Cornell v. Andrews.

tract for the sale of land in Hudson county. The price agreed to be paid is $65,000. The defendant, resists on the ground that the title is not such as he ought to be compelled to take; that it is at least a doubtful one. The complainants insist, on the other hand, that their title is good, and free from all reasonable doubt. The objection made to the title is that it is derived under a mortgage given to "Joseph D. Beers, president of the North American Trust and Banking Company," which contained no words of inheritance, but conveyed the property to him, his successors and assigns. The defendant therefore apprehends, and

Titley v. Wostenholme, 7 Beav. 425; Ashton v. Wood, 3 Sm. & Giff. 436; Stevens v. Austen, 3 E. & E. 685; Osborne v. Rowlett, L. R. (13 Ch. Div.) 774.

That a deed not delivered, but retained by the vendor until payment of the purchase-money, was an escrow, Sloper v. Fish, 2 V. & B. 146, See Hull v. Noble, 40 Me. 459; Stark v. Wilder, 36 Vt. 752.

That a recovery may be suffered by a tenant in tail of lands, the reversion of which had vested in the crown by the attainder of the reversioner, Blosse v. Clanmorris, 3 Bligh 62.

That a covenant ran with the land, Bristow v. Wood, 1 Coll. C. C. 480; Smith v. Kelley, 56 Me. 64; Lydick v. Baltimore and Ohio R. R., 17 W. Va. 427. That a presumption arises from non-payment of tithes, Rose v. Calland, 5 Ves. 186.

That a devise of an undivided moiety and of all of testator's other interest, &c., in the premises, authorizes a sale of the whole tract, Stapylton v. Scott, 16 Ves. 272.

That trustees took a fee or only a fee determinable on the payment of debts and legacies and the death of a legatee, Collier v. McBean, L. R. (1 Ch. App.) 81. See Laurens v. Lucas, 6 Rich. Eq. 217.

That the vendor's grantor was a lunatic, his deed being dated February 14th, 1854, and that a commission of lunacy issued in December, 1854, found that he was and had been insane from the month of February or March, 1854, Francis v. St. Germain, 6 Grant's Ch. 636; Hinchman v. Ballard, 7 W. Va. 152. See Frost v. Beavan, 17 Jur. 369; Elliott v. Ince, 3 Jur. (N. S.) 597.

That the premises are subject to an easement, Krousbien v. Gage, 10 Grant's Ch. 572; Boulton v. Bethune, 21 Id. 110, 478; James v. Freeland, 5 Id. 302; Wardell v. Trenouth, 24 Id. 465; Hymers v. Branch, 6 Mo. App. 511.

That the terms of the instrument authorizing the sale have not been pursued, Cooper v. Denne, 1 Ves. 565; Wrigley v. Sikes, 21 Beav. 337; Collard v. Sampson, 16 Beav. 543, 4 De G., M. & G. 224; Alexander v. Mills, L. R. (6 Ch. App.) 124; Rede v. Oakes, 32 Beav. 555, 4 De G., J. & S. 505; Cooper's Case, L. R. (4 Ch. Div.) 802.

That a prior conveyance amounted to an act of bankruptcy, Lewis v. Lush, 14 Ves. 547.

Cornell v. Andrews.

is advised that the estate mortgaged was but a life estate. The bill states that the North American Trust and Banking Company was, when the mortgage was given, a corporation of the state of New York, duly created by virtue of and pursuant to a statute of that state passed April 18th, 1838, and entitled, "an act to authorize the business of banking," and that Beers was then its president, and that by virtue of the twenty-fourth section of that act, he, as president, was a corporation sole of the state of New York, and therefore took an estate in fee under the mortgage, notwithstanding the absence of words of inheritance.

That doubts existed whether limitations after an estate for life were contingent remainders or executory devises, Roake v. Kidd, 5 Ves. 647.

That an ordinary devise passed estates of which the testator had been trustee, Marlow v. Smith 2 P. Wms. 198.

That it was questionable whether a trust was executed or executory, Jervoise v. Northumberland, 1 J. & W. 559.

That an assignment of a term to a mortgagee was protection against a judgment prior to the mortgage, Freer v. Hesse, 4 De G., M. & G. 495.

That a devise "of all my estates," to the use of three daughters, to be divided in equal shares, and in case of either of them dying, to the children of the decedent, but if no children then to the surviving daughters forever, gives a fee, Rogers v. Waterhouse, 4 Drew. 329. See Vreeland v. Blauvelt, 8 C. E. Gr. 483.

That a condition of sale, on a sale by a mortgagee under a power entitling the vendor to rescind the contract in case he should be unwilling or unable to answer any requisition of the vendee as to the title or othewise, is so far depreciatory as to prevent performance, Falkner v. Equitable Society, 4 Drew. 352; Cordingley v. Cheeseborough, 4 De G., F. & J. 379; Jones v. Clifford, L. R. (3 Ch. Div.) 779.

That commissioners authorized by statute to exchange lands of one kind of tenure, can exchange for lands of another, Minet v. Leman, 1 Jur. (N. S.) 410; Cattell v. Conall, 4 You. & Coll. 228.

That certain phrases in a will constituted an estate tail, upon which the vendor, by suffering a recovery, could pass the fee, Willcox v. Bellaers, Turn. & R. 491.

That an executrix having power to mortgage lands for her maintenance, can sell them, Cook v. Dawson, 3 De G., F. & J. 127, 29 Beav. 123.

That a presumption arises from mere lapse of time, Emery v. Grocock, 6 Madd. 54; Barnwall v. Harris, 1 Taunt. 430; Canston v. Macklew, 2 Sim. 242; Martin v. Cotter, 3 Jon. & La Touche 496; Magenius v. Fallon, 2 Moll. 566; Bolton v. School Board, L. R. (7 Ch. Div.) 766; Dutch Church v. Mott, 7 Paige 77; Hillary v. Waller, 12 Ves. 239 [denied in Byrne v. Frere, 2 Moll.

Cornell v. Andrews.

On the hearing, it was further urged that if Beers should not be held to be such corporation sole, it should be held that the words "Joseph D. Beers, president of the North American Trust and Banking Company," were one of the names of the corporation; and that, in either case, the title in fee passed by the mortgage. In support of these propositions are adduced adjudications of the courts of New York that associations under that act were corporations in fact, and that conveyances to the president were conveyances to the corporation, and also dicta of more or less weight, to the effect that those corporations were bi

177; State v. Franklin Falls Co., 49 N. H. 255]; Thompson v. Millikin, 9 Grant's Ch. 359; Jones v. Fulghum, 3 Tenn. Ch. 193; Belmont v. O'Brien, 12 N. Y. 394.

That mere possession for a long time is sufficient, Sedgwick v. Hargrave, 2 Ves. Sr. 59; Prosser v. Watts, 6 Madd. 59; Eyton v. Dicken, 4 Price 303; Levis v. Herndon, 3 Litt. 350; Chapman v. Lee, 55 Ala. 616; Seymour v. De Lancey, Hopk. 436; Hartley v. James, 50 N. Y. 38; McLaren v. Irvin, 63 Ga. 275; Shober v. Dutton, 6 Phila. 185; Crooks v. Glenn, 8 Grant's Ch. 239; Dewitt v. Thomas, Grant's Ch. 21; Tillotson v. Gesner, 6 Stew. Eq. 323; Beckwith v. Kouns, 6 B. Mon. 222; Hightower v. Smith, 5 J. J. Marsh. 542; Cunningham v. Sharp, 11 Humph. 116; Scott v. Simpson, 11 Heisk. 310.

That a devise of all of testator's real estate includes an advowson purchased by testator after executing his will, Weddall v. Nixon, 17 Beav. 160. See Lloyd v. E. & N. A. R. R., 2 Pug. & B. (N. B.) 194; Hamilton v. Buckmaster, L. R. (3 Eq.) 3.23.

That an underlease is sufficiently described as a lease, Darlington v. Hamilton, Kay 550; Madeley v. Booth, 2 De G. & Sm. 718; Hayford v. Criddle, 22 Beav. 477; Camberwell v. Halloway, L. R. (13 Ch. Div.) 754; Flood v. Pritchard, 8 Rep.-512.

That an encumbrance remains uncanceled on the record, Young v. Collier, 4 Stew. Eq. 444; Jones v. Fulghum, 3 Tenn. Ch. 193; Allen v. Atkinson, 25 Mich. 351; Tharin v. Fickling, 2 Rich. 361; Kenny v. Hoffman, 31 Gratt. 442; Gans v. Renshaw, Pa St.34; Spohn v. Ryckman, 7 Grant's Ch. 388; Welsh v. Barton, 24 Ohio St. 28; Colwell v. Hamilton, 10 Watts 413; Nicol v. Carr, 35 Pa. St. 381.

That a sale of lands under a partition between three tenants in common in fee and two tenants for life, with remainder to their children, had been made, Young v. Rathbone, 1 C. E. Gr. 224. See Maxwell v. Goetschius, 11 Vr. 383; Bumberger v. Clippinger, 5 Watts & S. 311.

That a written agreement existed to transfer lands bought in at sheriff's sale for the benefit of the vendor, Dobbs v. Norcross, 9 C. E. Gr. 327.

Cornell v. Andrews.

nominous, one of their names being the one assumed, and the other that of the president (or other officer designated to hold and convey its land), as such. By the provisions of that act, mortgages or other conveyances of real estate to the association were not to be made to it, but to the president, or such other officer as should be indicated for the purpose in the articles of association; and it was further provided that the president, or such other officer and his successors, from time to time, might sell, assign and convey the same, free from any claim thereon against any of the shareholders or any person claiming under

That there were doubts whether lands were conveyed for the use of a particular church (the vendor), or for all the churches in the same town, St. Mary's Church v. Stockton, 4 Hal. Ch. 520.

That the lands agreed to be sold were not within a testamentary power of sale, Chambers v. Tulane, 1 Stock. 146.

That a power of sale was a personal trust in the executor, and could not be exercised by his executor, Chambers v. Tulane, 1 Stock. 146; Dominick v. Michael, 4 Sandf. 374.

That a lis pendens was filed after part of the consideration had been paid and possession taken by the vendee, Earl v. Campbell, 14 How. Pr. 330; Pratt V. Bull, 4 Giff. 117, 1 De G., J. & Sm. 141; Bull v. Hutchens, 32 Beav. 615,

That the boundary lines are in dispute, Voorhees v. De Myer, 3 Sandf. Ch. 614. See Walsh v. Hall, 66 N. C. 233; Tamplin v. James, L. R. (15 Ch. Div.) 215; Bruck v. Tucker, 42 Cal. 346.

That one of the deeds in the chain of title is not genuine, Seymour v. De Lancey, Hopk. 436; 5 Cow. 714.

That there is a failure of title as to an undivided portion of the lands, Bates v. Delavan, 5 Paige 299; Arnold v. Arnold, L. R. (14 Ch. Div.) 270; Ashton v. Wood, 3 Sm. & Giff. 436; Evans v. Kingsberry, 2 Rand. 120; Bailey v. James, 11 Gratt 468; Hendricks v. Gillespie, 25 Gratt. 181; Curran v. Little, 8 Grant's Ch. 250; Luckett v. Williamson, 31 Mo. 54; Buchanan v. Alwell, 8 Humph. 516; Terrell v. Farrar, Walk. (Miss.) 417; Love v. Camp, 6 Ired. Eq. 209; Swepson v. Johnston, 84 N. C. 449; Bader v. Neal, 13 W. Va. 373; Goddin v. Vaughn, 14 Gratt. 102; or, of one of several lots purchased together, Mott v. Mott, 68 N. Y. 246. See Osborne v. Bremar, 1 Desauss. 486.

That there was a mistake in the description of the lands contained in a former conveyance, Smith v. Turner, 50 Ind. 367.

That a suit against the vendor as a surety on an official bond, had been begun after part payment of the purchase-money and possession by the vendee, Snyder v. Spaulding, 57 Ill. 480. See Secrest v. McKenna, 1 Strobh. Eq. 356. That a lien for military services was prior in time to a title by pre-emption, Kelly v. Bradford, 3 Bibb 320. See Palmer v. Locke, L. R. (18 Ch. Div.) 381.

Cornell v. Andrews.

them. It is insisted, on behalf of the complainants, that it is incumbent on this court to pass upon and decide, for the purposes of this litigation, the question raised in defence-whether the mortgage, which is the foundation of the title, conveyed an estate in fee or only for life. If such decision would have the force and effect of an adjudication in a direct proceeding for the purpose, and be an end of controversy on the subject, and establish the title, the court might well proceed to the determination of the question; but this suit is a proceeding in personam merely, and will bind those only who are parties to it. "It is a

That there were two rival claimants to the lands by pre-emption, Young v. Lillard, 1 A. K. Marsh. 481.

That there had been possession of iands for twenty-seven years, under a paper-writing acknowledging that one tenant in common had sold his interest to another, Owings v. Baldwin, 8 Gill 337.

That a guardian had sold the lands, and his deed was not executed or delivered until after the time limited in the order of sale, Richmond v. Gray, 3 Allen 25.

That the heirs of an owner of the equity of redemption of lands, who took an assignment of the mortgage to himself as trustee, had not shown a discharge thereof, Sturtevant v. Jaques, 14 Allen 523.

That there are doubts whether a proviso in a deed creates a condition or a restriction, Jeffries v. Jeffries, 117 Mass. 184. See Whitlock's Case, 32 Barb. 48; Post v. Weil, 8 Hun 418.

That the vendor's title was under a sheriff's sale against one who had sold the lands two years before such sheriff's sale, but his vendee's deed was not recorded until after the sheriff's, Speakman v. Forepaugh, 44 Pa. St. 363.

That there was a defect in one of several leases included in the contract, Freetly v. Barnhart, 51 Pa. St. 279. See Camberwell Society v. Holloway, L. R. (13 Ch. Div.) 754.

That lands of a wife had been sold under a judgment confessed by the husband and wife, Swayne v. Lyon, 67 Pa. St. 436.

That lands of an infant had been sold under a partition, in which no guardian was appointed for such infant, Swain v. Fidelity Trust Co., 54 Pa. St. 455; Vail v. Nelson, 4 Rand. 478.

That lands sold to a vendee had been afterwards sold under execution on a prior judgment by confession by the vendor, waiving an inquisition, Kostenbader v. Spotts, 80 Pa. St. 430. See Massey v. McIlwain, 2 Hill's Ch. 421.

That a building restriction was not removed by a subsequent judicial sale for taxes, Lesley v. Morris, 9 Phila. 110. See Boyd v. Schlesinger, 59 N. Y. 301. That a deed executed in trust to the vendor for the purpose of satisfying his vendor's creditors, did not specify which creditors, Butler v. O'Hear, 1 Desauss. 382.