Εικόνες σελίδας
PDF
Ηλεκτρ. έκδοση

ceived and the interest it earned while under ber con. trol; whatever trust existed having grown out of her conduct, and been assumed by her when she decided to keep her son's money separate from her own, and make it earn for him whatever she might have oppor. tunity to make it earn. BEALE V. KLINE, Penn., 38 Atl. Rep. 897.

244. TRUSTS-Undelivered Deed as Security.-Where the deed to certain land purchased by husband and wife, in the name of the wife, was, by agreement of the parties, deposited with plaintiff by the vendor as collateral security for the payment of certain money to be furnished by plaintiff for the purpose of building thereon, for which the wife executed her note to plaintiff, such transaction constituted a parol trust in plaintiff's favor, to the extent of the debt so incurred, subject to which the wife took title, and which equity will enforce, though the wife was not personally liable for the payment of such note.-FIRST NAT. BANK OF SALISBURY V. FRIES, N. Car., 28 S. E. Rep. 350.

245. USURY-Payment of Interest in Advance.-The mere fact that interest payments upon a loan matur. ing five years from date have been advanced so that a slightly greater rate of interest than that allowed by law is reserved or secured to the lender will not, of it. self, support a finding that the loan was usurious, and that the contract was made with a corrupt intent to evade the law.-SWANSON V. REALIZATION & DEBENTURE CORP. OF SCOTLAND, Minn., 73 N. W. Rep. 165.

246. VENDOR'S LIEN-Enforcement.-Where a note recites that it is given for part of the price of land, and that it is secured by a vendor's lien, and the deed reciting the reservation of such lien is recorded, a pur. chaser of the note before maturity, without notice, is entitled to enforce such lien as against subsequent purchasers of the land, even though, as between the grantor and grantee, no such lien existed.-HOUGHTON V. ROGAN, Tex., 42 S. W. Rep. 1018.

247. VENDOR'S LIEN-Record-Notice.-One who purchases land for value is not bound by a vendor's lien thereon which was reserved by parol, where he had no notice thereof.-YANCEY V. BLAKEMORE, Va., 28 S. E. Rep. 386.

248. VENDOR AND PURCHASER Defect in Title.-A party who, under the terms of an executory written contract, is conditionally entitled to receive a good title to real property, upon its being made certain that the other party cannot make such title, may recover such payments as he has meantime made pursuant to the terms of the contract to which he is a party.-MAXWELL V. GREGORY, Neb., 73 N. W. Rep. 220.

249. VENDOR AND PURCHASER-Forfeiture for Default. -Where the vendor in the contract for the sale of real property is required by the terms thereof to give writ ten notice to the vendee of his election to treat the contract as terminated on failure of the vendee to pay at the time specified therein, time being declared to be of the essence of the agreement, such vendor must act with diligence in giving such notice, or he will be deemed to have waived his right to insist that the vendee has lost his rights in equity on account of such breach. Under the facts of this case, the vendor is held to have waived his rights to insist upon a termi. nation of the contract by waiting for three months before giving the notice.-FARGUSSON V. TALCOTT, N. Dak., 73 N. W. Rep. 207.

250. VENDOR AND PURCHASER-Vendor's Lien.-Where the several owners of different mining claims join in a contract for the sale of all the claims for a sum in solido, payable to them jointly, and the several deeds are executed, and possession taken thereunder, in pursuance of the contract, they jointly have a vendors' lien on all the property conveyed, for the unpaid purchase money.-BRISCO V. MINAH CONSOL. MIN. Co., U. S. C. C., D. (Mont.), 82 Fed. Rep. 952.

251. WATERS-Stream-Pollution.-The pollution, by a properly constructed city sewer, of a stream which is the natural drainage of the land on which the city is built, gives no right of action to a lower riparian

owner, whose mill property, constructed and operated before the building of the city, is injured thereby.— CITY OF RICHMOND V. TEST, Ind., 49 N. E. Rep. 610.

252. WILLS Annuities - Commencement.-Testator bequeathed a portion of his estate in trust for his widow, the trustees to hold and manage the same for seven years after his death, and to pay the widow $7,500 each year for the following seven years" in semi-annual installments; "the first as soon after my decease as sufficient funds for the purpose shall come into their possession, and the remaining ones at the end of every six months afterwards:" Held that, in view of the evident intention of testator and of Civ. Code, § 1368, providing that annuities commence at testator's decease, the annuity should begin at the date of testator's decease.-CREW v. PRATT, Cal., 51 Pac. Rep.

44.

253. WILLS-Charities-Validity.-A provision, in a will bequeathing legacies to various societies and institutions, that if any such society, for want of incorporation or any other cause, is unable to take the leg. acy bequeathed to it, the same is given "absolutely" to the person who shall be the chief executive officer of the society, "to be by him applied to the uses and purposes of such society," is void; since, notwithstanding the direction that the officer shall take "ab solutely," it creates a trust within the condemnation of the statute against the unlawful suspension of the ownership of personal property, and also amounts to a bequest to societies unincorporated or otherwise in capable of taking.-FAIRCHILD V. EDSON, N. Y., 48 N. E. Rep. 541.

254. WILLS-Construction-Bequest to "Heirs."-A bequest to the heirs of testator's niece, who died before testator, is a class gift, which, on his death, vests in her descendants who were then living per stirpes; the word "heirs" being used in its primary legal sense, and not to denote those who would succeed to her per sonal estate under the statute of distributions.-RUGGLES V. RANDALL, Conn., 38 Atl. Rep. 886.

255, WILLS-Nature of Estates Created.-A devisee surviving the testator takes a fee in land under a will devising it on the condition that, should the devisee "die without issue," the land would go to another.LAWLOR V. HOLOHAN, Conn., 38 Atl. Rep. 903.

256. WILLS-Perpetuities.-Where land is devised to 17 persons for life, with six life estates in remainder, all but one of which will vest during the lives of said 17 persons, and the remaining one within 21 years after the death of a person alive at the testator's death, the devises are not void as creating a perpetuity.-MADI SON V. LARMON, Ill., 48 N. E. Rep. 556.

257. WILL Perpetuties Suspension of Power of Alienation. A devise in trust to hold, manage, and pay to named persons specific sums annually for seven years, and then sell and distribute as therein directed, was void, as creating perpetuities, in violation of Civ. Code, §§ 715, 716, providing that the absolute power of alienation shall not be suspended longer than during the continuance of lives in being at the creation of the limitation, and that every future interest is vold which, by any possibility, may suspend such power of alienation for a longer period. CREW V. PRATT, Cal.,

51 Pac. Rep. 38.

258. WILLS-Trusts-Perpetuities.-An estate vested by will in certain trustees for a charitable use will be sustained, though there is annexed to it a trust for accumulation, which is void, as being a violation of the rule against perpetuities.-INGRAHAM V. INGRAHAM, Ill., 48 N. E. Rep. 561.

[merged small][ocr errors]

Transactions with Decedents. Where a person negotiated with one of two tenants in common for certain real estate, the other cotenant was not incompetent as a witness to testify as to trans actions between himself and his cotenant because of the death of the purchaser, who was not present at the time of the transactions between the cotenants. SCHMITZ V. BEALS, Mich., 73 N. W. Rep. 109.

Central Law Journal.

ST. LOUIS, MO., FEBRUARY 4, 1898.

foundation was laid for the admission of evidence offered as a confession, the reviewing court is not concerned as to how far the evidence tends to prove guilt. If illegally admitted, reversible error results, since the prosecution, after securing the admission of evidence as a confession, will not be heard to assert that it does not tend to prove guilt. Upon the main question as to the manner in which the alleged confession was obtained, it may be said that what amount of proof is necessary to show an involuntary state of mind, must depend in each case on its peculiar circumstances. "The rule is not," says Mr. Justice White, who wrote the opinion for the court, "that in order to render a statement admissible, the proof must be adequate to establish that the particular communications contained in a statement were voluntarily made, but it must be sufficient to establish that the making of the statement was voluntary; that is to say, that, from causes which the law treats as legally sufficient to engender in the mind of the accused hope or fear in respect to the crime charged, the accused was not involuntarily impelled to make a statement when but for the improper influences he would have remained silent." the leading English and American cases on what words are sufficient to constitute an inducement, and thus render the confession involuntary are reviewed, the conclusion of the court being that "the situation of the accused, and the nature of the communication made to him by the detective, necessarily overthrow any possible implication that his reply to the detective could have been the result of a purely voluntary mental action; that the result was to produce upon, his mind the fear that, if he remained silent, it would be considered an admission of guilt, and the efore render certain his being committed for trial as the guilty person; and it cannot be conceived that the converse impression would not also have naturally arisen that, by denying, there was hope of removing the susTo communipicion from himself. cate to a person suspected of the commission of crime the fact that his co suspect has stated that he has seen him commit the offense, to make this statement to him under circumstances which call imperatively for an admission or denial, and to accompany the communication with conduct which necessarily

In United States v. Bram, 18 S. C. Rep. 183, the Supreme Court of the United States divided upon an important question of criminal law involving the constitutional privilege of the accused in a criminal trial from being compelled to be a witness against himself. The evidence offered, and the admission of which by the lower court was held by the supreme court to be ground for reversal, was in the nature of a confession alleged to have been extorted from the prisoner. The defendant was accused of the murder of the captain of his vessel upon the high seas. It appeared that a police officer, Power by name, had the defendant brought into his private office and then examined him alone, having first stripped him of his clothing, but making no threats nor nor offering any inducements to him. Power said to him, "Bram, we are trying to unravel this horrible mystery. Your position is rather an awkward one. I have had Brown in this office and he made a statement that he saw you do the murder." Bram said, "He could not have seen me. Where was he?" "He states he was at the wheel." "Well, he could not see me from there." "Now, look here Bram. I am satisfied that you killed the captain, from all I have heard from Mr. Brown. But some of us here think you could not have done all that crime alone. If you had an accomplice, you should say so, and not have the blame of this horrible crime on your own shoulders." "Well, I think, and many others on board the ship think, that Brown is the murderer; but I don't know anything about it." This conversation was offered as an admission and the ground of the decision was that it was not voluntary, and hence not admissible. difficult to understand how the conversation may reasonably be considered as an admission of guilt. In fact it appears to be a denial, and for that reason the State contended in the supreme court that as the admission did not tend to prove guilt, its admission could not have been prejudicial to the defendant. But the court very properly held as to this, that in determining whether the proper

It is

All

perturbs the mind and engenders confusion of thought, and then to use the denial made by the person so situated as a confession, because of the form in which the denial is made, is not only to compel the reply, but to produce the confusion of words supposed to be found in it, and then use statements thus brought into being for the conviction of the accused." Mr. Justice Brewer dissented in an opinion concurred in by Chief Justice Fuller and Mr. Justice Brown, in which it is apparent that the division of the court was mainly upon the determination of the fact whether the alleged confession was or was not involuntary.

NOTES OF IMPORTANT DECISIONS.

FEES MENT.

[ocr errors]

--

DAMAGES BREACH OF CONTRACT-COUNSEL MUNICIPAL CORPORATION ASSESSIs a city liable for attorney's fees incurred in prosecuting the action against the owners whose lands were claimed to have been benefited by the respective improvements, but which were found not liable to assessment. This was the question involved in Gates v. City of Toledo, 48 N. E. Rep. 500, decided by the Supreme Court of Ohio, in the negative. "Probably there is no difference," says Spear J., for the court, "in principle between counsel fees and other expenses. The affirmative of this proposition is based upon the further proposition that, in a suit for breach of an agreement in a written contract by which a claim or chose in action is assigned, the party damaged may recover the costs and expenses of previous unsuccessful litigation, necessarily resulting from such breach, including counsel fees; and especially so where there has been a guaranty of title, and the title fails, or of validity, and the claim assigned proves invalid. Decisions of courts in other States support this claim. But they are not uniform, and the question, after all, is, what is the law of this State on the subject? Decisions of this court determine the matter as to cases bearing more or less analogy to the cases at bar, but the precise question has not heretofore been presented. The rule that in actions involving malice, fraud, insult, or oppression, reasonable counsel fees may be included in the recovery, is well established. Stevens v. Handly, Wright, 121; Sexton v. Todd, Id. 316; Roberts v. Mason, 10 Ohio St. 277; Finney v. Smith, 31 Ohio St. 529; Stevenson v. Morris, 37 Ohio St. 10; and Iron Co. v. Harper, 41 Ohio St. 100,-are cases of this character. So where land is conveyed with covenants of warranty and for quiet enjoyment, and a breach follows, and the covenantee is evicted by reason of a paramount title, and in such suit has vouched in the covenantor to defend the title, his damages

for the breach may include an allowance for counsel fees. McAlpin v. Woodruff, 11 Ohio St. 120, and Lane v. Fury, 31 Ohio St. 574. are cases illustrative of this rule. Other cases are to the effect that in actions on attachment or injunction or replevin bonds, where, in previous suit, the attachment has been discharged or the injunction dissolved, or recovery had against the officer for wrongful seizure, counsel fees in such actions may be allowed in suits upon the bonds. Noble v. Arnold, 23 Ohio St. 264; Alexander v. Jacoby, Id. 358, and Finckh v. Evers, 25 Ohio St. 82, are cases of this character. The foregoing cases show the extent to which counsel fees have been allowed as part of the recovery of damages by decisions of this court. One case in the superior court of Cincinnati (Kirchner v. City of Cincinnati, 14 Cin. Law Bul. 48) holds that damages for failure to give to the contractor a legal assessment for the construction of a sewer may include costs and counsel fees in an unsuccessful suit by the contractor to recover against the landowner. This holding was predicated on the cases heretofore cited in 11 Ohio St. 120, and 31 Ohio St. 574. involving damages for breach of covenants in deeds. No other reported case in this State, so far as our search has extended, goes to this length. One case distinctly holding against such recovery is that of City of Cincinnati v. Steadman, a circuit court case reported in 8 Obio Cir. Ct. R., at page 407, by Smith, J. The case was brought to this court, but upon questions other than the one above stated, and the inquiry here did not involve the question of counsel fees.

It will be noted that in the cases upon tort where counsel fees have been considered although treated as part of plaintiff's compensation, they relate to such probable expense of this character as would be incurred in the case on trial, and which would be present in the minds of the jury. but that no proof was allowed as to their extent or value. This principally or partly because, if proof were given, it would introduce a new issue, and would result in an unseemly controversy. Among the varying grounds stated by different judges for allowing counsel fees in such cases as part of the plaintiff's compensation, perhaps the most reasonable one is that inasmuch as the law furnishes no exact measure, and since such matter of damage can, in practice, hardly be excluded from the jury, they should be allowed to be taken into consideration under proper instructions. But, as they are matters of actual expense, they cannot reasonably be allowed under the head of exemplary damages, and so, necessarily, should be included as part of compensation. In the cases upon undertakings or bonds, where counsel fees actually incurred in preceding litigation were al lowed, the decisions are based on the provisions of the bonds themselves, as where the obligation is "to pay all damages he may sustain," etc., or "to save harmless and pay all damages he may sustain," etc., or the like. The recovery of counsel fees and other expenses incurred in defending

title to land which had been warranted is based on diverse grounds,-one being that such expenses should be considered as a portion of the money paid for the title (that is, a portion of the purchase money); another, and one which seems more reasonable and satisfactory, is that the solemnity which should surround the transfer of real estate, and the necessity of maintaining stability of titles, require the rule. It may be that the rationale of the decisions affecting titles to real estate, applied to contracts affecting the title to personalty and choses in action, might warrant a similar rule. But it is believed that the policy of this State has been, and the understanding generally among bench and bar is, that such damages are not recoverable for the breach of simple contracts, not involving tort, even though there has been an express agreement as to the validity of the thing in controversy."

-

INJUNCTION RESTRAINING VOID JUDGMENT -EQUITY REMEDY AT LAW.-In Bankers' Life Insurance Company v. Robbins, 73 N. W. Rep. 269, the Supreme Court of Nebraska was called upon to decide under what circumstances a court of equity will enjoin the collection, by execution, of a judgment at law, void for want of jurisdiction over the person of the defendant. The opinion, which is in the well-known. lucid, and forcible style of Commissioner Ragan, reiterates the doctrine now held by a majority of the courts that it is not sufficient for the defendant, seeking to invoke the extraordinary powers of a court of equity for his protection, to show merely that the judgment is void for want of service of process, but that he must go further and both allege and prove that he has a defense to the plaintiff's claim upon its merits. Otherwise he will be remitted to his remedies at law; and he must make it appear, in addition thereto, that these remedies are not as adequate and effectual as that by injunction. When, however, these conditions have been met, the right and duty of the court to exercise its chancery powers for the restraint of the execution and the vacation of the void judgment, are as undoubted as any within its undisputed jurisdiction, and the opinion reminds the profession that the rule requiring pleading and proof of a defense to the plaintiff's claim, is not one which extends so far as to compel the defendant to forego his right to a trial by jury of the vicinage, and submit the issues properly triable at law to the final determination of a single judge. It suffices in this respect to plead a valid defense and make it out prima facie by proofs. When this has been done, and the inadequacy of legal remedies is apparent, and the plaintiff in equity is shown to be free from culpable neglect in not making his defense at law, the court refrains from passing finally upon the questions of fact, but sets aside the void judgment and remits the plaintiff, as well as the defendant, therein, to the ordinary action at law, where such matters are properly cognizable. In the case under consideration the insurance com

pany, a domestic corporation, was suable under existing circumstances only in Lancaster county where its principal place of business was situate. The alleged judgment was obtained in Valley county where the company had no agency and the pretended service of process from the Valley county district court was, for reasons set out in the opinion, found to be void, but it was proved that the company had knowledge of the pendency of the proceedings in time to have enabled it to enter a special appearance and object to the jurisdiction of the Valley county court. With respect to the contention that the company was guilty of neglect in omitting to make such appearance and objection, and with respect to the adequacy of legal remedies one cannot do better than to quote from the opinion itself: "A second question under the rule is, had the appellant a remedy at law? The insurance company knew that Mrs. Morrow had sued it in Valley county, and obtained this information before the time fixed for it to answer by the summons issued in that case. It might have appeared specially in that court, and objected to its jurisdiction on the ground that the summons had not been served on it in that county, nor upon any one whow as its agent. After the judgment was rendered, it might have prosecuted an error proceeding therefrom to this court; and we think it might have moved the court, under section 602 of the Code of Civil Procedure, to set the judgment aside. If the execution issued on the judgment had been levied upon its real estate, it might have resisted a suit in ejectment brought by the purchaser at the execution sale. Here, then, is not only a remedy, but several remedies, at law. But were these remedies adequate ones, within the meaning of the rule and the law?" In Welton v. Dickson, 38 Neb. 782, 57 N. W. Rep. 559, this court, following the rule laid down by the Supreme Court of the United States in Watson v. Sutherland, 5 Wall. 74, said: "It is not enough that there is a remedy at law. It must be plain and adequate, or, in other words, as practical and efficient to the ends of justice and its prompt administration as the remedy in equity. If the insurance company, on being informed that it had been sued in Valley county, had appeared specially in that court, objected to its jurisdiction over it, and put the proof that it has in this case, then, had the district court ruled in favor of its jurisdiction, the insurance company might have prosecuted an error proceeding to this court which would have resulted in a dismissal of the action brought in Valley county. But if the insurance company was not situated in. and had no agent in. Valley county, within the meaning of section 55 or 74 of the Code of Civil Procedure, it was entitled to have the suit against it tried in the district court of Lancaster county; and while, by ap pearing specially in Valley county, and objecting to the jurisdiction of the court, and prosecuting a proceeding in error, if unsuccessful, to this court, it would have obtained the same result that it seeks to obtain by this injunction proceeding, still we

do not think the insurance company's remedies by special appearance or motion under section 602 of the Code were adequate ones. A remedy is not adequate, within the meaning of this rule, which compels the citizen to go from the county of his residence into a foreign jurisdiction, in which he has never been present, and in which he has never been lawfully summoned. The right of the insurance company to be sued in the county where its principal place of business was located, or in some county in which it was situated or had an agent, was and is a legal right; and it is a strained construction of language to say that, because a litigant may go into a foreign jurisdiction, and enter a special appearance to an action, that remedy is adequate, when, besides the costs, expenses, and time spent in attending court in the foreign jurisdiction, he is compelled to surrender valuable legal rights. The insurance company might have taken this judgment to the supreme court on error proceedings at any time within one year after its rendition, but that remedy would not have been adequate, because the record discloses on its face that the insurance company had been duly summoned in Valley county, and in that proceeding it could not have introduced evidence to show that it had in fact no agent or agency in that county upon whom service of process could be made. Had the insurance company waited until the sheriff levied upon its personal property, and replevined it, or had it waited and resisted an ejectment suit by the purchaser of its real estate at execution sale, then the record discloses that it would have had no redress for the costs expended by it in prosecuting the replevin action or in resisting the ejectment suit as the appellees were wholly insolvent. In this connection we deem it proper to say we do not think that the provisions of section 602 of the Code contemplate a void judgment, but one] which is voidable by reason of some fraud or irregularity. Such a construction, indeed, has, by the Supreme Court of the State of Iowa, been placed upon a section of the Iowa Code identical with said section 602. See Leonard v. Insurance Co. (Iowa), 70 N. W. Rep. 629. Yet while we think that the provisions of said section of the Code specially apply to voidable judgments, we do not doubt that one against whom a judgment has been rendered which is void for want of jurisdiction over it may have such judgment set aside, under the third subdivision of said section of the Code, as having been irregularly obtained. Our conclusion is that, while the insurance company had a remedy at law such remedy was not an adequate one; that, in order to avail itself of some of these remedies, it would have been compelled to sacrifice other legal valuable rights; and to have resorted to others it would have suffered damages for which it would have received no redress." "A final inquiry under the rule is whether the plight or condition in which the insurance company finds itself is in any wise attributable to its own neglect. We do not think it is. It is true

that, while it had been advised that it had been sued in Valley county, it made no move to defend itself. But we are clearly of the opinion that this was neither negligence nor evidence of negligence. It was a State corporation, domiciled in Lancaster county, and by the very law of its creation could be sued only in that county, unless it had voluntarily established a place of business or appointed an agent in some other county for the transaction of its business. It was not guilty of negligence in failing to take notice of rumors, or even correct information, that it had been sued in a jurisdiction in which it did not reside, in which it was not suable, and in which it had no agent on whom service of process could be made. It was compelled to presume that the district court knew the law of the land, and it had the right to suppose that they would rule in accordance with the law. The decree of the district court is reversed, and a judgment will be entered here decreeing the judgment of the district court of Valley county to be absolutely void for want of jurisdiction over the person of the defendant therein, and perpetually enjoining the appellees and those claiming under them, from enforcing or attempting to enforce the collection of such judgment." It may be hoped that this decision, which cannot fail to meet with the approbation of members of the profession, will put a check upon practices such as seem to have been resorted to in the Valley county court, in this case, and recall to the attention of lawyers and litigants that plaintiffs having just causes may imperil or lose them by attempting to pervert the forms and processes of the courts, while those seeking to obtain an unjust advantage by such means will sueceed only in putting themselves to costs and expenses for nothing.

PAROL EVIDENCE RELATIVE TO NEGOTIABLE SECURITIES.

The general rule of law is, that parol evidence is not admissible to contradict, vary. add to, subtract from, or otherwise modify the terms of a written contract. This law applies to promissory notes and other negotiable securities. All precedent and contemporaneous agreements are held to be merged in such written contract. However, in suits between third parties, strangers to the contract, or between a party and a stranger, parol evidence is admissible to vary

1 De Long v. Lee, 73 Iowa, 53; Skillen v. Richmond, 48 Barb. 428; Mumford v. Tolman, 54 Ill. App. 471; Sheldon v. Heaton, 34 N. Y. Sup. 856; Catlin v. Harris, 7 Wash. 542; Bryan v. Duff, 12 Wash. 233; Hutchinson v. Hutchinson, 102 Mich. 635; Chicago, etc. Co. v. Swartzell, 61 Mo. App. 490.

2 Adams v. Chicago, etc. Bank, 54 Ill. App. 672.

« ΠροηγούμενηΣυνέχεια »