infant to labor for the defendant for a fixed period of time, which he violated by leaving the defendant's employ without cause before the time expired." Whitmarsh v. Hall, 3 Denio, 375.

Q. A, an infant, buys goods of B, at the same time representing that he is of full age. B sues for the purchase price of the goods. A sets up infancy as a defense. Judgment for whom and why?

A. Judgment for A. The fraud did not charge the infant with a legal liability on the contract of purchase, and as B seeks to enforce the contract, not to recover damages resulting from the fraud, he is not entitled to recover. Studwell v. Shapter, 54 N. Y. 249.

(NOTE.) "If an infant, by fraud, obtains property with no intention of paying, though it be under a pretense of a contract of purchase, the defrauded party may recover. He does so, on the ground that there was no real contract, and he disaffirms the apparent contract. On the same ground those cases must stand, which have permitted a recovery for damages, when an infant, to obtain goods, has fraudulently pretended that he was of full age. On the same principle, if a party has been induced to purchase property from an infant, by the infant's fraud and misrepresentation, it would seem that he might, on discovering the fraud, disaffirm the contract, and return or offer to return the property, and thus put the infant in a position of a mere wrongdoer unjustly keeping what he had fraudulently obtained, and it would seem that the infant would then be liable in damages for tort. But where the aggrieved party retains the benefit of the contract, he does not disaffirm it. His action thereon rests on the ground that he has made a contract, and it is necessary for his recovery that he should show that a binding contract has been made. Here then infancy becomes a defense. The defendant says that there has been no binding contract, no action therefore lies for fraud in respect to the contract which he did not make. The alleged contract is the substantive ground of, or inducement to the cause of action, for if there was no contract, there could be no fraud in the making of it, and disproving the contract defeats the action." Hewitt v. Warren, 10 Hun, 560.

Q. A, an infant eighteen years of age, conveys certain real estate to B, his father. He spends the money received from the sale, and on coming of age demands the property. Was the conveyance valid? What are the rights of the parties?

A. The conveyance is voidable at the election of the infant, who can recover the property without restoring the consideration. "Where a son during infancy conveys real estate to his father, receiving and expending or wasting the consideration therefor, before his arrival at full age. and has no other property with which to replace it, he may disaffirm his deed after he arrives at full age,

without restoring or offering to restore the consideration. Mere acquiescence by the son, without any affirmative act for three years after his arrival at full age, is not a ratification of the conveyance." Green v. Green, 69 N. Y. 553.

Q. A is the father of B, a daughter and only child, who is married to C. B has no property or means of any kind. C is very wealthy and refuses to support or assist A who is unable to work and is without any means of support. Can A compel C to assist and contribute towards his support?

A. No. While a child or grandchild is bound to support an indigent parent or grandparent, a son-in-law is not. The statute has reference to natural relatives only. Ex parte Hunt, 5 Cow. 284. See secs. 914 to 926, inclusive, of the Code of Criminal Procedure.

Q. A, the wife of B, takes out a policy of insurance on the life of B for $10,000, the annual premium therefor being $1,000, which was paid for by the husband out of his own property. B died leaving no property but debts to the amount of $10,000. Who is entitled to the $10,000 due from the insurance company on the policy?

A. The wife is entitled to $5,000, being the amount of insurance purchasable for $500, and the creditors are entitled to $5,000, being the amount of insurance purchasable in excess of $500 premium. This is provided for in sec. 52 of the Dom. Rel. Law (Consolidated Laws, chap. 14) as follows: "A married woman may, in her own name, or in the name of a third person, with his consent, as her trustee, cause the life of her husband to be insured for a definite period, or for the term of his natural life. Where a married woman survives such period or term she is entitled to receive the insurance money, payable by the terms of the policy, as her separate property, and free from any claim or representative of her husband, except, where the premium actually paid annually out of the husband's property, exceeds five hundred dollars, that portion of the insurance money which is purchased by excess of premium above five hundred dollars, is primarily liable for the husband's debts."

CHAPTER XI

Equity

Q. State three maxims of equity, and give a state of facts wherein one of them will apply.

A. "He who seeks equity, must do equity." "Equity considers that as done which ought to have been done." "He who comes into equity, must do so with clean hands." An example is: Where one, on the due day of a mortgage has tendered the amount of the mortgage to the mortgagee, and the latter has refused the same, if the mortgagor then goes into equity asking that the mortgage be canceled of record, he cannot obtain relief unless he keeps the tender good. Now while it is not necessary that you continue a tender in force for the purpose of removing the lien of the mortgage, yet if you desire affirmative relief in equity as you do in this case, where you desire the mortgage to be canceled of record, equity says to you, you are asking our aid, you are coming into equity for affirmative relief, therefore you must do equity, and to do equity, you must offer to pay that money here and now by continuing the tender which you originally made. See Tuthill v. Morris, 81 N. Y. 94.

Q. A and B enter into an agreement in New York City, whereby B agrees to convey to A certain mining lands in California. B fails to deliver the deed on the day agreed upon. A brings suit in New York for specific performance. B defends on the ground that the court has no jurisdiction. Is the defense good? What maxim of equity is involved?

A. The defense must fail. The maxim involved is: "Equity acts in personam." It matters not where the "res," the subject-matter of the contract is situated; so long as the person is within the jurisdiction of the court, equity can force him to specifically perform.

The decrees of a court of equity command a person to do a certain act, and if he fails to do so, the court will imprison him for contempt. The court of equity, unlike a court of law, acts upon the person, and not upon the thing which is the subject-matter of the contract. This principle has been very well settled since the early and historic case of Penn v. Lord Baltimore, 1 Keener's Cases on Eq. Juris. 1, and is uniformly followed in this state. Gardner v. Ogden, 22 N. Y. 327, 333; DeKlyn v. Watkins, 3 Sandf. Ch. (N. Y.) 185.

Q. An insolvent merchant executed a voluntary conveyance to his son. Afterwards having effected a compromise with his creditors, he requests his son to reconvey. What are the rights of the father and son? What principle of equity is involved?

A. The father cannot force a reconveyance. The equitable maxim involved is: "He who comes into equity must do so with clean hands." Voluntary conveyances are effectual between the parties and cannot be set aside by the grantor, although he afterwards becomes dissatisfied with the transaction. See Proseus v. McIntyre, 5 Barb. 424. “A conveyance of land made in payment of a debt owing by the grantors, upon an understanding embodied in a contract executed by the parties immediately after the delivery of the deed, that the land is to be reconveyed to the wives of the grantors upon the payment of the debt and interest, is fraudulent as against the creditors of the grantors. As between the parties themselves to the transaction, the deed is valid." Harris v. Osnowitz, 35 App. Div. 594.

Q. A and B are adjoining property owners, and agree not to build within forty feet of the street. A builds within forty feet of the street, B not raising any objection thereto. Subsequently B starts to build within forty feet of the street, and A comes to you for advice, and asks you if he can prevent B from so building. What would you tell him? What equitable principle is involved?

A. A cannot prevent B from building, he having already violated the agreement by himself building within the prohibited dis

tance. The maxim involved is: "He who comes into equity, must do so with clean hands."

Q. A began an action in equity to restrain by injunction proceedings, a collection of $1,000 taxes, $500 of which was illegally levied. What maxim of equity is involved in this transaction? What condition should the court exact?

A. The court should compel A to pay the $500 which was legally levied, on the principle that: "He who seeks equity must do equity." Having sought the affirmative aid of a court of equity, he must act equitably, that is, pay the amount which is justly due.

Q. A gives a mortgage to B on his land as security for the payment of two notes made by A payable to B. One of the notes was given at a usurious rate of interest. A brings action in equity, seeking to have the mortgage canceled of record. Can the action be maintained? If not, why not? If so, what condition will the court impose before granting relief? What equitable maxim applies?

A. Equity will compel A to pay the amount of the legal note, upon the principle that: "He who seeks equity must do equity." "Where a mortgage has been given upon lands, in order to secure the payment of several promissory notes, a part of which notes are usurious and a part of which are bona fide, although the mortgage is void, equity will require the plaintiff to do equity, by paying or tendering payment of the amount of the valid notes covered by the mortgage, before it will entertain a suit to cause the mortgage to be delivered up to be canceled as a cloud upon title." Williams v. Fitzhugh, 37 N. Y. 444.

Q. A gives a mortgage on his farm for $10,000; the mortgage provides for a usurious rate of interest. A brings an action to set aside the mortgage on account of the usury. Can he maintain the action? What condition, if any, will the court exact? What

maxim of equity arises?

A. A can maintain the action, and the court cannot impose any