necessary to place the party in the position of negligently delaying his action. It has been held that, when he has been informed of facts and circumstances which apprise him of the wrong, is sufficient knowledge of the fact constituting the title for relief. There must be something more than knowledge of the mere facts which have transpired, or papers which may have been executed, to set aside conveyances and explain delay in commencing suit.

The same diligence is not required between members of the same family as with strangers.

The rule of equity that "he who bargains, in a matter of advantage with a person placing confidence in him, is bound to show that a reasonable use has been made of that confidence," applies with peculiar force to a transaction by which a husband secures from a wife a portion of her estate. The most dominant of all relations is that of husband and wife. There are, of course, exceptional cases when the will of the woman may control. The relation is so close, the trust of the wife so absolute, her dependence so entire, it may be, her fear so abject, while the dominion of her husband is so complete, his influence so insidious yet so controlling, that equity regards all such transactions with a jealous care and subjects them to the severest scrutiny. The greater the affection, the more submissive the dependence; the stronger the trust, the more liable is the wife to be subject to the control of the husband, and the more vigilant is the court in protecting the weak.

In reference to transfers obtained from the wife for the purpose of vesting the estate in the husband, Chief Justice Gibson, in Watson versus Mercer says: "What honest mind would feel regret that, in the hurry of accomplishment, some circumstance merely formal, was omitted by which the wife and her family were rescued from his rapacity?"

In all transactions between persons occupying relations, whether legal, natural, or conventional in their origin, in which confidence is naturally inspired, is presumed, or, in fact, reasonably exists, the burden of proof is thrown upon the person in whom confidence is reposed, and who has ac

quired an advantage to show affirmatively, not only that no deception was practiced therein, no undue influence used, and that all was fair, open, and voluntary, but that it was well understood.

The free use of the epithets "fraudulent," "fraudulently," and "surreptitiously," neither informs the conscience of the court of the facts of the case upon which it is asked to act, nor enables the defendant to meet the accusation of wrongdoing made against him. It is not enough to denounce and opprobriously characterize the party or transaction assailed, but the facts should be so stated that the nature of the matter in issue will prima facie warrant the relief sought. A court of equity, when examining a bill of complaint to find a grievance which will justify its interposition, looks to the substantive facts averred in it, not to the adjectives or adverbs which may be added to qualify them. Such epithets are merely allegations of conclusions of law, which a demurrer does not admit.

Even the institution of a suit does not of itself relieve a party from the charge of laches. Failure to prosecute it with diligence subjects him to the same consequences as if it had never been brought. By his own remissness the plaintiff erects an insuperable obstacle to the aid of the court.

[Other Grounds for Relief.]

It having been contended in a case on appeal in the Supreme Court of Minnesota (July, 1885), that the effect of a decree reforming deeds of parcels of lands wrongly described in the conveyances would reform two wills by varying their terms, contrary to the established rule on this subject and in disregard to the statute of frauds, it was held that this view of the effect of the decree of reformation was entirely erroneous. It was stated that the decree did not touch the wills in any way; that they still stood as the last wills of the respective testators, and their probate is simply an adjudication that they were such wills, and not that they pass title to the lands assumed to be devised by them. The court adds:

While the decree of reformation may render the devises inoperative as determining that the devisors had no title to the land which they assumed to devise, this does not in any way change the terms of the wills nor effect their probate. As all the persons interested in the lands involved and in the conveyances mentioned are made parties to this action, the effect of the reformation is to place all exactly where they ought to be placed, and we are therefore unable to see why there is any violation of the maxim invoked by appellant that he who seeks equity should do equity.

It is well settled that courts of equity will not assist the grantee in an imperfect conveyance which is not supported by either a valuable or meritorious consideration against either the grantor or his representatives.

A pre-existing debt is not such a consideration as will constitute a mortgagee a bona fide purchaser in the sense to cut off prior equities; but it is a valuable consideration in the sense that it will support a mortgage or other contract.

If there is a consideration, no matter how small, supplemented by the consideration of love and affection, a mistake in a deed may be reformed.

A person who takes a conveyance, with notice of a prior unrecorded transfer, takes it subject to such transfer. A man, knowing that another has paid money for the deed or mortgage of an estate, cannot, by procuring another deed and getting it first recorded, defeat the title of the prior grantee. Nor can a man stand by and see another part with his money upon the faith of a conveyance, and then take advantage of some defect known to him and claim that, under a subsequent conveyance, he has acquired a title superior in equity to that of the first purchaser. This is the law, even in the case of a purchase for value.

Where a party proposes to take advantage of the literal application of the provisions of the registry system to perpetrate fraud, by levying upon the land or purchasing it, after he has knowledge of an unregistered deed, the law interferes, by mere construction, and engrafts an exception not named in the statute but which it is necessary to imply in order to defeat the fraudulent use of the provisions of the statute, which it is always safe to presume that the legislature did not intend.

It has been held that an unsealed mortgage could be reformed and enforced as against a subsequent mortgagee, and also against judgment lien-holders who were chargeable with notice of the plaintiff's equities in the premises. An attaching creditor with notice has no greater rights than the debtor.

[Remedies Sought Must be Consistent.]

The Supreme Court of the United States, disposing of a writ of error, affirmed the judgment of the United States Circuit Court of Baltimore, Md. in favor of the defendant in the case of George P. Steinbach against The Relief Fire Insurance Co., to recover on a fire insurance policy for a loss. The Circuit Court held that the keeping of fireworks by Steinbach, a German jobber and importer of toys, was a breach of the policy. Next, Steinbach asked the Supreme Court (New York) to reform the policy by inserting therein permission to keep fireworks, on the ground that such permission was omitted from the policy by mistake, so to recover on the policy thus reformed. He was again defeated, the state court holding that the judgment in the Federal court was a bar to the second action, whether it was or not the sole question for determination. Still not satisfied, Steinbach carried the case to the Court of Appeals of New York, which in June, 1879, sustained the judgment of the General Term of the Supreme Court, with costs. Deciding the controversy the state Court of Appeals, referring to the finding of the United States Supreme Court, said:

Whatever was necessarily determined in that action concludes the parties, and can never again be brought into litigation between them, so long as the judgment therein remains in force. That is the universal rule always applied, no matter how much injustice may be done in a particular case. Such a law, which generally tends to justice, cannot be changed to meet the exigencies of a case where a different rule would work juster results.

In order to bring a case within the rule, the second suit must be substantially upon the same cause of action as the first; and the test of that is that the same evidence will support both actions; and the rule is the same, although the two actions are different in form. And it matters not that the former action was decided upon erroneous grounds.

Here there was but one contract of insurance, and the cause of action in the Baltimore suit, as in this, was founded on that. In that suit the plaintiff sought to recover by proving that he was permitted to keep fireworks. By the same proof he seeks to recover in this. There he sought to prove the permission by parol. Here he seeks preliminarily to have the writing reformed, so that he can prove it by writing. If he could succeed here, he would in some form have to prove precisely what he offered to prove there, to wit, that he was permitted to keep fireworks. If the plaintiff could succeed in reforming this contract, it would not change its scope or effect. It would, according to the decisions in this State, be the same contract still. The only change would be that the plaintiff would have direct written proof of what, without such reformation, would rest upon construction and inference based upon other provisions in the contract, and upon parol evidence. The contract would then be, in its legal effect, the same as that the plaintiff sought to enforce in the former suit.

Before bringing the action against the Relief Insurance Co. in Baltimore, Steinbach on a similar policy sued the La Fayette Fire Insurance Co. in the New York Supreme Court, for loss of the same stock, and recovered. The matter was carried to the General Term and then to the Court of Appeals, and in those courts the proof rejected in the United States Circuit Court in Baltimore was held competent. The state Court of Appeals, with the decision of the Supreme Court of the United States in the case there decided before it, refused to follow or be bound by the same; and thus the highest courts of the State and of the nation were in conflict.

[Proof Required to Reform a Contract.]

It being urged in Southard versus Curley that an action brought to reform a written contract, on the ground that owing to a mistake it failed to express the agreement which the parties to it actually made and that the civil courts have at last adopted the rule of criminal actions that the evidence must be such as to establish the mistake beyond a reasonable doubt, the Court of Appeals of New York, Second Division (June, 1892), affirming an order of the General Term denying a motion for a new trial for error in the refusal of the trial court to direct a verdict for the plaintiff, after reviewing a