In favor of meritorious claimants and innocent purchasers the presumption is in favor of a valid exercise of the power: Wilburn vs. Spofford, 4 Sneed 704.

SEC. 38. When bill to set aside sale will not lie-Bill to redeem.— It was held in Goldsmith vs. Osborne, 1 Edw. Ch. 560, followed by Schwarz vs. Sears, Walk. Ch. 170, that a mortgagor cannot maintain a bill to have the sale set aside and the property resold, although the mortgagee may have abused the power to sell and bought in the property himself. Both cases hold that his only remedy is a bill to redeem, offering to pay any amount found or admitted to be due.1

SEC. 39. When equity will restrain sale-General principles— Infants-Special circumstances-Disputed debt or title.-Generally what would be good ground for setting aside a sale will be good ground to restrain a sale. The powers and duty of the trustee having been so fully set forth, as well also the reasons for which sales will be set aside, it need only be remarked that if the trustee or creditor is acting in bad faith or transcending his power, equity will enjoin. Indeed some of the courts have held that technical or formal defects not involving substantial equities will not be regarded if the debtor has stood by and made no attempt to arrest the sale: Doolittle vs. Lewis, 7 Johns. Ch. 45, 50; 10 Johns. 185, 196.

In favor of an infant heir, Chancellor KENT directed the sale to be made under the direction of a master and further notice to be given: Van Bergen vs. Demarest, 4 Johns. Ch. 37.

Generally no injunction will issue if trustee is only exercising in a fair manner his legal rights: York, &c., R. R. Co. vs. Myers, 41 Maine 109. Yet Chancellors under special circumstances, where no damage would be done to the creditor and where otherwise great loss would ensue to the debtor, have indulged the latter

1 We should doubt the entire correctness of these decisions. It is doubtless true that the debtor would have no right to file a bill to have the property sold or resold. But why should a bill not lie to set aside an improper and fraudulent sale, leaving the creditor the right to make a new sale or file cross-bill to foreclose? If not set aside, his grantee for value and bona fide would hold. See very similar case of Driver vs. Fortner, 5 Port. (Ala.) 9, where the court set aside the sale. The books abound in cases where sales have been set aside.

with an injunction for a short, limited period. Thus in Platt vs. McClure, 3 Wood. & Min. 151, a temporary writ was granted allowing reasonable time to raise the money where the plaintiff, belonging to another state, bought the premises subject to certain mortgages, not recorded, in ignorance that they contained powers of sale.

Approving the remark of Lord ELDON, that it is the duty of the trustee "to bring the estate to the hammer under every possible advantage," the courts hold that it is the duty of the trustee to refuse to sell while clouds are hanging over or disputes concerning the title exist, which would prevent a sale at the full or fair value of the property. If the trustee fails thus to do his duty equity will enjoin, or in a proper case set aside his sale. This relief will be afforded to any person injured-the debtor or his assigns, a creditor or subsequent incumbrancers. Applying these principles, if the trustor has only an equitable title, but is entitled to the legal title, the trustee should not sell before getting in the latter title. And it is even held that in case of a disputed title equity will enjoin, even if the state of the title was known to all the parties when the trust deed was executed. So the trustee should not sell and will be enjoined if the debt is unliquidated and disputed, but in this case if anything is admitted to be due the debtor applying for the writ must tender or bring the admitted amount into court. The amount due should be definitely fixed before sale, otherwise the creditor must file bill. As authority for the foregoing, see Lane vs. Tidball, 1 Gil. (Va.) 130; Johnson vs. Eason, 3 Ired. (Eq.) 330; Gibson vs. Jones, 5 Leigh 370 (amount of debt disputed); Rossett vs. Fisher, 11 Gratt. 499 and cases; James vs. Gibbs, 1 Patt. & Heath 277; Hunt vs. Bass, 2 Dev. (Eq.) 292; Fisher vs. Bassett, 9 Leigh 119; Miller vs. Argyle, 5 Leigh 460; Gay vs. Hancock, 1 Rand. 72; Ord vs. Noel, 5 Mad. 440; 2 Rob. (Va.) 1; Wilkins vs. Gordon, 10 Leigh 547, where the trust deed was to secure a debt "in and about $2000," and the Court held that the amount should be precisely ascertained before sale; Peck vs. Peck, 9 Yerg. 301; Cole vs. Savage, Clark (N. Y.) R. 361.

On similar grounds, equity will temporarily enjoin, if thereby

new and further litigation will be avoided: 16 Vesey 267. But a sale will not be stayed until the different owners of the equity of redemption shall settle what amount or proportion each is to contribute. They must pay the whole debt, and adjust their rights afterwards. Yet, in a proper case, the Court will direct the order of sale of the various parcels: Brinckerhoff vs. Lansing, 4 Johns. Ch. 65; 1 Id. 447, 425.

If the whole debt is contested on the ground of usury, equity will enjoin until its validity is established: Marks vs. Morris, 2 Munf. 407. If any amount is admitted to be due by the bill asking for an injunction, it must be tendered before the writ will be granted: Sloan vs. Coolbaugh, 10 Iowa 30; 7 Id. 33; 11 Id. 242.

SEC. 40. Surplus-To whom distributed-Rights of debtor and lien-holders.—Contests about the surplus remaining after a sale are of frequent occurrence. Space does not allow an extended discussion. We indicate some of the more important principles, referring to the authorities cited for their application and illustration.

As a sale on a second deed of trust does not exonerate the property from the lien of the first, any surplus from a sale on the second deed will be applied in payment of the third, and not of the first: Helweg vs. Heitcamp, 20 Mo. 569.

If there are no subsequent liens, the surplus belongs to the grantor or his assigns: Goulden vs. Buckelew, 4 Cal. 107; Pierce vs. Robinson, 13 Id. 116; see also cases cited infra. In this country the surplus goes to the heirs, and is assets: 1 Johns. Ch. 119. Representing the equity of redemption, the widow is dowable in it: Hinchman vs. Stites, 1 Stockt. 454. The debtor may assign this surplus, but not so as to defeat liens on the land existing at the time of the assignment: Doniphan vs. Paxton, 19 Mo. 288; Palmer vs. Yarborough, 1 Ired. (Eq.) 310.

Judgments, in most of the States (supra, sec. 11, and note), are liens upon the residuary interest of the trustor, subject to the in

1 In a recent case in Illinois, the Supreme Court, after holding that judgments were liens on the grantor's equity of redemption, decided that the general executor of the debtor was entitled to the surplus in preference to the judgmentcreditors: Pahlman vs. Shumway, 24 Ill. 127. With great deference it is submitted that this conclusion is untenable.

cumbrance of the deed of trust. And sales under the latter cut off the former.

Although the decisions are not in full accord, the weight of authority and the better opinion will warrant the following propositions that to entitle the judgment-creditor to a lien on or to follow the surplus, his judgment or execution must be a lien on the premises; if thus a lien, he has a right to follow the surplus, and this right cannot be destroyed or postponed by levy or garnishment on behalf of a subsequent judgment-creditor; but the surplus will be distributed in the order of the liens, whether by judgment or mort gage, on the land out of which it arose: Bodine vs. Moore, 18 N. Y. 347; Calkins vs. Isbell, 20 Id. 152; White vs. Watkins, 23 Mo. 429; Doniphan vs. Paxton, 19 Id. 288; Kennedy vs. Hamnond, 16 Id. 341; Cook vs. Dillon, 9 Iowa 407; Pahlman vs. Shumway, 24 Ill. 127; Presnell vs. Landers, 5 Ired. (Eq.) 251; Harrison vs. Battle, 1 Dev. (Eq.) 541; 31 Miss. 128; 1 Ired. (Eq.) 310; Chase vs. Parker, 14 Iowa (not yet reported); Bartlett vs. Gage, 4 Paige 503; 1 Id. 181, 558, 635; Averill vs. Loucks, 6 Barb. S. C. R. 470; Eddy vs. Smith, 13 Wend. 488; Waller vs. Harris, 7 Paige 167; s. c., 20 Wend. 555. If there are no such liens, and it has not been assigned, it may, of course, be attached, garnisheed, or otherwise reached in the hands of the trustee as the debtor's: Heam vs. Crutcher, 4 Yerg. 461; Hill on Trust. 344, note and cases.

It is stated, arguendo, in Cook vs. Dillon, supra, that the trustee is not bound to take notice of or search for subsequent judgments or liens, and that if such lien-holders do not notify him of their rights. he will be without fault and without liability, if he pays the surplus over to the creator of the trust.

Davenport, Iowa.

J. F. D.

RECENT AMERICAN DECISIONS.

Supreme Court of Maine.

ELI F. LITTLEFIELD vs. INHABITANTS OF BROOKS.

A domicil once acquired continues till a new one is gained. While in transit the old domicil remains.

An inhabitant of A. on 30th March leaves that place with the intention of residing in C.; on 1st April he arrives at B. and the next day reaches C., where he establishes his residence. It was held, that for the purposes of taxation he was to be deemed an inhabitant of A. on 1st April, and was liable to taxation there.

Exception to the ruling of APPLEton, J.

This was assumpsit in which the plaintiff claims to recover the amount paid to the collector of the defendant town as taxes-the payment of which he contests, on the ground that he was not an inhabitant thereof.

The only question raised is his liability to taxation as an inhabitant of the defendant town.

It appeared that in March, 1860, the plaintiff was an inhabitant of Brooks; that on the 30th of March he formed the intention of leaving that town as his place of residence; that he accordingly left that day and went to Monroe; that on the 1st April he proceeded to Bangor, where he spent the night, and on the 2d of April reached Oldtown, at which place it was his intention to make his residence when he left Brooks.

On these facts the presiding judge decided that for the purposes of taxation the plaintiff was an inhabitant of Brooks, and was there legally taxed, and thereupon ordered a nonsuit-to which the plaintiff filed exceptions.

G. P. Sewall, for plaintiff.

Blake & Garnsey, for defendants.

APPLETON, C. J.-By R. S. 1857, ch. 6, sec. 1, it is provided that "a poll-tax shall be assessed upon every male inhabitant of this State above the age of twenty-one years, whether a citizen of