3. The statute of limitations will run in favor of one who has converted Ibid. 4. Public securities, such as State bonds, may be converted by returning TRUSTS: I. While trusts, unless annexed as an incident to a conveyance of the legal 2. Where an agreement is made between husband and wife that the pro- 3. Where a husband contracts with his wife to invest money received from 4. Where by will land is devised to a trustee, to rent the land and pay the 5. Where a trust is created by the agreement of the parties, no length of 6. So where an express trustee conveys the trust property, in breach of the 7. A widow is not entitled to dower in an equity, unless the husband had 8. If the administrator pays the balance due out of the assets of the estate, but takes the title to himself individually, the heirs can have him decreed to be a trustee for them; or, it seems, that they can charge him with the payment as for a devastavit, and have it declared a charge on the land. Jones v. Slaughter, 541. USURY: 1. Where a mortgage is executed to secure a usurious note the usury only affects the interest and do s not impair the validity of the mortgage. Spivey v. Grant, 214. 2. Where the charter of a corporation allowed it to borrow money on such terms as its directors might determine upon, and to issue bonds or other evidences of indebtedness; It was held, that this provision allowed it to sell its bonds below their face value, and where it did so the loan was not for that reason usurious. Bank v. M'f'g Co., 298. 3. A provision in a charter allowing a corporation to lend money at a usurious rate of interest does not confer the power on them to do so, but a provision to borrow money at such rate is not liable to any objection. Ibid. VARIANCE: 1. Where the answer alleged as a counter-claim, that the note sued on was endorsed to the plaintiff after maturity, and that the endorser was indebted to the defendant before the transfer of the note, for money paid by him as his surety, and the evidence offered to support it was a joint and several note, executed by the defendant and another party, who it was alleged was the agent of the endorser of the plaintiff, but nothing in the note offered in evidence showed any agency; It was held, a failure of proof, and the Court below properly charged the jury that there was no evidence to support the allegation of the counter-claim. Smith v. McGregor, 101. 2 Where several persons unite in executing a bond to a commission merchant for supplies to be furnished them, and one of them gives a chattel mortgage to secure the amounts advanced to him, which mortgage erroneously recites the amount of the bond, but truly specifies the amount of the advances made to the mortgagor; It was held, that the variance was immaterial. Spivey v. Grant, 214. 3. Where a variance is not merely formal, but lies at the very root of the cause of action, it is fatal to the plaintiff's right to recover. Pendleton v. Dalton, 507. 4. So where a suit was brought on a contract alleged to have been made with a decedent, and for the benefit of his estate, but the evidence showed that he was not a party to the contract in its origin, nor did he ever acquire an interest in it by assignment, the variance was fatal, and the plaintiff was properly nonsuited. Ibid. VENDOR AND VENDEE: I. One let into possession of land under a contract to purchase, is an occupant at the will of the vendor, and he so continues until the purchase money is paid. Allen v. Taylor, 37. 2. In such case, the vendor may, after reasonable notice to quit, demand possession, and if the possession is not surrendered, he may bring his action at once. Ibid. 3. What is reasonable notice to quit will depend on the circumstances of each case. Ibid. 4. While a Court of Equity will hold a vendor who has received the full price for land as a trustee for the vendee, and compel him to convey the legal title, yet before the purchase money is paid, it will not deprive him of any of his rights, legal or equitable, and one of these is the right to hold possession of the land, in the absence of a stipulation to the contrary in the contract. Ibid. 5. A vendee failing to pay the purchase money has no right to have the land sold as of course, and a Court of Equity will not direct a sale at his instance, unless it appears that the land will sell for a sum sufficient to pay the debt, and that he is unable to pay it without a sale. Ibid. 6. The vendor of land who has not been paid, has two remedies, one in 7. Where a vendee is let into possession before the purchase money is paid, 9. In an action to compel the vendee to a performance of the contract, it 10. A vendee is not entitled to recover costs in an action to force him to perform his contract and pay for the land, if he contest the case and does not make a deposit of the amount due, although the plaintiff cannot make a good title at the time when the action is commenced. Ibid. II. It is intimated, that the vendee could recover his costs in such case, if he made deposit of the balance due, and accepted the title as soon as the vendor had perfected it. Ibid. 12. Where a vendee dies before paying in full for the land, his estate is liable for the residue, and its payment by the administrator is proper. Jones v. Slaughter, 541. VERDICT: It was agreed that the clerk might take the verdict, but by permission of the Court he was absent when the jury agreed and they sealed their verdict up and handed it to the sheriff and separated. At the next session of the Court the trial Judge ordered the jury into the box and the foreman opened the verdict and each juror agreed to it in the presence of the counsel for both sides; Held, that the verdict was regular, there being no suggestion that either the verdict or the jury had been tampered with. King v. Blackwell, 322. WARRANTY: 1. The application for insurance forms a part of the contract, and the inquiry and answers are tantamount to an agreement that the matter enquired about is material, and its materiality is not open to be tried by the jury. Cuthbertson v. Ins. Co., 480. 2. In the absence of fraud or mistake a party will not be heard to say that he was ignorant of the contents of a writing signed by him, containing a contract on his part. Ibid. 3. So where a party signed an application for insurance which contained a warranty that the property belonged to the applicant in fee, and that there were no liens on it, he will not be allowed to testify that he did not know that such a fact was stated in the application. Ibid. 4. Where an application for insurance contained a statement which was made a warranty by the terms of the policy, that the house in which the insured property was belonged to the applicant in fee, and that there were no liens on the property insured; It was held, that the warranty was broken when it appeared that the house was built on land leased by the applicant, and was to become the property of the lessor at the end of the lease, and that the title to the property insured was vested in another person as a security for the purchase money. Ibid. 5. Where several distinct kinds of property are insured in the same policy, and there is a false statement in the application as to some of it, it avoids the policy as to all, as the policy is one entire and indivisible contract. Ibid. WHARFS: The riparian owner of land has the right, under our entry laws, to enter the water front up to deep water, for the purpose of erecting a wharf, and in such case, the title to the land passes. Gregory v. Forbes, 77. WILL: 1. Where by will land is devised to a trustee, to rent the land and pay the rents over to a person during his life, the cestui que trust takes no estate in the land, but only the right to have the rents paid to him. Hicks v. Bullock, 164. 2. Courts of equity will not entertain a suit for the construction of a devise, but will leave the devisee to assert his right at law, in an action to recover the land. Woodlief v. Merritt, 226. 3. Prior to January 1, 1856, when the Revised Code went into effect, a will which was attested by two witnesses, could be proved in common form by the oath and examination of one of them only. Since that time, it must be proved by at least two of the subscribing witnesses, if living. Jenkins v. Jenkins, 254. 4. Where a will only gives the " use" of land to a devisee for life, with remainder to his heirs, the word "use" makes it clear that the devisor only intended to give a life estate to the first taker, and the rule in Shelly's case will not apply. Ibid. 5. Where land is devised to the devisee for life, and after his death to be equally divided among the heirs of his body, the rule in Shelly's case does not apply and the heirs take as purchasers. Ibid. 6. So where by will the use of all the balance of the testator's estate, including lands, were devised to the devisee for his natural life, and at his death to be equally divided among the heirs of his body; It was held, that the rule in Shelly's case did not apply. Ibid. 7. The question is left open whether the rule in Shelly's case is abrogated by The Code, $1829. Ibid. 8. A will in one clause devised a tract of land to the testator's son W. In another clause a pecuniary legacy to a daughter was made an express charge on this land, and in the same clause another tract of land was devised to another son, C, and a pecuniary legacy to another daughter, I. This last legacy was not made an express charge on the land devised to C, but the will provided that the son W of the testator should manage the entire estate, including the land devised to C, until the legatees and devisees arrived at full age, a d that he should pay the legacy to I by installments; It was held, that the legacy to I was a charge on the land devised to C. Carter v. Worrell, 358. 9. Where a devise described the devised land as containing two hundred acres, the area cannot control the boundaries by which the land is also described in the deed. Lyon v. Lyon, 439. 10. In doubtful cases the area may aid in determining the boundaries, but when it is at variance with them it must be disregarded. Ibid. 11. Where a will devised land to L during her natural life, and after her death to the begotten heirs or heiresses of her body; It was held, that the rule in Shelly's case did not apply, and the children of L took a remainder as purchasers after her death. Leathers v. Gray, 548. 4.a. a. а 2612 032 |