trust.

281 (35 N. E. Rep. 219). In limitations of a trust, either of a real or personal estate, the construction of limitations ought to be made according to the construction of limitations of a legal estate, unless the intent of the testator or author of the trust plainly appears to the contrary. Starnes v. Hill, 112 N. C. 1 (16 S. E. Rep. 1011). A mortgage of real property to trustees named therein in trust to pay debts due from or assumed by the mortgagor, upon sufficient consideration, is a valid trust, and may be enforced by the trustees in their own names without joining the cestui que trust. Moulton v. Haskell, 50 Minn. 367 (52 N. W. Rep. 960). Where a party holding the legal title as trustee to real estate dies, his executors become clothed with his duties and responsibilities as such trustee, and they are proper parties to any litigation affecting the rights of their cestui que trust in the subject matter of the Anderson v. Northrop et al., 30 Fla. 612 (12 So. Rep. 318). Under Ind. Rev. Stat. 1881, § 2981, where the trust is a mere nominal one, the legal title vests at once in the beneficiary. Myers v. Jackson et al., 135 Ind. 136 (34 N. E. Rep. 810). A statute (Ill. Rev. Stat., ch. 30, § 3) providing that where one holds land under a deed to the " use, confidence, or trust" of another, the title shall be deemed to be in the latter, does not apply to a conveyance of land to certain persons as trustees of a given church and their successors and assigns; and in such case the trustees hold the legal title. United Brethren Church v. First M. E. Church, 138 Ill. 608 (28 N. E. Rep. 829). Particular trust deeds construed with reference to the nature of the estate created. Knowlton v. Atkins, 134 N. Y. 313 (31 N. E. Rep. 914). Under Ky. Gen. Stat., ch. 63, art. 1, § 21, a trust estate is subject to the debts of the beneficiary, notwithstanding contrary provisions in the instrument creating it. Bland's Adm'r &c. v. Bland, 90 Ky. 400 (14 S. W. Rep. 423; 29 Am. St. Rep. 390). Under Minn. Gen. Stat. 1878, ch. 43, a conveyance of land from one person to another to the use of or in trust for a third, the trustee having no active duty to perform, constitutes a passing trust, and the trustee takes no title, but the same vests immediately and absolutely in the beneficiary. Thompson v. Conant, 52 Minn. 208 (53 N. W. Rep. 1145). A statute (Mo. Rev. Stat. 1879, § 3938), providing that where any person is seized of lands to

the use of another, the legal title thereof is in the cestur que trust, does not operate to divest the trustee of the legal title where any additional duty is imposed upon him, either expressly or by implication, which requires that he shall have the legal estate. Pugh v. Hays et al., 113 Mo. 424 (21 S. W. Rep. 23). 1 N. Y. Rev. Stat. 726, §§ 37, 40; 728, § 55; 730, § 63, applied. Cochrane et al. v. Schell et al., 140 N. Y. 516 (35 N. E. Rep. 971). 1 N. Y. Rev. Stat. 728, §§ 49-58, applied. King v. Townshend, 141 N. Y. 358 (36 N. E. Rep. 513).

VENDOR AND VENDEE.

SEE, CONTRACTS.

EPITOME OF CASES.

Sec. 763. Land contracts-General principles. Possession taken and acquiesced in operates as a waiver of the technical provisions of a land contract. Minneapolis, St. P. & S. S. M. R. Co. v. Chisholm et al., 55 Minn. 374 (57 N. W. Rep. 63). A vendor is not bound to execute a deed wherein the consideration named is different from that for which the sale is made. Slater v. Howie et al., 49 Kan. 337 (30 Pac. Rep. 413). A mere signing of a land contract by a third person not mentioned in the body thereof as a party thereto, and who is not the husband or wife of any one so mentioned, does not make such a one a party to the efficient and operative parts of the contract. Lancaster v. Roberts, 144 Ill. 213 (33 N. E. Rep. 27). Where a contract for the sale of land is so defectively executed as not to be obligatory upon the owners thereof, who are nevertheless ready and willing to perform the same, the vendee may be compelled to elect either to perform or surrender all rights acquired under the contract. Hunt v. Thwing, 51 Minn. 491 (53 N. W. Rep. 870). The assignee of an optional contract for the sale of land, the contract providing that payment of a portion of

the purchase-money shall be deferred, cannot substitute his own personal liability for that of the original vendee and compel the conveyance upon tender of his own note for the deferred payments. Rice v. Gibbs et al., 40 Neb. 264 (58 N. W. Rep. 724). A person other than the vendee named in an executory contract for the sale of real estate cannot by any parol acceptance of it as his own make it a binding contract between himself and the vendor. Harris v. McKinley et al., It is a general rule

It is a

Minn. (58 N. W. Rep. 991). that where a written contract for the sale and conveyance of land provides that the deed shall be delivered at the time of making the first payment, the agreement to pay and to deliver are mutual and dependent, and performance or an offer to perform by the purchaser is necessary in order to make it incumbent upon the seller to deliver the deed. Bailey et al. v. Lay et al., 18 Colo. 405 (33 Pac. Rep. 407). In the absence of fraud or mistake, upon the execution and acceptance of a deed as performance of an executory contract to convey real estate, the contract is functus officio, and the rights of the parties thereafter rest solely on the deed, Slocum v. Bracy, 55 Minn. 249 (56 N. W. Rep. 826); Griswold v. Eastman, 51 Minn. 189 (53 N. W. Rep. 542); but it was held that where a contract was made by correspondence through the mails and it contained certain stipulations concerning the maintenance and use of a dam on the premises by the vendor, the contract was not so merged in a deed omitting these provisions as to prevent the maintenance of an action to enforce their performance, Shelby v. Chicago & E. I. R. Co., 143 Ill.385 (32 N. E. Rep. 438). In a well considered case the authorities are reviewed and it is held that where the vendee surrenders to the vendor his written contract for the sale of land to secure his performance of a new parol contract of sale, on the failure of the vendee to perform such parol contract, such surrender does not constitute a cancellation of the written contract; and it is doubted whether such written contract can be cancelled by parol. Sanborn v. Murphy, 86 Tex. 437 (25 S. W. Rep. 610). Where an owner of real estate contracts in writing to sell and convey the same to another, and such contract is duly signed, witnessed, and acknowledged by such owner, and recorded in the office of the register of deeds in the county where such

real estate is situate, then one who purchases and receives a conveyance of said real estate from said owner takes such real estate subject to the rights therein of the vendee in said contract. In such case the vendee in said contract of sale is entitled to a rescission thereof because of the sale and conveyance of the real estate by the owner to a third party. Hoock v. Bowman, Neb. (60 N. W. Rep. 391). Whether a contract is entire, or separable into several independent contracts, depends upon the intention of the parties, to be ascertained from the language employed and the subject matter of the contract; particular contract made by the state for the sale of public lands considered, held to constitute an entire contract. State ex rel. Powning v. Jones, 21 Nev. 510 (34 Pac. Rep. 450). For cases construing particular contracts between vendors and vendees, see, Beverly v. Blackwood, 102 Cal. 83 (36 Pac. Rep. 378); Wilson v. Morrell et al., 5 Wash. St. 654 (32 Pac. Rep. 733); Brace v. Doble, S. Dak. (52 N. W. Rep. 586); Short v. Van Dyke, 50 Minn. 286 (52 N. W. Rep. 643); South St. Joseph Land Co. v. Pitt, 114 Mo. 135 (21 S. W. Rep. 449); Bower v. Bagley, 9 Wash. St. 642 (38 Pac. Rep. 164). Where one goes into possession under contract of purchase and makes default in payment of the purchase price, he may be ejected by the vendor. Where the contract is silent as to possession the vendee is not entitled to it until he has performed all the conditions which entitle him to a deed. De Bernardi v. McElroy et al., 110 Mo. 650 (19 S. W. Rep. 626). Where a vendor agrees to execute and deliver the deed upon the payment of the remainder of the purchase price by the vendee on or before a certain time, it is held that the written offer of the vendee to pay such balance, and a demand for the deed, is a sufficient tender under Cal. Civ. Code, § 1496, providing that, "the thing to be delivered, if any, need not, in any case, be actually produced upon an offer of performance, unless the offer is accepted," and places upon the vendor an obligation to tender the deed, a failure in which will render him liable for damages. Peckham et al. v. Stewart, 97 Cal. 147 (31 Pac. Rep. 928). Where a lessee of a perpetual lease with privilege of purchasing the fee at any time, duly exercises the option of purchase after the death of the lessor, who is the owner in fee, the conversion of the realty

into personalty will take place at the time of exercising the option, and will not relate back to the time of the execution of the lease. Smith et al. v. Lowenstein et al., 50 O. St. 346

(34 N. E. Rep. 159).

Sec. 764. Forfeiture of land contracts. The forfeiture of a land contract should not be decreed against one who has been and is willing to do equity. Curtis v. Gutz, Ia. (58 N. W. Rep. 883). Where time is made the essence of a contract to sell land but the parties for several years do not treat it as such, and the vendor treated the transaction as an investment, he cannot claim a forfeiture, as provided by the contract for the failure of the vendee to make payments at the times fixed. Robinson v. Trufant, 97 Mich. 410 (56 N. W. Rep. 769). Where a contract for the sale of land provides that it shall be void upon the failure of the vendee to perform certain conditions, it is void only at the election of the vendor for whose benefit the forfeiture was provided, Chambers et al. v. Anderson et al., 51 Kan. 385 (32 Pac. Rep. 1098); Paget v. Park, 50 Minn. 186 (52 N. W. Rep. 532); Freeman v. Griswold, Cal. (34 Pac. Rep. 327), and in the last case cited it is held that a vendee cannot take advantage of his own neglect in order to avoid the contract. The forfeiture of earnest money paid on a land contract does not release the purchaser from his obligation to complete the purchase. Waddill v. Sebree el al., 88 Va. 1012

(14 S. E. Rep. 849).

Under the

Sec. 765. Rescission of land contracts. provisions of a contract of purchase that the purchaser may disaffirm, if dissatisfied with the title; his good faith, and not reasonableness of his dissatisfaction, is the test of his right. Where a contract of purchase allows the purchaser a certain time within which, if dissatisfied with the title, to rescind, his right is not lost by failure to exercise it till after the expiration of the time; he having expressed his dissatisfaction within the time, and having delayed the exercise of his right on the promise of the vendor to fix up the title, and on his asking for time in which to do it. Sanger v. Slayden, Tex. Civ. App. (26 S. W. Rep. 847).

Althought the contract for the sale of land may contain a