The Papers of John B. Minor, 1845-1893

2. As to the second question; - there is a considerable conflict of authenticity. The better opinion seems to [see?] to the that the first assignee has preference, because by assignment the assigned priority over the assigner , who remained the holder of the other bond, and this priority ^ his subsequent assignment of the latter bond could not take away. The attorneys in [Ragland I Rund. 466?]; ^ Taylor v Spindle 2 [Grah?] 71; 1 [Lum?]. Dig 336.533; 1 [Juck.?], Nelson v Brown 15 [Ala?]. 507, [13 U.S. Dig. 53, Assignment 32]; Keyes v Wood 21 [Vermt?]

down a contrary doctrine, which however, is supposed to be [our-?] [send?]. 1 [Stir. Eq?]. 5476, 2 D 1233.A.

There are several cases, however, which hold that no such priority on the assignor attaches to the note first assigned, such that as the assignment impart no responsibility nor undertaking for the payment of the debt by the debter, it does not bind the assignor to relinquish his own right in favor of the assignee, or entitle the latter to anything more than an apportionment of the securities held in common for it, & another debt not passed by the assignment. It follows, therefore, that a subsequent assignee of the latter obligation, according to these cases, will stand in the same position with the assignor, and be entitled to share in the benefit of all securities originally given on account of both debts. Belding v [Manly?] 21 [Vermt (6 Washb. 1550,?] [10 U.I. Dig. 330, Mortg. 105]; Henderson v Herrod 10 [Sm Tm 631?] [8 U.I. Dig. 281, Mortg. 196]; Hevenson v Black, [Santive?] (NJI 338, [2 U.S. Dig. 346, Mortg. 1184]; Betz v Hebner I Penn. 280, [Id. Mortge. 1190]; Durley v Hays 17 S&R 400 {2 White + Tadeis L.O 447]?] Mohleis appeal 5 Barr 418 [Uid]. Mohleis appeal is suppilied by Memi Hare + Wallace (notes to White + T. L.C, [Whi supra?]), to have gone far to settle the law, in form of appointment.

There are again, some cases ^ or at least one case, in which ^ it is held that the notes are charged on the fund according to the order of time in which they become due. State Bk v Tweedy S Blackf. 447, [10 US. Dig. 331. Mntg. 112].

In the case under consideration, therefore I am of opinion that the benefit of the mortgage lien passed with the notes to the assignee, thereof, [illegible?] in the order of the assignment, to that Bomden, the ^1st assignee is entitled to priority of satisfaction.

Case Stated by Walter G. Hudgins of Bowling Green, to Mr. Holcombe.

Tennent is insolvent, with many judgments agst him, & has been carrying on business in his wife's name.

His wife's father was also insolvent & died so.

Afterwards his wife's grand-father died, & by his will "devised" 1/12 part of his estate to two of his sons, in trust for Tennent's father in law, who died before the testator, leaving Mrs Tennent & another daughter him surviving.

Tennent & wife had not filed a bill "to subject her share of her g fathers estate to her separate use &c."

The question is what is the proper cause for Tennent's creditors to pursue?

Hudgin says he has "put executions in the sheriff's hands."

At the first blush, it appears to me that the rights of the creditors, as well as the mode of proceeding, will depend very much on whether the property, "devised" by Mrs Tennents g father's will be real or personal.

In either case it passes to Mrs T & her sister (...) it could have done to their father, had hesurvived the (...) tor, (V. C. 517. C 122. § 13) and consequently is an equitable estate in fee simple in their (...) legal title being vested in their uncles, the trustees.

Supposing the property to be real.

covenant to [faith?] the said Thomas H. Campbell, that he, then said Joseph A. Jones, will warrant specially, title to all of the slaves, and perishable estate held by the said James Jones upon the day of his death, & bequeathed to his widow, Mrs Catharine Jones for life, with remainder one, as in the said will set forth."

The question submitted to me is, whether if Mrs Catharine Jones should by will, in pursuance of the power vested in her, give any of her husband's slaves to Joseph A. Jones, the benefit of the disposition would enure to Campbell?

A deed with general warranty, it is universally agreed, estops the grantor turn claiming the property thereby converged, by any title which he may afterwards acquire, notwithstanding he may {afterwar} have had nothing in the subject at the time of the conveyance, and that upon the principle of [avoiding?] circuity of action. Some authorities, indeed, held that upon the subsequent acquisition of the better title, the same passes by the mere effect of the original conveyance, to the granter. But without giving into that controversy, it is sufficient to [observe that it is undisputed law that the granter in such case, cannot efficiently claim the property, by virtue of his subsequently obtained title.

2 Th [?] Lit. 416, [?] (I); [Id?] 457 Rawlins' Case 4 Co. 53. 2 Lim. [?ig]. 356, 2 Smith's lead. Cas. 474, 507, 571, [&?]. Wells & Austin Tullann. & [?]. 707. Somes' [?] v Skinner 3 [?] 52 Jackson v [?] [?] Johns. 102, 108. Jackson v [Wight?] 14 Johns. 193 Jackson v Stevens 16 Johns. 110 Jackson v Bradford 4 Wend. 619 Blanchard v Brooks 12 [?], 47

It seems also pretty well established that a conveyance with special warranty against the granter only, and all persons claiming under him, or even with general warranty, if nothing be conveyed but the exist- ing title or claim, does not at Law a estop a grantor from setting up another title subsequently acquired.

2 [?] Dig 356-7 Wynn v Harman's [?] 5 [?]. 163 Blanchard v Brooks 12 [?] 67

Comstock v [VERSUS] Smith 13 Pub. 116 Wheelock v [VERSUS] Henshaw 19 Pub. 341 Jackson v [VERSUS] Winslow 9 [Civ?]. 13 In Equity, however, a different rule prevails In that forum, a vendor will be constrained to make good, out of any after-[acquired?] interest, whatevr he has professed to sell. It is a clearly established if not very familiar [strike]side[/strike] Equitable doctrine, that if a man contracts to sell an estate which he has not at the time [strike]such contract is entered into,[/strike] and he afterwards acquires such an interest as will enable him to make good his contract, he will be compelled to perform his engagement. And it should be observed that Equity regards every assignment or transfer which cannot operate as an executed conveyance, as an execution, contract, and will give it effect in one capacity, if it fail in the other. Rawle's [Civ't?] of Title 347 Goodtitle v [VERSUS] Bailey [Civp?] Vol. Whitfield v [VERSUS] Faussett 1 ves [?] 391 Knight v [VERSUS] Knight 1 ves [?] 411 Berkley v [VERSUS] Newman 2 P Wms 182 Hobun v [VERSUS] [TREVES?] 2 P Wms 191 Mitchell v [VERSUS] Winslow 2 Story's Rep 630 [Woodsworth?] v [VERSUS] Sherman 3 Story's Rep. 175 Breckenridge v [VERSUS] Churchill 399 Marsh 13 1 Madd Chan 437 2 White & Tud. Lead. Cus. (Pt. 2) 224 2 Smith's L. C. 528 So far is this doctrine carried, that although according to the more recent, as well as the earlier authorities, the right of property in chattels personal cannot pass by grant (at law) under actually, or potentially owned, when granted. 2 White & Tud. L. C. (Pt. 2) 225 Patch v [VERSUS] Tutin 15 M & W 110 Lunn v [VERSUS] Thornton 1 C B. 379 Winslow v [VERSUS] Merchants' Insur. Co. 4 Met. 306 Imes v [VERSUS] Richardsen 102d, 481; Yet in Equity an Executive right in such case is acquired, which will be enforced, although no present or actual interest at law vested. 2 White & Tud L C (Pt 2), 228 2 [Stor?] [Ep?]. [?] 1040-'41. The question, therefore, to be determined in the case under consideation, is substantially, what [J. A. Imes'?] deed purports to convey. If it purports to [?con-?]

Maine. Rev? State of Main 1840'41. p.22 Fences 4 feet high, + in good repair (unknown) legal. Persons injured by beasts may (unknown) (unknown) or (unknown) them, provided the fence adjoining land, (unknown) therefrom by neglect of him who is damaged to maintain his part of partition can (unknown) was legal. Id. 229. Sufficient fence (unknown) by fence viewer Id. 221 owner of beasts not liable. Partition fences to be kept wh at common expense. Id. 221 * If beast allowed to go at large in the highways or commons, owner liable to various forfeitures according to nature of beast, + whether an ungelded male or not. Id 228 But (unknown) + neat cattle may be allowed to go at large in any particular town for a year at a time by a wh thereof. Id. 228 Vermont - Fences 4 1/2 feet high deemed legal, - sufficiency to be determined by fence viewer - Rev stats of Verm. 1839, p. 2117. Cattle doing damage impounded. Liable for damage provided fence to be sufft, except fences adjoining highway, or those which owner of (unknown) (unknown) to repair. Id. 413. Stallions (unknown) not permitted to run at large on highways or commons under penalties. Id. 414. Town at annual meeting may permit swine to run at large in highways of (unknown) town. Id.

New Jersey - Fences 4 ft, 2 inches high of parts + (rails), timber, (boards), ? or stone, + 4 ft, 6 inches high, if of any other material, deemed law ful. Stat of N Jersey, 1827.472 Beasts entering enclosures with lawful fence, owner liable for damages, (unknown) impounded to secure them. But if fence not lawful, owner of (unknown) not liable, and if owner of land injure beasts, under those circumstances, must pay full damages. Id. 476-7. This stat applies only to owner of adjoining (unknown), not to land on highway, wh need not be fenced. Chamber + (unknown) 3 (unknown) 368. N. Carolina - Fence to be five ft high (except where deep water cause) If fence sufft, owner of (unknown) liable for damages. And if fence insufft, whoever injures cattle coming on enclosed grounds, liable to make full satisfaction to owner. 1 Rev. Stats of N. Car. 1837 283-4.

S. Carolina Fences to be 5 ft high, (except where deep water course) - If beasts break in when fence is lawful owner liable to a fine of 50 cts a head for horse or mule, + 25 cts a head for other animal. For second breaking within a month for all (unknown) (unknown) their fines. If fence not lawful owner of beasts not liable + if owner of field injures animal ? he is subject (damaged paper) Car. 1841, 331Taken from a (damaged paper) (Sidebar at top) Partition fences if land improved to be kept up at common expense under personr direction of fence viewer. Cattle not lawfully on adjoin [enclosed?] without owner consent, the cattle on it from highway where they [unknown] by ? of town, a right to be. [unknown] + wormwood (unknown] Maine (16 Shep.) 282. Therefore a trespass to come this rests [unknown] on unfenced close

Arkansas Fence must be 5 feet high, sufficiently close. For (unknown) the (unknown) breaking such a fence, owner to make reparation for 1st offense, for 2nd double dam, for 3rd party injured may kill beasts. If fence not sufft, + cattle hurt, using (unknown) liable for double damages. Dig Ark Stat 1848, (unknown) 589-90

Missouri Fence must be from 4 1/2 to 5 ft high. If cattle breaks lawful fence, owner liable for 1st trespass to make (unknown). For all (unknown) trespasses for double dams. + for 3rd offense may kill beasts. If fence not sufft, + cattle hurt, may doer liable in double dam. Rev (unknown) 1845, 575-6.

Illinois - Fence must be from 5 to 5 1/2 feet high. If cattle break lawful fence, liable 1st time to (unknown) + afterwards to (unknown) = the dam. Rev laws of Illinois 1833, p. 262

Mass. Fence to (unknown) certain height, + if so cattle trespassing owner liable for damage. However inferred that if cattle were lawfully on adjacent lands + ecaped into fields by cause of insufficiency of fence, owner not liable (unknown) (unknown) (unknown) Mass. 471 (1808); Rust v. ssow 6 (unknown) 94 (1809); And if they escape from highway, owner liable tho fence in sufft. (Unknown) v. (Unknown) (Unknown) Mass 33.

Mr AD. Payne`s case May 26 1860

Qu. 1. Is Exhibit No 1 testamentary in its character, & revoked by no. 3?

I can see no ground to regard it as testamentary except ^{to [tur?] as} the suggestion offended may [?] sertained by Ruth v Owens 2 Rand. 572. There the bonds were [en'd?] by [direct?] [?th] before his death. the [same?} [him?] [w?] given to the obligees respectively ^{[one] the same as there named in the [l?]} and it was in [suwf?] that when he en'd the the notes ^bonds (almost 3 days before his death), he declared that it was to reduce the legacies. The [power?] of husband to bar his wife's claims by deed in his life-time, will not be [centivated?] after li[?] [?] v [Colsin?] 5 [?] 42; 6 [Grat?] 594, Gentey v Bailey.

Qu. 2. If not testamentary was the execution of Exhibit no 1, as a deed or assignment, complete & perfect?

If it is not, it must be because it was not duly signed, sealed, or delivered. That it was signed and sealed is sufficiently demonstrated by the acknowledgment before the [justice?]. The only enquiry open is conceived to be, was it duly delivered? The acknowledgment before the justice is admitted to be cogent evidence of a delivery, although not [?].

J. H. F. refuses to make the first payout] (1/2 due 1st Jan. 1859) until J. R. makes him a deed in his own name. This J. R. was willing to do from the 1st to the 18th of Jany JHR being then present & ready to make the deed either to JR or JHF as he should be directed. J. H. F.'s plea up to that time was that he did not have the money. On the 18th [illegible line] himself ready to make his payment provided JR would make him a deed in his own name. (the [tiitle being still in J.H.R.) J. H. R. upon having had left a deed from himself to J.H.R. which however he was not willing to recover. J. R. there upon wrote him a note containing these propositions. 1st to give him J.H.R.'s deed & take his bond with security for the last payment or 2nd Eexecute a receipt to him for the amt. paid & good security thereto holding himself bound to make a deed in his own name when the whole amt. was paid.

By J.R. Can I sue Mr F in Equity immediatly for the penalty ($500]) or must I wait until the last payment is due to see whether he intends to settle at all or not? I do not doubt that I am bound to make him a deed in my own name but the question is, am I bound by the articles to execute the deed before he pays the full amt. of the purchase money, & if not am I bound to wait until the last payment becomes due before I can proceed [vs?] him for either the first payment or penalty

In short has he not broken the contract & if so am I not intitled to claim the penalty & first payment immediately.