A court of equity will never lend its active aid to a party, who, by a superior knowledge and artful silence, has gained an unfair advantage over another: Id.

SALE. See Vendor.

SHERIFF'S SALE.

When it will be set aside.-Mere inadequacy of price is not sufficient to set aside a sheriff's sale; nor is it, per se, proof of fraud. But even if there has been no fraud, if the inadequacy is gross, and the party whose property has been sold, by reason of mistake or misapprehension, did not attend the sale, and the sacrifice was caused by such mistake or misapprehension, the sale will be set aside: Kloepping v. Stellmacher, 6 C. E. Green.

*

Agreement to buy for Benefit of the Debtor in the Execution-Specific Performance.-A party who would seek specific performance must be prompt in asking the aid of the courts. Unreasonable delay will of itself be often a bar to a suit of this character: Merritt v. Brown, 6 C. E. Green.

Executed parol agreements to buy in property at a sheriff's sale for the benefit of defendants in execution can be sustained only on the ground of fraud: Id.

Where the elements of the case are simply a purchase under a parol promise to hold for the benefit of the defendant in execution, such a transaction cannot be enforced either at law or in equity: Id.

The defendant agreed by parol to purchase property at a sheriff's sale for the benefit of the defendant in execution, the latter, at the time of the agreement assigning to him twenty-five shares of stock to make the purchase more beneficial to him." It was also agreed that the defendant in execution should raise the purchase-money and take the property within sixty days after the sale:-Held, that the defendant in execution having failed to raise the money and redeem the property for over two years, and having permitted in the interim the purchaser to improve the property, and in some respects use it as his own, had lost his right to enforce the specific performance of the contract: Held also, That the stock stood as collateral security, and that the purchaser must account for its value, it having been sold by him: Id.

SPECIFIC PERFORMANCE. See Sheriff's Sale.

What Equity requires to entitle to.--Where a deed absolute on its face is given as a security for the payment of money, by or for the grantor to the grantee, it will be held in equity, that the grantee took the premises subject to redemption: Crane v. Decamp and Others, 6 C. E. Green. Upon an application for a specific performance of a contract the court must be satisfied that the claim is fair, reasonable, just and equal in all its parts: Id.

To determine these qualities, the court will look not merely at the terms of the agreement, but at the relations of the parties, and the surrounding circumstances: Id.

A party seeking the specific performance of a contract must show that he has performed or been ready and willing to perform all the essential terms of his contract: Id.

Time and modes of payment attended by special circumstances of hardship and loss caused thereby, are circumstances to be weighed by the court in exercising a sound legal discretion: Id.

The surrender of a written contract of sale followed by acts inconsistent with the continuance of the same, such as negotiating a sale to another party by the surrenderor, for the benefit of the surrenderee :Held, To be in equity, a rescission of such contract: Id.

TRUSTS AND TRUSTEES.

Releases and Family Settlements.-Releases from cestuis que trust to their trustees without the settlement of their account, are looked upon in law with jealousy; but overreaching, mistake or fraud must be shown to set such releases aside: Shartel's Appeal, 64 Pa.

All compromises and settlements by families are maintained, not only as beneficial in themselves, but as conducing to peace and harmony where it especially ought to exist: Id.

It is an established rule of equity that where trust and confidence are reposed by one party in another, and such other accepts the confidence or trust, equity will convert him into a trustee, whenever it is necessary to protect the interest of the party so confiding, and do justice between them: Foote v. Foote et al., 58 Barb.

Implied and resulting trusts are, from their very nature, excepted from the provisions of the revised statutes relative to uses and trusts: Id.

Their existence, generally speaking, can only be established by parol evidence; and it requires the power of a court of equity to compel the performance of such implied agreements, and to protect the rights and interests of the cestui que trust therein. This power has in no respect been abridged or impaired by the revised statutes: Id.

Where one takes a conveyance of property intending in good faith to hold the same in trust, as the protector of the rights of a third person therein, and only for his benefit, a court of equity will not permit persons claiming under the grantee to insist that he held the premises absolutely, as the true and lawful owner: Id.

If, in such a case, the grantee attempts to dispossess the cestui que trust of the estate he holds nominally for the benefit of the latter, a court of equity will restrain him, upon application, and upon demand compel him to convey the title to the cestui qui trust: Id.

The section of the statute relative to fraudulent conveyances, which requires that every trust or power over or concerning lands, shall be by deed or memorandum in writing, has no application to such a case: Id.

WITNESS.

Release of Interest.-A distributee released to the administrator all his right to what might be recovered in a suit brought by the administrator. Held, that he was a competent witness: Forrester v. Torrence, 64 Pa.

A witness divesting himself of a mere collateral interest in the event of the suit, is not within the rule in Post v. Avery, 5 W. & S. 509 : Id. At an arbitration the plaintiff examined a defendant as a witness. Held, that this rendered the defendant a competent witness on her own behalf, on the trial of the same case in court: Id.

THE

AMERICAN LAW REGISTER.

JUNE, 1871.

PAROL TESTIMONY IN THE CONSTRUCTION OF WILLS.

I HAVE perused with some care and much interest the report of the case of Kurtz v. Hibner et al., ante, p. 93, and the editorial note appended, in which the learned editor feels compelled to dissent from the conclusions of the court, as announced in the opinion of Mr. Justice THORNTON. The principle involved is of the highest importance, and is worthy of the most careful consideration of the profession.

From the best consideration which I have been able to give the subject, I am constrained to the conclusion that the decision of the court is right, and that the editor has fallen into an error. The great learning and deservedly high reputation of the editor who wrote that note, and the profound respect I have ever entertained for him as an eminent jurist, whose labors have done so much to advance the science of the law, have caused me to hesitate long before allowing myself to disagree with him.

The fundamental error of the editor, in my apprehension, consists in his assuming that necessarily the testator designed to devise land to which he had a present existing title. To maintain this assumption we must find that the court, as a matter of law, must declare that it was impossible for the testator to intend to devise property to which he had not a present title, when (353)

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there is no expression in the will intimating such a purpose. I have met with no case, and certainly none has been cited in the editorial note, in which such a doctrine is intimated.

While in the particular case we may admit that this is most probably true, we must also admit that it is not necessarily so, and the court had no warrant for saying, as matter of law, or as a necessary legal conclusion, that such was the case; and hence it had no right to act upon such conclusion. We may suppose a thousand cases in which a testator would devise a particular piece of land to which he at the time had no title. It is sufficient to suggest the case of an honest mistake as to the ownership, or of a contemplated purchase. At any rate, he had a right to do so, and so it has no doubt been done by ten thousand before him through misapprehension or even caprice. The devise in this will is of the west half of the south-west quarter, section 32, township 35, range 10, containing 80 acres, more or less." Here then we have the range, the township, the section, the quarter section, and the half-quarter section set down, and nothing more. The description is complete and definite, but we find nowhere a single word of additional description. We find no attempt to duplicate the description as "my" land, or "in the possession of A. B.," or "on which is the Big Spring," or "my land on the Bluff," nor any other single word on which the court may seize to enable it, with the aid of parol proof, to say that thirty-two was a false description, and so reject it, and still determine from the words of the will that section thirty-three was in truth meant. Strike the word "thirty-two" from this description and the whole is left entirely unintelligible, for there is nothing else in the will to supply its place.

I entirely agree with the learned editor, in his definition of the maxim falsa demonstratio non nocet. He says, "The ractical meaning of this maxim is, that however many errors there may be in the description, either of the legatee or of the subject-matter of the devise, it will not avoid the bequest, PROVIDED enough remains to show, with reasonable certainty, what was intended." I have emphasized the latter part of this definition because I think it an important, nay, an indispensable part of it, and which, in its application to the principal case, was quite overlooked in the note. If we reject the false description, which is in the number of the

section, and so leave that a blank, as the editor in fact does, leaving only a specified eighty-acre tract in an unspecified section in a given township, we have a description which applies alike to no less than 36 different lots, so far as the description goes, and nothing "remains in the will to show with reasonable certainty" which of the 36 tracts was intended. If there be a case in which the court has rejected one description as false, and substituted another in its place without a single word in any part of the will, pointing in the most remote degree to the description substituted as the true one, it has not been referred to in the note appended to the principal case, nor have I met with it elsewhere. In all the cases there have been two or more descriptions, so that when one was rejected, enough was left to enable the court, upon being informed by parol proof of all of the facts in the view of the testator when he made the will, to determine with reasonable certainty what the testator did really intend by the remaining words when he used them. According to my understanding of the rule, the meaning of the description must at last be found in the words which are inserted in the will.

No doubt words may be supplied by implication in reading a will or an ordinary conveyance, and so it is in reading any composition in any known language. No author ever writes down. all the words which must be understood by the reader to get his full meaning. When words are thus to be supplied as under stood, it must always be done from consideration of the context. Generally such words are omitted intentionally by the author for the sake of brevity or euphony, but it sometimes occurs from mistake. In the last case, it is generally more difficult to supply the omitted words than in the first. So, too, words are sometimes inserted by mistake, when it is the office of construction to omit them, as it was in the former case to supply the omitted words. The office of construction is to expound the meaning which the author intended to convey by the writing, and this must be done by the consideration of the words written. Whenever the court can reach the meaning, by omitting a redundant word, which it is manifest from the whole text was not designed to be inserted, or by supplying one clearly to be understood, it will do so. In doing this, courts apply their own knowledge of affairs to the composition before them, and declare the meaning accord