MEASURE OF DAMAGES. IN AN ACTION FOR PERSONAL INJURIES. Continued.

damages for a personal injury from being struck by a train of passing cars, on the ground of negligence, the court instructed the jury in case they found for the plaintiff, in assessing damages they might take into consideration the plaintiff's pain and anguish of mind consequent upon such injury: Held, that there was no error. But mental anguish not connected with bodily injury is not proper to be considered in such a case. Indianapolis & St. Louis Railroad Co. v. Stables, 313.

FRAUD IN EXCHANGE OF PROPERTY.

2. Where the plaintiff was induced by fraudulent representations of defendant as to the condition of certain Missouri land, which proved to be untrue, to give in exchange a house and lot for the land and $800 in money, and deeds were made each to the other for the property exchanged, it was held the plaintiff was entitled, under the contract, to have such a tract of land as it was represented to be; and if he did not get it, the measure of damages was the difference between the actual value of the land, and the value of the same if it had been such as it was represented. Drew v. Beall, 164.

3. After an exchange of a house and lot by plaintiff with defendant for a tract of Missouri land and $800, effected by fraudulent representations of defendant as to the condition, quality, and value of the Missouri land, the defendant, when sued in an action on the case for the fraud and deceit, offered to prove the value of the house and lot he received of plaintiff as affecting the question of damages, which the court refused to allow: Held, that the proof was properly rejected, as the plaintiff was entitled to the benefit of his bargain; and it was not for the jury to make a new contract for the parties or fix a new price on plaintiff's property for the parties. Ibid. 164.

AGGRAVATION OF DAMAGES.

4. Proof of pecuniary ability. On the trial of an action against a street railway company and the conductor to recover for personal injuries for the acts of the servants of the company, the court received evidence of the pecuniary ability of the company in aggravation of damages: Held, that the admission of the evidence was improper, as the conductor was liable for the judgment, and the evidence as to him was highly prejudicial. Chicago City Railway Co. et al. v. Henry, 142. RECOVERY ON PARTIAL PERFORMANCE.

5. In an action seeking to recover for services on partial performance of a special contract on the ground of cause for not fully performing, where there was proof of payment, it is error to instruct the jury that if there was cause for abandoning the work before completion, the plaintiff is entitled to recover for the full amount of the work done according to the contract price, provided the work had not all been paid for. It should have authorized the recovery of the unpaid balance only. Cong'l Society of Evanston v. Hubble, 161.

MEASURE OF DAMAGES. Continued.

ON CONDEMNING RIGHT OF WAY. See RIGHT OF WAY, 10 to 14.

MECHANIC'S LIEN. See LIENS, 4.

MERGER..

WHETHER THE DOCTRINE WILL BE APPLIED.

1. Courts of equity will not apply the technical doctrine of merger
where the intention or the just interests of the parties require the in-
cumbrance to be kept alive. Where it is perfectly indifferent to the
party in whom the interests are united, whether the charge should or
should not subsist, it will sink, but where it is to his interest that it
should be kept on foot, the court, in the absence of an expressed inten-
tion, will so decree. Fowler v. Fay et al. 375. See MORTGAGES.

MISTAKE.

WHEN INVOLVED IN FRAUD.

Will not be allowed to be corrected. See CHANCERY, 24.

MORTGAGES.

WHETHER A MORTGAGE OR A SALE.

1. Where a person advances money, and at the same time receives a
deed and gives back a bond to the grantor for a reconveyance, these
facts incline to the belief that the transaction is a loan and a security;
but not so, when the conveyance is made by the person to whom the
consideration is paid, and the obligation to convey is given to another.
Carr v. Rising et ux. 14.

2. When the owner of land caused the party holding the legal title
to convey the same to the defendant for the consideration of $2,300,
the full value of the premises, taking back a bond for a deed upon pay.
ment of $2,401, in one year thereafter, and a lease of the premises, and
when sued in forcible detainer for possession, filed no bill to restrain
the proceeding and have the transaction declared a mortgage until over
two years afterward, and permitted the grantee to expend about $1,500
in improvements without asserting any right, and no obligation was
given to the grantee for the payment of the money advanced by him,
so that he might foreclose if the transaction was intended as a mort-
gage, and the former owner while in possession directed the assessment
of the land to the defendant, and in a former suit in answer to a cross
bill, denied that defendant had given the bond for reconveyance; and
when the witnesses present at the execution of the deed, when all the
parties were present, did not understand the transaction to be a security
for money loaned: Held, on bill filed to redeem, that the transaction
could not be regarded as in the nature of a mortgage, a security for
money loaned, but was an absolute sale. Ibid. 14. See also VENDOR
AND PURCHASER, 1, 2, 3.

MORTGAGES. Continued.

MORTGAGEE PURCHASING THE FEE FROM MORTGAGOR.

3. Rights of intermediate incumbrancers-merger. In 1866 A & B mort-
gaged certain lots held by them in severalty to C to secure the payment
of a note of $2,912.37, and C being indebted to D & Co. assigned to
them this note and mortgage as collateral security. In September,
1868, A mortgaged his part of the same lots to F to secure a debt of
$1,000, owing from A & B. In December following A & B by warranty
deed conveyed the mortgaged lots to C for the expressed consideration
of $8,000. This deed was expressed to be subject to the mortgage to F,
but contained no provision that the grantee should pay off such mort-
gage: Held, that the effect of the deed from the mortgagors to C was
not to merge the first mortgage in the fee so far as the rights of C were
concerned; and that upon foreclosure and sale, the sum due on the
mortgage to C was the prior lien and should be first paid; secondly,
the junior mortgage, and the surplus arising from the sale after satis-
fying both mortgages should be paid to C. Fowler v. Fay et al. 375.

4. If a senior mortgagee should purchase the mortgaged premises
from the mortgagor and undertake to pay off a junior mortgage, and
the amount of such mortgage is deducted from the price of the land,
then the senior mortgage will be postponed in favor of the junior.
Ibid. 375.

MORTGAGE UPON A VESSEL.

5. Priority of lien over a material-man. A prior mortgage on a vessel,
duly recorded, has precedence of a lien of a material-man subsequently
acquired. Propeller Hilton v. Miller et al. 230.

PRIORITY IN PAYMENT OF A SERIES OF NOTES.

6. Lost by re-issue. Where the mortgagor paid to the payees of a
series of promissory notes given by the firm of which he was a mem-
ber, those which had matured, with money which his brother had as-
sisted him to raise by the loan of certain other notes under an agree
ment with the brother, unknown to the payees, that the brother was to
have the notes when taken up assigned to him as a security for the
notes he had parted with, and the payees, at the request of the mort-
gagor, indorsed in blank the notes so paid them without any knowl
edge that they were to be re-issued by the mortgagor, and they were
transferred to the brother as agreed: Held, on bill by the payees to
foreclose the mortgage as to the remaining notes of the series, falling
due in one and two years after those which had been taken up and re-
issued, that the latter were not entitled to priority, but were postponed.
White et al. v. Fisher et al. 258.

7. Where one of the makers of a series of notes maturing in one,
two, and three years, secured by his mortgage, paid the first of the se-
ries after due, taking a blank indorsement of them, and then transferred
them to a brother, who furnished the means with which they were paid,
the payees not knowing that their indorsement was procured for such

MORTGAGES. PRIORITY IN PAYMENT OF A SERIES OF NOTES.

Continued.

purpose: Held, that the brother, as the holder of such notes, was en-
titled to the benefit of the mortgage security as against the mortgagor,
but as to the holders of the remaining notes his rights were postponed.
White et al. v. Fisher et al. 258.

MORTGAGOR AND MORTGAGEE.

8. Of their respective rights and interests. In equity, the mortgagor is
the owner of the fee until entry for condition broken, or foreclosure.
His relation to the mortgagee is peculiar. He has been termed a ten-
ant from year to year, or at sufferance, or a quasi tenant at sufferance,
or a tenant at will. While in possession he can not be regarded as a
trespasser, without some act on the part of the mortgagee. Medley et al.
v. Elliott et al. 532.

9. In equity, the mortgagee's interest in the mortgaged premises is
of a personal character similar to his interest in the debt secured. It
is a mere chattel interest. The mortgage is only a charge upon land,
and, until foreclosure, or possession taken, it remains in the light of a
chose in action. It is but an incident attached to a debt. Ibid. 532.
GRANTEE OF MORTGAGOR.

10. The mortgagor, while in possession, may rightfully sell or lease
the premises. His grantee succeeds to his estate, occupies his position,
takes subject to the incumbrance, and is subject to the same equities.
His possession is not hostile to, or inconsistent with, the rights of the
mortgagee, and he is not a trespasser; but the mortgagee, at pleasure,
upon forfeiture of the condition, may treat either the mortgagor or
his assignee in possession as tenant or trespasser. Ibid. 532.

11. A purchaser of part of the mortgaged premises from the mort-
gagor, after the release of all the rest of the premises, takes with the lien
upon his hand exclusively. Ibid. 532.

SUBROGATION.

12. Right of one of two mortgagors paying for the other. When A and B,
being equally interested in the purchase of land, gave their joint notes
for the unpaid purchase money, secured by their mortgage on the prem-
ises, and B refused to pay $800 of his part of the last note, so that the
land of A (a partition having been made) was sold under decree of fore-
closure, and he was compelled to redeem the same: Held, on cross bill
of A, to a bill filed by B, that A was entitled to a decree against B for
the amount so paid by him of B's part of the note, with six per cent.
interest. Fisher v. Dillon, 379.

REDEMPTION FROM MORTGAGE.

13. Of the terms thereof where mortgagee has acquired a tax title. Where
a party made a mortgage of land by a deed absolute on its face, and the
mortgagee gave a bond obligating himself to convey back the premises
on payment of the debt, free from all incumbrance, by deed with full
38-62D ILL.

MORTGAGES. REDEMPTION FROM MORTGAGE. Continued.

covenants of warranty, and afterward acquired a tax title to the prem-
ises, the court, on bill to redeem, allowed the mortgagee the sum ad-
vanced for the tax title, and required him to convey the whole title,
which the mortgagee assigned for error: Held, that under the terms of
his bond there was no error. Clark v. Laughlin, 278.

DECREE FOR POSSESSION ON FORECLOSURE.

14. A decree for the foreclosure of a mortgage, among other things,
provided that if the premises, in case of sale, were not redeemed in fif
teen months, the master in chancery execute a deed to the holder of the
certificate of purchase, and requiring the delivery of possession to the
grantee in such deed: Held, no error. Baker et al. v. Scott, 86.
INTEREST ON FORECLOSURE.

15. When a personal decree is rendered against a mortgagor for the
balance of the debt remaining after the sale of the mortgaged premises,
with interest, if the proceeds of sale shall not extinguish the interest
accrued on the original debt, the court should see that interest is not
allowed on interest. Ibid. 86.

CHATTEL MORTGAGES.

16. For a greater indebtedness than exists—whether fraudulent. The mere
fact that the mortgage recites a greater indebtedness than actually ex-
isted at the time of its execution is not conclusive evidence of fraud.
It is a fact to be left to the jury, who must determine from all the cir-
cumstances whether it was inserted in the mortgage with the design to
shield the property of the mortgagor, and to hinder and delay creditors.
The transaction must be real, and entered into in good faith to secure
against present or future liability. Bell v. Prewitt, 361.

17. Description of chattels. A chattel mortgage duly acknowledged
and recorded, after describing certain other chattels as then upon the
farm of the mortgagor, contained this description, to-wit: "Twenty
two-year old steers on same farm." It was objected that this descrip-
tion was insufficient to identify the property as to others dealing with
the mortgagor: Held, that the record of the mortgage was sufficient
notice to subsequent purchasers that the mortgagee had some claim of
right to cattle upon the farm, and that parol evidence was necessary
and admissible to identify the particular cattle. Ibid. 361.