involved, that the appellant has not complied with the terms of his contract by paying the full amount of the consideration for the stock purchased. If, after the discovery of the alleged fraud, the plaintiff treated the contract as still in force,-and we think there is sufficient proof in the record to have justified the jury in finding that he did so,--such ratification could only have the effect of preventing a subsequent rescission. This court, in Groff v. Hansel, 33 Md. 166, has said that: "In all cases of fraud, the vendee, who alone has the right of disaffirmance, may remain silent, and bring his action to recover damages for the fraud, or may rely on it by way of defense to the action of the vendor, although there has been a full acceptance by him, with knowledge of the defects of the property. An affirmance of the contract by the vendee, with such knowledge, merely extinguishes his right to rescind the sale. His other remedies remain unimpaired." The plaintiff had the undoubted right to bring his action in the form he has selected, and it was equally his right to waive his action for deceit, and avail himself of the alleged false representations as matter of defense in reduction of damages, or in bar of a recovery in the suit upon the promissory notes now pending. This we take to be well-established law. Burnett v. Smith, 4 Gray, 50; Harrington v. Stratton, 22 Pick. 510; Groff v. Hansel, supra; Brantly, Cont. 127. The plaintiff, by instituting his action for deceit before he had complied with the terms of his contract, has undoubtedly restricted the extent of any recovery which the jury might be authorized to make, but this fact in no manner tends to impair his right to the action of deceit. We are therefore of opinion that the court below was in error in withdrawing the case from the consideration of the jury. The mere fact that it was, under the pleadings and the evidence, difficult to establish a rule of damages which would do substantial justice between the parties, could not be held to disentitle the plaintiff to maintain his action.

Coming now to the consideration of the plaintiff's prayers, we think the court below properly rejected both of them. When the testimony in a case of this character is such as to justify the jury in finding that the plaintiff, before he purchased the stock in question, had the means of knowledge at hand, or readily accessible to him, by which he could have ascertained the price which the other stockholders had paid for their stock, and failed to make inquiry concerning the same, he must be deemed to have availed himself of such means, and be regarded as having notice of the true state of facts. Bigelow. Torts, 25. The defendant, in his letter of March 26, 1892, addressed to plaintiff, and which was read in evidence, says: "When question of selling part of my stock to you was proposed, although I was sanguine about it, I absolutely refused to do so until you could thoroughly investigate and satisfy

yourself. I placed you in a position to know more about it practically than I could possibly know. I secured you in September a position, with pay, in our N. Y. office. You were afforded every facility, were left in charge of our exhibit, were our confidential man with regard to our business and its future. After remaining in that situation from September up to the 24th of November, without a word to me during that period, you bought 50 shares of stock at par; and gave Mr. Manning, on account for it, $2,500. This check I saw, but never for one moment was that money in my possession." The plaintiff, in his testimony, substantially admits these facts; certainly, does not deny them. During his stay in New York he was constantly brought into contact with Mr. Manning, the president of the company, with. whom he appears to have been on intimate relations, and from whom he claims to have received, subsequently to the date of his purchase of the stock, the information that the other stockholders had not paid more than 50 cents on the dollar for their stock. Neither prayer submits this question to the consideration of the jury.

Furthermore, both prayers are well calculated to mislead the jury by suggesting that the plaintiff is entitled to recover such amount as the jury may find that plaintiff has lost by the direct consequences of such false representations, "not to exceed, however, the amount paid in cash for account of said stock, and the value of the North Carolina Railroad bond and the People's Bank stock transferred to the defendant on account of the same." This too strongly suggests to the jury what their verdict should be, and has an undue tendency in limiting the discretion which they should be permitted to exercise. Nor do we perceive the ground upon which the plaintiff can recover in this action the amount which he has actually paid for the stock purchased by him, which is but 50 cents on the dollar, since his contention is that the deceit which the defendant practiced upon him consisted in the representation that the other stockholders had paid for their stock the full par value of 100 cents on the dollar. Having paid but 50 cents on the dollar, he has lost nothing properly attributable to the alleged deceit. If he had paid the full par value of the stock, he might then rely upon the alleged deceit as entitling him to recover for the excess above 50 cents on the dollar. But according to his own showing he has only paid the same price which the other stockholders paid, and he cannot now be permitted to recover, in the language of the prayer, "the amount paid in cash for account of said stock." The true rule of damages properly applicable, under the circumstances of this case, is that the plaintiff is entitled to recover such damage as the jury may find he has sustained as the direct consequence of the alleged false representations. Buschman v.

Codd, 52 Md. 209; Robertson v. Parks, 76 Md. 123, 24 Atl. 411; Add. Torts (Wood's Ed.) § 1226; Tuckwell v. Lambert, 5 Cush. 23. For these reasons we think both prayers were properly rejected.

No exception has been reserved to the defendant's prayers, because the court, in taking the case from the jury, failed to consider them. But as it may serve a useful purpose, in avoiding further delay, we will give them present consideration. The defendant has embodied in his first prayer five separate statements of facts, which he claims must be found by the jury to entitle the plaintiff to recover. We find no error in these several propositions, which we think are fully sustained by the following authorities: Cooper v. Schlesinger, 111 U. S. 148, 4 Sup. Ct. 360; Lefler v. Field, 52 N. Y. 621; Abb. Tr. Pr. 618; McAleer v. Horsey; 35 Md. 453; Add. Torts, 827-829. In the defendant's second prayer there are five paragraphs numbered 2, 3, 4, 5, and 6. We find no error in the second and sixth propositions, but the third, fourth, and fifth must be rejected. The third fails to submit to the jury the question of the value of the stock at the time of its purchase by the plaintiff, which should have been done, and for this reason it is defective. The vice of the fourth proposition consists in the fact that there is no evidence in the cause legally sufficient to sustain it. Nor is it requisite to prove the exact language used on the representation and set out in the narr., but proof of it in substance and legal effect is sufficient. Craig v. Ward, 1 Abb. Dec. 454. The fifth paragraph submits a measure of damages which does not accord with the views already announced in this opinion. We have held herein that the plaintiff is entitled to maintain this action, and have recognized the rule of damages which we think ought to control the action of the jury, if they shall find the defendant guilty of the deceit alleged to have been practiced by him on the plaintiff. If the plaintiff sustains his theory of the case, he would be entitled to recover in this action the value of the collaterals at the time they were deposited with the defendant. It follows that the judgment must be reversed. Judgment reversed, and new trial awarded.

FRYER et al. v. MAGILL. (Supreme Court of Pennsylvania. Oct. 1,1894.) TAX SALE-VALIDITY-ERRONEOUS REGISTRY.

Registry Act March 29, 1867, requires persons having title to land to present their deeds for registry, and provides that if it is so registered before the tax becomes a lien, for which the same shall have oeen sold, the purchaser at the tax sale shall not acquire the title of the person so registering it, unless the sale shall have been made in the name of such

owner, after service of process on him. Held, that where a deed to H., C., and F. was presented for registry, and was registered in the name "H. et al.," instead of in the names of the

three owners, a sale for taxes of the interest of C. and F. in the land described in such deed, without their names being suggested as the actual owners, and without service of the writ on them, was void.

Error to court of common pleas, Philadelphia county.

Action of ejectment by Anna M. Fryer, individually and as trustee under the will of Joseph C. Fryer, deceased, and Charles E. Claghorn, against Edward W. Magill, assignee for benefit of creditors of John Bardsley. From a judgment for plaintiffs, defendant appeals. Affirmed.

R. Alexander, for appellant. William C. Hannis, for appellees.

STERRETT, C. J. After reciting the facts agreed upon, the case stated provides as follows: "If, on the above facts, the court shall be of opinion that, after said registry, no sale for taxes could lawfully be had of the interest of the said plaintiffs in said property, or of either of them, without having their names, or either of their names, suggested as the actual owners, and until after service of the writ on them, and recovery by suit against them, made as in the case of summons, then judgment to be entered for the plaintiff Charles E. Claghorn for one undivided third part of said premises, and judgment to be entered for the plaintiff Anna M. Fryer, individually and as trustee under the will of Joseph C. Fryer, deceased, for one other undivided third part of said premises; otherwise judgment to be entered for the defendant," etc. Judgment was accordingly entered on the case stated in favor of each of said plaintiffs for one undivided third part of the premises in controversy, and of this the defendant complains.

It was claimed by plaintiffs that the "registry" of their deed referred to was defective, in that it did not set forth the individual names of the three vendees given in said deed, and that this negligent omission of the chief engineer and surveyor of the city was perpetuated by the city solicitor when suit was brought to enforce payment of delinquent taxes. On July 24, 1858, Henry Holthauser, Charles E. Claghorn, and Joseph C. Fryer purchased, as tenants in common in equal shares, the land in question, and their deed therefor was duly recorded September 23d, following. As required by the registry act, they presented the deed to the proper officer for registry, and he stamped theroon that the same was duly registered January 7, 1871. Having thus performed their duty, the said owners had a right to rely upon the guaranty of the registry act that no proceeding should be taken against their property except by process issued in their names as registered owners, and that proper effort would be made to serve such process on

1Act March 29, 1867 (P. L. 600)

them. The act declares: "If said duty. * shall have been discharged by the party who shall have acquired title, in whatsoever manner, before the tax accrued as a lien of record, for which the same shail have been sold, the purchaser at the tax sale shall not acquire the title of such person who shall have performed said duty, or of his heirs and assigns, unless the sale shall have been made in the name of such owner, after service of process upon him, as in the case of suit by summons." As has been suggested, the property was carelessly and negligently registered, not in the names of three owners, as it should have been, but in the name "Henry Holtshauser et al." The abbreviation "et al." was thus substituted for the names of Charles E. Claghorn and Joseph C. Fryer, two of the owners. This was never corrected, nor does it appear that any effort was made to correct it. On the contrary, when the city filed its claim, the patent blunder of the registry bureau was repeated by the law department, notwithstanding the registry disclosed the date of the deed, etc., and the words "et al." clearly indicated that Henry Holthauser was not the only owner. The result was that plaintiffs were deprived of that protection which it was the chief object of the registry act to insure. The court was clearly right in virtually holding that the proceedings, from the defective registration down to the sale of the property, both inclusive, were a series of blunders, the consequences of which could not be visited on the plaintiffs. If defendant's contention should prevail, the registry act, instead of being a protection to law-observing property owners, would be a snare into which any one might fall. Throughout the proceedings by which it is claimed plaintiffs' title was divested, the ownership was treated as being in a single person,-Henry Holthauser. Efforts to find and serve him were, of course, fruitless, because of his disappearance; but it does not appear that any effort was put forth to ascertain who were represented by the words. "et al." on the registry. Reference to the record of the deed would have readily furnished that information. There is nothing in the record that would justify a reversal of the judgment. Judgment affirmed.

appointed by agreement among them, and on representation that they are all the persons interested in the estate.

2. Testator directed his executors to place with a trust company $50,000, and disburse the income for the support of his infant grandson until he reached 25 years, after which the income should be paid to him directly during life, with a limitation over. By a codicil, testator directed that should "any attempt," at law or otherwise, be made, during the minority of such grandson, to withdraw his person from the custody of the executors, the executors should "suspend all further payments aforesaid, and in such case I hereby revoke all provisions for such grandson by my said will." Testator regarded his son-in-law with aversion. Held, that an unsuccessful attempt by the father to forcibly remove the grandson from the custody of such executors or his guardian did not work a revocation of such provisions of the will.

3. Nor did the surrender of such grandson to his father by the executors, as the result of correspondence between the attorneys of the respective parties, work such revocation.

4. If such codicil can be construed to mean that an unsuccessful attempt by the father to forcibly remove the child from the custody of the executors should work such revocation, the condition is void for uncertainty.

Mitchell and Fell, JJ., dissenting.

Appeal from orphans' court, Philadelphia county; William B. Hanna, Judge.

Petition by William White Buckley for a citation to William R. White and J. Henry Hentz, executors of the estate of William R. White, deceased, requiring them to account and pay to petitioner the interest on $50,000, as directed by the will of deceased. From a decree for petitioner the executors appeal. Affirmed.

John G. Johnson, for appellants. John Scott, Jr., Silas Porter, and Saml. T. Brown, for appellee.

WILLIAMS, J. There are two principal questions involved in this case: The first relates to the conclusiveness of the proceeding in the orphans' court under which distribution was made by the executors of William R. White, deceased, in 1870. The second involves the construction of the codicil to the will of the testator. The report of the auditor shows that the testator died about the 1st of October, 1868, disposing by his will of an estate amounting to more than half a million of dollars. Four of his children survived him. The fifth, a daughter, was dead; but her husband, George D. Buckley, and her son, William White Buckley, the petitioner, were living. The testator gave his estate to his four surviving children, except the comparatively small sum of $50,000, which he directed his executors to set apart and place in the hands of some Philadelphia life insurance, annuity, and trust company, to be selected by them, for the benefit of his grandson William White Bukley. The income from this sum was to be paid annually to his executors and by them disbursed for the education and care of his grandchild until he reached the age of 25 years, after which it was to be paid to him directly during his natural life, with a limita

tion over to his children, or, in default of children, then over to the testator's four surviving children and their heirs. By a codicil to his will he directed "that should any attempt, at law or otherwise, be made, during the minority of my said grandson, to withdraw his person from the charge or custody of my executors, by his father or any other person, then and in such case I hereby direct my executors to suspend all further payments aforesaid, and in such case I hereby revoke all provisions for such grandson by my said will." The testator had been involved in business difficulties with his daughter's husband, George D. Buckley, had come to distrust his integrity, and to regard him with positive aversion. He desired to preserve the child from what he believed would be the unwholesome influence of his father, and this feeling suggested the codicil to the will. Mrs. Buckley, the daughter of the testator, died about one year before her father, and her husband became involved in criminal proceedings in Berks county. The testator's living children seem to have regarded their sister's infant child as under their care, and he was removed to the home of his aunt, Mrs. Borie. Soon after the probate of the will her husband was appointed by the orphans' court guardian of the person of the child. He was therefore in the custody of his guardian, and living as a member of his family. During the month of November, 1868, George D. Buckley was at large, and came to Philadelphia to look after his son. He made an effort to remove him from the custody of his guardian forcibly. Failing in this he employed an attorney, and through him opened a correspondence with the attorney of the executors for the purpose of obtaining the possession of his child. Without any legal proceeding whatever, the executors and the guardian of his person appointed by the court surrendered the child to his father, who carried him into another state, and thereafter retained possession of him. In 1870 the executors filed their account, and at the request of the four surviving children of the testator their attorney was appointed an auditor to make distribution. The whereabouts of the petitioner and his father were known, but no notice was given to either of them of the filing of the account, of the application for the appointment of an auditor, of the proceedings before the auditor, or the filing of his report. Notwithstanding this, the auditor reported that the provision made for the petitioner in his grandfather's will had been defeated by the conduct of his father, and that he was entitled to no part of the same, and no interest whatever in his grandfather's estate. This report was confirmed, and distribution ordered among the four children who survived the testator. Now, the rule undoubtedly is that the judgment of a court of competent jurisdiction is conclusive of the point decided, between parties and privies, and therefore, when the question is raised in V.S0A.no.5-13

any collateral proceeding between other persons, it is to be regarded as conclusive on such persons also. But the conclusive character of a judgment or decree depends, not only upon statutory grant of jurisdiction to the court pronouncing it, but upon actual jurisdiction over the persons whose rights are the subject of investigation. Unless the court has the parties before it, by appearance or service of process, it is obvious that it cannot bind them by its adjudications. The four children of the testator appeared voluntarily with the executors of their father's will, and asked the appointment of Mr. Paul as auditor. They stated to the court that they were the only parties who had any interest in the estate. After his appointment the auditor proceeded at once to what was the main purpose of his appointment, viz. to consider the situation of the grandson, and to determine that the legacy to him had been forfeited by the attempt of his father to withdraw him from the custody of the testator's executors. He found the fact of such attempt, and therefrom concluded, as matter of law, that the grandson had no further rights under the will, and reported a schedule of distribution wholly excluding him from the fund. This was confirmed without objection, and the payments were made by the executors to the four children accordingly. This is the adjudication, and these are the payments made under it, that are set up as conclusive against the petitioner.

It will be seen from this statement or review of the facts that the real parties in interest in the controversy before the auditor were the four living children of the testator, on one side, and his infant grandson, then about four years old, on the other. The subject of controversy was the legacy to the infant grandson contained in the testator's will. The auditor before whom the question was to be heard was selected by one side without notice to the other. He was the attorney of the parties selecting him, under whose advice the grandson had been surrendered to his father. He was to pronounce upon the legal effect of a surrender which was the result of a correspondence, both sides of which were conducted under his supervision, as both the demand of George D. Buckley for his son, and the reply thereto on behalf of the executors, were written by him. As an auditor he held that what he had arranged as an attorney was effective to extinguish the rights of the infant, and vest the $50,000 provided by the will for him in his clients, and he awarded it to them accordingly. Neither the auditor nor the executors nor the children of the testator suggested to the court that William White Buckley was an infant, and a nonresident of the state. Neither of them asked the appointment of a guardian ad litem to represent him. The fact of his exist ence was withheld from the court by the agreement for the appointment of an auditor,

and the representation that it was signed by all the parties having any interest in the estate. To enter upon an argument to prove that such a proceeding was not conclusive upon the unrepresented infant would require an unnecessary waste of words, and could add nothing to the force of a mere statement of the facts. The character of the parties forbids the idea that it was a scheme to divest this infant of his rights. It was doubtless the result of haste and thoughtlessness on the part of the children of the testator, and of a mistaken confidence in his professional opinion on the part of the attorney and auditor; but, whatever the fact may be as to the manner in which the proceeding was conducted, the conclusion is inevitable that it was not such an adjudication as could conclude the infant against whom it was rendered without a hearing and without notice. As a settlement of the accounts of the executors it may be conclusive,-at least, it is not now questioned,-but as a decree of distribution it was a nullity, so far as the interest of the petitioner is concerned. The court below was right, therefore, in holding that the petitioner had a right to be heard on the subject of his interest under his grandfather's will.

This brings us to the second question, and requires us to consider the construction of the codicil to the will of the testator. There is no doubt that the will, as originally written, gave to the petitioner a vested interest. If this interest has been divested it must be by virtue of the codicil, in which the testator directs that if "any attempt" is made to withdraw his grandson from the custody of his executor, by "his father or any other person," then the provision made for him in his will shall be inoperative. The testimony shows that at the date of the codicil the grandson was in the care of Mrs. Boric. The father was then in confinement. The purpose of the codicil was to secure to the child such an education and such moral training as the father could not give him, by making it largely to the interest of both father and son that he should remain under the care of his maternal relatives. The custody of the child was that which the testator desired to secure. If he could not control this, but the child was to go to and be reared by his father, then the testator was unwilling to make any provision for him. What, then, did he mean by the words "any attempt?" If he meant to include unsuccessful and abandoned attempts, then it might happen that the custody of the child might continue in his executors and family, and yet all provision for his education and support be forfeited. This was not the testator's thought. He wished to make the legacy depend on the continued custody of the child, so that he might be suitably educated if he remained with his mother's relatives. The atempt against which the testator tried to guard was not an abortive one,

that should leave the custody unchanged, but a successful one, that should change the custody. The idea of a surrender as the result of correspondence, he evidently did not entertain. We do not think the evidence or the report of the auditor shows any such attempt to withdraw the child from the custody of the executors as the testator intended to provide against, and we quite agree with the court below that if the auditor's construction of the codicil could be sustained the condition would be void for vagueness and uncertainty. The codicil is an attempt to ingraft upon the legacy to the grandson a condition subsequent, by means of which the estate of the legatee might be forfeited by the acts of persons over whom he had no control, and for whose conduct he was in no sense responsible. Such conditions are not regarded with favor by the courts, and will not be enforced when they can be reasonably relieved against. It is not necessary to treat the codicil as intended to operate in terrorem merely. It is enough to say that if interpreted as the auditor held it should be, so as to include all attempts,-whether successful or unsuccessful, whether abandoned or defeated, whether made by the father or a stranger, it is void for uncertainty. If, on the other hand, it is interpreted to mean successful attempts made with force or at the law, the evidence shows no such attempt. It shows simply a correspondence conducted on both sides under the supervision of the attorney for the executors, and a surrender of the child as the result of such correspondence. This did not-it could not-divest the vested legacy of the infant who was the subject of the correspondence, and transfer it to those who, through their attorney, were consenting to the surrender. The decree appealed from is affirmed, the appellants to pay the costs of this appeal.

MITCHELL and FELL, JJ., dissent, on the second ground in construction of the will.

In re WHITE'S ESTATE. Appeal of BUCKLEY (Supreme Court of Pennsylvania. Oct. 1, 1894.) WILLS-CONSTRUCTION-SPENDTHRIFT TRUST.

Under a bequest in trust to pay so much of the income to executors as they may deem sufficient to maintain testator's grandson until he reaches 25 years of age, and thereafter to pay the income to the grandson in person, such grandson is not entitled to the income from the death of testator, but only from the time he reached 25 years of age.

Appeal from orphans' court, Philadelphia county.

In re estate of William R. White, deceased. Application by William W. Buckley to compel the executors of William R. White, deceased, to pay him the interest on a bequest in trust under a will. From a decree awarding him the interest upon the bequest from