YOUNG v. MCKEE.

of the Court below; and there is also very much authority against it. We do not think it important, however, to go into an examination of the question, as we are satisfied the mortgage is affirmed by the conduct and answer of Mrs. McKee, and that a decree should be entered upon it for the amount due.

Where land is conveyed, and a mortgage taken back for purchase money, the deed and mortgage together constitute but one transaction, and the title only passes by the deed subject to the mortgage. It is upon this principle that a wife need not sign a mortgage given for purchase money, since the right of dower only attaches to the equity of redemption. If the grantee in

the deed is an infant, he has an undoubted right to disaffirm the purchase on coming of age; but he cannot disaffirm it as to that part which imposes a burden upon him, and affirm it in so far as he reaps a benefit. Mrs. McKee, who is now of age, sees fit to affirm the deed and retain the land; and by so doing she affirms the mortgage also.-Lynde v. Budd, 2 Paige, 191; Altman v. Mock, 3 Sandf. Ch., 431; Bigalow v. Kinney, 3 Vt., 353; Richardson v. Bright, 9 Vt., 368; Robbins v. Eaton, 10 N. II., 562; Hubbard v. Cummings, 1 Greenl., 11; Dangs v. Coombs, 6 Greenl., 89.

There is an omission in the proceedings of the Court below, which was not pointed out on the argument, but which we deem it proper to mention, as the question of practice is important. The notes and mortgage do not seem to have been produced and filed in the Court when the decree was rendered. The omission may have occurred in this case in consequence of the answer's admitting the notes and mortgage, so that a reference to a commissioner, and a report from him, were dispensed with. But this evidence of complainant's right at the time the decree is rendered should always be given, or an excuse shown for not doing it; and, before entering

YOUNG . MCKEE.

final decree, we shall require the complainant to produce and file these papers in this Court; or, if they are lost, or for any other reason cannot be produced, to satisfactorily account for them by affidavit. When that is done the decree may be entered, in substance affirming the decree of the Court below, though modified in its recital to correspond with this opinion; awarding costs of both Courts to complainant, and remitting the cause to the Court below for further proceedings.

MARTIN Ch. J. and CHRISTIANCY J. concurred.

CAMPBELL J., dissenting:

I concur in the opinion that the land in the hands of Mrs. McKee is held subject to the purchase money incumbrances. But while the objection to the want of proof of the assignment of the note and mortgage is, under the circumstances, not peculiarly meritorious, I do not think we can avoid its force. The bill alleges written assignments from Cameron to Wilcox, and from Wilcox to Young. Parol proof is not admissible to establish these, and especially so where the proof is ambiguous. But aside from this, I deem the rule requiring the documentary proof of right to be produced before decree to be something more than a technical one. The Court should have the papers before it, in order to be sure that the right continues in the complainant. If this is so, it should have been made an exhibit to entitle it to be read at the hearing in the Court below, as I doubt very much our right to act upon what was not before that tribunal. I should be glad to concur with my brethren in what I feel to be no more than justice, if I could see my way clear to allowing the omission in proof to be corrected here.

INDEX TO CASES REPORTED.

ABATEMENT OF SUIT.

1. Sale of note pending suit- set off. Where, in a suit by the assignees of a bank, against the indorser of a promissory note past due when assigned, the note, pending suit, became the property of another, it was held that the suit did not thereby abate, but might be prosecuted for the benefit of such purchaser, and that the note was subject to any 'set off which could have been made against it in an action by the bank itself. — Newberry v. Trowbridge, 263.

2.

Set off by the defendant of individual claim after death of co-defendant. And where in such case, pending suit, one of the defendants died, and the survivor held a certificate signed by one of the plaintiffs as acting assignee of the bank, certifying that he had deposited a certain sum with the assignees, and that the same constituted a claim in his favor against the assets of the bank, it was held that the amount due on such certificates was proper matter of set off in favor of such defendant. Ibid.

1.

ACKNOWLEDGMENT OF DEED.

Acknowledgment of deed before party in interest. — A grantee in a deed, or one for whose immediate use it is made, cannot take an acknowledgment thereof. Groesbeck v. Seeley, 329.

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2. But under the statute, (2 Comp. L., § 6237,) no trust results in favor of him who furnishes the consideration, and procures the deed to be made, unless it appear on the face of the deed, and such a trust cannot be raised by parol. — Ibid.

ACKNOWLEDGMENT OF LIABILITY.

See BILLS OF EXCHANGE AND PROMISSORY NOTES, 4 & 5.

ACTION.

Suit on Judgment—by whom brought. A cannot maintain a suit in his own name on a judgment in favor of B, even though it be averred and proved that the judgment was rendered in A's favor, by the name of B by mistake. - Gilbert v. Hanford, 40.

AMENDMENT.

See PRACTICE IN CIRCUIT COURT, 5.

APPEAL FROM CHANCERY.

See EQUITY, 13 AND 14.

ASSIGNMENT.

See DONATIO CAUSA MORTIS.

ASSIGNMENT OF ERRORS.

See PRACTICE IN SUPREME COURT, 7.

BAILMENT.

1. Storage in Grain Elevator. - When Trover will lie. Defendant, being the proprietor of a grain elevator, received from plaintiff a quantity of wheat in store. The receipt which he gave provided that the wheat should be delivered on return of the receipt properly indorsed by the party to whose order it was, by its terms, deliverable, and on payment of charges; and that loss or damage by fire was at the owner's risk. Upon demand and refusal to deliver the quantity of wheat specified in the receipt, plaintiff brought an action of Trover to recover its value. Proof was made of an usage, well known to both parties, according to which grain so received is mixed with other like grain in kind and quality, and that delivery of the same identical grain is not made or expected,