(1840) 10 Watts, 289, 36 Am. Dec. 176.

Texas. Foster v. Eoff (1898) 19 Tex. Civ. App. 405, 47 S. W. 399.

Washington. Crosby v. Wynkoop (1910) 56 Wash. 475, 106 Pac. 175.

The recital in a deed as to the heirship of the grantors does not operate as an estoppel against an heir who does not join therein. CARTER V. THOMPSON (reported herewith) ante, 1053.

And see New York & T. Land Co. v. Hyland (1894) 8 Tex. Civ. App. 601, 28 S. W. 206, where, in holding that the right of heirs who had not joined in a conveyance was enforceable against a subsequent purchaser, notwithstanding that the latter bought in the belief that he was buying from all the heirs of the estate, the court remarked that, "if such purchaser can in any event assert an innocent purchase from a part of the heirs to the exclusion of other heirs, he ought to show not only that he was ignorant of the existence of other heirs, but that he had also made inquiry or exercised diligence to ascertain if other heirs existed." It, however, expressed a doubt as to whether, in any case, a purchaser from a part of the heirs entitled to the estate will be protected as an innocent purchaser against the claims of other heirs who are not guilty of some act of estoppel or want of care calculated to mislead a purchaser, although the utmost diligence has been exercised by such purchaser in ascertaining who are all the heirs. A purchaser who buys land from the heirs of the deceased owner is charged with notice of all the heirs of the deceased. Root v. Baldwin (1899) Tex. Civ. App. —, 52 S. W. 586; Ferguson v. Kentucky Land & Live-Stock Co. (1894) Tex. Civ. App., 25 S. W. 1074.

In Cook v. Caswell (1891) 81 Tex. 678, 17 S. W. 385, an heir's interest in the real estate of his ancestors was protected, notwithstanding subsequent conveyances to different persons by the other heirs, where by a duly recorded decree in a partition proceeding it appeared who the actual heirs were when the land in question was

assigned to the ancestor of the claimant.

In McCoy v. Cunningham (1901) 27 Tex. Civ. App. 476, 65 S. W. 1084, it is held that where, in a chain of title upon which a subsequent owner of land must rely for his title, there is a deed from the children of the owner, conveying to him their interest in the land as heirs of the owner's deceased wife, the property being community property, any subsequent vendee is put upon inquiry as to the interest of each of the deceased wife's surviving heirs, and as to whether or not they all joined in the conveyance, and where one of them did not so join in the conveyance, the grantee cannot claim to hold the land as against her interest.

See, upon this point, Scripture v. Copp (1900) Tex. Civ. App. —, 57 S. W. 603, holding that the facts charged the vendee of land with notice that children of the wife of the vendor had an heirship interest in the land, on the ground that it was community property.

A conveyance in a chain of title by a married man is notice to subsequent purchasers of the property that the land was community property, and is sufficient to put them upon inquiry as to the death of the wife and existence of her heirs. Hardy Oil Co. v. Burnham (1909) 58 Tex. Civ. App. 285, 124 S. W. 221. And see same case, subsequent appeal, in (1912) Tex. Civ. App., 147 S. W. 330, which is affirmed in (1917) 108 Tex. 555, 195 S. W. 1139.

In J. M. Guffey Petroleum Co. v. Hook (1907) 47 Tex. Civ. App. 560, 106 S. W. 690, it is held that an instrument of adoption duly executed and filed for record in a proper office, with intent that the clerk should record it, is notice to a subsequent purchaser of the land from the heirs of the adoptive parent, of the heirship of such child, and he takes the land subject to this heirship interest.

The rule that the interest of an heir in the land of his ancestor cannot be affected by any conveyance of the other heirs has been recognized by the courts where the matter has been presented in other aspects.

Thus, in Gates v. McWilliams (1837) 6 Dana (Ky.) 42, the title was held to be defective notwithstanding in the chain of title there was a decree of title against certain persons described as the heirs at law of the record owner. The court said that the decree against such persons as heirs was no better evidence of their being the heirs than a mere deed executed by them. Extrinsic proof of their title would be as necessary in the one case as in the other.

In recognition of this rule, it has been held that where after-born children have a contingent interest in real estate under a certain construction of a deed thereof, and there is no one in being, at the time of a suit to reform the deed, having a common interest with the infants in sustaining such construction of the deed, a decree reforming the deed and cutting off the rights of the infants is not binding as to them, and hence where title rests upon the validity of such a decree it is defective. Downey v. Seib (1906) 185 N. Y. 427, 8 L.R.A. (N.S.) 49, 113 Am. St. Rep. 926, 78 N. E. 66.

So, in Richman v. Standard Oil Co. (1924) 95 N. J. Eq. 745, 123 Atl. 608, title to land was held to be defective where an infant's interest in the estate was sold by order of court, the infant's interest, however, being dependent upon a will by the terms of which it was uncertain to whom the property might ultimately fall, and hence the sale would not cut off their

rights if the land ultimately came to them.

Upon this point, see McArthur v. Scott (1885) 113 U. S. 340, 28 L. ed. 1015, 5 Sup. Ct. Rep. 652, where afterborn remaindermen were allowed to enforce a trust in lands devised by their grandfather under a will which adjudged void in an action brought and decided before their birth, the judgment being invalid upon the ground that there were no parties in being interested in sustaining the trust, but all being interested in destroying it.

was

In Calhoun v. Moore (1906) 79 Ark. 109, 94 S. W. 931, the purchaser of land from the widow of a deceased owner was denied the right to hold the land as against the interest of the children of the deceased, although he purchased it relying upon an invalid order of the probate court assigning the land to the widow. The judgment was in favor of both the minor and adult heirs of the deceased, adverse possession as to the latter not having been established.

In Stokes v. Hyde (1897) 14 App. Div. 530, 44 N. Y. Supp. 132, where life tenants of property undertook to cut off a contingent interest of minor children by conveying the property to a third person, who thereafter conveyed an absolute title to them, the title which they thereafter joined in conveying to a third person was held not to be valid as against the contingent interest of such minor children. A. G. S.

Messrs. Sewall & Waldron for plain

tiff.

Mr. George T. Hughes, for defendant:

Defendant's power as to rates was confined to the right to adopt reasonable rates, and to serve the public without discrimination, and the public, having notice from the filed schedules as to the terms upon which service would be rendered, has the right to adopt the means of securing service that may best suit its purposes.

Texas & P. R. Co. v. Mugg, 202 U. S. 242, 50 L. ed. 1011, 26 Sup. Ct. Rep. 628; Gulf, C. & S. F. R. Co. v. Hefley, 158 U. S. 98, 39 L. ed. 910, 15 Sup. Ct. Rep. 802; Armour Packing Co. v. United States, 209 U. S. 81, 52 L. ed. 694, 28 Sup. Ct. Rep. 428; Schenberger v. Union P. R. Co. 84 Kan. 79, 33 L.R.A. (N.S.) 391, 113 Pac. 433; Boston & M. R. Co. v. Great Falls Mfg. Co. 79 N. H. 467, 111 Atl. 691.

In the absence of misrepresentation. or fraud by the seller, he incurs no liability to the purchaser.

Page v. Parker, 43 N. H. 368, 80 Am. Dec. 172, 6 Mor. Min. Rep. 544; Stewart v. Emerson, 52 N. H. 315; Hall v. Butterfield, 59 N. H. 354, 47 Am. Rep. 209; Conway Nat. Bank v. Pease, 76 N. H. 326, 82 Atl. 1068; Sleeper v. Smith, 77 N. H. 339, 91 Atl. 866; Peerless Casualty Co. v. Howard, 77 N. H. 357, 92 Atl. 165; Cotton v.

Stevens, 79 N. H. 228, 107 Atl. 602; Barrett v. New England Teleph. & Teleg. Co. 80 N. H. 355, 23 A.L.R. 947, 117 Atl. 264.

Young, J., delivered the opinion of the court:

As the ruling excepted to is understood, the court held that it is the duty of a public service corporation, at the time a customer applies to it for service, to use reasonable means to enable him to understand what he must do to use electricity economically. Is that the law?

The duty, and the only duty, in so far as the question we are considering is concerned, which the law imposes on a public service corporation, in addition to those it imposes on an individual engaged in selling goods or services, is that prescribed by Laws 1911, chap. 164, § 7, in respect to making and publishing its rates and charges, and the court has found that the defendant had complied with the provisions of that sec tion at the time the plaintiff became one of its customers.

The test, therefore, to determine the validity of the defendant's exception, is to inquire whether the common law makes it the duty of an

that a public utility may, under some circumstances, owe some such duty to customers.

Should

Thus, the Missouri public service commission, in issuing orders to an electrical utility corporation, has ruled: "Where more than one rate schedule is in effect by a utility as applicable to the service of a certain prospective consumer, the principle of fairness intended to be preserved and promoted by our statute would suggest that such consumer should be given every reasonable assistance by representatives of the utility in selecting that schedule which will obviously result in the lowest total annual cost of service to the consumer. conditions be such that it is impossible to determine accurately which schedule offers a distinct advantage to the consumer without a reasonable trial, the consumer should be served under the schedule which appears to be the most advantageous for a sufficient length of time to obtain assurance as to the most advantageous schedule under the customer's condition of use, connected load, etc. . . . The utility should make it a regular practice to check each consumer's bills with assessed or measured demand conditions as often as practicable, and determine accurately whether the consumer is being furnished under the most advantageous schedule then in force and effect. . . . It is quite difficult to exaggerate the importance of the practice by utilities of giving consumers detailed and accurate information and advice in the original selection of the most advantageous rate and any changes consumer may desire or the utility may deem advantageous to the consumer thereafter." Oliver Chilled Plow Works v. Union Electric Light & P. Co. (1915) 2 Mo. P. S. C. R. 656, P.U.R.1916B, 645.

For the purpose of enlightening prepayment meter consumers as to more economical service to be obtained by changing to standard meters, the Illinois commission has ordered the distribution, to all such consumers using more than 1,000 cubic feet of gas a month, of a printed circular setting

forth the financial disadvantages of such meters. Winnetka v. North Shore Gas Co. (1916; Ill.) P.U.R.1917B, 793. And in Rothschild v. Commonwealth Edison Co. (1918; IIL) P.U.R.1919B, 27, after stating that in previous orders it had indicated "its belief that the utility has a duty toward its consumers to see that they are notified of the proper methods for utilizing its energy," the commission added: "Having notified the consumer, however, the duty of the utility may reasonably be expected to be discharged, providing that, in its general survey of conditions from time to time thereafter, conditions which offer opportunity for saving to the consumer might well be again called to his attention."

But in Hydrox v. Commonwealth Edison Co. (1924; Ill.) P.U.R.1924C, 342, the Illinois commission declared: "To hold the utility responsible for notifying all its consumers of the most advantageous rate and for following up matters to see that such rates are taken advantage of would be practically to guarantee that a consumer would be furnished service under the most favorable rate conditions. The utility should offer its advice in assisting the consumer to get a proper rate, but the choice of the optional rate must finally rest with the consumer." And in B. A. Railton & Co. v. Commonwealth Edison Co. (1924; Ill.) P.U.R.1924E, 161, dismissing a complaint in which a customer sought reparation for an alleged discrimination in not being, like others, advised regarding more favorable rates, and also the refund of the difference between the amount paid for a year at higher rates and what he would have been charged at the lower rates, the commission considered that a utility is not obliged to see that a customer is at all times on the most favorable rate, in view of the failure to allege noncompliance with a statutory requirement as to having its rate schedules available for inspection, of a showing that its practice was, in cases brought to its attention, to advise customers as to the most economical rates, and of the fact that the circumstances as to the con