VACATION OF OFFICE. 1. The acceptance of the office of Major of volunteers in the military service of the United States, by the incumbent of the office of Auditor of a county, vacates the latter office.—Merringer v. The State, &c., VENDOR'S LIEN. 103 1. CONTRACTS OF MARRIED WOMEN:-The separate mortgage and notes of a married woman, given to secure the payment of the purchase money, for real estate sold and conveyed to her, are void, and are not competent evidence for any purpose. - Haugh v. Blythe's Ex'r, 24 2. But the lien of her vendor for the purchase money is not thereby impaired, where the contract of sale on his part has been fully performed. Ibid. 3. STATUTE OF FRAUDS.-And the fact that, by the terms of her purchase, in such a case, a part of the purchase money was not payable until the expiration of a greater period than one year from the date of the sale, does not impair the vendor's lien for the purchase money, because the statute of frauds in such cases, applies to such contracts as are not to be performed by either party within a year. Ibid. 4. NOTICE OF VENDOR'S LIEN.-The recital in a deed that a part of the purchase money is unpaid, and that it is evidenced by certain notes, and that a lien therefor is retained, constitutes sufficient notice to a subsequent purchaser of the vendor's lien, although such purchaser had no actual notice of such stipulations in the former deed.- Wiseman v. Hutchinson, 40 5. Where a subsequent purchaser might learn the existence of a vendor's lien by examining the title deeds which constitute necessary links in the chain of his own title, he will be chargeable with notice of the existence of such lien, although he may not have actually examined those deeds and they may not have been re corded. Ibid. 6. VENDOR'S LIEN.-Where land is sold and conveyed to a married woman, and the purchase money is not paid by her, the vendor's lien therefor will continue, and may be enforced against her by the sale of the land, but her separate note given to secure the same would be void. Cox's Adm'r v. Wood, VENDORS AND PURCHASERS. 54 1. ACTION ON COVENANTS EVIDENCE.-In an action for the recovery of damages for the breach of a covenant of warranty, and for quiet enjoyment, it is generally necessary to show an actual eviction from the premises described in the deed; but where it is shown that a judgment for an eviction has been duly rendered, and that the premises are unoccupied by the covenantee or his tenants, and are vacant, and that the holder of the paramount title had conveyed a part of the property to another person, and that the covenantor purchased the property and accepted deeds of the holder of such paramount title and his grantee, no actual eviction by legal process need be shown, for such facts, in point of law, would constitute an eviction.-Burton v. Reed, 87 2. MEASURE OF DAMAGES.-The measure of damages, in actions for the breach of the covenant of warranty and quiet enjoyment, upon eviction by title paramount, is the purchase-money with interest. Ibid. 3. RECOUPMENT. And in such actions, the covenantor is entitled to no recoupment of the rents and profits received by the covenantee for the use and occupation of the premises, unless such covenantor shows that he has actually paid such rents and profits to the holder of the paramount title. Ibid. 4. ESTOPPEL.-Where, in such cases, the action is upon the covenant for seizin, and the covenantee is in possession, and the covenantor, having no title, makes a deed with full covenants of warranty, and subsequently acquires title, he is estopped by his covenants, as against the covenantee, to deny that he had a good title at the time of the grant, and such subsequently acquired title will enure to the covenantee; but where the covenantor acquires the paramount title after the eviction of the covenantee, such title does not enure to the covenantee by way of estoppel, without his consent, so as to defeat his right to maintain his action upon the covenants of warranty, and for quiet enjoyment, and to recover the consideration paid by him with interest. Ibid. 5. SPECIFIC PERFORMANCE.-In an action to enforce specific performance of a contract for the conveyance of land, if the contract states sufficiently every other fact required in such a contract by the statute of frauds, but fails clearly to identify the land to be conveyed, by an intelligible description, but contains a description which, so far as it goes, is consistent, such ambiguity may be explained and the defective description made complete by extrinsic parole evidence, provided the necessary averments are contained in the complaint on such contract.-Torr v. Torr, 118 6. SPECIFIC PERFORMANCE.-A, an aged bachelor, in feeble health, promised B, a physician, and M, his wife, that if they would occupy a certain house, then owned by him, and permit him and his nurse to live in it with them, board the two, and tend upon and take care of him as long as he lived, he would convey the house to M. B and his said wife accepted the offer, took possession of the house, worth about 3,000 dollars, made improvements on it worth about Held, 1. That the contract was a proper one for specific enforcement. 223 7. Held, 2. That the fact that A occupied rooms in the house, did not create a divided or mixed possession, so as to effect the rights of the plaintiffs. Ibid. 8. Held, 3. That, under the circumstances, the consideration for the property can not be considered inadequate. Ibid. 9. Held, 4. That, in the action for specific performance, it was not competent for the defendants to offer any evidence as to the value of the annual rental of the property, or of the services rendered A by B and his wife. Ibid. 10. Held, 5. That A's executor, who was also one of his devisees, was not a necessary party to the action in his character of executor. Ibid. 11. VENDORS AND PURCHASERS.-Quare. Whether, where property is condemned for public use, the equitable owner is not entitled to the damages in lieu of the land, and whether such condemnation in any way affects the relations of the vendor and vendee.-Caldwell v. The Bank of Salem, 294 12. FRAUDULENT CONVEYANCE-CREDITORS.-A conveyance made for the purpose of defrauding creditors may be set aside, and the property subjected to the payment of the debts of the person making or procuring the conveyance; but this can not be done where the purchase has been made for a valuable consideration, and in good faith on the part of the purchaser.-Palmer v. Henderson, 297 13. DAMAGES.-Where there is a failure of title to a part of a tract of land purchased and taken possession of, and there is not a rescission of the contract on that account, the measure of damages on eviction from such part, in the absence of special circumstances, is a sum bearing the same proportion to the price of the whole land which such part bears to the whole tract of land.—Hoot v. Spade, 326 14. PLEADING-ACTION ON COVENANTS.-In a suit for a breach of covenant, it is sufficient to aver the breach negatively, in the words of the covenant; but such averment does not necessarily involve the right to recover more than nominal damages, and would not constitute a defence to an action for purchase money beyond one cent.-Jordan v. Blackmore's Adm'r, 419 15. In 1853, the Commissioners of the Sinking Fund sold certain real estate to A, on credit, and took his obligation therefor, with B as surety, payable in five years, with interest, payable annually, and gave A a certificate, which recited the sales and terms thereof, and that "in case of any default of payment, according to the terms of purchase, then the premises shall be immediately forfeit and revert to the State, with all payments and improvement thereon, and the State shall be entitled to re-sell at any time. A took possession, and, before maturity of his obligation to the State, sold the land in separate parcels to different persons, and received in full the consideration therefore, and gave them respectively his bond for title at a future time. A, and B, his surety, failed to pay the State for the land, and the State, having tendered a deed to A, sued A and B, on their obligation for the purchase money, making A's grantees parties. Held, 1. That they were proper, if not necessary, parties, for the purpose of adjusting the equities between them and the surety of A. -Rush's Adm'r v. The State, 432 16. Held, 2. That, in the absence of other intervening equities, B, as A's surety, upon payment of the money, would be entitled to be subrogated to the rights of the State in respect to the land. Ibid. 17. Held, 3. But, under the circumstances, the equities in favor of A's grantees, who have once paid for said land, are superior to those of B, as such surety. Ibid. 18. Held, 4. That it was optional with the State, either to enforce the contract with A, by complying with its terms on her part, and collecting the purchase money, or to avoid the contract in consequence of the breach thereof by A, and to re-sell the land. 1bid. 19. FRAUDULENT CONVEYANCE.-A conveyance, fraudulent as to creditors, may be valid between the parties, and be enforced as between them, and especially in favor of a third person to whom a promise growing out of such transaction, had been made.-Moore v. Meek, VENUE-CHANGE OF. 484 1, Where a change of venue is granted upon payment of costs within a specified time, and the party fails to pay the costs and perfect the change within the time, the court may proceed to the trial of the cause, as if no change had been asked for.-Gower v. Howe, VESTED ESTATE. 396 1. WILL. If a bequest be to A for life, and, after the death of A, to B, the bequest to B is vested on the death of the testator, and will not lapse by the death of B in the lifetime of A.-Allen v. Mayfield, 293 VOLUNTARY PAYMENT. 1. ACTION.-An illegal tax involuntarily paid, can be recovered in an action; but to render the payment involuntary, it must appear that it was made to release the person or property of the party from detention, or to prevent a seizure of either by the other party, having apparent authority to do so, without resorting to an action at law. Lima Township v. Jenks, WAIVER. See ATTACHMENT 4. 301 1. In an action upon a policy of insurance, one of the conditions of which requires the assured to procure a certificate of the nearest magistrate or notary public, of the loss, &c., and it appears that a proper certificate of such an officer was delivered to the agent of the company, in March, and that another such officer resided nearer to the scene of the fire, than the one who made the certificate, but the agent made no objection to the certificate on that account, at the time it was delivered to him, nor at any time thereafter, until the trial of this action, in the following October, and it was then shown on such trial, that there was a promise to pay the loss by the agent, it should be held that the company had waived the defect, if any, in said certificate.-Byrne v. The Rising Sun Ins. Co., 2. CONTRACT.-A, being afflicted with a cancer, employed B, a cancerdoctor, to treat him for its cure, and it was agreed between them that the doctor was to have 100 dollars, and was to do A 100 dollars' worth of good, and, if he cured him, he was to have 200 dollars. The doctor treated him about six months. At the end of about three months, A gave B his two notes-one for 25 dollars, and one for two hundred dollars-and at the end of six months he died. Said notes were filed as a claim against A's estate. Defense, want and failure of consideration, and fraud. 103 Held, that, in the absence of fraud, the giving of said note for 200 dollars, when the period of treatment had only half expired, and its result was uncertain, amounted in law to a waiver of the original contract; and that parol evidence would not be admissible to show that the note, unconditional on its face, was intended by the parties to be conditional; but its consideration might be disputed.-Swank v. Nichol's Adm'r, 198 3. When the defendant amends his answer, after a demurrer has been sustained to it, he waives all right to complain of the ruling on the demurrer.-Caldwell v. The Bank of Salem, 294 4. Where a cause is transferred from the Court of Common Pleas to the Circuit Court for an alleged want of jurisdiction in the former Court, and errors are alleged to have intervened in the mode of transferring said cause which render the transfer ineffective, and such errors are not properly presented to the consideration of the latter Court, they will be deemed to have been waived.-Miller v. Hays, 451 |