N. E. 656, holding fraud inferable from conveyance subject to secret trust, although for valuable consideration; Harting v. Jockers, 136 Ill. 632, 29 Am. St. Rep. 343, 27 N. E. 189, where sale was subject to secret trust for debtor; First National Bank v. Comford. + Dak. 172, in case of chattel mortgage subject to secret trust and continued possession of debtor, under Dakota code.

Cited, but not applied, in Cribb v. Bagley, 83 Ga. 114, 10 S. E. 197, holding fraud not inferable from sale with stipulation for employment of debtor in the business, if made in good faith. Distinguished in Tryon v. Flournoy, 80 Ala. 328, holding actual intent to defraud necessary to invalidate conveyance as against subsequent creditor. Departed from in Muchmore v. Budd, 53 N. J. L. 390, 391, 22 Atl. 522, 523, holding fraud a question of fact, not an inference of law, in case of sale with reservation. Criticised in Howe Machine Co. v. Claybourn, 6 Fed. 440, holding fraud a question of intent under Michigan statute, and sale with secret reservation valid as to bona fide purchaser.

Fraudulent conveyances.— An apparently absolute sale by a failing debtor, secretly reserving for himself right of possession or any substantial benefit, is a fraud upon creditors, placing beyond their reach the right of possession, and is, therefore, void, pp. 79, 80.

Cited and followed in In re Rainsford, 5 Nat. Bank. Reg. 389, 20 Fed. Cas. 192, holding deed in fraud of creditors void, although for pecuniary consideration; Dent v. Ferguson, 132 U. S. 68, 33 L. 248, 10 S. Ct. 19, a similar case; Page v. Francis, 97 Ala. 382, 11 So. 738, setting aside deed to creditors with secret reservation of rents for, and payment of expenses by, debtor; Birmingham, etc., Co. v. Roden, 110 Ala. 516, 55 Am. St. Rep. 37, 18 So. 136, holding chattel mortgage, subject to secret reservation of possession and sale, void against attaching creditor; Neubert v. Massman, 37 Fla. 98, 19 So. 627, where sale was subject to secret reservation of equity of redemption; Waples-Platter Co. v. Low, 54 Fed. 98, 10 U. S. App. 704, holding preferential assignment, reserving to debtor partial control over proceeds, void; McDowell v. Steele, 87 Ala. 497, 6 So. 288, holding mortgage to creditor, reserving right of possession, void; Pritchett v. Pollock, 82 Ala. 173, 2 So. 737, where deed was subject to secret pecuniary benefits to debtor; Campbell v. Hopkins, 87 Ala. 184, 6 So. 78, holding statement in assignment, omitting certain assets, void; Moore v. Wood, 100 Ill. 454, where sale of land was subject to secret trust for debtor; Gordon v. Reynolds, 114 Ill. 127, 28 N. E. 458, like last case; Bostwick v. Blake, 145 Ill. 89, 34 N. E. 38, where sale was subject to secret trust, although for valuable consideration; Macomber v. Peck, 39 Iowa, 354, like principal case; Rice v. Cunningham, 116 Mass. 469, where deed was not recorded for ten months, and debtor continued to occupy; Pursel v. Armstrong, 37 Mich. 331, sale subject to secret stipulation for support

of debtor; Scott v. Hartman, 26 N. J. Eq. 92, a similar case; Newell v. Wagness, 1 N. Dak. 69, 44 N. W. 1016, where bill of sale was subject to secret reservation; Sims v. Gaines, 64 Ala. 398, where instrument purporting to be deed was really mortgage, and occupation was secretly reserved to debtor; Levy v. Williams, 79 Ala. 179, where land was sold by failing debtor to raise funds for personal use, not for creditors.

Cited, but application denied, in Hunter v. Ferguson, 3 Colo. App. 293, 33 Pac. 84, where general assignment subject to no reservation was made, although with intent to protect surplus after sale; New v. Sailors, 114 Ind. 413, 5 Am. St. Rep. 636, 16 N. E. 611, where chattel mortgage openly stipulated that mortgagor retain possession and sell for mortgagee; Jordan v. Lendrum, 55 Iowa, 482, 8 N. W. 313, upholding retention of possession by vendor after sale under express Iowa statute. Distinguished in Huntley v. Kingman, 152 U. S. 533, 38 L. 543, 14 S. Ct. 691, holding trust deed openly reserving surplus after sale to debtor valid; Smith v. Craft, 123 U. S. 441, 31 L. 268, 8 S. Ct. 197, holding sale of goods to preferred creditor not invalid because of stipulation for employment of debtor to wind up business.

6 Wall. 80-83, 18 L. 725, WOOD v. STEELE.

Bills and notes. Material alteration of any commercial paper, without consent of party sought to be charged, extinguishes his liability, p. 82.

Cited and applied in Angle v. N. W. Ins. Co., 92 U. S. 341, 23 L. 560, where words of draft were altered; Glover v. Robbins, 49 Ala. 221, 20 Am. Rep. 273, holding payee's addition of words "interest at four per cent." material alteration; Toomer v. Rutland, 57 Ala. 385, 29 Am. Rep. 725, holding insertion of words importing negotiability, in non-negotiable paper, material alteration; Lehman v. Central, etc., R. R., 4 Woods, 565, 12 Fed. 597, where bill of lading was altered; Greenfield Bank v. Stowell, 123 Mass. 203, 25 Am. Rep. 73, and Bradley v. Mann, 37 Mich. 4, where interest clause was altered; Flanigan v. Phelps, 42 Minn. 187, 43 N. W. 1114, where co-maker altered note; United States Glass Co. v. West Virginia, etc., Bottle Co., 81 Fed. 995, extending rule to embrace any alteration, and holding sureties in bond released thereby; Organ v. Allison, 9 Baxt. 464, and Bowser v. Cole, 74 Tex. 224, 11 S. W. 1133, where mortgage was altered; Ruby v. Talbott, 5 N. Mex. 258, 21 Pac. 74, 3 L. R. A. 727, and n., holding indorsers discharged, although maker made alteration in good faith and at payee's request; McMurtrey v. Sparks, 71 Mo. App. 129, 130, where payee altered date of note. Cited generally in note, 10 Am. Dec. 270, 271, on definition of material alteration. Distinguished in Mersman v. Werges, 112 U. S. 141, 28 L. 642, 5 8. Ct. 66, holding addition of name as surety does not discharge

maker; Bank of Ohio, etc. v. Lockwood, 13 W. Va. 421, holding alteration after indorsement discharges indorsers, but not maker.

Bills and notes.- Materiality of an alteration of commercial paper is a question for the court, p. 83.

Cited and followed in Belfast Bank v. Harriman, 68 Me. 523. Cited in McMurtrey v. Sparks, 71 Mo. App. 130.

Bills and notes. Alteration of date of commercial paper, whether it hasten or delay time of payment, is material alteration, p. 82. Cited and applied in Marsh v. Griffin, 42 Iowa, 406, where date of payment of interest was altered; Britton v. Dierker, 46 Mo. 592, 2 Am. Rep. 554, an identical case; Hill v. O'Neil, 101 Ga. 835, 28 S. E. 997, where maker altered note; Ruby v. Talbott, 5 N. Mex. 258, 21 Pac. 74, 3 L. R. A. 727, and n., although payee and maker agreed to alteration, indorsers discharged; McMurtrey v. Sparks, 71 Mo. App. 129, 130, where payee altered date of note; McCormick Co. v. Lauber, 7 Kan. App. 731, 52 Pac. 577, holding maker released where date of payment was delayed by alteration. Cited in note in 10 Am. Dec. 270, 271, on definition of material alteration.

Bills and notes.- Material alteration of commercial paper, without consent of a surety thereon, discharges such surety, since a different agreement is thereby substituted, p. 82.

Cited and applied in Walsh v. Hunt, 120 Cal. 50, 52 Pac. 116, 39 L. R. A. 699, holding alteration of mortgage changes instrument and discharges maker; Swift v. Williams, 68 Md. 255, 11 Atl. 840, where check was altered; Citizens' National Bank v. Richmond, 121 Mass. 111, although alteration was discovered and remedied; Britton v. Dierker, 46 Mo. 592, 2 Am. Rep. 554, Organ v. Allison, 9 Baxt. 464, Hill v. O'Neil, 101 Ga. 835, 28 S. E. 997, and Board of Commrs. v. Gray, 61 Minn. 247, 63 N. W. 637, where bond was altered; Ruby v. Talbott, 5 N. Mex. 258, 21 Pac. 74, 3 L. R. A. 727, and n., holding Indorser discharged, although maker altered at payee's request; Newman v. King, 54 Ohio St. 278, 284, 56 Am. St. Rep. 706, 710, 43 N. E. 684, 686, 35 L. R. A. 472, 474, where date was altered; Blakey v. Johnson, 13 Bush, 203, 26 Am. Rep. 258, a similar case; McMurtrey v. Sparks, 71 Mo. App. 130, where payee altered date of note. Cited, in extended note on alteration of instruments, in 17 Am. Rep. 98, 99, 103, collecting cases.

Distinguished in United States Glass Co. v. Mathews, 89 Fed. 830, 61 U. S. App. 546, holding sureties on bond for payment of royalties, provided in patent license contract, not released by alteration of contract not affecting bond obligation; Herrick v. Baldwin, 17 Minn. 211, 10 Am. Rep. 163, holding surety not discharged unless alteration is material. Departed from in Ruby v. Talbott, 5 N. Mex. 268, 273, 21 Pac. 77, 79, 3 L. R. A. 730, 732, and n., as dicta, and not binding, in partly dissenting opinion.

VOL. VI-51

Bills and notes.- Holder of materially-altered commercial paper cannot fall back upon original agreement, for alteration annuls the instrument, p. 82.

Cited and applied in Ruby v. Talbott, 5 N. Mex. 258, 21 Pac. 74, 3 L. R. A. 727, and n., holding holder took no rights under altered note. Cited in McMurtrey v. Sparks, 71 Mo. App. 130.

Distinguished in Murray v. Graham, 29 Iowa, 526, holding alteration preventing recovery on note will not bar recovery in action for original debt; Matteson v. Ellsworth, 33 Wis. 500, 14 Am. Rep. 770, holding alteration of instrument does not destroy right of action on original contract. Departed from in Ruby v. Talbott, 5 N. Mex. 268, 275, 21 Pac. 77, 79, 3 L. R. A. 730, 732, and n., concurring on other grounds, but holding holder can fall back upon original instrument, majority contra.

Bills and notes.- Law regards altered commercial paper as forged, and doctrine of innocent holder" does not apply thereto, p. 83.

66

Cited and applied in Lehman v. Central, etc., R. R., 4 Woods, 565, 12 Fed. 597, where bill of lading was altered; Walsh v. Hunt, 120 Cal. 50, 53, 52 Pac. 116, 117, 39 L. R. A. 699, 700, in case of altered mortgage; Hert v. Oehler, 80 Ind. 88, where note was altered; Cronkhite v. Nebeker, 81 Ind. 326, 42 Am. Rep. 133, note altered; Knoxville Bank v. Clark, 51 Iowa, 270, 33 Am. Rep. 134, 1 N. W. 195, amount of note altered; Burrows v. Klunk, 70 Md. 460, 14 Am. St. Rep. 373, 17 Atl. 379, 3 L. R. A. 578, holding fact that sufficient space was left for alterations did not render maker so negligent as to enable bona fide holder to recover; Greenfield Bank v. Stowell, 123 Mass. 198, 25 Am. Rep. 68, where one co-maker altered note; Brown v. Straw, 6 Neb. 538, 29 Am. Rep. 370, altered note; Hill v. O'Neil, 101 Ga. 835, 28 S. E. 997, where maker altered interest rate; Ruby v. Talbott, 5 N. Mex. 258, 21 Pac. 74, 3 L. R. A. 727, and n., discharging indorser, although payee consented to maker's alteration; Searles v. Seipp, 6 S. Dak. 477, 61 N. W. 806, and Batchelder v. White, 80 Va. 108, case of note raised by payee before negotiation. Cited generally in King v. Sparks, 77 Ga. 289, 4 Am. St. Rep. 86, 1 S. E. 267, holding rule that one of two innocent parties, who enables wrongdoer to commit act, must suffer, does not apply where wrongdoer does act wholly unwarranted by such authority; Luther v. Clay, 100 Ga. 246, 28 S. E. 49, 39 L. R. A. 98, as to non-application of "innocent party" rule where mortgagee allows mortgagor to inspect mortgage, and latter substitutes another instrument therefor; Herrick v. Baldwin, 17 Minn. 211, 10 Am. Rep. 163.

Distinguished in Bank of Ohio, etc. v. Lockwood, 13 W. Va. 421, holding maker not discharged as against innocent holder, where alteration was made after indorsement, and discharged indorsers. Criticised in extended note in 17 Am. Rep. 98, 99, 106, on alteration of instruments, reviewing cases.

6 Wall. 83-91, 18 L. 727, WILSON v. WALL.

Indians.- Under Choctaw treaty of 1830, granting to each Choctaw head of a family one section of land for himself and one-half for each of his children, grantee took absolutely, not in trust, p. 89.

Cited and followed in Hicks v. Butrick, 3 Dill. 418, F. C. 6,458, similarly construing like treaty.

Treaties.- Construction of treaties is the province of judiciary, and Congress has no constitutional power to settle rights thereunder except in cases purely political, p. 89.

Cited and relied upon in United States v. Reese, 5 Dill. 409, F. C. 16,137, construing Cherokee treaty and collecting cases, as to power to construe treaties; Adams v. Akerlund, 168 Ill. 638, 48 N. E. 456, construing treaty clause as to property rights of aliens; Scharpf v. Schmidt, 172 Ill. 262, 50 N. E. 184, upholding power to construe rights of individuals under treaty. Cited in note in 81 Am. Dec. 540, on province of judiciary respecting treaties. Cited generally in Holden v. Joy, 17 Wall. 247, 21 L. 535, construing Cherokee treaty.

Indians.- Choctaw treaty of 1830, granting land to heads of families, was not self-operative as a grant, and patent was necessary, p. 90.

Trusts. A chancellor will not be astute to charge a constructive trust upon an honest purchaser for full consideration and without notice, p. 91.

Cited and applied in Trinidad v. Milwaukee, etc., Smelting, etc., Co., 63 Fed. 888, 27 U. S. App. 469, holding land donated by citizens through trustee to corporation, not chargeable with constructive trust because purchased with misused city funds; Connell v. Connell, 32 W. Va. 328, 9 S. E. 255, where purchaser did not know of equities.

Vendor and purchaser.- Vendee not having actual knowledge should not be charged with constructive notice, unless circumstances are such that he not only might, but ought, to have acquired notice, and but for his gross negligence would have done so, p. 91.

Cited and followed in Williams v. Jackson, 107 U. S. 484, 27 L. 531, 2 S. Ct. 819, where one without knowledge lent money secured by trust deed of land, already subject as security for prior notes; Stanley v. Schwalby, 162 U. S. 276, 40 L. 967, 16 S. Ct. 763, holding vague rumor of prior unrecorded conveyance not enough to charge purchaser with knowledge thereof; Hardy v. Harbin, 1 Sawy. 202, F. C. 6,059, holding purchaser not chargeable with constructive notice of latent defect in probate proceedings through which title passed; Richmond R. R., etc. v. Dick, 52 Fed. 381, 8 U. S. App. 99, holding bank officer not chargeable with notice of all transactions of corporation of which he was director; Trinidad v. Milwaukee,