theory that her husband died "without any child or descendant in being capable of inheriting" within the meaning of a certain section of the statute to which reference was made. It was held that under the statutes of that state, for all the purposes of inheriting from the adopting parent, the adopted child became, and was, the lawful child of the adopter, the same as if born in lawful wedlock; that, as the testator died leaving a child capable of inheriting from him, it was clear that the widow was not entitled to one-half of the lands in suit, and the judgment was affirmed. This doctrine was reaffirmed in a subsequent case between the same parties, involving other lands. 132 Mo. 73, 33 S. W. 443. And it was reiterated in Moran v. Moran, 151 Mo. 558, 52 S. W. 378. To the same effect is Markover v. Krauss, 132 Ind. 294, 31 N. E. 1047, 17 L. R. A. 806.

Judgment affirmed. To be certified to the probate court.

(82 N. J. L. 542)

STATE v. KELSEY.

Sept. 21, 1911.)
CRIMINAL LAW (§ 1023*)-WRIT OF ERROR-
FINAL JUDGMENT.

25 Ind. 222. In Bancroft v. Heirs of Ban- | acres, basing her claim to one-half on the croft, 53 Vt. 9, the adoption was by the husband and wife together, and the person adopted was made heir at law of them both. No question was raised by the widow, but the matter of the distribution of the adoptive father's intestate estate above the widow's third to the adopted child was contested by the brothers and sisters of the intestate on the ground of ineffectual execution of the instrument of adoption. The instrument was held to have teen properly executed to constitute the child heir at law of the intestate, and the judgment of the county court was affirmed. In the case at bar, as seen, the adoption was made by the intestate when single, more than six years before his marriage to the woman now his widow. And she knew of the adoption at the time of her marriage. The case is one, therefore, where the husband died intestate, leaving in the sense of the law "legal representatives of deceased children," within the meaning of the first canon of descent, and of the first clause of division 3, P. S. 2925. Hence under the statute of descent the widow's share of the intestate estate is affected thereby the same as it would be were such "representatives" of the intestate's deceased (Court of Errors and Appeals of New Jersey. natural children. In Rowan's Estate, 132 Fa. 299, 19 Atl. 82, the testator died leaving a widow and an adopted daughter, but no natural child. The adoption was made by the testator before his marriage to the woman who survived as his widow. The widow having elected to take the share of the estate to which she would have been entitled under the intestate laws, it was claimed in her behalf that, as the decedent died without issue, she was entitled to one-half of the fund. The court below awarded her onethird from which she appealed. So the question was whether, as between the widow and the adopted child of the decedent, the child had all the rights of a natural child in the distribution of the estate. It was held that by the adoption the child became a child and heir of the person adopting her, so far as she could be made such by legislative enactment, and had all the rights of a child and heir of the adopting parent; that the widow had no reason to complain that her rights had been interfered with by the act of her husband in making the adoption prior to their marriage, and the decree was affirmed. In Moran v. Stewart, 122 Mo. 295, 26 S. W. 962, the adoption was by husband and wife, as their child and heir. The wife died leaving her husband surviving. He subsequently married the plaintiff in suit. He died testate, having devised 400 acres of land in question to his adopted son. The widow elected to take one-half of the real and personal estate of the deceased in lieu of dower. She then brought suit for the partition of the 400

There being no final judgment, but the Supreme Court, on removal there, by certiorari, tion to quash it, and ordered it returned to of an indictment, having merely denied a mothe court of oyer and terminer, there to be proceeded with as if certiorari had not been allowed, writ of error will not he to the refusal to quash.

[Ed. Note. For other cases, see Criminal Law, Dec. Dig. § 1023.*]

Error to Supreme Court.

Indictment against David L. Kelsey having been removed, by certiorari, to the Supreme Court, it denied a motion to quash it (80 N. J. Law, 641, 77 Atl. 1028), and he brings error.

Dismissed.

Martin P. Devlin, for plaintiff in error. William J. Crossley, Prosecutor of the Pleas, for the State.

PER CURIAM. The return to the writ of error discloses that an indictment was found in the Mercer county court of oyer and terminer against the plaintiff in error; that upon his petition a writ of certiorari was issued out of the Supreme Court, removing the indictment to that court; that a motion to quash the indictment was there made, which motion was denied, and the court thereupon ordered that the indictment be returned to the court of oyer and terminer, there to be proceeded with as if the said writ of certiorari had not been allowed.

It is assigned for error here that the Supreme Court erred in refusing to quash

•For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

ants' recovery, it will be for the amount of the deficiency at $4 per acre, which amount they will be entitled to have credited upon the mortgage.

ercised by the vendor in this transaction, | no obstacles found in the way of complainwhereby the vendees were deceived as to the quantity of land, but it is claimed that the mistake in acreage is so gross that it falls within that class of cases where it is manifest that the vendees would not have taken the land and paid the price which they agreed to pay for it had they known of the great deficiency in quantity, and that, therefore, they are entitled at this time to be relieved from the mortgage debt to the amount of the deficiency in acreage.

[1] "Upon the face of the deed and mortgage, taken in connection with the accepted fact of misrepresentation of quantity, the complainants. would, as against Joseph Myers, be entitled to a recovery; that is to say, the deed is from Joseph Myers, ancestor of the person now holding the mortgage, and the purchase-money mortgage is to Joseph Myers, and is shown to be on its face a purchase-money mortgage, and the quantity of land which the deed purports to convey not having existed there could arise no indebtedness to the full amount, but the actual indebtedness would be limited to $4 per acre for the amount of land actually conveyed, and there, therefore, would be a failure of consideration of the mortgage to the full amount of the deficiency, and complainants would, as against Joseph Myers, be entitled to that reduction. That, I say, would be the apparent situation if the mortgage were still held by Joseph Myers, taking into account only the conveyance and the purchase-money mortgage, and the fact, which I say cannot be disputed, that the shortage existed and was a mistake, and that the complainants purchased this land under the belief and under the representation that it contained 6,000 acres in quantity which they were to pay for at the rate of $4 per acre. I said 6,000 acres in quantity. I do not mean by that that it was supposed to contain exactly 6,000 acres, but they wanted a tract of fully that amount and the exact acreage was not material, because the land was wild and waste and of but little value per acre, and the circumstances which have been introduced in evidence show clearly that so long as about 6,000 acres were conveyed it mattered little to the parties whether it overran or underran that amount. The pencil figurings which have appeared in evidence by the production of the slips show that so long as about 6,000 acres was reached the parties appeared to be mutually satisfied, and little account was taken of a slight overplus or shortage. The defense, however, consists of several elements. The principal feature of the defense may be said to be that this was not a sale by Joseph Myers to complainants, as the deed indicates it to have been, but that Jo

"The evidence introduced upon the part of the complainants establishes that the land conveyed contained only 4,829.23 acres in fact. The defendants have not undertaken to controvert that fact, and therefore it may be accepted as true that there is in the land described in the deed 1,170.77 acres in quantity less than 6,000 acres. If, therefore, the complainants are entitled to relief at all, they are entitled to it against the mortgage to the amount of $4 per acre for each acre of deficiency, or to the amount of $4,683.08. No foreclosure suit has been brought for the foreclosure of the mortgage, but the bill is filed by the complainants, who are the mortgagors, asking relief against the mortgage, and the case, of course, stands exactly the same as it would have stood had there been a defense to the foreclosure of the mortgage introduced by way of cross-bill for the deduction or credit on the amount claimed to be due upon the mortgage. The evidence in this case is entirely satisfactory, and entirely conclusive as to the fact that at the time the sale was made the sale was not what has sometimes been called a sale of definite land for a gross price, but was, on the contrary, an acreage sale. The purchasers of the land, the complainants in this cause, undertook to buy, and believed they were buying, about 6,000 acres of land at $4 an acre, and the price of $24,000 was arrived at in that manner. The vendors, or, rather, the parties who were procuring the land for the complainants, undertook to procure for them a contiguous tract containing 6,000 acres of land at the price named. The original written agreement, marked 'Exhibit C 1,' and especially when that agreement is taken in connection with the testimony in the case, shows clearly that it was an acreage purchase. Mr. Abbott, the principal witness for the defense, himself stated that at one time it was contemplated that the price would be $4.50 per acre, in which case, by his own tes-seph Myers was a mere money lender in the timony, the price was to be $27,000, but that subsequently, by reason of certain concessions made to the Abbotts touching timber, the price was reduced from $4.50 per acre to $4 per acre, making $24,000, instead of $27,000. So that there can be no doubt but that it was an acreage purchase at $4 per acre. That fact, I think, must be held to be ascertained. If, therefore, the complainants are entitled to the relief sought, if there are

transaction and had nothing to do with the sale, and that the deed executed by him was a mere matter of convenience, and that the full legal and equitable title was never in fact vested in him, but that the title passed through him for convenience only, and for his protection; that he was, in fact, a man who loaned money on this land to the amount specified in the mortgage, and had nothing whatever to do with the sale, al

though the deed indicates that he was the ants pursuant to the terms of the agreement. vendor of the legal and equitable title alike. That was afterwards in fact done either by Mr. J. E. P. Abbott has undertaken to es- him or by him and his brother, or by him tablish this defense by his testimony, and and his brother and Joseph Myers. What, there is little, if any, testimony towards the in fact, transpired was that options were at establishment of this defense other than his. once procured by, I will say, the Abbotts (in I am bound to say that his evidence in this view of the conflict in the testimony as to respect has been of a somewhat unsatisfac- the extent of interest of the two Abbott tory character. He has himself said that brothers), for the land which they were to there might have been some features of the convey, and, when it approached the time for transaction that he was not familiar with, taking up the options in order that they and his testimony indicates that there were could carry out their agreement with the probably many features that he was not fa- complainants, it was naturally found that it miliar with, but he is extremely positive in took money to take up the options, and it his statements to the effect that Joseph My- was then for the first time that Mr. Myers ers had nothing to do with the matter ex- appeared in the transaction. The complaincepting to loan this money on this mort- ants say that they knew nothing about Jogage. The evidence discloses that the orig- seph Myers at all until the time they were inal agreement touching this property was called up to pay $1,500, the remaining part made, in name at least, between Charles T. of the first installment of $2,000, which was Abbott, brother of J. E. P. Abbott, the wit- about March 10, 1891, and that then they ness, and the complainants, and that that paid the money to either Mr. Myers or J. E. P. agreement was an agreement signed by Mr. Abbott, I am not sure which, but at any rate Charles T. Abbott, in which it was contem- they were given a receipt for the money plated that Mr. Abbott should sell a large signed by Joseph Myers, the receipt reciting tract of land in Atlantic county to include that the money had been applied on a deed about 6,000 acres at $4 an acre to the com- from Dixon and wife to Myers. Mr. Abbott plainants, for which the complainants were explains that at this time they had found it to pay as a first payment $2,000 ($500 of it was necessary for them to have a capitalist having been paid down at the time the agree- in the enterprise, and he, Mr. J. E. P. Abment was signed), and were subsequently to bott, had called in Joseph Myers to supply pay $1,000 in two months, $1,000 in three the necessary money to enable them to take months, and $1,000 in four months, and that up the options, that Mr. Myers had agreed the balance was to be secured by mortgage. with him, Mr. J. E. P. Abbott, to do so, and Some other conditions were named in the that he had informed the complainants of writing, including a stipulation touching the that fact, and that the arrangement with execution of releases from time to time of Mr. Myers was that he should, and that he parts of the mortgaged premises at the rate afterwards did, take the titles of the various of $2 per acre. There is considerable con- parts of the contemplated tract which were flict of testimony as to whether this agree-purchased from time to time in his own ment was actually made by Charles T. Ab- name as his own security, because he was bott or by J. E. P. Abbott. While it is sign-advancing the necessary money for the pured by Charles T. Abbott, the complainants state that they from first to last had little or no dealings with Charles T. Abbott, that their dealings in this matter were almost entirely with J. E. P. Abbott, and that at the time this agreement was signed they had not come in contact with Charles T. Abbott at all, and that at that time they understood that the person they were dealing with was Charles T. Abbott, because that was the name signed to the agreement, and they only afterwards learned that they were in fact deal- | ing with J. E. P. Abbott. On the other hand, J. E. P. Abbott claims that he had nothing to do with the transaction except as an attorney, and that it was his brother's agreement, and he was attorney in the matter largely as a matter of favor to his brother. These matters are not especially material excepting as they shed some light on the future transactions. It appears that Charles T. Abbott at the time this agreement was drawn had no land such as the agreement called for, but the contemplation clearly was that he would

chase of these various interests; the tract being a large tract, the different parts of which were owned by different owners, and the transaction, in consequence, involved the purchase of very many different titles, so from time to time Mr. Myers advanced money after the first payment referred to, and the deeds, as the options were taken up, were made to Mr. Myers, until the time of the final settlement when Mr. Myers made the conveyance to complainants and received the purchase-money mortgage for $21,000, which mortgage is the one now in question.

"Difficulties which I have encountered in accepting in its fullness the testimony of Mr. Abbott have not arisen from the fact that I am inclined to doubt the truthfulness of Mr. Abbott, because he has in his testimony borne every appearance and indication of a man who testified to what he believed; but there are many things that indicate that Mr. Abbott's testimony may not be entirely accurate. Mr. Abbott's testimony, if true, shows a transaction which approaches very

receipt which I have already referred toExhibit C 2—which is the first money that was paid after the original deposit of $500, that receipt making the total amount of the first installment of $2,000, is signed by Joseph Myers. There, according to the testimony of the complainants, Mr. Myers is presented to them and brought to their knowledge for the first time. On the face of the receipt, it shows that one title at least, the Dixon title, had been taken at that time in the name of Mr. Myers, and from the standpoint of the complainants, if we are to accept their testimony as accurate, they had a right at that stage of the proceed

impossible, and for that reason I have been | a condition of affairs may have existed. The throughout the trial strongly impressed with the view that perhaps Mr. Abbott's testimony cannot be properly accepted as a basis for a finding of fact that Mr. Myers figured in this transaction only to the extent which Mr. Abbott described. It seems extremely probable that Mr. Myers as an intelligent money lender would not have been likely to have advanced the entire money which was necessary to purchase the land in question, and have accepted as his security a mortgage for that entire amount. It would have been the equivalent of a transaction where a money lender took a mortgage for the full amount that it was necessary to pay for the property. The only ele-ings to regard Mr. Myers as one of the prinment of security which could seem to pos- cipals, if not the sole principal, in the transsibly appeal to the money lender in such a action at that time, because here was an transaction would be the fact that a pur- agreement of February 10, 1891, where the chaser had been found for $3,000 above the Abbotts, or one of them, agreed to sell the cost of the land, namely, the difference be- land to complainants, and here they are retween $21,000 and $24,000, and the possible quired to pay to Mr. Myers and take his hope that the purchaser might improve the receipt for the balance of the first installlands and render the security a better se- ment in that agreement, and on the face of curity in the future. The transaction as de- the receipt it is shown that the title to a scribed by Mr. Abbott is therefore one that part of the land which they are going to get seems to almost compel the existence of is being made to Mr. Myers, and they are doubts in the mind of one who contemplates informed as well, as I recall the testimohis testimony, because of the seeming ex- ny, that options had already been procured, traordinary or unusual character of the and that these options were being taken up transaction from the standpoint of ordinary by Mr. Myers, and that, therefore, this monmoney lenders. If, on the other hand, it be ey was paid to Mr. Myers. It is difficult to assumed that Mr. Myers did not advance the understand why Mr. Abbott would have had full amount of money that was being used Mr. Myers sign that receipt for complainto make the purchase of this land, but ad- ants if the theory of the transaction was, as vanced a less amount so that the transac- Mr. Abbott states it was, merely a loan from tion could be considered more reasonable, Mr. Myers. If Mr. Myers was making a and Mr. Abbott does not claim to know what loan of the money necessary to buy this the exact facts were with reference to the land, and was taking the title as it was beamount advanced by Mr. Myers, then the ing acquired from time to time to secure case would present a mortgage which was him for the money he was advancing for the usurious as to a part of the $21,000, if Mr. purpose, there would have been little necesMyers is to be treated as a person who had sity, to my mind, for Mr. Abbott to have no interest in the transaction excepting to had Mr. Myers sign a receipt for this $1,make a loan. And so I have been impressed 500. If, on the other hand, Mr. Myers had during the entire progress of the trial that assumed the burden of carrying out this enthe facts may have been in some way dif- tire agreement and had become identified ferent from those described by Mr. Abbott. with the Abbotts in that agreement as a It would seem from the various earmarks principal, it would have been appropriate that we find in the progress of the trial, and right for Mr. Myers to receive all of emanating from expressions of Mr. Abbott the moneys that were being paid in by the in negotiating the transaction, that Mr. My- complainants, and to have taken the titles ers and one or both of the Abbotts may have in his own name and handled the transacbeen identified in this general enterprise to- tion throughout as his own, as he was begether under some arrangement for division coming the responsible party. Then a letter of profit among themselves. That sugges- written by Mr. Abbott May 7, 1891, marked tion must impress itself very strongly upon 'Exhibit C 3,' gives what at that time was the mind of any one who tries to conjecture Mr. Abbott's version of the transaction. The how these matters might have been brought letter may not have been well framed, it about. Just what the division of profit may not have very accurately expressed what might have been in such a case between Mr. Mr. Abbott had in his own mind at the time; Myers and the Abbotts is not disclosed, or but the language used by Mr. Abbott then whether, in fact, it was a joint enterprise was scarcely consistent with the language of either one or both of the Abbotts and which he uses now. Throughout that letter Mr. Myers, is not disclosed, but the circum- he refers to himself and his brother and stances fairly point to the theory that such | Mr. Myers as 'we,' in the plural. He re82 A.-2