1. An infant cannot elect to take land
in which her money has been invested by
an administratrix; nor can a married wo-
man; but her husband may elect either
for his wife or for himself and wife con-
jointly.

Shanks v. Edmondson & als., 804
EQUITY, JURISDICTION AND RE-
LIEF.

1. A court of equity has jurisdiction of
a suit brought by the owner in possession,
to set aside a deed which has been put
upon record, whereby the complainant's
land has been wrongfully conveyed to a
purchaser at a tax sale.

Carroll v. Brown,

791

2. See Practice in Chancery, No. 3,
12, 14, 17, 18, 20, 22, 24.

4. In an action of unlawful detainer,
plaintiff claimed under the will of her
husband, which gave her in lieu of her
dower all his real estate during her
life, except certain portions bequeathed
to his children. The defendant claimed
under a son to whom testator gave a
parcel of land. Evidence for the de-
fendant, that the plaintiff had been in
possession and enjoyed the benefits of one
full half of the cleared lands of her late
husband from the time of his death to the
time of the trial, is irrelevant and inad-
missible. Bartley v. McKinney, 750

5. In an action of ejectment parol evi-
dence is admissible to prove that the calls
for course and distance in a deed are mis-
taken, and do not designate the true
boundary of the land intended to be con-
veyed.
Elliott v. Horton, 766
6. The declarations of a party are gen-
erally not admissible as evidence in his
own favor; but they are so admissible
whenever they form a part of the res
gesta. To come within the terms and
operations of the rule, the declarations
must accompany and explain an act done,
which is a fact in issue, or is relevant to
the issue.

Scott and Boyd v. Shelor,

891

7. In a prosecution for larceny, evi-
dence of the statements made by the pro-
secutor, immediately after the alleged
offence was committed, is inadmissible to
sustain the prosecution. See Criminal
Jurisdiction and Proceedings, No. 5, and

Hayne's case,

942

8. As to the effect of stolen goods be-
ing found in the possession of the accused
in cases of simple larceny, or larceny
compounded with burglary or housebreak-
See Larceny, No. 4, 5, and
Walker's case,

ing.

969

EXECUTORS AND ADMINISTRA-
TORS.

I. A case in which an executor is held
liable for money of his testator's estate,
which he had collected in July 1861, and
which he had deposited in bank in his
own name, with his own money.

Vaiden & als. v. Stubblefield's ex'or, 153
2. Although at common law the ap-
pointment by a creditor of his debtor as
executor operated, as against legatees and
distributees, with certain exceptions, as a
release of the debt, the rule never ap-

plied to a debtor who was appointed ad
ministrator of his creditor.

Utterback's adm'r v. Cooper,

233
3. If the obligor of a bond takes out
administration to the obligee and dies,
the administrator de bonis non of the obli-
gee may maintain an action for such debt
against the executor of the obligor. And
so if the administrator is removed from
his office. the action may be maintained
against him by the administrator de bonis
non of the obligee.
Idem, 233

4. A lien given to secure the debt due
from an executor or administrator to his
testator or intestate, is, of course, dis-
charged when the debt is actually paid to
the creditors or legatees and distributees
of the creditor; but the introducing the
debt into an administration account, as a
charge to the executor or administrator,
is not sufficient to discharge the lien,
either as against creditors, legatees or dis-
tributees of the creditor, or as against the
sureties of the executor or administrator.
Idem,

233

5. A sold to his son U a tract of land,
taking his bonds for the purchase money,
and a deed of trust on the land to secure
them. He died, and his son U qualified
as his administrator. Shortly afterwards
U obtained a loan of money and stock
from C, and gave a deed on this same land
to secure it. Upon a bill filed by C
against the administrator de bonis non of
A, and U and his sureties in his official
bond, to enforce his lien; the court being
of opinion, from all the evidence, that U
had not paid any part of his debt to A,
though he represented to C he had done
it, and that he was fraudulently trying to
get rid of the lien in favor of A in order
to raise money for his own purposes, and
that C either knew, or might have known
if he had wished it, the facts, and made
the loan with the knowledge of them or
in willful ignorance,-HELD: in favor of
A's estate and U's sureties, that the lien
to secure A's debt was a valid subsisting
lien, and had preference to that of C.

Idem, 233
6. Where executors acting during the
late war had full power under the will to
do the acts which they performed, and in
performing them acted in good faith in
discharge of what they believed to be
their duty as executors, they are not liable
for the ultimate loss which has arisen out
of their acts.

Mills &als. v. Mills' ex'ors & als., 442

Same v. Lancaster & als.,

442

7. Executors who are empowered by
the will under which they act, to sell real
estate and collect debts, and invest the
proceeds for the purposes of the trusts,
declared in the will, in December 1862,
sell real estate, and in January, March
and April collect ante-war debts, well
secured on real estate, taking payment in
Confederate money, which they imme-
diately invest in eight per cent. bonds for
the purposes of the trusts of the will.-
HELD: That having acted in good faith,
and in the exercise of their best judg
ments, under the circumstances suround-
ing them, they are not liable for the
losses which accrued from such sales, col-
lections and investments. Idem, 442

8. Two of three nominated executors
qualify, and sell and convey real estate
to the purchasers, who pay up the pur-
chase money in full. Afterwards the
third qualifies, and consents to the sale
by sharing the commissions.-HELD:
The title of the purchaser is valid, at
least in equity.
Idem, 442

9. There is a perpetual rent secured on
real estate, which the lessee has a right to
redeem, by paying an amount which, at
six per cent., will produce an interest
equal to the rent.-HELD: One of these
executors may receive the payment,
though it may require all to execute the
release.
Idem, 442

FALSE PRETENCES.

I. In an indictment for obtaining mo-
ney on false pretences it would be a ma-
terial allegation that the money was
obtained by the false pretence alleged,
and therefore it is necessary to be proved
under the indictment for larceny founded
on the obtaining of money on false pre-
tences, in order to a conviction.

Fay's case,

912

2. The false pretences, either with or
without other causes, must have had a de-
cisive influence upon the mind of the
owner, so that without their weight he
would not have parted with his property.
Idem, 912

3. Where the false pretence is referred
to the sale of a lot by the prisoner, unless
the selling of the property was by a false
pretence, with intent to defraud the buyer,
the case is not within the statute. There-
fore the fraudulent intent must have ex-
isted at the time the false pretences were

that M shall have one-half the land for
her share, she paying the money she had
borrowed, and that S had purchased the
interest of M and the other two children
in the other half. M and these two chil-
dren convey to S the last half of the land
to be held by him to his own use. HELD:
I. L, whilst an infant, could not
make an election to take the land so
purchased in lieu of the money in the
hands of the administratrix, to which
she was entitled, and which had been
invested in land.

804

Shanks v. Edmondson & als.,
2. A wife during coverture has no
power to make such election. But the
husband may, in behalf of himself and
wife, make such election, where it
plainly and distinctly appears that he
acted for her, or for himself and wife
conjointly.
Idem, 804

3. Upon the marriage of L with S,
she not having made an election to
take the land, she had no interest in
the land held by her mother, as real
estate; but only a claim upon her mo-
ther as administratrix, for her propor-
tion of the money which she was enti
tled to receive as one of the distributees
of her father's estate. This was upon
her marriage nothing more than a chose
in action, which upon a reduction into
possession belongs to her husband.
Idem, 804

4. The adjustment made by M and
her two children and S, was upon the
part of S a reduction into possession of
the chose in action. S being a party to
the deed, the claim against M was
thereby extinguished; and such extin-
guishment will be held to be a reduc-
tion into possession by S to such an
extent as to clothe him with the abso-
lute property as against any claim of
his wife, either to have the land as hers
or to have a settlement upon her.

Idem, 804
5. For the principles applicable to
such cases, see the opinion of the court
by Christian, J.
Idem, 804

INHERITANCE.

1. H, of foreign birth, bought real
estate in 1856 and 1859, and died in
1861 seized thereof, without known heirs.
The said real estate was escheated to the
commonwealth; and in May 1876, per-
sons, natives of and living in Switzer-

2. One of the conditions of the policy
is, that it shall be void "if the title of the
property is transferred or changed."
This does not apply to the descent of the
property on the death of the assured to
his heirs.
Idem, 88

3. A condition in a policy, that the
foreclosure of a mortgage shall be deemed
an alienation of the property, and avoid
the policy, does not involve a sale under
a decree of the court in a creditor's bill
against the heirs, &c., which sale is set
aside by the court.
Idem, 88
4. One condition of a policy is: Any
change within the control of the assured,
material to the risk, shall avoid the
policy. The change here referred to is a
change in the condition of the property
wrought by the agency of the assured;

and not the mere vacation of the house
by the assured or its occupants.

Idem, 88
5. A condition of the policy is, that the
policy shall be vitiated if the premises in-
sured become vacated by the removal of
the owner or occupant for more than
twenty days without immediate notice to
the company and written consent.-
HELD: It was competent for the insurer
or his lawful agent to waive the condi-
tion; and if at the time the agent of the
company received the premium of insu-
rance and delivered the policy, he had
knowledge of the vacation of the pro-
perty, and did not then avoid the policy,
but treated it as valid and subsisting, such
conduct of the agent was a waiver of the
condition, and a breach of it cannot be re-
lied on by the company to defeat a reco-
very on the policy.
Idem, 88

6. As to waivers by the insurers of
conditions in a policy, how and by whom
they may be made, see the opinion of
Burks, J.
Idem, 88

7. A condition of the policy required
immediate notice of loss, and that within
thirty days the insured render a particu-
lar account thereof, with an affidavit,
&c.-HELD: If the insurers from any re-
liable source knew that the building in-
sured had been destroyed by fire, and by
any act or declaration of theirs, or their
lawful agent, prevented the assured from
preparing the schedule, with the affidavit
thereto required by the policy, in thirty
days, whether verbally or in writing, it
was a waiver of the performance within
the thirty days of that condition; and the
omission to do so is no bar to the action
on the policy, provided it was done
within a reasonable time thereafter.

Idem, 88

8. If at the time of issuing a policy I
had been authorized by the insurance
company to receive and accept proposals
for risks subject to their approval and
ratification, to issue and deliver policies
and renew the same, and receive pre-
miums therefor, and had been supplied
with blanks signed by the president, to be
filled and countersigned by him; this
constituted I the general agent of the
company; and the company is bound by
all his acts as such, within the scope of
his authority, so long as it existed, not-
withstanding any private instructions
which he may have received limiting

10. One condition of a policy of insu-
rance on a building is, "if the building
insured stands upon leased ground it must
be so represented to the company, and so
expressed in the written part of the pol-
icy; otherwise the policy shall be void."
HELD: The plaintiff may prove that the
description of the property was inserted
in the policy by the general agent of the
company who issued this policy, and that
he knew at the time that the building
stood upon leased ground.

Manhattan Fire Ins. Co. v.
Weill & Ullman,
389

11. The knowledge of the general
agent issuing the policy is the knowledge
of the company, and they receiving the
premiums on the policy with that know-
ledge, are bound by the policy.
Idem, 389
12. Another condition of a policy of
insurance on buildings is, "if the interest
of the assured in the property be any
other than the entire, unconditional and
sole ownership of the property for the use
and benefit of the assured, it must be so
represented to the company, and so ex-
pressed in the written part of this policy,
otherwise the policy shall be void." The
assured had given a deed of trust upon
the building to secure a debt.-HELD:

1. This condition does not refer to
the legal title, but to the interest of the
assured in the property: that he war-
ranted to be no other than the entire
unconditional ownership of the pro-
perty.
Idem, 389

2. This was no warranty against
liens and incumbrances. The assured's
interest was the sole ownership. The
fact that he had given the deed of trust
to secure a debt upon the property does
not make the cestui que trust a joint
Idem, 389

owner,

3. There being no pretence of fraud-
ulent concealment or misrepresentation
by the assured, of the deed of trust
upon the building, the policy is obliga-
tory upon the insurance company.
Idem, 389
13. A policy of insurance is for $5,000
-to wit, $2,000 on buildings, describing
VOL. XXVIII-125

-

them, $1,000 on machinery and fixtures,
$2,000 on stock of grain, flour, meal, &c.
And after prescribing what the insured
shall do in case of loss, says: All fraud
or false swearing, on the part of the
assured, or on the part of any person
on his behalf, shall be a forfeiture of
all claim under this policy. And it
concludes, and this policy is made
and accepted on the above express
conditions. In an action by the assured
on this policy it is proved that the claim
of the plaintiff for his alleged loss on his
stock of grain, &c., was fraudulent and
false, and that the amount of loss desig-
nated in said proof sworn to by him, was
fraudulent and false so far as the said
stock of grain, &c., was concerned. But
it was not shown that his claim or his
proof of loss as to the said buildings or
machinery and fixtures was fraudulent
and false-HELD: The forfeiture for
false-swearing is incurred by the fraud
and false-swearing as to the grain, &c.,
and the insured cannot recover for any
part of the loss.

Moore v. Va. Fire & Marine
Ins. Co.,

Accord, Same v. The Firemans

Fund Ins. Co.,

508

524

14. Fraud on the part of the insured
in making the contract of insurance will
render it void without any express pro-
vision to that effect in the policy, and
even though there may be such a provi-
sion therein relating only to fraud or false
swearing in connection with the prelimi-
nary proof.
Idem,
508
Idem, 524

15. The application to an insurance
company for insurance upon a building,
which is granted, and a policy issued
based upon the application, is a part of
the policy.

Southern Mutual Ins. Co. v.

Yates,
585
16. In such an application, one ques-
tion is whether there are any incum-
brances on the property, to which the
answer is, none. This is a warranty, and
if there was an incumbrance upon it, the
policy is not binding upon the company,
unless at the time of issuing the policy
they had actual knowledge of the exist-
ence of the incumbrance.