nize the old view of the text books, that there can be no criminal assault without a present intention, as well as present ability of using some violence against the person of another.1 The true test cannot be the mere tendency of an act to produce a breach of the peace, for opprobrious language has this tendency, and no words, however violent or abusive, can, at common law, constitute an assault. The test, moreover, in criminal cases, cannot be the mere fact of unlawfully putting one in fear or creating alarm in the mind, for one may obviously be assaulted although in complete ignorance of the fact, and, therefore, entirely free from alarm. These views are sustained by the spirit of our own adjudged cases, cited above, as well as by the following authorities which are directly in point. The opposite view is sustained by the following authorities. ››

7

41 Russ. Cr. (9th Ed.) *1019; State v. Blackwell,. 9 Ala. 79; Johnson v. State, 43 Ala. 354; Lauson v. State, 3 Ala. 14.

5 People v. Lilley, 43 Mich. 525.

62 Greenl. Ev. Law Rep. 271- 275; 2 Add. on Torts, § 788; Roscoe's Crim. Ev. *296; 1 Rus. Cr. *1020; Blake, v. Barnard, 9 C. & P. 626; Reg. v. James, 1 C. & R. 530; Robinson v. State, 31 Tex. 170; McKay v. State, 44 Tex. 43; State v. Davis, 35 Amer. Dec. 735.

72 Bish. Crim. Law (7th Ed.) § 32; 1 Whart. Cr. Law (9th Ed.) § § 603, 182; Reg. v. St. George, 9 C. & P. 483; Com. v. White, 110 Mass. 407; State v. Shepard, 10 Iowa, 126; State v. Smith, 2 Hump. 457; 3 Greenl. Ev. § 59; 1 Arch. Cr. Pr. & Pl. 907; State v. Benedict, 11 Vt. 238; State v. Neely, 74 N. C. 425, S. C. 21 Amer. Rep. 496.

The remedy to be pursued by creditors to avoid fraudulent conveyances made by debtors, often becomes a question of much difficulty, and this has been increased by the conflict of authority, sometimes in the decisions of the same courts, touching the nature of the title acquired by the grantee under a fraudulent conveyance. In some States it is held that the legal title passes to the fraudulent grantee, notwithstanding the statute declares that such conveyance shall be "utterly void." Hence, under this rule, it is held that inasmuch as the lien of a judgment does not extend to equitable estates except by express provision of statute,1 a judgment against the

1 Freeman Judg'ts, § 348.

vendor will not confer a lien upon lands fraudulently aliened in the absence of statute.2 It was not until the 29 Charles II, c. 3, that equitable estates became vendible on execution, and though similar statutes have generally been enacted in most of the States of the Union, the execution, not the judgment, confers the lien. If the statute does not give the right to levy upon equitable estates, then the only remedy is by creditor's bill; and the filing of the bill creates a lien, and is sometimes called an equitable levy.*

It would seem plain that under such a rule, though the statute authorize the execution sales of equitable estates, that the legal title remaining in the fraudulent grantee, ejectment would not lie on the title of the execution purchaser; but the remedy would be solely in equity to set aside the fraudulent deed, and in which a writ in the nature of a writ of habere facias would be awarded.5

On the other hand where the rule obtains that the legal title does not pass to the fraudulent grantee as against creditors different conclusions follow. Mr. Bump lays it down that the lien of a judgment will extend to such an interest, precisely as if no transfer had been made, for the transfer, being a nullity against creditors, the legal as well as the equitable title remains in the debtor. But this is open to some question, for it would seem that even under the rule holding the conveyance a nullity as against creditors that the conveyance is considered operative, until the creditor by some act done shows an intention to avoid it, and therefore the judgment alone will not confer a lien, at least as against other creditors or third parties. But when the creditor elects to treat the conveyance as void, it will be regarded as merely colorable and as not conferring any title upon the fraudulent grantee. Ejectment may be brought on title acquired at execution sale; and the remedy of execution purchaser in equity has been

8

7

15

Constructive, as well as actual fraud, is cognizable at law, but there is a class of the former which is cognizable alone in equity. A conveyance upon valuable consideration, though inadequate, where no actual fraud, or notice of fraud, is imputed to the vendee, will be entirely good in a court of law; but in equity the consideration will be weighed, and though the grantee may be free from actual fraud, yet if the consideration shall be so inadequate as to be palpably less than the real value of the property, or what it might reasonably be supposed that the vendor would have taken from any other person, equity will regard the conveyance as partially voluntary, for a debtor must be just before he is generous, and therefore to the extent that it is voluntary it will be regarded as constructively fraudulent as against the grantor's creditors. 16

9 Smith v. Cockrell, 66 Ala. 82.

10 Mr. Bump is of opinion that it has. Fraud. Conv. 530. While in Smith v. Cockrell, supra, the question was elaborately examined and a majority of the court held that jurisdiction on that ground alone did not exist.

11 Zoll v. Soper, 75 Mo. 460; Kerr v. Kerr, 3 Lea 225; Loving v. Pairo, 10 Iowa 289.

12 Smith v. Cockrell, 66 Ala. 82; Messman v. Huggard, 46 Mich. 559; Harrington v. Williams, 31 Tex. 448, 460: Keane v. Kyne, 66 Mo. 216.

13 1 Inst., § 504, 290, b.

14 5 Co. 60.

15 Bump Fraud. Conv. 294, 3rd Ed.; Wright v. Stanard, 2 Brock. C. C., p. 311.

16 Bump Fraud. Conv. 294.

But, in such case, the conveyance being only partially fraudulent, by construction, beca cause only partially voluntary, and the grantee being free from actual fraud, he not only has a perfect legal title, but also a prior equity to the extent of the consideration actually paid; and for that purpose the conveyance will be treated as a security.17 And inasmuch as actual fraud will not be presumed where the facts consist as well with honesty as they do with fraudulent intent, 18 the conveyance will be regarded as only partially fraudulent even in the face of circumstances, which, though suspicious, are not strong enough to show actual fraud. 19 Such a grantee not only has a prior equity to the extent of the consideration actually paid in good faith, but furthermore he has an equity superior to the creditor in the surplus after paying the creditor.20 A sale under execution will not deprive the original grantee of these equities.21 For the statute concerning fraudulent conveyances, observes Lord Mansfield, is not to be so strained in support of creditors as will make third parties suffer when they act in good faith.22

An important question arises in this connection, whether such an interest resulting in favor of creditors is within the statute concerning execution sales of equitable estates. Speaking of the 29 Car. II. Mr. Freeman has observed, that "the tendency of the decisions has been such as to restrict the operation of this statute to estates therein clearly and expressly designated. It by no means follows that in States which have adopted this or a similar statute, all equitable estates are subject to execution. On the contrary it will be found that the equitable interests coming within the statute are extremely rare. Its operation has generally been confined to.

23

17 McMeekin v. Edmonds, 1 Hill Ch. 288; Van Wyck v. Baker, 16 Hun, 169; Gordon v. Tweedy, 71 Ala. 213; Patrick v. Patrick, 77 Ills. 560; Stamy v. Laning, 58 Iowa 662.

18 Ames v. Gilmore, 59 Mo. 537.

19 Boyd v. Dunlap, 1 Johns. Ch. 478; Keeder v. Murphy, 43 Iowa 413; Hatfield v. Simmons, 12 Heisk. 253.

20 Allen v. Russell, 78 Ky. 116; Boyd v. Dunlap, 1 John. Ch. 478; Van Wyck v. Baker, 10 Hun, 39; s. c. 16 Hun, 169; Murdock v. Wills, 9 W. Va. 552. 21 Boyd v. Dunlap, 1 John. Ch. 478.

22 Cadogan v. Kennett, 2 Cowp. 402; Farlin v. Shook, 30 Kans. 401; Bump Fraud. Conv. p. 12, 3rd. Ed. 23 Freeman Ex., § 187.

bare and simple trusts, unmixed with the equities of third persons.24 And the tendency mentioned by Mr. Freeman is especially marked in the late cases. The good sense of such an interpretation of the statute is apparent when we reflect that the extent of the interest sold on execution must always be doubtful and in many cases unascertainable without resort to chancery, whose machinery is alone competent to ascertain and adjust conflicting equities; and if such uncertain interests were saleable on execution the main purpose of the statute would be defeated as the interests of both debtor and creditor would be sacrificed, litigation be encouraged and the speculator alone be enriched. It is therefore generally held that the statute does not extend to any but bare and simple trusts únmixed with conflicting equities.25 And the remedy of the creditor is in chancery to charge his debt against the trust property, where the equities of all parties will be fully ascertained and protected."

26

GIDEON D. BANTZ.

24 Lewin Trusts, 547; Doe dem. v. Greenhill, 3 Barn. & Ald. 690.

25 Farlin v. Shook, 30 Kans. 401: Bennett v. Hutton, 33 Ark. 768; Hopkin v. Cary, 23 Miss. 59; Smith v. Cockrell, 66 Ala. p. 82; Kerr v. Kerr, 3 Lea 228; McKeithan v. Walker, 66 N. C. 95; Melton v. Davidson, 6 Ired. Eq. 194; Messman v. Huggard, 46 Mich. 559; Cranson v. Smith, 47 Mich. 190; see also p. 647.

26 Farlin v. Shook, 30 Kans. 401; Bennett v. Musgrave, 2 Ves. Sr. 51; Bennett v. Hutton, 33 Ark. 768; Hopkins v. Carey, 23 Miss. 59; Kerr v. Kerr, 3 Lea 228.

REAL ESTATE BROKERS, THEIR RIGHT TO COMMISSIONS.

It is not always necessary, to entitle a real estate broker to recover commissions, that an actual sale should have resulted from his efforts to dispose of his principal's property. For, as stated by Porter, J., "a broker, employed to make a sale, under an agreement for the exclusion of all other agencies, is entitled to his commission when he produces a party ready to make the purchase at a satisfactory price; and the principal cannot relieve himself from liability by a capricious refusal to consummate the sale, or by a voluntary act of his own, disabling him from performance." For the agent has, under

1 Moses v. Bierling, 31 N. Y. 462; Kock v. Emmerling 22 How. 69; Hague v. O'Connor, 41 How. Pr. 287;

those circumstances, done all that can possibly be required of him. Nothing remains but to execute the conveyance, and no one can do that but the owner. So, where the broker produced certain parties who desired to purchase, and who entered into negotiations with the principal, and to whom the latter allowed a fixed time within which to decide upon the terms offered, but the principal, within that time, sold the property to third persons, it was held that the broker was entitled to recover his stipulated commissions.2 Nor is the broker debarred of his right to compensation by the fact that, after he has produced a suitable purchaser and after the contract of sale has been signed, the latter refuses to perform his agreement on account of misrepresentations made by the owner.3 Nor because the purchaser declines to carry out the contract of sale on account of a defect in the title to the property, such refusal being no fault of the agent. So, in

5

a Pennsylvania case, the broker procured a purchaser ready to buy, but the vendor's wife refused to join in the deed, and as the purchaser was unwilling to take the property without a release of the wife's dower-right, the sale proved abortive; it was held that the broker had earned his commission. As a general principle, it would seem just to require that the broker's customer should stand ready at all times to make good his offers, and that the broker should not be allowed to recover if the customer eventually declined the purchase without the fault of the principal. But certain modifications of this rule have been allowed. Thus, in a case where the purchaser agreed with the vendor that if either of them should fail to perform the contract of sale then entered into he should pay to the other a fixed sum as liquidated damages, it was thought that the broker was entitled to recover his commission, although the purchaser broke the contract of sale; the decision resting on the ground that the vendor had agreed to accept the stipulated damages

Phelan v. Gardner, 43 Cal. 306; Bell v. Kaiser, 50 Mo. 150; Tyler v. Pars, 52 Mo. 249; Bailey v. Chapman, 41 Mo. 536; Edwards v. Goldsmith, 16 Pa. St. 43.

2 Reed's Ex'rs v. Reed, 82 Pa. St. 420; Lane v. Albright, 49 Ind. 275.

8 Glentworth v. Luther, 21 Barb. 145.

4 Doty v. Miller, 43 Barb. 529; Knapp v. Wallace, 41 N. Y. 477.

5 Clapp v. Hughes, 1 Phila. 382.

plaintiff was entitled to recover his commission, for G.'s acts, performed in behalf of B., were the same as if done by the latter himself." But if the services of the broker, whatever they may have been, have distinct

It is absolutely essential to the broker's right to recover that he should have been (in the language of the cases) the "procuring cause" of the sale. That is to say, the sale must result directly and naturally from his exertions. If such is the case, it makes no matter how slight his efforts have been or how apparently inconsiderable his agency in the affair. The law raises no standard for his exertions, nor does it prescribe a course of actions which he is to perform, before earning his remuneration. Any circumstances are sufficient which actually induce the vendee to make the purchase. Thus, in an interesting English case, it appeared that the agent had failed, up to a given time, to effect a sale, whereupon the owner told him that he had concluded not to part with his property, but subsequently the owner privately negotiated a sale with a person who (as it was shown), had been attracted to the office of the broker by the advertisements displayed by him, and had learned from him the name and address of the owner; it was held that the agent was entitled to recover his stipulated commission.8 This case may perhaps be regarded as pushing the rule to its extreme limits, but it will serve to illustrate the general principle. In another instance the facts were as follows: The defendant placed his house in the plaintiff's hands for sale; plaintiff advertised the property; one G. saw the advertisement, and thought it would probably suit B., a friend of his who was desirous to purchase such a house; G. therefore went to the plaintiff's office and ascertained the vendor's name, the price, and terms of sale, and reported the same to B., who then went to the owner and bought the house. It was held that the

6 Leete v. Norton, 43 Conn. 219; and see Love v. Miller, 53 Ind. 294.

7 Ludlow v. Carman, 2 Hilton (N. Y.) 107.

8 Green v. Bartlett, 14 C. B. N. S. 681; Shepherd v. Hedden, 29 N. J. L. 334;. Pope v. Beals, 108 Mass. 561. But see Charlton v. Wood, 11 Heisk. 19.

gotiation has been definitely abandoned, the broker has no right to commissions, although the same party is eventually "induced by other persons to reconsider his resolution, and then makes the purchase as the consequence of such secondary or supervening influence:"10 because in such case the agent cannot justly be considered the procuring cause of the sale. To take another illustration; it appeared that the plaintiff, a real estate broker, sent a customer to the vendor, who began negotiations for a purchase; but before making any binding contract, he discovered a defect in the title; the vendor then agreed with the customer that he would sell the land at public auction under a power by the due execution of which a clear title could be conveyed, and the customer agreed to buy at the auction; but when the property came to be sold, a stranger bought it; it was held that the connection of the plaintiff with this sale was too remote to entitle him to a commission.1

11

In the next place, to enable the broker to recover, he must either show that he was expressly employed by the principal, or else the circumstances must be such that the fact of employment is a necessary implication of law, from the recognition and acceptance of his services by the principal.12 Thus where the vendor distinctly refused to employ the broker, in negotiating the sale of his property, the mere fact that the latter, having discovered the price, sent a purchaser who finally bought the property, will not entitle him to commissions. 13

Again, where a broker contracts to procure a purchaser for the property on certain specified terms, he must produce a person ready and willing to buy on those terms.14

9 Lincoln v. McClatchie, 36 Conn. 136.

10 Earp. v. Cummins, 54 Pa. St. 394.

11 Tombs v. Alexander, 101 Mass. 255.

And if

12 Atwater v. Lockwood, 39 Conn. 45; Hinds v. Henry, 36 N. J. L. 328.

13 Pierce v. Thomas, 4 E. D. Smith (N. Y.) 354. 14 Hamlin v. Schulte, 17 Reporter, 562; Rees v. Spruance, 45 Ill. 308; Clendenon v. Pancoast, 75 Pa. St 213;

he incorporates additional stipulations, affecting the substance of the bargain, into the contract of sale which he makes, it is not a compliance with his undertaking, and he s not entitled to commissions.15 But it is to be noted, on the one hand, that the principal may ratify the broker's agreement to sell on different terms from those contained in his instructions, and such ratification is equivalent to a prior authority;16 and on the other hand, that the principal cannot escape his liability by underselling. Hence if, upon the procurement of the broker, a purchaser seeks the vendor and negotiates with him, and the vendor therupon voluntarily reduces the price of the property, or the quantity, or otherwise changes the terms of sale as proposed to the broker, so that a sale is consummated, or terms or conditions are offered which the intending purchaser is willing to accept, in either such case the broker will be entitled to his commission, at the rate specified in his agreement. 17

In the next place, some of the cases set up the broad rule that, to entitle the broker to recover, it is not sufficient for him to show the mere fact that he has procured a purchaser ready and willing to buy, but it is also incumbent on him to prove that the latter was pecuniarily responsible; for an offer might be made by one who had no means to buy the property, and against whom a claim for damages, for breach of the contract of purchase, could not be enforced, and such an offer should not be considered a performance of the broker's undertaking to negotiate the sale. 18 But there is a modification of this rule, introduced by the New York decisions, which seems to commend itself as reasonable and just. It is to this effect, that it is not necessary for the broker to prove in the first instance that his customer was pecuniarily responsible, that the law will presume such to have been the case in the absence of evidence to the contrary, and that if the principal seeks to justify his refusal to consummate the sale on this ground, the burden of proof is

Schwartze v. Yearly, 31 Md. 270; McGavock v. Woodlief, 20 How. 221.

15 Hamlin v. Schulte, supra.

16 Nesbit v. Helser, 49 Mo. 383.

17 Stewart v. Mather, 32 Wis. 344; Nesbit v. Helser, 49 Mo. 383; Gottschalk v. Jennings, 1 La. An. 5. 18 Iselin v. Griffith, (Sup. Ct. Iowa, 1884) 17 Reporter, 431; Coleman v. Meade, 13 Bush, 358.

on him to show that the proposed buyer was not in sufficiently solvent circumstances to carry out his engagement. 19

The fact that he has employed a broker to negotiate a sale of his property does not preclude the owner from making any efforts on his own part to find a purchaser; and if he succeeds in effecting a sale entirely through his own exertions, and without any aid or interference on the part of the broker, the latter is not entitled to commissions. 20 But if the broker has already commenced a negotiation for the sale of the property, the owner cannot take that negotiation into his own hands and complete it, thus availing himself of the previous exertions of the broker, and then refuse to make the stipulated compensation.21 If the principal proceeds in this manner, and sells the property at a lower price than that at which it was held by the agent, the latter is entitled to at least a rateable proportion of the agreed commission.22 However, if the broker fails to bring the customer to terms, and definitely abandons the negotiation, he thereby renounces any right to compensation for such services, when the owner subsequently sells to the same party. 23

The foregoing remarks are to be applied to the case where a single broker is employed, to the exclusion of all other agencies. But as it is by no means uncommon for a vendor to place his property in the hands of several agents, at the same time, for sale, it becomes important to discover the rules which are to govern their respective claims to commissions in such case. And in the first place, it is laid down that when a vendor places the same property in the hands of several independent agents for sale, limiting the authority of each to the particular transaction, and one of them effects a sale, the authority of the others is immediately revoked, without any actual notice, not on the ground of any privity between them, but in consequence of the determination of the principal's estate. 24 And hence, it would seem, if one of the others, having

19 Cook v. Kroemeke, 4 Daly (N. Y.) 268; Hart v. Hoffman, 44 How. Pr. 168.

20 Chilton v. Butler, 1 E. D. Smith (N. Y.) 150; McClave v. Paine, 49 N. Y. 561; Wylie v. Marine Bank, 61 N. Y. 415; Hungerford v. Hicks, 39 Conn. 259. 21 Keys v. Johnson, 68 Pa. St. 42.

22 Martin v. Silliman, 53 N. Y. 615.

23 Wylie v. Marine Bank, 61 N. Y. 415.

24 Ahern v. Baker, (Sup. Ct. Minn.) 20 Reporter. 435.