Page:Harvard Law Review Volume 10.djvu/89

RECENT CASES, 63 Law Journal, 484 ; Vanfleet, Collateral Attack, § 608 et seq. One judge in the prin- cipal case dissented, on the ground that, though the owner himself could not be estopped, the children should be, as they were parties to the sale. The distinction can hardly be supported, since the objection to jurisdiction in the case, if admitted at all, would seem to strike at the root of the whole proceedings. Judgment Liens — Priorities. — Held, that when a junior lien has been enforced before a senior, the holder of the senior lien cannot compel a payment of his judgment out of the proceeds of sale in the hands of the junior lien-holder, but has a right to levy execution on the pro^ierty in the hands of the purchaser. Dysart v. Branderth, 23 S. E. -Rep. 966 (N. C). This case represents the great weight of authority on this point. In two States, South Carolina and Georgia, the opposite view is held, and a sale under the junior lien extinguishes the senior lien, leaving its holder to come upon the proceeds of the sale for satisfaction. Blohine v. Lynch, 26 S. C. 300 ; yb//^j v. Wright, do Ga. 364. The former view seems to regard a judgment lien as in nature ^jus in re, — a doctrine which the text-writers expressly repudiate, although they cite and approve the cases in accord with the principal case, i Black on Judgments, § 400; Freeman on Judg- ments, § 338. Partnership — Ostensible Partnership — Rights of Firm Creditors.-^ Held, that the creditors of an ostensible partnership are not entitled to preference over the creditors of the true owner, on the latter's assignment in insolvency, in respect to the property used in the business of the ostensible partnership. .Broadway National Bank v. Wood, 43 N. E. Rep. 100 (Mass.). See Notes. Property — Contribution between Tenants in Common. — Complainant, by a bill in equity, asked for the sale of certain property owned by him as tenant in common with the defendant. The bill also asked for a contribution by the defendant of his proportional part of sums expended by the complainant in necessary repairs and in taxes. The defendant in his answer asked for an account of rents, and alleged that the repairs had been made against his wish. Held, that a sale of the property should be made, and an account and settlement of the estate had. The complainant, in accounting for rents, may credit himself with the sums spent in repairs and taxes, but he cannot compel a direct contribution for them from the defendant. Williams v. Coombs, 33 Atl. Rep. 1073 (Maine). A tenant in common cannot at law get cotribution from his contenant for unauthor- ized necessary repairs. Leigh v. Dickeson, L. R. 12 Q. B. D. 194; Calvert v. Aldrich, 99 Mass. 74. Nor is he entitled to it in equity, except as in the principal case, where the matter comes up on a bill for partition. Story, Eq. Jur. § 1237. This seems correct. A cotenant should not be obliged to go into his pocket for unauthorized repairs ; but when the estate is to be divided, he cannot be allowed to acquire the improved property without paying in some way for the improvements. In accord with principal case, see as to repairs Swati v. Sw.in, 8 Price, 518, and as to taxes, Kites v. Chnrch, 142 Mass. 586. Property — Easement of Light and Air — Implied Grant. — Where a tract of land owned in common was divided into two lots by an interchange of quitclaim deeds, and there was a store on one lot with windows receiving light and air across the other, held, that these windows cannot be closed by the owner of the latter lot if the light so received is reasonably necessary to the beneficial enjoyment of the building. Greer v. Van Meter, 33 Atl. Rep. 794 (N. J.). It is plain that the reasons existing in this country for refusing to allow an ease- ment of this kind to be gained by prescription are equally applicable to the facts of the principle case, yet such a prescriptive right is not recognized in New Jersey. Hayden v. Butcher, 31 N. J. Eq. 217. The same question was decided the other way, and the inconsistency of the position taken in the principal case, pointed out in Keats v. Hj*go^ 115 Mass. 204, and Mullen v. Strieker, 19 Ohio St. 135. Property — Joint Finders — Intent. — One of several boys playing along a railroad track picked up an old stocking in which something was tied, and, after he had swung it about in play for a time, another of the boys snatched it, or, it having been thrown away by the first boy, the second picked it up, and began striking the others with it. In this way it passed from one to another. Finally, while the second boy was swinging it, it broke open; and it was then found that the stocking contained money. All of the boys examined the contents of the stocking together, and the money was given to an officer to await the appearance of the true owner. The latter was never found. Held, that, efforts to find the true owner having been unavailing, the money belonged to the boys in common. Keron v. Cashmatt, 33 Atl. Rep. 1055 (N. J.). The decision is rested on the ground that, as none of the boys treated the stocking