passage of the act, there can be no controversy in the case. The jurisdiction must be admitted. That Congress had the power to authorize the removal of the cause in its then condition can not be doubted. Insurance Company v. in any suit mentioned in this section, the term referred to be the term after the there shall be a controversy which is wholly between citizens of different states, and which can be fully determined as between them, then either one or more of the plaintiffs as defendants actually interested in such controversy may remove said suit into the Circuit Court of the United States for the proper district." The third section provides "That whenever either party, or any one or more of the plaintiffs or defendants entitled to remove any suit mentioned in the next preceeding section, shall desire to remove such suit from a state court to the Circuit Court of the United States, he or they may make and file a petition in such suit in such state court before or at the term of which said case could be tried, and before the trial thereof." The remaining part of the section refers to the bond and proceedings on removal. Dunn, 19 Wallace, 214. Did they by the terms and the spirit of this statute, so authorize its removal? The language of the statute is, any suit now pending, in other words, all suits now pending of the requisites may be removed, and the length of time which the suit had been pending, or the condition it was in if no final judgment had been rendered, could make no possible difference in the reason which operated upon Congress to confer the jurisdiction, as is clearly shown in the reasoning of the court in the case of Insurance Company v. Dunn. The term referred to is the term at which said cause- -what cause? The cause referred to in the second section, to-wit: any cause pending at the passage of the act could be first tried after the passage of the act, and not the terms, at which said cause could have been tried long before the passage of the act.. The motion will, therefore, be over It is not denied that the amount involved in this case, and the citizenship of the parties, were within the requirements of the second section. The amount was over five hundred dollars. The controversy was between citizens of different states, and the suit was pending in a state court at the time of the passage ruled. of the act of Congress, possessing every element to authorize its removal to the Circuit Court of the United States. The third section simply provided the N. Y. SUPREME COURT-GENL TERM. time when and the mode in which the application shall be made for such removal, and the steps necessary to accomplish it. The mode is to be by petition to the state court, and the time is before or at the term at which said cause could be first tried, and before the trial thereof. SHERIFF. FIRST DEPT. Day, respt. v. The Mayor, etc., of New Decided December 6, 1875. The sheriff may appoint from the citizens at large persons competent to act as constables or marshals for the time being, and these are, pro hac vice, constables. Appeal from judgment entered on verdict directed by the Court. The facts found by the learned judge of the state court show that the petition was properly filed, and all the necessary steps taken in accordance with the provisions of the 3d section, and that the petition was filed before or at the term at which said cause could be tried, after the passage of said act of Congress. And if for 250 days, and performed the duties. The plaintiff was appointed in 1871, a special deputy sheriff to attend the Court of Oyer and Terminer. Under this appointment he attended upon the court of a special deputy. For his salary, as The description in the levari facias was such officer, he brings this action. Ver- not inadequate. It was clearly such an dict for plaintiff by direction of the court. It was claimed by defendant that plaintiff, not being a constable or marshal, he could not be properly appointed by the sheriff to attend the court, and is not, therefore, entitled to recover. On appeal. Held, That it has been determined by this Court, that persons summoned by the sheriff for the purposes mentioned, are pro hac vice constables by operation of the Statute, and by the power conferred on the sheriff to select. (The People ex. rel. Curry v. Greene, 64 Barb. 504.) It was the intent of the Statute to allow the sheriff to select from the citizens at large those competent to act as constables or marshals for the time being, and not to confine him in his choice to the regular constables or marshals. Judgment affirmed. Opinion by Brady, J.; Davis, P. J. and Daniels, J., concurring. SHERIFF'S SALE. SUPREME COURT OF PENNSYLVANIA. Laird v. McCarter. Decided November 1, 1875. one as a surveyor could have taken in SLANDER. SUPREME COURT OF PENNSYLVANIA. Peters and wife v. Ulmer and wife. When a plea of justification is withdrawn Error to District Court of Alleghany county. Per Curiam. We discover no substantial error in this record. The plea of justification did not go to the jury, but was withdrawn before it was given in evidence. The defendant had a right to ask positive instructions to the jury to disregard it, and if he thought the offer had seriously affected the minds of the jury, he could have urged the decision of the court in Error to the Court of Common Pleas agreeing to admit the part of the plea of Erie county. Per Curiam. upon a motion for a new trial. We think that the words laid in the The error alleged here was one wholly declaration admit of the meaning that within the province of the court below the wife, Mrs. Sophia Ulmer, had been to correct. If the advertisement under guilty of adultery, and therefore fell which the sale was made was insufficient within the province of an innuendo. No or impertinent it was a ground to prevent one would understand from the language the acknowledgment of the sheriff's deed, used by Mrs. Peters, that she intended and set aside the sale. But it was a mat- the husband of Mrs. Ulmer as the person ter dehors the record, and does not whose frequent connection had infected come up to us. The evidence likewise is her with disease. not brought up by the writ of error. Judgment affirmed. VENDOR AND PURCHASER. N. Y. COURT OF APPEALS. The complaint did not allege, and it did not appear upon the trial that plaintiffs were able to convey, or that Thomson et al. extrs., etc., respts. V. they or their testator had ever offered to Smith et al, applts. Decided November, 30, 1875. Under a contract for the sale of land the interest of the purchaser is real estate, whilst that of the vendor is personal estate. The vendor and his heirs and devisees are trustees for the purchaser, and the legal title is in him or them. And the legal owner or owners must be made a party to a suit to foreclose the lien. When the legal owner is not a party to such a suit, an offer to convey must be made in the complaint. The convey the lands to the purchasers or their assignees. This objection was set forth in the answer and was taken on the trial. The judgment gave defendants thirty days in which to pay the amount due, but did not provide for giving or securing them a title upon payment, and a personal judgment was given against them for deficiency. Held, Error: that as plaintiffs did not represent the legal title, an offer to convey should have been made in the By Allen, J. An action will not lie for complaint.-Freeson v. Bissell, Ms. Op. the foreclosure of the rights of a pu- Court of Appeals, Nov. 9, 1875, distinchaser of lands by contract, and a sale guished. thereof for the deficiency, except for special reason averred and proved. vendor has adequate remedies at law. This action was brought to enforce an alleged lien for the purchase-money of land. It appeared that T., plaintiff's testator, in his life-time, executed to the defendant S., a contract in writing for the sale and conveyance of the land in suit. Defendants paid a portion of the purchase money to T. in his lif -time, and a portion since his death, leaving a large amount due, and unpaid. Held, That by the contract the land became real estate in the purchasers and would descend as such to their heirs or devisees; that the vendor held the legal title as trustees for the purchasers; as to him, the purchase money due on the contract was personal estate, and on his death passed to his personal representatives as part of his personal estate; and the legal title to the real estate passed to his heirs or devisees in trust for the purchasers; (Dart on V. & P., 121; 34 Barb. 173, 176; J. Ch. 398; 13 N. Y. 180; 40 Barb. 425;) and that therefore the person taking legal title to the land under the will, should have been made a party to this action, so as to be bound by the judgment. (40 Barb. 425.) Also held, (Allen J.) An action will not lie for the foreclosure of the rights of a purchaser of lands by contract, and a sale of the premises charging the purchaser with the deficiency, except for special reasons to be averred and proved. The vendor has adequate remedies at law, and there is no cause to resort to a court of equity for relief. He holds the legal title technically in trust for the vendee until default, and then the trustee becomes the equitable as well as the legal owner. Judgment of General Term, affirming judgment of Special Term for plaintiffs, reversed and a new trial granted. Opinions by Earl and Allen JJ. N. Y. COURT OF APPEALS. Freyer, respt. v. Rockefeller et al, applts. Decided November 30, 1875. Certificate of knowledge that the grantors Deed not expressing a consideration cured sufficient, but that the deed, although by subsequent deeds setting out the consideration. Assignment of mortgage may be made by delivery, it need not be of record. Purchaser estopped by executing an instrument acknowledging the assign ments. Notice of defect of purchaser. This was an appeal by defendant F. from an order of the General Term, affirming an order of the Special Term, requiring defendant F., who was the purchaser upon a foreclosure sale herein, to complete his purchase and comply with the terms of sale. At the time of the sale ten per cent. of the purchase money was paid, and the remainder was to be paid or secured upon delivery of the referee's deed. The deed was subsequently tendered, but the purchaser declined to accept it or complete his purchase on the ground that there were defects in the title. The alleged defects were: 1st. A defect in the acknowledgement of a deed, in that the acknowledging officer did not certify that the grantors were known to him. 2d. The purchaser objected that a deed in the chain of title was defective in that it did not express a consideration. It appears that a consideration did pass ; that the grantee gave back a mortgage bearing the same date as the deed, and the plaintiff produced a deed from the grantor in the defective deed to one B. and from B. to the purchaser, both expressing a consideration. 3d. The purchaser objected that there was no record of the assignments of a mortgage by the foreclosure of and sale under which a former grantor got title. 4th. The mortgagee also executed an instrument acknowledging the assignments, which was tendered to the purchaser. 5th. It also appeared that the purchaser had notice of the defects alleged before he made his bid. Held, 1. That under the revised statutes (1 R. S. 758 § 9), the certificate was in not entitled to be recorded, yet as its execution was attested by two witnesses, it was effectual to pass the title as against all but a subsequent bona fide purchaser, and as there did not appear to be any such in this case the objection was not tenable. Held, 2. That this cured the defect; that the deeds so tendered were not open to the objection; that they were void under the statute (1 R. S. 739, sec. 147) as given by grantors to grantees out of possession, and because the premises were not held in hostility, and the deeds were to fortify, not to attack the possessors' title. Held, 3. That a good assignment was made by delivery. 11 J. R. 534. That as the complaints in the foreclosure suits averred an assignment, the judgment determined the question. Held, 4. That in any event this estopped him from denying it, the purchaser completing his purchase in reliance thereon. Held, 5. He could not thereafter raise an objection. Order affirmed. Opinion by Folger, J. WILL. N. Y. SUPREME COURT-GENL TERM, FIRST DEPT. Colton, et al., as executors of the last Will and Testament of Reuben Parsons, deceased, plffs. v. Parsons, et al., defts. Decided December 6, 1875. Where an estate is left in trust for the benefit of four brothers and sisters and the survivors and survivor of them, the future estate is void in law, as suspending the absolute power of allienation for a longer period than two lives in being at the creation of the trust. nothing. Now the only question is from Appeal from a judgment of the Special the language used, adopting the use of Term. This suit was brought by the executors of Reuben Parsons to obtain a construction of the eighth clause of his will, in order to determine whether the trusts thereby created by his residuary estate are valid. construction hereinafter stated, whether the trust created by the will can be upheld. In construing a will, it is the duty of the courts to adopt the construction that will carry out the intention of the testator, if it can be done without violating That clause of the will is as law; but courts have no legal or moral follows: Eighth, "I give and devise and power, however plain the intention of the bequeath all the rest, res.due, and re- testator, to make another will for him, mainder of my estate, both real and which will consummate his intentions, personal, to my executors hereinafter when his own cannot stand in accordance named, or the survivors or survivor of with law, (Hawly v. James, 16 Wend, them, upon the following trusts, namely: 144). To pay the income, rents, issues and Held further, Taking all the provisions profits thereof to my brother, Roswell of the eighth clause of said will aforesaid, Parsons and William Parsons, and to my they develope that the testator's intensisters, Fidelia Marcy and Nancy Charles, tion was that his entire residuary estate equally, share and share alike, during the should be placed in trust in the hands of joint lives of my said brothers and his executors for a period which should sisters, and after the several deaths of my not terminate till the death of the last said brothers and sisters, then to divide survivor of his four brothers and sisters; the said real and personal estate equally and that while the income should be among the children of my said brothers continuously divided during the whole and sisters respectively, the said children period bounded by the life of the last to take the parents' share, and I hereby survivor, yet no division of the corpus especially declare that in case either of should be made until the last survivor my said brothers or sisters shall die, should die, and then the principal should leaving the others surviving, then the be divided equally among the represenincome herein intended for the one or tatives of the testator's brothers and the other so dying, shall be paid to the sisters respectively, share and share alike, issue or representatives of the one or the and this is what the will accomplishes other so dying." by its provisions, if we hold it to be valid in law. Ascertaining this to be the meaning, it is plainly in conflict with the statute (sec. 14 and 15, art. 1, tit. 2 and chap. 1, part 2, R. S.) which declares Held, The intention of the testator to any future estate void at its creation, give each of his brothers and sisters of which suspends the absolute power of the whole blood, the income of one- alienation for a longer period than two quarter of his residuary estate during lives in being at the creation of the trust. their respective lives, is entirely plain, The eighth clause of the will being and it is equally clear that he intended invalid, the judgment of the court below to give the principal or corpus to the was erroneous, and must be reversed. representatives of each of his brothers Judgment should be entered construing and sisters then in essc, or to be born the will in accordance with this opinion. thereafter, and that the brothers and Opinion by Davis, P. J.; Daniels, J., sisters of the half blood should take concurring. Brady, J., dissenting. Mary A. Fox and Ada L. Hosmer, the appellants, are sisters of the half blood, and neither of them were mentioned in the will. |