the premises under the mortgagor, and who filed a bill to
foreclose the prior mortgage and remained in possession
in the meantime, with reasonable rent. Moore v. De-
346
Husband and Wife, 1. Appeal,
Injunction, 15.
1. Motion to vacate an order of the Ordinary vacating an
order to prosecute an administrator's bond denied; the
supreme court having acted on the vacating order and
dismissed the suit on the bond. Matter of Webster's
Administration Bond.
2. By whom application may be made to the Ordinary for
leave to prosecute an administration bond.
ib.
3. A father had recovered a judgment against one of his
sons, and caused an execution to be issued thereon and
put into the hands of the sheriff. After the son's death,
the father signed a writing at the foot of the execution in
these words:" I hereby discharge J. W. Caldwell, she-
riff, &c. from all liability whatever of the above-stated
execution, the defendant being dead and no further pro-
ceedings required on the same." The father afterwards
died intestate, and there was a balance of his personal
estate for distribution, of about $14,000, exclusive of the
amount of the said judgment. The deceased son left
three children, and six children of the intestate father
survived him. Held, that the said writing given by the
sheriff did not discharge the debt so as to entitle the chil-
dren of the deceased son to an equal seventh of the said
balance; but that the amount of the debt should have been
added to the said balance, and one-seventh of the whole
sum decreed to each of the six surviving children; and
that the amount of the debt should constitute so much of
the seventh to be distributed to and among the children of
the deceased son. Batton v. Allen.
99
4. A note given by a son to his father is not, of itself, evi-
dence of an advancement by the father.
ib.
5. Proof of mere parol declarations of a father that he had
fully advanced a child is not sufficient to establish an ad-
6. The testator gave to his wife the use and interest of all
his personal estate during her widowhood, and also the use
and possession of all his real estate during her widowhood
and as in his will after directed and limited, in lieu of
dower; and directed that on the death or marriage of his
widow before his youngest daughter attained the age of
eighteen years, the surviving executor should sell the per-
sonal property bequeathed to the widow and place the pro-
ceeds at interest; and directed his Read farm to be sold
when his youngest daughter attained the age of eighteen,
or sooner if his executors or the survivor of them should
think it most for the benefit of the estate; and that when-
ever the sale of the real and personal estate thus directed
to be sold should be made, the same should be placed at
interest and be equally divided among his seven daughters,
share and share alike, and paid to them when they should
respectively attain to the age of eighteen years; and de-
vised his homestead farm to his son when he should attain
the age of twenty-one years; and directed that in case
his son should die without issue before he attained the age
of twenty-one, the said homestead should be sold, at the
discretion of his executors or the survivor of them, and
the proceeds thereof be placed at interest, and divided
among his surviving children, share and share alike, and
paid in the manner before directed; and appointed the
widow and another executors: Held, that on a sale of the
Read farm by the widow as surviving executor, before the
youngest daughter attained the age of eighteen, each
daughter then under eighteen was entitled to their respec-
tive shares of the proceeds immediately. Anderson v.
Henderson.
PURCHASER. Vide Vendor and Purchaser.
1. What proof held satisfactory of the existence, genuine-
ness and loss of a receipt from a deceased person. Wil-
liamson v. Adm'rs of Johnson.
2. On the discovery, after judgment against a surety, of a
receipt dated in 1792, of which the surety had heard be-
fore the judgment was obtained, but which could not then
be found; on bill filed by the surety in 1824, after the
judgment had been paid, it was decreed that the plaintiff
in the judgment at law repay to the surety the excess of
the judgment over what it should have been after deduct-
ing the amount of the receipt with interest thereon from
the date thereof, with interest on such excess from the
date of the judgment.
RECEIVER. Vide Injunction, 15, 16, 17. Appeal, 6.
REFUNDING BOND. Vide Executors and Administrators, 4.
REGISTRY. Vide Mortgage, 3.
RENT. Vide Partnership, 2. Mortgage, 9.
1. Sheriff's sale declared void by reason of fraudulent com-
bination to prevent competition and the consequent sa-
crifice of the property. The Hamburgh Manufacturing
Company v Edsall.
2. On a sale of land by a fiduciary, he cannot buy either di-
rectly or through another. Winter v. Geroe.
319
3. Proofs on which it was determined that one to whom
land was struck off at an executors' sale bought for the
executors.
ib.
Vide Vendor and Vendee, 2. Executors and Administrators, 5.
SEAL. Vide Corporations, 1, 5.
1. A. having recovered a judgment at law against B., and
issued execution, which was returned "no goods or land,"
filed a creditor's bill against B., which after answer was
dismissed with costs. Held, that the judgment at law
could not be set off against the costs of B. in his defence
against the creditor's bill. Brisley v. Jones.
512
SHERIFF'S SALE. Vide Sale, 1.
SPECIFIC PERFORMANCE.
1. Courts of equity will not, in general, decree performance
of contracts for the sale of personal property; but will
decree the execution of trusts of personalty. Kimball v.
Morton.
2. Stock in a bank had been transferred to the defendant to
be by him transferred in different portions, one portion of
which was to be transferred to the complainants. A trans-
fer was decreed.
ib.
3. A. and B. entered into an agreement that A. should fur-
nish 2700 peach trees at his expense, and that B. should
plant and cultivate them on his farm, at his expense, and
should pick and market the fruit during the life of the
trees at the joint expense of the parties, and account to A.
for half the net proceeds of the sales. The trees were fur-
nished, and planted and cultivated accordingly. A. died,
and the administrators of his estate sold his interest to
D. Held, that D. could come into this court for the per-
formance of the agreement, and for an account and pay-
ment of half the net proceeds of the sales. M'Knight v.
Robbins.
229, 642
4. By writing under seal executed by heirs at law, it was
agreed that P., one of them, should have the outlots for
his share, and that the others should take for their shares
the homestead farm, and that P. would execute to the
other three, separately, releases for the shares which the
three might agree that each of them should have in the
homestead, when a certain mortgage given by the intestate
on one of the out lots should be discharged, and that as
soon as P. should execute such releases, the others should
execute releases to him for the share which it was thereby
agreed he should have. P. took possession of the share
assigned to him by the agreement. Afterwards, by an
agreement between the three, a certain part of the home-
stead was assigned to M., one of the three, and the other
two released the same to her, and M. released to the other
two all her interest in the residue of the homestead. Pre-
vious to the agreement among the four, H., one of the
heirs, had given a mortgage on his undivided interest in
the whole real estate. M. filed a bill against P. for the
specific performance of the agreement on his part to re-
lease to her the share so assigned to her, tendering a re-
lease of her interest in his share. Neither of the said
mortgages was paid at the time of the filing of the bill;
but the mortgage given by the intestate was paid before
the hearing of the cause, and the mortgage given by H.
on his undivided interest in the estate had been foreclosed
and his interest sold, and the complainant produced at the
hearing an agreement by the purchaser to abide by the
agreement for partition and to execute releases under it.
Held, that performance of an agreement to execute a re-
lease of real estate may be decreed; and that performance
may be decreed if the party asking it is able and willing,
at any time before the decree, to perform his part of the
It was referred to a master to ascertain whether the com-
plainant was able to procure a release to P. from the pre-
sent owner of H.'s share and from the remaining heirs.
Soper v. Kipp.
383
5. Specific performance of an agreement among heirs for
partition cannot be resisted on the ground that the defend-
ant, in taking the part assigned to him, contemplated the
sale of it, and that by reason of mortgages existing at the
time of the agreement he was unable to sell the part as-
signed to him; he knowing of the mortgages at the time
of the agreement, and one of them, given by the intestate,
being paid before the hearing, and the other, given by one
of the heirs on his undivided interest in the whole estate,
having been foreclosed and such interest sold, and the
complainant proffering a release from the purchaser of
all his interest in the share of the defendant.
ib.
6. Held, That under the circumstances, the other heirs were
not necessary parties to the suit.
ib.
7. On a bill by a vendee for the specific performance of an
agreement for the sale of lands, if the vendee has per-
formed a valuable part of the contract, and is in no de-
fault as to the performance of the residue, performance
will be decreed. Hulmes v. Thorpe.
415
8. A slight variation or default on the part of the vendee
in the performance of work to be done by him before the
deed was to be delivered, will not prevent a decree for
specific performance if the difference is a proper subject
for compensation in money.
ib.
9. In decreeing performance, the court may give a day and
prescribe equitable conditions.
ib.
10. Semble. That, as a general rule, the court will not make a
decree that a husband who has contracted to sell lands
shall procure his wife's execution and acknowledgment of
the deed.
ib.
11. By agreement under seal J. A. covenanted to sell to G.
V. a tract of land, and to make to G. V. a warrantee deed
therefor, possession to be given on the 1st of April then
next; and G. V., for and in consideration of the said tract
of land, covenanted to pay J. A. $1850, $200 on the 1st
April then next, $400 in one year thereafter, and the ba-
lance in instalments of $200 a-year, all with interest, un-
til all should be paid. On the day fixed for the first pay-
ment, G. V. tendered $200 and demanded the deed and
possession. J. A. refused to give the deed unless G. V.
would execute to him a mortgage on the premises to se-
cure the subsequent payments. On bill filed by G. V. for
the specific performance of the agreement, the relief
sought was denied. Van Scoten v. Albright.
467
TENANT. Vide Mortgage, 9.
TENANTS IN COMMON. Vide Partition, 3, 4, 5.
TIMBER.
1. When there is no charge in the bill that a tract of tim-
ber land from which the defendant is injoined from cut-
ting belongs to the estate of which the complainants are
devisees, and the answer denies that the timber belongs
to the estate and avers that it belongs to the defendant,
the injunction will be dissolved. Cooper v. Cooper. 9
2. A large tract of pine land owned in connection with a
glass factory, for the ordinary uses of which the owners
from time to time cut wood from the pine land, was mort-
gaged. After the giving of the mortgage, a fire swept
over a large portion of the tract, killing the timber stand-
ing on it. The mortgagors commenced cutting down the
burnt timber, proposing to cut it all down; alleging that
it was necessary to do so as well to save the wood from
rotting as for the permanent benefit of the estate in refer-
|