. *For a full analytical index, see rom. E(i, .Jur.. :>d ed.. pp. 3337-3525. [1013] 1014 INDEX. ASSIGNMENTS, of things in action; estates and interests ai*ising from, 1270-1279. things in action not assignable at ancient connnon law, 137, 1270, 1297. assignable in eqviity for valuable consideration, 1270. 1297. assignee acquired no right at ancient common law, 137, 1270. acquires an equitable ownership, 137, 108, 1271. assignee finally permitted to sue in assignor's name at law, 113, 137, 1272. legislation regarding, 168, 1273, 1297. real party in interest to sue where reformed procedure adopted, 1274. what are and aie not assignable, 1275. wliat forbidden by public policy, 1276. jurisdiction of equity over, former importance, 150, 1271. Avhen exercised at present day, 1277, 1278. nature of the equitable remedy given in cases of, 1416. notice to debtor, liolder, or trustee, requisite to establish rights of priority in, 693-702, 1279. See Priorities. are subject to equities in favor of debtor and third persons, 703-715, 1279. See Priorities. of a fund by order or otherwise^ 1280-1284. notice to assignees essential to absolute. 1281, 1282. mere mandates to agents or depositaries directing payment, not, but revocable, 1282. fund need not be in existence, if it exists in potentiality, 1275, note, 1283. bills of exchange and checks not in general equitable, 1284. of iTOssibilities, expectancies, and property to be acquired in future, 1285- 1291. jurisdiction of equity over, formerly and at present, 1270. 1271, 1285, 1287. grades of contingencies, expectancies, and possibilities, 1286. of possibilities, 1287, 1297. of personal property to be acquired in future, 1288-1291. of future cargoes or freight, 1289. of future wages, payments, demands, etc., 1283, 1289. "note. present transfer or present agreement necessary in, 1290. Iip7i extends to substituted jiroperty, 1291. avail against what persons, 1291. efl'ect of statutes on, 1291, 1297. moi'tgages of future acquired personal property, operating as, 1236, note. 1288-1291. See Liens. specific performance of contracts to assign things in action when decreed, 1402, 1403, note. AUXILIARY JURISDICTION, objects and definition of, 142, 190. branches of; discovery; examination of witnesses, 142, 190-215. discovery, 143, 144, 190-209. See Discovery. perpetuation of testimony, 82.. 142, 190, 210-212. Sec PERrETUATiCN op Testimoxy. testimony de bene esse, 82, 142, 190, 210, 213-215. See Testimoxy DE Bene Esse. INDEX. 1015 B. BILLS OF PEACE, nature of remedy of, 1393 rationale of, 249-251. !See Multiplicity of Suits. kinds of, 246. to establish general riglit between single parly and n\nnerous per- sons, 246. Sec Multiplicity of Suits. to quiet coniplonant's title against ejectment suits, 240, 253, 254. grounds ani purpose.* of, 248. BONA FIDE PURCHASER, general meaning, scope of, anrt limitations on doctrine of, 735. effect of recording acts on dof'trine of, 736, 744. rationale of doctrine of, 75^7-744. equitable origin, natures, and operation, of doctrine of, 738. doctrine not a rule of jn-operty or of title, 739. what kinds of estates j)rotected, 740-743. conflicting opin>f>ns, 740, 741. formula of Lorrt Westbury^ 742. what constitutes a, 745-702. element of valuable consideration, 746-751. what is valuable consideration : illustrations, 747-749. antecedent debts whether valuable consideration, 747-749, 1048. securitj' for. or satisfaction of, antecedent debts, 749. payment of consideration^ 750, 751. paj^nient must be actual, 751. el»»»ent of absence of notice, 752-761. effects of notice, 753-754. notice inhering in form of conveyance, 753. quitclaim deeds, 753. second purchaser without, from first purchaser Avith notice, 754. second purchaser with, from first purchaser without notice, 754. time of giving notice, 691, 755. recording in connection with notice, 757-761. interest under prior unrecorded conveyance, 758. requisites to protection from first record by subsequent pur- chaser, 059, 759. burden of proof as to bona fide purchase, 759. note. with apparent record title from grantor with notice of ]irior unrecorded conveyance, 760. break in record title; when purchaser still charged with notice of prior imrecorded title, 058. clement of good faith, 754, 702. effects of bona fide purchase as defense, 7(i3-778. suits by holder of legal estate against, under auxiliary jurisdiction, 742, 704. suits by holder of legal estate against, under concurrent jurisdiction, 765. suits by holder of equitable, against purchaser of legal estate, 760-774. where legal estate acquired by original purchase, 707. 1016 IXDEX. BONA FIDE rVnCllAHER— Continued. where legal estate subsfMjuciitly acquired l)y purchaser of equitable, 740, 7G8. where purcliaser acquires legal estate from trustee, 72S. 729, 770. rvile as applied in America, 771-77.">. where purchase made at execution sale. 724. assignees of things in action perfecting legal title, 701, 712, 713, suits against, by holder of an equity, 775-778. for relief against accident or mistake. 77*5. 829. 871. for relief against fraud upon creditors, 777. 968. against conveyance obtained by frauds 777. for fraud in general. 899, 918. when not a defense in fraud, 915. note. 918. affirmative relief to, 779-783. where unrightef)us conduct toward, by liolder of prior title, 780, 782, prior encumbrancers who have misled, 781, 782. in removing ckmd frcjm title^ 783. mode and form of defense of, 784, 785. necessary allegations, 785. BOUNDARIES, ESTABLISHMENT OF DISPUTED, origin of jurisdiction, 1384. special equitable incidents required for, 1379, 1384, 1385. CANCELLATION, when granted 83(1, 870. S99. 910-974. 1377. See Accident; Mistake; Fh.wd. CLASSIFICATION OF E(,)U1TY, according to the nature of the jurisdiction, 121. in the tlirce divisions of exclusive, concurrent, and auxiliary, 121. plan and order of arrangements adopted in present treatise, 128. CLOUD ON TITLE, jurisdiction to remove, well settled, 1398, 1399 CONCURRENT .lURlSDlCTlON, what embraced in, 139-141, 173-175. where primary right, estate, or interest is legal, and legal and equitable remedies are alike, 139, 173, 222. cases how classified, 175, 184. fraud, accident, and mistake as occasions of, 188. See Accident; Mis- T.\KE ; Fraud. remedies must be legal, that suits may fall within. 175, 1379. 1410. when does not exist, 176-179. when, in general, law courts can do complete justice, 176. limitations on rule, 176, 177. legal remedy must be complete, certain, and not doubtful, 176, 180. not exercised merely to recover possession, or try title to chattels or land, 177, 735. not exercised to recover money merely as debts or damages, 178. where law court has first taken jurisdiction, 179. INDKX. 1017 CONCURRENT JURISDICTIOX— Co»//H!/rfif. exists when legal remedy is inadequate. 1.39. 17:3. 170, 180, 222. particular instances, 180. principal matters coming within. 184-18!). suits for recovery of lands or chattels, 185. 137!t. See P.\rtitiox of L.\M): Assignment of Dower : Boundaries. Estahlishinc; Dis- puted ; Chattels. for pecuniary recoveries, 186-188, 1416. 8ee Accounting: Con- tribution ; Exoneration, etc. special cases^ 189. CONTRACTS, essential elements of, the same as at law, 1293. covenants creating equitable servitudes, 089. 1295. enforcement of. 1297. when no action at law can be maintained. 1297. 1409. violation of. prevented by injunctions, 1341-1344. See Injunctions, specific performance of. See Specific Performance. CONTRIBUTION, 1418. CONVERSION, definition and description of, 371, 1159. is an application of maxim, Equity regards that as done which ought to be done, 371, 1159. words sufficient to effect, 1159, 1160. under a contract of sale of lands. 105. 308. 1101, 1200, 1201, 1263. time from which, takes place^ 1102. 1163. in contracts of sale with option. 1103. effects of, 1104-1100. where land directed to be sold. 371. 992, 1159, 1104. where money directed or agreed to be laid out in land. 371, 992. 1159, 1165. limitations on. 1106. resulting trust on failure of purposes of^ 1169-1174, object and extent of doctrine of. 1109. in total failure, to w'hom results, 1170. reconversion, 1175-1178. definition of, 1175. parties sui juris who may elect to have a, 1176. mode of election; express or implied, 1175, 1177. COVENANTS, creating equitable servitudes enforced or violation restrained against per- sons having notice, 689^ 692, 1295, and notes. CREDITORS' SUITS, 1415. D DIRECTORS, jurisdiction of equity over, 158. 1088. are quasi trustees. 903 note. 1088. 1089. are quasi trustees and agents, 1089. 1090. powers of, derived from fimction of acencv, 1089. 1018 INDEX. DIRECTORS— C'ojifjHwe^Z. are quasi trustees for corporation with respect to corporate property, 1090. for stockliolders with reference to shares of stock, 1090. liability of, to stockliolders, as corporate agents, 1091. liability of, for a violation of their trust, 1091-1090. where guilty or fraudulent misrepresentations or concealments, 879, 881, 1092. where proceedings of, are ultra vires, 109.'i. wrongful dealings of, with corporate property, 1094, 1095. corporation when to sue, 1091, 1094. stockholders when to sue, 1091-109:^, 109.-). may be restrained from committing illegal or ultra vires acts, 1345. DISCOVERY. embraced in auxiliary jurisdiction of equity, 142, 190. different significations of term, 191. definition, and object of suit for, 191. origin of^ 192. entire or practical abolition of, 142, 19.3. 194. 281. rules concerning, recognized in statutory proceedings of, 194. when enforced, 191, 195-209. what proceedings, in what courts aided by, 196, 197. relations of parties to each other, that may be granted, 191, 198-200. plaintiffs in suits for, 198. defendants in suits for, 199. matters which may be subject of, 201-203. confined to facts material to jilaintiff's title or cause of action, 201. defendant need not criminate himself. 197, 202. bound to disclose frauds, 199, 201-203. what privileged from, 203. manner in which defendant must make, 204. of other property, 205, note, use of answer in suit for, governed by rules of evidence, 208. as source or occasion of equitable jurisdiction, 223-230. early and modern English rules, 224-220. American rule as to deciding whole controversy, where asked, 227-230, 234. concurrent jurisdiction enlarged, 223, 227. limitations on rule, 228, 229. true meaning of rule, 230. effect of legislation, 230. DOCTRINES OF EQUITY, what are, 301. See Penalties; Forfeitures; Electiox; Notice, etc. DONATIONS CAUSA MORTIS. See Gifts C.\usa Mortis. DOWER, ASSIG K:\IENT OF, early origin of equitable jurisdiction, 1380. jurisdiction for what purpose at first invoked, 1381. growth of the jurisdiction, 1380, 1381. advantages of equitable remedy of. over legal remedy, 1382. exclusive jurisdiction for, in equitable estates, 1383. INDEX. 1019 E. ELECTION, rationale of doctrine of, 462, 4G5. foundation on maxim. He wlio seeks equity must do equity, 465. meaning, scope, and elTects of, 466-470. compensation made to disappointed third person, 468. r^l7. applies to all instruments of donation, 470. necessity for, when does or does not arise, 471-50.5. fundamental rule of interjiretation, 472. interpretation where donor has only a partial interest, 473, 488. strong leaning against, by courts, 473. 488. extrinsic evidence of intention, whether admissible, 473. • cases arising where donor gives property wholly another's. 47f>-486. gift of specific property, 473. 477. will invalid in another country or state, 484. cases arising where donor gives pi'operty in which he has partial interest, 487-505. general doctrine, 473, 488. donor owns only an undivided share, 489. dower and benefits given by husband's will, 492-502. general rule when widow compelled to elect, 493. rule changed bj' statute in certain states, 494. devise in trust to sell or with power of sale, 499. devise to widow and others in eqvial shares, 502. who may elect, 507-510. court elects for infants, 509. court elects for lunatics, 510. rights and privileges of i)ersons bound to elect, 511, 512. time of, 513. mode of, express or implied, conduct amounting to, 514, 515. effects of, 510, 517. EQUITABLE ESTATES, cases concerning^ embraced in exclusive jurisdiction, 137, 146. maj' exist in things real and personal, 146. may be of various amounts and degrees, 140. distinction between, and "equities," 146. defined and described, 147-149. require two estates vested in diff"erent persons, 147. are regarded in equity as the real ownerships, 147, 685, 975. two classes of, liermanent and temporaiy; examples of. 148. may be regarded as trusts. 149. distinction between certain doctrines governing, and, 150. enumeration of, 150. various, described : trusts, married women's separate property, mortgages, liens, etc., 975-1291. See Trusts; Married Women, etc. EQUITY, necessity of an historical review of, 1. aequitas in the Roman law, 8-9. analogies and differences between growth of, in English and Roman law, 9. origin and growth of, in English law, 10-42. primitive condition of the law and the courts, 12, 13. infiuence of Roman law on, 15. 1020 INDEX. EQUITY— Continued. causes which made a court of, necessary, 16-23. the rigid character of the coninion hiAV, Ui, 17. the feudal origin and nature of certain laws, 18. 19. the position and policy of king's parliament, and the nation to the Romish churchy 20. the common-law procedure, 21-23. statute Edw. I., concerning new writs, and limited results of same, 24-29. commencement and progress of jurisdiction of, 12, 30-42. See Juris- diction OF Equity. nature of, 43-67. importance of a correct notion of, 43. various meanings given to the word, 44, 45. true meaning of, 46, 47. theories of early chancellors concerning, as both supplying and correcting common law, 43, 45, 46, 48-54. antagonism to the common law, 48, 50, 54. chancellors guided by conscience, 49. growth of pre-cedents: efl'ect of, 49. jurisdiction extended to matters not remediable at common law; lati- tude of this maxim, 50. jurisdiction supplementary to and corrective of common law, 48, 50. unlinished work of chancellors in reform, 53, 54. reform, how accomplished, 53. the law corrected and modified by. as now administered, 54, 101. source from which early chancellors took their doctrines, 55-58. "conscience," notions of early chancellors of, as ground of authority, 55— 58, 873. finally establislied on basis of settled principles, 59-61. expansive and flexible nature of precedents, 59-61, 67. equitable jurisdiction, how determined at present day, 62. recapitulation, 63-67. how atl'ected by moral precepts, 49, 63-67. 424. present relations of, with law. 68-88. importance of correctly imderstanding, 68. the law changed by statutes and decisions, 69. constituent parts of, 89-117. rights classified and kinds embraced in, 90-117. See Rights. classification of, 118-128. See Classification of Equity. jurisdiction of, 129-358. See Jurisdiction of Equity. . ESTOPPEL, nature of rights created by equitable. 801. equitable, ari.ses from matters in pais, or conduct of party, 802. fraud, liow far essential in equitable. 803. 805-807. definition of equitable, 804. essential elements constituting equitable, 805. requisites of equitable, illustrated, 808-812. nature of conduct of party creating. 808. knowledge of the truth by the party estopped, 809. ignorance of truth by party claiming benefit of, 810, intention of party estopped, 811. INDEX. 1021 ESTOPPEL— row t in ved. coiulucl. iiiusi he rcliod ujxm and bo inducement to act, 812. operation and extent of ('(luital)U'j 813-815. whether ai)plies to married women, 814. to infants, 815. important applications of. in equity, 816-821. acquiescence as working, 816-821. as preventing rights of i-emedy, 817, 897, 917, 965, 1359, 1376. note. as an, to rights of property or contract, 818. corporations estopped by statements in prospectuses, 819. stockholders estopped from setting up ultra vires acts, 819. in settlements of accounts or other dealings, 820. from conduct of debtor towards intended assignee of thing in action, 704, 820. o\\^ler estopped from asserting legal title to land, 821. EVIDENCE, parol. 1() show mistake, accident, or fravid, 857-867. may be admitted to show mistake, accident, fraud, or surprise, 858. admitted in suits for reformation and cancellation^ 859. admitted in defense to show fraud, surprise, or mistake, in suits for specific performance, 860. by plaintiff in suits for specific performance to show fraud, surprise, or mistake, 861-863. not in general admitted in England, 861. admitted in America, 802. admissible to prove parol variation part performed, and contract then enforced, 861, 863. effect of statute of frauds upon use of, 864-867. two classes of eases : omissions ; insertions, 865. limitations on admissibility; Glass v. Hulbert, 867. EXCLUSIVE JURISDICTION. Avhat embraced in, 137. 138, 146. embraces cases where primary' estate, right, or interest is equitable, 137. 146, 222. cases where the remedy is purely equitable. 138, 146, 222. equitable estates and interests coming within, 146-169. See Equitable Estates. remedies belonging to, 170-172. See Remedies; Interpleader; Receivers; IX.TUNCTIONS; SPECIFIC PERFORMANCE, etC. EXONERATION, 1417. F. FORFEITITRES. when equity will relieve again.st, 449-458. relieved against when agreement secured is one for payment of money. 433, 450. 456. whether relieved against when agreement is for performance of act in pais. 433, 450. whether depends on fact that compensation can be made, 381, 433, 450. 1022 INDEX. FORFEITURES— Coriii»»ed. occasioned by fraud, accident, suipiise, or ignorance, 451, 454, 826, 833. no relief \\\wn willful, or occasioned through negligence, 452, 856, note, arising from covenants in leases, 450, 453, 454. from contracts for sale of land, 1408, note, from other contracts, 456. of shares of stockj 457. statutory, not relieved against, 458. equity will not enforce^ 459. (See Penalties. FRAUD, various reliefs possible at law and in equity on ground of, 872. equitable theory of, how differs from legal conception, 872, 885. description of; essential elements, 873. four forms and classes of, in equity, 874. actual, 875-921. nature of^ 875. misrepresentations constituting, S7()-S99. must be affinnation of fact, 877, 878. whether may be of matter of ojunion, 877, 878. representation, purpose for which must be made, 879-881. nature of, illustrated by false prospectuses, reports, circulars, etc., 881. unlrutli of statement necessary, 882. intention, knowledge, or belief of party making statement, 883-889. tliree forms of misrejiresentations at law, 884, 886, 887. rule in Derry v. Peek, 884, note, in equity; no incident of moral culpability, 885. forms of misrepresentations in equity, 886-888. requisites of misrei^resentation as defense to specific perform- ance, 889. reliance upon misrepresentations necessary, 890-896. party must be justified in relying, 891. when party is, .or is not, justified in relying, 891-896. when information or means of information are possessed, 893. possession of knowledge; j^^tent defects, 894. when knowledge or information must be proved and not presumed, 891, 895. effect of words of general caution or advice, 896. prompt disaffirmance necessary fo:- relief in general 817, 897, 917. must be material. 879, 890, 898. effects of: defensive and affirmative reliefs, 899. conocahuents constituting, 900-907. (if material fact, when duty to disclose, constitutes, 901. when duly es, to restrain waste. ini])r()]ier sales, etc., 1345. public officers not restrained from acting as such. 1345. illegal, improper, or unlawful acts when restrained. 1345. acts of municipal corporations and their officers, 1345, note. 65 7r lU26 INDEX. INJUNCTIONS— ConitMMed. imposition or enforcement of taxes, 258-2G0, 265, 270, 1345, note, unlawful exercise of eminent domain power, 1345, note, cloud on title prevented by, 1345, 1398, note, to prevent or restrain commission of torts, 1346-1358. estates and interests generally legal. 1346. kinds and classes of torts restrained, 1347. in case of waste, actual or threatened^ 1348. See Waste. public and private nuisances. 1349-1351. f^ee NUISANCES, violation of easements. 1351. patent rights and copyrights. 1352-1352d. literary property, as distinct from copyright, 1353. works of creative art.. 1353. trade-marks, 1354. exclusive franchises, 13o4a. good-will, 934, note, 1355. trespasses, 1347, 1356. 1357. - slander of title; libels, 13.58. the "riglit of privacy," 1358. note, strikes, boycotts, etc., 1358. note, mandatory. 1359. term is, in strictness, confined to interlocutorv^ or preliminary, 1359. to restrain actions or judgments at law, 1360-1365. origin of the jurisdiction, 1360. when jurisdiction not exercised; general doctrine, 1361. when jurisdiction exercised^ 1362-1364. equitable estate, right, or interest involved, 1362. legal remedies inadequate, 1363. instruments executed tlirough fraud, 221, 914, note. 1363. eqiiitable affirmative relief necessary. 1363. fraud, accident, or mistake in trial at law, 1364. jurisdiction obsolete through ])ower of granting new trials at law, 1365. remaining in courts of equity, 1365. INTEEPLEADER, remedy of. is ancillary and provisional, 171, 1319, 1320. general nature and object of, 1320. rationale of the remedy; the risk of being vexed by several suits, 1320, note, may be granted whether claims are legal or equitable, 1321. essential elements requisite for remedy of, 1322-1326. the same thing, debt, or duty, 1323. claims of different amounts, 1323, note. privity between opposing claimants. 1324. plaintiff a mere stake-holder, without claim or interest, 1325. no independent liability to one claimant, 1326. by bailees, agents, tenants, and parties to contracts, 1326, 1327. bill of, what allegations must contain, 1328. • bill In the nature of a bill of, 1328, note. in legal actionsr 1329. INDEX. 1027 J. JURISDICTION OF E(}U1TV. conniienc'(>nuMi( ami proyipss of, 12, :^0-42. iuuii'iit office of cliancellov. 12, 31. early ordinary jurisdiction of chancellor, 32. chancellor's extraordinary jmisdiction ; grace, 33-35. commencement of^ 33. rapid gro%\'th of; statute of 22 Edw. III., concerning, 34, 35. principles upon which chancellor based decision, 35, 50. developjuent of. 36-30. ill-defined in earliest periods. 3(1. over crimes; recovery of land: trespass. 36. causes tending to extend. 37. 3S. the power of probing consciences. 37. of prevention, 37. of awarding damages, by statute, 37. recognition by Parliament. 37. introduction of uses_. 38. opposition to, from Parliament^ and common law judges, 39. how far combined with that of law in England and America, 40—42. definition of, 129, 130. requisites, in order that a case may come within the, 130, 424, want of, effect on judgment, 129, 130. objection to, when to be raised, 13'0. distinction between existence of, and its pi-oper exercise, 139. note, depends on exist<»nce of equitable rights and interests and equitable reme- dies, 133. 424. threefold: exclusive, concurrent, and auxiliary, 136. what embraced in exclusive, 137, 138, 146-172. See Exclusint: Jurisdic- tion. Avhat embraced in concurrent, 139, 173-189. Se^ Concurrent Jurisdiction. what embraced in auxiliarj', 142, 190-215. See Auxiliary Jirisdiction. rules concerning government of, 216-281. inadequacy of legal remedies aftecting, 132, 133. 137-139, 173, 176, 180. 216-222. See Remedies. discoveiy as a s(jurce of, 223-226. See Discovery. when attaches for any purpose extends to whole controversy, 231-242. as applied to concurrent jurisdiction, 231. as applied to exclusive jurisdiction, 232. illustrations of doctrine, 234-241. in cases of discovery, 224-230, 234. See Discovery. of administration, 23.5^ 11.54. of injunction, 236. 237. miscellaneous cases, 238-241. ; eflFect of reformed procedure on doctrine, 242. exists to prevent a multiplicity of suits, 243-275. See Multiplicity OF SlUTS. once existing, not lost by jurisdiction subsequently acquired by law courts, 276-281. where jurisdiction enlarged by law courts, 277, 278. where jurisdiction enlarged by statute, 279, 280. where statute destroys cquily jurisdiction, 281. as held bv the courts of the several states and the United States, 282-358. 1028 INDEX. JURISDICTION OF EQUITY— Conlijiticd. unlimited jurisdiction not held by any American tribunal, 282. amount of: four classes of states, 283-288. lii'st class: where expressly eo-extensive witli Kn<>;Iish court ot chancery, 284. second class: where impliedly co-extensive., 285. third class: where limited by statute, 280. fourth class: no distinction made between law and equity, 287. as established by Judicial interi)retation, 289-358. uniformity does not exist, 200. in the United States courts, 291-208. See United States Coirts. states where jurisdiction complete, 342-352. where limited by inadequacy of legal remedies, 344. extent of statutory jurisdiction, 345. reformed procedure as art'ecting, 353-358. See Reformed Pro- cedure. L. LEGACIES, concurrent jurisdiction of equity over, 187, 1127. jurisdiction of equity over, when exclusive, 1127. 1 128. as exists under American legislation. 1120. kinds of, 1130. specific, what are, 1130. ademption of, what is, and rules concerning. 1 131. general, what are, 1132. demonstrative, what are, 113.3. annuities, what are, 1134. abatement of, 1135-1143. See Abatement. lapsed, when occur^ and result, 1144, 1145. statutory changes, 1145. equitable liens arising from charges of, on property, I244-I248. See Liens. LIENS, equitable. 1()5-1G7, 12.33-1269. what included within term, 1233. dittercnce between, and common law, 1233. analogous to and not a species of trusts, 1234. introduced to make equitable relief on executory contracts, efficient, 1234. theory of, founded in contracts, express or implied, 1234. arising from express contract, 1235-1237. executory agreements indicating intent to charge or convey prop- erty as security, 1235. agreement with reference to future-acquired property, 373, 1236, 1288. 1280. form and nature of agreement immaterial if intent appears, 1237. agreements to give, and defective mortgages, 383, 1237. illustrations of agreements creating, 1237. S(>e Assignments. arising from implied contracts, 1238-1243. nature of implied contracts in equity, 1238. INDEX. . 1029 LIE'SS— Con fi)7 tied. principles upon wliieh based, 1239. expenditure by one joint ownerj 1240. expenditures throuuh mistake for true o^\^le^'s benefit, 1241. arising from cliarges by \vill or by deed, 1244-1248. intent to charge must clearly appear, 1245, 1246. from express charges, 1240. from im2)li<'d cliarges, 1247. ordinary, in favor of grantor, on conveyance, 124!(-r254. adopted in England and in what states, 1249. origin and rationale of, 125((. permitted only for unpaid purcliase price, 1251. debt for purchase price must be certain, ascertained, and absolute, 1251. how discharged or waived^ 1252. against whom avails, 1253. in favor of whom, avails, 1254. whether personal and not assignable, 1254. assignment of debt., whether carries lien, 1254. in favor of grantor, wliere reserved, 1255, 1259. wliat a reservation, 125(i. resemble purchase-money mortgages. 1255, 1257, 1258. priority of. over general encumbrances, 1258. how, may be discharged or waived, 1259. assignable a?ul not i)ersonal, 1259. enforced by suit similar to foreclosure, 1259. in favor of vendor on contract of sale, 1260-1262. distinction between, and gi'antor's liens on conveyance, 1260. is a mode of expressing vendor's interest arising from conversion, 1260, note, 1261. vendor*s and vendee's positions detennined by, and operation of, doctrine of conversion, 368, 372, 1161, 1261. how enforced, 1262. in favor of vendee on contracts of sale, 1263. arising from deposit of title deeds, 1264-1267. the English doctrine, 1264. the doctrine in America, 1265. various statutory. 1268, 12(i9. nature and object of; mechanics' liens, 1268. LIS PENDENS, constructive notice by, 632-040. See Notice. M. MARRIED WOMEN, separate estate of, 1098-1113. is a particular instance of tnists, 1008. early origin of, 1098. jurisdiction of equity over, exclusive, 1098. 1099. legislation creating statutory estates, effect of. 1099. 1105. actual tnisteos in crealion of. unnecessary, 1100. how, and by what instruments created: ante and post nuptial settle- ments, gifts, etc.. 1101. 1030 INDEX. ]VL\RRIED WOME'S— Continued. what words showing intention to create sufficient, 1102. what property may be included in, 1098, 1101, 1103. power of disposition of, in England, 1104. in America, 1105. restraint on anticipation^ clauses in, may be inserted in settlement and conveyance, 980, 1098, 1107. what words sufficient to constitute restraint, 1108. effect of the restraint, 1109. terminated before or after coverture by wife's dealings, 1103, 1110. devolution in intestacy, 1110. settlement or conveyance by, in fraud of marriage set aside, 1113. equity to a settlement, 1114-1118. is an application of. He who seeks equity must do equity, 1114. extends to M'hat property, 1115. against whom extends, 1114, 1115. when does not arise, 1116. maintenance of, power of equity to compel, 1119. alimony, what is, 1120. jurisdiction of equity to award, 1120. contracts of, 1121-1126. liability for, an incident of separate estate, 1122. separate property subject to restraint on anticipation, not liable for, 1107, 1109, 1123. separate property held at time of engagement only liable for, 1123. life interest with power of appointment liable for, 1123. personal decree cannot be obtained on, 1121, 1123. separate property, how reached on, 1123. separate property, for what kinds of, liable, 1124-1126. in England, 1104, 1124. in America, 1125, 1126. MARSHALING OF SECURITIES, maxim, He who seeks equity must do equity, the source of doctrine of» 396. nature of the remed}^ of, 1413. general doctrine and rules concerning, 1414. MAXniS OF EQUITY. underlie the whole of equity jurisprudence, 359, 360. list of, and importance of, 363. Equity regards as done what ought to be done, 364-377. importance and general operation. 364. true meaning and effects, 365-377. is the source of equitable property and estates, 366, 377. sources of legal property or titles described, 366. ; effect of executory contracts at law, 367. in equity, 368, 372, 1161, 1260, 1261, 1263. sources of equitable property described, 369. equitable estates derived from. 370-377. conversion, 371, 1159. See Conversion- assignments of possibilities and property to be acquired iB future, 369, 1235. of things in action, 1270. of a fund, 1270. INDEX. 1031 MAXIINIS OF KQUITY— Continued. See Assignments. equitable liens arising from contracts, 373, 1235. See Liens. express trusts^ 374. trusts arising by operation of law, 375. equity of redemption. 370. conclusion. 377. Equity looks to the intent rather than to the form, 378-384. meaning and et!'ect. 378. legal requirements of form, 379. is the source of equitable doctrines, 380-384, of prop«n'ty, 380. penalties and forfeitures. 433. equity of redemption, 382. effect of a seal, 379, 383. of merger, 786. He who seeks equity must do equity, 385-396. meaning of, 385. when applicable. 386, 387. a general rule regulating administration of reliefs, 388. applied to wife's equity, 1114. equitable estoppel, 816. relief against usury, 301, 937. special instances, 392. 393. is the source of certain equitable doctrines, 394-396. of election, 461, 465. marshaling securities. 396. He who comes into equity must come with clean hands, 397-404. meaning of, 397. regulates tlie administration of reliefs, 397. is based upon conscience and good faith. 398. limitations ujion, 399. applied to specific performance. 400, 459, 1404. fraud; plaintiff's claim tainted with. 401, 916. illegality; parties in pari delicto, 940, 941. parties not in pari delicto, 942. usury; contract tainted with, sought to be enforced, 937. conclusion. 404. Equality is equity, 40.'i-412. general meaning of, 405. effect upon certain equitable doctrines. 406-411. pro rata distribution and contribution, 406, 407. ownership in common, 408. joint liability,. 409. settlement of insolvent estates, 410. marshaling of assets, 410. abatement of legacies. 1136. apportionment of lions. 1222. appointment under trust powers. 1002. Where there are equal equities the first in time shall prevail, 413-415. meaning of "equities," 413. application of, 41.3, 416. 591. 678, 682, 718. true meaning of. 414. 678. 1032 INDEX. MAXIMS OF EQ\:iTY— Continued. effect of J 415. Where tliere is equal equity the law must prevail, 416, 417. application of, 416, 591, 678, 682, 741. meaning and effects of, 417, 678. Equity aids the vigilant, not those who slumber on their rights, 418, 419. meaning of, 418. controls the administration of remedies^ 418. application and effects of^ 410. Equity imputes an intention to fulfill an obligation, 420-422. meaning and aj^plication of, 420. is the source of certain equitable doctrines, performance of covenants^ 570. trust resulting from acts of trustee, 1040. Equity will not suffer a wrong without a remedy, 42.3, 424. meaning of, 423. is the source of entire remedial jurisdiction, 423. limitations on, 63-67, 130, 424. Equity follows the law, 42.5-427. twofold meaning of, 425, 426. first, in obeying the law, 425. secondly, in ajiplying legal rules to equitable estates, 426, 982. narrow operation of, 425, 427. Equity acts in personam, and not in rem, 428-431. origin and original meaning of, 428. in what sense equitable remedies o]ierate in rem, 429. operation of equity on conscience of party, 430, 431. MERGER, originates in maxim. Equity looks at intent and not at form, 786, of estates, 787, 788. legal doctrine and rules of, of lesser in greater estate, 787. equitable doctrines and rules, 788. of charges, 780-800. o\vner of property becomes entitled to charge, 790-705. intention prevents, 791. time and mode of intention, 792. when mortgagee takes conveyance of land, 734, 790, 793. when mortgage assigned, 790, 793. never prevented when fraud or wrong would result, 794. Avhen life tenant becomes entitled to charge, 795. owner of land pays oft" charge, 796-799. owner in fee personally liable pays off charge, 797, 1205, 1206, note, 1213. owner not pei'sonally liable pays off charge, 798, 1211. life tenant pays off charge, 799. priorities affected by, 800. MISTAKE, early origin of equity jurisdiction concerning, 838. possible modes in which remedial jurisdiction occasioned by, can be exer- cised, 838. definition of, 839. distinction between accident and, 823, 839, 873. may be of law or of fact, 840. INDEX. 1033 MI STAKE— Co >i i in ucd. of law, 841-851. various conditions included in Ihe term, 841. general rule and limitations, 842. when relief will or will not Ik- grniiicd, 843-851. no relief when, as to general rule of municipal law, 841, 842, 849. nor when, as to legal import and effect of a transaction, 843. relief from, of law may be granted, 842, 844. no relief if agreement was as intended to be, 843, 84.'j. when written instrument does not express intention, 84.^), 870. when common to all parties, 846. attempted distinction between, of plain and doubtful rules of law, 846. when accomiianied with inequitable conduct of other party, 842, 847. when occurs in transaction between parties in trust relations, 848. relief when, as to existing legal rights, interests, or relations, 849. compromises and voluntary settlements made under, as to legal rights, when relieved against, 850, 871. money jiaid under, cannot be recovered back, 851. of fact, 852-856. • how^ may occur: subject-matter; terms, 853. in what may consist, 854. in compromises of doubtful claims, 850, 85.5, 871. in speculative contracts, 855. requisites to relief from, 856. must be material, 856, 860. must be free from culpable negligence, 856. how shown, when by parol evidence, 857-867. See Evidence. instances of equitable jurisdiction occasioned by, 868-871. by way of defense, 860. by way of afHrmative relief, 860-871. money paid or chattels delivered by. 869. cancellation and reformation when appropriate for, 870, 1376, 1377. conditions of fact which are occasions of affirmative relief, 871. MORTGAGES OF LAND, under the English doctrine, 1179-1185. at the CDiimion law^ 1179, 1182. origin and development of equity jurisdiction over, 1180. equitable theory of, 1180-1182. double system of, at law and in equity, 1182. legal and equitable remedies of parties, 1183. the two theories kept distinct, 1184. subsequent equitable, 1185. under the American doctrine, 1186-1191. where both legal and equitable theories adopted, 1187. where equitable theory alone adopted, 74, 16.3, 1188-1190. consequences of mortgagee's obtaining possession, 1189, 1190, 1215. equitable remedies of the jiarties, 1188, 1190. in e<|uity are securities for debts, 1192. once a mortgage always a mortgage, 1193. 1034 INDEX. MORTGAGES OF "LA^D—Continutd. mortgagor cannot, in instrument, deprive liimsclf of rights of redemption. 382, 1193. stii)ulations in, giving mortgagees advantage, invalid, 1193, note, conveyances with agreements to repurchase distinguished from, 1194, 1195. continued existence of debt the criterion.. 1192, 1195. conveyances absolute in form as^ 119ti. to secure future advances, 1197-1199. validity of, as between the parties. 1197. validity of, as against subsequent encumbrancers or purcha.sers, 1198, 1199. i-ecording acts as afl'ecting, 1199. to secure several different notes or bonds, 1200-1203. order of priority among assignees of notes, 1201. assignment of note is assignment pro tanto of mortgage, 1202. foreclosure and redemption in case of, 1202. priority wliere mortgagee retains part of notes, 1203. conveyance by mortgagor subject to, eHVct of, 1205-1208. See Mortgagor ANo Mortgagee. assignment of, by mortgagee, 1209. 1210. assignment of debt carries, with it, 1210. subject to equities, 704, 733, 734, 753, note, 1210, note, equitable assignment by subrogation on payment of mortgage debt, 798, 1211-1214, 1221. in whose favor e.vists, 798, 1211-1213. See. jNIerger. actual assignment when compelled by equitable assignee, 1214. rights and liabilities of mortgagee in possession, 1215-1218. See Mortgagor AND Mortgagee. redemption of, 1219-1220. See Eedejii'TIOX. foreclosure of, 1227, 1228. equitable liens created by agreements to give. 1237. by informal and defective, 383, 1237. See Mortgagor and Mortgagee. MORTGAGES OF PERSONAL PROPERTY, at law are conditional sales, 164, 1229. jurisdiction and remedies of equity concerning, 1230. statutory changes concerning, 164, 1232. embracing future-acquired property are equitable liens, 1236. note. 1291. MORTGAGOR AND :\10RTGAGEE, interest of mortgagee, in equity, liable to he sold on execution, 1204. of mortgagee liable to be reached by creditors, 1204. fiduciary relati, 268-270. privity or common interest between parties whether necessary, 251, 255-261, 264-270. distinct proprietors injured by one wrong, 257, 264, 268, 269. distinct proprietors relieved from illegal taxes, assessments, and iHiblic burdens, 258-260, 261, note, 265, 266, 270, 273, 1345. miscellaneous instances, 261. title, whether and how to be established at law, 252, 253, 250, 263, 267. who may be plaintiffs and who defendants, 251, 267. 269. summary of conclusions, 267-270. X. NON COMPOTES MENTIS, jurisdiction of, equity over persons and property of persons, 1311-1314. origin of the jurisdiction, 1311. jurisdiction in the United States, 1313. in cases of weak and luisound mind, 1314. XOTICE. maxim. When there are equal ecpiities the first in lime shall prevail, ap- 1)1 ied to, 416, 591. When there is equal equity the law must prevail, apj)lied to, 416. 591. im))nrtance of doctrine of, in determining when equities are equal, 591, general rule as regards one purchasing with, 591. whether entire doctrine of, based ujuni fraud. 591, 665. knowledge and. distinguished. 592. kinds of, actual and constructive. .")93. definition of, 594. actual, 595-603. when shown by indirect evidence, 596. vague rumors, hearsay statements^ whether constitute. 597, 602. 1036 INDEX. 'NOTICE—Contimied. information sufficient to i)ut prudent man on inquirs' constitutes, 597. kind and amount of information necessary to constitute, 599. what circumstances sufficient to constitute; relationsliip, intimacy, inadequacy, defective recording, etc.j 600. by extraneous facts, 600^ GIO. effect of explaining or contradicting information given, 599, 601. information by whom may be given. 599^ 602. wlien must be given and received, 602. constiaictive, 604-676. what is, 593, 604. presumption when rebuttable, 596^ note, 606, 607. presumption, wlien conclusive, 596, note, 606, 608. by extraneous facts^ generally acts of fraud, negligence, or mistake, 610-613. visible objects and stiiictures. constituting, 611. absence or non-jiroducfion of title deeds, constituting, 606. 012. information of other facts, although perfect record title, 613, 659- 665. by possession or tenancy, 614-625. general rules as to. tu purchasers and encumbrancers, 614. 615. by lessee whetlier. of subsequent and collateral agreement. 616. possession whether, of different title, where a title recorded, 616. grantor remaining in possession whether, 617. tenant's possession whether, of lessor's title, 618. when actual, oj)en, exclusive occupancy, 615, 620. time of possession^ 622. presumption is rebuttable, 624. by recital or reference in instruments of title. 626-631. general rule as to recitals or references, 626. presumption conclusive, 627. extent of, 628-631. by lis pendens, 632-640. rationale of doctrine, 632. general rule, 633. begins witli service of subpoena or other process, 634. how long continues and when ends, 634. suit must be pi'osecuted in good faith and with diligence, 634. what allegations in pleadings necessary, 634. rules should apply to counterclaims and cross-complaints under reformed procedure, 634. rule extends to suits concerning land, 635. how far extends to suits concerning personal property, 636. who are affected by, 637, 63S. prior right acquired before commencement of suit, 637. purchaser from either litigant party. 638. not favored by courts of equity, 639. statutory notice of lis pendens, 639, 640. by judgments, 641—643. by registration or recording of instruments, 644-665. statutory system in England, 645. in the United States, 646. INDEX. 1037 iiOTlCE—Continved. tlieory, scope, and object of legislation, 649. requisites of record in order to be notice, 650-054. instrument must be of kind of which recording authorized, 651. must be duly e.xecuted and acknowledged, 052. record must be made in proper form and manner. 053. record nuist be true copy, 054. premises how must be described, 054. extent to wliich record is notice, 055. to whom record is notice, 056-058. not to prior parties, 057. to subsequent purchasers under same grantor, 050, 058, 761. record of instruments made by vendor prior to vendor's record, 058. effect of other kind of notice in absence of record, 01.3. 059-065. kinds of notice sufficient to produce effect. 001-005. whether actual or constructive, 001. rationale of notice in i)lace of record, 005. between principal and agent, 600-070. V general rule that notice to agent is constnictive notice to principal, .:; 660. .-t rule embraces all who act for others in business relations, 067. notice must be within scope of agent's authority. 068. notice to agent may be actual or constructive, 669. notice must be given agent during actual employment, 670. must be given in same transaction souglit to be affected. 671, 672. when may be given in prior transaction. 672. information must be material and such as agent is boimd to com- municate, 673. presumption of communication to principal, 669, 073. is generally conclusive, 009, 073. when not conclusive; agent's fraud, 075. rule is based upon policy and expediency, 006, 676. NUISANCES, public, when restrained, 1349. private, wlien restrained, 1350. interlocutory injunction; balance of injuiy; laches and estoppel, 1350a. form of decree: complete relief, etc., 1350b, violating easements, restrained: ancient lights; excavations; polluting and diverting streams, etc., 1351. mandatory injunctions, when granted, in case of, 1359. P. PARTITION OF LAND, common-law remedy; extent and insufficiency, 1380. early origin and extent of equitable jurisdiction, 1387. complainant must show title in himself, 1386^ 1388. accounting in, where joint owner or owner in common receives more than share of profits, 1389. reimbursement in. for expenditures by one of parties, 393, note, 1240, note, 1389 1038 INDEX. TARTITION OF LA^B—Coiitiuurd. inconvenience or ilifRculty in, no jiround for refusinji relief, 1389. effected by mutual conveyances; "owelty" of partition, 1389. by means of sale; consent, 13'J0. PARTITION OF PERSONAL PROPERTY, jurisdiction of equity to decree, or sale, 1391. title tried by equity where disputed in, 1392. PENALTIES, when relieved against; general doctrine, 433. form of relief against, 434. what are, 435, 430, 441. stipulations to secure payment of money alone. 433, 436, 441. stipulations not, 437-445. when in the alternative, 437. for reduction of existing debt upon prompt payment, 438. for acceleration of jiayment of existing debt, 439. for linuidated damages, 440-445. rules determining liquidated damages and, 441-445. larger sums securing payment of smaller are, 433, 430, 441. agreements for performance of single a<:'t, Avhere damages not easily ascertainable, 442, 445. agreements for iierformance of several acts each, 443, 445. party liable in same amount, whether partial or complete default, 444. agreements for performance of one of several acts, where dam- ages not easily ascertainable, 445. specific jierformance cannot be resisted by payment of, 446. not decreed where sum to l)e paid is liijuidated damages, 447. See FoRFEiTrREs. PERFORMANCE, definition of, 579. two classes of cases involving doctrine of, 579. presumption of, by trustees pxirchasing with trust funds, 1049. enforcing agreements partly performed, founded on meritorious or imperfect consideration, 588-590. what is meritorious or imj^erfect consideration, 58S. agreements against and in favor of whom enforceable, 588. surrender of copyholds against beir supplied, 588. defective execution of powei's wlien aided, 58!*, 590, 834, 835. PERPETUATION OF TESTIMONY, suits for, branch of auxiliary jurisdiction of equity, 14*2, 190. nature and object of, 210, 211. practical abolition of, 142, 210. wlu'ii aiid by whom maintainable, 211^ 213. PLEIXJES, jurisdiction and remedies of equity concerning. 1231. PRINCIPLES OF EQUITY, 300. 303-431. See Maxims of Eqx'ity. 1ND.EX. 1039 PRIORITIES, dependence of doctrine of, on maxim. Where there are equal oqiiilics tin; first in time shall prevail, 416, 591, 678, 682, 718. on maxim, \\here there is equal equity the law must ])rcvail, 41(), oOl, 678, 682, 741. estates and interests to which doctvine of, applies, (i7!)-t)S]. does not apply to legal estates, 67!), 735. modification by statutes concerning fraudulent conveyances and recording, 680. applies to equitable estates and interests alone, 681, 735. principles embodying doctrine of, in general, 682. superior and equal equities, 683-692. superior equities defined and described, 684-692. nature of the equities, 685. superior equities by reason of fraud.. 686, 716, 731, 732. of negligence. 687, 716, 731, 7.32. effects of notice on equities, 688-692. notice of trust, contract, or lien, 688. of a prior covenant, 689, 692, 1295. See Covex.\xts. what is notice, 591-676. See Notice. time of the notice^ 691. of what notice must consist, 692. in assignments of things in action, 693-715. notice by assignee to debtor, holder, or trustee to establish, 694-697. necessary in England and certain states as against subsequent as- signees, 695^ 713, 989, 1279. extent of rule; does not apply to assignments of equitable interests in land, 697, 713. diligence of assignee in perfecting title and enforcing rights necessary, 698-702. questions in connection with assignmejit of shares of stock, ()99- 701. •as between assignee and assignor, or the com])any. 699. between assignee's and assignor's judgment creditors, 700. between prior and subsequent assignees, 701, 712, 713. prom])t notice to debtor necessary to prevent subsequent acts by him, 702. assignni'Mits of things in action subject to equitie*. 703-715. equities in favor of debtor part}-, 704. equities between successive assignors and assignees, 707-713. assignment, siibject to latent equities, 708, 709. effect of estoppel on ajiplication of rule. 710, 711. subsequent assignee obtaining legal title protected, 701. 712. 713. successive assignments by same assignor to difi'erent assignees, 713. equities in favor of third person, 714. 715. among ecpiitable estates, mortgages, liens, and other intei-ests, 710-732. doctrine of, greatly modified by recording acts, 717. priority of time among equal equities. 718. 719. sinniltaneous mortgages: substituted liens, etc., 719. one equity intrinsicully the superior. 720-726. sub-eqiiciil specific superior to prior general lien. 685, 720. 1040 INDEX. PRIORITl ES—Con tin iicd. prior unrecorded mortgage or lien superior to subsequent docketed judgment. 71!),, 721, 722. where judgment creditor liad notice, 723. prior unrecorded mortgage and purchase at execution under subse- quent judgment, 724. purcliase-monej' moilgages. 725. subsequent lion superior by reason of fraud in prior, 726. assignee having priority where fixed by agreement, 726. subsequent equity protected by legal title, 727-729. where legal estate is obtained from trustee, 728, 729, 770. legal estate obtained after notice of prior equity. 729. notice of existing eqiiities, 727. 730. effect of fraud or negligence upon. 716. 727. 731. 732. assignments of mortgages; rights of, depending upon, 733, 734. rights of assignee on unrecorded assignment, 734. Q QUIETING TITLE, statutorv' suit for, 1396, 1397. R RECEIVERS, equitable remedy is ancillary- and provisional, 1319. who are, 1330. api)ointment of, discretionary. 1331. cases in which, may be appointed, 1330, 1332-1335. where no person competent to hold property during litigation. 1330, 1332. infants', lunatics', and decedents' estates. 1332. litigants equally entitled to pro])erty. but unjust that either should re- tain control. 1330, 1333. suits between partners. 1333. partition between co-owners, 1333. suits between conflicting claimants to land, 1333. suits against persons in position of trust or quasi trust, misusing property, 1330^ 1334. instances, 1334. in mortgage foreclosure. 1334. note, receivers of corporations. 1334, note, after judgment to carry decree into effect, 1330, 1335. creditors' suits; enforcing liens and contracts of married women; winding up corporations, 1335. appoi)itment during litigation does not determine any right or title of parties, 1336. are quasi trustees. 1336. poweis, rights, duties, and liabilities of, 1336. who may be appointed, and effect of appointment, 1336, note, notice, possession, suits by and against, management of the property, pay- ment of claims, compensation, etc., 1336, note. EEDEIMPTIOX, meaning of, 1219. INDEX. 1041 REDEMPTION— Co«/r«Me(Z. requisites of maintaining suit for, 1219. suit for, wluii maintainable by persons other than mortgagor, 1220. contribution and exoneration^ rights of., on, 1221-1226. where equities are equal, contribution pro rata, 1222. where equities are xmequal, 1223-1225. between tenants for life or years, and remaindermen or reversion- ers. 1223. mortgagor and grantee by warranty deed of parcel, 1224. successive grantees by warranty deeds; inverse order of aliena- tion, 1224. circumstances disturbing equities and defeating rule, 1225. mortgagee, after notice, cannot disturb equities by release or agree- ment, 122G. KEFORMATION, re-execution of instruments virtually included in, 1375, note^ 1376. note. when granted, 845-871, 1376. See Mistake. no reformation in favor of a volunteer, 1376, note. reformation of married woman's deed, 1376, note. REFORIMED PROCEDX'RE, as changing the relations of equity to law, 35.3-357. distinction between actions at law and suits in equity abolished by, 40, 354. in wliat states, 40^ note, deals with the procedure alone. 354. jurisdiction of equity in granting remedies, how aflfected by, 355, 357. what equitable interests aflected by, 356. BEMEDIES, definition of, 00. remedial rights and duties, definitions of, 00. equity contains rules creating jii'iiU'Tiy duties and rights, and conferring remedial rights and^ 06-116. equitable primary rights, 08-107. See Rights. equitable, generally; kinds and classes of, 108-117. diflerent from legal, although some legal in their nature, 101, 108. derivation of many from primary rights, 108, 111. character and number of legal and, 100, 175. flexible and exjiansive nature of, 100, 420. mode of administering, 1 1.3-1 l(i. common-law rules as to parties and judgments, 113. equitable rules, 114, 115. how far legal and equital)le, can be combined, 116. specific character of, 420. unlimited variety of. 111. classes of, 1316. inadequacy of legal, how far a test of equity jurisdiction. 132. 133, 424. is the grovmd of concurrent jurisdiction, 130, 173, 176. ISO. is the occasion only of exclusive jurisdiction, 137, 138, 130, note. 173. on what branch of exclusive jurisdiction principle of. operates. 210-221. summary of equity jurisdiction as affected by, 222. 66 ' " 1042 INDEX. REMEDIES— Con fitnicd. as affecting jurisdiction of United States courts, 295-297, 914. See IXTERPLEAUER; RECEIVERS; INJUNCTIONS; SPECIFIC PERFORMANCE; CAN- CELLATION; Accounting, etc. EIGHTS, priniaiy duties and., what are. 90. remedial duties and, what are, 90. divisions of primary: 1. Those concernine: personal status: 2. Tliose concerning things, 92. classes of, concerned with things; real and personal: descriptions, 93. real; genera embraced in. 94. personal ; genera embraced. 9.5. equity contains rules creating priiuary duties and, and conferring reme- dies and remedial, 90-117. equitable primary, kinds and classes of, 98-107. with what i)rimary, equity deals. 98-100. are different from or addtional to those existing at law^ 48, 50, 51, 101. equitable remedial, kinds and classes of, 108-117. See Remedies. S. SATISFACTION, definition of, 521. of debts by legacies, 527-543. legacy by debtor to creditor, 527-540. presumption arises of, 527. what prevents presumption, 528-538. payable at different time from debt, 530. of different nature^ or for different interest, 532. legacy in i^ursuance of agreement or express payment, 538. debt owing to a child or wife, 539. legacy by creditor to debtor, 541. how enforced, 543. of legacies by subsequent legacies, 544-552. same specific thing given by same or different instiiiments, 545. legacies of quantity given by different instruments, 540-548. second legacy regarded as cumulative, 546. presumption overcome bj' langiuige of testator, 548. legacies of quantity by same instnunent, of equal amoxnit, 549. by same instrument of une(pial amounts, 550. of legacies by portions and advancements, 553-564. h(w the cases arise, 553. pr('sum])tion of, where legacy given and afterwai'ds portion or ad- vancement, 554. subsequent payment less than legacy, wliether complete, 555. presumption applies to persons in loco parentis, 554, 55(). leaning of equity in favor of presumption, 557. whei'e the legacy is of uncertain amount, 558. where jjayment is made to husband of female legatee, 55^. payment made to child Itefore execution of \\ill, 560. whether twf> gifts should be ejusdem generis, 560. effect of a codicil after portion or advancement made, 561. . ' INDEX. 10-13 SATISFACTION— Continued. when parties are strangers, 5G2. when not presumed but expressed, 564. of portions by subsequent legacies or other similar provisions, 505-568. presumption of. arises, 565. beneficiary has an election, 568. SPECIFIC PERFORMANCE. ground of jurisdiction to grant remedy of: inadequacy and impracticability of legal remedies, 1401. award of damages not as beneficial as, 1401, note, extent of jurisdiction, 1402. 1403. inadequacy of damages, 1402. in contracts concerning land, 1402. to make a will of land, 1402^ note. in favor of vendor, 1402, note. concerning chattels and things in action, 1402. rare chattels, and those of peculiar value. 1402. other grounds for relief, 1402. note, assignments of debts, 1402, note, patents, 1402, note, awards when specifically enforced, 1402. special contracts where legal remedy inadequate, 1402. no relief when decree would be nugatory, 1402a. refused when court cannot render or enforce a decree, 1402b. arbitration agreements, 1402c. contracts for personal services, 1402d. for building and construction, 1402e. other contracts requiring continuous acts, 1402f. impracticability of legal remedies, 1403. jurisdiction to grant, discretionary, 1404. essential elements and incidents for, 1405. valuable consideration, 1203, 1405. cei-tainty as to subject-matter, stipulations, parties, etc., 1405. mutuality in obligation and remedy, 1405, and note, free from mistake, misrepresentations, fraud, or illegality. 1405. parol evidence to show mistake, fraud, or surprise, 860-867. mistake a defense to suit for, 860, 868. misrepresentations a defense to suit for^ 889, 899. fraudulent c(jncealnients a defense, 905. mere inadequacy not ground for refusing, 926. gross inadequacy may defeat, 927. note. 1405, note, of contracts in restraint of tra(h\ 934. usury a defense, 937. not decreed of gaming contracts. 938. 940. not decreed where parties in pari delicto. 929. 940. persons non compotes mentis, \\eak minded, intoxicated, etc., 946— 949. fairness, equality, and justiu'ss in lerms and circumstances, 1405. harshness and oppressiveness resulting from, 1405. vendor's title must be free from reasonable doubt, 1405. capacity and ability of defendant to obey decree, 1405. rights under the contract; purchaser entitled to benefits and assumes risks of ownership. 368, 1406. 1044 INDEX. SPECIFIC PERFORMANCE— Continued. I)ertorniance by plaintiff a condition precedent, 1407. failure of title, 1407. necessity of tender and demand of performance, 1407. time as affecting riglit to, 1408. stipulations concerning time generally treated as formal, 1408. time may he essential; intention, 1408. effect of forfeiture clause in contract.. 1408, note. time generally material, delay as defeating, 1408. of verbal contracts part performed, 1297, 1409. ground of remedy is equitable fraud, 1409. acts Avhicli do and do not constitute part performance, 1409a-d. possessio'n, imj^rovements^ 1409a. payment, 1409b. oral promise to give, 1409c. marriage not part performance, 1409d. partial performance with compensation, 1409f. damages in place of, 237, 1410. of obligations arising from trusts and fiduciary relations, 1411, 1412. nature and object of suits, 1411. suits against corporations to compel transfer or issue of stock, 1412. SUBROGATION, nature of remedy of, 1419. equitable assignment of mortgages by, 1211-1213. T. TESTIMONY DE BENE ESSE, suits for taking, branch of auxiliaiy jurisdiction of equity, 142, 190. nature and object of, 210. practical abolition of, 142, 210. when and by whom maintainable, 213. mode of using depositions, 213. examination of witnesses in foreign countries branch of, 214. TRUSTS, theory of, borrowed from Roman law, iidci-commissum. 97(), 977. uses, origin, growtli, and general description of, 1.51, 978-98.5. See Uses. are based on statute of uses, 984, 98G. effect of attempt to create jiassive, in states abolishing jiassive, 98G, note, 1004. attempt to create active, not allowed by statute, 980, note, 1004, note, wliat property may be the subject of, 151, 987. wlio may imjiress property Avith. 987. what trusts equity will enforce, 987. trustors not relieved where, illegal or fraudulent, 987. void, if forbidden by statute, or law of perpetuities. 987. divided into express^ and arising by operation of law, 987. express, divided into private and public, 987. private, divided into i>assive and active, 988. passive, 988-990. estates of Irustce and cestui que triist in, 153, 988, 989. "spendthrift trusts," 989, note. INDEX. 1044 TRUSTS— Co n tinued. rules of descent and succession generally applied to, 990. active, 991-9y.>. common classes of, 992. assignments for benefit of creditors, as a class of, 993, 994. deeds of trust to secure debts^ 995. voluntary, when binding and enforceable, 990-999. , executory and incomplete, not enforceable, 997. application of doctrine of; donor the legal owner, !)98. donor the equitable owner, 999. executed and executor^', 1000, 1001. powers in trust; what are^ and control of equity over. 835, 1002. express, how created^ 1006-1017. in real property ; writing necessary by statute of frauds, 1006. character of the writing requisite, lOOli, 1007. when and by Avhom writing executed* 1006, 1007. in personal property, may be created verbally, 1008. words and disposition sufficient to create, 1009. may be inferred by construction, 1009, 1010-1017. inferred from powers given trustees, 1011. from provisions for maintenance^ 1012. when necessary to carry out purposes of wills, 1013. from i^recatoiy words, 1014-1017. tendency against doctrine, 1015, 1017. what intention necessary, 1014, 1016. objections to doctrine of, 1017. public or charitable, 1018-1029. general description of^ 987, 1018. public, not private, benefaction requisite, 1019. what are charitable uses, 1019, note, 1020-1024. "statute of charitable uses," 1020. religious purposes; "superstitious" uses, 1019, note, 1021. benevolent purposes, 1022. educatiomil purposes, 1019, note, 1023. miscellaneous public purposes, 1019, note, 1024. certainty or uncertainty of object and beneficiaries, 987, 1018, 1019, 1025, 1027. of tiie trustee^ 1026. cy-pres, meaning and extent of doctrine of, 1027, 1029. origin and extent of equity jurisdiction over, statute of Elizabeth, 1020, 1028. in the Inited States, 1029. implied, or arising by operation of law, 1030-1058. general nature and kinds of, 1030. resulting, 1031-1043. trust resulting to donor, 1032-103fi. in failure of purposes; uncertainty; illegalit}^ 1032, 1033. when part only of estate, or equitable title only conveyed, 981, 1034. in convejance without consideration, 981, 1035. parol evidence to show, 1036. in conveyance to one, price i)aid by another, 1037-1042. where title is taken in names of some of grantees only, 1038. 1046 • INDEX. TRl]i^T8— Continued. part of consideration only paid, 1038. doctrine applies to personal and real property, 1038. purchase made in name of wife or child^ 103!1. parol evidence to show, 1040, 1041. interest and rights of beneficiary in, 369, 375, 1030, 1043. constructive, 1044-1058. number of instances ofj 1045. arising from contract express or implied, 104G. money received equitably belonging' to another, 1047. property subject to, acquired by vohmteers or purchasers with notice. 630, 688, 692, 770, 920, 1048. right to follow funds that have been mingled, 1048. note, fiduciary persons purchasing property with trust funds, 920, 958, 1049. 1058. renewal of leases by partners and other fiduciary persons, 1050. wrongful ajjpropriation or conversion of another's property. 1051. trust property wrongfully acquired by trustee or other fiduciary person, 958, 1052. ex maleficio, what are, and varieties of. 10.30. 1053. where devise or bequest procured by fraud. 430, 919, 1054. legal title procured on fraudulent verbal promise, 910. 919, 1055. no trust from verl)al promise to ]nirchase and convey. 1056. in favor of judgment creditors where property fraudulently transferred, 1057. rights and remedies of cestui que trust in, 369, 375, 1058, 1080. TRUSTEE AND CESTUI QUE TRUST, who may be in ordinary trusts, 987. infants, married w'omen, lunatics, corporations cestuis, executors, 987, note, trust not allowed to fail for want of trustee, 988, 1007. 1026. powers, duties, and liabilities of express trustees. 1059-1087. acceptance by trustee unnecessaiy to validity of trust, 1007. 1060. joint owners, when i)roperty given to two or more trustees. 1060. survivorship on death of trustee, 1060. duty of trustees to conform to directions of trust.. 1062. duty of trustees to render accounts, and nature of, 1063. to obey directions of the court, 1064. duty of trustees to restore trust property at end of trust, 1065. to use cai'e and diligence, 1066-1074. to protect and obtain possession of trust property. 1067. duty of trustees not to delegate authority. 1068. duty of tru^