one who purchased the property with notice of the mistake; for a purchaser with notice stands in no better position than the mortgagor himself. But in the exercise of this jurisdiction the court must proceed with the utmost caution, imposing on the party complaining the burden of proving the alleged mistake by clear, exact, and satisfactory evidence, and resolving against him whatever of doubt or uncertainty the evidence may generate. Campbell v. Hatchett, 55 Ala. 548; Hinton v. Insurance Co., 63 Ala. 488. And when such proof is made the relief cannot be granted as against one who had purchased bona fide, and for a valuable consideration; that is, for a valuable consideration without notice of the alleged mistake. The proof shows that Cook purchased for a valuable consideration. It does not show, and it is not claimed, that he had actual notice of the mistake or error; but the contention is that there was enough on the record to charge him with notice, and that, besides this, he bought the lots at an inadequate price, which of itself was a suspicious circumstance sufficient to put him upon an inquiry as to the reasons for selling the property at less than its apparent value. I do not think the inadequacy of price, as shown by the evidence, was sufficient notice, or was sufficient to put him upon an inquiry. The description of the property upon which the mortgage is an incumbrance must be such as reasonably to enable subsequent purchasers to identify the land; otherwise the record of the mortgage is not notice of any incumbrance upon it. If the description in the mortgage is erroneous, and it is apparent what the error is, the record is constructive notice of the mortgage upon the lots intended to be described; but if it is not apparent what the error is, then the record is not constructive notice. And while parol evidence is admissible to identify the land intended where there is an ambiguity or uncertainty in the description, yet a purchaser, who is not able from his knowledge of the property to interpret an erroneous description and give it the meaning intended, is not charged with notice from the record of it. The premises should at least be so described or identified that a subsequent purchaser would have the means of ascertaining with accuracy what and where they were. The language both of the mortgage and of the record of it must be such that if a subsequent purchaser should examine the instrument itself he would obtain thereby an actual notice of all the rights which were intended to be created or conferred by it. See 1 Jones, Mortg. §§ 528, 529; 2 Pom. Eq. Jur. § 654, and note 1; Youngs v. Wilson, 27 N. Y. 351; Babcock v. Bridge, 29 Barb. 427. I find that the mistake or error in the description of the lots in question is not apparent on the face of the mortgage, and hence that the record of it was not constructive notice of the mortgage upon the lots intended to be described as is claimed; and it does not appear from the testimony that Cook had such knowledge of the property as to enable him to interpret the erroneous description, and give it the meaning intended. The lots were not so described or identified that Cook had the means of ascertaining from the mortgage with accuracy what and where they were. Besides this, the evidence that there was a mistake or error, and what it was, is not clear, exact, and satisfactory. In the

absence of such evidence a court of equity will not reform the mortgage.

The mortgage which is here sought to be foreclosed covers eight acres of land owned by one Jos. E. Dritina, purchased by him from the mortgagor, Buckman, in October, 1885, being about 18 months subsequent to the execution of the mortgage by Buckman to Hayes. The facts are that in 1880 the title to these eight acres was in one H. Bisbee, and he contracted to sell them to one Whitney, allowing him two years within which to pay the purchase money. In 1881, not having paid the purchase money, Whitney contracted with Buckman to sell to him this land, giving a year for payment. In 1883 Bisbee, at Whitney's request, executed a deed to Buckman, but retained it in his possession subject to Buckman paying him $900 for the land. In 1884, not yet having paid Bisbee, and without title or possession of the land, so far as the evidence shows, Buckman gave Hayes the mortgage, and it was recorded. In 1885 Buckman showed Dritina the land, and proposed to sell it to him, giving him no notice of the mortgage, but furnishing him an abstract showing the title in Bisbee, telling Dritina that the property was Bisbee's, and that he (Buckman) wished to make a commission on the sale. Dritina, after some delay, bought the land, paying Buckman $1,500 for it, and at the same time received Buckman's deed to him and Bisbee's unrecorded deed of April, 1883, to Buckman, (both warranty deeds,) which he placed on record. It appears from the evidence that Dritina gave Buckman the $1,500. Out of this Buckman paid Bisbee the $900, and then received Bisbee's deed, and executed and delivered his own deed to Dritina, as aforesaid. My opinion is that on the undisputed facts Buckman had no mortgageable interest in the land at the time he executed the mortgage, and that Dritina is not bound by the record of the mortgage made by Buckman before he had title to or a mortgageable interest in the land, and, as it is conceded that the statute of 6 Anne does not apply in this case, it follows that complainant is not entitled to relief as against defendant Dritina and his grantees, defendants Gifford and Pearce. 1 Jones, Mortg. § 576, and note 3; 2 Pom. Eq. Jur. § 761. The deed of defendant Mathews to a portion of the 400-acre tract of land is subject to the first mortgage of $1,500, but anterior to second mortgage of $6,000. If the 400 acres bring more than enough to satisfy the first mortgage, this defendant's lot will be let out. If not, it must be sold. A decree will be entered in accordance with the foregoing opinion.

BUCK et al. v. PosT et al., Dock Commissioners.

(Circuit Court, S. D. New York. July 5, 1889.)

WEARVES-Docks.

In 1819 the common council of New York city authorized the owner of a sunken crib-dock to rebuild it, and "to add thereto one block and one bridge. A map made in 1828 showed the dock rebuilt and largely extended, the whole consisting of three sections, and complainants' expert testified that the extension was a bridge, i. e., a pier built on piles. Defendants' expert testified that there were traces of an addition, consisting of a bridge connecting the original crib with another, which corresponded with the map. Held, that there was no authority in 1843 to build a broad platform on piles, which was not a "block," and could only be a “bridge.

In Equity. On bill for injunction.

"

Solon P. Rothschild and John M. Bowers, for complainants.

F. A. Irish, Wm. H. Clark, and Thomas P. Wickes, for defendants.

BROWN, J. The complainants seek to enjoin the dock department of this city from a threatened destruction of a platform landing adjoining the southerly side of pier 24, and connecting that pier with the West Washington market. The platform is built on piles, and is several rods in length and breadth, occupying a considerable part of the slip in front of and out from the bulk-head to the south of pier 24. Unless the complainants prove that they have some vested property right in the platform by grant from the corporation, the defendants have a right to remove the structure; since any mere license to occupy, or acquiescence in occupation, has been terminated. The special grounds stated by the department for requiring the removal of the structure now have reference to the public health, which is alleged to be imperiled by the great accumulations of sewage filth beneath the structure. The complainants offer to do anything required to cleanse the premises, and claim that the alleged cause is but a pretext for interference with their right of occupation. I do not consider that branch of the case, however, since, whatever the reasons for interference may be, the complainants have no right to an injunction unless there is at least probable ground for their claim of a property right in the premises. If they have not, then their occupancy is an invasion of the public rights of dockage and wharfage facilities within that slip. The plaintiffs' only claim of right rests upon a resolution of the common council, in 1819, as a part of a contract made with Joshua Jones, (who was then owner of a sunken crib-dock, or "block," forming the base of the present pier 24,) whereby the common council authorized him "to rebuild the aforesaid sunken block, and to add thereto one block and one bridge." An accurate map of 1828 shows that dock at that time largely extended, and its previous connection with the old corporation dock at the foot of Vesey street gone. About 1843 the platform was built, which the complainants allege was the "bridge" authorized by the resolution of 1819. The defendants contend that the structure built prior to the map of 1828, as an extension of the sunken

uses.

crib or block rebuilt, forming altogether a pier of about 140 feet in length, exhausted the authority of the resolution and contract of 1819. On a partial hearing of this matter on the 8th of June it appeared to me that the complainants did not make out their title as alleged; but, considering the importance of the question, and in order to avoid any possible injustice to the complainant, a reference was ordered to Commissioner Lyman to take further proofs in regard to the nature of the structure in question and the meaning of the above-quoted terms in the resolution of the common council. Careful and repeated examination of the testimony confirms the impression of the previous hearing, and satisfies me entirely that the structure in question was not authorized by the resolu tion and contract between Jones and the common council; that the "platform" is not a "bridge," within the meaning and intent of that resolution; and that it was not built nor designed as a bridge, but for different The complainants' expert, through his whole examination, testifies that the extension of pier 24 beyond the rebuilt crib or "block" (the terms meaning the same thing) is a bridge; that is, in his sense of the term "bridge," viz., a pier built upon piles. If that opinion is sound, then the building of the extension of the original crib or block to some 90 or 100 feet additional during the 9 years following the resolution of 1819 plainly exhausted the authority to "add a bridge thereto;" and only the power to add "one other block," that is, crib, remained; and the platform built in 1843 is certainly not a crib or "block." The defendants' expert, however, testifies that there are clear traces of an addition to the rebuilt sunken dock, consisting of two parts, namely, another crib or block at the western extremity of the pier, and an intervening "bridge" of 66 feet in length, connecting the two cribs or "blocks." This corresponds precisely with the three divisions of the extended pier, as shown by the map of 1828, and with the length of the different sections of the pier as there marked in figures. This work was done some time between 1819 and 1828, and imports a full use of the grant or privilege contained in the contract of 1819. This map of itself affords very strong presumptive evidence of the facts. But the evidence of both experts, although they differ in some points, makes it impossible to find room for any authority for building the broad platform in question, which was erected in 1843. As I do not entertain any doubt about the matter, and there appears to me no probability that the complainants could succeed in establishing a title, I ought not to continue the injunction, which is therefore dissolved.

UNITED STATES v. DEWEY et al.

(Circuit Court, S. D. New York. July 15, 1889.)

ABATEMENT AND REVIVAL.

A cause of action against an assignee in bankruptcy for wrongfully paying the assets in his hands to other creditors of the bankrupt than plaintiff does not abate on the assignee's death.

At Law. On demurrer to complaint.

Stephen A. Walker, U. S. Atty.

Wing, Shoudy & Putnam, (Joseph H. Choate, of counsel,) for defendants.

WALLACE, J. The complaint alleges that the defendants' testator, Barnes, was the assignee in bankruptcy of Vetterlein and another, who were on the 7th of February, 1871, duly adjudicated bankrupts; that the bankrupts were jointly and severally indebted to the plaintiff in the sum of $99,000; that their estate was insufficient to pay all their debts; that said Barnes had notice of the demand of the plaintiff at a time when he had in his hands of the estate of the bankrupts the sum of $32,000; that thereafter he paid that sum to the creditors of the bankrupts other than the plaintiff; and that the remaining assets of the bankrupts are insufficient to pay the debt of the plaintiff by more than $32,000. The complaint then alleges the death of Barnes, and the appointment and qualification of the defendants as his executor. The demurrer to the complaint presents the single question whether the cause of action against the deceased assignee of the bankrupts survives against his executors. The action is in assumpsit for money had and received, and is founded. upon a breach of duty of the assignee, and therefore does not abate. At common law, even when the cause of action originates in tort, and trover or case would lie, but the facts permit an action of assumpsit, if the plaintiff elects to bring assumpsit, the action does not abate. Hambly v. Trott, 1 Cowp. 373; Wheatley v. Lane, 1 Saund. 217, note; Sollers v. Lawrence, Willes, 421. The property of the bankrupts that came to the hands of the assignee was by force of the statute (section 3466, Rev. St. U. S.) a trust fund in his hands for the payment of the debt of the plaintiff, and he was bound, as a trustee for the plaintiff, to pay its debt first out of the proceeds of the property. The cause of action is not in the nature of a penalty, but is one which may be enforced as a trust in equity or at law, by an action for money had and received. Beaston v. Bank, 12 Pet. 102; Lewis v. U. S., 92 U. S. 618; Bayne v. U. S., 93 U. S. 642; Field v. U. S., 9 Pet. 182. The demurrer is overruled, with leave to the defendants to answer within 20 days upon payment of costs.