Held, that the writ be refused. U. S. ex rel. Alaska Smokeless Coal Co. v. Lane, SALES - AFTER-ACQUIRED PROPERTY-FUTURE CROPS-RETENTION OF POSSESSION BY VENDOR. - The defendant sold the plaintiff all the beans to be planted and raised that year on the defendant's land. It was expressly stated that title was to pass at once. After the beans were harvested, the defendant mortgaged the crop and transferred possession to the mortgagee. The buyer sued the seller and the mortgagee for the beans. Held, that title had passed to the plaintiff subject to the mortgagee's lien. Hamilton v. Klinke, 183 Pac. 675 (Cal.). The court's decision was based upon the doctrine of potential possession. "In certain cases a seller may transfer title to goods which he does not then own," on the theory that he is already potential owner. Grantham v. Hawley, Hob. 132; Briggs v. United States, 143 U. S. 346. See WILLISTON ON SALES, §§ 133137. In practice this doctrine has been limited to crops and the young of animals. By the application of this doctrine, when such property comes into existence title passes to the buyer free from any defects arising since the bargain. Grantham v. Hawley, supra. Because of its great hardship upon innocent third parties, arbitrary limitations of the doctrine have been laid down in several states. Shaw v. Gilmore, 81 Me. 396, 17 Atl. 314. See 1913 MINN. GEN. STAT., § 6980. In England and in some states, except as applied to mortgages, it has been abolished. See SALE OF GOODS ACT, 56 & 57 VICT., c. 71, $5 (3). See also UNIFORM SALES ACT, § 5 (3). In those states where the doctrine is still upheld, through the intervention of another rule, a prior purchaser's title is defeated by a sale and delivery by the seller to a subsequent purchaser. See WILLISTON'S CASES ON SALES, 3 ed., 384, note. See also Samuel Williston, "Transfers of After-Acquired Personal Property," 19 HARV. L. REV. 569, 570. The principal case illustrates this safeguard against the hardships of the doctrine. - SALES RISK OF LOSS - TIME OF PASSING OF TITLE C. I. F. CONTRACTS. The seller in Halifax contracted to sell to the buyer in Philadelphia goods c. i. f. Philadelphia. The quoted price included the cost, insurance, and freight. The goods were destroyed in transit by a submarine. Held, that the loss falls on the buyer. Smith Co. v. Marano, 76 Leg. Int. 768. Unless a contrary intention appears, if the contract requires the seller to deliver at a distance, or to pay the freight, the property does not pass until the goods have been delivered to the buyer. See UNIFORM SALES ACT, § 19, subd. 5. But a c. i. f. contract does not come within this section. See WILLISTON ON SALES, 408. While it might well be considered the same as a contract f. o. b. destination, it is treated more like a sale f. o. b. point of origin. See Mee v. McNider, 109 N. Y. 500, 503. This doctrine must rest on the theory that the obligation of a c. i. f. contract is met by the delivery to the buyer of the bill of lading, invoice, and policy of insurance. Horst Co. v. Biddell Bros., [1911] 1 K. B. 214, aff'd [1912] A. C. 18. See Karburg & Co. v. Blythe, Green, Jourdain & Co., [1915] 2 K. B. 379, 388. It is not clear from the cases whether the property in the goods passes at the time of the delivery of the goods to the carrier or at the time of the delivery of the documents to the buyer. See Mee v. McNider, supra; Karburg & Co. v. Blythe & Co., [1916] 1 K. B. 495, 514; Groom v. Barbour, [1915] 1 K. B. 316, 324. But it is unnecessary to decide this point, because it is clear that the risk throughout is on the buyer. Manbre Saccharine Co. v. Corn Products Co., [1919] 1 K. B. 198. Therefore, if the seller has followed his authority as to the insurance, and the goods are destroyed in transit by the public enemy, the seller is not thereby precluded from making a valid tender of the documents, although he knows at the time that the goods are not in existence; and the buyer is not relieved from the liability to pay the price, although the insurance does not cover war risk and he has no recovery for the loss. In re Weis & Co. v. Credit Colonial et Commercial (Antwerp), [1916] 1 K. B. 346. SALVAGE - WHAT CONSTITUTES SALVAGE SERVICE. The plaintiff schooner transferred passengers and baggage from the defendant ship which had run aground. The list of the ship and the number of passengers aboard her created a reasonable apprehension of danger although the rescue could have been accomplished without the aid of the schooner. Held, that the service constituted salvage. Clayoquot Sound Canning Co. v. S. S. Princess Adelaide, 48 Dom. L. R. 478. The defendant tug had her rudder carried away in a heavy gale. In response to distress signals the plaintiff trawler made fast and brought the tug safely into port. Held, that the service constituted salvage. The Andrew Kelly v. The Commodore, 48 Dom. L. R. 213. For a discussion of these cases, see NOTES, p. 453, supra. The pe SPECIFIC PERFORMANCE INADEQUACY OF CONSIDERATION AS A DEFENSE CONTRACT TO DEVISE IN CONSIDERATION OF PERSONAL SERVICES. titioner and his uncle had contracted that, in consideration of personal services to be performed by the petitioner during the uncle's lifetime, the latter would make a will and leave his entire property to the petitioner. The bill alleged complete performance by the petitioner, the uncle's death without having made a will, and prayed specific performance of the agreement. The defendant filed a demurrer, on the ground that the petition did not specify the value of the estate, or the value and extent of the services alleged to be the supporting consideration of the contract. A Georgia statute provides that "mere inadequacy of price . . . may justify a court in refusing to decree a specific performance." (1910 GA. CIV. Code, § 4637.) Held, that the demurrer be sustained. Potts v. Mathis, 100 S. E. 110 (Ga.). A valid contract to devise realty in consideration of personal services will be specifically enforced against the heir or devisee where the promisee has fully performed. Howe v. Watson, 179 Mass. 30, 60 N. E. 415; Burdine v. Burdine's Ex'r, 98 Va. 515, 36 S. E. 992; Brinton v. Van Cott, 8 Utah, 480, 33 Pac. 218. See 30 HARV. L. REV. 192. See also 28 HARV. L. REV. 241-245. Although the remedy by specific performance lies within the discretion of the court, a mere inequality of price and value will not be reason for denying it. Seymour v. Delancy, 3 Cow. (N. Y.) 445; Lawson v. Mullinix, 104 Md. 156, 64 Atl. 938; Harrison v. Town, 17 Mo. 237. See 15 HARV. L. REV. 318 and 741; 27 HARV. L. REV. 288. But if the inadequacy of the consideration is so gross as to constitute great hardship, or is coupled with sharp practice or unfairness, equity will not decree specific performance. Cox v. Burgess, 29 Ky. L. Rep. 972, 96 S. W. 577; Marks v. Gates, 154 Fed. 481; Grizzle v. Sutherland, 88 Va. 584, 14 S. E. 332. The fairness of a contract to devise in consideration of personal services should be determined with reference to the breadth of the undertaking to serve, and should not be deemed unfair merely because the contract has turned out to be advantageous to one of the parties. Warner v. Marshall, 166 Ind. 88, 75 N. E. 582; Bless v. Blizzard, 86 Kan. 230, 120 Pac. 351; Howe v. Watson, 179 Mass. 30, 60 N. E. 415. Statutes in some jurisdictions provide that specific performance "cannot" be given in case the consideration be inadequate. See 1915 CAL. CIV. CODE, § 3391; 1907 MONT. REV. CIV. CODE, § 4417; 1913 So. DAK. REV. CIV. CODE, § 2345. It has been intimated that such a statute makes inadequacy of consideration a ground for refusing specific performance apart from circumstances of hardship or unfairness. Morrill v. Everson, 77 Cal. 114, 19 Pac. 190. The proper interpretation seems to be, however, that the usual equity rule is declared. See Phelan v. Neary, 22 S. Dak. 265, 117 N. W. 142; Prince v. Lamb, 128 Cal. 120, 60 Pac. 689; White v. Sage, 149 Cal. 613, 87 Pac. 193. This interpretation would seem clear when the statute, as in the principal case, provides that mere inadequacy of price "may justify" a court in refusing to decree specific performance. It has been held that a statute such as those cited above places the burden upon the plaintiff of alleging facts in his declaration which affirmatively show adequacy of consideration. White v. Sage, supra. But it seems more reasonable to hold that inadequacy of consideration is a matter of defense. Finlen v. Heinze, 28 Mont. 548, 73 Pac. 123. In the principal case there are no circumstances alleged which give rise to an inference of hardship or unfairness. It would seem, therefore, that the demurrer should have been overruled. - DIVERSION TAXATION LOCAL ASSESSMENT FOR "STOCK LAW FENCES" TO GENERAL FUND. A statute authorized a county to sell its "stock law fences," now no longer necessary, and directed that the proceeds, as well as the surplus of the stock law fund, should be returned to the general fund of the county. When the fences were built, assessments had been imposed upon landowners in that portion of the county where the fences were located. These landowners seek to have the proceeds of the sale and the surplus distributed among themselves alone, attacking the statute as unconstitutional. Held, that the statute is constitutional. Parker v. Board of Commissioners of Johnston County, 100 S. E. 244 (N. C.). The taxes with the proceeds of which the fences had been built were in the nature of local assessments. Cain v. Commissioners of Davie County, 86 N. C. 8. Such assessments are not taxes within the equality and uniformity provisions of the state constitutions. Arnold v. Mayor, etc. of Knoxville, 115 Tenn. 195, 90 S. W. 469; City of Auburn v. Paul, 84 Me. 212, 24 Atl. 817; City of St. Joseph v. Owen, 110 Mo. 445, 19 S. W. 713. But assessments must be apportioned according to benefits; and by the weight of authority constitutional provisions which forbid the taking of property without due process of law make such apportionment mandatory. White v. City of Tacoma, 109 Fed. 32; Erie v. Russell, 148 Pa. St. 384, 23 Atl. 1102. See Stuart v. Palmer, 74 N. Y. 183, 189. See I PAGE AND JONES, TAXATION BY ASSESSMENT, § 118. If the money has been collected by assessment, but not expended, and the improvement abandoned, the persons assessed have a right to a refund. McConnville v. City of St. Paul, 75 Minn. 383, 77 N. W. 993. See Bradford v. City of Chicago, 25 Ill. 411, 416. And a similar right exists where there is a surplus. See City of Chicago v. McCormick, 124 Ill. App. 639, 640; Cleveland v. Tripp, 13 R. I. 50, 64. But if the proceeds have been used for the designated purpose, the person complaining cannot recover, even though the expected benefit has not accrued to him. Germania Bank v. City of St. Paul, 79 Minn. 29. The principal case seems doubtful, unless the decision can be rested upon the ground that, in view of the small amount involved, distribution among the property owners would be inexpedient and would yield almost nothing. It has been held that the constitutional requirement that taxes shall be uniform applies to their levy, and not to their distribution after they have been raised. Kerr v. Perry School, 162 Ind. 310, 70 N. E. 246; Holton v. Mecklenburg County Com'rs, 93 N. C. 430. PARTICULAR FORMS OF TAXATION TRANSFER TAX TAXATION TRANSFER TO TAKE EFFECT AT DEATH. An uncle, retiring from a partnership in which he and his nephew were the only members, gave up to his nephew a debt which the partnership owed him, upon the nephew's promise to leave the money in the business and pay him two per cent on the amount until his death. A statute provided that transfers of decedent's property made in contemplation of death or intended to take effect in possession or enjoyment at or after such death should be subject to transfer tax. (1914 N. J. P. L. 267.) Held, that the transfer was not subject to the tax. Wolf et al. Comptroller of Treasury of N. J., 105 Atl. 871 (N. J.). V. A gift inter vivos not made in contemplation of death is not taxable. Matter of Spaulding, 49 App. Div. 541, aff'd 163 N. Y. 607, 57 N. E. 1124. But a transfer reserving a life estate to the grantor is taxable as intended to take effect at death. In re Keeney's Estate, 194 N. Y. 281, 87 N. E. 428; Carter v. Bugbee, 91 N. J. L. 438, 103 Atl. 818. Such a transfer for consideration is not taxable. Blair v. Herold, 150 Fed. 199. But a transfer in return for a promise to pay interest no greater than the income of the property transferred is not supported by consideration. In re Estate of Reynold's, 169 Cal. 600, 147 Pac. 268. In substance, the grantor is reserving for himself a life income and the enjoyment of the grantee is postponed until the grantor's death. This is precisely the situation the statute was designed to cover. See 28 HARV. L. REV. 437. To reason as the court did in the principal case that the transfer was a gift and the nephew's promise an independent undertaking involves the difficulty of a waiver of a debt and a promise without consideration, and overlooks the fact that the agreements were in exchange for each other. Nevertheless, where the interest rate is low, it might well be held that the grantee's enjoyment begins presently as to all but the part necessary to earn the required income. People v. Kelley, 218 Ill. 509, 75 N. E. 1c38. The case might be supported upon the narrow ground that the promise to leave the money in the business imposed a risk which would render the nephew's undertaking adequate consideration. TENANCY IN COMMON -LEASE BY COTENANT RIGHT OF A COTENANT TO ASSIGN HIS RIGHTS TO THE USE OF A SPECIFIC PART OF PREMISES. — In a prior suit by the present plaintiff against the present defendant, a lease made to the defendant by several of the plaintiff's cotenants to which the plaintiff did not assent was declared void. The lessors were not made parties to that suit. The plaintiff now brings ejectment against the defendant, who admits the lease is void against the plaintiff, but claims that, under it, he is entitled to the same rights in the particular premises that his lessors had. Held, that ejectment cannot be maintained. Pastine v. Altman, 107 Atl. 803 (Conn.). Attempts by one cotenant or by any number less than all the cotenants to dispose of the interests of the other cotenants are void as to them. Waring v. Crow, 11 Cal. 366; Murley v. Ennis, 2 Colo. 300. A lease by one cotenant dealing with all or with a definite portion of the land held in common is not binding on the cotenants who do not join in making it and do not accept its benefits. Mussey v. Holt, 24 N. H. 248; Southern Inv. Co. v. Postal Telegraph Cable Co., 156 N. C. 259, 72 S. E. 361. Under such a lease the lessee can claim no exclusive rights, because his lessor had no right to demand that the particular part leased should be set off to him in case of partition. Dorn v. Dunham, 24 Tex. 366; Marks v. Wakeman, 107 Ill. 251. But a cotenant's ownership includes the privilege of exercising the right of the remaining cotenants to occupy and use the premises. See Gage v. Gage, 66 N. H. 282, 291, 29 Atl. 543, 547. See also Rising v. Stannard, 17 Mass. 282, 284. And a cotenant may authorize another to do whatever he himself might lawfully do with respect to the common premises. Buchanan v. Jenks, 38 R. I. 443, 96 Atl. 307; Baker v. Wheeler, 8 Wend. (N. Y.) 505. Accordingly some courts have given practical effect to leases by one or a part of the cotenants by considering them as licenses to use the specified premises, subject to the same conditions of cotenancy under which the lessor himself might have used them. Stark v. Barret, 15 Cal. 361; Rising v. Stannard, supra. This seems to be the rationale of the principal case. TRUSTS CREATION AND VALIDITY ANNUITY CONDITIONED UPON CONTINUED SEPARATION FROM HUSBAND. - The testator by his will directed trustees to pay an annuity to A, his mistress, provided and so long as she should not return to live with her present husband and should not remarry. A was living apart from her husband at the time of the execution of the will and the death of the testator. Held, that the trust be carried out according to its terms. Sparks v. Southall, 54 L. J. 362. Conditions in testamentary dispositions in limited restraint of marriage are not void as contrary to public policy. Jenner v. Turner, 16 Ch. D. 188; Reuff v. Coleman, 30 W. Va. 171, 3 S. E. 597. A testator who leaves a fund in trust for a legatee "during such period as she shall remain unmarried" is understood not to be aiming at a restraint of marriage, but rather to providing for the support of the legatee until such time as she shall be married. Jones v. Jones, 1 Q. B. D. 279; Trenton Trust Co. v. Armstrong, 70 N. J. Eq. 572, 62 Atl. 456. But a bequest to a married woman living with her husband, to take effect upon her separation from him (by his death or otherwise), may well be frowned upon as tending to disturb the harmony of the marital relation. In re Moore, 39 Ch. D. 116; Conrad v. Long, 33 Mich. 78. Yet even such bequests have been held valid when it is clear that the testator's sole motive was to provide for the legatee in case she should be left alone. Thayer v. Spear, 58 Vt. 327, 2 Atl. 161; Coe v. Hill, 201 Mass. 15, 86 N. E. 949. In the principal case, the woman was not living with her husband at the time of the execution of the will nor at the testator's death, and, in such a situation, courts will generally impute to the testator an intention primarily to provide the legatee with maintenance until some spouse should undertake that duty. In re Charleton, 55 Sol. J. 330; Dusbiber v. Melville, 178 Mich. 601, 146 N. W. 208. The further fact in the principal case that the beneficiary was the testator's mistress is not, in the absence of statute, sufficient to make the bequest void as against public policy. Sunderland v. Hood, 13 Mo. App. 232. See PAGE, WILLS, § 24. TRUSTS CREATION AND VALIDITY - Cestui que TrUST AS TRUSTEE OF A SPENDTHRIFT TRUST. The testatrix devised the residue of her property to her executor, impressed with a spendthrift trust, the income to be paid to her husband for his life and then to her two children. The husband was named as sole executor. Although no misconduct on the part of the executor was shown, it was sought to declare the trust invalid. Held, that the trust was valid. In re Fox's Estate, 107 Atl. 863 (Pa.). Spendthrift trusts under which the creator deprives himself of all power over the principal have always been valid in Pennsylvania. Rife v. Geyer, 59 Pa. St. 393; Shankland's Appeal, 47 Pa. St. 113. Where, however, the sole trustee is also cestui que trust for life, it has been said that during his life there is a merger of the legal and equitable estates. See Wills v. Cooper, 1 Dutch. (N. J.) 137, 164; Rose v. Hatch, 125 N. Y. 427, 431, 26 N. E. 467, 468. But where one of several trustees is also cestui que trust for life, it is clear there is no merger. Story v. Palmer, 46 N. J. Eq. 1, 18 Atl. 363. See Robertson v. de Brulatour, 111 App. Div. 882, 902, 98 N. Y. Supp. 15, 28. Likewise there is no merger where one of several cestuis que trustent is himself sole trustee. Woodward v. James, 115 N. Y. 346, 22 N. E. 150. A merger, then, results only where all legal and equitable rights under the trust are settled upon one person, so that no one can question his disposition of the property. Where, as in the principal case, equitable remainders are created which limit the trustee-cestui's power of disposition, there is, by the weight of authority, no merger during his life. Nellis v. Rickard, 133 Cal. 617, 66 Pac. 32; Losey v. Stanley, 147 N. Y. 560, 42 N. E. 8. See Spengler v. Kuhn, 212 Ill. 186, 193, 72 N. E. 214, 217. In view of the prevalence of spendthrift trusts in those states where they are valid, there would seem to be no reason for holding that because a man is cestui que |