Trial of Legal Issues in Injunction Against Tort

This essay appeared in a casebook on Equitable Remedies that was used for years in mimeographed form at the University of Michigan Law School. It was never prepared for final publication by Professor Durfee himself, but the numerous changes made in his own personal copy indicate that he had given much thought to the subject. Professor John P. Dawson who had collaborated with Professor Durfee has incorporated these changes in the present text. More changes might have been made by Professor Durfee if he had planned to publish it. The editors believe that as it stands it deserves a wider audience

Priorities

Among those of Edgar Durfee\u27s colleagues who were familiar with this paper it came to be known as Little Nemo, for a reason that will become apparent to the reader. It is taken from his mimeographed Cases on Security, third edition, published in 1938. Possibly it was published earlier but there is a gap in the evidence. It did not appear in the first edition published in 1934 but no copy of the second edition has been located. In a few places its age shows, for example in the reference to Walsh as the author of the most recent text on real property, and it should of course be read with an understanding of the time factor. A few cross-references and passages directed to classroom or other student use have been deleted but these changes are minor. Otherwise, with exception of some bracketed citations, the text is just as it was published. Because of its length it is being published in the Review in two parts

Priorities: II

This is the second part of Priorities (also known as Little Nemo ) which was taken from Professor Durfee\u27s teaching materials. The first part was published in the February issue-which was dedicated to the memory of Professor Durfee

Marshaling of Mortgaged Property in Favor of Subsequent Mortgagees

A holds a first mortgage covering two parcels of land, B holds a second mortgage covering one of these parcels, and C holds a second mortgage covering the other parcel, B\u27s mortgage being prior in time to C\u27s. B\u27s mortgage contains the following clause-- The property described in the within indenture is subject to an existing blanket mortgage held by A, with release clause of $10 per front foot. Upon a bill to foreclose A\u27s mortgage, how should the burden of that mortgage be distributed? In Savings Investment & Trust Co. v. United Realty & Mortgage Co., 94 Atl. 588, the Court of Errors and Appeals of New Jersey held that both parcels should be sold, separately, and the paramount mortgage paid out of the proceeds, each parcel contributing in proportion to its price at the sale. The court assumes (as it can hardly avoid doing upon the authorities) that the rule of sale in inverse order of alienation is applicable in favor of mortgagees, as it is in favor of grantees, but holds that the language of B\u27s mortgage makes the rule inapplicable in this case

The Statute of Uses and Active Trusts

To explain the survival of uses, alias trusts, after the Statute of Uses, one is probably justified in assuming a sympathetic attitude toward this Equitable institution on the part of the Common Law Judges. Maitland, Equity, 29. But, however predisposed the Judges might be, they would have to satisfy themselves, perhaps others as well, that they were interpreting rather than nullifying the Statute. Only such uses could be saved as could be distinguished. The case of the use raised upon a chattel interest is clear enough, as it was without the letter, and fairly without the mischief, of the Statute. The case of the use upon a use, while obscure at an earlier day, was elucidated by Mr. Ames, who found the key to the riddle in the fact that, at the time of the enactment and for a century thereafter., there was no such thing as a use upon a use, the declaration of a second use being void for repugnancy, in Equity as well as at Law. Lectures on Legal History, 243. The case of the active use, however, seems to the writer to need further explanation than it has yet received

The Legal Status of Abstract Books, Literary Property, Implied Contract of Secrecy, Unfair Trade

A recent case before the Supreme Court of Washington raises some novel and interesting questions. A company engaged in the abstract business mortgaged its records, bookt, plats. After suit was commenced to foreclose the mortgage, the mortgagor, who remained in possession, made photographic copies of the records and sold them to the defendant who had notice of the mortgage of the originals. The foreclosure resulted in a sale of the property, described as in the mortgage, to the plaintiff. Whether plaintiff knew at this time of the existence of the copies does not appear. Plaintiff is using the original records in the conduct of an abstract business and defendant is using the copies in competition with him. The action was brought to recover the copies. The court holds that it cannot be maintained because, assuming that the mortgage included the copies, the copies were not embraced in the sheriff\u27s sale. It asserts, obiter, that the mortgagee might have enjoined the making of the copies, and it raises, but declines to answer, some other questions concerning the rights of the parties. Wintler Abstract Co. v. Sears (Wash., 1919), 184 Pac. 309

Recovery of Money Paid under Duress of Legal Proceedings in Michigan

THE case of Welch v. Beeching, recently decided by the Supreme Court of Michigan, raises puzzling problems conconcerning the recovery of money paid under pressure of legal proceedings. It is the purpose of this paper to give that case a more adequate setting, in relation to the whole field of law to which it pertains, than was provided by the brief opinion of the court. We shall not attempt to exhaust the authorities, nor to present a rounded treatment of the whole subject touched upon

The Lien Theory of the Mortgage--Two Crucial Problems

In a recent article in this review1 the writer discussed in a general way the nature of a mortgage of real property in the states which adopt the lien or equitable theory of the mortgage. The conclusion therein arrived at was that, while the mortgage does not convey the legal title to the land until foreclosure, it does convey to the mortgagee, at the time of its execution, a present interest in the land, the general ownership of which remains in the mortgagor-an interest which is limited and special, more analogous to an easement than to general ownership; which is contingent or inchoate, in that default and foreclosure are essential to its ultimate enjoyment; and which is merely collateral to a principal right to receive something of value: but which is a legal interest as distinguished from an equitable interest; a right in rem as distinguished from a right in personam; a right which, in the terminology of jurisprudence, would be called an hypothecation. 2 This conclusion was arrived at by a course of deductive reasoning. The premises were found in our case law but the conclusion was so remote from the premises that it lacked a convincing foundation of authority. In the present article we will examine two specific problems in mortgage law which offer a test of this conclusion. The discussion will be chiefly confined to the specific problems in hand but the primary purpose will be to get at the underlying theory of the mortgage

Basis of Relief from Penalties and Forfeitures

The equitable principle of relief from penalties and forfeitures is so far elementary as almost to defy analysis. Many, perhaps most, of the judicial explanations of the principle have based it upon interpretation or construction, appealing to the doctrine that equity regards intent rather than form. Yet a logical application of this doctrine would lead to results very different from those which have actually been arrived at in the decisions. Thus, a stipulation in a mortgage that the mortgagor waives his equity of redemption can hardly be interpreted as meaning that he does not waive it, yet all such stipulations are ignored and redemption granted, nevertheless. Again, a penalty for breach of contract cannot be saved by the most solemn declaration that it is intended as liquidated damages. It must be conceded that many cases have actually been, decided on the interpretation theory, producing such enormities as Iowa Land Co. v. Mickel, 41 Ia. 402 (sale of land, $150 out of$600 paid, $4000 in improvements, second instalment of$150 one day late due to a misunderstanding; held forfeited), and Doctornan v. Schroeder, 114 Atl. 810 (N. J., 1921; sale of land, $1000 paid, last instalment of$1000 thirty minutes late; held forfeited). But such cases represent the minority view, and one applicable only to instalment sales, no court pursuing this course in mortgage or liquidated damage cases

The Writing Required to Establish an Express Trust of Land

It has frequently been said that the Seventh Section of the Statute of Frauds, concerning Trusts of land, requires a writing containing all the terms of the trust. Forster v. Hale, 3 Ves. 707; Smith v. Matthews, 3 DeG., F. & J. 139; Loring v. Palmer, 118 U. S. 321; Gaylord v. Lafayette, 115 Ind. 423; McClellan v. McClellan, 65 Me. 500; Blodgett v. Hildreth, 103 Mass. 484; York v. Perrine, 71 Mich. 567; Newkirk v. Place, 47 N. J. Eq. 477; Steere v. Steere, 5 Johns. Ch. 1; Cook v. Barr, 44 N. Y. 156; Dillaye v. Greenough, 45 N. Y. 438; Dyer\u27s Appeal, 107 Pa. 446; McCandless v. Warner, 26 W. Va. 754. This doctrine comes to the test in a case where there is a writing, signed by the person who is enabled to declare the trust, sufficiently identifying the land, and declaring that it is held in trust, but without naming the beneficiaries or otherwise failing to meet the stated requirement, but where parol evidence sufficiently establishes the terms of the trust to enable the court to enforce it if the Statute does not prevent In such a case, does the Statute render the trust unenforcible? It is submitted that it does not