mined that when, in connection with the sale, the vendor takes back a purchase money mortgage on the land conveyed, or reserves a lien thereon in the face of the deed, this will suffice to show that the parties do not intend that the title shall pass until payment in full is made; and it was thereupon accordingly held, that although a deed purports in express terms to then and thereby convey the title, yet that under the circumstances just stated it does not do so, and is not to be regarded as an executed conveyance or deed, but merely as an executory contract of sale, the title remaining in the grantor until final payment.32 Clearly this construction, which changes the character of the instrument, contradicts its terms and converts the reservation of a lien into a reservation of title, carries the vendor's case safely beyond the range of the statute of limitations, and it has been held under this theory that the lapse of twenty-eight years does not destroy his right and title to the land; and since, upon default in payment, appear wherein the case of the vendee in this instance, even though he had recovered judgment for the land, would have been materially different in principle from that of any other vendee who receives the full benefit of another's property, and is permitted to plead limitation against the debt therefor. Had the court thought to have adjudged, as in Maryland, that the vendor's lien being in the nature of an interest in real estate, is not to be held subject to the statute of limitations, excepting the longer ones prescribed for real actions, the injustice of awarding the land to the vendee would have been avoided, and a more consistent rule laid down than this illogical one, which does violence to the well established principles gov. erning the conveyance of real property.

32 Howards v. Davis, 6 Tex. 174; Browning v. Estes, 3 Tex. 462; Estes v. Browning, 11 Tex. 237; Baker V. Ramey, 27 Tex. 52: Russell V. Kirkbridge, 62 Tex. 455; Baker v. Compton, 52 Tex. 261; Peters v. Clements, 46 Tex. 114, 123; Hamblen v. Foltz, 70 Tex. 133; Burgess v. Millican, 50 Tex. 397, 401; Lanier v. Foust, 81 Tex. 189; Moran v. Wheeler, 87 Tex. 179; Lundy v. Pierson, 67 Tex. 232; Robinson v. Kampman, 5 Tex. Civ. App. 605; Rogers v. Blum, 56 Tex. 1; Roosevelt v. Davis, 49 Tex. 463; Webster v. Mann, 52 Tex. 416; Saunders v. Hartwell, 61 Tex. 679; Hale v. Baker, 60 Tex. 217; Tom v. Wollhoefer, 61 Tex. 277; Caldwell v. Fraim, 32 Tex. 310, 326. That this construction or theory does not prevail elsewhere, see Smith v. Rowland, 13 Kan. 245; Davis v. Hamilton, 50 Miss. 213; Stratton v. Gold, 40 Miss. 768; Elder v. Jones, 85 Ill. 384; Osborne v. Rogers, 69 Tenn. (1 Lea) 217; Gordon v. Rixley, 76

34

and no

he may resume possession or sell and convey the land to another, it furnishes him, in addition to a practical exemption from limitation, a summary and very effective method by which this delinquent land debtor, so specially abhorred by the courts of equity, may speedily be brought to terms or made to fare worse. That the title remains in the grantor after his deed conveying it, is of course a fiction, as pure as the ancient one relating to John Doe and Richard Roe, and it is indulged only in so far as the grantor's interests are concerned. In all other respects, the title is held to have passed, other deed is requisite to convey it to the vendee when the purchase money has been all paid. The decisions under this construction, alternately holding, as the nature of the matter may require, that the title is in the grantee, and again that he has not the title but only a mere equity;37 or that the grantor grantee and his assigns cannot be adverse to the grantor: Roosevelt v. Davis, 49 Tex. 463; Railway v. Miller, 115 Mo. 158; nor, under the general rule, will laches or stale demand operate against the legal title held to remain in the grantor, or against the trust which the courts create in his favor. Harris v. Catlin, 53 Tex. 1; 1 Pom. Eq. Jur., §§ 418, 419; 2 Perry on Trusts, 850, 860.

36

34 Crafts v. Daugherty, 69 Tex. 477; White v. Cole, 88 Tex. 29 S. W. Rep. 759 and 1148; Burgess v. Millican, 50 Tex. 397. In Tom v. Wollhoefer, 61 Tex. 277, it is said that the vendee when sued for land, may tender the unpaid purchase money, no matter how long since the default occurred, and save the forfeiture; but in Kennedy v. Embry, 74 Tex. 387, and Bentley v. Evans, 9 Tex. Civ. App. 29

་

S. W. Rep. 497, the tenders were held unavailing. 35 Dibrell v. Smith, 49 Tex. 474, 480; Bailey v. Tindall, 59 Tex. 540; Russell v. Kirkbridge, 62 Tex. 455. The grantor having parted with the title, the land is not subject to an execution against him. Willis v. Sommerville, 3 Tex. Civ. App. 509. The legal title is in the grantor, and descends to his heirs. Harris v. Catlin, 52 Tex. 1; Burgess v. Millican, 50 Tex. 397.

36 Upon payment the title passes ipso facto. Russell v. Kirkbridge, 62 Tex. 455. "If the purchase money be paid, the seizin will be regarded as having been in the vendee ab initio, or from the date of the purchase." Dunlap v. Wright, 11 Tex. 600. The title in the grantor is held to be extinguished by virtue of the payment; and it was also held to be extinguished by an assignment of the note: McCamley v. Waterhouse, 80 Tex. 341, 343; Moore v. Glass, 6 Tex. Civ. App. 363; but these latter cases are in effect overruled in White v. Cole, 88 Tex., 29 S. W. Rep. 759. 37 The interest of the grantee is such a purely equitable one that it may be sufficiently extinguished

has conveyed the title, and again, that it remains in him-have served to add much, at least in the one jurisdiction mentioned, to the confusion which seems to attach to every feature of the vendor's lien. The novel construction is now followed solely upon the principle of stare decisis, and because it affords a rule of property which the courts, in view of the powers and duties of the legisla tive branch of government, do not feel at liberty to change. 38

In quite a number of States whose courts adopted the equity implied lien, it has now been abolished and the doctrine expelled by legislative enactment;89 but the tenacity with which the judicial tribunals have adhered to it where it has been recognized, is somewhat remarkable when it is considered that the lien is a court-created one in whole and in its every feature. The doctrine seems to possess, when long looked upon, an allurement as fascinating as the serpent's eye, or those charms of vice which at first we loathe, then pity, then embrace. The Tennessee cases,

77 Tex. 281. The doctrine of the transfer of title by extinguishment is a modern one, but since the rule appears to work both ways, it cannot certainly be a bad one.

The great respect justly entertained for the probity and learning of the court that inaugurated this peculiar rule has doubtless had much influence in its retention. In the large number of decisions on this subject, saving only the scant reasoning in two or three of the earliest cases, no defense of the rule can be found; the later cases merely saying that the rule has been so established. "The principle upon which the rule is based," says Justice Gaines, in Hitzle v. Evans, 74 Tex. 596, 598, "is not at all clear, but the doctrine has been settled by numerous decis. ions of this court. Such a sale of land is frequently said to be executory, and we think the use of this ex.pression has given rise to some confusion of ideas upon the law of this subject. If executory, we think that such a conveyance can only be so considered in the sense that the grantor's title does not become indefeasible until the purchase money is paid".

Civil Code of La. (1870) arts. 3273, 3274; Code of Ga. (1873) sec. 1997; Code of W. Va. (1870) ch. 75, sec. 1; Gen. Stats, of Vt. (1863) ch. 65, sec. 33. Declared to have been "cut up by the roots" in Virginia, by sec. 1, ch. 119, of the Code of 1849. Roanoke v. Simmons, 20 S. E. Rep. 955; Hobson v. Whitlow, 80 Va. 784. Art. 1940 of the Code of Iowa provides that, "no vendor's lien for unpaid purchase money shall be recognized or enforced in any court of law or equity after a conveyance by the vendee, unless such lien is reserved by conveyance, mortgage, or other instrument duly acknowledged and recorded, or unless such conveyance by the vendee is made after suit brought by the vendor, his executor, or assigns, to enforce the lien." It is held immaterial that the second vendee had notice of the lien. Rotch v. Hussey, 52 Iowa, 691; Prouty v. Clark, 73 Iowa, 55.

however, present a noteworthy exception to the almost uniform course which the courts have pursued in this respect. After the doctrine, as recognized and defined in Macreth v. Symmons, had been accepted and followed in that State for more than half a century, the court revolted against continuing to subordinate to this suppositious equity every other equity in the calendar excepting only that of a subsequent purchaser for value without notice; and in Green v. Demoss, 10 Humph. 371, decided in 1849, they declare that, "A vendor who has conveyed without reserving an express lien, has no specific and fixed lien upon the property, and acquires none until his bill is filed for the purpose; and if, before this be done, any other creditor secures a fixed or specific lien upon the property, he will prevail over the vendor." Later, in Fain v. Inman, 6 Heisk. 12, they further declare that, "if this floating equity, misnamed in judicial parlance 'the vendor's lien,' be not quite a myth, but a mere capacity to acquire a lien if he chooses, then this same capacity belongs to others who are creditors and have rights just as meritorious as his, and we hold that the simple knowledge on the part of the creditor that the vendor, sleeping on his rights from year to year, may, if he chooses, acquire a lien as the creditor himself is about to do, cannot in a forum of conscience, impair the validity or affect the value of the lien so acquired by the creditor." In Sharp v. Fly, 9 Baxt. 15, the subject was fully reconsidered and these cases adhered to as presenting the more just and equitable rule; the court declaring that "the whole doctrine of the vendor's lien was established by judicial legislation, and that, as it is the creature of a court of equity, it may properly be modified by the same power that created it.''40 That the lien yet survives in the majority of the States affords a convincing evidence of the conservatism of our courts, and of a settled disinclination on their part to change laws that have become a rule of property. Its long retention also demon

40 In North Carolina the lien was enforced in some of the earlier cases before its final rejection. See Womble v. Battle, 3 Ire. Eq. 182; McKay v. Gilliam, 65 N. C. 130.

41 For late cases declaring the general principles of the vendor's lien, see Vieno v. Gibson, 85 Tex. 432; Newman v. Moore, 94 Ky. 147; Woodall v. Kelly, 85 Ala. 164: Oglesby v. Bingham, 69 Miss. 795; Bramlette v. Wetlin, 71 Miss. 902; Merrill v. Merrill, 102 Cal.

317; Richards v. McPherson, 74 Ind. 158; Barlow v. Fire Ins. Co., 77 Mich. 546; Ellis v. Harriman, 90 N. Y. 466; Hobson v. Whitlow, 80 Va. 784; Zwingle v. Wilkerson, 94 Tenn. 246; Trust Co. v. Smith, 94 Tenn. 513; Pullen v. Ward, 60 Ark. 90; Strong v. Ehle, 86 Mich. 42; Hill v. McLean, 78 Tenn. (10 Lea) 113; Marchand v. Frenson, 105 U. S. 423; Smith v. Lee, 82 Tex. 124.

42 For cases involving questions as to waiver of the lien, see Donavan v. Donavan, 85 Mich. 63; Bank v. Filer, 83 Mich. 496; Richards v. McPherson, 74 Ind. 158: Hammet v. Stricklin, 99 Ala. 612; Chapman v. Peebles, 84 Ala. 283; Henderson v. Samuels (Tex. Civ. App.), 25 S. W. Rep. 470; Foster v. Powers, 64 Tex. 247; Seeligson v. Mitcham, 79 Tex. 571; Ellis v. Singletary, 45 Tex. 27; Christy v. McKee, 94 Mo. 241. That dower does not attach as against purchase money is the general rule, not only as against the implied lien, but also as against the express lien reserved in the deed. Hunt v. Dulaney, 87 Va. 444; Kaifer v. Lambeck, 55 Iowa, 244; Martin v. Smith, 25 W. Va. 580; Roush v. Miller. 39 W. Va. 638, 20 S. E. Rep. 663; Bailey v. Winn, 101 Mo. 649; Boyd v. Martin, 9 Heisk. 382; Stow v. Mifft, 15 Johns. 458.

CONVEYANCE OF HOMESTEAD - VALIDITY— ACKNOWLEDGMENT-NOTARY DISQUALI

FICATION.

HAVEMEYER v. DAHN.

Supreme Court of Nebraska, May 20, 1896.

A conveyance of real estate, such real estate being the homestead of the grantors, is, unless acknowledged, absolutely void. An attorney who is a notary public, is not disqualified from taking an acknowledg ment of a mortgage made to his client merely because he holds for collection the claim secured by such mortgage: it not appearing that the attorney had any beneficial interest in having the mortgage made, nor that the amount of his compensation in any manner depended upon such mortgage being made.

RAGAN, C.: John C. Havemeyer brought this suit in equity to the district court of Douglas county against Marcus Dahn and Barbara Dahn, his wife, to foreclose a real estate mortgage. A corporation known as the O. F. Davis Company and a copartnership known as Storz & Iler were also made defendants to the action. The latter two filed cross petitions by which they also sought to foreclose mortgages held by them upon the real estate of Dahn. By the decree of the district court Havemeyer and the O. F. Davis Company were given liens upon the real estate as prayed for in their petition and cross petition; but the district court denied the prayer of the cross petition of Storz & Iler, and dismissed the same, and from this decree they have appealed.

It appears from the special findings of the district court that one Kopald was indebted to Storz & Iler, and as an evidence of this indebtedness he executed to them his note, and this note was signed by the appellee Marcus Dahn, and the note secured by a mortgage upon the homestead of Dahn and wife to Storz & Iler. The notary public who took the acknowledgment of this mortgage was an attorney-at-law, and the attorney and agent of Storz & Iler for the purpose of collecting the debt owing to them from Kopald, and procured Dahn and his wife, as they alleged, by fraud and false representations to execute the mortgage. The learned district court was of opinion that, because the notary public who took this acknowledgment was the agent and attorney of the mortgagee, he was therefore disqualified to take the acknowledgment, and the mortgage, being upon a homestead, was void. In Horbach v. Tyrrell (handed down at this sitting of the court), 67 N. W. Rep. 485, we decided that a notary public was not disqualified from taking an acknowledgment of a mortgage made to a corporation of which he was secretary and treasurer; it not appearing that he was a stockholder in such corporation, or otherwise beneficially interested in having the conveyance made. In the case at bar it is not found that the notary and attorney who took the acknowledgment of Dahn and his wife had any beneficial interest in having the mortgage made. It is true that he was agent and attorney for Storz & Iler, but it does not appear that the amount of his compensation depended upon his procuring this mortgage. Following Horback v. Tyrrell the decree appealed from is reversed and the cause remanded to the district court for further proceedings. Reversed and remanded.

NOTE. As will be seen the court, in the principal case, follow Horbach v. Tyrrell, decided at the same term, wherein it was held that only a pecuniary interest in a corporation mortgagee could disqualify one of its officers to act as a notary public in taking the acknowledgment which gives validity to the incumbrance of a homestead. The following cases were reviewed by the court in that case in order to determine what relationship and what interest disqualifies an officer from taking an acknowledgment, viz: Haumers v. Dale, 61 Ill. 307, where it was held that acknowledgment of a mortgage taken before a justice of the peace, who was also the mortgagee, is void as to third parties, notwithstanding the fact that he is the only justice in the township qualified to take acknowledgments. It Brereton v. Bennett, 25 Pac. Rep. 310, the Supreme Court of Colorado held: "The fact that the officer taking the acknowledgment of a chattel mortgage was the partner of the mortgagee, and negotiated the loan secured by the mortgage, does not render the mortgage fraudulent and void as to other mortgage creditors, when it is not shown that he was a party in interest to either the lien or the note." In Stevenson v. Brasher, 90 Ky. 23, 13 S. W. Rep. 242, the Court of Appeals of Kentucky held that, where only the county clerk and his deputies are authorized to take acknowledgments of deeds, the clerk may take the acknowledgment of a deed in which he

is grantee. Chapter 37, § 2, of the Revised Code of North Carolina, permits a deputy clerk to take the probate of a deed. In Piland v. Taylor, 113 N. C. 1, 18 S. E. Rep. 70, it was held that the fact that the clerk was grantee did not invalidate the probate taken by the deputy. The statutes of Michigan provide that a judicial sale shall be made by the sheriff or undersheriff, and the deed executed by the officer making the sale. In Cook v. Foster, 96 Mich. 610, 55 N. W. Rep. 1019, the supreme court of that State, in construing this statute, held that a deed executed by an undersheriff might be acknowledged by the sheriff, he being a notary public. In Ewing v. Vannewitz, 8 Mo. App. 602,Append., it was held that the acknowledgment of a deed of foreclosure made by a sheriff as trustee under a deed of trust may be taken by a notary who is also deputy sheriff. In Bank v. Conway, 1 Hughes (U. S.), 37, was held that "a notary, who was one of the beneficiaries under a deed of trust might take the grantor's acknowledgment." In Withers v. Baird, 7 Watts, 227, it was held that an officer who is bound to make title through third persons is so far interested in the conveyance as to be disqualified to take the acknowledgment of the wife of the grantor. In Sample v. Irwin, 45 Tex. 567, it was held that a notary who identifies himself with the transaction by placing his name on the face of a deed of trust as the avowed agent of one of the parties cannot acknowledge the instrument. In Nichols v. Hampton, 46 Ga. 253, it was held that a notary, who is also attorney for the mortgagor, cannot take his client's acknowledgment of the mortgage. But in Bierer v. Fretz, 32 Kan. 330, 4 Pac. Rep. 284, it was held that an acknowledgment of a mortgagor was good, although taken by an attorney for the mortgagee. In Penn v. Garvin, 56 Ark. 511, 20 S. W. Rep. 410, it was held that a notary who acted as agent of a mortgagor in obtaining the loan secured by the mortgage is not so interested as to be disqualified to take the acknowledgment of the mortgage. In Kutch v. Holley, 77 Tex. 220, 14 S. W. Rep. 32, it was held that a married woman's acknowledgment taken by a notary who was the attorney of her husband, but not beneficially interested in the deed, is valid. In Bank v. Radke, 87 Iowa, 363, 54 N. W. Rep. 435, it was held that the acknowledgment of a chattel mortgage made to a partnership before a notary who is one of the partners is void as to third parties without actual notice. In Long v. Crews, 113 N. C. 256, 18 S. E. Rep. 499, it was held that the acknowledgment of a trust deed before a notary who is a preferred creditor therein is a nullity. In Lynch v. Livingston, 6 N. Y. 422, it was held that a commissioner of deeds may take the acknowledgment of a deed, although so related to the makers as to be disqualified to act as judge or juror in a trial where they are parties. In Paper Co. v. O'Dougherty, 81 N. Y. 474, it was held that a justice of the peace may take the acknowledgment of a deed in which his father is grantor and his wife grantee. In Jones v. Porter, 59 Miss. 628, it was held that, if the officer is beneficially interested, his taking the acknowledgment of a relative would be void on that ground, and that the acknowledgment of a deed before the husband of the grantee therein was void. In Kimball v. Johnson, 14 Wis. 734, it was held that "the acknowledgment of a mortgage made to a married woman is not invalid because taken before the husband of the mortgagee, who was a justice of the peace." In Bank v. Roberts, 9 Mont. 323, 23 Pac. Rep. 718, it was held that a notary who is the attorney and nephew of the party to the deed is not so interested as to be disqualified to take the acknowledgment of the deed. In Sawyer v. Cox,

63 Ill. 130, it was held that "an officer of a corporation, whose duty it is to countersign and register its deeds, is not thereby disqualified from taking acknowledgment thereof as a notary his signature not being necessary to the validity of the instrument. The dissenting judge here claims that the above cases are irreconcilably at conflict as to what particular relationship to the parties or subject-matter should be held to disqualify a notary public. He distinguishes a few of them and cites a number of additional cases which do not seem to shed much light upon the question presented. Indeed the protest of the dissenting. judge seems to be upon the ground that in the opinion of the court "there has been no attempt made to formulate a general rule as to what disability on the part of the notary public will vitiate his certificate of acknowledgment, though it is intimated that peculiar facts and circumstances may accomplish that result. In this situation there are all the disadvantages which attend upon the possible effects of an unsettled rule of law.

CORRESPONDENCE.

VALIDITY OF ACT EXTENDING TIME FOR MORTGAGE REDEMPTION.

To the Editor of the Central Law Journal:

I notice in your JOURNAL of June 19th, page 512, under your "Notes of Recent Decisions," a reference to the decision of the Supreme Court of Montana, in State v. Gilliam, 44 Pac. Rep. 394, deciding that the act of Montana of July 1st, 1895, extending the time of redemption of premises sold on mortgage, merely operates upon the remedy, and does not impair the obligation of contracts, and thereupon you cite certain decisions of the United States Supreme Court, alleging that they uphold the Montana case. I desire to call your attention to the late decision in Barnitz v. Beverly, vol. 16, Supreme Court Rep. 1042, reversing the last decision of the Supreme Court of Kansas in Beverly v. Barnitz, 55 Kan. 466, and deciding the law to be as declared by the Supreme Court of Kansas in its former decision, 55 Kan. 451.

ALBERT H. HORTON.

To the Editor of the Central Law Journal:

Under title of constitutional law, mortgage, extending time for redemption, you refer to the case of State v. Gilliam, considered by the Supreme Court of Montana, wherein they decided that extending the time for redemption of property sold on mortgage simply operates upon the remedy and does not impair the obligation of contracts within federal inhibition, and you state that this decision follows Beverly v. Barnitz, 42 Pac. Rep. 441, and another case, and also that these decisions are upheld by the United States Supreme Court in cases mentioned by you which includes Bronson v. Kinzie, Ins. Co. v. Cushman, Morley v. Ry. Co., Von Hoffman v. City of Quincy. The Kansas case of Beverly v. Barnitz was reversed by the Supreme Court of the United States, the decision appearing June 8, 1896, and in that decision the court quotes Bronson v. Kinzie supporting its conclusion, as also Von Hoffman v. City of Quincy, and distinguishes Ins. Co. v. Cushman and Morley v. Ry. Co., so if the Montana case is grounded upon similar facts to the Beverly v. Barnitz, it does not derive support from this recent decision.

FRANK WISDOM.

BOOKS RECEIVED.

A Treatise on the Law Pertaining to Corporate Fi nance, including the Financial Operations and Arrangement of Public and Private Corporations, as Determined by the Courts and Statutes of the United States and England. By William A. Reid, of the New York Bar. In Two Volumes. Albany: H. B. Parsons, Law Publishers. 1896. .Marketable Title to Real Estate, being also a Treatise on the Rights and Remedies of Vendors and Purchasers of Defective Titles, including the Law of Covenants for Title, the Doctrine of Specific Performance, and other Kindred Subjects. By Chapman W. Maupin, of the Washinton, D. C., Bar. New York: Baker, Voorhis & Company. 1896.

WASHINGTON.....11, 27, 34, 64, 102, 103, 105, 143, 144, 163, 176 WEST VIRGINIA, 19, 37, 48, 61, 74, 76, 88, 89, 114, 138, 154, 156, 157, 184, 185, 190, 194, 197, 215, 222, 224, 234, 249 WISCONSIN, 3, 4, 21, 25, 31, 43, 84, 90, 95, 115, 126, 134, 135, 148, 161, 172, 200, 202, 214, 244 WYOMING......

240

1. ACTION -Executors - Where Action may be Brought.-Testator, a resident of New York, bequeathed shares in a corporation, in trust, to plaintiff, a resident of Connecticut; the will being admitted to probate in New York, where two of the executors resided: Held, that plaintiff could not maintain an action in the courts of Connecticut to compel the executors to transfer the stock, even though one of the executors was a resident of that State, and had taken out ancillary letters.-RUSSELL V. HOOKER, Conn., 34 Atl. Rep. 711.

2. ADJOINING HOUSE OWNERS-Partition.-Adjoining lot owners in a city may by grant impose mutual and corresponding restrictions and conditions upon the land owned by each, the mutuality of the convenants in such case being a sufficient consideration for the respective grants.-BARR V. LAMASTER, Neb., 66 N. W. Rep. 1110.

3. ADMINISTRATION-Claim-Compensation for Serv ices. Where plaintiff had worked for intestate for several years during and after his minority, receiving his board and clothing, but with an agreement that, in consideration for his services during her life, intestate would compensate him at her death, on the failure of intestate to make any provision for him, by will or otherwise, he is entitled to recover from her estate the value of his services.-SLATER V. COOK'S ESTATE, Wis., 67 N. W. Rep. 15.

4. ADMINISTRATION - Claims against Decedent's Estates. Where a son-in-law furnished board, lodging, and services to his father-in-law, on his periodical visits with him during a period of several years, without demanding any compensation, but kept a record of the visits and services, and after his father-in-law's death, being dissatisfied with the share that was left to his wife by his father-in-law, he charged up these items, he could not enforce his claim against the estate.-SCHMIDT'S ESTATE, Wis., 67 N. W. Rep. 37.

5. ADMINISTRATION-Claims-Services of Relatives.Where a son-in-law and his family and mother-in-law, for 14 years lived together as "one family" at her house, without any agreement for payment for services on either side, and no payment was made except in mutual services, he was not entitled to recover from her estate, on an implied promise, the value of his own and wife's services to her during that time. -CALLAHAN v. WOOD, N. Car., 24 S. E. Rep. 542.

6. ADMINISTRATION-Probate Judge-Jurisdiction.-A probate judge has no jurisdiction, under section 5449, Rev. St., to allow an execution to be issued against the person upon a judgment rendered in the court of common pleas; and his assumption of such jurisdiction gives no validity whatever to his order allowing such execution to be issued.-MILSON V. RENDERING & FERTILIZER CO. v. RONK, Ohio, 43 N. E. Rep. 919. 7. ADMINISTRATION Sale by Administrator.-A per son claiming land under a deed by an administrator, executed by order of the probate court, must show the facts giving the court jurisdiction to order the sale.DORRANCE V. RAYNSFORD, Conn., 34 Atl Rep. 706. 8. ADMIRALTY JURISDICTION Lakes and Rivers.-In the act of 1845, purporting to extend the admiralty jurisdiction of the federal courts over the interior lakes and rivers, the provision, now embodied in Rev. St. § 566, saving to the parties a right to demand a jury trial of issues of fact in certain cases, is inoperative to do more than make the verdict advisory, and does not change the powers of the admiralty judge, who is still responsible for the decree rendered. -SANDERSON V. THE CITY OF TOLEDO, U. S. D. C. (Ohio), 73 Fed. Rep. 220.

9. ADVERSE POSSESSION-Right of Pre-emptor.-Since the possession of a pre-emptor, prior to the putting of the land on sale by the general government and his purchase thereof, is merely under claim of a right to purchase, and not under claim of title, is not adverse to one claiming under a grant from the general gov. ernment which had never put the land on sale.-ALABAMA STATE LAND CO. V. BECK, Ala., 19 South. Rep. 802.