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.
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.
Hursh v. Byers (29 Mo. 469), dis- tinguished. Hancock v. Rand. 10
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-
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.
versed. Pratt v. Stevens. 387
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
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.
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
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
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.
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
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
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.
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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