Page:Harvard Law Review Volume 10.djvu/411

385 RECENT CASES. 385 a will agrees to the whole of it. It would seem by analogy, that one knowing all the facts, who accepts a gift under one construction, agrees to have that construction ap- plied to the whole will. Property — Covenant of Warranty — Measure of Damages. — Held, that an evicted covenantee may recover of a remote warrantor of the title the sum received by such warrantor from his immediate grantee as the price of the land, though such covenantee himself paid to his immediate grantor a less sum. Hollingsworth v. Mexia 37 S. W. Rep. 454 (Tex.). In an action on a warranty of title to land by the immediate covenantee, nearly all the States outside New England fix the damages for total eviction at the amount of the purchase money, on the ground that, as this is simply a substitute for the ancient real warranty, the thing promised is to restore the value of the land at the time of the covenant. Pitcher v. Livingston, 4 Johns. I ; Sutton v. Page, 4 Tex. 142. If this ground is correct, it is difificult to see how the liability of the covenantor can be in- creased or diminished by any subsequent dealings with the land. Several courts, how- ever, have held that the liability of the covenantor is limited to the price paid by the plaintiff, if that is less than the covenantor received. Crisfield v. Storr, 36 Ind. 129; Mette V. Daiv, 9 Lea. 93 ; Williams v. Beet?ian, 2 Dev. 483. The rule of the principal case is followed in Brooks. Black, 68 Miss. 161, Lawrence v. Robertson 10 S. C. 8, and Mischke V. Baughn, 52 Iowa, 528. Property — Judgments — Collateral Aitack. — Held, a sale of land by an administrator, confirmed by the Orphan's Court, made on its order on the adminis- trator's petition, alleging death of the intestate seised of the land, the existence of the debt, the insufficiency of personal estate, and the necessity of selling the land to pay the debt may be attacked collaterally by the heirs, for want of jurisdiction of the Orphan's Court, because the debt was barred by the Statute of Limitations, and the land was by provision of statute relieved from the lien of the decedent's debt, though the want of jurisdiction does not appear upon the record. Rees v. Wildman, 35 Atl. Rep. 1047 (Pa.). It is a well established rule of law, that, if a court has no jurisdiction, its judgment may be collaterally attacked. The reason for this is obvious. But the principal case is one in point, and resembles closely the cases involving the administrator's sale of a living person's estate, where it has been held that the sale is absolutely void. yocLiim- sen V. Suffolk Savings Bank, 3 Allen, 87 ; Scott v. McNeal, 14 Sup. Ct.Rep. 1108. Property — Liability for Rent — Destruction of Premises — Eviction. — The plaintiff leased to defendant a " landing" on a river. By an extraordinary flood the bank was swept away, so that no practicable landing was left. Works were also built in the river by the lessor's authority, which prevented access to the shore. Held, that defendant's liability for rent was extinguished ; first, because the property leased was wholly destroyed; and secondly, because he might be considered as evicted by the lessor's acts. Waite v. O'Neil, 76 Fed. Rep. 408. See Notes. Property — License to cut Timber — Replevin. — Theowner of some timber land gave a license to enter on the land and cut the timber for the licensee's own use ; The plaintiff purchased this license for valuable consideration. The owner then sold the land to the defendant, reserving to himself and his assigns the timber and the right to enter and cut it. The defendant cut and carried off a part of the timber and on demand by the plaintiff refused to give it up. Held, in an action of replevin, that the plaintiff could recover. Carroday, C. J. dissenting. Keystone Lumber Co. v. Kolmauy 69 N. W. Rep. 165 (Wis.). The case presents a new and interesting question, and the court consequently dis- cuss it from an a priori standpoint. The opinion of the majority is at least ingenious, based on the ground that the defendant is the agent of the plaintiff, and that therefore the act of severing is done by the plaintiff's agent so that he thereby acquires title. The opinion of the dissenting judge shows' closer legal reasoning. His contention is- that the defendant's acft was a tort against the owner of the timber, since the title re- mained in him until the severance by the licensee, and that the plaintiff had no right to waive this tort as it was not against him, and adopt the defendant's wrongful act. That the defendant would be liable also to the licensor, the owner, seems clear, because the tort was against him in a destruction of his property. Whether the plaintiff might have an action on the case against the licensor or against the defendant for making his license less valuable is another matter. It is submitted that the opinion of the dis- senting judge represents the better view. Property — Rent Charge. — /)^^/^/, that an action of debt will not lie against a tenant for years for the non-payment of a rent charge issuing out of the land of which he is in possession. In re Herbage Rents, [1896] 2 Ch. 8ii. 51