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Chamberlain v. Stearns.

HENRY M. CHAMBERLAIN & others vs. CHARLES H. STEARNS & others.

A devise in trust, to be applied “solely for benevolent purposes" in the discretion of the trustees, is not a charity, and is void.

BILL IN EQUITY by the trustees under the will of David McClure for the instructions of the court upon the question whether a valid trust was created by a devise of land to them in fee, "in trust to sell and convey the same as they shall see fit, at private or public sale, in parcels or altogether, and the proceeds safely to invest, and the income thereof and the principal from time to time to expend solely for benevolent purposes in their discretion."

The bill alleged that the plaintiffs, since their appointment as such trustees, had been and were desirous to execute the trust so declared, and to sell the land so devised in trust, and apply the proceeds to such charitable purposes as to this court might seem proper; but the testator's granddaughter and sole heir at law and residuary devisee and legatee claimed that no valid trust was thereby created, and that she was seised in fee simple of the land therein described, free from all trusts attempted to be created by the will; and on the other hand the plaintiffs were requested by representatives of various charities, who believed that said charities might in the discretion of the trustees become beneficiaries under the trust, to proceed to execute said trust, said representatives claiming that said trust was valid, and that said granddaughter had no estate or interest in the land.

An answer was filed on behalf of the granddaughter in accordance with her claim as stated in the bill. The attorney general was by order of the court made a party to the suit, and filed an answer submitting the case to its decision. And the case was reserved by Morton, J., upon bill and answers, for the consideration of the full court.

H. M. Chamberlain, for the trustees, cited Saltonstall v. Sanlers, 11 Allen, 446; Roth v. Emerson, 105 Mass. 431; Perry on Trusts, §§ 712, 748; and the cases therein referred to.

Connihan v. Thompson.

EDWARD CONNIHAN vs. LUKE THOMPSON & another.

One who buys land with notice that the seller has agreed to sell it to another, takes it, in equity, subject to such agreement, although he has no actual notice that the agreement is in writing.

A purchaser of land is not estopped to maintain a bill in equity for specific performance of the contract to sell against the seller and a third person who has taken a conveyance of the land with notice of the contract, by reason of his having sued the seller at law for breach of the contract, and attached the land as property of the seller standing in the name of the third person, although such person has given a bond to dissolve the attach

ment.

BILL IN EQUITY against Luke Thompson and Oliver F. Raymond, alleging that the plaintiff and Thompson entered into a written contract, the former to buy, and the latter to sell, a parcel of land in Charlestown; that afterwards Thompson refused to carry out the contract and conveyed the land to Raymond; and that Raymond had notice of the contract with the plaintiff. The prayer was that the contract might be ordered to be specifically performed; and that Raymond might be ordered to surrender the premises, and restrained from parting therewith.

At the hearing before Colt, J., the execution of the contract with the plaintiff as alleged in the bill, the plaintiff's readiness and offer to perform, and Thompson's refusal and his conveyance to Raymond, were proved. The judge found as follows: "Raymond, before the conveyance to him and before any part of the consideration for it was paid, had notice that Thompson had entered into an agreement with the plaintiff for the sale of the premises to him; had notice of the terms of the agreement and interfered, having such notice, to prevent the sale agreed on and to obtain a deed himself. The evidence does not satisfy me that Raymond had actual notice that Thompson's agreement was in writing."

It was proved or admitted "that shortly after the refusal of Thompson to convey, the plaintiff commenced an action at law against him to recover damages for a breach of his agreement, and specially attached the premises in question under the provisions of the Gen. Sts. c. 123, § 55, as property of Thompson the record title to which was in Raymond; and that the writ was

Connihan v. Thompson.

never entered; but that while the attachment existed, Raymond, in order to make a good title in mortgage, was obliged to give bonds with surety to protect the mortgagee against the attachment."

The judge reported the case for the consideration of the full court, upon the question whether upon these facts the plaintiff was entitled to a decree for specific performance against Raymond.

C. Robinson, Jr., for Raymond, was first called upon. 1. If the plaintiff's contract had not been in writing, Thompson could legally have sold, and Raymond had no notice that it was in writing. There is no case which goes to the extent of holding that a purchaser is affected by prior equities, where the notice to him, if true, does not indicate the existence of a binding obligation or of a right which can be enforced.

2. The plaintiff, by commencing his action at law to recover damages, and specially attaching the land, has waived his remedy, if any, in equity. Raymond was thereby induced to believe that the plaintiff made no claim to the land by virtue of the contract, and relying thereupon, gave bond to dissolve the attachMorris v. Rexford, 18 N. Y. 552. Rodermund v. Clark, 46 N. Y. 354. Bigelow on Estoppel, 578.

ment.

T. H. Sweetser & W. S. Gardner, for the plaintiff. WELLS, J. Notice or knowledge of the existence and of the terms of an agreement for the sale of land is, in equity, sufficient to prevent one who has it from acquiring rights in fraud of that agreement. It puts him on inquiry; and it is his own fault if he fails to inform himself of the validity and legal force of the agreement before undertaking to acquire the property himself. Hayward v. Cain, 110 Mass. 273. Sugd. Vend. & P. (14th ed.) 755, 762. It is contended that, by commencing an action at law in which the land in question was specially attached, the plaintiff waived his remedy in equity. But the remedy in equity, by compelling specific performance, and that at law in damages for the breach, are both in affirmance of the contract. They are alternative remedies, but not inconsistent; and remedy in both forms might be sought in one and the same action. If the plaintiff institute separate actions, he cannot carry both to judgment and satisfaction. He may be compelled, by order of the court, at any stage

Connihan v. Thompson.

of the proceedings, to elect which he will further prosecute. Livingstone v. Kane, 3 Johns. Ch. 224. Rogers v. Vosburgh, 4 Johns. Ch. 84. But the mere commencement or pendency of one will not bar the other, or defeat the action. 1 Chit. Pl. (6th Am. ed.) 243.

The defence of waiver by election arises where the remedies are inconsistent; as where one action is founded on an affirmance, and the other upon the disaffirmance of a voidable contract, or sale of property. In such cases any decisive act of affirmance or disaffirmance, if done with knowledge of the facts, determines the legal rights of the parties, once for all. The institution of a suit is such a decisive act; and if its maintenance necessarily involves an election to affirm or disaffirm a voidable contract or sale, or to rescind one, it is generally held to be a conclusive waiver of inconsistent rights, and thus to defeat any action subsequently brought thereon. This is the doctrine of the cases in the New York reports, cited by the defendant, and also of Sanger v. Wood, 3 Johns. Ch. 416, 421. It is fully developed and explained by Chief Justice Shaw in Butler v. Hildreth, 5 Met. 49. See also Kimball v. Cunningham, 4 Mass. 502; Gardner v. Lane, 98 Mass. 517; Hooker v. Hubbard, 97 Mass. 175.

For the reason first suggested, the defendant does not bring this case within the principle of a conclusive waiver by election of remedy.

It is contended that Raymond, being misled by the plaintiff's acts, was induced to change his position in relation to the property, and put to inconvenience to remove the attachment; and that these facts constitute an estoppel in pais. But the ele ment of intent on the part of the plaintiff, which is essential to an estoppel in pais, is not found, and is not to be inferred from the facts reported. An attachment is an ordinary incident of a suit at law; and there is nothing to show that the plaintiff contemplated any other disadvantage or inconvenience to the defendants than might naturally and ordinarily result from such legal proceedings.

Upon the whole case we see no good reason why specific per formance should not be had against both defendants. Decree accordingly.

Folsom v. Clemence.

ALANSON FOLSOM vs. WILLIAM H. CLEMENCE.

A mortgage cannot be avoided under § 35 of the bankrupt act, ( S. St. 1867, c. 176,) if made more than six months before the date of the mortgagor's petition in bankruptcy although recorded within four months of said date.

The fact that a mortgagee of personal property agreed not to put his mortgage on record unless the mortgagor should have trouble, does not, as matter of law, avoid the mortgage as to creditors of the mortgagor.

In an action by a mortgagee of goods against an officer who attached them upon a writ against the mortgagor, an exception to the refusal of the judge to rule that the demand made by the mortgagee, under the Gen. Sts. c. 123, §§ 62, 63, was for an amount greater than was due, will not be sustained, if the fact of such excess was not found at the trial, and is not to be ascertained from the bill of exceptions except by computation. he owner of goods gave two mortgages thereon, one, dated December 15, 1869, to secure a promissory note for $2862, and the other, dated March 24, 1870, to secure a promissory note for $1000. The mortgaged goods, with others, having been attached on a suit against the mortgagor, the mortgagee made the following written demand on the attaching officer: "To the officer holding the goods in [the mortgagor's shop]. You are hereby notified that I hold two mortgages on said goods, one dated December 15, 1869, for $2862, and the other dated March 24, 1870, for $1000, on which mortgages the sum due is $3723.30. On the back of the first note named therein are the following indorsements: [stating them.] And I now demand payment of said notes to me secured by said mortgages. October 21, 1870." Held, that this demand was sufficient in form.

A mortgage dated 1870, without month or day of the month, but indorsed "Dated March 24, 1870," and delivered on that day, is correctly described in a demand by the mortgagee on an attaching officer, under the Gen. Sts. c. 123, §§ 62, 63, as “dated March 24, 1870." A demand by a mortgagee of goods, under the Gen. Sts. c. 123, §§ 62, 63, against an officer who has attached them on a writ against the mortgagor, is not defective because it does not distinguish the mortgaged goods from other goods with which they are commingled, and which the officer holds under the same attachment.

TORT for taking and carrying away certain enumerated articles of personal property. Writ dated November 1, 1870. At the trial in the Superior Court, before Pitman, J., the following facts appeared:

The property was part of the stock in trade of Josiah Grover and Charles H. Harvey, clothing dealers in Lowell, under the style of Grover & Harvey. The plaintiff claimed title under two mortgages from Grover & Harvey to him. The first was dated December 15, 1869, and was given to secure a promissory note of the same date for $2862, payable on demand, with interest. The second was given to secure a note for $1000, payable on demand, with interest, and was dated 1870, without month or day of the month, but on its back was written" March 24, 1870," 18

VOL. XV.

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