been held most firmly it has now been so modified as, in great measure, to destroy its force.
In New York, Minnesota, Illinois, Missouri and Ohio, if the agreement to sell is not contained in the mortgage itself, the question whether there is any such agreement, and what are the indications of fraud arising from it, is one for the jury. Jones on Chat. Mort. § 424.
HARRY F. BARRELL, appellant,
MARY BARRELL, respondent.
On appeal from a decree of the chancellor, whose opinion is reported in Barrell v. Barrell, 11 Stew. Eq. 60.
Mr. H. C. Pitney, Jr., for appellant.
Mr. John R. Emery and Mr. H. C. Pitney, for respondent.
Decree unanimously affirmed for reasons given by the chancellor.
1. A bill sought to set aside a contract for the sale of lands on ac-
count of defendant's fraud. There was no evidence of fraud, but
defendant had been mistaken as to the deeds conveying title to
him. He offered to supply the defects.-Held, that he should be
allowed a reasonable time to do so, and that failing in that, the
contract should be set aside on the ground of mistake. Church
of St. Francis v. Hargous,
2. The complainant and defendant were the owners of adjoining town
lots. The complainant employed a surveyor to fix the dividing
line between the lots, which the surveyor, by mistake, mislocated,
and thereupon complainant, supposing that he was building upon
his own land, inadvertently placed a small part of his house a
few inches over on defendant's lot, the defendant being also then
unaware of the encroachment.-Held, that equity would not en-
join an action of ejectment by defendant against complainant to
recover possession of the strip so built upon. Kirchner v. Miller, 355
8. Where executors filed a final account, charging themselves with a
certain amount, the fact that a part of that amount consisted of
securities, which they then supposed were good, but which they
afterwards failed to collect, is not a mistake, for which they can
obtain relief in equity six years thereafter, and especially so
where the will directed the greater part of the legacies to be
paid with the securities received by the executors from the tes-
tator, and some of those securities have been lost through the
executors' delay and blunders in their attempts to collect them.
Beatty v. Trustees,
4. When parties have acted under a mutual mistake of law, and the
party thereby jeopardized can be relieved without substantial
injustice to the other side, equity will afford redress, especially
if the party to be benefited by the mistake invokes the aid of
equity to put him in a position where the mistake will become
advantageous to him. Freiknecht v. Meyer,
See INSURANCE; MORTGAGE, 1, 6; PRACTICE, 3.
On demurrer to a bill against the inhabitants of a township, alleging
that in 1875 the complainant gave the township his bond for
$1,000, secured by a mortgage on lands, to insure the payment
of $3.50 per week so long as complainant's wife should be a charge
on the township; that the township had received $750 thereon,
and that the mortgage had been canceled of record; that the wife
was not a public charge after 1875-Held, that complainant is
entitled to a discovery and account of the moneys received on
the bond. Colthar v. North Plainfield,
In 1872 complainant gave to an agent written authority "to assign,
satisfy or discharge all mortgages made to him." The agent,
thereunder, assigned to the defendant a mortgage of $10,000, de-
claring that the assignment was for the benefit of complainant.
The agent applied the $10,000 to his own use.-Held, the com-
plainant was bound by the assignment and the agent's concomi-
tant declarations; the defendant testifying that he had no knowl-
edge of the agent's fraud. Chetwood v. Berrian,
See ESTOPPEL, 2; EXECUTORS, 8, 11; INSURANCE.
1. The time within which an appeal from the orphans court is to be
taken, is computed not from the delivering of the court's opinion,
but from the signing, filing or entering of the order or decree in
the minutes of the court. Mount v. Slack,
2. A substituted decree, made while the defendant is in contempt,
may be without notice, but he has the right to appeal therefrom.
Wharton v. Stoutenburgh,
See EXECUTORS, 18; PRACTICE, 4.
An award cannot be extended beyond the things submitted; and even
if the language of the submission be broad enough to cover a
claim subsequently sought to be enforced, yet if it be clearly
made to appear that the claim was not before the arbitrators, and
was not passed upon by them, the award will not bar it. Lee v.
Dolan,
When two persons, a husband and wife, employ an attorney in the
same business, communications made by them in pursuance of
such common retainer are not privileged inter sese. Gulick v.
Gulick,
See EXECUTORS, 13; SOLICITOR.
The right to recover property conveyed in fraud of creditors by a
debtor subsequently adjudicated a bankrupt, is vested in his as-
signee alone, and the failure of the assignee to bring an action to
recover the property within the time limited by the bankrupt
law, does not transfer the right to bring such action to the credit-
ors of the bankrupt. McCartin v. Perry,
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