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3. A partner is not allowed in transacting the in error, and have had to find out for ourselves on partnership affairs, to carry on a separate trade what he bases the defense of the court's ruling. which, were it not for his connection with the It does not appear that the defense, under the partnership, he would not be in position to carry act of 1839, was established, but the court inonAn instance of this is where a partner ob- structed the jury that if they believed certain facts tains the renewal of a lease upon which the part- were proved, which facts had reference to the nership business is carried on. Another is the case seven years' possession under the act of 1835, their of Russell v. Austwick, 1 Sim. 52, where one mem- verdict should be for the defendant. ber of a quasi-partnership obtained a separate and The law of 1835 provides : “No person who private contract on his own account.

has or may have any right of entry into any lands, These principles do no apply to the present case. tenements, or hereditaments, of which any person Here the trade of the defendant is not with part- may be possessed by actual residence thereon, nership property; it is not in rivalry with the having a connected title in law or equity, deducipartnership; and it cannot reasonably be urged ble of record from this state or the United States, that the contract between the defendant and Nich- or from any public officer or other persons authorolas, Aston & Co. was in any way the sequence or ized by the laws of this state to sell such lands, for consequence of his partnership with the plaintiff. non-payment of taxes, or from any sheriff, marshal Appeal dismissed, with costs.

or other person authorized to sell such land on execution, or under any order, judgment or de

cree of any court of record, shall make any entry STATUTE OF LIMITATIONS JUDGMENT therein, except within seven years from the time LIEN-ILLINOIS STATUTE.

of such possession being taken; but when the possessor shall acquire such title after the time of

taking such possession, the limitation shall begin PRATT V. PRATT.

to run from the time of acquiring title."

The defendant has, we think, brought himself Supreme Court of the United States, October Term, within the language of this section by sufficient 1877.

proof, so far as actual possession for seven years

under a connected title in equity deducible of re1. THE STATUTE OF LIMITATION for the action to

cord from the United States could do so. And on recover possession of land is not applicable to the lien

this proposition alone the court told the jury to of a judgment creditor on the land, though the judg

find for the defendant. But this instruction failed ment debtor may sell and convey the land with possession to the party setting up the statute.

to give effect to the other evidence before the jury 2. THE STATUTE DOES NOT BEGIN TO RUN in

and undisputed, which, we think, had an importsuch case until the lard has been sold under the judg

ant bearing on the case. ment and the purchaser becomes entitled to a deed,

Upon an examination of the plaintiff's title it because until then there is no right of entry or right of will be seen that he had no right of entry until action against the defendant in any one.

February 24, 1865. If the statute began to run 3. BUT AS SOON AS THE JUDGMENT CREDITOR against him at that time it had not run seven years, places himself, by sale and purchase of the land, in a but only a little over four when the suit was condition that he can bring a suit for the possession, brought. Nor was there a right of entry, or right the statute begins to run against him. These proposi

of action, in any person against defendant during tions are applicable to the Illinois act of 1835 limiting actions for the recovery of land to seven years.

his entire possession, until the marshal's deed was

made to plaintiff, for the reason that the equitable In error to the Circuit Court of tbe United title, under which defendant held possession, was States for the Northern District of Illinois.

derived from Speer. That is to say, after the judg

ment to plaintiff against Speer was rendered, and Mr. Justice MILLER delivered the opinion of the

a lien on the land thereby established in favor of court.

plaintiff, Isaac Speer, the judgment debtor, conThis is an action of ejectment in which plaintiff veyed the land to Thomas Speer, and Thomas in error was plaintiff below. On the trial he Speer conveyed to Samua! Roberts, and Samuel proved title in Isaac Speer, in August, 1857, at Roberts to Charles L. Roberts. The defendant conwhich time he recovered a judgment against said

nected his possession with this title by showing a Speer, under which the land in controversy was

contract of purchase from Charles L. Roberts. It sold July 8, 1863, and a deed made to plaintiff, is obvious from this recital that there was no one founded on that sale, February 24, 1865. There who could lawfully enter upon the land in the dedoes not seem to be any question but that this fendant's possession until the plaintiff's judgment vested in the plaintiff the legal title to the land lien had become perfected into a legal title by some four years before the date of the commence

sale and conveyance. ment of this action, which was the 15th day of Was it the purpose of this statute that the peMay, 1869.

riod of limitation should begin against one who Defendant relied solely on the statutes of limi- had a lien of record on the land, but who was in tation of seven years as found in the act of the no condition to make entry or bring suit, and when Illinois legislature of 1835 and 1839, page 674 of the person in privity with him that could otherthe Revised Statutes of 1874. We are not favored wise have made entry or brought suit, had parted with any argument, oral or written, by defendant with that right to the defendant?

The very first words of the section describe the person against whom the act is directed as a person having a right of entry. While no such strict construction can be maintained as that this right of entry must be in the same person during the entire seven years that possession is running in favor of defendant, it seems reasonable that this period of seven years is not to begin when there was no right of entry in any one who could oust the defendant. The principle on which the statute of limitation is founded is the laches of the plaintiff in neglecting to assert his right. If, having the right of entry, or the right of action, he fails to exercise it within the reasonable time fixed by the statute, he shall be forever barred. But this necessarily presupposes the existence of the right of entry, or the right to bring suit. There can be no laches in failing to bring an action, when no right of action exists. There can be no laches in asserting a right to the possession of property held by another when that other is in the rightful possession.

But the possession then rightful may, by the termination of the right under which it is held, or by the creation in some legal mode of a superior title, cease to be rightful. The right of possession may, in some of these modes, come into another. It is then that laches begin, if the person who has thus acquired the better right neglects to assert it. And it is then that the principle of the limitation of actions for recovery of the land first applies, and if uninterrupted for the prescribed period becomes a perfect bar to the recovery of the rightful owner. There is nothing in this statute which appears to conflict with this view. The possession must be continuous, and connected with color of title, legal or equitable. There must be a right of entry in some one else to be told by this seven years' possession, and the possession must be adverse to this right of entry.

It is said that under the decisions of the courts of Illinois such possession as that of the defendant in the present case is adverse to all the world. There is no doubt but the Supreme Court of Illinois has said this, and that in a general sense it is true.

The defendant, having purchased the land of the person who had the legal title, does undoubtedly hold adversely to every body else. He admits no better right in any one. He is no man's tenant. The right by which he holds possession is superior to the right of all others. He asserts this and he acts on it. His possession is in this sense adverse to the whole world. But it is not inconsistent with all this that there exists a lien on the land-a lien which does not interfere with his possession, which can not disturb it, but which may ripen into a title superior to that under which he holds, but which is yet in privity with it. In the just sense of the term his possession is not adverse to this lien. There can be no adversary rights in regard to the possession under the lien and under the defendant's purchase from the judgment debtor until the lien is converted into a title conferring the right of possession. The defendant's possession after this is adverse to the title of

plaintiff, and then, with the right of entry in plaintiff, the bar of the statute begins to run.

This is a question of the construction of the statutes of Hlinois, and the case of Martin v. Judd, 81 Ill. 488, is supposed to be in conflict with what we have here said. But we are unable to see anything in that case to justify such a conclusion. It is true the plaintiffin that case, as in this, asserted title under a judgment, a sale, a marshal's deed. The defendant asserted title under a judgment against the same party and a sale and conveyance by the sheriff. The judgment under which plaintiff claimed was rendered July 14, 1854; sale, September 1, 1856, and marshal's deed, June 28, 1858. The judgment under which defendant claimed was rendered March 4, 1858; sale, November 7, 1859; sheriff's deed, October 14, 1862. The defendant relied on the seven years' statute of limitation. The suit, however, was commenced April 7, 1873, and the plaintiff had his marshal's deed June 28, 1858, which was fifteen years before he brought his action. The plaintiff, therefore, had tie right of entry and a right of action for fifteen years before he brought suit.

During all this time, or at least during the last seven years of it, the defendant had a possession under a title which was in every sense adverse to that of plaintiff.

In the case before us, plaintiff sued within five years after his lien became a title. Two of the seven years possession on which defendant relies was at a time when plaintiff had no title, and consequently no right of action, and while none existed in those from whom he derives title. The case of Martin v. Judd can not, therefore, raise the only question there is in this case. The instruction of the court to the jury, and the comments in the opinion of the supreme court, show that the point in controversy in that case was whether the defendant had shown a continuous possession adverse to plaintiff. That it was adverse there can be no doubt, though it was insisted that it was otherwise because held under a title derived from the same person that plaintiff's was. But it is very clear that after the deed of the sheriff under the sale on the junior judgment, the possession held under that deed was a possession in conflict with and adverse to the title then held by plaintiff, viz. : his deed under the senior judgment.

The opinion in the case of Martin v. Judd refers to and cites with approbation the opinion of the court in Cook v. Norton, 48 III. 20. That case was twice before the Supreme Court of Illinois, and received, as is evident, a very careful consideration. It is reported in 43 111. 392, and 48 III. 20. In that case Ryan was the common source of titie. A judg. ment was recovered against him August 14, 1815, and a sale under execution of that judgment was made April 8, 1864. No deed was made under this sale until July, 1860, more that fourteen years after the sale, though the certificate of sale was filed in the recorder's office when it was made. Ryan conveyed the property, in a few months after the judgment was rendered, to persons under whom the defendants held title and possession. 6 al

The suit was commenced within the seven years after Cook obtained the sheriff's deed, but as this was fourteen years after the sale, the question raised was when the statute begun to run against Cook's title. A few extracts from the learned opinion of Mr. Justice Lawrence will show that the court is in accord with the views we have already expressed.

“Would any one deny," he asks,“ that the purchaser in possession could protect himself, by proper proof, under the statute of limitation, if more than seven years had elapsed from the time when the prior purchaser had received or might have received his deed?

The defendant has never acknowledged a lessor, or any title paramount to his own. It is true the statute of limitation did not begin to run in his favor until the expiration of fifteen months from the sheriff's sale, because until then there was no outstanding, title upon which suit could be brought. But upon that day the purchaser at the sale was at liberty to take out his deed, clothe himself with the legal title, and demand possession, and from that day the statute began to run." The fifteen months here alluded to was the time which was allowed after a sale under execution for the debtor, or any other judgment creditor of the debtor, to redeem the land by paying the amount for which it sold, with interest. “ But," contined the court, though the sheriff's deed, made on that day, would have divested the legal title from Clark and vested it in the purchaser, that fact would not have converted Clark into a tenant. From that moment he became a trespasser and might have been sued as such.” Again, speaking of the defendant, Clarkó the court says: “ His possession began under his deed as a possession hostile to all other persons, and though the statute of limitations did not begin to run until the expiration of fifteen months from the day of the sheriff's sale, it was not because there was no adverse possession, in fact, until that day, but because until then there was no person in being who could bring the suit. That the sheriff's deed must be considered as having been made when the right to it accrued, so far as the statute of limitation is concerned, is conceded by counsel for appellant.”

These very clearly stated views of the Supreme Court of Illinois must control the present case. The plaintiff's right to the marshal's deed accrued July 8, 1863. The statute of limitations began to run on that day, and the bar of seven years would have become perfect on the Sth of July, 1870. This suit, however, was coinmenced on the 30th of April, 1869, more than a year before the statute bar was completed.

If we are wrong in what we have supposed to be the law, it must follow that in all cases in which the owner of real estate owes money which is a lien on the land in his hands, the statute of limitation begins to run against that lien as soon as he conveys the land with possession to some one else. It can make no difference in the principle asserted whether the lien be created by a judgment or by a mortgage. Nor can it make any difference whether the debt secured by the lien be due when

the corveyance is made or has ten or twenty years to run before the lien can be enforced against the land. The principle asserted is applicable in all these cases, namely: that from the day of the conveyance by the debtor of the land on which the lien of the debt exists to some third person, accompanied by transfer of possession, the possession of the purchases is adverse to the lien holder, and the limitation of seven years begins to run. If this be established to be the law, the owner of the real estate may borrow money on ten years' time, to the value of that estate, and give a mortgage on it to secure payment, and by a sale and conveyance of the land to a third person, with delivery of possession a week afterwards, the lien is utterly defeated. For the statute of limitation begins to run, according to this doctrine against the mortgage, the moment the title and possession are vested in the purchaser, and the bar of stitute becomes perfect against all the world by seven years' possession, whereas the mortgagee can take no steps to foreclose his mortgage until his money comes due, three years later.

And this doctrine is asserted in the face of the fact that there is a limitation law specially applicable to the enforcement of the judgment lien by sale under execution, and the enforcement of the mortgage lien by foreclosure.

This question came before the Supreme Court of Pennsylvania in the case of Cutler v. Phillips, 20 Penn. St. 155, and was fully discussed. We will close this opinion by giving verbatim the closing remarks of the court in that case so perfectly applicable to the one before us. “Lien creditors," says the court, “are subject to a limitation of five years, but the statute of limitations that concerns the action of ejectment has no relation to them. They have no estate in the land, no right of entry, no action to be affected by the statute. The statute bars the right of action and protects the occupant, not for his merit, for he has none, but for the demerit of his antagonist in delaying his action beyond the period assigned for it. But what right of action has a lien creditor to delay? His only remedy is by levy and sale. He then has an estate and a right of entry. The stat-' ute may then attach. Before it cannot.

The peremptory instruction of the circuit court to the jury, that the facts we have stated estab)lished a good defence, was erroneous, and the judgment must be reversed and a new trial had; and it is so ordered.

Mr. Justice CliFFORD dissenting.

I dissent from the opinion of the court in this case for two principal reasons: (1) Because it conflicts with the decisions of the state court upon the same subject. (2) Because the statute of limitations, applicable to the case, began to run when the defendant acquired the open, exclusive, adverse possession of the premises by actual residence thereon under claim and color of title, it appearing that he continued to reside there without interruption for the period of seven years prior to the commencement of the suit, having entered pursuant to a contract with the owner who had a connected title to the same deducible of record,

from the United States, and that the defendant subsequently acquired the title to the premises in pursuance of the contract, the rule being that such an adverse possession, if uninterrupted and continued, for the period of seven years, is equivalent to an absolute title when confirmed by a conveyance from the party having a connected title deducible of record, from the United States. Examined in the light of these suggestions, it is clear, in my opinion, that the case was properly submitted to the jury, and that the judgment founded on their verdict should be affirmed.

CORRESPONDENCE.

AS TO ENGRAFTING EXCEPTIONS ON STAT.

UTES OF EXEMPTION.

To the Editor of the Central Law Journal:

In an article on Exemption Laws, in the April-May number of the Southern Law Revievo, p. 6, it is correctly stated that Pratt v. Burr, 5 Biss. 36, and Riddell v. Shirley, 5 Cal. 488, can not be reconciled with certain other cases there cited, upon the question as to whether an insolvent debtor can, while insolvent, take from his assets money or property not exempt, and invest the same in property which is by name exempt and by statute exempted, and hold the property thus acquired free and discharged of pre-existing debts.

To Pratt v. Burr, and Riddell v. Shirley, may be aided the cases: Re Wright, 8 B. R. 431; Re Boothroyd & Gibbs, 14 B. R. 223, in both of which is discussed the question under consideration. In re Wright it was held that an insolvent could not, on the eve of bankruptcy, sell his homestead, remove with his family into a part of his store building as a dwelling, and hold it as a homestead exempt, although the statute of Wisconsin exempts to the debtor absolutely the dwelling house occupied by a debtor and the land on which it is situated (not exceeding a certain area) without limit as to value; and, although when the petition for bankruptcy was filed, this store was his only dwelling, aud the lot did not exceed the statutory limit.

The Supreme Court of Wisconsin, long before, in Phelps v. Rooney, 9 Wis. 70, had held that a debtor residing in the upper story of his store building, and having no other homestead, might hold the whole building exempt; and such is still the law of this state. But no question was then made as to the insolvency of the debtor at the time of acquiring the property. The decision in the Wright case went upon the ground of a fraudulent appropriation of property not exempt to the purposes of a homestead which was by statute de. clared to be exempt, and, because of the fraud, condemned the transaction and refused the exemption. In principle there seems to be no distinction between this case and Pratt v. Burr.

In re Boothroyd and Gibbs, which arose under the homestead law of Michigan, decided in 1876, Gibbs, one of the firm, appropriated $2,200, assets of his firm, to the purchase of a homestead, while he and firm were insolvent, and only three days before bankruptcy. The case does not show whether bis partner knew of or assented to such appropriation; but the court held that question immaterial, giving its reasons at length, and, in the course of its opinion, saying, “if the facts of this case called for it, I think I should be prepared to go much further, and to hold that a debtor, knowing himself to be insolvent, bas no right, on the eve of bankruptcy, to take his property and in

vest it in a homestead," citing Grimes v. Byrne, 2 Minn, 89, and commenting at length upon O'Donnell v. Seegar, 25 Mich. 367. The principle upon which both these cases were decided is, that a fraud upon creditors was intended; it is true that in both cases insolvency not only existed, but the debtors in each case must have known it themselves when they attempted to acquire the homestead. How far such knowledge entered into the decision of the case we are left to conjecture, merely.

If a debtor, in fact, hopelessly insolvent, but as yet not conscious of it, should appropriate a large part of his available assets to the purcbase of exempt property, and afterwards become bankrupt or his business be closed by judgments and executions, his prior debts remaining unpaid, the case would be exactly in effect, as if he had, at the same time, and under the same circumstances, made a voluntary transfer and settlement of money or assets not exempt to or for the ben. efit of his wife or children, in which last case knowl. edge of insolvency is not necessary in order that the transfer or settlement he set aside at suit of prior cred. itors. The only questions in such a case are: Was the debtor largely indebted or embarrassed, and if so, had he, besides the property so settled or transferred, ample means wherewith to pay all his obligations? If not, and largely indebted (insolvency need not in fact exist) the settlement can not stand. It could seem, from analogy, that knowledge of insolvency would not be necessary in the case of purchase of exempt property by one in fact insolvent.

The writer of the article under consideration, at page 6, concludes upon this subject as follows: “The courts, influenced by moral considerations, have sought to introduce an exception where the statute has made none. The weight of authority and the better reason appear to be that this can not be done. If the statute is wrong, the legislature should correct it."

With this conclusion it is to be hoped that few will agree. Statutes of exemption, it is true, are for the benefit of the family, as well as of the debtor, a kind of statutory provision or settlement, and are to be lib. erally construed. That of Wisconsin provides positively, that none of the property named as exempt sball be liable to attachment, execution or sale upon any final process, &c., making no exception as to how obtained (except as against demands for purchase money of personal property).

But this positive negative provision is no more unyielding and no more imperative than the rule of the common law, that the property of one shall not be liable to be taken for the debt of another.

All property, in form or manner, legally transferred to or settled upon wife or children, whether voluntarily or upon valuable consideration, by a husband or father, as between the parties, belongs to the grantees or donees; yet it is provided by the statute of frauds (which statute is only declaratory of the common law) that if the transfer is made with intent to hinder, delay or defraud creditors, the same shall be void as to the persons so bindered, delayed or defrauded; fraud vitiates all such transactions.

It is safe to affirm that property secured to a party as exempt by statute, is no more sacredly or effectually guarded than that secured by the common law; both furnish a perfect protection to all who claim honestly, but neither protects those claiming fraudulently. In voluntary settlements, if the party making the settlement is at the time largely indebted, although not insolvent, and does not retain sufficient to pay all then existing debts, the settlement can not be sustained, as against a prior debt, and sometimes even as against subsequent indebtedness. Parish v. Murphree, 13 How. U. S. 93; Kehr v. Smith, 20 Wall. 35.

In case of sale of chattels and full payment by vendee, if in fact intended by vendor to hinder, delay or only must insolvency exist, but that the debtor must be show to have known it at the time of purchasing the property claimed as exempt, and then to have actually intended to hinder, delay or defraud his creditors, to have been guilty of fraud in fact.

My object is not to suggest any particular rule, but to maintain the right of courts to engraft those so called exceptions upon statutes of exemption.

D. S. ORDWAY. MILWAUKEE, W18., April, 1878.

NOTES OF RECENT DECISIONS.

defraud creditors, the vendee, knowing such fraudulent intent, the sale is voidable, and creditors hindered, delayed or defrauded may reclaim the property, or recover its value not only from the fraudulent vendee, but from any other subsequent purchaser, with notice of the fraud. Babbett v. Walbrun, 16 Wall. 581.

Such being undoubted law, how can it, with reason, be claimed that property acquired or disposed of fraudulently as against existing debtors should be any more sacredly guarded when claimed under statutes of exemption by the fraudulent debtor himself, than when claimed by his wife or children under a formal valid common law title? The fraud is exactly the same in both cases, the misappropriation of property not exempt, and belonging in equity to creditors, to the support of self and family. If the sentence quoted from the article in question is correct, an insolvent debtor may appropriate a large part, if not the whole, of his property, which in equity and common honesty belongs to his creditors, to the purchase of exempt property, and set those creditors at defiance. He may thus accomplish what he could not otherwise do, as by making over the same property in a different form to wile or children for the same purpose. It is as clearly fraudulent for a insolvent debtor to buy exempt property with money which honestly belongs to his creditors, and to hold it freed from their claims, as to invest the same money in other forms of property, for the benefit of wife and children. Equity is not bound by forms, nor, indeed, is the common law fettered, or its efficacy taken away by names. Is it not "the better reason" that the courts may and should introduce just such exceptions upon the statutes of exemption as were introduced by the cases cited?

The question will still always be one of fact, in each case, as in voluntary settlements. In some instances the property claimed as exempt may have been pur. chased months or years before the insolvency is publicly known, just as in a voluntary settlement; yet in both instances the debtor may have been hopelessly insolvent, though sustaining his credit by false pretenses, and in both instances the real intent may have been to provide a home for himself and family at his creditors' expense. The time at which the settlement is made, or exempt property purchased, is material only as showing the intent. There is no discoverable difference in the two instances, unless it be claimed there is nothing fraudulent in converting assets not exempt into that which is exempt. If such a proposition be advanced, let us suppose an extreme case. A merchant of undoubted credit, residing in Wisconsin, is the owner of no exempt property. He has nominal assets, and is indebted in about an equal amount, but the real value of his assets is less than one-half his debts, and so known to him. He supplies himself with a homestead and all other exempt property specifically allowed by statute, and in so doing exempts all, or more than the value of his entire property. Bank. ruptcy follows, and then creditors first discover that for years before making such purchases he was clearly and hopelessly insolvent; yet if there is no fraud under there circumstances, he holds the whole property, and creditors receive nothing. It would would seem that " the better reasonshould be against this. It is difficult to believe that any respectable court of last resort will ever so hold, and it is safe to say that no court of that dignity has ever so held in a case where the insolvency was known to the debtor at the time of the transaction.

If it is admitted that such a fraud may possibly be committed, then the whole argument is against the conclusion of the author. Courts must engraft exceptions upon exemption laws, or confess themselves powerless to execute the plain provisions of the statute of frauds, or to enforce the simple requirements of the common law. Possibly it may be held that, not

REGISTRATION LAW - MEANING OF " FILED." Gorman v. Summers. Supreme Court of Minnesota, 6 N. W. Rep. 53. Opinion by BERRY, J. The word "filed,” as applied to a chattel mortgage in sections 1, 2 and 3 Ch., 39 Gen. St., does not include the indorsing and indexing prescribed by section 2, but a chattel mortgage is filed, within the meaning of the statute relating to chattel mortgages, when it is delivered to, and received and kept by, the proper officer, for the purpose of notice mentioned in the statute.“ Irrespective of our statute, we think that an inquiry for the ordinary meaning of the word 'file' will lead to the same conclusion. File' meant at common law, 'a thread, string, or wire, upon which writs and other exhibits in courts and offices are fastened or filed for the more safe keeping and ready turning to the same.' Wharton's Law Lexicon; Bouvier's Law Dictionary. Within this definition, a paper might be said to be filed when strung upon the thread, string or wire. That particular mode of filing having almost entirely gone out of use, another mode of filing, the purpose of which is the same, has taken its place, so that, as Bou. vier says, 'A paper is said also to be filed when it is delivered to the proper officer and by him received to be kept on file.' This which we take to be the present ordinary sense of the word 'filed,' would be presumed to be the legislative sense, unless the contrary is made to appear. That the contrary does not appear, is quite manifest from our previous examination of the statute. See Green v. Garrington, 16 Ohio St. 648.”

TRUSTEE EX MALEFICIO - WHAT WILL CONSTITUTE, PURCHASE OF LAND UNDER PAROL AGREEMENT FOR ONE HAVING AN INTEREST THEREIN DENIAL OF THE CONFIDENCE THUS CREATED. Wolford et ux. v. Harrington, Supreme Court of Pennsylvania, 5 W. N. 260. Opinion by SHARSWOOD, J.1. Where one having a bona fide claim, whether valid or not, to a piece of land is induced to confide in the verbal agreement of another that he will purchase the land at sheriff's sale for the benefit of the former, and in consequence the latter is allowed to obtain the legal title to the same, his denial of the confidence is such a fraud as will make him a trustee ex maleficio. 2. W's land was about to be sold at sheriff's sale; his wife held an unrecorded deed to the same, which she bad obtained in good faith, with her own money, and was desirous to save the land from going out of possession of the family. One H, knowing of this deed, advised her not to rely on it, and volunteered to attend the sheriff's sale, bid in the land for her, and give her time to repay the amount bid; and that he would put this agreement in writing as soon as he got the sheriff's deed. H bought the property, but refused to comply with his agreement: Held, that he was trustee ex mal. eficio for the wife. 3. The principles laid down in Wolford v. Herrington, 24 Sm. 311, that a party thus purchasing would hold as trustee ex muleficio, although the wife had no interest in the land, reconsidered and overruled.

RAPE--SOLICITATIONS WITHOUT VIOLENCE-SEDUCTION.-People v. Royal, Supreme Court of California,

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