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(115 A.)

pecting to eventually supply it from the Stover block, cannot alter his situation.

[12] The decree will be in favor of the defendant, dismissing the bill, with costs. Under the stipulation of counsel, filed in the cause, it was agreed that, in case the decree should be in favor of the defendant, the court should embody in its decree an order that the certificate in question, now in possession of the register of this court, should be canceled. This the court cannot do, for the manifest reason that Stover is not a party to the cause. Not being a party, no decree can be made adversely affecting his interests, whatever they may be. The decree will, therefore, go no further than to dismiss the bill, with costs against the complainant,

of Stover's stock he sought also to buy the stock of Hallam, whose stock he knew had been acquired as Stover's had been acquired, and whose stock the company had likewise assumed to cancel. Hallam warned him that if he bought his (Hallam's) stock, there would be no refund to him in case it proved worthless. Complainant said he was willing to take the chance. Hallam went so far as to have his attorney draft a form of memorandum for complainant to sign to the effect that complainant knew that the company had canceled the Hallam stock, because it was issued without consideration and was therefore void. This memorandum was submitted to complainant. The complainant himself admits that he requested that he be allowed to see the minutes of the meeting of January 11, his purpose being to examine the resolution which authorized the issuance of the stock to Stover, viz. the 51 per cent. resolution. He was permitted to see the resolution. Furthermore, he himself admits that he consulted counsel concerning the legality of the issue. These circumstances clearly demonstrate that the com- (Supreme Court of Rhode Island. Feb. 15, plainant had notice sufficient at least to put him on inquiry that there was a defect in Stover's stock.

With all these facts before him, complainant chose to go ahead with his purchase. If he cannot now secure from the company a certificate evidencing what he was thus willing to purchase, the fault is his own.

I hold that complainant is not an innocent purchaser for value without notice. He had actual notice of the company's claim that the stock he was about to purchase was illegally issued and that the company had canceled the same.

[10, 11] It was urged on behalf of the complainant that before he made the actual purchase from Stover, and before he had received any information at all concerning the circumstances surrounding Stover's stock, he had agreed to buy it, and that whatever notice he subsequently acquired could not now affect his rights. This is on the theory that notice coming to him during the time intervening between the agreement to purchase and the actual purchase, cannot operate against him, because Stover could hold him to his bargain. This is not tenable. If, at any time before he completed the purchase by paying his money, he acquired notice that would operate to fix knowledge upon him, he then purchased at his own risk. He was protected against any possible claim by Stover against him for breach of contract by the fact that Stover could not deliver the consideration agreed to be paid for. The circumstance that the complainant, after he had agreed to purchase, but before he did purchase, had in turn bargained to sell some of the company's stock to other parties, ex

Let a decree be prepared accordingly.

CONANT v. FURNACE IMPROVEMENT CO. (No. 5452.)

1922.)

On motion for reargument. Motion denied and dismissed.

For former opinion, see 115 Atl. 644.

Green, Hinckley & Allen, Harold R. Semple and Frederick W. Tillinghast, all of Providence, for plaintiff.

McGovern & Slattery and John H. Slattery, all of Providence, for defendant.

PER CURIAM. After the opinion of this court filed on January 6, 1922, the plaintiff filed a motion for reargument by leave of court. This motion does not suggest any matter which was not fully considered and passed upon by the court before delivering its opinion.

The motion for reargument is denied and dismissed.

BEVAN v. BROOKS. (No. 514.) (Supreme Court of Rhode Island. Feb. 10, 1922.)

1. Appeal and error 1011(1)-Findings on conflicting evidence if supported by evidence not disturbed.

The findings of fact made by a trial justice upon conflicting testimony are entitled to great weight, and where there was sufficient evidence to support the findings and they do not appear to be entirely wrong, the Supreme Court will not disturb them.

2. Mortgages 37(2) -Deed absolute on its face may be shown by parol to be a mortgage. A conveyance of land, absolute on its face, may in equity, by means of parol evidence, be shown to be a mortgage.

924

(R. I.

Appeal from Superior Court, Providence and pay the expenses connected with the and Bristol Counties; Chester W. Barrows, Judge.

Suit by Ernest E. Bevan against Annie F. Brooks. From decree for complainant, respondent appeals. Affirmed and remanded for further proceedings.

Joseph C. Cawley, of Providence, for ap pellant.

Tillinghast & Collins and McGovern Slattery, all of Providence, for appellee.

property. Upon the purchase of the Brown property, the complainant, his wife, and the respondent occupied it until June, 1920, when the complainant left on account of marital difficulties, which resulted in the filing of a petition for divorce by Mrs. Bevan. Bevan v. Bevan, 44 R. I. 12, 114 Atl. 130, 278.

PER CURIAM. This is a bill in equity wherein the complainant seeks to have a warranty deed, given by him to the respond-security for the money advanced. The deed ent, declared to be a mortgage, with the privilege of redeeming it upon payment of the money loaned to him by the respondent. After a hearing upon bill, answer, and proof by a justice of the superior court, a final decree was entered, granting the relief pray

ed for.

The respondent has duly prosecuted her appeal from said decree to this court, and now claims that said decree is against the law and the evidence and the weight there

of.

It is admitted that the respondent ad& time he purchased the property from Mrs. vanced $2,000 to the complainant at the Brown, and the important question in this to the respondent was intended to convey case is whether the deed of the complainant said property to her absolutely or only as was executed and delivered by the complainant to the respondent on the same day that he purchased the property from Mrs. Brown, October 24, 1919, but it was not recorded by the respondent until June 11, 1920, which was after the complainant had left home. respondent to purchase the Brown property; The complainant testifies that he asked the that she declined to do so; and that she loaned him $2,000 so he could make the purchase. He first thought of giving her then he thought it would be better to give a mortgage or a note for the money, and a deed and place it in her hands for protection, and it was agreed that the deed should The respondent testifies that she declined to not be recorded until something happened. take a second mortgage upon the property, and claims unconditional title to it, and denies that she agreed not to have the deed recorded. These parties are supported in and upon the conflicting testimony the trial their claims by the testimony of witnesses, court found that the deed given by the complainant to the respondent was not intended

It appears from the evidence that, October 24, 1919, Mrs. Charlotte M. Brown conveyed to the complainant, by warranty deed, the house and lot in dispute. The property was sold for $7,275, and the complainant paid for the same by giving a purchase-price mortgage to Mrs. Brown for $5,500 and paying her the balance in cash out of $2,000 received by him from the respondent. On the same day the complainant conveyed said property to the respondent by warranty deed,

stating in the deed that the conveyance was made subject to a mortgage for $5,500.

The testimony proves that the complain

ant married the daughter of the respondent in January, 1914, and that from this time, until she sold her house on Smithfield ave nue in October, 1919, he and his wife lived

with her. The complainant is a real estate broker, and sold the respondent's house for her. For several years he had acted as agent for Mrs. Brown, and knew that her real estate was for sale. After the sale of the Smithfield avenue house, the complainant asked the respondent to buy Mrs. Brown's property, but she declined to do so, and asked him why he did not buy it, and he replied that he did not have the money. After further discussion, the respondent agreed to let the complainant have $2,000 with which to purchase the Brown property, with the understanding that the deed of the same was to be in his name, and that her daughter was to take charge of the rents

a

to be an absolute conveyance, but was conveyance as security to protect the respondent for the money she had advanced.

[1] This court has repeatedly held that the findings of fact made by a trial justice upon conflicting testimony are entitled to great weight, and, as there is sufficient testimony in the case to support the findings of fact and they do not appear to be clearly wrong, this court will not disturb them.

land, absolute on its face, may in equity, by [2] It is well settled that a conveyance of means of parol evidence, be shown to be a mortgage, and that it was intended to be a security for the payment of a debt. 27 Cyc. 991.

decree of the superior court appealed from The respondent's appeal is dismissed, the is affirmed, and the cause is remanded to that court for further proceedings.

(115 A.)

MEMORANDUM DECISIONS

DI LEO v. CATANZARO. of Errors of Connecticut.

(Supreme Court | Supreme Judicial Court, where there was a verNov. 30, 1921.) dict for defendant, and plaintiff moves for new trial. Motion for new trial overruled. Argued before CORNISH, C. J., and SPEAR, HANSON, MORRILL, and DEASY, JJ. Willard & Ford, of Sanford, for plaintiff. E. P. Spinney, of North Berwick, and Lucius B. Sweet, of Sanford, for defendant.

Appeal from Superior Court, New Haven County; John W. Banks, Judge. Action by Pellegrino Di Leo, administrator, against Filippo Catanzaro, for death of plaintiff's intestate, based on negligence. Judgment for plaintiff for $3,500, and defendant appeals. No error. Nathaniel R. Bronson, Lawrence L. Lewis, and Charles E. Hart, Jr., all of Waterbury, for appellant. Francis P. Guilfoile, of Waterbury, for appellee.

PER CURIAM. Examination of the evidence shows that the motion to correct the finding is almost in its entirety wholly without merit; the rest of the motion is without significance, and, if granted, could not affect the questions of law involved in the appeal. Unless the finding be corrected, the claimed errors of law, as the defendant concedes, cannot be successfully pursued. There is no error.

FOSTER v. DIBBLEE. (Supreme Judicial Court of Maine. Nov. 16, 1921.) On Motion from Supreme Judicial Court, Aroostook County, at Law. Action by Guy D. Foster against Herbert G. Dibblee. On verdict for plaintiff, defendant moves for a new trial. Motion overruled. Argued before CORNISH, C. J., and SPEAR, PHILBROOK, DUNN, WILSON, and DEASY, JJ. R. W. Shaw, of Houlton, for plaintiff. W. S. Lewin, of Houlton, for defendant.

PER CURIAM. The plaintiff bought an automobile of the defendant, the purchase price being $450, of which sum $225 was paid in cash and the balance by delivery to the defendant of plaintiff's promissory note for $225, due in six months. The automobile was held as collateral security for the payment of this note. The plaintiff claims that before the maturity of the note he sold the same automobile back

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CENTRAL R. OF NEW JERSEY v. JER

to the defendant for $225, which sum the plain-SEY CITY. (No. 89.) (Court of Errors and tiff claims the defendant agreed to pay, when the latter should have sold the automobile and got his pay for the same. The plaintiff claims that the defendant finally sold the car, but that

the latter refused and still continues to refuse to pay the plaintiff the sum of $225, or any part thereof. The defendant denied the claims of the plaintiff, and the trial upon issues of fact resulted in a verdict for the plaintiff. The defendant's motion for a new trial is based entirely upon findings upon issues of fact which have been passed upon and determined by a jury, who saw the witnesses and heard them testify. After careful examination of the record we are not able to say that the jury so manifestly erred that we should be justified in setting aside the verdict. Motion overruled.

GENDRON v. LEGERE. (Supreme Judicial Court of Maine. Dec. 17, 1921.) On Motion from Supreme Judicial Court, York County, at Law. Action by Nazaire J. Gendron against Amedie Legere. From a judgment for plaintiff

Appeals of New Jersey. Oct. 14, 1921.) Appeal from Court of Chancery. Suit by the Central Railroad of New Jersey against the City of Jersey City. From a decree for complainant (111 Atl. 645), defendant appeals. firmed. Charles M. Egan, of Jersey City, for appellant. Edwards & Smith, of Jersey City, for respondent.

Af

PER CURIAM. The decree appealed from will be affirmed, for the reasons stated in the opinion filed in the court below by Vice Chancellor Lewis.

For affirmance: The CHIEF JUSTICE, Justices SWAYZE, TRENCHARD, PARKER, BERGEN, MINTURN, KALISCH, BLACK, and KATZENBACH, and Judges HEPPENHEIMER, WILLIAMS, GARDNER, and VAN BUSKIRK.

For reversal: None.

CROSLEY et al. v. SUPERB REALTY CO. (No. 40.) (Court of Errors and Appeals of

Court of Chancery. Action between Rena Peddie Crosley and others and the Superb Realty Company. From an adverse decree, the former appeal. Affirmed. Frank Benjamin, of Newark, for appellants. Selick J. Mindes, of Newark, for respondent.

PER CURIAM. The decree appealed from will be affirmed, for the reasons stated in the opinion filed in the court below by Vice Chancellor Fielder.

ministrators with the will annexed of Thomas F. Mannex, deceased, against Michael Regan and others. From a decree for defendants, plaintiffs appeal. Affirmed. Frank G. Turner, of Jersey City, for appellants. David F. Edwards, of Jersey City, for respondents.

PER CURIAM. The decree appealed from will be affirmed, for the reasons stated in the opinion filed in the court below by Vice Chancellor Griffin, 112 Atl. 601.

For affirmance: The CHIEF JUSTICE, Jus- For affirmance: The CHIEF JUSTICE, Justices SWAYZE, TRENCHARD, PARKER, tices SWAYZE, TRENCHARD, BERGEN, BERGEN, MINTURN, KALISCH, BLACK, MINTURN, KALISCH, BLACK, and KATand KATZENBACH, and Judges WILLIAMS, ZENBACH, and Judges HEPPENHEIMER, GARDNER, ACKERSON, and VAN BUS-WILLIAMS, and VAN BUSKIRK. For reversal: Justice PARKER.

KIRK.

For reversal: None.

F. R. PATCH MFG. CO. v. WILLIAM A. GAHAGAN CO. et al. (No. 38.) (Court of Errors and Appeals of New Jersey. Sept. 30, 1921.) Appeal from Court of Chancery. Bill by the F. R. Patch Manufacturing Company against the William A. Gahagan Company and others. Decree for complainant, and defendants appeal. Affirmed. Robert Carey, of Jersey City, for appellants. Leon Abbett, of Hoboken, for respondent.

PER CURIAM. The decree appealed from will be affirmed, for the reasons stated in the opinion filed in the court below by Vice Chancellor Griffin. 114 Atl. 321.

For affirmance: The CHIEF JUSTICE, Justices SWAYZE, TRENCHARD, PARKER, BERGEN, MINTURN, KALISCH, BLACK, and KATZENBACH, and Judges HEPPENHEIMER, WILLIAMS, GARDNER, ACKERSON, and VAN BUSKIRK.

For reversal: None.

MYERS v. BROWN et al. (No. 47.) (Court of Errors and Appeals of New Jersey. Oct. 7, 1921.) Appeal from Court of Chancery. Suit to foreclose mortgage by Charles F. Myers against Mildred J. Brown and others, in which Susanna B. Trap caused execution to be levied on moneys in the hands of the receiver in foreclosure. Decree for the levying judgment creditor, and complainant appeals. Affirmed. Bourgeois & Coulomb, of Atlantic City, for appellant. David O. Watkins, of Woodbury, for respondent.

PER CURIAM. The decree appealed from will be affirmed for the reasons stated in the opinion filed in the court below by Vice Chancellor Backes, 112 Atl. 844.

For affirmance: The CHIEF JUSTICE, Justices SWAYZE, TRENCHARD, PARKER, BERGEN, MINTURN, KALISCH, BLACK, and KATZENBACH, and Judges HEPPENHEIMER, ACKERSON, and VAN BUSKIRK. For reversal: None.

LIBERTY TRUST CO. v. FORD et al.

SAME v. MAYHEW et al. (Nos. 55, 56.)

(Court of Errors and Appeals of New Jersey. Oct. 7, 1921.) Appeal from Court of Chancery. Suits by the Liberty Trust Company against Alfred P. Mayhew and others and against Nellie P. Ford and others. Decrees for defendants (Liberty Trust Co. v. Haggerty, 113 Atl. 596), and plaintiff appeals. Affirmed. McCarter & English, of Newark, for appellant. Lintott, Kahrs & Young and David Bobker, all of Newark, for respondents.

PER CURIAM. The decree appealed from will be affirmed, for the reasons stated in the opinion filed in the court below by Vice Chancellor Fielder.

For affirmance: The CHIEF JUSTICE, Justices SWAYZE, TRENCHARD, PARKER, BERGEN, MINTURN, KALISCH, BLACK, and KATZENBACH, and Judge VAN BUSKIRK.

For reversal: None.

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MANNEX et al. v. REGAN et al. (No. 11.) (Court of Errors and Appeals of New Jersey, Sept. 23, 1921.) Appeal from Court of Chancery. Suit by Alice B. Mannex and others, ad

(No. 58.)

SCHMIDT v. RAPHAEL et al. (Court of Errors and Appeals of New Jersey. Oct. 21, 1921.) Appeal from Court of Chancery. Suit by Marie Schmidt against Albert A. Raphael, trustee, and others. From decree for plaintiff, defendants appeal. Affirmed. Lum, Tamblyn & Colyer, of Newark, for appel

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For affirmance: The CHIEF JUSTICE, Justices SWAYZE, TRENCHARD, BERGEN, MINTURN, KALISCH, BLACK, and KATZENBACH, and Judges WHITE, HEPPENHEIMER, WILLIAMS, TAYLOR, and GARDNER.

For reversal: None.

TRIPLETT v. IVINS. (No. 32.) (Court of Errors and Appeals of New Jersey. Sept. 30, 1921.) Appeal from Court of Chancery. Suit by Frederick W. Triplett against Wilhelmina B. Ivins. Decree for complainant, and defendant appeals. Affirmed. John T. Cleary, of Camden, for appellant. Lewis Starr, of Camden, for respondent.

PER CURIAM. The decree appealed from will be affirmed, for the reasons stated in the opinion filed in the court below by Vice Chancellor Leaming, 112 Atl. 509.

For affirmance: The CHIEF JUSTICE, Justices SWAYZE, TRENCHARD, PARKER, BERGEN, MINTURN, KALISCH, BLACK, and KATZENBACH, and Judges HEPPENHEIMER, WILLIAMS, GARDNER, ACKER

SON, and VAN BUSKIRK.
For reversal: None.

MORNEWECK v. WESTERN & SOUTHERN LIFE INS. CO. (Supreme Court of Pennsylvania. May 26, 1921.) Appeal from Court of Common Pleas, Crawford County; Thomas J. Prother, Judge. Action by Julia Morneweck against the Western & Southern Life Insurance Company. Judgment for defendant, and plaintiff appeals. Affirmed. Argued before MOSCHZISKER, C. J., and FRAZER, WALLING, SIMPSON, KEPHART, and SADLER, JJ. Otto Kohler, of Meadville, for appellant. Albert L. Thomas, of Meadville, for appellee.

PER CURIAM. Plaintiff endeavored to set aside a written release. The court below ruled that the evidence depended upon did not measure up to the required standard, citing Ralston v. Phila. R. T. Co., 267 Pa. 257, 110 Atl. 329. After reading the notes of testimony, we are I not convinced of error. Judgment affirmed.

END OF CASES IN VOL. 115

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