nary, 1891, ordered, adjudged, and decreed that, in accordance with the terms of the trust above recited, the defendant, Emma Bentley, executrix of the will of Peter Bentley, deceased, do, within 10 days from the date of service of a copy of this order and decree, make, execute, and acknowledge, in due form of law, and deliver to the said complainant, William R. Jernee, a deed of assignment, assigning and transferring the said mortgage to him, the said William R. Jernee, complainant. as aforesaid, and that she deliver therewith the said mortgage itself to the said William R. Jernee, complainant, as aforesaid. And it is further ordered and decreed that the defendant do also pay to said complainant the sum of $148.83, with interest from the date of its receipt by her, which is hereby decreed to be the amount due from her, as executrix, to the said complainant, in full satisfaction of any claim or demand of the complainant against the defendant on account of said mortgage and assignment. And it is further ordered that the complainant's costs of this suit be paid out of the estate of said Peter Bentley, deceased.

Charles L. Corbin, for appellant. Abraham V. Schenck, for respondent.

PER CURIAM. Decree unanimously affirmed.

STUBBS v. PRATT.

"The foregoing bill of exceptions states the rulings correctly, and is allowed, if lawfully allowable under rulè 18, under the following statement: At the close of the charge the presiding justice asked the jury to remain in their seats, and then inquired of both counsel if they desired any modification of the charge, or desired to reserve any points for the law court. Counsel upon both sides answered in the negative, whereupon the justice committed the case to the jury upon the charge already given."

W. Fred P. Fogg, for plaintiff. H. L. Whitcomb, for defendant.

WALTON, J. This is an action of trespass for cutting timber on the plaintiff's land. At the trial in the court below the defendant obtained a verdict, and the case is brought into this court, on motion of the plaintiff, for a new trial.

We think the motion must be sustained. No one can read the evidence and for a moment doubt that the defendant cut timber in considerable quantities on the plaintiff's land. The defendant denies the fact but feebly, while his counsel, in his brief furnished to this court, does not deny it at all. He rests his client's case on an allegation that, during a negotiation between the defendant and the plaintiff for the sale of a lot of land, the latter pointed out to the former certain clumps of timber as being on the lot, and that after the purchase the defendant cut this and other timber in the vicinity, be

1. Equitable estoppel, now freely applied to actions of law, as in suits in equity, to suppress fraud and oppression, must be applied with great care and caution; and when a party is to be deprived of his property, or his right to maintain his action, by an estoppel, the equity ought to be strong, and the proof clear.

2. A party is not estopped to prove a legal title to his land by any misrepresentation of its locality, made by mistake, without fraud or intentional deception, although another party may be induced thereby to purchase an adjoining lot.

3. In an action of trespass quare clausum, it appeared that the plaintiff, owning adjoining lots 13 and 14, sold lot 13 to the defendant, who afterwards cut over the line upon lot 14. The defendant pleaded in justification of the cutting that while negotiating for lot 13 the plaintiff pointed out to him clumps of trees on lot 14 as being on lot 13, but the plaintiff denied this. Held, that the plaintiff was not estopped to maintain his action.

(Official.)

Trespass quare clausum by Philip H. Stubbs against William L. Pratt. From a Judgment for defendant entered on the verdict of a jury, plaintiff brings exceptions, and moves for a new trial. Motion sustained.

Besides a general motion for a new trial, the plaintiff filed a bill of exceptions, which the presiding justice signed, adding a memorandum as follows:

of the plaintiff. The defendant's counsel claims that such a representation, if made by the plaintiff, estops him from the maintenance of this suit.

We do not so understand the law. Such a representation, if fraudulently made, might have that effect, but, if innocently made, it would have no such effect. A party is not estopped to prove a legal title to his land by any misrepresentation of its locality, made by mistake, without fraud or intentional deception, although another party may be induced thereby to purchase an adjoining lot. "It would be most unjust that a party should forfeit his estate by a mere mistake." Per Wilde, J., in Brewer v. Railroad Co., 5 Metc. (Mass.) 478.

In a recent case in West Virginia the court held that where the owners of adjoining lots actually surveyed and marked a line between their lots, but by mistake included a considerable portion of one of the lots within the supposed limits of the other, neither was bound by the line so run, nor could it be construed as a license from the one party to the other to cut timber between the true line and the mistaken boundary. Hatfield V. Workman, 35 W. Va. 578, 14 S. E. Rep. 153; Buker v. Bowden, 83 Me. 67, 21 Atl. Rep. 748.

In Evans v. Miller, 58 Miss. 120, 38 Amer.

Rep. 313, A. pointed out to B., an adjoining owner, what he supposed to be the boundary line between their lands, and forbade his cutting trees beyond that line. B. cut trees within that line. It was subsequently discovered that A. was mistaken in that line, and that the trees cut were on A.'s land, and the court held that A. might recover their value. Appended to this case is a very full note on the subject of estoppel in this class of cases, by Mr. Irving Browne.

In Copeland v. Copeland, 28 Me. 525, it was said by Chief Justice Whitman that to defeat one's title to real estate by an equitable estoppel, or estoppel in pais, the act or declaration of the party must be willful,that is, with knowledge of the facts upon which any right he may have must depend, or with an intention to deceive the other party; that he must at least be aware that he is giving countenance to the alteration of the conduct of the other, whereby he will be injured if the representation is not true. And Titus v. Morse, 40 Me. 348, is to the same effect.

We do not wish to be understood as holding that in no case can a division line between the adjoining owners of land be established by an oral agreement. There are numerous decisions in other states to the effect that when the boundary line between adjacent lands is in dispute, or uncertain, the owners may establish a division line be tween them by oral agreement, and that when such an agreement has been acted upon by the erection of fences or buildings, or in any other way, the parties will be estopped to deny that such conventional line is the true line. We are not aware that it has ever been so held in this state or Massachusetts, unless the possession to the line so agreed upon has continued for not less than 20 years. But the doctrine of equitable estoppel has been very much extended within the last half century, and is now as freely applied in actions at law as in suits in equity; and it is a doctrine so well calculated to suppress fraud and oppression that we do not wish to be understood as limiting its application in the slightest degree, in proper cases. But it is a doctrine that must be applied with great care and caution, or it will encourage and promote fraud, instead of preventing and defeating it; and it seems to us that in all cases when a party is to be deprived of his property, or his right to maintain an action, by an estoppel, the equity ought to be strong, and the proof clear.

In the case now before us, it appears that the defendant bought of the plaintiff a 100acre lot of land, numbered 13. It has been run out to him by a surveyor appointed by the court, and it is of full size, and a fraction over. The proof is that he has cut largely upon the adjoining lot, numbered 14. He justifies the cutting upon the ground that while negotiating for lot 13 the plaintiff pointed out to him clumps of trees on lot 14.

This the plaintiff denies. Here we have an issue of fact, with the burden of the proof upon the defendant. He swears one way, and the plaintiff swears the other way. It is oath against oath, and no corroboration of either party. Can an estoppel be allowed to rest on proof so unsatisfactory? We think not. We think to so hold would encourage fraud and perjury, and place one's title to real estate upon a very slippery foundation. And besides, as we have already seen, the fact itself, if proved, would not be sufficient on which to base an estoppel, without proof of the further fact that the plaintiff knew at the time he pointed out the clumps of trees that they were not on lot 13, and of this additional fact there is not so much as a scintilla of evidence. As said by Mr. Justice Wilde in one of the cases cited, "it would be most unjust that a party should forfelt his estate by a mere mistake."

The plaintiff's exceptions were improperly filed, and may be regarded as dismissed without further consideration.

Motion sustained, and a new trial granted.

PETERS, C. J., and VIRGIN, FOSTER, and HASKELL, JJ., concurred.

NUGENT v. SMITH. (Supreme Judicial Court of Maine. 1893.)

May 20,

SPECIFIC PERFORMANCE JURISDICTION-STATUTE OF FRAUDS-SUFFICIENCY OF MEMORANDUM. 1. This court has power to compel specific performance of written contracts.

2. A memorandum in writing of the following form is sufficient, within the statute of frauds: "Bath, April 10, 1890. Mary E. Nugent bought of Frances B. Smith, house and land on Winter street, number 21, owned and occupied by said Frances B. Smith, for one thousand dollars. Paid one hundred dollars on account. Frances B. Smith." (Official.)

Report from supreme judicial court, SagaIdahoc county.

Bill in equity by Mary E. Nugent against Frances B. Smith to compel the specific performance of a contract to convey land. Heard on bill, answer, and a report of the evidence before the jury on issues of fact submitted to them. Decree for plaintiff.

W. E. Hogan, for plaintiff. J. M. Trott, for defendant.

WALTON, J. This is a suit in equity. The plaintiff bargained with the defendant for a house and lot in Bath, and took from her a memorandum in writing of the following tenor:

"Bath, April 10, 1890. Mary E. Nugent bought of Frances B. Smith, house and land on Winter street, number 21, owned and occupied by said Frances B. Smith, for one thousand dollars. Paid one hundred dollars on account. Frances B. Smith."

The defendant afterwards refused to give ! the plaintiff a deed of the premises, and the prayer of the bill is that she may be compelled to do so.

Issues of fact were submitted to a jury, and the jury found, specially, that the defendant signed the memorandum referred to, that it had not been altered, and that it was obtained without fraud; and, generally, that the defendant did enter into an agreement for the sale of the property described in the plaintiff's bill in manner and form as therein charged.

We have examined the case with care, and can discover no valid reason for withholding the decree prayed for. We think the memorandum signed by the defendant is sufficient in form and in substance to obviate any objections arising under the statute of frauds. This is conceded by the learned counsel for the defendant; and the jury have found that it was obtained without fraud. The evidence fails to disclose any reason for the defendant's refusal to complete the contract, except that she found it inconvenient to find another tenement in which to live. This cannot be regarded as a sufficient excuse.

Among the equity powers expressly conferred upon the court is the power to compel the specific performance of written contracts. Rev. St. c. 77, § 6, cl. 3. True, this is a discretionary power; and, generally, it will not be exercised when the party seeking to have it exercised has a full and adequate remedy by an action at law. But an action at law has never been regarded as an adequate remedy for the breach of an agreement to convey real estate; and when such an agreement is founded on an adequate consideration, and is obtained without fraud or oppression, the duty of the court to compel its specific performance is universally acknowledged. Foss v. Haynes, 31 Me. 81; 1 Story, Eq. Jur. § 751.

We think the plaintiff is entitled to the decree prayed for.

Bill sustained. Decree as prayed for, with costs.

PETERS. C. J., and VIRGIN, EMERY, FOSTER and HASKELL, JJ., concurred.

PARKER v. PRESCOTT. (Supreme Judicial Court of Maine. May 20, 1893.)

NEW TRIAL-INSUFFICIENCY OF EVIDENCE TO SUPPORT VERDICT.

When a verdict is so clearly wrong as to require the intervention of the court, it will be set aside.

(Official.)

Writ of entry by Sarah E. Parker against Edmund E. Prescott. From a judgment for defendant entered on the verdict of a jury, plaintiff moves for a new trial. Motion sustained.

This was a writ of entry in which both parties claimed title from one Willard H. Chadwick. The plaintiff claimed title by virtue of an attachment made November 3, 1884, in a suit brought by her against said Chadwick, and a sale on the execution which issued on the judgment recovered in the suit. It was undisputed that Chadwick conveyed the premises, situated in Palermo, Waldo county, by deed of warranty, to Edwin O. Chadwick, May 17, 1875; and that said Edwin conveyed the same to the defendant, Prescott, April 27, 1878; also that neither of these deeds was recorded at the time of the attachment, nor at the time of the sale. These deeds were not recorded until 1890.

The issue of fact submitted to the jury was whether the plaintiff, at the time of making her attachment, had actual notice of the deed from Willard H. Chadwick to Edwin O. Chadwick.

Under the instructions of the presiding justice, to which no exceptions were taken, the jury returned a verdict for the defendant. The testimony showed that the plaintiff, having an unsatisfied judgment against Willard H. Chadwick, ascertained by the registry of deeds for Waldo county that the record title of the demanded premises was in him, and caused the same to be attached and sold on execution as his property. The plaintiff, who resides in Worcester, Mass., was a stranger to the premises, and had recovered a judgment against said Chadwick in Worcester county, Mass., for board furnished him in 1872, 1876, and 1877.

The defense relied upon the testimony of Chadwick and his wife to prove that the plaintiff had actual notice of the unrecorded deed of Willard H. Chadwick to Edwin O. Chadwick in 1875. The testimony related to conversations in 1875 with the plaintiff at Worcester. The plaintiff denied the conversations.

The testimony also showed that Willard H. Chadwick was married January 1, 1871. After their marriage, he and his wife boarded with Mrs. Parker, the plaintiff, until they left Worcester and came to Palermo, in the latter part of 1871 or the first of 1872. After his arrival in Palermo, Chadwick bought a farm, the demanded premises, in Palermo, of his father. In May, 1875, he sold the farm to his brother, Edwin O. Chadwick. In the fall of 1875, Mrs. Chadwick commenced to board again with the plaintiff, and in January, 1876, Chadwick went there to board. They continued to board with the plaintiff until January 10, 1878. Mrs. Chadwick testified that after she went to Mrs. Parker's to board in the fall of 1875, and while she was boarding there, she informed Mrs. Parker that the place was sold to Edwin O. Chad wick, and that she was glad the farm was gone, and that they (the plaintiff and her mother) were glad for her sake. This witness testifies that the matter of the sale of

It is settled law in this state that, when one of the members of a firm is sued for his individual debt, and a debtor of the firm is trusteed, notice of the fact must be given to the other members of the firm, or a judgment charging the trustee will not be binding upon them. Whether or not the trustee shall be charged, and, if so, for how much, are questions in which they are interested, and in the decision of which they have a right to be heard; and, if they do not voluntarily appear and become parties to the suit, notice of its pendency must be given to them, or a judgment charging the trustee will not be binding upon them. All the assets of the firm, including its credits, may be needed for the payment of the firm's debts; and, if so, no portion of them can be applied to the payment of the debt of one of its members. It is only his individual share, after all the affairs of the firm have been fully settled, that can be taken on a trustee process, and applied to the payment of his individual debt. He, indeed, may be very willing to have the assets of the firm thus applied, but his copartners may be very unwilling; and they must have an opportunity to be heard before the question can be conclusively settled against them.

The ruling excepted to was clearly wrong. Parker v. Wright, 66 Me. 392; Burnell v. Weld, 59 Me. 423; Look v. Brackett, 74 Me. 347; Hawes v. Waltham, 18 Pick. 451; Rev. St. c. 86, § 32.

Exceptions sustained.

PETERS, C. J., and VIRGIN, EMERY, FOSTER, and HASKELL, JJ., concurred.

WOODWARD v. PERRY.

(Supreme Judicial Court of Maine. May 20, 1893.)

LIMITATIONS-RUNNING OF THE STATUTE-ACTION AGAINST ADMINISTRATOR-NOTICE-EFFECT. 1. An action against an administrator, brought after the two-years limitation in Rev. St. c. 87, §§ 12, 13, is barred.

2. The defendant collected, in his capacity as administrator, a judgment of the court of commissioners of Alabama claims for war premiums alleged to have been paid by the plaintiff through the defendant's intestate. Held, that the defendant was liable to the plaintiff in his representative capacity only; that the statute of limitations, in favor of administrators, will not be avoided by omitting to describe the defendant as administrator in a suit by the plaintiff; and that the time for commencing a suit would not be enlarged by a distribution of the funds by the administrator after notice of the plaintiff's claim.

(Official.)

Report from supreme judicial court, Cumberland county.

Assumpsit for money had and received by George Woodward against John W. Perry. Heard on report. Judgment for defendant.

It was admitted that the defendant, as administrator of Joseph C. Givin's estate,

obtained judgment in the court of commissioners of Alabama claims, April 23, 1885, for war premiums, on a claim of the second class, which premiums had been paid for insurance on 7-64 of the ship Marcia Greenleaf, which was the share that said Givin was claimed to have owned, and that on September 9, 1886, defendant received the net avails of said judgment, amounting in the whole to $457, in a check payable to him as such administrator.

It was also admitted that the defendant gave due notice of his appointment as such administrator on the first Tuesday of April, 1882, and had duly proved the fact in the probate court, and that before this action was commenced, and before he received the avails of his judgment obtained in the court of commissioners of Alabama claims, the defendant filed an inventory, and settled one account only, in the probate court, without charging himself in either the inventory or account with the claim on which said judgment was obtained, or any part thereof. Weston Thompson, for plaintiff. George D. Parks, for defendant.

WALTON, J. This is an action to recover from the defendant a portion of the money paid to him on a judgment which he recovered, as administrator on the estate of Joseph Givin, in the court of commissioners of Alabama claims. The money was received more than two years before the commencement of the suit, and the only question we find it necessary to consider is whether the action was seasonably commenced. We think it was not.

If the defendant was ever liable to the plaintiff for any portion of the money so received, it was in his representative, and not in his private, capacity; and the action not having been commenced within the twoyears limitation mentioned in section 12, c. 87, of the Revised Statutes, nor within the two-years limitation mentioned in section 13 of the same chapter, we think the right to maintain it must be regarded as barred by the lapse of time.

We do not think this result can be avoided by the fact, if it be a fact, that the defendant distributed the fund among the heirs of the estate after notice of the plaintiff's claim, nor by the fact that the defendant is not described as an administrator in the plaintiff's writ. In distributing the fund after notice of the plaintiff's claim the defendant would do so at his peril. The plaintiff's claim, if seasonably sued, would not be thereby affected. But we can perceive no reason, nor do we know of any authority, for holding that the time for the commencement of the suit would be thereby enlarged.

Nor do we think the plaintiff could avoid the statute of limitations in favor of administrators by omitting to describe the defendant as an administrator in his writ. Such