as at law. The value of the im-]
provements constitutes an equit
able lien upon the premises, which
alone entitles the the party to re-
lief in equity.
Conover v. Smith,
2. If the lessee covenant for him and
his assigns, that they will make a
new wall upon a part of the thing
demised, it shall bind the as-
signee. But if the thing to be
done, be merely collateral to
the land, and doth not touch or See
concern the thing demised in any
sort, the assignee shall not be
charged, though he be named in
the covenant. The covenant is a
mere personal covenant not affect-
ing the land demised.
Ib.
3. A covenant by the lessor to pay
his lessee the value of machinery,
fixtures, and other necessary im- 1.
provements, authorized to be sub-
stituted in the place of those al-
ready in the buildings at the time
of the lease, enures to the benefit of
the assignee of the lessee, though
the word " assigns" be omitted.
Such improvements constitute an
equitable lien upon the premises.
which can be enforced only in this
MARSHALING OF ASSETS, 2, 6..
See TRUST AND TRUSTEE, 10.
APPROPRIATION OF PROCEEDS OF
SALE, 1.
EVIDENCE, 19, 20.
PLEADING, 5.
PRACTICE, 23, 26, 30.
By a deed of bargain and sale in
the usual form, an estate was con-
veyed to the grantees, in trust to
permit the grantor and his family,
and the father of the grantor, dur-
ing their lives respectively, to en-
joy the estate. and to take the rents
and profits, and after their death,
in trust to convey the premises to
the son of the grantor, and "to such
other lawful issue as the grantor
may then have living, share and
share alike, in fee simple, as soon
as he or they arrive at age." Held—
First. That the legal estate, by force
of this conveyance, was
trustees.
See PLEADING, 6.
PRACTICE, 10, 21, 33.
See ADMINISTRATION, 4.
PARTNERSHIP, 3.
1. Query. Whether desertion would
be a valid plea to a bill for divorce,
on the ground of adultery. But,
admitting that it would, it is neces-
sary that such desertion should ex-
ist for the uninterrupted period of
three years. Adams v. Adams, 324
Where, upon a bill for divorce, on
the ground of adultery, the direct
evidence, though insufficient of it-
self to support the charge, is sus-
tained by the proved habits and
character of the accused, as well
as the strong probability of cor-
roborative facts, the complainant
is entitled to a decree.
2. A devise to the widow, of an es
tate called Bellegrove, and the fur-
niture, household goods, silver,
books, paintings, statuary, and
other works in the fine arts, there!
or elsewhere, during her natural|
life and widowhood, held to entitle 3.
her to use the goods, &c., in her
own or other person's house, or to
let them out to hire, and that the
estate in the land did not ceasel
upon her failing to reside at Belle-
grove. Kearney v. Executor of
Kearney,
3. Held also, that the tenant for life,
in such case, was only bound to
make such repairs as should be
necessary to prevent waste; and 4.
that if an insurance was consid-
ered desirable, the tenant for life
and remainder-man must insure
their respective interest, as may be
deemed most advisable.
Ib.
4. The court declined to make any
order respecting the payment of
the taxes assessed, or to be assessed,
on the property.
Ib.
See BONA FIDE PURCHASER.
MARSHALING OF ASSETS, 2.
Upon a bill for divorce, on the
ground of adultery, the confessions
of the defendant, made under cir-
cumstances which exclude all sus-
picion of an attempt to fabricate
evidence, and of any collusion be-
tween the parties to the suit, and
sustained by facts irreconcilable
with his innocence, will entitle the
complainant to a decree. Jones v.
Jones,
351
Upon a bill for divorce, on the
ground of adultery, the complain-
ant must not only show a decided
preponderance of evidence in sup-
port of the charge, but must prove
it to the satisfaction of the court,
beyond a reasonable doubt. Berck-
máns v. Berckmans,
453
note or acceptance by the donor
to the donee, will not constitute a
donatio mortis causa. It is other-
wise with the gift of a note, ac- 2.
ceptance, or bond of a third party,
which may pass by endorsement or
delivery.
particeps criminis, should be re-
garded as decisive in a case of
doubt. Reid v. Reid,
101
Testimony touching reputation,
founded on opinions expressed post
litem motam, is incompetent. Ib.
Ib. 3. A stranger sent by a party to the
neighborhood of a witness to learn
his character, will not be permit-
ted to testify as to the result of his
inquiries.
1. An injunction will not lie by a 4. Where the evidence is conflicting,
the extreme improbability of the
fact alleged must be decisive of the
controversy. Brewer v. Wilson, 180
Under the proviso of the act of
1859, (Nix. Dig. 928, % 31,) if
either of the parties die before the
testimony on either side is taken,
the evidence of the survivor is in-
admissible. Lanning v. Adminis-
trator of Lanning,
228
But by the act of 1851, (Nix. Dig.
223, 27) the complainant in any
action of an equitable nature, is a
competent witness to disprove so
much of the defendant's answer as
may be responsive to the allega-
tions of the bill, even after the
death of the defendant. The act
of 1859 does not repeal this pro-
vision.
7. The enacting clause of the act of
1859 was designed to authorize the
examination of parties to the re-
cord, in cases in which their evi-
dence was not previously admissi-
ble. The operation of the proviso
must be limited to the cases in
which the parties were rendered
competent by the enacting clause.
Ib.
Ib. 8. It is not necessary that the return
1. To justify a decree for divorce, on
the ground of adultery, the evi-
dence of the defendant's guilt must
be clear and satisfactory. A full
and explicit denial of the charge
by the defendant, and his alleged
should show that the officer before
whom the commissioner was sworn,
was duly authorized to administer
an oath in the state where the com-
mission was executed, All that
the court requires is competent
evidence of the authority of the
officer to administer the oath. Law-
rence v. Finch,
231
9. It is no objection to the evidence
of a non-resident witness, taken
by virtue of a commission, that the
witness is dead.
Ib.
10. An oath by a commissioner to
take depositions in a foreign state,
"truly, faithfully, and without
partiality, to take the examina-
tions and depositions, &c.," is a ma-
terial departure from the require-
ments of the statute, and the testi
mony taken before such commis-
sioner is inadmissible.
11. Duties of commissioners defined.
Ib.
the same rules as would have been
applicable to a conveyance made
in conformity to it. Weehawken
Ferry Co. v. Sisson,
Ib. 20. When a final decree in Chancery
is complete in itself, its language
being intelligible, the bill and an-
12. It is necessary to the admissibility swer cannot be read for the purpose
of testimony taken before a com of limiting its force and controlling
missioner, to show that all the re- its legal effect.
Ib.
quirements of the statute have been 21. A grantor or mortgagor cannot
complied with.
Ib. prove by parol, that his deed or
13. A written agreement cannot be mortgage was made in trust for the
altered by cotemporaneous parol
use and benefit of himself; such
In such cases, the instrument itself proof would be in contravention
is the repository of the intention of the statute of frauds. Whyte v.
of the parties, and the only compe-
Arthur,
tent evidence of what their inten-
tion was. Huffman v. Hummer, 269
14. The rule of evidence, that hus-
bands and wives cannot be wit-
nesses for, or against each other, is
independent of the question of in-
terest. A husband cannot be a wit-1
ness for his wife, even in a question
touching only her separate estate.
Marshman v. Conklin,
15. A husband is not a competent
witness in a cause in which his wife
is a party. Staats v. Bergen, 297
16. Witnesses of questionable charac-
ter are to be relied on, in any judi-
cial proceeding, only so far as their
testimony is intrinsically probable,|
521
22. If the answer denies the trust,
such trust must be proved by legal
and competent testimony, though
the answer does not set up the
statute of frauds as a defence to
the alleged trust.
Ib.
See CONTRACT, 8.
HUSBAND AND WIFE, 3, 7.
PLEADING, 9.
or is corroborated by circumstan- An exception to a charge allowed
ces. Adams v. Adams,
17. The loss of an instrument upon
which a party seeks to recover,
may be proved by presumptive
evidence Proof that the paper can-
not be found, due diligence having
been used in searching for it, is
sufficient to raise the presumption
of loss, and let in evidence of its
contents. Clark v. Hornbeck, 430
18. All that the law requires as a
ground for the admission of second-
ary evidence, is a reasonable assu-
by the Orphans Court not sustained,
where, in the opinion of this court,
an allowance of a part of the sum
was warranted, but the prepon-
derance of the evidence is not so
decisive as to require a modifica-
tion of the decree, Executors of
Egerton v. Egerton,
419
rance that evidence of a higher na- Where the complainant in execution
ture is not withheld or suppressed
by the party offering it.
19. By force of the statute, (Nix. Dig.
102, 56,) a decree directing a con-
veyance to be made, vests the estate,
so that the rights of the parties, in
case of a variance between the
terms of the decree and of the con-l
veyance, must depend upon the
has become the purchaser of mort-
gaged premises, at a sum less than
the amount due upon the execution,
the sale will not be opened and a
re-sale ordered, unless the petition-
er will undertake, upon the re-sale,
to bid the amount due upon the
execution. Hazard v. Hodges, 123
former rather than upon the latter. See APPROPRIATION OF PROCEEDS OF
Such a decree must be construed by'
2. An executor will not be allowed a
charge against the estate, for servi-
it manifestly appears from the des-
cription and terms of the instru-
ment, that such was the intention
of the parties. Potts v. New Jersey
Arms and Ordnance Co.,
396
ces rendered in the lifetime of the A conveyance, in view of future in-
testator, where the services ren-
dered by the parties were mutually
beneficial, and it is apparent that
no pecuniary remuneration was ex-
pected or intended.
Ib.
3. It is the duty of an executor, not
only to exhibit his account for al-
lowance, but to use diligence in
bringing it to a final settlement. Ib.
4. Decree of the Orphans Court charg-
ing the executors, individually,
debtedness, and with an intent to
place the property beyond the
reach of creditors, is fraudulent as
against creditors, and will be set
aside. Cramer v. Reford,
See HUSBAND AND WIFE, 5.
with the costs of suit, where they To constitute a perfect gift, the donor
have permitted great and unwar-
rantable delay in the final settle-
ment of their account, approved.
Ib.
5. An executor will be charged in his
account with the amount of a note
against himself, set down in the in-
ventory, and alleged to have been
lost or destroyed by the testator in
his lifetime, where the existence,
amount, and loss of the note are
satisfactorily proved, and where
there are no circumstances sufficient
to raise the presumption that the
note was intentionally destroyed
must part with the possession and
dominion of his property. And if
the thing given be a chose in action,
the law requires an assignment, or
some equivalent instrument, and
the transfer must be actually exe-
cuted. Dilts v. Stevenson, 408
See HUSBAND AND WIFE, 7.
INVENTORY, 3.
by the testator. Clark v. Hornbeck, 1. Where it is clearly the intention of
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