5. In a suit for the foreclosure of a mortgage, the defendant set up that the mortgage was given for the purchase money, that the lands were conveyed to him without cove- nants, and that one claiming a paramount title had commenced an ejectment for the recovery of the lands, which was in vigor- ous prosecution, and if successful, would divest all the mortgagor's title except a dower right. The defendant entered into the possession of the lands at the time of his purchase, and had not been turned out or evicted. The defence was overruled, and a decree made for the sale of the lands, and against the mortgagor for the deficien- cy, in case the proceeds of the sale were insufficient to pay his bond accompanying the mortgage.
1. The defendant, in a suit for specific per- formance, may show in his defence, by pa- VOL. II. 85
rol evidence, that the written contract relied upon, does not correctly and truly express the agreement of the parties, but that there is some material omission, insertion or va- riation, through mistake, surprise or fraud. Best v. Stow, 297
2. Where an agent purchases land in his own name at the request and for the benefit of his principal, and gives his own bond and mortgage for the purchase money in which the principal joins ostensibly as surety, it is competent to prove by parol evidence that the latter is the principal in the trans- action and the agent the surety. The Mo- hawk and Hudson Rail Road Company v. Costigan, 306
Where the witness sworn by a commission- er of deeds, to identify the grantor in a conveyance, on the latter's appearing to acknowledge the execution of such con- veyance, is the grantee therein, or other- wise interested in sustaining its execution; the certificate of the officer of its due ac- knowledgment, furnishes no proof of its ex- ecution. Goodhue v. Berrien, 630
A subscribing witness testified to his own signature to a mortgage, and that it was signed and acknowledged by a person who was introduced to him as the mortgagor. Another witness identified the signature thus made, as that of the mortgagor. Held, that the mortgage was sufficiently proved. id.
See DEBTOR AND CREDITOR, 30.
DEED, 9, 13.
DONATION, 5, 6.
PLEADING, 17 to 19, 23 to 25. USURY, 1 to 3, 7. WILL, II.
EXECUTED AGREEMENT. See SPECIFIC PERFORMANCE, 6, 7.
EXECUTION.
See JUDGMENT AND EXECUTION.
EXECUTORS AND ADMINISTRA- TORS.
1. A decree against the primary administrators of an intestate, in a suit relative to the suc- cession of movable property, conducted in
due form and between proper parties, at the place of his domicil in a foreign country; is conclusive upon a subsidiary administrator appointed here, in respect of the rights of the parties which were therein adjudicated. Suarez v. The Mayor, &c. of New York, 173
2. This was held of a decree in the Superior Court of Justice for the District of Cartha- gena in the republic of New Grenada, esta- blishing the right of a party as next of kin of an intestate; the question arising in a suit by such party to recover assets obtain- ed by an administrator appointed here. id.
3. Where the principal administrator at an in- testate's domicil, in a foreign country, allots to a party as his next of kin, divers things in action existing here, and makes a trans- fer and delivery of the same so far as is practicable; such party is entitled to receive the things in action from the administrator here, in the absence of creditors claiming the fund. id.
that of a legislature, than like an indivi- dual's. Therefore the corporation of the city is not put in default as to the payment of the fund in such a case, by a petition to the common council truly exhibiting a right- ful claim, where no proof is presented with it. It is the claimant's duty to follow up his petition, and exhibit his proofs to the common couneil, or to the committees in- trusted with its examination. id.
9. Where land is conveyed subject to a mort- gage for which the grantor is personally liable, and the deed declares that the grantee is to pay the mortgage as a part of his pur- chase money; he is liable to the grantor for the amount of the mortgage, as the same becomes due, in an action of assumpsit. The contract made by the assumption in the deed, is not one of indemnity merely. It is a contract to pay; and the grantor in the deed may enforce it without actual pay- ment made by him; and the liability of the grantee by force of such an assumption, is a demand against him, which in the event of his death, may be set off in favor of the grantor, in a suit brought by the legal repre- sentatives of the grantee upon a contract for the payment of money. Rawson's Ad- ministratrix v. Copland, 251
10. B. bought four lots of ground, and execu- ted mortgages thereon to P. for the purchase money. Then B. sold and conveyed the lots to C. subject to the mortgages, which the latter by the deed, was to pay as a part of the price. C. sold and conveyed the lots to R. in the same manner. After R.'s death, the mortgages were foreclosed, the lots were sold, and there was a large deficiency in satisfying the mortgage debt, which B. paid to P. B then demanded the same of C., who paid him by his own bond and a mort- gage on land. In a suit by R.'s adminis tratrix to foreclose a bond and mortgage given by C. to R., it was held that the amount of the deficiency was a demand ex- isting against R. in his lifetime, which C. might set off against the boud and mortgage sought to be foreclosed.
Also held that the costs paid by C. to B. were not within the contract of R., and could not be set off. id.
11. The principle of the rule, that where a person becomes a surety in a note to be used for a particular object, the principal cannot divert it from that object without the sure- ty's assent; applied as between the princi- pal's administrator and the surety, in favor of the latter, to the proceeds of such a note remaining in the principal's hand at his death. Lee v. Highland Bank, 311
Although an agreement which may be performed within a year, is not within the clause of the statute of frauds respecting contracts not to be performed within that period; an agreement which cannot be performed within a year, except upon a contingency, which the parties could not hasten or retard, as the death of some per- son, is not within the statute. And the possibility of performance which withdraws a case from the force of the statute, must rest upon human effort or volition, and not upon providential interference. Semble. Tolley v. Greene,
See BANKING ASSOCIATIONS.
FRENCH LAW OF SETTLEMENTS.
See MARRIAGE SETTLEMENT, 1.
FUTURE ESTATES. See REMAINDERS,
GENERAL BANKING LAW. See BANKING ASSOCIATIONS,
See TRADE MARKS, 1, 8, 9, 11, 13.
GUARDIAN AD LITEM. See DEED, 2.
4. Where a testator directed his executors to sell his real estate to the best advantage in their power and as sound discretion might direct, and to divide the proceeds among his children equally; and the executors made a sale which was alleged to be invalid by the heirs of one of the daughters of the testator who survived him. Her husband having ratified the sale and received a part of the proceeds; Held, that there was an equitable conversion of the land, and that her husband was entitled with her assent to receive her share of the proceeds, and that his ratification of the sale was conclusive in respect of the same. Martin v. Sherman, 341
See MARRIAGE Settlement. MORTGAGE, 29.
1. There is no general rule fixing the date of the dissolution of a partnership as the period from which interest is to be computed against the partner who is indebted to his associate. Beacham v. Eckford's Execu- tors, 116
2. The allowance or refusal of interest in such cases, depends upon the circumstances of each. id.
3. E. in New York and B. in Baltimore, were partners in building a frigate in Baltimore, and subsequently in conducting a ship-yard there. E. made the advances on building the frigate and received the price; and in 1827, three years before the dissolution, was aware in general terms that in a set- tlement of their accounts there would be a large balance due to B. but he did not know what such balance was. There never was any settlement made between the partners. The accounts were kept at Baltimore, and
there were extensive transactions after- wards, so that at the dissolution, in 1830. though E. might have well inferred that he owed B., he had no means of ascertaining what was the true balance. E. in 1827, applied to B. for an account, which B promised to send from time to time, but it was never sent. And E. neglected to fur- nish his accounts to B. when requested. E. died in 1832, and there was no accurate statement of the accounts made out until 1837, after a suit was commenced by B.'s as- signees against E.'s executors, for a settle- ment. Such statement was then made known to the executors; and it thereby appeared that there was a balance of more than $27,000 due from E. to B. in 1830. Held, that both parties had been remiss in their duty; that B. should have furnished his ac- counts so as to put E. in default; that E's executors should not be charged with in- terest from the date of the dissolution on the balance afterwards found to have been then due from E.; but that they were liable to pay interest from 1837, the date when they were authentically informed of the extent of such balance, because although the suit was then in progress, they might have paid the ascertained amount into court for the benefit of B.'s assignees. id.
4. Upon the death of a copartner it is the duty
of the survivor to furnish to the representa- tives of the deceased partner, all the ac- counts of the firm, and then unite with them in endeavoring to adjust the accounts and ascertain the balance; and if he neglect this duty he will lose interest on the bal- ance which may subsequently appear to have been due to him. id.
The statute exemption from the payment of interest on moneys paid into the treasu- ry of the city of New York by the public administrator, was designed as a compensa- tion for the important public duty of rescu- ing the effects of aliens and strangers, and preserving them for their creditors and re- latives. And it was intended by the legis- lature that the corporation of the city should have the benefit of the use of the money until it should be claimed by the rightful owners. Suarez v. The Mayor fc. of New York,
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