dicate that the price of one kind was fixed with reference to the price of the other, or that the acceptance of both kinds was a consideration for the undertaking by the defendants to deliver iron of both descriptions. The shipments were severed by the acts of the parties. The payments were to be made on the arrival of each shipment. The plaintiffs directed that the sheets should be sent in three shipments, and the hoops in three or four. If only sheets had been included in one shipment, it would have answered the contract; and so of the hoops. The acts of the parties indicate that they regarded the contract as several in respect to each description of iron. The plaintiffs paid for the sheets by the Germanic, and declined to pay for the hoops; and the defendants made no claim that, having received the sheets, the plaintiffs could not reject the hoops. Indeed the mere failure of the defendants to send hoops of the required quality by the Germanic was not ipso facto a breach of their contract. They had a right to supply others in their place; and if the sheets conformed to the contract, the plaintiffs were bound to pay for them, although the hoops were defective. Whether the contract was entire in the sense claimed, depends upon the intention. We think, under the circumstances, it was properly held to be divisible, and that acceptance of sheets did not preclude the plaintiffs from rejecting hoops. Oct. 8, 1889. Pierson v. Crooks. Opinion by Andrews, J. Affirming 42 Huu, 571. FRAUD-EVIDENCE.-While a written contract for the sale of goods by sample cannot be shown by oral evidence to be made with warranty when none is set out in the contract, the statements of the broker falsely recommending the quality of the article are admissible to show that the sale was fraudulently procured. This evidence was expressly offered for the purpose of showing fraud, and we think it was competent upon that issue. Hall v. Erwin, 66 N. Y. 649; Johnson v. Hathorn, 2 Abb. Dec. 465; Mead v. Bunu, 32 N. Y. 275. Whether the defect was invisible, and the defendants were in fact deceived, relying upon the representation, and omitted to make such an examination of the seed as they might otherwise have made, would be for the jury to determine upon all the evidence. Day v. Pool, 52 N. Y. 416. There is no doubt as to the general rule that to a certain extent a principal is bound by the representations of his agent made in effecting a sale of property. Such an agent must be presumed to possess authority to make such representations in regard to its quality and condition as usually accompany such transactions, and his principal cannot receive the fruits of such a bargain without adopting the instrumentalities employed by his agent in bringing it to a consummation. Bennett v. Judson, 21 N. Y. 238. In an action between vendor and vendee, knowledge possessed by either the principal or the agent is respectively imputable to each other, and an agent whose principal has knowledge of latent defects in property proposed to be sold cannot honestly represent to its intending purchaser that it is free from such defects. It is well settled in this State that a principal cannot retain the benefits of a contract obtained through the misrepresentations of his agent, even though the principal was ignorant of the representation and really intended no fraud. It was held in Bennett v. Judson, 21 N. Y. 238, that a vendor of land is responsible for material misrepresentations in respect to its location and quality, made by his agent without express authority; and, in the absence of any actual knowledge by either the agent or the principal, whether the representations were true or false. In Hathaway v. Johnson, 55 N. Y. 96, the court said: "The authority of the agent to make the contract for the purchase of the malt is not denied, and the rule is stated by Mr. Justice Story (Story Ag., § 134) that where the act of the agent will bind the principal, then his representations, declarations and admissions respecting the subject-matter will also bind him, if made at the same time and constituting a part of the res gesto. That the principal is liable for the fraudulent conduct and representations of the agent, made in the course of his dealings for the principal, where the principal has received and retained the fruits of the fraud, is affirmed by the general current of authority. Heru v. Nichols, 1 Salk. 289; Cornfoot v. Fowke, 6 Mees. & W. 358; Murray v. Mann, 2 Exch. 537; Bennett v. Judson, 21 N. Y. 238. It is consonant with reason and justice that a principal should not be allowed to profit by the fraud of his agent; and, if he adopts the contract made in his behalf, although ignorant of the fraud, he should be held liable to make compensation to the party injured by it." See also Sandford v. Handy, 23 Wend. 260; Griswold v. Haven, 25 N. Y. 595; Railroad Co. v. Tyng, 63 id. 653. Oct. 8, 1889. Mayer v. Dean. Opinion by Ruger, C. J. Reversing 22 Jones & S. 315. ——— MANUFACTURED ARTICLES-WARRANTY.--Defendants' testator contracted to make certain plates for a work on birds, the colors in every detail, in portraying the birds and in general design and effect, to be the same as in the original plates furnished by plaintiff. When the plates were done there were no latent defects therein, and every difference between them and the original plates was discernible on examination, and after such examination plaintiff accepted them as a performance of the contract. Held, that he could not recover damages for such defects, the description of the plates in the contract not being a warranty of their quality which would survive their acceptance. The general rule that acceptance of property manufactured under an executory contract by the vendee precludes him from subsequently claiming damages for defects in such property is elementary. It is also well settled that a warranty, even in an executed contract, does not extend to known defects (Schuyler v. Russ, 2 Caines, 202; Jennings v. Insurance Co., 2 Den. 75; Bennett v. Buchan, 76 N. Y. 386; Day v. Pool, 52 id. 416; Parks v. Tool Co., 54 id. 586; Van Schoick v. Insurance Co., 68 id. 434); and for obvious reasons fraud in respect to the quality and condition of property sold cannot be predicated of defects which were visible, and known to the party alleged to have been defrauded. The gravamen of fraud is deceit, and there cannot be fraud where a party is not deceived. Dambmann v. Schulting, 75 N. Y. 55; 1 Benj. Sales, 555. The claim here is however that there was an implied warranty of the quality of the material to be used, and the character of the work to be done, which survived the acceptance of the property sold, and gave a right of action for defects subsequently discovered in such property. We have before seen that this claim cannot be supported in respect to the quality of the paper used, as that fact has been found by the referee adversely to the claim of the appellant, upon evidence which we regard as sufficient to. support his finding. The action must therefore be supported, if it can be held to lie at all, upon the claim of warranty to be implied from the description of the work contained in the contract. We entertain no doubt but that this was an executory contract for the manufacture and sale of personal property, which, upon performance by the vendor, entitled the vendee to an opportunity of inspection, and the right to accept or reject such property as he should determine after examination. The parties have obviously so treated the contract, and should now be held to the interpretation which they have put upon it. An acceptance by the vendee of personal property manufac tured under an executory contract of sale, after a full and fair opportunity of inspection, in the absence of fraud, estops him from thereafter raising any objection as to visible defects and imperfections, whether discovered or not, unless such delivery and acceptance is accompanied by some warranty of quality, manifestly intended to survive acceptance. Reed v. Randall, 29 N. Y. 358; Manufacturing Co. v. Allen, 53 id. 515; Gurney v. Railroad Co., 58 id. 358; Norton v. Dreyfuss, 106 id. 90; Iron Co. v. Pope, 108 id. 232; Brown v. Foster, id. 387. We think the authorities Oct. 8, 1889. Tuchband v. Chicago & A. R. Co. Opinion by Danforth, J. Affirming 2 N. Y. Supp. 493. TAXATION-LIFE-ESTATE.-(1) The Revised Statutes of New York, part 1, chapter 13, title 2, article 1, section 1, provides that every person shall be assessed in the town or ward in which he resides when the assessment is made, for all lands then owned by him in such town or ward. Laws of 1882, chapter 410, sections 814. 817. 818, relating to taxation in New York city, provide that the commissioners between certain dates shall cause to be made lists properly verified, containing the names of persons and corporations liable to be taxed, a description of the taxable property, and an are uniform to the effect that a deliberate, intelligent and intentional acceptance of property manufactured under an executory contract of sale, after inspection, precludes the vendee from claiming damages for any visible or discernible defect in the property sold. The acceptance disclosed by this case is not one to be in-appraisement of its value, and that these lists be en-. ferred from the receipt of the property without objection, but is founded upon an actual inspection, made with the view of determining the question whether the property should be received as a performance of the contract or not. We think the acceptance was unequivocal, with a full understanding on the part of the plaintiff of its design and effect. The inspection of the goods was invited for the purpose of obtaining authority to deliver the goods, on behalf of the plaintiff, to the parties who had contracted to print and bind the plates into books for him. The goods were clearly accepted for this purpose, and they were immediately handed over to those parties for the performance of the work they had contracted to do upon them. The plaintiff well understood this purpose, and treated the contract of the defendants' testator as having been performed by assuming the ownership and control of the property thereafter, directing the style and mode of binding, and making sales of the books thus bound, and requiring their delivery to his vendees for a period of nearly a year after such acceptance. Under such circumstances he is not at liberty to claim that there was no acceptance of the property sold, or claim damages for defects in the articles so accepted. Brown v. Foster, supra; Lilly white v. Devereux, 15 Mees. & W. 285. Oct. 8, 1889. Studer v. Bleistein. Opinion by Ruger, C. J. Affirming 1 N. Y. Supp. 187. SUMMONS-service of. Plaintiff's affidavit, in a suit against a foreign corporation, alleged that defendant had property in the State, consisting of cars, office furniture, tickets, etc. One O. was described in defendant's list of "officers and agents" as its "general agent, passenger department, 261 Broadway, New York." The windows of 261 Broadway were inscribed with signs indicating that the office is the general office for the general railroad business of defendant. Held, that it sufficiently appeared that defendant had property in the State, and that O. was its "managing agent, to allow service of summons upon him, under Code Civil Procedure of New York, section 432, permitting service on a foreign corporation, having property in the State, by leaving a copy of the summons with its managing agent in the State." The order in this case is not only directly sustained by the case of Palmer v. Pennsylvania Co., 35 Hun, 369, but is within the principle on which Hiller v. Railroad Co., 70 N. Y. 224, and Pope v. Manufacturing Co., 87 id. 137, were decided. So far as the cases cited by the appellant hold a contrary doctrine, they cannot be approved. The limit service by requiring the person served, in case of an action against a railroad corporation, to be one who controls "the general and practical operations and business of running its road," would so restrict the meaning of the statute as to render it useless. Such an agent would naturally find his occupation and engagement in the State where the road was domiciled or operated; and if his incidental presence in this State subjected him to process as representing the corporation, it cannot be supposed that the LegisJature intended to confine the remedy to him alone. tered in books, and kept open for correction till May 1 and then closed. Sections 828, 829, 831, 832 require assessment-rolls to be prepared and delivered in July to the aldermen, who must extend on the rolls the amount of chargeable taxes. The Consolidation Act of 1882, section 833, requires the aldermen on or before the first Monday of September to deliver the rolls to the receiver of taxes, together with a warrant directing collection of the sums specified. A testator devised all his property, subject to an annuity to his wife, to his daughters for life, with remainder to their issue. Testator's property had been assessed to him before his death, and the rolls had been delivered to the aldermen, but the taxes had not been ascertained and extended on the rolls. Held, that the estate, and not the income therefrom going to the life-tenants, was liable for the taxes. We think the question in this case is controlled by the decision of this court in Rundell v. Lakey, 40 N. Y. 513. The principle of this case was not affected by the subsequent decision in Barlow v. Bank, 63 N. Y. 399. Neither does In re Selleck, 111 N. Y. 284, have any bearing upon the question under consideration. The rule applicable to the State at large, as thus laid down, was applied to the analogous statutes relating to assessments in the city of New York in the case of Sisters v. Mayor, 3 N. Y. Supp. 433, affirmed in this court in 112 N. Y. 677. (2) The Revised Statutes (7th ed.), page 2298, section 27, requires executors and administrators to pay debts of deceased in the following order: (1) Debts entitled to a preference under United States laws; (2) taxes assessed on deceased's estate previous to his death. Held, that at testator's death his taxes had been "assessed" to him within the meaning of this statute, and that this statute is also conclusive as to the liability of the estate. Oct. 8, 1889. In re Babcock. Opinion by Ruger, C. J. TRUSTS-MORTGAGES-FORECLOSURE-PARTIES.—(1) Where a trustee fails to pay taxes and water-rates on the trust-estate, and the court, on petition, grants leave to borrow sufficient money on mortgage to pay such accrued arrears, in order to prevent the threatened sale of the property, a loan made by the trustee, and a mortgage on the trust property, executed as security therefor, are not in contravention of the trust, and not void, under the Revised Statutes of New York, page 730, section 65, providing that, where the trust is expressed in the instrument creating the estate, every conveyance in contravention of the trust is void. (2) By a marriage settlement contract, the grantor conveyed a certain interest in real estate in trust for his intended wife during her life, to be sold upon her death if any issue survived her, and the proceeds invested for their benefit, each child to receive his share on attaining majority; but if no issue should survive her, or if the issue should all die before attaining majority, then the premises were to be conveyed back to the grantor; but if she survived both the grantor and the issue, then the trustee was to convey the premises, or pay the proceeds of a sale thereof to her absolutely. Held, that a sou of the grantor and beneficiary, though of age, had a mere contingent interest, and was not a necessary party to a suit to foreclose a mortgage executed by the trustee during the life of the beneficiary. Second Division, Oct. 8, 1889. United States Trust Co. v. Roche. Opinion by Follett, J. Reversing 41 Hun, 549. VENDOR AND PURCHASER- - VENDOR'S TITLE.- Defendants made a contract for the sale of land to plaintiff, who agreed to assume a certain mortgage outstanding against it. Defendants' title rested on a deed to them, which recited that the grantor was seized in his own name, but in the right of, and for the use and benefit of, a certain firm. The grantor held under a proper deed to himself. A judgment was recorded against him while the title was in him, but there was parol evidence that he had purchased with money of the firm, and held the land as firm property. Plaintiff refused to take a conveyance on account of the judgment lien. Held, that defendants could not give title, and plaintiff could recover a partial payment made. It is familiar law that an agreement to make a good title is always implied in executory contracts for the sale of land, and that a purchaser is never bound to accept a defective title, unless he expressly stipulates to take such title knowing its defects. His right to an undisputable title clear of defects and incumbrances does not depend upon the agreement of the parties, but is given by the law. Sugd. Vend. (13th ed.) 14; Rawle Cov. 430; Burwell v. Jackson, 9 N. Y. 535; Delavan v. Duncan, 49 id. 485. Within the meaning of this sale, at least according to the decisions in this State, a good title means, not merely a title valid in fact, but a marketable title, which can again be sold to a reasonable purchaser, or mortgaged to a person of reasonable prudence as a security for the loan of money. A purchaser will not generally be compelled to take a title when there is a defect in the record title which can be cured only by a resort to parol evidence, or when there is an apparent incumbrance which can be removed or defeated only by such evidence; and so far as there are any exceptions to this rule, they are extraordinary cases, in which it is very clear that the purchaser can suffer no harm from the defect or incumbrance. Swayne v. Lyon, 67 Penn. St. 436; Dobbs v. Norcross, 24 N. J. Eq. 327. If the plaintiff had been a purchaser at a judicial sale, and this had been a proceeding against him to compel him to take the title, or a proceeding by him to be relieved from his purchase, and to have his deposit refunded, it cannot be doubted that the title would have been held so defective or doubtful that the court would have granted him relief. Jordan v. Poillon, 77 N. Y. 518; Fleming v. Burnham, 100 id. 1: Toole v. Toole, 112 id. 333; Ferry v. Sampson, id. 415. If the vendors here had brought an action against the vendee to compel specific performance of this contract, it is equally clear that they would have failed in the action. The court would not compel the vendee to take the title with the cloud of this incumbrance resting thereon. Marlow v. Smith, 2 P. Wms. 201; Sloper v. Fish, 2 Ves. & B. 149; Shapland v. Smith, 1 Brown Ch. 75; Jeffries v. Jeffries, 117 Mass. 184; Seymour v. De Lancey, Hopk. Ch. 436; Hinckley v. Smith, 51 N. Y. 21; Freetly v. Barnhart, 51 Penn. St. 279; 3 Pom. Eq. Jur., § 1405. But this is an action at law, and it has sometimes been held that the distinction between good and marketable titles is peculiar to courts of equity; that it is unknown in courts of law; and that there the question is, simply, is the title good or bad? The earliest case which has come to our attention holding such a doctrine is Romilly v. James, 6 Taunt. 274 (decided in 1815). That was an action to recover back the deposit paid on a contract for the purchase of lands, upon the alleged insufficiency of the title tendered, and there Gibbs, C. J., said: "It is said that | the plaintiff will have made out his claim to recover back his deposit if a cloud is cast on the title. That is not so in a court of law. He must stand by the judgment of the court as they find the title to be, whether good or bad; aud if it be good in the judgment of a court of law, he cannot recover back his deposit. If he had gone into a court of equity, it might have been otherwise. I know a court of equity often says: This is a title which, though we think it available, is not one which we will compel an unwilling purchaser to take;' but that distinction is not known in a court of law." In that case however there was no question of fact depending upon parol evidence. The sole question was one of law-whether a devisee took a defeasible fee-simple with an executory devise over, or an estate tail; and the court held that he took an estate tail, and that therefore the vendor could, as matter of law, make a good title. The vendor clearly had such a title as a court of equity would now compel a purchaser to take. In Sugden Vendors (13th ed.), 332, it is said: "A court of law can of course decide upon the validity of a title, however ambiguous or doubtful the construction may appear to be. Whether courts of law were at liberty to follow in the footsteps of equity, and to hold that a title may be too doubtful to be forced on a purchaser, is a question upon which eminent judges have differed with each other and even with themselves. But it appears to be ultimately settled that courts of law cannot adopt the equitable rule, and are bound to decide the legal question upon which the right to recover must depend." The learned author here evidently had in mind titles depending upon disputed questions of law, which a court of law could certainly and finally solve, but not titles depending upon questions of fact to be solved by parol evidence of witnesses, and which in the absence of the parties to be bound, could never be said to be finally settled; and he cites, as authority that a purchaser will be entitled to a marketable title at law, Hartley v. Pehall, Peake, 131; Wilde v. Fort, 4 Taunt. 334; Curling v. Shuttleworth, 6 Bing. 121, and as authority that he is entitled at law to only a good title, although not marketable, Boyman v. Gutch, 7 Bing. 379; Oxenden v. Skinner, 4 Gwil. Tit. Cas. 1573; Maberley v. Robins, 5 Taunt. 625; Romilly v. James, 6 id. 274. In Jeakes v. White, 6 Exch. 873, decided in 1851, the action was brought to recover the expenses incurred by the plaintiffs in investigating the defendant's title to mortgage certain lands, and the plaintiffs recovered. Pollock, C. B., writing the opinion of the court, said: "The question really is, whether this was such a title as a vendee has a right to expect, and which would justify him in concluding the purchase. We think that where a question arises between parties who are about to enter into the relationship of vendor and vendee, as to the meaning of a good or sufficient title, there must be such a title as the Court of Chancery would adopt as a sufficient ground for compelling specific performance." In Simmons v. Heseltine, 5 C. B. (N. S.) 555, decided in 1858, after the thirteenth edition of Sugden on Vendors was published, it was held that, when the ability of the vendor to make a good title to a purchaser of the premises sold depends upon a doubtful question of fact or of law, the title will not be deemed a good or sufficient title as between vendor and vendee. There A. bought certain premises, the description of which in the particulars included a stall, which was claimed by the purchaser of the adjoining house under the same vendor, and it was doubtful as a matter of fact whether the description had been corrected at the time of the sale to A. so as to exclude the stall, and as a matter of law, whether the stall was included in the conveyance to the purchaser of the adjoining premises; and a court of equity had refused to decree specific performance against A., and it was held that A. was entitled to receive back his deposit and inter | of fact to them. So now there is no longer any reason whatever for the distinction which some judges have made as to marketable titles in courts of law and equity. If a vendor cannot, by an action for specific performance, compel a vendee to take a conveyance of land because the title is doubtful and unmarketable, why should he be permitted to compel him, in an action at law, to pay for the land, both actions being triable in the same tribuual? Why should a purchaser be compelled to pay for a title which he is not bound to take? If a vendee who has paid part of the purchase-money sues to recover it back because the title tendered to him is unmarketable, the vendor in the same action can set up as an equitable defense or counter-claim a cause of action for the specific per est, and the expenses of investigating the title in an action at law against the vendor. So we do not perceive how it can be said that the law has been finally settled in England according to the text of Sugden. In this State, in O'Reilly v. King, 2 Robt. 587; Church Home v. Thompson, 52 N. Y. Super. Ct. 321; Bayliss v. Stimson, 53 id. 225, the New York Superior Court held that, in an action by a vendee of real estate against the vendor to recover back a deposit made on account of the purchase-price, it was not sufficient for him to show that the title tendered was doubtful, but that he was bound to show that it was in fact bad, and that the doctrine of equity courts as to marketable titles had no application. The latter case was affirmed in this court, not upon the law however as announced in the court below, but upon the ground that the ob-formance of the contract (Moser v. Cochrane, 107 N. jections to the title were baseless. There is also some countenance for the doctrine of the Superior Court cases cited in the opinion of Folger, J., in Murray v. Harway, 56 N. Y. 337. There however the learned judge was of opinion that upon the facts a court of equity would have adjudged specific performance against the vendee, and it is clear that whenever such is the case the vendee cannot, in a court of law, rescind the contract, and recover back a payment of purchase-money. It has been settled in Pennsylvania that a vendee can defeat an action at law, brought by the vendor for an installment of purchase-money under an executory contract for the sale of lands, by showing, not that the title tendered is actually bad, but that it is doubtful and unmarketable. Colwell v. Hamilton, 10 Watts, 413; Ludwick v. Huntzinger, 5 Watts & S. 51; Swayne v. Lyon, 67 Penn. St. 436. In Allen v. Atkinson, 21 Mich. 351, an action at law, Cooley, J., said: "The vendee had an undoubted right to a good title, and to a deed with proper covenants; and he had a right also to insist that the title should be a marketable one, not open to reasonable objection." The case of Church Home v. Thompson, supra, came to this court and the judgment was here affirmed upon the facts (108 N. Y. 618), but the doctrine of the Superior Court cases above cited, as well as that of Romilly v. James, supra, was distinctly repudiated. Peckham, J., writing the opinion, here said: "We disagree with the court at General Term upon the necessity in such a case as this of showing that the title is absolutely bad. We think that if there were a reasonable doubt as to the vendor's title, such as to affect the value of the property, and to interfere with the sale of the laud to a reasonable purchaser, the plaintiff's cause of action would be sustained." While what was thus said was not necessary to the decision of that case, it is more than a mere dictum. The opinion, concurred in by the entire court, was written to set right what was deemed an erroneous view of the law taken in the court below, and which might otherwise have been supposed, from the opinion or the judgment, to have received the approval of this court. It has sometimes been said that the reason why a court of equity will not compel au unwilling vendee of real estate to take a title, which although good is not marketable, is that such a court is not competent to decide, or is, at least, unwilling to decide, doubtful questions of law and fact in such cases, at the hazard of what might afterward be determined in a court of law. Rawle Cov. 433, note. Courts of law, with jurors as triers of the issues of fact, were deemed more competent than courts of equity to solve the doubts; but whatever foundation the reason may once have had, it has none now in this State, since the union of law and equity in the same courts, and since equitable defenses can be set up in legal actions. Courts, in equitable actions, are just as competent here to deal with both the law and the facts of a case as they are in legal actions. If the conscience of a judge in an equitable action needs information, he can obtain the findings of a jury by submitting the issues Y. 35), and it would be quite an absurd administration of the law if the same court, at the same time, and upon the same evidence, should deny the defendant specific performance, on the ground that his title was doubtful and unmarketable, and yet permit him to retain the purchase-money because his title was in fact good, although doubtful and unmarketable. Dealings in real estate generally involve large pecuniary values, and large amounts are frequently invested in buildings and other improvements. The law is such that an adverse claim need not be asserted for many years, until after time has closed the mouths of living witnesses and destroyed ancient muniments of title. For many purposes a doubtful title is a worthless title. Hence it is generally the expectation of vendees, entering into executory contracts for the purchase of land, that they will receive a good title not only, but one free from reasonable doubt and damaging infirmity; and such a title it must be assumed that every fair, honest vendor expects to give, unless he is freed from the obligation by some express stipulation in the contract; and this understanding should be respected and enforced by both courts of law and of equity. As said by Selden, J., in Burwell v. Jackson, 9 N. Y. 535: "Executory agreements for the purchase of lands are frequently made under circumstances which afford neither time nor opportunity for a thorough examination, and the purchaser cannot be presumed, prior to entering into such an agreement, to have investigated the title." He pays his money in reliance upon the understanding that he is to have a title both good and marketable, and if the vendor does not tender him such a title, there is absolutely no reason why he should not receive back the money paid, and he should not be compelled to take an unmarketable title at the peril of losing what he has paid. Take the case where a vendee has made an executory contract of sale, paid the entire purchase-price, and the vendor at the time of performance by him, tenders a title which, by the record, appears to be in another, and yet where he can show, by parol evidence, a lost deed or will vesting him with the title-shall the vendee be compelled to lose the money paid, or take an infirm and, for many purposes, a worthless title? It is true that even courts of equity have in some cases compelled purchasers to take title resting upon adverse possession; but in such cases the adverse possession was established beyond any reasonable doubt. It is a fact usually open and notorious, and generally known to many witnesses. Such a title is strengthened by every passing hour. Such cases bear little analogy to one like this, where the lapse of time operates in a different way, and may speedily wipe out the only evidence competent to cure or remove the defect in the title tendered. Here Barnes insists upon his lien, and refuses to cancel it. The vendors should be at the expense of clearing the title of this cloud, and it is not just that they should cast that burden upon the vendee, and require him to take an unmarketable title. Oct. 8, 1889. Moore v. Williams. Opinion by Earl, J. Affirming 23 J. & S. 116. AND UNDUE INFLUENCE. WILLS FRAUD The testator had assigned to the son of his nephew a certain mortgage, with written authority to sell the same, agreeing to give him a part of the proceeds of such sale. He made a will bequeathing a sum of money to each of the children of such nephew, but provided that such bequests should be void unless the mortgage was reassigned to his executors within a given time. He subsequently served a written notice upon the assignee of such mortgages revoking his authority, and upon learning thereafter that transactions had taken place by which the assignee and his sister's husband had realized part of the value of the mortgage, he revoked by a codicil the bequests formerly made to such assignee, and the other children of his nephew. Held, that there being no evidence that testator was induced by fear, fraud, or undue influence to make the change, there was no ground to contest the validity of the codicil. Oct. 8. 1889. Ross v. Gleason. Opinion by Danforth, J. Affirming 44 Hun, 626. THE COW AND THE MAPLE SYRUP. BUSH V. BRAINARD. (1 Cow. 78.) [An action will not lie for carelessly leaving maple syrup in one's uninclosed wood, whereby the plaintiff's cow, being illegally suffered to run at large, and having strayed there, is killed by drinking it.] One Brainard owned a favorite cow, Renowned for milk-he called it "milch." Her coat was smooth and soft as silch; A star upon her forehead lay, Appropriate to her milky way; Her voice was noticeably low It necessarily was so; With care that each good wife adorns, Bush owned a lot of wooden cows, And had a fortune on the tap. This bush was destitute of fence, Of any law to keep it closed, His syrup Bush left there exposed. Now Brainard's cow did often range As Bush well knew; but though no dolt, At length, when Moolly in the grove In search of provender did rove, She found this palatable drink, That giving one convulsive cough, Brainard sued Bush for negligence This case to us presents two views,- Oh, Bush deserves much to be blamed, |