Page images
[blocks in formation]

1. A statute authorizing the election
of an additional justice of the peace

in a city, conferred upon the justice
to be elected thereunder, jurisdiction

in all civil and criminal cases, and
over all persons arrested or charged
with any offenses, and all the juris- TENANTS IN COMMON.
diction, power and authority in such
cases, which were possessed by the 1. One tenant in common in possession
justices in said city then in office; of the common property is only lia-
and proviiled that all laws governing ble to pay rent, when he agrees to
the justices of the peace in said city pay it; and such an agreement only
should apply to, and be binding enures to the benefit of the co-tenant
upon, said justice; but made no with whom it is made. Nor can he
provision for a clerk. Held that no set off against such rent the cost of
power to nominate or appoint a improvements and additions not
clerk was granted by the statute, strictly repairs. Scottv, Guernsey,
and that the court could not extend

the statute by construction. Cas-

2. A tenant in common occupying
sidy v. The City of Brooklyn,


without agreement to pay rent, is

not liable, on partition, to account
2. A subsequent statute devolved the for rent, even though the occupancy

power of appointing clerks of jus- be by a firm of which the tenant in
tices of the peace upon the common common is a partner.

council. The charter of the city
provided that the mayor and board 3. A tenant in common receiving rents
of aldermen, together, shou form

is liable to pay interest on the sums
the common council, and that all

so received, without a previous de-
ordinances and resolutions passed mand.

by the board of aldermen must be
presented to the mayor for bis ap- | 4. The rent so received is a lien on the
proval. Held that the concurrence shares of the parties receiving it, in
of the mayor was requisite to a valid favor of the parties to whom it is
appointment of a clerk.




5. If one tenant in common, to whom

one or more co-tenants is or are in-
debted for rents, dies, his adminis-
trator is a proper party to an action
for partition and an

See ASSESSMENTS, 1, 7, 18.

TRUSTS, &c. 5.
Usury, 5.
Wills, 15, 16, 17, 18.

6. Whether, in the case of a voluntary

partition, between tenants in com-
mon of lands, which has been con-
summated by conveyances to each,
of his share, in severalty, when no

question is raised in regard to the TENANCY BY THE CURTESY.
fairness and equity of the partition,
a court of equity has not power to It seeins that tenancy by the curtesy
compel a creditor having a lien on still exists, as prior to 1848, where
an undivided interest, by judgment the wife dies intestate, or without
or mortgage, before such partition, devising land held by her. Scott v.
to resort to the share so partitioned Guernsey,

to his debtor, for the satisfaction
of his lien, and restrain him from
enforcing such lien against the shares TENANTS FOR LIFE, AND IN
so partitioned and conveyed to the

other tenants ? Quære. Martin v.

435 1. One entitled in remainder, as co-

tenant, during the life estate, by per-
7. Where several agreements and con-

mission of, and agreement with, the

life tenant, erected buildings on the
veyances between the heirs of a per-
son dying seised of land, were not in

common property, and received rents

for the same, before and after the
the nature of a partition of the es-

termination of the life estate. HU
tate, and were not intended to be a

that on partition he could not hold
partition, but were mere contracts

the buildings, or their value, and
of bargain and sale, and conveyances

must account for the rents received
thereon, and the plaintitt's conveyed

after the death of the life tenant.
their interests in the common lands

Scott v.
to R, M., and thus subjected them


to the lien of a judgment existing
against him, in exchange for a con- 2. Nor will equity support such a
veyance of an interest in other lands claim, where the co-tenant has, by
also incumbered by the same judg- the rents received during the life
ment; it was held that the plaintiff's

estate, been fully reimbursed for all
having dove so voluntarily, and with- his expenditures and interest.
out any mistake, or ignorance as to
the facts, the court, upon a com- 3. A tenant for life, and one of the re-
plaint alleging that R. M. had dis-

maindermen, erected buildings on
posed of all the property he received the common property, procured in-
in and by said exchange, which was surance thereon, and gave a premi-
amply sufficient to satisfy the judg- um note. After the death of the
ment, and that he was insolvent and

tenant for life, the remainderman
unable to restore the same, or pro- was assessed on the note and paid
cure restitution thereof, could not the assessment. Held that in ac-
relieve them from the consequences counting for rents received, he was
of their own act, by decreeing the not entitled to an allowance for the
lauds conveyed to them by R. M. to

premium thus paid.
be free from the lien of such judg-
ment, and restraining the sale there-
of upon execution issued on such



Songs and duets, sung by persons in
8. Held, also, that, other judgments in costume, may be parts of a dra.

against R. M. having been enforced, matic, theatrical or operatic enter-
and his title to the lands which were tainment, and must be so regarded,
conveyed to him by the plaintiffs, when connected with dialogue and
and all the other lands held by him sung in a public garden, for admis-
in severalty, having been alienated sion to which a charge is made.
in executing the judgments, and the The Society for the Reformation of Ji-
lite vested in different purchasers, venile Delinquents v. Diers, 152
it became a mere question as to the
order in which the lands subject to

the lien of the original judgment
should be sold, or made liable to
contribution to such judgment; and

that the order was regulated by stat-
ute. (2 R. S. 375, ý 70, 71.) ib


TRUSTS AND TRUSTEES. Held that his subsequent death, with-

out ever assuming the trust or claim-
1. Where a cestui que trust resided in ing a right to act, made valid that

this State, and the original trustee, disclaimer, and vested all the estate
although he died in Connecticut, re- in the surviving trustee, and the
sided in this State when he was ap- cestuis que trust were bound by the
pointed, had the trust fund here, at decree in that suit. Clemens v. Clem-
the time, and partly executed the ens,

trust here; and the cestui que trust
was an intant and needed the fund

for his support; it was held that,

WILL, 1.
under these circumstances, the pow-
er of the court to appoint a new
trustee within its own territorial ju-
risdiction could not be doubted.

Curtis v. Smith,


2. Held, also, that the Supreme Court

was not divested of jurisdiction by 1. To enable a party to maintain an
the removal of the former trustee
from the State, although he took

action for use and occupation, under
the fund with him; the cestui que

the provision of the Revised Stat-
trust continuing to reside here. ib

utes authorizing such an action to
be brought under any agreement,

whether by deed or parol, the con-
3. Although, under some circumstan- ventional relation of landlord and
ces, the removal of a trustee from

tenant must exist. Thompson v.
the State will authorize the court


to displace him, and appoint a new
trustee, and it may be necessary for 2. Unless that relation exists between
the new trustee to be re-appointed parties, there is no implied prom-
in the foreign State and to become

ise or obligation to pay for use and
one there. to reach the fund; yet


these considerations are aside from
the question of jurisdiction, and they 3. Where one occupies under an agree-
cannot be urged by a party having

ment to purchase, he is not a ten-
no interest in the fund.


ant, but a vendee, and the relation

that of vendor and vendee, and in
4. The facts that a trustee was ap-

no conventional sense that of land-
pointed on petition merely, and not

lord and tenant.

by bill; that the cestui que trust was
not a party to the proceeding; and 4. Distinction between the action for
that other persons, contingently in- mesne profits and the action for use
terested in the trust fund were not and occupation.

made parties, are mere irregularities,
at the most, and do not touch the 5. Where the relation of landlord and
validity of the appointment; and the

tenant did not exist, and there had
objections cannot be set up by per- been neither a tortious entry, nor a
sons not appearing to have any in- tortious holding, by the defendant,
terest in the trust fund, but only who went into possession by virtue
claiming an interest, the nature of

of a parol agreement with the plain-
wbich is not shown.


tiffs to purchase, and had been will-

ing to pay substantially according
5. The statute devolving a trust upon to the agreement, and had quitted
the court, on the death of a surviv-

the premises because the plaintiff's
ing trustee, and authorizing the ap- refused to allow him to perform his
pointment of a new trustee, (1 R. S.

agreement, or to accept performance
730, Ø 68,) applies to a trust of per-

on his part; Held that the plaintiffs
sonal as well as real estate. ib

could not recover for the use of the

premises ; whether the action was
6. Where one of two trustees dis- to be regarded as an action for use

claimed acting as trustee, by an and occupation, or an action for
answer in chancery, in Missouri ; inesne profits.

rupi and

6. Held, also, that it was erroneous for only to relieve a borrower, under &

the judge to charge the jury that usurious contract, from the obliga-
the agreement under which the de- tion to repay the money actually
fendant entered, for the purchase of borrowed, in cases where a resort
the land, being void, the plaintiffs to a court of equity was necessary
were entitled to recover the fair value either for discovery or relief. 高
of the use of the premises. ib

6. The former rule of courts of equity.

requiring a complainant who sought

relief in that court against a usuri-

ous contract, obligation or security,
1. Where, in an action upon a prom- to repay the money actually loaned,

issory note, the single question to with interest, as a condition of
be tried whether there was a cor- granting the relief, was abrogated

an usurious agreement by the statute of 1837 only in behalf
made upon a loan of money which of the borrower. The rule is not
was the consideration of the note, abrogated as to the grantee of the
the intent of the parties is a question borrower. When such grautee, as
of fact; and that question having such, commences a suit for relief,
been found by the jury against the the rule requiring him to do equity,
defendants, upon conflicting evi- as a condition of relief, still applies, to
dence, their finding is conclusive ;
unless some error was committed on 7. If there is no offer by him, before
the trial, by the judge, in his rul- suit, or in his complaint, to do
ings, or charge to the jury. Horion

equity, according to the practice of
v. Moot,


the court, the omission to make such

offer, now goes only to the question
2. Whether the transaction was a con- of costs. If the defendant, to secure

trivance on the part of the plaintiff, his equitable rights, has been com-
by which he obtained more than pelled to defend the suit, and to ap-
seven per cent for the loan or for-

peal, he is entitled to his costs, ib
bearance of money; whether it was
a fraud upon the statute, or an eva-

See Mortgage, 3.
sion of the statute, to cover usury;
whether the plaintiff bought the note
of the bank at which it was payable;
or whether the bank acted as the

agent of the plaintitl, in committing
the fraud-are not questions of law,

independent of the lacis upon which
the propositions are based. And if

1. Of real estate.
the jury find, correctly, against the
defendants upon them, the court can- 1. In an action by a purchaser, against
not reverse their findings.

ib the vendor, to recover damages for

fraudulent representations of the
3. Where the usurious character of a latter, upon a sale and purchase of

mortgage has been determined in, land, the evidence showed that dur.
and appears by, the record of a ing the negotiations the plaintiff in-
former suit, there is no necessity for formed the defendant that he would
a bill quia timet, to entertain which not purchase lands held under a lax
is discretionary with a court of equi- title; and that the defendant repre-
ty. Bissell v. Kellogg,

617 sented that he “had good title, and

the best kind of title" to the lands
4. This principle is applied to obliga- in question; that they had been se-

tions void for usury, notwithstand- lected as choice lands, many years
ing the imperative provisions of the before, by one who had great oppor-
act of 1837.

ib tunities of locating choice lands,

and that such person had conveyed
5. The usury act, of 1837, was not de- some of the lands so selected by

signed to require a court of equity him, to his brother, and the latter
to entertain a suit which, according had conveyed them to the defend-
to its settled practice, it would not ant. The falsity of the representa-
have entertained before that act, but tions was clearly proved, and the

chase money.

judge charged the jury that there an action to recover back the pur-
was no dispute that the lands were chase money he had paid. That it
held by the defendant under tax was sufficient for him to demand
titles; and that if the defendant possession, or a return of the pur-
made the representations proved,

knowing that the title was a tax
title, it would be fraud. Held that

2. Of personal property.
the charge was correct; and that a
verdict having been rendered for the 6. On the 17th of October, 1866, the
plaintiff, in accordance with it, and plaintiff, being the owner of a large
upon the weight of evidence, a new

quantity of wool, sold the same to
trial was improperly granted. Up-

A., F. & W. on a credit of four
dike v. Abel,

15 months, upon their notes. A., F. &

W. were insolvent, at the time, and
2. Words used by a vendor, during a

the wool was purchased by A., one
negotiation for the sale of land, re-

of the members of the firm, with
specting the title, and susceptible of knowledge of such insolvency, and
sustaining a separate allegation of with a preconceived design not to
fraud, in the complaint, but not in- pay for the wool. On that day ten
serted therein, may be used as evi-

sacks of the wool were delivered to
dence to sustain the allegations that

the purchasers, and on the next day
are contained in the complaint, if

twenty-one sacks more were deliver-
employed during the same conver-

ed. On the 19th of October the plain-
sation with the latter allegations,

tiff refused to deliver the remainder;
and incapable of separation from

and on that day A., F. & W. made

ib an assignment of all their personal

estate, including the wool which had
3. Evidence of representations made been delivered, to T. & R., to secure
by the vendor, equivalent to those

liabilities of the assignors to them,
charged in the complaint, may be and to pay laborers and operatives.
received. Proving those not alleged

The wool delivered was immediately
is only proving the animus of those put into the mill of the purchasers,
that are alleged.

ib and at the time the assignment was

made, the ten sacks delivered on the
4 An agreement by parol having been 17th, and more than one half of the

made between the plaintiff and the twenty-one sacks delivered on the
defendants, for the sale of a dwell- 18th, had passed the first process of
ing house by the latter to the former, manufacture, and were at different
and the possession thereof, the stages of manufacturing into under
plaintiff paid the purchase money. garments. On the same day, after
A writing was subsequently execu- the execution of the assignment, the
ted by the defendants, and delivered, defendant, claiming under the as-
but it did not contain all the agree- signees, took possession of the wool,
ment. And upon the plaintiff ob- at the said mill. On the 22d of
jecting to it, and returning it, on the October the plaintiff demanded the
ground that it did not provide for twenty-one sacks of wool, of the as-
giving him possession, the defend- signees, claiming the right to rescind
ants virtually admitted the fact, by the sale and reclaim the property, on
not denying it, and agreeing to make the ground of fraud. And, before
it all right. Held that the defend- the defendant or either of the par-
ants having received the plaintiff's ties to or for whom the assignment
money upon an agreement to give was executed had paid any money
him possession, equity and common or wages, the same demand was
justice demanded that they should served upon the defendant. Held,
make him good by returning the 1. That the purchase of the wool by
money, or giving possession accord- A., F. & W. having been fraudulent,
ing to agreement. Hoag v. Owen, 84 the delivery of the property to them

gave them no title to it. 2. That
5. Held, also, that the jury having the assignment was fraudulent and

found that the writing was not a void as against the plaintiff. 3. That
conveyance to the plaintiff, he was the plaintiff had the right to have
not bound to reconvey the building the sale rescinded, unless he had, by
to the defendants before bringing some act of omission or commission,

« PreviousContinue »