ABSTRACTS OF RECENT AMERICAN DECISIONS.

SUPREME COURT OF NEW YORK.1

Vendor and Purchaser-Will-Judgment, Lien of-Constructive No tice-Ejectment-Sheriff's Deed.-From the time of making a contract for the sale of land, and more especially if the vendee enters into posses sion, and makes improvements on the premises, the vendor, as to the land, becomes a trustee for the vendee, and the vendee, as to the purchasemoney, a trustee for the vendor. And until payment, the vendor has a

mere lien on the land, for the purchase-money: Smith vs. Gage.

The interest of the vendor, in such a contract, is not real estate, but only personal estate; and in case of the vendor's death, the unpaid purchase-money is treated as only personal estate, and goes, not to his heirs, but to his personal representatives: Id.

Where a vendor, who had executed various contracts for the sale of land in a certain tract, devised to his son J. L. all his lands in that tract, and also all contracts that had been entered into for the sale of any of said lands, and all moneys which might remain due and unpaid thereon, upon the purchasers' complying with the terms thereof, Held, that it was the intention of the testator to give to J. L. the moneys remaining unpaid upon the land contracts, as money, and not to devise to him the title to the lands, which was in the purchasers: Id.

A judgment against the holder of the legal title of lands sold by ar executory contract is not, under all circumstances, a lien to the extent of the purchase-money unpaid at the time of its being docketed: Id.

Such lien, if any, is always subject to the equitable rights of the party in the occupation of the lands, under a prior contract to purchase the same from the legal owner: Id.

And payments made by the purchaser, to the vendor or his assignee or devisee or personal representative, after the docketing of such judgment, but without actual notice thereof, and even after the sale, and the execu tion of the sheriff's deed, are as valid, against the grantee of the sheriff, as if made before the docketing of the judgment: Id.

What is known in law as constructive notice-such as the docketing of the judgment, the sheriff's certificate of sale, and the recording of the

1 From the Hon. O. L. Barbour, Reporter; to appear in the 38th volume of his Reports.

purchaser's deed-is not notice to a purchaser of the executory contract, from the vendee: ld.

Whatever may be the equitable rights of a party in the occupation of lands held under a prior executory contract, they have preference over the lien of a subsequently acquired or subsequently docketed judg ment: Id.

Where a judgment is recovered against the vendor in an executory contract for the sale of land, and the vendee subsequently pays to the vendor the balance of the purchase-money, without actual notice of the judgment, he will be protected, and the judgment will not be a lien upon the unpaid purchase-money, as against him: Id.

The possession of the vendee, under his contract as purchaser, is notice to all persons who may subsequently become interested, in any way, in the premises, not only of his possession, but of the terms of the contract, and of all his existing rights under it: Id.

A subsequent judgment-creditor of the vendor is chargeable with notice of the vendee's rights, and is therefore bound, in order to secure his lien, to use all diligence in giving notice to the vendee, and in restraining him from making any further payments on his executory contract: Id.

Ejectment is a legal action, in which the plaintiff can succeed only by making out a legal title in himself, in the pursuit of a legal remedy. If the equitable title is in the defendant, and the only right the plaintiff can claim is that of an equitable lien upon an equitable title, he must fail: Id. A sheriff's deed need not contain a recital of the particular execution by virtue of which he sells real estate: Id.

Recording of Deeds-Memorandum of Alterations.—It is the duty of a county clerk to record the memorandum of alterations and interlineations in a deed; and it is not erroneous for a judge to charge the jury that the absence of any such memorandum, in the record, is a circumstance for their consideration in connection with the question of an alleged fraudulent insertion in the deed: Heyer vs. Heyer.

Guaranty. A guaranty of collection implies that a note or other evidence of debt is good, or good and collectable against the principal debtors; and this means collectable by due course of law: Cady et al., Ex'rs., vs. Sheldon et al.

Ordinarily, to test that question, it is necessary that the customary legal proceedings should be resorted to: Id.

Yet it is not absolutely indispensable that legal proceedings should be resorted to, if it otherwise satisfactorily appears that such proceedings would be entirely ineffectual: Id.

When a mortgage is given, as collateral to the bond guarantied, it is not indispensable that the holders of the bond should seek satisfaction out of the mortgaged premises, by a foreclosure, if it appears that that remedy would have proved fruitless: Id.

Breach of Promise to Marry; Action for; Evidence in.—In an action by a female to recover damages for a breach of a contract to marry, the judge allowed the plaintiff, after she had testified, without objection, to the defendant's promise that she should not be any the worse for him, nor come to any disgrace by him, and if she did he would marry her, to testify that she was pregnant by defendant at the time he abandoned her. Held, that the evidence was properly received: Hotchkins vs. Hodge. A wrong done to the female, such as sexual intercourse with her, by her alleged suitor, will not make a promise to marry, founded thereon, or arising therefrom, invalid or inoperative. Such a promise is not liable to the objection that it encourages immorality: Id.

It is not indispensable that a promise to marry should be express. It may be implied from circumstances; and it may rest partly on both; that is, on express words, and on conduct and acts reasonably leading to the same conclusion: Id.

Long-bestowed and particular attentions, having apparently an honorable object, furnish sufficient evidence from which the jury may imply a promise of marriage: Id.

Principal and Agent.-Where an agent is prosecuted, and a judgment obtained against him, for an act done in obedience to instructions from his principal, such act being done in good faith and under the belief that the instructions were reasonable and the act lawful, he is entitled to reimbursement from his principal, for all the damages he has sustained: Howe vs. The Buffalo, New York and Erie Railroad Company.

And it is immaterial whether the act for which the recovery was had, against the agent, was in fact lawful or unlawful; the instructions being, in either case, the proximate cause of action and recovery: Id.

The settlement of the judgment, by the agent, after he has been charged execution, by giving his note for the amount, is a good payment of the judgment: Id.

If the agent is charged in execution upon the judgment recovered

against him, this is the highest satisfaction known to the law: and is equivalent to an actual payment by him, in money, of the judgment, for the purpose of charging his principal with the liability for full reimbursement: Id.

Agreement. The plaintiff agreed to deliver to defendants a force-pump, for $60, promising that if the defendants could not make it operate, he would take it away again; the defendants agreeing that if the plaintiff would send them such a pump, on trial, they would try it, after which, if they liked it, they would buy it. Held, that this was not a sale of the pump, but a conditional agreement to purchase it at a future time: McDonald vs. Pierson.

Held, also, that the defendants were bound to try the pump within a reasonable time; and that they having kept the same in their possession for nearly two years, without making any trial of its sufficiency, or showing any valid excuse for the neglect, the plaintiff was at liberty to treat the condition as waived, and was entitled to recover the stipulated price of the pamp: Id.

Held, further, that a trial of the identical pump was what the agreement required, and no other test was admissible. Hence the opinions of mechanics and experts, who had pronounced the pump insufficient to accomplish the purpose for which it was designed, furnished no excuse to the de fendants for omitting to make a trial thereof: Id.

Judgment-Evidence.-Where, in an action upon a judgment, the defendant, by his answer, puts in issue the existence of a regular, valid, and legal judgment, any evidence tending to show the judgment illegal or void is competent. Hence, a certified copy of the judgment record, showing that since the joining of the issue the judgment has been vacated, is admissible: Kinsey vs. Ford.

Guaranty Construction.—The cardinal rule in the construction of all instruments, guaranties included, is, "to read the writing," and, taking its language in connection with the relative position and general purpose of the parties, to gather from it, if you can, their intent in the questionable particular. If, thus considered, its language is equally susceptible of either of two reasonable interpretations, that is to be adopted which makes

From Hon. Samuel Ames, Reporter; to appear in the 4th volume of his Reports

most strongly against the maker of the instrument, or party using the au biguous words; and this rule, in application to guaranties, is quite compa tible with another, that no one can claim under a guaranty who does not bring himself fairly within its terms: Deblois vs. Earle.

Where the plaintiff, in an indenture of lease, by the words—“I agree to and with the said J. E. H. to lease to him"-leased to J. E. H. certain premises, and by the same phrase agreed in the same instrument, at the option of said J. E. H., to lease to him the premises for another year upor the same terms and conditions, at a certain rent, payable at a certain time named in the lease, and the defendant, by a covenant next following in the instrument the stipulation for another year, agreed, "that in case the said J. E. H. shall neglect or refuse to pay the aforesaid rent in manner aforesaid, I will pay the same within ten days thereafter," Held, that the defendant's guaranty applied to the second year's rent, as well as to the first: ld.

Mortgage in trust-Compensation of Mortgagee-Just Allowances-Misrepresentation in Conditions of Sales-Demurrer.—A mortgagee in trust, with a power of sale, may hold the mortgaged estate against the purchaser of the equity as charged with the expenses of a sale by such mortgagee attempted and discontinued in accordance with his trust and of obtaining necessary legal advice in the execution of the trust, under the head of just allowances; but, unless expressly stipulated in the mortgage, cannot hold it charged with any commissions or fees for his own services: Allen vs. Robbins.

Where the assignees of a mortgaged estate sold the equity, subject to the mortgage, at auction, and in the conditions of sale described the mortgage as amounting to a sum certain, for principal and interest, but in the same conditions allowed the purchaser ten days after the sale within which to examine the title, promising to cure any objection to it, or to annul the sale, and the purchaser long subsequent to the sale took from the assignees a quit-claim deed, without warranty, of their title to the estate, subject to the mortgage: Held, upon demurrer to a bill by the purchaser against the assignees, to compel them to pay in his discharge certain expenses of the mortgagee which formed just allowances to him under the mortgage, that, as the bill charged no fraud in the assignees in their said misrepre sentation, the above facts stated in it would not maintain a suit, either a law or in equity: Id.

Release under a Voluntary Assignment-Sunday.--The delivery of a