Page:Harvard Law Review Volume 9.djvu/575

547 RECENT CASES. 547 Equity — Wrongful Conveyance by Trustee — Rights of Purchaser AFTER Partial Payment. — This was a bill by a r<f j/«/ to recover land vrongfully conveyed by the trustee to defendant. Defendant claimed an indefeasible title as pur- chaser for value without notice. It appeared that part of the purchase money had been paid before notice. The court directed that defendant should convey. Held, that this was correct, since defendant, to insist on his right to retain the legal title as security for the money paid in good faith, should have claimed this in his answer. Webb v. Bailey, 23 S E. Rep. 644 (W. Va.). While it is too late to contend that a purchaser in a case like this should have an indefeasible title, still, as the court admits, he has an equity pro tanto for money paid before notice. Perry on Trusts, § 221. Under the modern doctrine one seeking to recover land wrongfully conveyed by a trustee must allege in his bill that defendant is not a bona fide purchaser for value. Moloney v. Koiirke, 100 Mass. 190. How then can it be said plaintiff was entitled to the relief the court has given him in the principal case when it clearly appears defendant has rights as a bona fide purchaser for value? The rights of a bona fide holder of a bill or note under like circumstances would seem to be analogous. Dresser v. Ry. Co., 93 U. S. 92. Evidence — Attempt at Modification on a New Trial. — On a new trial the evidence of the plaintiff's witnesses was changed with the apparent purpose of avoiding the decision of the appellate court. Held, the evidence of the witnesses at the former trial is to be taken as the fact. Williams v. D. L. 6^ W. R. R., 36 N. Y. Supp. 274. It would seem to be plain law that when a new trial is ordered in general terms the issues of fact are again open for determination upon the evidence adduced. Hid- den W.Jordan, 28 Cal. 301. It does not clearly appear in the principal case that the witnesses at the two trials were the same persons, but if so the discrepancies in their testimony would merely serve to impeach their credibility. Chamberlayne's Best on Evidence, 634. Evidence — Parol Evidence. — A., B., and C, nephews of one X., since de- ceased, occupied certain lands belonging to X., executing a lease for two years, which was extended from time to time. After the uncle's death, the nephews set up against certain devisees an oral agreement made with them by X. that the lands should be theirs at his death. There were provisions in the lease seemingly inconsistent with such an agreement, particularly in the last extension, which apparently gave X. power to sell. Held, the court is competent to reconcile on a reasonable basis these incon- sistencies ; and on the whole there is sufficient evidence of the parol portion of the agreement to justify the granting of specific performance. Jenkins, J, dissenting. Harman v. Harman, 70 Fed. Rep. 894. The case defines the extent of the rule allowing parol evidence when an entire con- tract is originally verbal and a part only is reduced to writing, namely, that the parol portions of such an agreement must be made out clearly and satisfactorily, and must not contradict the written portion. For a statement of the rule, see i Greenleaf, Evi- dence, 284a (13th ed.) ; Ballston Bank v. Marine Bank, 16 Wis. 120, 136. Evidence — Parol Evidence Rule. — The plaintiff was tenant to the defendant under a written lease, and brings this action for injury from non-repair of house. Parol evidence was offered to show that in addition to the terms of the written contract the defendant had undertaken to repair the tenement. This evidence was rejected. Held, that no attempt was made to vary the written contract, but the evidence offered tended merely to establish a collateral stipulation concerning the same subject matter, and should have been admitted. Hines v. Wilcox, ^iZ S. W. Rep. 914 (Tenn ). The exception to the "parol evidence rule" recognized in this case is well estab- lished. Greenleaf, Evidence, § 284 a, note b'. Best's Evid., § 226 A, and cases cited. The collateral contract should be very distinctly collateral. Previous decisions, how- ever, have gone as far as the present in this respect. Ayer v. Bell Mfg. Co., 147 Mass. 46, and cases referred to above. Gift of Growing Crops — Delivery. — A life tenant of certain land gave plaintiff by parol a growing crop of corn. Before the crop was ripe, the life tenant died, and the remainderman conveyed his interest in the land to the defendant. Plain- tiff brings an action to enjoin defendant from appropriating the corn crop to her use. Held, that life tenant could dispose of growing crops by gift, and his gift to plaintiff was valid. Shafifer v. Stevens, 42 N. E. Rep. 620 (Tnd.). It is well understood that a gift, unaccompanied by. actual or constructive delivery of the property given, is not valid. In Noble v. Smith, 2 Johns. (N. Y.) 52, Chief Jus- tice Kent decided that growing corn was susceptible of delivery only by putting the donee in possession of the soil, and that anything less than this left the gift ineffectual.