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plaintiff was entitled to an unincumbered freehold title, under the deed of April 17, 1860, and was therefore entitled to rescind the contract. — Phillips v. Caldcleugh, Law Rep. 4 Q. B. 159.
3. The owner of an estate agreed to sell it to A., representing it as containing 1,530 acres. A. agreed to sell it to a company, and part of the price was paid by them to him, £75,000 in cash, and £75,000 in bonds of the company, and A. paid the vendor £50,000 as a deposit. It appeared that the estate contained only 1,100 acres, and A. thereupon wrote to the vendor declining to complete. The company afterwards rescinded the contract, and A. brought an action against the vendor, which was compromised by repayment of the deposit and rescission of the contract. The company filed a bill against A. and some other defendants, who had agreed to share with him, for a return of the £75,000, and of the bonds. Held, that the bill was maintainable, that the company might rescind for misrepresentation, though they might have been able to ascertain the extent of the estate, and that they were entitled to repayment of the £75,000, and to a return of the bonds, and had a lien on a portion of the £50,000 repaid to A., which had been paid into court.
The contract provided that the estate, as to extent of acreage, should be taken to be conclusively shown by certain deeds. Held, that this was merely a conveyancing condition as to identity, and that, coupled with the representation as to the acreage, it did not estop the company from rescinding on the ground of deficiency of acreage.
The same relief was asked against the other defendants as against A. One made answer that the suit was improper, another that he was improperly made party. Held, that if they were not necessary, they were proper parties; that no relief, in the shape of repayment, could be given against them, but that as they had not merely submitted to any order that the court should make, they would not be allowed costs (reversing the decision of MALINS, V.C.). - Aberaman Ironworks v. Wickens, Law Rep. 4 Ch. 101.
See COVENANT, 1, 2; Priority, 1; SPECIFIC PERFORMANCE; Trust, 3; VexDOR'S LIEN.
VENDOR'S LIEN. A vendor of land to a railway company, who have used it for their railway, is entitled to a lien on the land for the unpaid purchase-money, and to have this lien enforced by a sale, though the railroad be made and ready for traffic. — Wing v. Tottenham and Hampstead Junction Railway Co., Law Rep. 3 Ch. 740.
VESTED INTEREST. 1. Testator gave a fund on trust to pay the income to A. for life, and after the death of A., leaving issue, on trust to pay and transfer both principal and interest to the children of A., in equal shares, and if but one child, then to such child, to be paid to them, if sons, at twenty-one, and if daughters, at twenty-one or marriage, “with benefit of survivorship;” and in case there should be no children of A. at his death, or if all such children should die before twenty-one or marriage, then over. Of the five children of A., who attained twenty-one, two, B. and C., died in A.'s lifetime, while three, D., E., and F., survived him. Held, that B. and C. took vested interests, and that their representatives
able quality would have been implied, that the sale by sample excluded such warranty only with respect to matters discoverable by the sample, and that an action on the implied warranty could therefore be maintained. — Mody v. Greg. son, Law Rep. 4 Ex. 49.
WATERCOURSE. — See ACTION. Way. — See INJUNCTION, 1, 2; LANDLORD AND TENANT, 4; NEGLIGENCE, 1.
WIFE's EQUITY. A married woman is not entitled to any equity to a settlement, till her debts incurred before her marriage have been provided for. – Barnard v. Ford, Lax Rep. 4 Ch. 247.
WILL. 1. A will made by a seaman serving on board a naval ship, whilst she was permanently stationed in Portsmouth harbor, is the will of a seaman “ being at sea," within 1 Vict. c. 26, § 11. — Goods of M'Murdo, Law Rep. 1 P. & D. 540.
2. A. wrote out a will in the presence of M., read it aloud to him, and gare him a paper enclosed in an envelope, saying it was a copy of the will. On the same evening, A. wrote to M., that he had executed the will and appointed him executor. It was proved that A. executed a will about that time. The will could not be found at A.'s death. Held, that A.'s declarations at the time he made the will, and his letter to M., were admissible to prove its contents. — Johnson v. Lyford, Law Rep. 1 P. & D. 546.
3. A will contained several unattested interlineations, most of them single words, each of which was required to complete the sentence to which it belonged.
They were apparently written with the same ink and at the same time as the rest of the will; but at the time of execution the body of the will was covered up by the testatrix, so that the witnesses could not see it. The court held that it was not bound to presume that these interlineations were made after execution, and it included them in the probate. — Goods of Cadge, Law Rep. 1 P. & D. 543.
4. The words in a will, “ What is left, my books, and furniture, and all other things, I wish to be divided” among A., B., and C., are sufficient to carry the residue. — Ib.
5. A testator directed that all the charitable legacies given by him should be paid out of his pure personal estate, and he gave the residue of his real and personal estate to A. The only real estate was land in Madeira, which was sold under order of the court. Held, that the proceeds of the Madeira estate must be considered pure personalty, and that the pure personalty was exempted from contribution towards the payment of debts, of funeral expenses, and of costs of the administration suit. - Beaumont v. Oliveira, Law Rep. 6 Eq. 534.
6. Testator gave the income of a fund to his wife for life, on her death the fund to be divided among his “children then living or their heirs." Held, that the “ heirs" of the children who predeceased the wife (including two who were dead at the date of the will) were entitled to share along with children who survived her; (2) that by “heirs ” were meant statutory next of kin; (3) that such next of kin were to be ascertained, in the case of children, who survived the testator, at the time of the death of each child, but in the case of children
SELECTED DIGEST OF STATE REPORTS.
[For the present number of the Digest, selections have been made from the following volumes of State Reports : 14 Allen (Massachusetts); 51 Barbour (New York); 3 Bush (Kentucky); 34 California ; 34 Connecticut; 15 Gray (Massachusetts); 4 Kansas ; 25 and 27 Maryland; 42 Missouri; 47 New Hampshire; 39 New York.]
ACCEPTANCE. - See FREIGHT; SALE, 1.
ACTION. — See CONFLICT OF Laws, 1.
AGENT. — See PRINCIPAL AND AGENT.
AGREEMENT. 1. An agreement to make “a good and sufficient general warranty deed” of lands is an agreement to convey a good title to such lands. — Wellman v. Dismukes, 42 Mo. 101.
2. The owner of the equity of redemption of land took an assignment of the mortgage to himself, “ trustee, and his heirs and assigns.” After his death, defendant agreed to buy the land of his heirs upon the delivery of a good and sufficient deed free from all incumbrances. Held, that, without a discharge of the mortgage or proof that the land was not subject to a trust, the heirs could not compel specific performance. - Sturtevant v. Jaques, 14 All. 523.
3. If one who has agreed to convey land with release of dower is unable to procure a release of dower, the purchaser is entitled to a conveyance without such release of dower, with an abatement from the purchase-money of the value of the wife's interest at the time of the conveyance. — Davis v. Parker, 14 All. 94. See Hawralty v. Warren, 3 C. E. Green, 124; ante, 3 Am. Law Rev. 483. See AssuMPSIT, 2; CONTRACT.
ALIENATION. — See FEE SIMPLE, 2.
ANIMAL. — See NEGLIGENCE, 1. ASSESSMENT. — See CONSTRUCTION OF INSTRUMENTS AND STATUTES, 1. ASSIGNMENT. — See BANKRUPT LAW, 1; CONFLICT OF Laws, 2; MORTGAGE, 2.
ASSUMPSIT. 1. A party whose property has been wrongfully taken, may waive the tort, and sue in assumpsit. — Eversole v. Moore, 3 Bush, 49. Contra, Ladd v. Rogers, 11 All. 209.
2. If a party enters upon land which he has contracted to purchase, with the