SPECIFO PERFORMANCE-BENEFIT OF THIRD PERSON -POSSIBLE BENEFIT NOT SUFFICIENT.-A creditor of a firm cannot maintain an action upon an agreement made with a firm by one not a member to pay a portion; for instance, one-quarter of its indebtedness, as no one creditor can show from the contract that it was intended for his benefit or covers any part of his debt. It would be a very great extension of the doctrine of Lawrence v. Fox to give a right of action to a creditor for whose benefit the promise might or might not have been made. In Barlow v. Myers, 64 N. Y. 41, where the promise was to pay generally "the debts of Randall & Williams, without specifications of the particular debts, or naming the creditors of the firm," attention was called to the fact that in this respect the case differed from all the cases in which the right of action had been sustained in behalf of the third party. But while there it was possible to say that the creditors were sufficiently identified as belonging to a class all of whom were to be paid, here, on the other hand, no class is named or described, and who was to be paid by the promisor, or to what extent, is left absolutely uncertain and undetermined. We prefer to restrict the doctrine of Lawrence v. Fox within the precise limits of its original application. But there is another reason for saying that the defendant creditors had no legal interest in the promise of plaintiffs which could entitle them to contest the action for a reformation of the contract. We held in Dunning v. Leavitt, 85 N. Y. 30, and again in Crowe v. Lewin, 95 id. 423, that the right of the third party benefited by the promise, at least before he had accepted and adopted it, was of such derivative and imperfect character, if indeed it attached at all, and was so subject to the relations and equities of the original promisor and promisee, that the destruction of the consideration of the promise in the one case, and the rescission or annulment of the contract in the other, in actions to which the alleged beneficiary was not a party, and in which he had not been heard, barred and prevented him from any right of action upon the promise. If we have construed the pleadings and read the evidence correctly, that is the case here. There had been no acceptance or adoption by word or act. Something of that kind was essential. Turk v. Ridge, 41 N. Y. 201; Garnsey v. Rogers, 47 id. 242; Vrooman v. Turner, 69 id. 285; Knickerbocker Life Ins. Co. v. Nelson, 78 id. 151; Brewer v. Dyer, 7 Cush. 337. What it should be, whether a bare assent communicated to the promisor, or some decisive act of the third party by which his original position and rights have been changed in reliance upon the promise, before the equities between the contractors become burdened with a right to interfere and be heard belonging to the third party, we do not now decide, because it is wholly unnecessary. It is enough that these creditors, neither by word nor act, in any manner assented to or adopted the promise before the action for its reformation. They were therefore not necessary parties to that action, had no legal interest in it, and were properly denied the right of appeal. Van Buren v. Rice. Opinion by Finch, J. [Decided Nov. 25, 1884.]

NEGOTIABLE INSTRUMENT-ASSIGNMENT OF PAID NOTE-RIGHT TO CONTRIBUTION PASSES.-Where one of several accommodation makers of a joint and several promissory note paid the same, and subsequently transferred and delivered it for a valuable consideration to a third person, held, that although the note, as an obligation, was extinguished by the payment, yet it remained in the hands of the maker, who paid it, the evidence of his right to contribution from his co

sureties. Hodgson v. Shaw, 3 Myl. & K. 183. The delivery raised a legal presumption of an intent to pass, and did pass this right to the transferee. While no one of the parties has testified that this transfer was made under a mistake of law, and in the absence of such proof we ought to presume that they knew the law, and acted in the light of that knowledge, it may still be possible to infer from the facts that both parties thought the note a valid and subsisting obligation against all the signers, and had no conscious and definite intent to transfer any thing else. But grant that they did not; does it follow that the right of contribution did not pass? It is argued that it did not pass unless the minds of the parties met over that specific transfer, that there must have been a mutual intent to assign that identical right, and no such meeting of minds or mutual assent existed. But it was said in Schuyler v. Smith, 51 N. Y. 314, that the general rule undoubtedly is that it takes two parties to make an agreement, and that their minds must meet. But this rule is not of universal application. The law sometimes steps in and makes agreements for parties which they did not mutually intend. In the opinion in that case pertinent illustrations are given, but some more nearly allied to the case in hand may be gathered from the reports. In Oneida Bank v. Ontario Bank, 21 N. Y. 490, a loan was made to a bank for which post notes were delivered which were illegal, but were afterward assigned by the lender to another bank, and it was held that the assignee could recover on the original loan, although the action was on the post notes, and no transfer of the original loan had been made. There, as here, there was no specific transfer of the right which existed, and there, as here, a transfer only of something utterly dead and worthless. What the parties had in their minds was the post notes, and yet the law made the worthless paper carry to the assignee the valuable right when such a thought probably never entered the mind of either party. Cages have arisen in which a mortgage, void for usury, has been assigned to third parties, and which was held to carry to the assignees the right to an old security not usurious, for which the void mortgage was given. Gerwig v. Sitterly, 56 N. Y. 217. The reasoning in that case justifies much that we have said in this, but it especially shows how the law deems within the intent of the parties something which was never present to their thoughts, and in spite of some ineffectual thing which was so present. In that case it was said that "it never was the intention of the assignor to retain any thing for himself in respect to the original debt," and with equal propriety we may say here that Snell never intended to retain for himself, and to be enforced by him, a right of action against the sureties. Still another class of cases are those in which a mortgage has been foreclosed by proceedings entirely ineffectual to pass a title, and where the purchaser's deed has been held to operate as an assignment of the mortgage. Jackson v. Bowen, 7 Cow. 14; Robinson v. Ryan, 25 N. Y. 324. In these instances there never was in the mind of either party a conscious intention or purpose of assigning the mortgage. On the contrary, the actual intention was to extinguish the mortgage and transfer the land. In the former of these cases it is said "the intention was to pass a greater interest. If that failed, it is no objection to the operation of the instrument "" In as an assignment. Valeat quantum valere potest.' that maxim thus quoted lies the germinant seed of the whole doctrine. As the greater right includes the lesser, even though they are of different character, the intent to convey the greater includes the intent to convey the lesser, and if the former fails the latter may prevail. So much shall pass as can pass. The facts that the transferee paid the full face of the note, and not merely the amount due for contribution, that

the transferee paid the full interest for several years, and that upon his failure the transferee proved the note for its full amount against him in bankruptcy, and received and credited a dividend thereon, were none of them inconsistent with an intent deducible from the bare transfer to assign and pass the right of contribution. Dillenbeck v. Dygert. Opinion by Finch, J.

[Decided Nov. 25, 1884.]

UNITED STATES SUPREME COURT ABSTRACT.*

- CAR

CUSTOMS DUTIES" "" HOUSEHOLD EFFECTS RIAGE USED ABROAD-Rev. Stat., § 2505.—A carriage in use abroad for a year by its owner, who brings it to this country for his own use here, and not for another person, nor for sale, is "household effects" under section 2505 of the Revised Statutes of 1874, p. 484 (2d ed.) and free from duty. Persons who dwell together as a family constitute a "household." In New York a statute exempted from execution a cow "owned by any person being a householder." In Woodward v. Murray, 18 Johns. 400, a judgment debtor, who owned a cow, had left his wife and children, they continuing to reside in the house he had occupied. While they were on the road, removing to the house of the wife's father, with the cow and their household furniture, the COW was seized on execution. The court held that the exemption continued 80 loug as the wife and children remained together "as a family," and that they continued to be the debtor's "household," and he the "householder." The question for decision in this case is whether the carriage of the plaintiff fell under either of these heads: (1) Household effects in use of a person or a family from a foreign country, used abroad by the persou or the family not less than one year, and not intended for any other person or persons, nor for sale; (2) personal effects (not merchandise), nor for sale, of a person arriving in the United States. The carriage had been in use as a family carriage, abroad, by the plaintiff as owner for more than a year. She came from abroad after a temporary residence there of three years, and imported the carriage two weeks later for use here, and not for any other person, nor for sale. Was it "household effects" or "personal effects" of the plaintiff? We think that it fell within clause 1, and was "household effects." In the provision respecting the "household effects" of persons or families, there is an evident intention to include articles which pertain to a person as a householder, or to a family as a household, which have been used abroad not less than a year, and are not intended for others, nor for sale. A carriage is peculiarly a family or household article. It contributes in a large degree to the health, convenience, comfort and welfare of the householder or of the family. The statute is not limited to articles of household furniture, or to things whose place is necessarily within the four walls of a house. Clause 2 above uses the words "personal and household effects." This serves to show that by the use of the words "household effects" alone in clause 1, in the same section of the statute, something is intended different from "" personal effects, and that those words embrace articles which the words "personal effects" do not cover. So too if the words "other personal effects" in clause 3 should be extended to embrace articles properly covered by the words "household effects" in clause 1, such household effects would come in free, although not used abroad for a year, and the door would be opened wide * Appearing in 5 Supreme Court Reports.

for the introduction without duty of large numbers of articles as "household effects" which it is intended should pay duty. We do not find it necessary in this case to consider any further the construction of the words "other personal effects" in clause 3, because we place our decision on the grouud that this carriage was 'household effects" of the plaintiff. The protest claimed that the carriage was "personal effects" in actual use, under section 2505, and as such free, and not subject to the duty imposed on it, but did not claim it to be "hcusehold effects." The solicitor-geueral concedes that the objection to the protest is a "bare technicality." and that its language could hardly mislead the officers. A proper protest, as well as an appeal, are prerequisites to the right to sue. § 3011, Rev. Stat., as amended by the act of Febru ary 27, 1877, ch. 69 (19 St. 247.) The protest must set forth "distinctly and specifically" the grounds of objection to the decision of the collector as to the rate aud amount of duties. Section 2931, Rev. Stat. This provision was taken from the act of June 30, 1864, ch. 171, § 14 (13 St. 214), and is substantially the same as that in the act of February 26, 1845, ch. 22 (5 St. 727). A protest is not required to be made. with technical precision, but is sufficient if it shows fairly that the objection afterward made at the trial was in the mind of the party, and was brought to the knowledge of the collector, so as to secure to the government the practical advantage which the statute was designed to seConverse v. Burgess, 18 How. 413; Swanstou v. Morton, 1 Curt. C. C. 294; Kriesler v. Morton, id 413; Burgess v. Converse, 2 id. 216; Steegmau v. Maxwell, 3 Blatchf. 365; Frazee v. Moffitt, 20 id. 267; S. C., 18 Fed. Rep. 584. This protest apprised the collector that the carriage was claimed to be free, under section 2505, as a carriage actually used abroad over a year. The "household effects" clause was in the mind of the party, and the collector could not fail to so understand. The protest was sufficient. Arthur v. Morgan. Opinion by Blatchford, J. [Decided Dec. 22, 1884.]

cure.

PATENT " INFRINGEMENT"-ACTION BY PATENTEE AND LICENSEE AFTER SUIT BY PATENTEE.-(1) A licensee of a patent cannot bring a suit in his own name, at law or in equity, for its infringement by a stranger; an action at law for the benefit of the licensee must be brought in the name of the patentee alone; a suit in equity may be brought by the patentee and the licensee together. Gayler v. Wilder, 10 How. 477, 495; Littlefield v. Perry, 21 Wall. 205, 223; Paper Bag cases, 105 U. S. 766, 771. In a suit in equity brought by the patentee alone, if the defendant seasonably objected to the non-joinder of the licensee, the Court might, as Judge Lowell did in Hammond v. Hunt, 4 Ban. & A. 111, order him to be joined. But when a suit in equity has been brought and prosecuted in the name of the patentee alone, with the licensee's consent and coucurrence, to final judgment, from which, if for too small a sum, an appeal might have been taken in the name of the patentee, we should hesitate to say that the li censee, merely because he was not a formal plaintiff in that suit, could bring a new suit to recover damages against the same defendant for the same infringement. (2) It is a more serious question whether a decree in favor of the patentee upon a bill in equity against one person for making and selling a patented machine is a bar to a subsequent suit by the patentee against auother person for afterward using the same machine within the term of the patent. A license from the patentee to make, use and sell machines gives the licensee the right to do so, within the scope of the license, throughout the term of the patent; and has the same effect upon machines sold by the licensee under authority of his license, that a sale by the patentee

has upon machines sold by himself, of wholly releas ing them from the monopoly, and discharging all claim of the patentee for their use by any body; because such is the effect of the patentee's voluntary act of licensing or selling, in consideration of the sum paid him for the license or sale. Adams v. Burke, 17 Wall. 453. But au infringer does not, by paying damages for making and using a machine in infringement of a patent, acquire any right himself to the fnture use of the maobine. On the contrary, he may in addition to the payment of damages for past infringement, be restrained by injunction from further use, and when the whole machine is an infringement of the patent, be ordered to deliver it up to be destroyed. Suffolk Co. v. Hayden, 3 Wall. 315, 320; Root v. Railway Co. 105 U. S. 189, 198; Needham v. Oxley, 8 L. T. Rep. (N. S.) 604; S. C., 2 N. Rep. Eq. & C. L. 388; Frearson v. Loe, L. R., 9 Ch. Div. 48, 67. No more does one who pays damages for selling a machine in infringement of a patent, acquire for himself or his vendee any right to use that machine. In the case of a license or a sale by the patentee the rights of the licensee or the vendee arise out of contract with him. In the case of infringe. ment, the liability of infringers arises out of their owu wrongful invasion of his rights. The recovery and satisfaction of a judgment for damages against one wrong-doer do not ordinarily confer upon him or upon others the right to continue or repeat the wrong. This view is in accord with the judgment of Vice-Chancellor Wood (afterward Lord-Chancellor Hatherly) in two suits brought by a patentee, the one against the manufacturer and the other against the user, where the plaintiff asked for an injunction against each, for an account against the manufacturer, aud for damages against the user, and declined to accept au offer of the user to pay him the like royalties that other persons paid, It was argued in behalf of the user that the patentee was not entitled to damages against him, as well as to an account against the manufacturer, and could not have an account against the seller without adopting the sale, and if he adopted the sale, had no right to get any thing from the purchaser. But the vice-chancellor held that the plaintiff was entitled to an injunction, to an account, or upon his waiving that, to damages against the manufacturer, and also to damages against the user, aud said: "With regard to the damages, it has never, I think, been held in this court that an account, directed against a manufacturer of a patented article, licenses the use of that article in the hands of all the purchasers. The patent is a continuing patent, and I do not see why the article should not be followed in every man's hand until the infringement is got rid of. So long as the article is used there is continuing damage." "As to the royalties, I cannot compel the plaintiff to accept the same royalty from these defend

auts as he receives from others. I cannot in the decree do less than give the plaintiff his full right, and I cannot bargain for him what he may choose or may not choose to do." Penu v. Bibby, L. R., 3 Eq. 308. (3) If one person is in any case exempt from being sued for damages for using the same machine for the mak. ing and selling of which damages have been recovered against and paid by another person, it can only be when actual damages have been paid, and upon the theory that the plaintiff has been deprived of the same property by the acts of two wrong-doers, and has received full compensation from one of them. In that view the case of the patentee, whose right of property under his patent had been invaded, would be analogous to that of one from whom personal property had been taken. But according to the law of England, as well as of America, the owner of a chattel, which others have taken from him and converted to their own use, is not deprived of his property therein by recovering

judgment for damages against any or all of them without actual satisfaction by somebody. By the law, of England indeed, as declared by its courts, upon technical grounds, the owner of a chattel, who has recovered judgment for its value in trover against oue of two joint tort-feasors, cannot, although that judgment remains unsatisfied, bring a like action against the other for the same cause. But even by that law such a judgment against the one, without satisfaction, does not vest the property in the chattel in him, or bar a subsequent action against the other for continuing to detain the chattel. Holroyd and Littledale, JJ., in Morris v. Robinson, 5 Dowl. & R. 34, 47, 48; S. C., 3 Barn. & C. 196; Brinsmead v. Harrison, L. R., 6 C. P. 584, and L. R., 7 C. P. 547, 554; Ex parte Drake, L. R., 5 Ch. Div. 866. In Brinsmead v. Harrison Mr. Justice Willes observed that to say that the mere obtaining judgment for nominal damages vests the property in the defendant would be an absurdity. L. R., 6 C. P. 588. By our law judgment against one joint trespasser without full setisfaction is no bar to a suit against another for the same trespass. Lovejoy v. Murray, 8 Wall. 1. The reasons are therefore stronger, if possible, here than in England for holding that a judgment for nominal damages against one wrong-doer does not bar a suit against another for a continuance of the wrong. Birdsell v. Shaliol. Opinion by Gray, J. [Decided Dec. 8, 1884.]

UNITED STATES CIRCUIT AND DISTRICT COURT ABSTRACT.*

FRAUD-MORTGAGE WITH KNOWLEDGE-MORTGAGE VOID AS TO CREDITORS.-H., being hopelessly insolv. $15,000, to compromise his debts by payment of ent, applied to V., one of his creditors, for a loan of twenty-five cents on the dollar. V. loaned him the money with full knowledge of the facts of the case, homestead farm (which was all of his property within and took a mortgage, executed by H. and wife, on his reach of his creditors) in Vermont, duly recorded it, and thereafter advanced the money, taking no precautions to procure its payment to the creditors. The deed of composition provided that H. might sell or dispose of his property within a certain time in furtherance of a settlement with his creditors. V. and some other creditors sigued this deed. H. failed to pay the money as agreed, and fled with it to Canada. V. subsequently filed a bill to foreclose the mortgage, making attaching creditors defendants with H. Held, that as to all the property, except the homestead interest in the land, the mortgage was void as to the creditors; that V. was entitled to foreclose as to the homestead interest only on payment to the attaching creditors who were parties to the deed of composition the twenty-five cents on the dollar, as agreed, with interest; and that as to the residue of the estate the bill should be dismissed. V. purposely aided in putting all the attachable property of the mortgagor under the cover of the mortgage beyond the reach of the creditors of the mortgagor, if the mortgage should be upheld. Such conveyances as place substantially all of the property of the debtor beyond the reach of creditors have always been held fraudulent and void in Vermont, by whose laws this case is to be governed. Edgell v. Lowell, 4 Vt. 405; Root v. Reynolds, 32 id. 139; Church v. Chapin, 35 id. 223; Prout v. Vaughn, 52 id. 451. This mortgage cannot be upheld as against the creditors who are not affected by the composition proceedings to cover property which they could reach, without going contrary to the provisions of the stat*Appearing in 21 Federal Reporter.

utes 13 & 27 Eliz., as they have been expounded from the earliest time. In the report of Twyue's case, which is one of the earliest, it is said: "And because fraud and deceit abound in these days more than in former times, it was resolved in this case by the whole court that all statutes made against fraud should be liberally and beneficially expounded to suppress the fraud." 3 Coke, 82a. The reasons for this resolution have not ceased. The effect of this mortgage, with the purpose for which the orator says it was made, was to take the property from within the reach of the creditors and put it beyoud their reach, unless they would compound their debts. Circ. Ct., D. Vt., Oct. 7, 1884. Volentine v. Hurd. Opinion by Wheeler, J.

TRUST BENEFICIARY ENTITLED TO ACCOUNT PLEADING IN CHARGING FRAUD SHOULD ALLEGE FACTS-MORTGAGEE CREDITED WITH IMPROVEMENTSLIABILITY FOR RENTS.-It is quite a matter of course that a trustee shall, in a court of equity, pass his accounts whenever demanded by the beneficiary; and he caunot escape an account by showing that the judg ment creditors of the beneficiary will absorb the fund, or that he is a statutory receiver, authorized to report to the governor of the State, to whom he has made a satisfactory report. An act of the Legislature conferring exclusive power over such account on the executive department would probably be unconstitutional. But where it appears that the beneficiary has not been injured by the too general statement of the account, and a failure to file vouchers in the executive department, and there is no showing of false or fraudulent conduct, a court of equity will not, for the mere satisfaction of the plaintiff, require the receiver to account more in detail, and file his vouchers, when the plaintiffs have been foreclosed of their interest in the fund by a mortgage sale. In equity pleadings, general accusations of fraud and collusion are ineffective. 1 Dan. Ch. Pr. (5th ed.) 324, and notes; Riley v. Lyons, 11 Heisk. 251; Whitthorne v. St. Louis M. I. Co., 3 Tenn. Ch. 147. The pleader should state the facts, and not formulate mere epithetic charges. And it has been recently decided that the same rule applies at law. Hazard v. Griswold, 21 Fed. Rep. 178. If the facts are not to be ascertained by diligence, because of some obstruction, or if the evidence of them is in possession of the other side, this should be made to appear, with technical averments showing the necessity for discovery, where that is wanted; but a court cannot sustain a bill upon mere denunciatory statements of the plaintiff's suspicions or belief. The best pleadings are those which state the inculpatory facts that carry with them their own conviction of the fraud, and by which the wrong-doing appears, without much necessity for characterizing it as such. Shepherd v. Shepherd, 12 Heisk. 276. When a junior mortgagee purchases undera foreclosure sale the mortgagor's equity of redemption, he is entitled, as against a senior mortgagee in possession, to the same account of rents and profits that the mortgagor could have had. This seems also to be well settled by authority. There is sometimes much difficulty in the application of the rule, because the peculiar facts of the case leave it uncertain where the rents and profits of mortgaged premises belong, notwithstanding the possession of the mortgagee; and sometimes, by the agreement of the parties, or other like intervening circumstances, the rule which ordinarily obtains is displaced. Indeed the local law of the State often interferes to regulate the incidents of the mortgage, and affects this as well as other rules governing the relation of mortgagor and mortgagee. Mr. Pomeroy has very ably shown how the law of mortgages has been thus changed in many of its incidents by local law. Pom. Eq., §§ 73, 74, 162, 163, 1179-1191. Making allowances however for such deviations, the rule

contended for by the defendants is well established. Harrison v. Wyse, 24 Coun. 1; Kellogg v. Rockwell, 19 id. 446; Childs v. Childs, 10 Ohio St. 339; 2 Jones Mortg. 1070-1085. I do not find any Tennessee case in which the point has been considered, but generally in this State the ordinary law governing the relation of mortgagor and mortgagee in a court of equity prevails. Henshaw v. Wells, 9 Humph. 568; Vance v.. Johnson,10 id. 214; Bidwell v. Paul,5 Baxt. 693;1 Meigs Dig. (2d ed.), § 527, subsecs. 7, 9, 10; 3 id. §§ 1984, 1987; 1 Pom. Eq., § 163; 3 id. 1187, p. 158. In an account between the mortgagor and mortgagee, the mortgagee in possession, while accounting for rents, is credited with permanent improvements, necessary expenditures, taxes, insurance, and prior incumbrances paid by him. Leiper v. Ransom, 2 Cold. 511, 514; Bradford v. Cherry, 1 id. 60; Kellogg v. Rockwell, supra. While the purchaser buys the property cum onere, unless there is something in the agreement of the parties, as in Bank of U. S. v. Peter. 13 Pet. 123, and Belcher v. Wickersham, 9 Baxt. 111, or some other attending circumstance to control it, he only agrees to pay what is due to the prior mortgagee on a proper accounting with the mortgagor at the time of his purchase. Presumably that is the sum he takes into his calculations when he makes his bid, and not a larger sum which may apparently be due; unless as before stated, the amount is fixed beforehand, in which event that is the sum he must pay at all hazards. Circ. Ct., W. D. Tenn., Oct. 6, 1884. La Fayette Co. v. Neely. Opinion by Hammond, J.

CARRIER-DELIVERY TO CONNECTING LINE-LIABILITY OF FIRST CARRIER-DAMAGES FOR DELAY.-(1) When goods are to be delivered by a railroad company to a second line of conveyance for transportation further on, the common-law liability of common carriers remains on the first carrier until he has delivered the goods for transportation to the next one. Its ob ligation while the goods are in its depot does not become that of a warehouseman. The law on this subject was settled in Railroad Co. v. Manufacturing Co., 16 Wall. 318, where it was held that when goods are delivered to a common carrier, to be transported over his railroad to his depot, in a place named, and there to be delivered to a second line of conveyance for transportation further on, the common-law liability of common carriers remains on the first carrier until he has delivered the goods for transportation to the next one. His obligation while the goods are in his depot does not become that of a warehouseman. While therefore these cars of potatoes were in the possession of the respondent at his depot in Ft. Howard, they were, in the eye of the law, still in transit, and the lia bility of the respondent therefor continued unbroken, except as such liability may have been limited by the bills of lading, until they were actually delivered to the next carrier in the line. Railroad Co. v. Mitchell, 68 Ill. 471; Conkey v. Railroad Co., 31 Wis. 619. (2) Where, while goods received by the first carrier are in transit, the connecting line notifies it that it cannot receive the goods and transport them to their destina. tion because of a block in freight, this will not relieve the first carrier from liability for damages caused by the delay, where it fails to notify the shipper and give him an opportunity to dispose of the property or take measures for its preservation. (3) The measure of damages in such a case is the difference between the market value of the goods at the place of destination when they ought to have been delivered and their market value when they were delivered. Circ. Ct., E. D. Wis., Oct. 16, 1884. Peterson v. Case. Opinion by Dyer, J.

RECORDING ACTS--CONSTRUCTIVE NOTICE--POSSESSION. -When the vendee of land does such acts thereon that

possession, a notice of his

reasonable inquiry would reveal his subsequent purchaser is affected with title though his deed is not recorded. Circ. Ct., D. Minnesota, Feb. 26, 1884. Banner v. Ward. Opiuion by Nelson, J. [See 45 Am. Rep. 188.]

VENDOR AND PURCHASER--INADEQUACY OF CONSIDERATION-INSANITY-NON-PROFESSIONAL WITNESS-CONSTRUCTIVE NOTICE-MERE RUMOR NOT.-(1) Mere inadequacy of price is not sufficient to avoid the sale of real property; but when such inadequacy is gross, and the vendor was needy and of weak mind, and acted upon the impression that he was indebted to the vendee, when he was not, equity will give relief by treating the vendee as the trustee of the property for the benefit of the vendor or his representatives. Four hundred dollars held to be a grossly inadequate price for property worth not less than $1.500. It is less than one-third of the real value of the property at the time of the sale, and upon any view of the matter this must be regarded as a grossly inadequate price therefor. Seymour v. Delancey, 6 Johns. Ch. 222; 2 Pom. Eq. Jur., § 927, note 3. But as Parkhurst had a right to sell his land to Hosford for any price he chose, or even give it to him, the mere fact of gross inadequacy of price is not of itself sufficient to avoid the sale. 1 Story Eq. Jur., § 245; Seymour v. Delancey, 6 Johns. Ch. 232; 2 Pom. Eq. Jur., § 926. But the disproportion between the price and the value of the subject is 80 great in this case as to cast the burden of explanation on the vendee, and require him to show that the vendor, with a true knowledge of all the circumstances, deliberately fixed on this price. But where the transaction purports to be a sale, and there is nothing in the circumstances of the case or the relations of the parties to suggest that the vendor intended or might have made the vendee the recipient of his bounty, under the guise of a sale, for a very inadequate or merely nominal consideration, such gross inadequacy of price may furnish satisfactory evidence of some serious overreaching or advantage on the part of the vendee as would justify the interference of a court of equity. Story Eq. Jur., § 246; 2 Pom. Eq. Jur., § 928, note. (2) Upon the trial of an issue involving the sanity of a person, the opinion of a non-professional witness, based upon his own observations, is competent evidence, and is entitled to weight according to the intelligence of the witness, his means of information, and the character of the derangement. Connecticut Mut. L. Ins. Co. v. Lathrop, 111 U. S. 612. Mr. Justice Harlan said: "Whether an individual is insane is not always best solved by abstruse metaphysical speculations, expressed in the technical language of medical science. The common sense, and we may add the natural instincts of mankind, reject the supposition that only experts can approximate certainty upon such a subject." And the "judgment" of a non-professional witness, he adds, "based upon personal knowledge of the circumstances involved in such an inquiry, certainly is of value, because the natural and ordinary operations of the human intellect, and the appearance and conduct of insane persous, as contrasted with the appearance and conduct of persons of sound mind, are more or less understood and recognized by every one of ordinary intelligence who comes in contact with his species." It is not suggested in the opinion that any particular degree of intimacy should have existed between the witness and the person whose sanity is the subject of inquiry, but that the weight to be given to the witness' opinion must depend upon the intelligence manifested by him on his examination, "and upon his opportunities to ascertain all the circumstances that should properly affect any conclusion reached," as well as the degree and character of the insanity. A

purchaser of real property for a valuable consideration is not affected by notice of a prior adverse equity received from a stranger or person not interested in the property; nor will mere rumors or hearsay concerning such equity, and communicated by such person, be sufficient to put him on inquiry, and charge him with knowledge of the facts that he might have thereby learned. 2 Pom. Eq. Jur. 602; Hardy v. Harbin, 1 Sawy. 203; 1 Story Eq., § 400. Cir. Ct., D. Oregon, Oct. 31, 1884. Parkhurst v. Hosford. Opinion by Deady, J.

MISSOURI SUPREME COURT ABSTRACT.*

SURETY-JOINT DEBTORS- SUBROGATION.- Where one of three joint debtors gave security to another by way of indemnity against the debt, held, that the third, who stood in the relation of surety to both, had no right to insist that the security should be exhausted before the creditor proceeded against him. (1) Because his only right in respect of the security was to be subrogated to its benefits, and this would not arise until he had paid the debt. (2) Because co-promisors cannot, by arrangements between themselves, hinder and delay their creditor in the collection of bis demand, Sheldon on Subrog., §§ 87, 127. Roberts v. Jeffries. Opinion by Henry, J.

CONTRACT-PERSONAL LIABILITY OF AGENT--SEALED INSTRUMENT.-Plaintiff sold one Y. a tract of laud, the title to which was in doubt. By an instrument under seal, to which defendant was no party and in which he was not named, plaintiff agreed to use diligence in perfecting the title and to have it vested in Y., and thereupon Y. was to pay one-half of the purchase-money, the other half being paid in cash. In making the purchase Y. was acting as agent of defendant, and he immediately assigned the contract to defendant who took possession. Defendant had furnished the money for the cash payment. Plaintiff subsequently aided in perfecting the title, and the same was finally vested in defendant. Held, that though plaintiff could not maintain an action against defendant on the contract, because it was under seal, and defendant was no party to it and was not named in if, yet he could sue on the implied obligation growing out of all the facts stated. Huntington v. Knox, 7 Cush. 374; Story on Agency, §§ 160, 422; Briggs v. Partridge, 64 N. Y. 357; Morse v. Hitchcock, 4 Wend. 292. Moore v. The Granby Mining and Smelting Co. Opinion by Ewing, Comr. [See 47 Am. Rep. 816.]

TRUST-DEED OF--SATISFACTION BY STRANGER-SUBROGATION.-Where a land owner, to save his land, pays a note secured by a deed of trust executed by a former owner, and upon which he is not legally liable, the debt is not thereby extinguished; he is subrogated to the rights of the holder as against the maker. Kellogg v. Schmaake, 56 Mo. 136; Wolff v. Walter, id. 292; Swope v. Leffingwell, 72 id. 348; Orrick v. Durham, 79 id. 174. It is only when a person is primarily bound by contract to pay a note that his payment of it works an extinguishment and satisfaction of the obligation, and then only as to those to whom he is bound. Allan v. Dermott. Opinion by Martin, Comr.

EXECUTION-REPLEVY OF PROPERTY LEVIED ONSECOND EXECUTION.-An execution was levied on personal property of the defendant sufficient to satisfy it. Before sale the property was taken out of the hands of the officer by replevin at the suit of a person who claimed it by purchase from the defendant after the levy. Thereupon a second execution was issued and a levy and sale were made thereunder. In an action

* To appear in 80 Missouri Reports.