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Curtis v. Smith.

estates which go to the heir; and unless such is their effect, the words italicized have no meaning.

The other ground on which it is insisted the appointment is void, is, that it only purports to clothe the trustee with part of the powers, and to charge him with part of the duties, which the due execution of the trust requires. The will creates a trust primarily in favor of Homer Collins, and contingently in favor of others. The appointment authorizes the trustee to execute the trusts, so far as they relate to the said Homer Collins. It is true, the trust cannot be divided. There cannot be at the same time two independent trustees, each equally entitled to the possession of the trust fund. But upon the facts stated in the complaint, the entire beneficial estate is now vested in Homer Collins. He is the sole cestui que trust, and the appointment in its present form covers the entire trust, and entitles the trustee to the whole fund. The trust is created by will, and consists of a bequest to Nelson Collins, the father of Homer, as trustee, first for the use and benefit of Homer, during his minority, and on his attaining the age of twenty-one years, to go to him absolutely; second, in case he shall die during minority, leaving a brother or sister, child of said Nelson, the residue to go to them; and third, in case he and such brother or sister shall die during minority, the residue to go to such persons as Nelson shall appoint by will, and in default of such appointment, to the heirs of Nelson Collins. Nelson died in 1861, intestate, without having made any appointment, as provided by the bequest. Homer is his only surviving child. Thus Homer is entitled not only to a present estate for his life, under the will, but also to the contingent remainder as the sole heir of Nelson Collins; and the two estates having been united in the same person, on the death of Nelson Collins, the latter estate was then extinguished. (In the matter of Dekay, 4 Paige, 403.)

Updyke v. Abel.

The demurrer is overruled, with leave to the defendants to answer in twenty days, on payment of costs of demurrer.

[MONROE SPECIAL TERM, December 26, 1870. James C. Smith, Justice.]

UPDIKE vs. ABEL.

In an action by a purchaser, against the vendor, to recover damages for fraudulent representations of the latter, upon a sale and purchase of land, the evidence showed that during the negotiations the plaintiff informed the defendant that he would not purchase lands held under a tax title; and that the defendant represented that he "had good title, and the best kind of title" to the lands in question; that they had been selected as choice lands, many years before, by one who had great opportunities of locating choice lands, and that such person had conveyed some of the lands so selected by him, to his brother, and the latter had conveyed them to the defendant. The falsity of the representations was clearly proved, and the judge charged the jury that there was no dispute that the lands were held by the defendant under tax titles; and that if the defendant made the representations proved, knowing that the title was a tax title, it would be a fraud. Held that the charge was correct; and that a verdict having been rendered for the plaintiff, in accordance with it, and upon the weight of evidence, a new trial was improperly granted.

Words used by a vendor, during a negotiation for the sale of land, respecting the title, and susceptible of sustaining a separate allegation of fraud, in the complaint, but not inserted therein, may be used as evidence to sustain the allegations that are contained in the complaint, if employed during the same conversation with the latter allegations, and incapable of separation from them.

Evidence of representations made by the vendor, equivalent to those charged in the complaint, may be received. Proving those not alleged is only proving the animus of those that are alleged.

If there is any foundation for the objection that a recovery has been had upon grounds not alleged in the complaint, it should be made in season. After judgment, it is too late for the unsuccessful party to avail himself of it. Under the system of practice established by the Code, in order to entitle a defendant to a new trial, on the ground that the plaintiff has not proved the case made by his complaint, it must appear that the cause of action is unproved in its entire scope.

16

Updike v. Abel.

HIS is an appeal from an order made by the judge

Tbefore when the action was tried, granting a new trial

upon a case and exceptions. The motion was made, also, upon the ground of surprise and newly discovered evidence. The action was for fraud charged to have been committed by the defendant, upon the plaintiff, in the sale to the latter, of lands in the State of Michigan.

The allegations of fraud were, in substance, that the defendant represented that he had a good title, and the best kind of title to said lands. That said lands had been located some thirty years ago, by one "Tift" Jerome, who had great opportunities for locating choice lands. That said Tift Jerome had conveyed to his brother James Jerome, and the latter had conveyed them to the defendant. That all these representations, made by the defendant, were false, and known by the defendant to be false, when made, and were made with intent to deceive. That the plaintiff, relying upon these representations as true, was induced to enter into an agreement to purchase an undivided half of 1000 acres of such lands, and had paid about $2000 thereon.

There were other allegations of fraud and of representations as to the value of the lands, &c., not necessary to be stated. The contract was admitted, and the payments, but all the allegations of fraud denied. The action was tried at the Tompkins circuit, in January 1868, and a verdiet rendered for the plaintiff, for the consideration money and interest, $2302.89, and judgment entered thereon; and in March 1869, at a special term, before the same judge, an order was made granting a new trial, costs to abide the event. All the facts material to be stated appear in the opinion.

Beers & Howard, for the plaintiff.

Ferris & Dowe, for the defendant.

Updike v. Abel.

By the Court, POTTER, J. As it appears from the opinion of the learned judge, the motion for a new trial was granted, not upon the ground of surprise or newly discovered evidence, but upon the error of the court in refusing to nonsuit on the trial. The learned judge was clearly right in not granting the order upon the first mentioned ground, and that point is not now before us. This narrows the review in the case to the question whether the judge correctly or incorrectly refused to nonsuit, on the trial.

In the charge of the learned judge to the jury, but two points were presented to them. 1st. Whether the defendant fraudulently represented the title which he held to the lands. 2d. Whether the plaintiff, after discovering the fraud, repudiated the contract with reasonable promptness. Upon both these points the charge was clear, and is without exception upon either side.

Upon this review we are to assume that the judge correctly laid down the law. There is but one point in the case left to be examined, and that is, the exception taken upon the motion to nonsuit; and this is important, because it is upon the supposed error committed by the judge upon this motion to nonsuit that a new trial was ordered. When the plaintiff rested, the defendant moved for a nonsuit, on the ground that the plaintiff, by his evidence on commission, showed a good title in the defendant. The judge said: "I am inclined to think the case should go on. The party may repudiate the contract and recover back the money paid, but not damages." The defendant's counsel objected that there was no averment in the complaint that the defendant represented the title not to be a tax title, and that that part of the testimony was therefore not applicable. The motion was denied, and the defendant excepted. Was this motion denied upon what the plaintiff asked, or upon what the judge replied? If upon the former, it was clearly right. VOL. LX.

2

Updike v. Abel.

If upon the whole matter stated, then the decision was right upon one proposition; and if wrong upon the other, the defendant's exception being to the good as well as the bad, must also fail. Let this be analyzed. The defendant's motion to nonsuit was upon a question of fact, to wit: what was shown by the commission. He made no other motion. This was all that could be denied. In making up his case he has omitted this testimony upon commission. The judge denied his motion. How can we say this was error, in the absence of the testimony? The reply of the judge to this motion was that the case should go on; and then he proceeds to lay down a principle of law. No exception is made to this; or, if one was made, in the absence of the testimony referred to, we cannot say he was wrong. The defendant then objected. to the case for want of an averment in the complaint; but it does not there appear that he moved for a nonsuit on that ground; nor that the motion was denied upon that objection. The burthen is upon the defendant to show that an error has been committed; this court cannot look beyond the case before us. But let us omit technicalities.

It is but justice, however, to the learned judge who granted a new trial, to say that it was granted upon the ground (as appears from his opinion) that there was a failure on the part of the plaintiff to make out any cause of action alleged in the complaint. He must, therefore, have regarded the exception of the defendant as covering this point, though it does not.

With great deference to the learned judge, I am compelled to differ with him in this view, even upon the assumption that there is a proper exception to cover the ruling. I entirely concur in the views of the law so clearly laid down by him in his charge to the jury. The question of fraud was entirely a question for the jury; and also, as it appears from the case, the weight of evidence on the question of fraud was as the jury found it.

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