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In this case, the devise was in fee to two trustees and to the survivor of them. They were directed to convey the premises to an eleemosynary corporation for foundlings, whenever Congress should create one which the trustees approved. If the will had been so drawn as itself to work the devolution of the title upon the happening of the event named, the clause would have been an executory devise. If the same thing had been provided for in a deed inter vivos, a springing use would have been involved, and such use would have been executed by the transfer of the legal title, whenever that occurred. The testator chose to reach the end in view by the intervention of trustees, and directing them to convey at the proper time. This provision in the will was, therefore, a conditional limitation of the estate vested in the trustees, and nothing more. Their conveyance was made necessary to pass the title. The duty with which they were charged was an executory trust. Ambler, 552. The same rules generally apply to legal and to equitable estates. They are alike descendible, devisable and alienable. Croxall v. Sherrard, 5 Wall. 268. When such uses are consummated and no longer in fieri, the law of perpetuity has no application. Franklin v. Armfield, 2 Sneed, 305; Dartmouth College v. Woodward, 4 Wheat. 641, 642; Perrin v. Carey, 24 How. 195. It is intended that what is given shall be perpetually devoted to the purpose of the giver. In the case last named, the will expressly forbade forever the sale of any part of the devised property. This court held the inhibition valid. Of course the legislature or a court of equity, under proper circumstances, could authorize or require a sale to be made. Stanley v. Colt, 5 Wall. 119.
There may be such an interval of time possible between the gift and the consummation of the use as will be fatal to the former. The rule of perpetuity applies as well to trust as to legal estates. The objection is as effectual in one case as in the other. If the fatal period may elapse before what is to be done can be done, the consequenee is the same as if such must inevitably be the result. Possibility and certainty have the same effect. Such is the law upon the subject.
A devise to a corporation to be created by the legislature is good as an executory devise. A distinction is taken between a devise in presenti to one incapable, and a devise in futuro to an artificial being, to be created and enabled to take. Angell & Ames on Corp., sec. 184; Porter's Case, 1 Coke's Rep, 24; Atty.-Gen, v. Bonyer, 3 Vesey, 714; Inglis v. Sailor's Snug Harbor. 3 Pet. 115 to 120, 144; Sanderson v White, 18 Pick. 356.
At common law lands may be granted to pious uses before there is a grantee competent to take. In the meantime the fee will lie in abeyance. It will vest when the grantee exists. Town of Paulet v. Clarke, 9 Cr. 292. See, also, Beatty v. Kurtz, 2 Pet. 566, and Vincennes University v. Indiana, 14 How. 26.
Charitable uses are favorites with courts of equity. The construction of all instruments where they are concerned is liberal in their behalf. Mills v. Farmer, 19 Vesey 487; McGill v. Brown, Bright.
Rep., 357; Perry on Trusts, sec. 709. Even the stern rule against prepetuities is relaxed for their benefit. “But a gift may be made to a charity not in esse at the time-to come into existence at some uncertain time in the future-provided there is no gift of the property in the first instance or perpetuity in a prior taker." Perry on Trusts, sec. 736. Archbishop Secker by bis will gave £1,000 to trustees for the purpose of establishing a bishop in the British possessions in America. Mansfield, of counsel, insisted that “there being no bishop in America, or the least likelihood of there ever being one,” the legacy was void, and must fall into the residue. Lord Chancellor Thurlow said, “the money must remain in court till it shall be seen whether any such appointment shall take place.” Atty.-Gen. v. The Bishop of Chester, 1 Bro. Ch. Rep. 44. A testator devised his real estate to trustees, in trust, with the rents and profits to purchase ground in Cambridge, proper for a college, and to build all such structures as shall be necessary for that purpose, (the college to be called “Downing College,'') and to obtain a royal charter for founding such college and incorporating it by that name, in the University of Cambridge. The trustees were to hold the premises devised to them “in trust for the said collegiate body and their successors forever.” The devise was held to be valid. Atty.-Gen. v. Downing, Ambler, 550. A sum of money was pequeathed to erect a blue coat school and establish a blind asylum, with directions that land should not be purchased and the expression of an expectation that lands would be given for the charities. In answer to the suggestion at the bar that the application of the fund might be indefinitely postponed, it was said on the other side that the court would fix a time within which the gift must take effect, and 2 Vesey, 547, and 3 Atkins 806, were cited in support of the proposition. The vicechancellor said the cases of Downing College, and The Attorney-General v. The Bishop of Chester seemed to be authorities against the objection, but that the point did not arise in the case before him. It was obviated by a codicil to the will, which appears to have been overlooked by the counsel on both sides. IIenshaw v. Atkins, 3 Maddox Rep. 313; see also, Philpot v. St. George's Hospital, 6 Clark's House of Lords Rep., 359. In this case, as in the one we are considering, the trustee was required to approve the designated charity before paying over the money.
A testator left a sum of money to build and endow a future church. The question was raised, but not decided, whether the court would hold the fund for an indefinite time. The lord chancellor said; “ A gift to a charitable purpose, if lawful, is good, although no object may be in existence at the time. This was expressly decided in Attorney-General v. Bishop of Chester, where the gift was for establishing a bishop in his majesty's dominions in America," Sennet v. Herbert, Law Rep. 7 Chy., 1871, 1872, p. 237. A testatrix, by her will, directed, among other things, that when and as soon as land should be given for the purpose as thereinafter mentioned, almshouses are abundantly sufficient to dispose of this case. It is, therefore, unnecessary to extend this opinion by pursuing the subject further.
The judgment of the Supreme Court of the District of Columbia is affirmed.
should be built in three specified places. She further directed that the surplus remaining, after building the almshouses, should be appropriated for making allowances to the inmates. It was held that the fund was well given, for that the gift to charity was not conditional and contingent, but that there was an absolute immediate gift to charity, the mode of execution only being made dependant on future events. Chamberlain V. Brocket, 8 Law Rep., Chy., 1872-73, p. 206. The bearing of this authority upon the case in hand needs no remark. See, also, McIntire Poor School v. Zanesville Canal Co., 9 Ohio Rep. 203, and Miller v. Chittenden, 2 Iowa 315; 8. C. 4 Id. 252. These were controversies relating to real estate. The same point as here was involved. Both gifts were sustained. The judgments are learned and able.
The last of this series of cases, to which we shall refer, is an adjudication by this court. The testator gave the residue of his estate, embracing a large amount of real property, to the chancellor of the state of New York, the mayor and recorder of the city of New York, and others, designating them only by their official titles, and to their respective successors in office forever, in trust to establish and maintain an asylum for aged, decrepit, and worn-out sailors, the asylum to be called The Sailors? Snug Harbor. If the trustees so designated could not execute the will, they were to procure from the legislature an act of incorporation, giving them the requisite authority. Such an act was passed and the institution was established. The heir-at-law sued for the property. This court held that the official designations were descriptio personarum, and that the trustees took personally. See Bac. Abr., Grant C. Owen v. Bean, Duke on Char. 486; Well-Beloved v. Jones, 1 Simons & S., 40. Nothing was said as to the capacity of the successors to take. A special act of incorporation was deemed necessary. There being no particular estate to support the final disposition, the latter was held to be an executory devise. This court decided that the gift was valid, that, upon the creation of the corporation, the title to the property became vested in it, or that the naked legal title was held by the heir-at-law in trust for the corporation.
The points of analogy between that case and this are obvious. There, as here, a future corporation was necessary to give the devise effect. There, as here, there was a possibility that such a corporation might never be created. In both cases the corporation was created and the intention of the testator was carried into full effect. It is a cardinal rule in the law of wills that courts shall do this whenever it can be done. Here we find no impediment in the way. The gift was immediate and absolute, and it is clear beyond doubt that the testator meant that no part of the property so given should ever go to his heirs-at-law, or be applied to any other object than that to which he had devoted it by the devise here in question.
There are numerous other authorities to the same effect with those last cited. The latter
DIGEST OF DECISIONS OF SUPREME
COURT OF THE UNITED STATES. DURESS-WHAT DOES NOT CONSTITUTE.-To constitute the coercion or duress which will be regarded as sufficient to make a payment involuntary, there must be some actual or threatened exercise of power possessed or believed to be possessed by the party exacting or receiving the payment over the person or property of another, from which the latter has no other means of immediate relief than by making the payment. As stated by the Court of Appeals of Mary. land, as a doctrine established by the authorities, “a payment is not to be regarded as compulsory unless made to emancipate the person or property from an actual and existing duress imposed upon it by the party to whom the money is paid.” Brumagim v. Tillinghast, 18 Cal. 266; Mayor and City Council of Baltimore v. Tefferman, 4 Gill. 425; Mays v. Cincinnati, 1 Ohio St. 268.-Radich v. Hutchins. In error to the Circuit Court of the United States for the Eastern District of Texas. Opinion by Mr. Justice FIELD. Judg. ment affirmed.
WILL - CONVERSION OF REALTY INTO PERSONALTY.-A testator commenced by declaring that, after his debts and funeral charges were paid, he devised and bequeathed the worldly estate with which it had pleased God to entrust him. Next followed a direction that these debts and expenses should be paid, as soon after his decease as possible, out of any portion of his estate that might first come into the hands of his executors. Then followed a direction tbat all his estate, not otherwise devised and bequeathed (all except a single lot of ground devised to a son), should be sold as soon as practicable, and that the proceeds thereof should be divided in a manner and in proportions described thereafter. Then followed a devise of the excepted lot and various pecuniary bequests, succeeded by a residuary legacy to his son, given in the following words: “I give and bequeath unto my kind and affectionate son, Carberry S. Hilton, all the rest and residue of my estate, of which I may die seized or possessed, which is not herein otherwise devised and bequeathed, such as moneys, bonds, stocks, judg. ments, notes, household furniture, and all personal effects of every description and not herein otherwise disposed of, for his sole use and benefit and that of his children." Held, that, by the sale, the realty was converted into personalty and passed under the residuary bequest.–Given, ex'r., v. Hilton. Appeal from the Supreme Court of the District of Columbia. Opinion by Mr. Justice STRONG. Decree reversed.
FIRE INSURANCE-CONDITIONS IN POLICY_“EN. TIRE UNCONDITIONAL AND SOLE OWNERSHIP."-A policy of insurance, amongst other things, provided that “if the interest of the insured in the property be any other than the entire, unconditional, and sole ownership of the property for the use and benefit of the insured, or if the buildings insured stand on leased ground, it must be so represented to the company and be so expressed in the written part of the policy, otherwise the policy shall be void.” Two other stipulations were contained in the policy: (1) That "the use of general terms, or anything less than a distinct specific agreement clearly expressed and endorsed on the policy, shall not be construed as a waiver of any printed or written condition or restriction therein." (2) That the policy is made and accepted in reference to the foregoing terms and conditions, which are declared to be a part of the contract, and may be used and resorted to in order to determine the rights and obligations of the parties to the policy. Nothing was expressed in the written part of the policy indicating or tending to indicate that the interest of the insured in the property purporting to be insured was any other than the entire, unconditional, and sole ownership of such property for the use and benefit of the insured, or indicating or tending to indicate that the buildings insured stood on leased ground. The fee-simple title of the land was in the plaintiff subject to a lease of the premises to another party for a term of years. Held, that the condition of the policy was not forfeited and defendant could recover for his loss.-Lycoming Fire Ins. Co. v. Haven et al. In error to the Circuit Court of the United States for the Northern District of Illinois. Opinion by Mr. Justice CLIFFORD. Judgment affirmed.
fund in court. That was not the case; the fund in court belonged to the client, and all the solicitors' right was to get their costs from the client. If the fund in court was taken up by creditors, so that there was nothing left for the defendant to get out, so much the worse for the solicitor. In no case could the solicitor get more than the client. A solicitor had no right to call on innocent third parties to forego their own claims, or to ask in effect that the creditors might pay him because some one must be employed. To allow this motion would, in his lordship's opinion, be to encourage all sorts of improper dealing.
NOTES OF REJENT DECISIONS.
SOME RECENT ENGLISH DECISIONS.
EMBEZZLEMENT-ANIMALS FERÆ NATURE-CONTINUOUS ACT.-Reg. v. Read. High Court, Chy. Div. 26, W. R. 283. The prisoner, being employed as a gamekeeper, wrongfully killed and removed wild rabbits in and from a wood belonging to his master, with the intention of selling them. The killing, removing and selling them were one continuous act. The prisoner having been convicted of embezzlement, held, that the conviction was wrong.
EXECUTOR LIABILITY WILFUL DEFAULT GRATUITOUS BAILEE-CONFLICTING RULES OF LAW AND EQUITY.-Job v. Job, High Court, Chy. Div., 26 W. R. 206. Where the assets of a testator bave come to the hands of the executor, and are afterwards lost, the rule at law and in equity is now the same, that the executor is in the position of a gratuitous bailee, and that he can not be made liable unless he is guilty of wilful default, which now he may be charged with at any time during the action on a proper case being made. FIDUCIARY RELATION - SALE BY DIRECTORS TO
OWN COMPANY-FULL AND FAIR DISCLOSURE. - Chesterfield & Boythorpe Colliery Co. v. Black, High Court, Chy. Div., 25 W. R. 207. A and B, directors of a colliery company, purchased the lease of a colliery and resold the same to the company of which they were directors, at a large profit. There was no allegation that the price they obtained from the company was more than the lease was worth at the time. The fact that A and B were the vendors to the company was fully disclosed to the latter at the time of the sale, but the price they had themselves paid to the lessee was not disclosed. No unfair advantage bad, in the opinion of the court, been taken of the company. Held, that A and B had made a “full and fair disclosure" of their interests in the subject of sale, and that it was not incumbent upon them to disclose thc price for which they had themselves bought.
SOLICITOR AND CLIENT-RIGHT TO Costs OUT OF FUNDS IN COURT.-Check v. Nicholls, High Court, Chy. Div., 26 W. R. 231. Solicitors have no right to look for their costs to a fund in court not belonging to their clients. Where, therefore, in an administration suit the estate in court was exhausted bycreditors so that nothing was left for the testator's representative, and she became insolvent, a motion was made that her costs of suit might be retained out of the fund in court, so that her solicitors might be paid: JESSEL, M. R., refused the motion with costs, remarking that solicitors seemed to think they had a right to have their costs out of a
RECEIVER-AUTHORITY TO SUE.— Farlow, Receiver v. Lea. United States Circuit Court, N. D. of Ohio. 2 Cin. Law Bul. 329. Opinion by WELKER, J. A citizen of the State of Massachusetts, appointed a receiver of an Ohio corporation by the United States Circuit Court in the latter state, may maintain an action in said court for the recovery of assets of such corporation wrongfully withheld.
STATUTE OF FRAUDS-PAROL CONTRACT FOR THE SALE OF LANDS-EVIDENCE.- Sands v. Arthur. Supreme Court of Pennsylvania, 4 W. N. 501. Opinion Per CURIAM. A agreed verbally with B to do certain work for a certain price, in which was to be included a credit to be for the price of a lot of ground thereby agreed to be sold by B to A A never took possession of the lot, nor actually allowed the credit. He did the work, and B presented a deed for a lot, and claimed the credit agreed on. A refused the deed and refused to allow any credit, alleging that the lot was not the one bargained for. In a suit by A for work and labor done: Held, that evidence relating to the agreement as to the sale of the lot was inadmissible, as tending to enforce a parol contract for the sale of land in violation of the statute of frauds.
ECCLESIASTICAL LAW DENOMINATIONAL CONNECTION DOCTRINAL BELIEF – COSTS MESNE PROFITS.-Jones v. Wadsworth. Supreme Court of Pennsylvania, 4 W. N. 514. PER CURIAM. 1. Where demominational connection is one of the conditions of a charitable trust for the maintenance of a church, the trust is violated by a severance of the denominational relation, though the doctrinal belief continues identical. 2. The acquiescense of a trustee and his coplaintiffs, holding church property in trust for certain religious uses, to acts of others in violation of the trust, will not estop such plaintiffs from subsequently intervening, by bill in equity, to recover possession of the church property in order to maintain the trust. But such assent will bar their right to an account of mesne profits during a protracted litigation to recover such possession, in which plaintiffs were finally successful. 3. Under such circumstances each party will be required to pay its own costs. For opinion of court below see 3 Cent. L. J. 809.
ACTION FOR DECEIT - PURCHASE ON CREDIT REPRESENTATIONS AS TO SOLVENCY.--Dilworth v. Bradner. Supreme Court of Pennsylvania, 4 W. N. 505. Opinion by SHARSWOOD,J. 1. An action of de. ceit will not lie for representations of solvency, which, though in fact false, the defendant believed at the time to be true; and the honesty of his belief is a question for the jury. 2. In an action to recover damages for a false and fraudulent representation by defendant of his circumstances, by which the plaintiff had been induced to give him credit, defendant's counsel submitted the following point: “That if the jury believe that the defendant, at the time of using the statement attributed to him, really believed himself to be solvent, then his subsequent bankruptcy and insolvency, as matters of fact, do not avail to make the defendant liable in the present action, and their verdict should be for the defendant." To which the court answered as follows: “Affirmed, with the qualification that if he really believed himself to be solvent, upon reasonable grounds, then he would not be liable.” Held, that defendant was entitled to an unqualified affirmation of his point, and the qualification added was erroneous.
ABSTRACT OF OPINIONS OF SUPREME
COURT OF ILLINOIS.
[Filed at Ottawa, January 21, 1878.] Hon. John SCHOLFIELD, Chief Justice. “ SIDNEY BREESE,
T. LYLE DICKEY,
BENJAMIN R. SHELDON, « PINCKNEY H. WALKER,
Associate Justices. " Join M. SCOTT,
ALFRED M. CRAIG, AFFIDAVIT-MEANING OF “ADS."-Held error to disallow an affidavit filed in a cause the style of which was “ The Wilcox anıl Gibbs Sewing Machine Co. v. Frank A. Bowen,” the affidavit being entitled “Frank A. Bowen ads The Wilcox & Gibbs Sewing Machine Co.” The term ads indicates and means ad sectam, as vs. indicates versus. Opinion by BREESE, J.--Bowen v. The Wilcox & Gibbs Sewing Machine Co.
EVIDENCE-Books OF ACCOUNT.--In an action of assumpsit, for work and labor done, where defendant alleges payments to plaintiff: Held, that defendant having testified to the correctness of the entries in his dav books, of the various items of his account against plaintiff, and after having been permitted to give his day books in evidence, he can not be permitted to introduce in evidence his ledger, which is admitted to be a correct transcript of the day book, and which would be corroborative of the day book. Opinion by SCHOLFIELD, C. J.--Stickle v. Otto.
TRESPASS -- ADJOINING OWNERS — COMMON LINE FENCE.-In an action brought to recover damages for crops destroyed by the hogs of defendant, the parties occupying adjoining lands divided by a line fence, through which the hogs passed, the testimony showing that defendant and B, the former owner, agreed upon a division of the fence, each building and keeping in repair a part, and that plaintiff, since he obtained the property, continued to recognize the division, and plaintiff failing to prove that defendant's stock passed through the part of the fence belonging to defendant, it was held thatplaintiff was not entitled to recover. Reversed and remanded. Opinion by CRAIG, J.-D'Arcy V. Miller.
POWER OF ATTORNEY EXECUTED BY ILLITERATE PERSON.–Where plaintiff filed in the lower court a note and power of attorney to confess judgment thereon, and a judgment by confession was entered in accordance therewith, but it appeared by affidavits filed by defendant that he was illiterate, and that the plaintiff had represented the note was for a smaller amount than the judgment called for, and that it was not explained to defendant that a power of attorney accompanied the note: Held, that the lower court erred in not setting the judgment aside, and in not permitting an issue to be framed and tried by the court under its equitable powers. Reversed and remanded. Opinion by WALKER, J.-Condon v. Berse.
CONSTITUTIONAL LAW-EXEMPTION FROM TAXATION-DISCRETION OF LEGISLATURE.-It was not competent for the general assembly, under the constitution of 1848, to exempt from taxation property owned by educational, religious or charitable corporations, which was not itself used directly in aid of the purposes for which such corporations were created, but which was held for profit merely, although the profits were to be
devoted to the proper purposes of such corporations. Opinion by Scott, J. Sheldon and Dickey, J.J., dissenting, “think that by the constitution the discretion was to be exercised by the legislature, and having been exercised, courts have no power to review its exercise.” - The Northwestern University v. The People, etc.
WARRANTIES AND REPRESENTATIONS.— While no particular form of expression is necessary to create a warranty, there is a distinction as to the legal effect when used in reference to a matter of fact, and when used to express an impression or opinion. Where a representation is positive, and relates to a matter of fact, it constitutes a warranty. But when the expression relates to that which is matter of opinion or fancy, or as to the value of an article, it is to be regarded as an expression of an opinion rather than such an averment of a fact as will amount to a warranty. Under the foregoing rule held in this case, where a seller sold a fancy pin, calling it at the time a "diamond pin,” that it amounted to a warranty. Opinion by WALKER, J.Sparling v. Marks.
TRIAL-ABSENCE OF COUNSEL-DEFAULT-ERROR. Where a case is called for trial, being a suit on a promissory note, the defendant having a meritorious defense, the attorney for defendant being in another court-room, in the argument of another case, the defendant himsell being present, and having made efforts to have his attorney present, and under the rule of court which requires that in the absence of defendant's counsel, engaged in another court-room,“ it shall appear by affidavit that there is a meritorious defense to the suit, and setting forth in what it consists,” there being no such affidavit presented by defendant: Held that it was error to allow default against defendant and refuse him a hearing, the court being requested so to do within an hour after the case was called, on the ground that the rule in question was adopted for the convenience of counsel as a means of obtaining indulgences in cases of emergency that they could not always secure as a matter of courtesy, and that it ought not to operate against defendant, who knew not of the rule and who did all that he could to prevent an infraction. Opinion by SCOTT,J.—Hearson v. Gran. dine.
[Filed at Springfield, January 21, 1878.) VALIDITY OF STATUTE-WHEN APPEAL DOES NOT LIE TO SUPREME COURT.-- Where the validity of an ordinance is questioned, under which defendant claims to justify a trespass with which he is charged, and the defendant alleges that the charter of the city, un. der the authority of which the ordinance in question is claimed to have been adopted is valid, but which allegation is admitted by plaintiff, an appeal can not be taken to the Supreme Court, on the ground that the validity of a statute is involved in the decision of the case. Opinion PER CURIAM.— King v. Davenport.
PROMISSORY NOTE-FAILURE OF CONSIĐERATION. -Suit on a prommissory note. Defense, that the consideration of the note was a sale of the exclusive right to sell sewing machines within a certain territory, and that at the time of giving the note and making the contract, another man, B, bad a like contract from plaintiff, embracing a part of the territory mentioned in defendant's contract, and that B sold two or three machines in that territory after the date of defendant's contract. Held, no defense. Nothing in the evidence tended to show to what extent appellee was injured, if at all, by the sale of the two or three machines mentioned. At the most he could only claim credit to the amount of his loss by reason of the interference of which he complained, Reversed and remanded. Opinion by DICKEY, J.-Wheeler v. Tolliver.
NEGLIGENCE-BURDEN OF PROOF-INSTRUCTIONS. -An instruction in a suit for damages charging negli
gence that "proof of negligence on the part of the defendant is on the plaintiff; but when negligence on the part of plaintiff is set up as a defense, then the burden of proof to establish such negligence is on the defendant, and they must prove the same by a preponderance of evidence” is erroneous. In order to recover, plaintiff must allege and prove that he was exercising due care. It is true that in cases where the negligence of defendant is gross, the allegation of due care by the plaintiff is regarded as proven when it is shown that the want of care on the part of the plaintiff, if any, is but slight, in comparison with the negligence of defendant. The burden of proof, however, is on the defendant, even in such case to establish the freedom of plaintiff from such negligence as would defeat the action. Reversed. Opinion by DICKEY, J.-Indianapolis & St. Louis R. R. Co.v. Evans.
ABSTRACT OF DECISIONS OF ST. LOUIS
COURT OF APPEALS.
November Term, 1877.
[Filed February 19 and 26, 1878.] Hon. EDWARD A. LEWIS, Chief Justice.
ABSTRACT OF DECISIONS OF SUPREME
COURT OF KANSAS.
January Term, 1878.
D. M. VALENTINE, } Associate Justices. PRACTICE IN SUPREME COURT IN CRIMINAL CASES. --In the absence of any notice of appeal, required by section 285, Gen. Stat. 866, the supreme court has no jurisdiction to review the rulings and judgment of a district court in a criminal case. Carr v. State, 1 Kas. 331. Opinion by Horrox, C. J. Dismissed. All the justices concurring.–State v. Ashmore.
SCHOOL LANDS-LEGISLATIVE FORFEITURE.-1. Il a purchaser of school lands fails to pay the interest at the time the same becomes due, such failure ipso facto works a forfeiture, and the interest of the purchaser in the land instantly and absolutely ceases, 2. Section 16 of article 14, chapter 122, laws 1876, is a legislative declaration of forfeiture in advance, and no judicial determination is necessary to establish such forfeiture. Opinion by BREWER, J. Affirmed. All the justices concurring - State v. Emmert.
ACTION OF COVENANT-VARIANCE-EVICTION.-1. In an action of covenant upon a warranty to recover back the purchase money expressed in the deed of conveyance of the real estate, held, that under an allegation in the petition that the plaintiff' was ousted and dispossessed of the premises by due course of law, it is inadmissible to prove a constructive eviction by the purchase of a paramount title hostilely asserted by the party holding it, as the variance between the allegation and proof is fatal. 2. While the general rule is that the grantee must make the most of the title he has acquired, and yield possession only to a hostile assertion of a paramount title by a suit to recover the land, or in pursuance of a demand for the possession under a claim thereto, or upon a distinct hostile assertion of title, yet where the title to the land in controversy is in the United States, and liable to entry and settlement under the homestead laws of the government to all who possess the proper qualifications, that of itself is such a hostile assertion of the paramount title as will authorize the grantee to voluntarily submit to it. Opinion by HORTON, C. J. Reversed. All the justices concurring.-kan. Pacific R. R. v. Dun. meyer.
ROBERT. A BAREWELL, } Associate Justices.
LANDLORD AND TENANT-HOLDING OVER-LIABILITY FOR DOUBLE RENT.-Where a store was leased for one year, and the lease contained a stipulation that the lessee should pay double rent for every day he held over after the expiration of the term, and the lessee held over for 29 days: Held, that the continued occupation was under the terms of the lease, and that, as the lessor permitted the occupancy, its terms were fixed by the written contract, and the tenancy was not from month to month. The tenant was bound to pay double rent for every day that he remained. Reversed, and judgment for defendant. Opinion by LEWIS, C. J.Dearer v, Randall.
PRACTICE-BILL OF EXCEPTIONS-DUTY OF TRIAL JUDGE.-Under the tenth rule of practice of the St. Louis Circuit Court, though the adverse party fail to present within three days after the relator's bill of exceptions bas been handed to him, his objections thereto. with the alterations demanded, the judge is not therefore bound by law to sign anything, however insensible and untrue, which the relator n ay tender under the guise of a bill of exceptions. The duty of the trial judge is to see, not only that the bill of exceptions is true, but that it is intelligible; and his duty in this respect is entirely independent of any agreement between parties to the suit or their counsel. Mandamus refused. Opinion by LEWIS, C. J.--Slate ex rel. 0. Wickham,
MORTGAGE OF PROPERTY NOT IN EXISTENCE-WHEN VALID.-1. A mortgage of property not in existence or not owned by the mortgagor at the time of the execution of the conveyance is absolutely void in law; but where the contract relates to particular property reasonably certain to come into existence, necessary to the use of something in existence in which the mortgagor has an actual interest, so that there is a tangible basis for the contract, such a contract may be upheld in equity. 2. B rented a hotel building to M, reserving in the lease a lien on the furniture to be put in the hotel; after the house was furnished W lent money to M, taking a mortgage on the furniture, with notice of the terms of the lease. Held, that the lien reserved in the lease will be upheld in equity and has priority over the subsequent mortgage. The claim of the lessor was a charge in rem by virtue of the agreement, against the lessee and all claiming under him with notice. Affirmed. Opinion by BAKEWEIL, J.-Wright v. Bircher.
ATTORNEY AND CLIENT-RECEIPT FOR MONEY COLLECTED.-An attorney having in his hands moneys collected for his client, though he may retain out of them reasonable charges for bis services, can not exact a receipt in full as a condition of paying over the amount admitted to be due the client; but the court, on summary application, after due demand, will compel the attorney to pay over such amount, requiring the client only to receipt therefor on account. Opinion by LYON, J.-Charboneau v. Orton et al.
APPEAL--FORECLOSURE -VACATING JUDGMENTTAXATION OF COST$.-1. Appeal from a judgment of foreclosure does not bring up for review an order refusing to modify the judgment by striking out amounts allowed for costs and solicitor's sees. 2. The trial court can not vacate a judgment, after the expiration of the term, for error of law or fact committed in rendering