amount of stock had not been paid in, or Texas instituted suit against the Texas a certificate thereof made and recorded Banking and Insurance Co., a corporas prescribed by law. It appeared that ation having its principal office in the the capital stock, which was nominally City of Galveston, and pursuing its busi$100,000, was issued in payment for ness or occupation of dealing in stocks property. The trustee from whom it was and bills of, exchange in said City, purchased testified that it was worth not containing more than five thousand into exceed $50,000. The property taken habitants.

was such as any one familiar with thatThe defendant corporation pursued kind of property, could readily ascertain its business or occupation in the City of and estimate. The Judge before whom Galveston, continuously from October the case was tried, held that plaintiff had 1st, 1872, to June 3d, 1873. made out a case within the statute, and directed a verdict for the plaintiff.

Held, No error; that the evidence shows that there had been a gross overvaluation with full knowledge of the defendant of the facts; that this was fraudulent in law on its face, and, as the evidence stood, there was no question of fact for the jury to pass on.

The State sued to recover of the corporation the sum of $156 with interest thereon, from October 1st, 1872; alleged said sum to be due as an occupation tax imposed on the defendant under an act entitled "an Act to give effect to several provisions of the Constitution concerning taxes," approved April 22d, 1871, and that the occupation tax imposed under

An error of judgment, or a mistake in said Act upon every person or firm purplacing a valuation or property appro-suing the aforesaid business or occupation priated as capital by a manufacturing in any City containing more than 5000 corporation, if made in good faith and inhabitants, is $250 per annum.

not to evade the provisions of chap. 333, Laws of 1853, would not of itself subject the owner of the stock, issued in payment of the property purchased, to a personal liability, 57, N. Y., 133.

A discrepancy in the opinions of witnesses upon the question of value, cannot be considered sufficient to establish fraud, so as to render a stockholder individually liable. If the trustees act in good faith, the stockholders could not become liable. Judgment of General Term affirming judgment upon trial in favor of plaintiffs, affirmed.

Opinion by Miller, J.

TAXATION.

SUPREME COURT OF TEXAS.
The Texas Banking and Insurance
Co., v. The State of Texas.
Decided in 1875.

Judgment was rendered July 7, 1874, against the corporation for $171.50.

On appeal it was by the appellant urged that the act was unequal and not uniform in its operation, and therefore unconstitutional, that the number of a town's inhabitants should not determine the amount of tax an inhabitant of such town should pay, nor the fact of one's doing business alone, or being a member of a firm; that the State constitution, Act 12, Sec. 19, declares: "Taxation. shall be equal and uniform throughout the State. All property shall be taxable in proportion to its value, to be ascertained as directed by law."

Held, The clause of the constitution quoted, is in these words: "Taxation shall be equal and uniform throughout the State."

This is the dominant provision in the section, and must be observed and respected in the levy of all taxes for general purposes of revenue of either class referred to On the 23d of May, 1874, the State of in the subsequent parts of the section.

Equality and uniformity of taxation.
Constitutional law.

It must not be supposed that this uniformity and equality can be of perfect logical exactness, and mathematical accuracy.

In many instances approximate equality in apportioning its burdens is all that from the nature of the tax it is possible to attain.

If there is that equality and uniformity as comports with recognised precedents, and long and well-established judicial sanction, it is all that can be required, though falling short of strict literal and technical uniformity, and though it may bear to some extent, in individual instances, with unequal weight.

TITLE.

N. Y. COURT OF APPEALS. Washburn, Respt. v. Burnham, Applt. Decided Nov. 9, 1875,

Cloud upon title. Executory agreement to sell made by unauthorized person, effect of on title. Recording executory agreement. Notice.

This action was brought to cancel a record for the sale of land, as a cloud on the title. It appeared that in 1871, one R. was the owner of certain real estate in Yonkers, which he conveyed to plaintiff. Prior to the conveyance one L., assuming to act as attorney for R., but without authority from him, entered into a contract with defendant, for a sale of

The particular question in this case is, whether the law levying the occupation tax for which the suit is brought, violates the property, which was recorded in the the constitutional requirement of equality and uniformity in a tax levied upon persons pursuing any occupation, trade or profession.

What rule of uniformity can be strictly applicable to such a tax? Surely not a definite sum to be paid by every one upon whom it was levied. A tax thus levied, which might be ruinous upon one occupation, might be the merest trifle to another.

The same might be the result if no discrimination could be made between parties engaged in the same general class of occupations.

As the Constitution has laid down no rule upon which the equality and uniformity it requires is secured, it is the duty of the Legislature to ascertain how it may be attained.

It has not been made to appear to the Court that it has failed to do so by the law levying occupation taxes. Unless it had, we cannot say the law is in violation of Constitution.

County Clerk's Office. The contract itself does not show an apparent authority.

Held, That plaintiff has failed to establish a case which entitles him to the relief sought; that the instrument in question would not constitute an incumbrance, or a lien upon real estate, or a cloud upon the title thereto, even, if executed by the owner of the land, and that an action for the specific performance of it could not be maintained without proof that L. had acted with power and authority. The record of the contract in no way added to its force or validity. The only effect of the statutory provision for the recording of contracts for the sale of lands; (I. R. S. 762 § 39,) is to preserve evidence and facilitate proof thereof, and the record is not constructive notice to subsequent purchasers or incumbrancers, and no action can be maintained to cancel it as a cloud upon the title; (59 N. Y. 301.)

An action to remove a cloud upon a a title can only be maintained when the

There is no error in the judgment claim or lien sought to be removed ap

below.

Judgment affirmed.

Opinion by Moore, J.

pears on its face to be valid, and when the defect therein can be made to appear only by extrinsic evidence, and will not necessarily appear in proceedings by the claimant to enforce the lien, 59 N. Y.,

280; 14 id., 9; id., 534; 16 id., 519; 38 id., 276; 39 id., 386; 40 id., 547; 48 id., 173.

Judgment of General Term affirming judgment at Special Term dismissing the complaint reversed and a new trial granted.

Opinion by Miller, J.

TRUSTEE-COMMISSIONS.

SUPREME COURT OF PENNSYLVANIA.
Carrier's appeal.

Decided Oct. 12, 1875.

The case itself is exceptional. The
parties owning the real estate appear to
have had full dominion over it, and were
all sui juris. They could have made a
deed for the property without the aid of
a trustee, or the court. That they did
not do so was in part due to the advice
of the trustee himself. In fixing the
compensation of the latter, regard must
be had to the fact that the application to
the court was solely with a view of pass-
ing the title; that the duties of the
and
trustee were more formal than real,
that the sale was in reality made by the
heirs. It is true he received the money
and is charged with its proper distribu-

A trustee's commissions for sale of real tion, but even this, under the circumestate generally 24 per cent.

Appeal of Francis S. Carrier et al. from the decree of the Orphans' Court of Allegheny county.

The trustee charged $1,187.01, being five cent. upon per the sale of the real estate. The heirs refused to allow this sum, alleging that it was exhorbitant, and the trustee refusing to settle with them upon any other basis, an auditor to make distribution was appointed, who reduced his compensation to $500. To this report exceptions were filed, and the Orphans' Court sustained the exceptions to the extent of allowing the trustee the sum of $1,000. This order of the Orphans' Court was assigned for error.

Held, In any view of the case the charge of the trustee is excessive. While the question of the compensation of trustees is not to be determined by any inflexible rule, but must depend to a great extent upon the circumstances of each particular case, yet two and one-half per cent. has generally been regarded as a proper compensation for the sale of real estate. Had this trustee been satisfied with this sum, it is quite possible the

stances, involves no considerable amount
of trouble. But for this question of
commissions the proceeds of sale could
have been probably paid over to the
parties entitled thereto.

A trustee who vexes the heirs and de-
lays distribution by preferring an exorbi-
tant claim for commissions, is not entitled
to the same consideration as one who
makes a reasonable claim for his services.
Under all the circumstances of this case,
we think the sum allowed by the auditor
($500) as compensation to the trustee was
sufficient; the costs were rightly disposed
of.

The decree of the Orphan's Court is reversed and set aside as to the allowance of commission or compensation to the trustee, and the report of the auditor is confirmed as to the commissions and costs; the costs of this appeal to be paid by the appellee.

Opinion by Paxson, J.

TRUSTEE EX MALEFICIO.

heirs would have acquiesced in it, and N. Y. SUPREME COURT,-GENL. TERM

thus have avoided the delay and expense of this litigation. As the parties have appealed to the law they must take what the law gives them.

FOURTH DEPT.

Fulton, respt. v. Whitney, et el, applt.
Decided at June Term, 1875.

1

Trustee purchasing at the sale of proper- died, and at the time of the sale the ty affecting the rights of his cestui que plaintiff was under twenty-one years of trust. Profits on such a purchase inures to the cestui que trust. One associated with a trustee affected as he

is.

age.

Defendant Whitney was, at the time of the sale, the general guardian of the plaintiff and the administrator of the

Appeal from judgment for plaintiff at estates of both of her deceased sisters; Special Term.

Complaint seeking to charge defendants Whitney, Trott and Jerauld, as trustees in equity for the plaintiff.

Whitney, Jerauld and Trott were brothers-in-law and partners in business, conducting the Cataract House, a hotel at Niagara Falls, and they were all equally and fully acquainted with the equities of the plaintiff.

Parkhurst Whitney, by his will, bequeathed to his executors, Whitney and Trott, a special fund. consisting of a By the provisions of the will the bemortgage made to him by the said Whit- quest of $12,000 to the Kowalewski sisney and Trott, and Dexter R. Jerauld, ters, was directed to be paid from no amounting to $19.171.96, of which, after other part of the testator's estate, except the payment of debts not otherwise pro- from the proceeds of the mortgage set vided for, $12.000 and interest were in apart for the purpose. The testator's the next place, to be paid by his executors debts had been paid before the sheriff's to those of his grandchildren, Olympia, sale, except the bond and mortgage on Helen and Celinda Kowalewski, the last the land in question; and in order to pay of whom is the plaintiff in this action, now these debts the executors had drawn conthe wife of Robert O. Fulton. The res- siderably upon this trust, so that it was idue of this trust fund was to go to other manifest, when the sale took place, that beneficiaries. By the death of Olympia any deficiency necessary to satisfy the and Helen, leaving neither father, moth- bond, after the mortgaged premises had er or brother, Celinda, the plaintiff, the been appropriated, must be paid out of only surviving sister, became the sole the trust fund in question, or, in other heir-at-law and next of kin. words, wholly out of the moneys coming By a residuary clause, the fifteenth in to the plaintiff therefrom. The deficienthe will, the testator devised to his grand-cy was $6,577.48. If the land had been children, ten in number, a piece of real sold for $10,000, its real value, the defiestate at Niagara Falls, which is the ciency would have been but $1,577.48. principal subject of the present action. The plaintiff thereby lost $5,000, because The testator had purchased this land the land did not bring what it was worth. in 1859, for $10.000, for which he gave Held. Upon well established princihis bond with a mortgage on the premises. ples of equity, all profit resulting from He died in 1872, and his will was proved the purchase made by the defendants, and recorded as a will of of real and per- inures to the benefit of the plaintiff. sonal estate, in the Surrogate's Court of Whitney and Trott were precluded by Niagara County, and letters testamentory the duty which they owed to the plaintiff were taken out by the executors. On from purchasing on their own account, the foreclosure of the mortgage, the prem- and the interest of Jerauld is affected by ises were sold under judgment in this the same disability, because the purchase court, and on the 9th day of January, was a joint one, and he is charged as 1867, the executors and the defendant having been privy to the circnmstances Jerauld became the purchasers at sheriff's which invalidate the transaction. sale for $5,000, one half of their value. Judgment affirmed with costs. Before this time Olpmpia and Helen had Opinion by Gilbert, J.

VOL. 1.] MONDAY, DECEMBER 6, 1875. [No. 17.
APPEAL PRACTICE-EXTRA

NEW YORK WEEKLY DIGEST. and valid by competent judicial authority, the pecuniary result thereof would not be objectionable to plaintiff, and that it would be content therewith. Defendants claimed that this statement deprived plaintiff of the right to appeal from the judgment.

ALLOWANCE.

NEW YORK COURT OF APPEALS.

The Ogdensburg and Lake Champlain
R. R. Co. Applt. v. The Vermont
and Canada R. R. Co. et al. Respts.
Decided November 9, 1875.

Held, That an agreement to surrender the right to appeal, being a valuable right, must be based upon some consideration; or the facts must estop the party from Extra allowance will be granted when exercising it, and as there was no conthere is no proof of value: A surren- sideration therefor, and no facts enabling der of a right to appeal must be based defendant to invoke the doctrine of estopupon a consideration, or must rest in pel, and no intention to waive or stipulate estoppel.

Estoppel. Ultra vires.

Issue joined on demurrer cannot be decided on a motion to dismiss the appeal.

away the right of appeal, plaintiff was not estopped.

It appeared that plaintiff had received

A defendant cannot appear and join the rent due upon the lease since the issue of fact or law, without waiving judgment. all objections to the regularity or εufficiency of process.

Held, That this did not estop it from This was a motion to dismiss an appeal prosecuting the appeal. If the lease was from a judgment, and from an order invalid when made because it was ultra granting an extra allowance.

The action was brought to determine the validity of a lease from plaintiff to defendants. There was no proof of the value of the lease. Judgment was rendered for defendants on demurrer, and an extra allowance of $4,000 was made to defendants. The General Term affirm

ed the order.

vires, it could not be ratified by the receipt of the stipulated rent or any other act of the parties, unless under peculiar circumstances the facts showed an estoppel.

Defendants also claimed that the appeal from the judgment should be dismissed because the facts in the complaint showed that the courts had no jurisdiction of the defendants, except S., they being non-residents, and that the said defendant demurred and the court below sustained the demurrer upon that ground.

Held, That it is not proper to decide the issue joined by the demurrer upon a motion to dismiss.

It was claimed that the record shows that process was not properly served

Defendant, S. claimed that the order was not appealable, being discretionary with the court below, and that the limit specified, Sec. 309 of the Code had not been exceeded, as the basis of the allowance must have been either the value of the railroad $5,000, 000., which was proved to be the value, or the annual rental thereof $400,000., and that the allowance was authorized. upon the non-resident defendants, and Held, that as the title to the railroad that the appeal should be dismissed was not in dispute, and in no sense the as to them. subject matter involved in the litigation, and as there was no proof of the value of the lease, the allowance was unauthorized. The complaint stated that if the case annexed thereto should be adjudged legal

Held, That defendants having appeared and demurred, they could not object that they had not been served with process. A defendant can not appear and join an issue of law or of fact without waiving