Towns. Trespass. Trover. Trust and Trustee. Vendor and Purchaser.

TAX SALE-Continued.

4. A judgment creditor having a lien upon land when sold for taxes, cannot
file a bill in chancery to avoid the sale as invalid, without first refunding
the amount of tax, penalty and interest, or offering to do so.
Gillett v.
Webster et el., 623.

TOWNS.

See CORPORATIONS, 2, 3, 4.

TRESPASS.

If one enter upon the land of another, by virtue of a parol license given for
a consideration paid, and erect a milldam, trespass will lie against the
owner of the fee destroying the dam. Wilson et al. v. Chalfant, 248.

TROVER.

1. An administrator cannot maintain an action of trover to recover the value
of goods, &c., transferred by his intestate to defraud his creditors. Ben-
jamin v. Le Baron's Adm'r, 517.

2. The remedy if there be any is in chancery. Ibid.

TRUST AND TRUSTEE.

1. A trustee who conveys a naked legal title under a defective power, by
order of the cestui que trust, with usual personal covenants of warranty,
and whose conveyance passes no title by reason of the defects in his
power, is by his covenants estopped from setting up title against his
covenantee, acquired by subsequent conveyances, vesting in him the
naked legal title. Barton's Lessee v. Morris' Heirs, 408.

2. If co-trustees authorize one of their number to receive and control the
trust fund, and are negligent in taking security and looking after the
fund, and it is lost by the defalcation of the trustee having such control,
all the trustees are responsible. The State v. Guilford et al. 593.
3. If a guardian convert land scrip, receivable at the land office in the pur-
chase of land, into money, by investing it in land for himself and others,
and accounting with his wards for the scrip, with interest from the time
of its investment, he cannot, if he acted in good faith in the transaction,
be charged as a trustee of the land purchased, nor compelled to account
for the profits growing out of the investment. Davies et al. v. Lowrey
et al., 655.

VENDOR AND PURCHASER.

1. If a vendor sell and convey land by a correct description, and by mutual
mistake of the parties, without fraud on the part of the vendor, the ven-
dee enters upon a wrong tract and makes improvements, he cannot sus-

Vendor and Purchaser. Void and Voidable. Water Craft. Will.

(VENDOR AND PURCHASER-Continued.)

tain a bill in chancery to recover the value of his improvements.-
Schroll v. Klinker, 152.

2. The sale and conveyance of land by one out of possession-the land at
the time being in the adverse possession of another, claiming title-is
not void. Cresinger v. Lessee of Welch, 156.

3. A defendant in possession over twenty-one years, under a contract of pur-
chase which has been complied with, cannot be ousted in ejectment by
the holder of a naked legal title, having no right to the possession.
Barton's Lessee v. Morris' Heirs, 408.

4. A parol contract to convey land, and delivery of possession under it, is not
void but voidable; and if executed afterwards in good faith, the title of
the vendee cannot be defeated by a judgment against the vendor, ren-
dered after the making of the contract, and before the execution of the
deed in fulfillment of the agreement. Minns v. Morse et al., 568.
5. Such voluntary conveyance vests a legal title, coupled with an elder
equity in the grantee. Ibid.

VOID AND VOIDABLE.

1. A parol contract to convey land and delivery of possession under it, is
not void, but voidable. Minns v. Morse et al., 568.

2. Under the act of 1824, defining the duties of executors and administra-
tors, an order for the sale of real estate is not void, where a guardian
ad litem was appointed for the infant defendents, who appeared and
answered for them, although there is no proof that the infants were
served with process. Robb v. Irwin et al., 689.

Same decision in Lewis et al. v. Lewis' Administratrix, 715.
See ATTACHMENT. CHANCERY, 8, 9, 10.

1. A Court of Chancery cannot entertain jurisdiction to set up and establish
a spoliated will. Morningstar et al. v. Selby et al., 345.

2. Jurisdiction is with the Court of Common Pleas as a Probate Court.
Ibid.

3. A devise of realty to one and his heirs, to be used by the devisee for life,
with remainder over to a third person, will not vest the fee in the devi-
see, under the rule in Shelley's case, if such construction would defeat
the manifest intentions of the testator. King's Heirs v. King's Ad-

ministrator, 559.

Will. Witness. Writ.

WILL-Continued.

4. The words heir and heirs in a will, if such was the clear intent of the
testator, may be construed child and children, and they will take as
purchasers. Ibid.

5. A similar devise of personalty, if such be the clear intent of the testator,
will vest such personalty, after the determination of the life estate, in
the child or children, as purchasers. Ibid.

WITNESS.

1. An indorser of a bill of exchange, whose interest is equally balanced, is
a competent witness to prove a prior indorsement, claimed to have been
forged. Ellis et al. v. Bervellier, 489.

2. The interest is so balanced, where the recovery by the plaintiff or defen-
dant will subject him to the suit of the one or the other, in an action
where the recovery by either must be for the same amount. Ibid.
See DEED, 1. JUDGMENT, 2.

WRIT.

1. When a writ bears the proper test and is signed by a deputy clerk, it is
sufficient. Walke et al. v. The Bank of Circleville, 288.

2. It is sufficient service, if the sheriff return that he left a copy of the writ
at the residence of the defendant. Ibid.

3. A writ bearing test thus: "Witness my signature and the seal of our
said Court of Common Pleas, this 8th day of December, 1841, A. B.,
deputy clerk," is good. Chapin v. Allison, 566.
See PROCESS, 3, 4.

2786,115