attempted to be devised, some of the tracts not being described, and
in several cases other and different lands were named, and made his
widow residuary devisee of all the rest and residue" of his "estate,
remaining at the time of" his "decease, real, personal and mixed, of
every name and description whatsoever," it was held, that as the
widow would, under such will, take all lands which failed to pass,
through the mistake, she had a right to correct the mistake by con-
veying the lands to the proper parties, or to have the mistake cor
rected on bill filed by her for that purpose. Worrell et al. v. Patten
9. Decree without proof. Where the residuary devisee in a will files
a bill in equity to have mistakes in the will corrected, the effect of
which is to deprive her of lands she would otherwise take under the
same, a decree may pass as prayed without the hearing of any proof
whatever of the fact of mistake having been made, and the minor
heirs of the testator, in such case, having no interest in the lands thus
taken from the complainant, can not be heard to complain of the
decree reforming the will. Ibid. 254.
MORTGAGES AND DEEDS OF TRUST.
OF AN EQUITABLE MORTGAGE.
1. Where the equitable owner of land assents, in writing, that the
holder of the legal title to the same may hold the title as security for
the payment of money borrowed by such owner, of a third person,
this will be sufficient to create an equitable lien on the land for the
benefit of his creditor. Chadwick v. Clapp, 119.
WHETHER MORTGAGE OR DEED OF TRUST.
2. And herein, who is the cestui que trust. Where a party made a
promissory note payable to himself, indorsed the same in blank, and
delivered it to A, and at the same time executed a conveyance of land
to B, declaring therein that it was in trust; that in case of default in
the payment of the note, then, on the application of the legal holder
of the note, B, his heirs, assigns or successor in trust, might sell and
dispose of the land, on certain terms, for cash, etc.: Held, that the
conveyance was a deed of trust, and not a mortgage, and that A, as
the legal holder of the note, was the cestui que trust, notwithstanding
a misrecital in the deed that the note was indorsed and delivered to
B, the proof showing that B never had any interest in the same.
Cushman v. Stone et al. 516.
POWER OF SALE IN DEED OF TRUST.
3. By whom to be executed. A power in a deed of trust authorizing
the trustee to sell on default in the payment of the grantor's note,
upon application of the legal holder of the same, can not be executed
by the holder of the note, even if the note was in the first place
MORTGAGES AND DEEDS OF TRUST.
POWER OF SALE IN DEED OF TRUST. Continued.
delivered to the trustee indorsed in blank, and by him transferred to
another by delivery. Cushman v. Stone et al. 516.
POWER OF SALE IN MORTGAGE.
4. Who may execute it. Where a mortgage given to secure the pay
ment of a note gives the mortgagee or his assigns power to make sale
of the mortgaged premises, and his assignee of the note, with his con-
sent, strikes out the assignment of the same, the power will be restored
to the mortgagee to make sale of the premises, and can not be exer.
cised by the assignee without a new assignment. Dempster et al. v.
West, 613.
SALE UNDER POWER MUST BE FAIR.
5. An officer or trustee, in making a sale of property, must act with
the utmost good faith, with fairness and impartiality. If the pur
chaser is shown to have exercised undue influence over the officer or
trustee, and the price is inadequate, the sale may be avoided in equity,
but it is not void. Ibid. 613.
6. When mortgaged property is sold by the person invested with
the power to sell, in the absence of proof to the contrary, it will not
be presumed that the purchaser exercised any undue control over the
person selling, but the sale will be sustained. Ibid. 613.
7. Sale held good and not fraudulent. Where the mortgagee, in
a mortgage giving him and his assigns a power of sale in de-
fault of payment of principal or interest, assigned the note sccured,
and the assignee, six months before the sale, notified the mortgagor
that he must sell unless the interest was paid, and, failing to obtain
payment, elected to declare the whole debt due, as he was authorized
by the mortgage, and, by an arrangement with the mortgagee, struck
out the assignment of the note, and had the latter proceed to sell the
mortgaged premises, and bought in the same for the amount of the
note, which sum, with another mortgage to which the property was
subject, was near the value of the same, it was held, on bill by the
mortgagor to set aside the sale and for redemption, that the facts did
not indicate any unlawful scheme or combination between the as-
signee and the mortgagee to fraudulently cut off the rights of the
mortgagor, and that the latter was not entitled to relief against the
sale, in equity. Ibid. 613.
8. Personal decree against mortgagor. Where a person gives a
mortgage to secure the payment of a third person's notes, which con-
tains no covenant to pay the debt, it is erroneous to enter a personal
decree against the mortgagor for the balance of the debt that may re-
main after the sale of the mortgaged premises on foreclosure. Hoag
v. Starr, 362.
MORTGAGES AND DEEDS OF TRUST. Continued.
SATISFACTION OF DECREE OF FORECLOSURE.
9. Of an agreement which will so operate. Where the land of A had
been sold under a decree of foreclosure of a mortgage, given by him
to secure the payment of the debt of another, but which contained
no covenant to pay the same, and a personal decree taken against the
mortgagor for the debt that remained after the sale, which was sought
to be enforced, and the mortgagor and mortgagee then entered into
an agreement to settle all matters in controversy, whereby the mort.
gagor turned out certain claims, which, when paid, were to apply in
payment, and gave his notes, secured by deed of trust on lands, in-
cluding the same that was sold on foreclosure, for the balance claimed
by the mortgagee: Held, that, by the new arrangement, the decree in
the foreclosure was satisfied, and a subsequent sale of lands of the
mortgagor, under the same, should be set aside as void, upon pay.
ment to the creditor of moneys expended by him to procure the title
to any part of the lands described in the trust deed. Hoag v. Starr
et al. 365.
NOTICE OF SALE UNDER DEED OF TRUST.
10. Whether sufficient. Where a deed of trust authorized the trus
tee to sell the land conveyed, for non-payment of a note, "first giving
notice of the time and place of such sale by publishing such notice
in one of the newspapers at that time published in,” etc., ten days before
such sale, and a notice of sale on the thirteenth day of a month was
published on the second day of the same month and each day thereafter
except on Sundays, being nine insertions, it was held, that this was a
compliance with the terms of the deed of trust, and was sufficient in
respect to the time. Cushman v. Stone et al. 516.
OF THE TITLE IN THE PREMISES CONVEYED.
11. Character of title remaining in mortgagor or grantor in trust
deed. Notwithstanding the legal title to mortgaged premises is in the
mortgagee, the mortgagor is regarded as the equitable owner of the
estate for all beneficial purposes, and his interest is liable to levy and
sale on execution, and it seems the same rule applies to a deed of land
in trust for the payment of debts. Vallette v. Bennett, 632.
12. Reinvesting the grantor with the legal title. Where property
is conveyed to another by a deed absolute on its face in all respects,
except for the trust declared, that the grantee shall pay and discharge
certain indebtedness of the grantor, with a condition that if the
grantee shall neglect or refuse to pay and satisfy the same, accord-
ing to his covenant, then it shall and may be lawful for the grantor
to take and repossess himself of the premises, the legal title passes to
the grantee, and the grantor will not be reinvested with the same, on
the failure of the grantee to discharge the trusts, without a re-convey.
Ibid. 632.
MORTGAGES AND DEEDS OF TRUST. Continued.
POWER OF TRUSTEE TO CONVEY.
13. Ratification by original grantor. Where, by the terms of a trust
deed, the trustee is empowered to use the avails of the property con-
veyed in payment of the grantor's debts, the trustee has the implied
power to sell and convey the same so as to pass the legal title, and
where the trustee makes a deed absolute on its face to secure a cred-
itor, which is in equity a mortgage, if the original grantor acquiesces
in the same for a number of years, and until he is declared a bank-
rupt, it will be a ratification of the trustee's conveyance. Vallette v.
Bennett, 632.
CONFIRMING TRUSTEE'S ACT BY DEED.
14. Estoppel. Where a trustee, to pay debts, makes a conveyance
of his grantor's land to a creditor, simply as a security, and, after the
death of the original grantor, his heirs unite with the trustee in a
quit-claim deed to release the equity of redemption to the grantee of
the trustee, the heirs so uniting with the trustee, and all privies in
estate, will be estopped from denying that the conveyance by the
trustee was made in the due execution of the trust imposed. Ibid.
632.
15. Acknowledgment taken by justice out of his precinct. Where a
chattel mortgage is acknowledged before a justice of the peace
residing in the same precinct with the mortgagor, the acknowledg
ment will not be bad because it was taken in another township or
precinct. It will be good if taken anywhere in the county, provided
the justice resided in the same election precinct with the mortgagor.
Durfee v. Grinnell et al. 371.
16. Not affected because the justice keeps his docket in another town-
ship. A chattel mortgage will not be rendered invalid from the fact
that the justice of the peace takes his docket out of the township of
his residence, and keeps his office, for convenience, a few rods in an
adjoining township, especially when it is readily accessible for
inspection. Ibid. 371.
17. Mistake in date to certificate of acknowledgment. Where a chat-
tel mortgage was in fact executed and acknowledged in 1871, but the
justice dated the certificate of acknowledgment in 1872, and the mort-
gage was recorded on the day of its execution, and it did not appear
but that the entry in the justice's docket showed the proper date:
Held, that the mistake did not vitiate the mortgage, as no injury could
have resulted from it to creditors or purchasers. Ibid. 371.
18. Title passes on breach. A chattel mortgage is but a conditional
sale, and when the mortgagor fails to perform the condition, the title
to the mortgaged property, so far as it is held by the mortgagor, vests
in the mortgagee. Where possession is taken in accordance with the
MORTGAGES AND DEEDS OF TRUST.
CHATTEL MORTGAGES. Continued.
terms of the mortgage, the title passes, even though the debt be not
then due. The fact that the mortgagee is required to sell the prop
erty, and render the surplus, after payment of the debt, etc., to the
mortgagor, will not prevent the title from vesting in the mortgagee,
as purchaser. Durfee v. Grinnell et al. 371.
MISTAKE IN NAME OF PARTY TO A CONTRACT.
1. Avoided by pleading and proof. See MISTAKE, 5, 6.
WHERE PARTY IS SUED BY WRONG NAME.
2. The misnomer should be pleaded in abatement. See ABATE-
MENT, 1, 2.
3. The real party may be connected with the record by proper aver-
ments and proof. See PARTIES, 7.
1. Causing death of a person in a public street, by a railway train
running at too great a speed. In a suit against a railway company to
recover damages for causing the death of the plaintiff's intestate
through negligence, it appeared that the deceased was struck by the
train while attempting to cross the track on a public street in a
populous city; that there were a great many tracks at the place, and
much switching of trains, and that the deceased at the time was
watching for a train a few feet ahead of him to pass, and while so
waiting was struck by another train coming from behind, and which
was running at the rate of ten miles an hour, in violation of the ordi-
nances of the city. The jury found the defendant guilty: Held, that
if the deceased was guilty of negligence it was not gross, but slight,
as compared with that of the company; and that it was guilty of
gross negligence in running its train at such a speed in a great pub-
lic thoroughfare, and that the verdict was not unsustained by the evi-
dence. Pittsburgh, Cincinnati and St. Louis Railway Co. v. Knutson,
Admx. 103.
2. Care required in running railroad train in a public street. A
railroad company is to be held to the exercise of a very high degree
of care in operating its road through the public streets of a city, and
will not be permitted to omit with impunity any reasonable duty that
may tend to the safety of the public, who have an equal right with
themselves to the free use of these thoroughfares. Chicago, Burling-
ton and Quincy Railroad Co. v. Stumps, 409.
3. Railroad company not liable for pure accident. The law has not
made railroad companies insurers against every casualty that may
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