Page:Harvard Law Review Volume 12.djvu/529

RECENT CASES. 509 Procedure — Habeas Corpus — Appeal. — A petitioner for a writ of habeas corpus appealed from an order remanding him to imprisonment, field, that the North Dakota statutes do not authorize appeals in habeas corpus cases. Carruth v. Taylor, 77 N. W. Rep. 617 (N. Dak.). Whether appellate jurisdiction exists in habeas corpus cases has proved a most troublesome question both in England and in the United States. At common law, the weight of authority on both sides of the Atlantic is against the allowance of a writ of error to a decision on //rt^^^zj corpus. City of London's Case, 8 Co. 121 b; Coston . CostoH, 25 Md. 500. Contra, Yates v. People, 6 Johns, ^yj- The right of appeal in actions at law being purely statutory, the question in the principal case was entirely one of interpretation, and the court follows the prevailing doctrine in holding that statutes conferring the right of appeal in general terms do not apply to habeas corpus proceed- ings. Bell V. Slate, 4 Gill, 301. But see Holmes v. Jennison, 14 Pet. 540. If appeals were allowed by the petitioner, probably they would have to be allowed against him ; and if a decision in his favor were subject to stay pending an appeal, the w.rit of habeas corpus would lose much of its prompt remedial character. In many States the matter is regulated by express statute. Property — Covenant of Title — Damages. — X conveyed an undivided one- half of certain land to plaintiff by warranty deed. The conveyance was by metes and bounds, and purported to pass an interest in 150 acres, though in fact the tract contained but 100 acres. X afterward acquired title to the other one-half, from whom defendant purchased it with notice of X's conveyance to plaintiff. In a suit for par- tition, held, that the tract should be equally divided between plaintiff and defendant. Doyle V. Briindell, 41 Atl. Rep. 1007 (Pa.)-. The court below held that as X purported to convey a one-half interest in 150 acres by warranty deed, plaintiff should take 7 5 acres, as defendant, taking with notice, was bound by the equities between plaintiff and X. This view cannot be supported. It would result in giving defendant's land to the plaintiff for a breach of X's covenant of warranty. Where one conveys land to which he has no right he is estopped to deny the grantee's interest, and if the grantor afterward gets title it feeds the estoppel and goes to the grantee. Christmas v. Oliver, 10 B. & C. 181. Here, however, the land afterwards acquired did not come within the description of the first deed, so that the plaintiff could get no land on the principle of estoppel. The decision of the upper court is clearly the correct one. Property — Equitable Mortgages — Deposit of Title Deeds.— Held, that a mere deposit of title deeds as security for a debt does not create an equitable mortgage. Parker v. Carolina Savings Bank, 31 S. E. Rep. 678 (S. C). It is settled law in England that a deposit of title deeds for the purpose of secur- ity without any written memorandum of the transaction, gives rise to an equitable mortgage. Ritssel v. Russel, i Bro. C. C. 269. The legal effect of the deposit is a contract that the depositor's interest in the land shall be liable for the debt. Pryce V. Bury, 2 Drew. 41. Where deeds are the only muniments of title, and their pos- session an important factor in determining it, as in England, there is some reason for attributing to a deposit of them the creation of a lien on the land. In the United States, where possession of deeds is of no consequence so far as title is concerned, there is no reason for such a doctrine. Apparently, however, the English rule has been adopted in Wisconsin and New Jersey. Jarvis v. Dutcher, 16 Wis. 307 ; Gale v. Morris, 29 N. J. Eq. 222. And until the principal case it had been supposed to be law in South Carolina. Hutzler v. Phillips, 26 S. C. 136. Property — Religious Societies — Change of Doctrine. — The members of a church, for whose benefit property had been donated in trust, split into two factions owing to a disagreement as to the correct doctrines to be taught. Held, that the mem- bers who adhere to the doctrines taught at the time of donation are entitled to the property, however small a minority they may be. Peace v. First Christian Church of McGregor, 48 S. W. Rep. 534 (Tex., Civ. App.). The authorities uniformly support the present case, and hold that when property is conveyed to trustees in trust for a particular church, it is dedicated to the principles and doctrines maintained by the church at that time. App. v. Lutherafi Congregation, 6 Pa. St. 201 ; McBride v. Porter, 17 Iowa, 203. It might be questioned on principle, how- ever, whether when property is conveyed in trust for^uch a religious corporation without any express conditions as to the doctrines to be taught, it should not go, in case of the congregation splitting into factions, to that part which by its votes is entitled, by the laws of the corporation to control the government of the church. The principal case, however, is, perhaps, more satisfactory in practice, as donors give to churches usually on account of the doctrines there maintained ; and any change in such doctrines, if the present case were not law, would result in an application of the property for purposes othej than those which the donor would wish.