New-York daily tribune., 1859-12-30
COURT OF APPEALS.
NOTES or DECISIONS AT sEPTENBER TsRN.

sTP1EMBkR
Nilisms sgt. Hayes ct al
In action for an accounting the complaint alleged
that the plaintiff partner with The defend ni in the exc
uncoleced assets the amount Of $1,000, and owed 5000
lhe answer afed the interest o. the Psinn = me e9ne
at the trial II silent to alleged assets and indeoted
eerSe ' between 1 III ths n pra without reference 70 .eh
debts Ae the evidence had been closed one Of de-
rejected On appeal from the against him and the
The admission Of evidence after the testimony has been
closed Of discretion IN the Referee not reyievsbe Ia
this Court Relief only be had Ia the Court Of original urs
The allegation In the complaint Of tho rn and IND
plaintiff therein stated When was established
that be had interest IN the second oo no mpelon re-
msned that such debts assets ere admitted by the aue o
the TO deny their existence;
teems party failing 10 call attention at the trial to an
implied admission in his favor in the pleading shoni not alter
ward be permitted % aysil himself thereof
Chase ast. The Hamilton Insurance Compsny.
The applicant for insurance described the subject OF
,be sk a. stone dwelling house. vithou, dsosins the .c.
word DIV ling house is 70 be iucludng the ntoh-u
and that the application cannot be deemed one Tor the insurance
WLere The application tipuaes that sha not be
21na y se sds to % Of ~ any aie4 e' o s .
stated in application inser In the absence Of fraud
OF his havg prevented their statement BY the applicant
Plumb agt. CattarTugus Mutual lnsuiance Company
QaN y, a9z), eon5l, red .nd ds,%sd;hsd. G Ha;,sSa
Where n deed has been gwen in pursuance OF pre-.
uuary the sale o land containing ,PulAiions ol
which the convey ef s not performance question
latios. ~. ,., 49,
In the absence Of all proof there presumption that either
sy intend, 20 give up benefit Of covenants Of whca he
conveyance 4 not performance OF satisfaction; q,
stipulation in the e2eeuoy contract that the vendor should
retain possession o specific period he'd NOT merged IN OF 81
nghed b. the conveyance but sdssble ia evidence %
quality operation and defeat action Tor the possession
by subsequent grantee with notice.
@at-D -D@vi-. SFsi-i R@aesf~, ,
The grantees OF land IN trust Tor creditors recohNe!el
10 the hnor deed recng that the trusts Rad been executed
when in fact there isf entitled 10 'e ana
d.tbuton Of the pIooeeds The debtor then morgased the
land for available confederation 10 having constructive Du
moi actual notice OF ths and Hsd TIE
took execution Of the trust The pur
sr skes no beneht the declaration the trustees h
be trust has ceased but ascertain al his peru thai such
| the iaet. - =
h roconveyonce being IN eontaenon Of the trust !. aoso
u;ely void and the legal estate remained in TIE Trustees Ih
therefore + not within the principle winch protects
tie bona tide purchaser Of legal title against prof equity
which be had no notice. -
The debtor however espectge Of the reeonyeysnee ha
the legal estate against all persons except the trustees anf
hosr ciaimipg under them The mortgage Therefore =. no
void bot entities the to redeem the Snd by satisfy M
I the claims Of the ccsiRts sue drst. .
% Is not necessary though eproper party 20 AZ
action by the enehcsries Of the to enforce ts execution
e purchaser the Judgment In such an action TO Snch
tho orto,see was not party gste with him tue validity
and extent OF bis en upon redemption or sAe i ened e
Le the beneEciaIes whom e fPesen h't oe;
limited TO the amount for which be pnrclaid'