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tween him and plaintiff that the
purchase should be made by B. on
joint account, each to furnish half
of the purchase-money. Plaintiff
placed in the hands of B. sufficient
funds to pay for his half. At the
time of the agreement the amount
of the securities and the price were
not known. In an action for an
accounting, held, that B. became
the agent of plaintiff as to the half
interest of the latter, and a quasi
trustee of the money placed in his
hands, and of the property pur-
chased; that the plaintiff had the
right to call B. to account in equity,
and the burden was upon the latter
of showing both the price paid and
what property was purchased.
Marvin v. Brooks.
71

2. As against a purchaser in good
faith and for value of a mortgage
upon land, executed by one in pos-
session of and holding the legal
title to the land, the grantor of the
mortgagor is estopped from claim-
ing that the conveyance was in-
duced by fraud on the part of the
latter. In such a case, however,
the fraud being established, the
burden is upon the holder of the
mortgage, of proving both that he
purchased for value and in good
faith. Simpson v. Del Hoyo. 189

When, in case of bonds issued
by a foreign corporation, which are
valid on their face, it is to be presumed
that the provisions of law authorizing
their issue has been complied with,
and the burden is upon one assailing
them to show the contrary.

See Nichols v. Mase.

160

CASES REVERSED, DISTIN-
GUISHED, ETC.

Vance v. Throckmorton (5 Bush, 41),
distinguished. Hancock v. Rand.
10

Manning v. Wells (9 Humph. 746),
distinguished. Hancock v. Rand.

10

Hursh v. Byers (29 Mo. 469), dis-
tinguished. Hancock v. Rand. 10

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Ormes v. Dauchy (82 N. Y. 443), dis. | Pratt v. Stevens (26 Hun, 229), re-
tinguished. People v. Noelke. 142

Van Voorhis v. Brintnall (86 N. Y.
18), distinguished. People v. Noelke.
142

People v. Crapo (76 N. Y. 288), dis-
tinguished. People v. Noelke. 144

People v. Brown (72 N. Y. 571), dis-
tinguished. People v. Noelke. 144
Ryan v. People (79 N. Y. 594), distin-
144
guished. People v. Noelke.
Whitford v. Laidler (25 Hun, 136),
reversed. Whitford v. Laidler. 145
Kiersted v.
0. & A. R. R. Co. (69 N.
Y. 345), distinguished. Whitford v.
Laidler.
149

Briggs v. Partridge (64 N. Y. 357),
distinguished. Whitford v. Laid-

149

ler.
Taft v. Brewster (9 Johns. 334), dis-
tinguished. Whitford v. Laidler.
149

Stone v. Wood (7 Cow. 453), distin-
guished. Whitford v. Laidler. 149
Guyon v. Lewis (7 Wend. 26), distin-
guished. Whitford v. Laidler. 149
Honegger v. Wettstein (15 J. & S. 125),
reversed. Honegger v. Wettstein.

252

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versed. Pratt v. Stevens. 387

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he is not bound to print matter
proposed by the respondent as an
amendment to the case but dis-
allowed by the trial judge. Kil-
mer v. N. Y. C. & H. R. R. R. 495

on

2. Plaintiff, the appellant herein, in
his proposed case set forth portions
of certain tariffs and schedules,
prepared and issued by defendant,
which were exhibits
trial:
the portions omitted were not re-
ferred to on the trial, and in the
opinion of the trial judge were
not material. Defendant proposed
as an amendment that the whole
of the exhibits should be inserted.
Said judge in settling the case dis-
allowed the amendment, but re-
quired plaintiff to paste the exhib-
its in the appeal-book, if copies
were furnished by defendant, or in
lieu thereof that the original ex-
hibits might be referred to on the
argument. Defendant furnished
the copies. On motion by defend-
ant that plaintiff be required to
print the exhibits as part of the
return to this court plaintiff offered
to attach copies to the appeal-book,
if furnished by defendant. Held,
that he should not be required to
do more; that the order of the
trial judge held good until the fi-
nal determination of the action.
Id.

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3.

4.

31

Where a trustee has purchased
for himself and has received a con-
veyance of real estate, a part of the
trust property, the cestui que trust
may maintain an action to compel
a conveyance to him, or in trust
for him by the trustees, and it is
no objection to the granting of the
relief sought that the defect in his
title appears upon the records.
Dodge v. Stevens.
209

Where, after having received a
conveyance, the trustee executed
a mortgage upon the real estate to
one having full notice of the rights
of the cestui que trust, held, that the
mortgagee might be joined with
the trustee as party defendant for
the purpose of affording complete
relief, and freeing the title from
embarrassment by setting aside the
mortgage.
ld.

A devisee who claims a mere legal
estate in the real property of the
testator, when there is no trust,
cannot maintain an action for the
construction of the devise, but
must assert his title by a legal
action, or, if in possession, must
await an attack upon it and set up
85

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5. Where premises have been con-
veyed absolutely to secure a loan,
and because of a refusal on the
part of the lender to reconvey on
tender of the amount due, the
borrower brings an action to com-
pel a reconveyance, he cannot,
after judgment in his favor in such
an action, maintain another action
to recover, as damages, the amount
of a depreciation in the value of
the property pending the litiga-
tion, or his costs and expenses in
the equity suit; conceding an ac-
tion to recover damages may be
maintained, as to which quære,
these are not proper items of dam-
295
Martin v. Prentice.
ages.

6. Plaintiff's father died intestate;
his mother was appointed adminis-
tratrix and also general guardian
for the infant children, five in
number. A settlement of the ac-
counts of said administratrix was
had and a final decree entered by
the surrogate fixing the shares of
the infants; subsequently two of
them died intestate. Defendant
was the attorney, counsel and
proctor for the widow, and as such
received moneys belonging to the
estate. Upon an accounting he
gave to the widow a written ac-
knowledgment stating that there
was due to her, as guardian for the
three surviving children, the sum
of $1,500, payable according to the
surrogate's decree, interest thereon
to be paid semi-annually. Subse-
quently the widow died, and K.
was appointed by the surrogate gen-
eral guardian of the plaintiff, who,
being still an infant, brings this
action by said K. as his guardian
ad litem, duly appointed for that
purpose, to recover his share. Held,
that the action was well brought,
and that a good cause of action was
shown for $500; that the acknowl-
edgment was an admission that
the money belonged to plaintiff
and had been held by his general
guardian in trust for him; and,
even if not originally collected and
received by defendant for plaint-
iff, but paid over to him by said
guardian, as he had knowledge

7.

that it was a trust fund, he re-
ceived it impressed with the same
trust, and plaintiff's share therein
having been ascertained and agreed
upon, he could follow the fund and
maintain an action for his share.
473
Segelken v. Meyer.

The acknowledgment also stated
that defendant was indebted to the
widow as next of kin of the two
deceased children in the sum of
$1,000. It was admitted that this
sum was due the widow and the
three surviving children as next of
kin, she in her own right and as
guardian for them being entitled
to receive it; it also appeared that
defendant had promised plaintiff's
attorney to pay his share, and
raised no objection because of the
non-appointment of an administra-
tor. Held, that in the absence of
proof that administration upon the
estates of the deceased children
had been granted, plaintiff was en-
titled to recover in this action his
share (one-fourth) of said sum. Id.

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11. Where possession is regained, the
statute does not give a remedy for
an injury to the property while in
possession of the wrong-doer. Id.

12. It must appear also that the con-
cealment and withholding was
willful. One who dispossesses the
sheriff under a claim of right, and
detains the property under a belief
that he has a superior title thereto,
may not be made liable.
Id.

13. Where, therefore, the complaint
in such an action failed to allege
that the taking of the property by
the defendant was willful, and
plaintiff's counsel admitted in his
opening on the trial that defend-
ant acted as tax collector and by
virtue of a levy under a tax war-
rant, by which he claimed to have
acquired a right superior to that of
the sheriff, and it also appeared
from the complaint and the open-
ing that after the alleged trespass
by defendant, the sheriff regained
possession and sold the property
under his process, held, that the
complaint was properly dismissed.
Id.

14. The complaint, in an action under
the Code of Civil Procedure (§ 1861)
to establish a will, alleged, in sub-
stance, that the testator, an in-
habitant of, and domiciled in the
county of R, in this State, and
possessed of personal property
therein, but temporarily residing
in Spain, duly signed, published,
declared and executed the instru-
ment in question before a notary,
that it remains on file in the office
of the notary, from which, by
reason of the laws of Spain, it can-
not be taken, and that plaintiff is
a legatee under the will. Hela,
that a case was made out author-
izing the action. Younger v. Duffie.
535

CHAMPERTY.

1. The provision of the Revised
Statutes, declaring a grant of land
void if at the time of delivery
thereof the land shall be in the
actual possession of one claiming
under a title adverse to that of the

2.

grantor, does not apply to a deed
from an assignee in bankruptcy,
made in pursuance of an order of
the bankruptcy court. Coleman v.
M. B. Imp. Co. (Limited). 229

In an action of ejectment, it ap-
peared that the premises in ques-
tion were, in 1824, in the posses-
sion of a tenant who held under a
lease from W., dated in 1823, and
running for twenty years. In
order to get possession, R. T., who
had or claimed a title under a deed
from B., employed I. to purchase
the lease, which he did with the
money of R. T., taking an assign-
ment, however, in his own name.
By collusion with I., and without
the knowledge of the landlord, R.
T. entered into possession, assert-
ing title under the deed from B.
The lease, however, was found in
his possession, and he made several
efforts to buy the W. title. Plaint-
iff claimed under deeds from the
heirs of W. to C., executed in 1858
and 1859. The premises were then
in the possession of grantees of G.
F. T., who entered under a deed in
1846. It was admitted by defend-
ants that R. T. "and the grantees
under him have been in possession
* * * and that defendant is
now in possession under that (R.
T.'s) claim of title." The trial
court refused to submit to the jury
the question as to the character of
R. T.'s entry into possession, and
nonsuited plaintiff. Held error;
that if R. T., when he entered in
1824, became the tenant of W., his
possession and that of his grantees
remained the possession of his
landlord not only until the end of
the term, but presumably for
twenty years thereafter, i. e., until
1863, and so there was no adverse
possession at the time of the con-
veyance to C. making his deed
void for champerty; and that,
therefore, the question as to the
character of R. T.'s possession
should have been submitted to the
jury. Whiting v. Edmunds.

309

3. C. deeded to G, F. T. in 1869, the
latter executing a mortgage back.
At that time the title under the
deed of 1846 to G. F. T. was in

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