Page:Harvard Law Review Volume 9.djvu/517

489 RECENT CASES. 489 death at the time of his gift. The learned and lengthly discussion by the court, which cites authorities from the times of Justinian to our own, makes the case interesting. Property — Ejectment— Possession. — I/eld, that, where title by descent was established by neither party, prior possession would prevail, and that building monu- ments about the land, which could not be fenced, and bringing lumber on it to Iniild, was sufficient possession for this purpose, even though insufficient to establish title by adverse possession. Mission of Immaculate Virgin v. Cronijt, 36 N. Y, Supp. 77. The distinction here made between two kinds of po.ssession, as though a physical dif- ference existed, is becoming quite common in the courts. It is generally thrown off, as it is here, by way of dictum, and is neither a real nor a desirable one to establish. See Hunter v. Starin, 26 Hun, 529, and Wheeler v. Spinola, 54 N. Y. at p. 387. No such distinction is recognized in Pollock on Possession. See Part II. chap. iii. § 17. The basis of the decision in this case is thoroughly well established law. Tyler on Eject- ment, chap. iv. Property — Fixtures — Vendor's Lien as against Mortgagee. — On a sale of mortgaged property, the vendors of machines placed in a mill partly before and partly after the mortgage, set up as a lien the condition of the purchase that title should remain in them until payment. The machines were held in place by bolts. Held, since they were placed in the building by the mortgagor to carry out its purpose, and were essential to its completeness, all the machines passed to the mortgagee. Cunningham V. Cureton, 2}^ S. E. Rep. 420 (Ga.). Three views are held on this question : one, that the lien on the fixtures prevails even against a mortgage subsequent to their annexation ; Tifft v. Horton, 53 N. Y. 377 ; another, in agreement with the principal case ; Clary v. Owen, 15 Gray, 522 ; and a third, that only those fixtures annexed prior to the mortgage pass by it ; Davenport v. Shants, 43 Vt. 546. The last, it is submitted, is the correct view, since it gives the mortgagee the security of all on which he advanced his money, and at the same time protects, in part at least, the contract of the mortgagor with the vendor. Property — Wills — Ademption. — The testator devised his interest in a farm to defendants, and his personal property to plaintiff. Before the execution of the will the testator had contracted to sell the farm for Sr,6oo payable after his death, interest mean- while payable to himself. After the execution of the will testator executed a deed to the vendee, and took the vendee's promissory note for $r,2oo payable in one year. At the testator's death the note, though due, remained unpaid. Held, the devisees of the land were entitled to the note. Frick v. Fruk, t^t^ Atl. Rep 462 (Md.). When a testator devises land which at the time of the execution of the will he is under contract to convey, he is held to intend that the devisee shall take not merely the legal title to the land, but also the testator's rights under the contract of sale. Hence, if the testator dies, — the contract of sale remaining executory on both sides, — the devisee takes the land and will be entitled to the purchase money en the exe- cution of the contract. Wright v. Minshall, 72 111. 584 ; Woods v. Moore, 4 Sandf. 579; Drent v. Vause, i Y. & C. Ch. 580. If the testator has, during his life, conveyed the legal title to the vendee leaving the vendee's part of the contract executory, it must follow that the devisee will still be entided to the testator's contract rights against the vendee, i. e. to collect and retain the purchase money. Further, it would seem that the devisee should succeed to the testator's rights against the vendee, even though those rights have been modified by agreement betweeen the testator and vendee subsequent to the execution of the will. In the principal case, if the transaction at the time the land was deeded to the vendee ought to be regarded as an entirely new contract, rescinding the former contract, rather than as a mere modi- fication of the old contract, it is difficult to reconcile the decision with Fattison v. Pat- tison, I Myl. & K. 12. Statute of Frauds — Incorporation by Reference. — Defendant's real estate agent wrote him a letter informing him of an offer, but omitting the name of the pro- posed purchaser. Later the agent wrote to the defendant's solicitor as follows : '* At Mr. Peter's request I send you the name of the purchaser of the above. It is Mr. H. Burlinson." Both notes were signed by the agent. In an action to enforce specific performance, held, the letters cannot be connected so as to satisfy the Statute of Frauds. Potter v. Peters, 72 L. T. Rep. 624. See Notes. Suretyship — Discharge of Sureties. — By the body of a bond. A., B., and C. were named as sureties, C.'s liabilitv being fixed at ;^50. After the signing by A. and B., C. signed, and added after his name " £2^ only." Held, this released the liability of A. and B., being a non-compliance with the conditions on which A. and B. signed.