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(108 A.)

but is evidence of the contract." It was error to exclude it.

[4] If the relation between Hobson and the defendant, after the expiration of the written lease, was that of landlord and tenant, we think that he had an interest in the storehouse and the land on which it stood, that he could convey by deed, at the time he gave the deed to E. F. Hobson.

In Hagar v. Brainerd, 44 Vt. 294, which was an action of trespass quare clausum and case, for the removal of a dwelling house and the underpinning stones, the plaintiff, to show title, gave in evidence a lease to one Turner under the terms of which Turner had the right to erect a dwelling house on the leased land and remove it at the expiration of the lease. He also gave in evidence a mortgage deed of said premises from Turner to himself, a petition to foreclose the same, and a decree of the court of chancery in accordance with the prayer of the petition. The defendant excepted to the admission of the mortgage, insisting that the dwelling house and underpinning stones were chattels and could not be conveyed by a real estate mortgage. It was held otherwise, however, the court saying:

"We entertain no doubts but that Mary Ann Turner, having an estate in the premises which expired May 1, 1867, occupied by a dwelling house, which had been placed there with the permission of the owner in fee, had an interest in the property that she could convey by mortgage. It was an interest in real estate-the right to use it for a limited time with a dwelling house. The house and underpinning stones became attached to and a part of that interest." Stafford v. Adair, 57 Vt. 63; Blanchard v. Bowers, 67 Vt. 403, 31 Atl. 848.

"The words 'land,' 'lands' and 'real estate' shall include lands, tenements and hereditaments and all rights thereto and interests therein," etc. G. L. § 12.

"Conveyance of land or of an estate or interest therein may be made by deed," etc. G. L. § 2734.

Each succeeding grantor in the plaintiff's chain of title had a like interest in the premises.

The deeds were therefore properly received in evidence, if they covered the grantor's interest in the leased land and storehouse. While each deed purports to convey all of lot No. 4, and does not in any way refer to the storehouse or land on which it stood, we think that they included and conveyed such interest as the respective grantors had therein. In Williams v. Robinson, 16 Conn. 516, it was said:

"Although the deed to the plaintiff purports to convey an estate in fee in two-fifths of the farm, yet if the mortgagor owned but one-fifth, or an estate for life only, the deed will operate as a conveyance of all the interest he had." 13 Cyc. 656 and 657; Bray v. Conrad, 101 Mo. 331, 13 S. W. 957; 2 Devlin on Deeds, par. 849.

The deeds were properly admitted.

[5] At the conclusion of the plaintiff's evidence, the defendant moved for a directed verdict on the ground that there was no evidence in the case tending to show negligence on the part of the defendant, and, second, that there was no evidence tending to show that the fire complained of was set by a spark from the defendant's engine. This motion was overruled, subject to the defendant's exception. It was renewed at the close of all the evidence and again overruled, subject to the defendant's exception.

[6, 7] The defendant waived its exception to the overruling of its first motion by proceeding with the trial. Latremouille v. Bennington & Rutland Ry. Co., 63 Vt. 336, 22 Atl. 656. While the defendant still insists that it was entitled to a directed verdict, it does not now urge its claim upon either of the grounds embodied in its motion. These grounds have not been briefed and we treat them as waived. It now contends that a verdict should have been directed in its favor because the provision relating to loss by fire, contained in the lease, is a bar to plaintiff's right to recover. Whatever force this provision may have, it was not before the lower court because the lease was not in evidence, and therefore it is not properly before this court and we do not consider it. Judgment reversed, and cause remanded

(93 Vt. 375)

GIBSON et al. v. STOWELL et al. (No. 154.) (Supreme Court of Vermont. Windham. Aug. 28, 1919.)

1. EXECUTION 321

SHERIFF'S DEED RELATES BACK TO TIME OF SALE. Where plaintiff's agent purchased land for him at an execution sale and sheriff's deed was later executed, conveying the land to the agent, who immediately quitclaimed to plaintiff, the sheriff's deed related back to the time of the sale, and in equity the title in plaintiff vested from the date of the sale.

2. ATTORNEY AND CLIENT 184-PRIORITY OF LIEN OVER ATTACHMENT.

Where person having lien against land in-
duced plaintiff attorneys to purchase the land
for her at execution sale, plaintiffs to hold the
same until their fees and expenses of sale
were paid, the lien of the plaintiff was superior
and prior to the lien of a creditor who subse-
quently attached the property, and trusteed
the sheriff, who sold the property, and an agent
who bid the property off for the plaintiff.
3. ATTORNEY AND CLIENT 184-THIRD PER-

SON CANNOT SET UP DEFENSE OF RELATION-
SHIP.

Where attorneys, by agreement with one having a lien on land, purchased the land at execution sale to hold the title in trust for her, subject to the payment of fees and expenses

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

in making the purchase, a subsequent attaching creditor, claiming his lien to be superior, cannot raise any objection to the claims of the attorneys on the ground of the relation of attorney and client, where the beneficiary of the trust raises no objection.

[off for the sum of $3,000, and to hold the same for her subject to their fees, expenses, and disbursements, and expenses, fees, and disbursements of the plaintiff Goodhue, and the officer's fees for making the sale; and it was then and there agreed between Car

Appeal in Chancery from Windham Coun- men M. and Gibson and Daley that Gibson ty: Frank L. Fish, Chancellor.

Suit by E. W. Gibson and others against Delbert A. Boynton and another. Decree for plaintiffs, and named defendant appeals. Decree affirmed, and cause remanded.

Chase & Chase, of Brattleboro, and J. G. Martin, of Newfane, for appellant Boynton. E. W. Gibson and W. R. Daley, both of Brattleboro, for appellees.

MILES, J. The only question here raised, as stated by the defendant Delbert A. Boynton in his brief, is whether he has a lien upon certain real estate in Londonderry, Vt., for the payment of a debt due him from the defendant Carmen M. Stowell, which is su; perior to a lien claimed by the plaintiffs upon the same real estate.

Carmen M. Stowell is the wife of George C. Stowell. Some time previous to January 1, 1915, George C. was the owner of the real estate in question, but at this time the title was in Richard Bennett, Jr., one of the defendants named in the bill of camplaint. Prior to January 1, 1915, George C. and Carmen M. separated and were then living apart. At some time previous to the September term, 1915, of the Windham county court, a petition was brought by Carmen M., returnable to that term of court, against George C., for separate maintenance and support for herself and minor children. On the 19th day of November, 1915, the Windham county court granted the petition, giving to the petitioner the care, custody, and education of the minor children, and making an order upon George C. for the payment to the petitioner of the sum of $3,000 on or before November 25, 1915, and charging the real estate in question with a lien for its payment. George C. failed to pay as ordered, and on January 6, 1916, Carmen M. petitioned a superior judge for the sale of said real estate at public auction for the satisfaction of said order. The petition was granted, and on January 8, 1916, execution issued and was levied January 12, 1916, and the property was sold on the execution March 13, 1916, and the execution returned March 17, 1916, showing the sale was made to W. D. Smith for $3,000. No deed was given by the sheriff who sold it until September 30, 1916, when the deed was made out to W. D. Smith, who on the same day quitclaimed the same to the plaintiffs Gibson and Daley, for whom Smith acted in the purchase of the real estate at the sheriff sale.

and Daley should bid off the premises as requested by Carmen M., and that, in case the property was sold to them for the $3,000, they should hold it for Carmen M. subject to the payment of what she owed them and Goodhue and for the payment of the expense of the sheriff sale. Smith bid the property off for $3,000, for Gibson and Daley, according to the agreement; but, when the deed was made out, it was made to Smith who bid claimed the property to Gibson and Daley, as off the property, who on the same day quitalready stated. The total debt due the plaintiffs, Gibson, Daley, and Goodhue, which the chancellor held was secured upon the premises in question, is $1,371.61 as of November 13, 1917.

On March 28, 1916, defendant Boynton said real estate as her property, and at the brought suit against Carmen M. and attached same time trusteed Clifford E. Mann, the sheriff who sold the property, and W. D. Smith who bid it off for the plaintiffs. Afterwards that suit passed into a judgment amounting to $1,201.89, which the defendant claims is, by virtue of his attachment, a lien upon the premises in question, superior to that of the plaintiffs.

[1-3] It is to be noticed that both parties claim title from the same source and rest their claims upon the ground that the sheriff's sale vested, at least, an equitable title to the premises in Carmen M., and whatever title the plaintiffs or Boynton have in those premises rests upon her title. This renders it unnecessary, in disposing of the case, to go back of the sheriff's sale. Starting there, the case shows that Carmen M. had a lien upon the real estate in question under the order of the court in the proceedings for separate maintenance. Stowell being in default, the court ordered the premises to be sold as on execution. By a previous arrangement, the plaintiffs through their agent, Smith, bid them off for Carmen M. at the amount she was entitled to receive. When the redemption period expired, the sheriff conveyed to Smith, and he to the plaintiffs, the real purchasers. The sheriff's deed to Smith related back to the time of the sale, and in equity the title in the plaintiffs vested from that date. Wilson v. Spear, 68 Vt. 145, 151, 34 Atl. 429; Jackson v. Ramsay, 3 Cow. (N. Y.) 75, 15 Am. Dec. 242, and exhaustive note. By the agreement of the plaintiffs with Carmen M., they held the title in trust for her, subBefore the sale was made, Carmen M. re-ject to the payment of the sums due the plain

(108 A.)

M. raises no objection to the claims of the plaintiffs on the ground of the relation of attorney and client; and Boynton, the attaching creditor, cannot avail himself of any such disability, if it exists. He must stand or fall on his claim of priority of his attachment over the plaintiffs' right under their deed from the sheriff. The fact that the plaintiffs' deed related back to the date of the sale, which antedated Boynton's attachment, disposes of his claim to priority.

SLACK, J. Joseph St. Onge made application to the Orleans county court for a writ of habeas corpus for the purpose of obtaining the custody of his minor children, the said Mary L. and Eugene, who it was alleged in said application were unlawfully imprisoned and restrained by their grandparents, Leander and Minnie Allen. The clerk of said court thereupon issued a writ of habeas corpus, substantially in the form prescribed by G. L. 7472, but did not take the recognizance required by G. L. 1707 in case of a writ of summons or attachment. The Allens appeared, and moved to dismiss the proceedings on the grounds that no security by way of recognizance had been taken; and, second, that the application was not sworn to before a proper officer. The second ground of said Aug. motion was expressly waived in the court below. The court overruled the motion as it then stood, and the respondents were al1. HABEAS CORPUS 61, 116-ISSUANCE OF lowed an exception. The case was then WRIT WITHOUT SECURITY "WRIT OF SUM-heard on its merits, and the court found that,

Decree affirmed, and cause remanded.

(93 Vt. 373)

Ex parte ST. ONGE. (No. 153.) (Supreme Court of Vermont. Orleans.

MONS."

4, 1919.)

Habeas corpus by a father to secure the 'custody of his children from their grandparents. being a proceeding to determine solely the status of a person or persons imprisoned or restrained, is not a "writ of summons" within the meaning of G. L. 1707, and can legally issue without the security therein required, damages not being recoverable in habeas corpus proceedings, while, since the habeas corpus statute makes no provision for costs, they are not recoverable. 2. HABEAS CORPUS 92(1)-DAMAGES NOT RECOVERABLE.

although Joseph is financially poor, he is able to care for said children in a proper manner, and that he is a suitable person to have the custody of them, and it was ordered that said Mary L. and Eugene be discharged from the custody of the respondents, but that they be committed to the custody of the sheriff of Orleans county pending the disposition of the case by this court. The exception to the overruling of said motion presents the only question for consideration.

[1-3] The respondents claim that this writ Damages are not recoverable in habeas cor- is a writ of summons within the meaning of pus proceedings. G. L. 1707, and therefore could not legally issue without the security therein required.

3. COSTS 3-DEPENDENT ON STATUTE.

Costs are taxed and allowed only by force of This claim is not tenable. Habeas corpus is a

statute.

proceeding to determine solely the status of the person imprisoned or restrained. Re

Exceptions from Orleans County Court; Barker, 56 Vt. 1; Simmons v. Georgia Iron, Stanley C. Wilson, Superior Judge.

etc., Co., 117 Ga. 305, 43 $. E. 780, 61 L. R. A. Application by Joseph St. Onge for a writ 739. Damages are not recoverable in proof habeas corpus to obtain the custody of his ceedings of this nature. And this court held children Mary L. St. Onge and Eugene St. in Re Jacobs, 87 Vt. 454, 89 Atl. 634, that the Onge from their grandparents Leander and custodians of a relator in habeas corpus were Minnie Allen, resulting in order discharging not entitled to recover costs, although they the children from the custody of respondents prevailed and the relator was remanded to and committing them to the custody of the their custody, because the statute made no sheriff pending disposition of the case by the provision for costs. It is only by force of Supreme Court, and respondents except to the statute that costs are ever taxed and aloverruling of their motion to dismiss the pro-lowed. Re Jacobs, supra; Comstock's Adm'r ceedings. Judgment overruling the motion and discharging the children from the custody of respondents affirmed, and sheriff ordered to deliver them forthwith to petitioner.

Argued before WATSON, C. J., and POWERS, TAYLOR, MILES, and SLACK, JJ.

v. Jacobs, 89 Vt. 510, 96 Atl. 4, and earlier

cases.

The Legislature could not have intended the provisions of section 1707, G. L., to include proceedings where neither damages nor costs are recoverable. Such procedure could serve no purpose except to harass the party invoking this remedy.

Frank S. Rogers, of North Troy, for re- The judgment of the court below in overlators. ruling said motion, and in discharging said Williams & Smith, of Newport, for re- Mary L. and Eugene from the custody of the spondents. respondents, is affirmed. It is ordered that

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

the sheriff of Orleans county in whose cus- | family forever." In the seventh item of her tody the said Mary L. and Eugene now are, will the said Nancy H. Sparr disposed of her under order of the court below, deliver said residuary estate, and also gave her executor Mary L. and Eugene forthwith to their fath- authority to sell any real estate (other than said "homestead" farm as enlarged) which she er, said Joseph St. Onge. might possess, and to execute and deliver proper deeds therefor.

(265 Pa. 61)

SPARR et al. v. KIDDER. (Supreme Court of Pennsylvania.

1919.)

Under section 9 of the act of April 8, 1833 (P. L. 249), and the decisions of our appellate courts construing the same, the devise of the "homestead" farm as originally made to Jacob Sparr was clearly an absolute devise thereof in fee, subject only to an annual charge of May 12, $100 payable to the testatrix's nephew, Jacob Reed, during the latter's lifetime. Huber v. Hamilton, 211 Pa. 289, 60 Atl. 789; Robinson v. Jones, 222 Pa. 56, 70 Atl. 948, 128 Am. St. Rep. 793. And the fact that there was no limA devise without words of inheritance, sub-itation over, and also that said devise to Jacob ject to an annual charge of $100, payable to another for life, passes a fee, under Act April 8, 1833 (P. L. 249) § 9, subject only to the charge.

1. WILLS 598-FEE CREATED SUBJECT TO CHARGE.

2. WILLS 601(4)-FEE NOT CUT DOWN BY

RESTRAINT AGAINST ALIENATION.

An absolute devise of land in fee cannot be modified or cut down, so as to affect the estate of the devisee's heirs at law, by a subsequent direction that the land shall be kept in the name of the family of the testatrix forever.

Appeal from Court of Common Pleas, Centre County.

Sparr was subject to the payment of the above-
mentioned annuity to Jacob Reed, strengthen
this conclusion.

the "homestead" farm to Jacob Sparr in the
[2] There having been an absolute devise of
first instance, was the same modified or cut
down, so as to affect the estate therein of his
children and heirs at law (he having died in-
testate about March 5, 1916), by the latter.
sentence in the sixth item of testator's will,
viz.: "And my will is that said 'homestead'
farm shall be kept in the name of the Sparr
family forever." We do not think so. In our
opinion these words are, first, either merely
precatory, expressing a wish or desire which
the original devisee, Jacob Sparr, during his
lifetime apparently complied with; or, second,
an attempt to devise unto Jacob Sparr an es-
tate tail made in said "homestead" farm, which,

Case stated between Harvey C. Sparr and others and L. E. Kidder to determine marketable title to real estate. From a judgment for plaintiffs, defendant appeals. Affirmed. Quigley, P. J., filed the following opinion under section 1 of the act of April 27, 1855 (P.

in the common pleas:

This is a case stated for the opinion of the court, growing out of an action of assumpsit brought by the plaintiffs against the defendant. The only question raised thereby is: Have the plaintiffs a good sufficient, and marketable title in fee to the premises which they agreed to convey to the defendant, free from all conditions or limitations, which the defendant is bound to accept? From the case stated it appears that one Nancy H. Sparr was, at the time of her death, the owner in fee, inter alia, of a certain messuage and tract of land situate in Harris township, Centre county, Pa., containing about 245 acres, more or less, according to its modified boundaries, and being known as the "Sparr Homestead Farm," and particularly described in said case stated.

[1] Nancy H. Sparr died June 19, 1900, testate. Under the sixth item of her will, which was dated August 8, 1891, and duly probated after her death, she disposed of the "homestead" farm, being the premises in question, in the following language: "In case my sister Margaret dies before me, I devise whatever interest I may possess at the date of my death in said 'homestead' farm (according to its modified boundaries) unto Jacob Sparr, son of Peter Sparr, of Lake county, Ohio, subject to a charge of one hundred dollars to be paid annually to my nephew, Jacob Reed, during his lifetime. And my will is that said 'homestead' farm shall be kept in the name of the Sparr

L. 368), is enlarged into an estate in fee simple; or, third, a devise of said "homestead" farm unto Jacob Sparr in fee, coupled with a perpetual and unqualified restraint against the alienation thereof, which is clearly void both at common law and under the decisions of our appellate courts. Gray, Restraints on Alienation (2d Ed.) §§ 12, 13, 19 and 105; Foulke, Treatise on the Rules against Perpetuities, etc., §§ 187, 188, et seq.; Reifsnyder v. Hunter, 19 Pa. 41; Walker v. Vincent, 19 Pa. 369; Brock v. Penna. Steel Co., 203 Pa. 249, 52 Atl. 190; Grubb v. Penna. Steel Co., 203 Pa. 255, 52 Atl. 1134; Sanders v. Mamolen, 213 Pa. 359, 62 Atl. 981.

We are therefore of the opinion, under the facts of this case and the law applicable thereto, that the "homestead" farm, devised by Nancy H. Sparr to Jacob Sparr, father of these plaintiffs, is vested absolutely and in fee simple in said plaintiffs, that they have a good and marketable title in fee thereto, which the defendant, under his agreement is bound to accept, and further that judgment should be entered on the case stated in favor of the plaintiffs for the sum of $12,000 (being the balance of the purchase money due under the agreement and deed between the parties), and costs.

And now, February 10, 1919, judgment. is directed to be entered in favor of the plaintiffs on the case stated for $12,000 and costs, to which the defendant excepts and bill sealed. Defendant appealed.

(108 A.)

Argued before BROWN, C. J., and MOSCH-| for defendant n. o. v. plaintiff appeals. ReZISKER, FRAZER, WALLING, and SIMP- versed, with direction that judgment be enSON, JJ. tered for plaintiff on the verdict.

J. Thomas Mitchell, of Bellefonte, for appellant.

Argued before BROWN, C. J., and FRAZER, WALLING, SIMPSON, and KEP

Harry Keller, of Bellefonte, for appellees. HART, JJ.

PER CURIAM. The judgment in this case is affirmed, on the opinion of the court below directing it to be entered.

(265 Pa. 56)

MCKELVEY v. JUNIATA BOROUGH.

(Supreme Court of Pennsylvania. May 21, 1919.)

1. MUNICIPAL CORPORATIONS 821(5)-DEFECT IN STREET; NEGLIGENCE AS QUESTION

FOR JURY.

R. A. Henderson, of Altoona, for appellant.

S. B. Hare and D. E. North, both of Altoona, for appellee.

FRAZER, J. Plaintiff sued to recover for injuries sustained by falling into a washout on the side of Seventh avenue in the borough of Juniata, on the evening of October 23, 1916, about 7:30 o'clock. The trial resulted in a verdict for plaintiff; but subsequently, judgment non obstante veredicto was entered for defendant on the ground of insufficient evidence to show constructive notice to the borough of the existence of the defective street, and that if the dangerous condition was so obvious that the municipality could be presumed to have had actual notice by reason of a visit of the street commissioner to the neighborhood shortly before the accident, plaintiff, owing to her familiarity with the neighborhood, also was aware, or should have known, of its exist759(1)—LIA-ence, and consequently was guilty of contributory negligence in using at night the path leading across the unlighted street.

In action against a borough for personal injury from falling into a hole in a street in the nighttime in a highway opened as a public thoroughfare in which there were no sidewalks, held, on the evidence, defendant's negligence in not maintaining the street in a reasonably safe condition was for the jury.

2. MUNICIPAL CORPORATIONS

BILITY FOR SAFE MAINTENANCE OF STREET

DEPENDING ON LOCATION.

Where a street was a public thoroughfare and used by the public, the fact that it was located in outskirts of a borough and was little used, although to be considered in determining extent of its duty with respect to its condition, did not relieve borough from its obligation of maintaining its highways in a reasonably safe condition for public travel under the cir

cumstances.

[blocks in formation]

[1, 2] The avenue on which the accident occurred is in the outskirts of the town, and little used. It was, however, a duly accepted highway open as a public thoroughfare. There were no crossings or sidewalks constructed in the vicinity; but paths crossed and ran parallel with the roadway at certain places which pedestrians were accustomed to use. The opening in which plaintiff fell was two feet from the path along which she was walking, and was "nearly two feet deep." A little more than a year previous to the accident, and at that point, a natural gas company made an excavation for the purpose of connecting an adjoining house with its gas main, and installed at the curb line a curb box consisting of a pipe extending from the surface of the ground to a depth of about two feet, where it connected with the service pipe leading into the dwelling house of the consumer. Following the making of the connection water running in the gutter flowed over the curb box, washing away the loose earth and creating the opening into which plaintiff fell. There is evidence that the defective condition existed substantially

Appeal from Court of Common Pleas, Blair of the depth it was found to be at the time County.

of the accident for at least a month previous. It being conceded the street was a public Trespass for personal injuries by Ada M. thoroughfare open to and used by the public, McKelvey against Juniata Borough. Verdict the fact that its location was in the outfor plaintiff for $2,360, and from a judgment skirts of the borough and little used,

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