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&:3 (Ark.) Contract of one party to sell land at a stipulated price, the other in return to pay the price, is for the sale of land, and does not create an agency for sale, although sales by the purchaser are contemplated in it.—Federal Realty Co. v. Evins, 179 S. W. 344. G->33 (Tex.Civ.App.) A purchaser of land held not entitled to rescind on the ground that the deed of dedication prepared by his grantors showed that they were to build a viaduct, which they did not.—Barnes & Mitchell v. Campbell, 179) S. W. 444. Where a vendor subsequently agreed with a city for the construction of a viaduct on the property sold, a statement at the time of the sale that there then existed a contract for the construction of the viaduct is no ground for rescission.—Id. In a suit where it was sought to rescind a purchase of land on the ground of misrepresentations as to future actions, held, that such misrepresentations were not fraudulently made so as to warrant rescission.-Id.
II. CONSTRUCTION AND OPERATION OF CONTRACT.
Q->78 (Ark.) Under changed agreement concerning payment of purchase price and furnishing of abstract of title, time held not of the essence as to performance by the vendor.Mays V. Blair, 179 S. W. 331.
III. MOIDIFICATION OR RESCISSION OF CONTRACT.
(C) Rescission by Purchaser. &= 110 (Tex.Civ.App.) Where the agent of a landowner represented to purchasers that a viaduct would be subsequently constructed, breach of that agreement does not warrant rescission
unless made with intent to deceive and de£Barnes & Mitchell v. Campbell, 179 S.
&: I 12 (Ark.) Where lots to which a vendor's title was unmarketable formed a substantial part of the purchase, the purchaser could refuse to pay any more on the price and demand the return of the amount already paid.—Mays v. Blair, 179 S. W. 331.
IV, PERFORMANCE OF CONTRACT. (A) Title and Estate of Vendor.
&: 130 (Ark.) A purchaser of land, before he is required to pay the purchase price, is entitled, unless stipulated to the contrary, to receive not only a good title, but one which is marketable. –Mays v. Blair, 179 S. W. 331. A marketable title must be a clear record title, and not one by adverse possession.—Id.
(D) Payment of Purchase Money.
C: 175 (Ark.) Purchaser under unexecuted contract held ordinarily entitled to detain purchase money if vendor's title is not such as he is entitled to require.—Mays v. Blair, 179 S. W. 331. Q: 175 (Ky.) Unless there is immediate danger of loss without legal remedy, a grantee will not be relieved from payment of the price Ior alleged defect in title and insolvency of grantor, where he is in possession under an executed #ract of sale.—Todd v. Finley, 179 S. W. Oo.
V. RIGHTS AND LIABILITIES OF
G:228 (Tex.Civ.App.) One obtaining a conveyance from a grantee in a deed, absolute in form, but in fact a mortgage, acquires no title unless he is a purchaser for value and without notice that the deed was a mortgage.—McLemore v. Bickerstaff, 179 S. W. 536. &=232 (Tex.Civ.App.) A conveyance by a mortgagee out of possession passes no title.— McLemore v. Bickerstaff, 179 S. W. 536. Q:239 (Tex.Civ.App.) Where the question was solely one of boundary, and plaintiff was not in possession of the land which it claimed, the bona fides of plaintiff's purchase or want of notice does not give him additional rights.— #wood Inv. Co. v. Geiselman, 179 S. W.
VI. REMEDIES OF VENIDOR. (A) Lien and Recovery of Land.
C>253 (Tex.Civ.App.) Decree of foreclosure of vendor's lien held erroneous, the description in the deed being defective, while the only description in the purchase notes was by reference thereto, there being no proof as to the intent or that there was a mutual mistake.—Stewart v. Thomas, 179 S. W. S86. Q: 260 (Tex.Civ.App.) Execution and record of indemnity note and trust deed by original purchaser of land held to create a lien in favor of the holders of the note subject to the lien of the holder of vendor's lien notes previously acquired by a subsequent purchaser of the property.Grubbs v. Eddleman, 179 S. W. 91. A holder of vendor's lien notes held not to have a lien for improvements superior to the lien of the holders of a note to indemnify indorsers upon a note given for the price.—Id. &:261 (Tex.Civ.App.) Purchasers for value and without actual notice of previous transfers of vendor's lien notes are, as against unrecorded transfers of such notes, bound only by their actual knowledge or notice appearing from the records.—Lubbock State Bank v. H. O. Wooten Grocery Co., 179 S. W. 1141. Where a purchaser, who had given Vendor's lien notes in payment, retransferred the land on condition that she should be discharged from payment of such notes, and the vendor retained the notes, the notes are on reissue thereafter valid as against the vendor.—Id. A holder of a subsequent series of vendor's lien notes held to have a lien superior to those of the holder of unrecorded earlier notes, there being nothing in the record to give notice or to c: suspicion on the statements of the seller.stricted to the death of the remainderman before the termination of the life estate.—Jewell V. White, 179 S. W. 212.
As the purchase of a vendor's lien note carries with it as an incident the lien, and the latter is within the registration statutes, one desirous of protecting his lien should secure a written assignment and record it.-Id. Q:261 (Tex.Civ.App.) Where a deed reserved a vendor's lien securing the purchase money notes, and a trust deed authorizing appointment of trustee was executed as additional security, the action of the grantor's successor in appointing a trustee and the sale of the property under the trust deed after the notes had been transferred to a third person was unauthorized and conveyed no title.—Etheridge v. Campbell, 179 S. W. 1144. &=263 (Tex.Civ.App.) Where vendee executed a note secured by deed of trust to indemnify indorsers upon a purchase-money note for the property, such lien was not destroyed by a sale subsequently made by him in consideration of the vendee's assumption of the original vendor's lien notes.—Grubbs v. Eddleman, 179 S.W. 91. C:266 (Tex.Civ.App.) Where a contract for the sale of land and the cultivation of cane Was secured by a vendor's lien, failure to assert the lien upon a partial breach held not waiver for future performance.—Imperial Sugar Co. v. Cabell, 179 S. W. 83. Q:267 (Tex.Civ.App.) A release of a vendor's lien held to release it as to a money consideration only, and not as to performance of a contract for the cultivation and sale of sugar cane. —Imperial Sugar Co. v. Cabell, 179 S.W. 83.
C:274 (Ky.) In action on vendor's lien note, answer, alleging a vendor's misrepresentations as to the acreage of the tract relied on by the purchaser, and that part of it was in the adverse possession of other parties, if tendered in time, would set up a good defense.—Stone V. Daniels, 179 S. W. 831. Q:281 (Ky.) In an action on notes executed by defendant's grantor and to charge the land with a lien, evidence held to warrant a finding that the notes were not a lien on the land and that the defendant purchased without knowledge of the debt and never assumed its payment.—Gambill v. Grigsby, 179 S.W. 822 Q->285 (Ky.) Where only two of the defendant's purchase-money notes had matured and the other five were not then due, a decree for the sale of the land to satisfy all the notes was invalid.— Mottley v. Roemer, 179 S. W. 581.
&:296 (Tex.Civ.App.) A vendor, who has reserved an express vendor's lien to secure the consideration for a conveyance, may, on default by the vendee, rescind the contract and recover the land in trespass to try title.—Imperial Sugar Co. v. Cabell, 179 S. W. 83.
VII. REMEDIES OF PURCHASER. (A) Recovery of Purchase Money Paid.
&=334 (Ark.) Purchaser under unexecuted contract held ordinarily entitled to recover back purchase money if vendor's title is not such as W #titled to require.–Mays v. Blair, 179 S.
Under contract of sale, cash payment held a payment on the purchase price, and not merely a payment for an option, and hence recoverable #" I'dor failed to furnish a marketable title.—ld.
Q->334 (Mo..App.). Where an agreement for the sale of land contained no provision as to retention of payments on default, and the vendor,
who rescinded, was able to sell the land at the original price, the purchaser, who defaulted, is entitled to recover his payments.—Chamberlain V. Ft. Smith Lumber Co., 179 S. W. 740. C:334 (Tenn.) A vendor of land cannot escape liability for a deficiency on the ground that the purchaser looked over the tract, which was very large.—Caughron v. Stinespring, 179 S. W. 152. Where a sale is in gross, no recovery can be had save for fraud, but if by the acre, the purchaser may recover for the deficiency at the agreed price.—Id. To recover for deficiency in land on misrepresentation as to the quantity conveyed, it is not necessary that the acreage be stated in a deed, but this may be shown by extrinsic evidence.—Id. C:334 (Tex.Civ.App.) Interest paid on the excess of purchase-money notes, due to a mistake in acreage, was recoverable.—Lindsay V. Vogelsang, 179 S. W. 58. Q: 339 (Ark.) Purchaser who arbitrarily broke off negotiations instead of demanding that defects in Vendor's title be cured held not entitled to recover purchase price.-Mays v. Blair, 179 S. W. 331. C: 341 (Tenn.) In a suit to recover for a deficiency in a parcel of land, parol evidence, showing the terms of the contract as to the price and number of acres, must be clear and certain; those matters not being stated in the deed.—Caughron v. Stinespring, 179 S. W. 152.
For cases in Dec. Dig. & Am. Dig. Key No. Series & Indexes see same topic and KEY-NUMBER
&=>8 (Tex.Cr.App.) It is not an offense to carry a pistol either so defectively manufactured or in such bad repair that it cannot be fired at all.–Miles v. State, 179 S. W. 567. Q->8 (Tex.Cr.App.) In a prosecution for carrying pistol, refusal to charge that accused was entitled to acquittal if the pistol would not shoot or was unloaded at the time named, etc., held not error.—Davis V. State, 179 S. W. 702. &=> 1 1 (Tex.Cr.App.) Though accused came to a city as a traveler, that fact does not warrant him in carrying a pistol about the streets for several days while searching for work.—Smith v. State, 179 S.W. 711. The right of a traveler to carry a pistol Will , not defeat a prosecution for unlawfully carrying a weapon, where the journey was temporarily abandoned while he burglarized a house.—Id.
See Easements; Private Roads.
Q = 17 (Tex.Cr.App.) Whether a pistol which ‘defendant was accused of carrying could be fired held a question for the jury.—Miles v. State, 179 S. W. 567. Q-> 17 (Tex Cr.App.). Evidence in a prosecution for unlawfully carrying a pistol held to sustain conviction.—Davis v. State, 179 S.W. 702. &= 17 (Tex.Cr.App.) On trial for unlawfully carrying a pistol, evidence on the whole case and on the issue as to whether defendant was a traveler held sufficient to sustain a conviction. —Taylor v. State, 179 S.W. 1161. Instruction attempting to define “traveler” held incorrect and properly refused.—Id.
See Intoxicating Liquors, <>112%.
See Death, @->5; Descent and Distribution; Executors and Administrators; Taxation, ©: 860–895; Trial, Q->140.
IV. REQUISITES AND VALIDITY.
(A) Nature and Essentials of Testamentary Dispositions.
C=70 (Ky.) The validity of a will, as to personal property, is determined by the law of the testator's domicile at the time of his death, and, as to real property, by the law of the jurisdiction, wherein it is situated.—Rutledge v. Wiggington, 179 S. W. 389.
&= 115 (Ky.) Under Ky. St. 1909, § 4828, a will written by some other than testatrix and attested by only one witness is not valid.—Rutledge v. Wiggington, 179 S. W. 389. C: 119 (Tenn.) Unless publication of the contents of a will to the subscribing witnesses is required by statute, they need not be informed of the character of the document when they subscribe. —Long v. Mickler, 179 S. W. 477. G: 123 (Tenn.) Under Shannon’s Code, § 3895, it is not necessary that a witness to a will subscribe, either knowing that it is a will or in the presence of the other witness to it.—Long
| v. Mickler, 179 S. W. 477.
Q=545 (Ky.) Will giving life estates to testator's three sons with remainder to survivor on , death, of other two without heirs of their body, held to vest fee simple in survivor on death of the other devisees without issue.—Kirk V. Kirk's Ex’r, 179 S. W. 1065.
(F) Vested or Contingent Estates and Interests.
&=634 (Ky.) Where a will creates a life estate in trust, with remainder over at death of life tenant, the devisees take a vested fee in the remainder, subject to be defeated by their death prior to that of the life tenant-Johnson v. Whitcomb, 179 S.W. 821.
&=634 (Tex.) A remainder is vested where there is a person in being who would have an immediate right to the possession upon the termination of the intermediate estate.—Caples V. Ward, 179 S.W. 856. . Will bequeathing residuary estate to testator's wife for life, with remainder over to the five children, held to give one of such children a vested remainder.—Id. The law will not construe a remainder as contingent, where it can reasonably be taken as wested.—Id. .. ‘Where testator bequeathed his residuary estate for life, with remainder over to his five children, the life tenant being granted power of disposition with the consent of the children, the remainder of a child was nevertheless vested.—Id. Where testator bequeathed his residuary estate for life, with remainder over to his children, directing that the descendants of any remainderman dying before the life tenant should succeed to the remainderman’s share, such direction will be construed to prevent lapsing of the remaindermen's legacies, and not affecting the vested character of the remainders.—Id. The contingency that the death of a remainderman before the life tenant may prevent such remainderman from coming into possession of his interest does not render the remainder contingent.—Id.
(H) Estates in Trust and Powers.
3>692 (Ky.) Powers of appointment are “exclusive” when there is granted to the donee the right to exclude members of the designated class, and “nonexclusive” when no such right of selection or exclusion is granted.—Barret's Ex’r v. Barret, 179 S. W. 396. When a power of appointment to a class is nonexclusive, the exclusion of any member of the designated class in making the appointment invalidates the attempted exercise of the power. Failure of donee of nonexclusive power of appointment to a class to give each member a substantial share fairly proportioned to the amount for distribution held to invalidate the attempted execution of the power.—Id. Under will creating trust for son during his life, and providing that property should pass as he might direct by last will to his wife and heirs at law, power held nonexclusive.—Id. Execution of power of appointment to widow and heirs at law by giving each brother and sister $1,000, and the widow $147,000, held invalid under the illusory appointment doctrine.
—Id. The illusory appointment doctrine under which the donee of a nonexclusive power of appointment must give each member of the class a substantial share of the fund is the law of this state.—Id. Where donee of nonexclusive power of appointment gave each of his heirs $1,000 and his widow $147,000, acceptance of these amounts held not to estop heirs from questioning validity of execution of the power.—Id.
VII. RIGHTS AND LIABILITIES OF DEVISEES AND LEGATEES.
(A) Nature of Title and Rights in General.
<>714 (Ky.) A devise of land by a husband to his wife in fee held, in view of the surrounding circumstances and the devise of a life estate in all of his other property, to be a satisfaction of her claim against the lands devised, which were acquired with her money.—Whitaker V. Whitaker's Adm’r, 179 S. W. 584.
(C) Advancements, Ademption, tion, and Lapse.
&=775 (Tex.Civ.App.) Wills of husband and wife killed in a common catastrophe made each the primary beneficiary of the other, and their foster son the secondary beneficiary. There being no evidence as to which, died first, held, that the son would take as primary beneficiary to give effect to the Wills.—Fitzgerald V. Ayres, 179 S. W. 289. (D) Election. .
C:792 (Tex.Civ.App.) Whether widow given rent of community property for life and furniture in hotel had elected to take under the will, where she and devisee continued to live on the property, held for the jury.—Wichita Valley Ry. Co. v. Somerville, 179 S. W. 671.
An election by a widow to take under her husband's will in lieu of her community and homestead rights must be unequivocal and with the intention to make an election.—Id.
See Elections, (3=146.
WITNESSES. See Continuance, @:26; Criminal Law, Ç->
452—478, 676; Estoppel, Q:21; Evidence; Trial, Ç:76; Wills, 3:115–123. II. COMPETENCY. (A) Capacity and Qualifications in G'eneral.
&=37 (Tex.Cr.App.) In prosecution for selling intoxicating liquors in prohibition territory, a question to fix the time of sale within the period of limitations held not objectionable as seeking to make the witness testify as to facts of which he had no recollection.—Alverez v. State, 179 S. W. 714. C:60 (Ky.) Competency of husband and wife to testify against each other in action for diVorce, as permitted by Civ. Code Prac. § 606, as amended by Act March 15, 1912 (Acts 1912, c. 104), extends only to issue of probable danger or bodily injury to the wife as specified therein.—Hester v. Hester, 179 S. W. 451. C>78 (Tex.Cr.App.) Evidence held to show a witness was not defendant's wife, and competent to testify.—Galvan v. State, 179 S.W. 875.
(C) Testimony of Parties or Persons Interested, for Or against Representatives, Survivors, or Successors in Title or Interest of Persons Deceased or Incompetent.
Q: 138 (Mo..App.) In an action against a decedent's estate to recover compensation for services, plaintiff's sister held not excluded by Rev. St. 1909, § 6354, as a witness to decedent's agreement to compensate.—Biggerstaff V. Riley, 179 S.W. 744. &= 159 (Mo..App.) In action for damages from breach of contract, evidence, tending to show a codefendant's connection with the contract or cause of action in issue and on trial, held not to come within Rev. St. 1909, § 6354, forbidding party to testify in his own favor as against opposite party, shown to be insane.—Powell v. Batchelor, 179 S. W. 751.