whereon was recorded the deed from Phillips to Noble, and a reference to the agreement was made by an insertion on the face of the record of the deed. Phillips remained in possession of the land until the last of September, 1892, when he abandoned it, saying to Noble he might take it and get what he could out of it. Phillips had not paid Noble any part of the note for $300, and, when he thus turned it over to Noble, Noble gave up his note, and from that on claimed title to the land. Subsequently Noble wrote letters to Goodale, Bogart, and Coe, asking for an extension of time on the principal, and agreeing to pay interest if it was extended. After Phillips turned the land over to Noble, in September, 1892, Noble rented it, and made what he could out of it, and applied the proceeds on Phillips' indebtedness to him. Subsequently Noble wrote to Bogart, repudiating his liability under the clause in the deed.

This bill seeks to hold the defendant Noble liable for any deficiency that may arise after a sale, and whether he can be so held or not is the only question in the case. Holden disclaims, and the bill was taken as confessed by Phillips. The circuit judge held, while recognizing the general rule that the person who purchases land covered by a mortgage, and, by an agreement incorporated in the deed, assumes and agrees to pay such mortgage, is individually liable in foreclosure proceedings, yet that that rule grows out of the contract relations between the purchaser and the mortgagor, and that where, by mistake or fraud, such an agreement is incorporated in the deed without the knowledge of the grantee, and is promptly disaffirmed by him, he cannot be held to the undertaking by the mortgagee. It appears to be conceded by complainant's counsel that the circuit judge was not in error in this view of the law, and it is said that, if Mr. Noble had been consistent in disclaiming liability upon the mortgage under his deed from Phillips, there would be force in his contention that he is not liable, but that, after he caused to be made and recorded a paper disclaiming

On

liability for this payment, he agreed to pay the $200 due October 13, 1889, and one year's interest on the whole mortgage. But we discover nothing in the correspondence which shows any binding promise to pay. October 17, 1890, Mr. Noble wrote that he would pay interest on the Phillips mortgage if time would be extended on the principal, and added: "What I am trying to do is to sell the place and let us all out, and I think I will do it before long." On the 22d of October he wrote Mr. Moore, in whose hands the mortgage evidently was for collection: "I am only interested in this matter in helping another man out. I expect to sell the place before long, and I will pay the interest if he will let the principal run along until the place can be sold, or something done. I think this the best plan for all parties interested." On the 31st he wrote: "I cannot pay but the interest on the A. Phillips mortgage this fall. I do not own the place myself, and am doing what I can to help another man, and trying to sell the place, with a fair prospect of success." It is true he had, previous to this, written to Mr. Coe, in whose hands the note was for collection, that he would pay the $200 and the interest on the mortgage. A statement was sent him, showing the amount, and he failed to make the payment. This was a new undertaking, upon no new consideration, and, we think, was not intended as a ratification of the deed in the form in which it was written.

We think the circuit judge reached the correct conclusion, in refusing a personal decree against Mr. Noble, and the decree will be affirmed.

The other Justices concurred.

INDEX.

ABATEMENT-See DURESS (2); SET-OFF.

ACCEPTANCE OF PAYMENT See TENDER.

ACCEPTANCE OF RESIGNATION-See PUBLIC OFFICERS (12).
ACCIDENT INSURANCE.

1. A provision in an accident policy that it shall be void as to
all accidents occurring to the insured when "engaged in
any profession, employment, or exposure" not rated as pre-
ferred does not apply to the casual performance of an act
pertaining to an excepted risk, if in the particular case it per-
tains incidentally to the regular employment of the insured.
Hess v. Preferred Masonic Mut. Accident Ass'n, 196.

2. A bank cashier cannot be said, as a matter of law, to have been
engaged in an exposure not incident to his employment,
while operating a buzz-saw in sawing a board to be used in
the bank. Id.

3. Whether he thereby "voluntarily exposed himself to unneces-
sary danger" is also for the jury to determine. Id.

4. An accident insurance company has the burden, in an action
upon a policy, of proving that an injury to plaintiff, shown to
be the result of an accident, was within some exception named
in the policy. Id.

5. The disability of a real-estate broker resulting from the dis-
location of his shoulder in an accident is not, as matter of
law, partial only, so as to deprive him of the right to recover
the indemnity provided by an accident policy insuring
against loss resulting from injuries. which "immediately and
wholly disable and prevent him from prosecuting any and
every kind of business pertaining to his occupation," where,
although he goes to his office every day, he is practically
unable to do any kind of work. Turner v. Fidelity & Cas-
ualty Co., 425.

ACCOMPLICES-See CRIMINAL LAW (1, 2).

ACCOUNT BOOKS-See EVIDENCE (5, 7).

ACCOUNTING - See EXECUTORS AND ADMINISTRATORS (1); GUAR-
DIAN AND WARD; PARTNERSHIP (1).

ACCOUNTS-See CHATTEL MORTGAGES (2).

ACCUMULATIONS-See WILLS (2, 3).

ACTIONS-See TAXES (5, 6).

ADMISSIONS.

Evidence that defendant, who was sought to be held liable to
his daughter, upon a bill in chancery, as trustee of bonds and
mortgages transferred to him by his deceased wife, testified,
in an action against him by a creditor, that he had received
from his wife bonds and mortgages to a specified amount,
while competent against him, is not conclusive, and a finding,
based upon other competent evidence in the subsequent pro-
ceeding, that the amount received was less than that testified
to by him, is permissible. Hebard v. Reeves, 175.

See EVIDENCE (6, 11); HUSBAND AND WIFE.

ADVANCEMENTS-See ESTATES OF DECEDENTS (1); TRUSTS AND
TRUSTEES (1).

ADVANCES-See MORTGAGES (11).

ADVERSE POSSESSION.

1. A title by adverse possession is a marketable title. Barnard
v. Brown, 452.

2. An instruction in ejectment that plaintiff's adverse possession
would become perfect with the lapse of 15 years, even if
he originally had no shadow of title, if such possession
was so open that any other person could bring suit to eject
him, sufficiently presents the point that plaintiff need not
show any deed, survey, or plat as evidence of ownership to
entitle him to recover. Beecher v. Ferris, 584.

See ESTOPPEL (2)..

ADVERTISEMENT See MORTGAGES (7, 8).

AGENCY-See PRINCIPAL AND AGENT.

AMENDMENTS-See PLEADING (2).

ANNUAL REPORTS-See CORPORATIONS (3, 4).
APPEAL AND ERROR.

1. The Supreme Court, upon affirming an order of the circuit
judge overruling a demurrer to a bill in equity, with leave to
defendant to answer over, declined to pass upon certain
questions discussed by counsel, which might or might not
arise in the case, depending upon the nature of the proofs.
Allen v. Conklin, 74.

2. An affidavit filed in the Supreme Court upon rehearing cannot
be considered as evidence in the cause. Patnode v. Darveau,
127.

3. A party cannot complain of an inconsistency in a charge due
to the fact that the court gave an instruction preferred by
him which was more favorable to him than the law justified.
Hess v. Preferred Masonic Mut. Accident Ass'n, 196.

APPEAL AND ERROR-Continued.

4. Error assigned upon a statement of the prosecutor in his
argument to the jury cannot be considered where the record
fails to disclose what was said. People v. Baker, 211.

5. Whether assignments of error based upon the denial of a
motion for a new trial are available to test questions raised
at the trial,-quære. People v. Frey, 251.

6. The trial court's certificate that, "forasmuch as the matters
set forth do not fully appear of record, [appellant] tenders
this, his bill of exceptions, and prays the same may be signed
and sealed by the judge of this court, and that said testimony
be set forth in full, questions and answers, for a necessary and
full understanding of the same, which said bill of exceptions
is accordingly signed," etc., indicates that all of the evidence
is set out in the record. Hatch v. Reid, 431.

7. A case tried by the court without a jury cannot be reviewed
on the evidence where no findings of fact and law were
requested or made. Laird v. Coach, 628.

8. A writ of error will not be dismissed for delay in filing the
return if it is filed before the motion to dismiss is heard.
Hill v. Hill, 633.

See BILL OF EXCEPTIONS; COSTS; EQUITY PLEADING (3); GAR-
NISHMENT (1); MANDAMUS (1); NEW TRIAL (1, 2); RECEIVERS ;
RES JUDICATA (2); SETTLEMENT; TRIAL.

APPLICATION OF PAYMENTS.

Payments made by one indebted for merchandise, without di-
rection as to their application, and which are credited gener-
ally upon his account, will, in an action against a third party
as surety for the payment of the purchase price of a por-
tion only of the goods, be applied upon the indebtedness in
the order of the creation of the several items thereof. Grasser
& Brand Brewing Co. v. Rogers, 112.

ASSAULT.

In an action for assault and battery by one who was shot while
trespassing, where the defense was that the discharge of the
weapon was accidental, it was error to charge that the intent
must be proved by some credible witness, and by a prepon-
derance of testimony, such statement being calculated to
exclude the idea that the intent might be deduced from cir-
cumstances shown by different witnesses; especially if the
testimony showed that defendant, almost simultaneously with
the shooting, threatened to shoot the first man that laid a
hand on his property, and the jury were instructed that the
intent could not be inferred from a general threat, not relat-
ing to plaintiff, which defendant might have made “ some
time before the shooting took place.' Shriver v. Bean, 508.
ASSESSMENTS-See CONSTITUTIONAL LAW (4); MUNICIPAL COR-
PORATIONS (6).

ASSIGNMENT OF ACCOUNTS--See TRUSTS AND TRUSTEES (7).