Page:Harvard Law Review Volume 9.djvu/186

158 158 HARVARD LAW REVIEW. personalty and in regard to realty, the latter passing directly to the heir or devisee without the aid of the administrator. However, the rule of the principal case commends itself as eminently practical, and might well be supported on that ground. Property — Estate Tail — Curtesy. — A testator devised land to his daughter A., her heirs and assigns forever, " providing that she dies leaving lineal heirs of her body ; " but, in case she dies " leaving no child or children or descendants," he gave the land to B. In an action of ejectment by B. against A.'s husband, held, that A. took an estate tail, and therefore, upon her death, the defendant became tenant by the curtesy, notwithstanding the death of all issue during A.'s life. Holden v. Wells, 31 Atl. Rep. 265 (R. I.). The law deals kindly with a testator's intentions, and often carries them into effect regardless of the strict rules which otherwise control the creation of estates. The only question here is whether the testator's words can be said to point to an estate tail as the object of his intentions, and there is certainly authority for using them in that sense. I Washb. Real Prop. 105. It is immaterial to the case, however, whether this be an instance of an estate tail determining by failure of issue or of a fee determining by execu- tory devise, since it is perfectly settled law that both are exceptions to the general rule denying curtesy after the determination of the principal estate. 4 Kent's Comm. *34. Property — Mortgage Sale — Foreign Administrator — Right to Execute Power of Sale. — Bill to enjoin the completion of a sale of land in Rhode Island under a power of sale contained in a mortgage by complainant to W. C, deceased, late of Massachusetts. Respondent, having been duly appointed administrator in Massachusetts, sold the land at public auction under the power, which ran to the mortgagee, his executors, administrators, and assigns. Held, though a foreign administrator, he could execute the power in Rhode Island. Thurberv. Carpenter, 31 Atl. Rep. 5 (R. I.). The court admits that it has been held that a foreign administrator cannot assign a mortgage where the legal title to the land is affected, because foreclosure or a writ of entry might be necessary to enforce the right under the mortgage, and a foreign executor could give no right which he could not himself exercise. The present case is distinguished on the ground that the rule is inapplicable to the modern form of mortgage with a power of sale, which does not require foreclosure proceedings. In such a case, an administrator is regarded as acting " not strictly in his official capacity as the representative of the de- ceased mortgagee, but rather as 2i persona designata, and so, as the appointee of the mortgagor," exercising the power " by virtue of the contract between the parties." The authority upon the point seems meagre, but the cases cited sustain the proposition enun- ciated. Doolittle V. Lewis, 7 Johns. Ch. 45; Hayes v. Frey, 54 Wis. 503 ; Holcombe v. Richards, 38 Minn. 38. Quasi-Contract — Attachment — Action arising on Contract. — On appeal from an order of the circuit court discharging an attachment, the Supreme Court of South Dakota held, that the attachment should not have been discharged, as a judgment of a sister state was a contract within the words " action arising on contract " as used in the attachment law, and that it was immaterial whether the judgment was founded on a tort or on a contract. First Nat. Bank of Nashua v. Vanvooris, 62 N. W. Rep. 378 (So. Dakota). Though the court admits that a judgment is not a true contract, but a quasi-contract, it says that the legislature must have used the word " contract " in the statute in the sense of an action ex contractu as distinguished from an action ex delicto. This is giving rather a broad interpretation to the word " contract." The two kinds of obligations are entirely dis- tinct, and if the legislature meant to include quasi-contracts in the attachment law, it should have said so, as the Nebraska legislature has done. It would seem that the interpretation of the lower court was the more satisfactory, and it has no respectable weigh t of authority to support it. Black on Judgments, vol. i., §§ 8, 11, and cases cited, and Keener on Quasi- Contracts. Especially does the Supreme Court seem to be legislating rather than simply construingastatute, when it says that it is immaterial whether the judgment arose from a tort or a contract. Where a judgment is founded on a tort it seems almost impossible to call it a contract, and it is held on the bestauthority that Such a judgment is not a contract within the meaning of that clause of the federal Constitution providing against the impairing of the obligations of a contract. Louisiana v. Mayor, 109 U. S. 285, 3 Sup. Ct. 211, and text-books above cited. Quasi-Contract — Mistake of Fact — Money Paid under Pressure of Legal Process. — The defendants issued a summons against plaintifiE to recover his proportion of certain street improvement expenses alleged to be due from him as an abutting owner. The plaintiff paid the money before the summons was heard, and the summons was withdrawn. The plaintiff, having discovered that his premises did not abut