« ForrigeFortsett »
one hand and redemption on the other, are treated as mutual; that is, the existence of the former is held to involve that of the latter, and vice versa, and the fact that the one can not legally be enforced under the circumstances, is regarded as sufficient to preclude a claim for the other. It is said, “ the right to forclose and the right to redeem are reciprocal and commensurable." 2 Hilliard on Mortgages, sec. 2.
The land here being wild, unimproved timber land, and there having been no actual possession by either mortgagee or mortgagor until within less than one year before the commencement of this suit, there would, under the authorities cited, be no bar, from the lapse of time, of the right to redeem, and the right being reciprocal, it follows there is no bar of the right of foreclosure.
There could not well be any presumption from the lapse of time of the payment of the mortgage debt under the circumstances and so long as the time of limitation provided by the statute for the case had not run against the debt.
Nor do we think the defense should prevail under the doctrine laid down in 2 Story's Eq. Jur. sec. 1520, that "a defense peculiar to courts of equity is that founded upon mere lapse of time and the staleness of the claim in cases where no statute of limitations directly governs the case. In such cases courts of equity act sometimes by analogy to the law and sometimes act upon their inherent doctrine of discouraging for the peace of society antiquated demands, by refusing to interfere where there has been gross laches in prosecuting rights or long and unreasonable acquiescence in the assertion of adverse rights.” As accounting for not sooner foreclosing was the removal of the mortgagor from the State, and so far as appearances showed, the entire abandonment by him of the equity of redemption. There was constant assertion of claim under the mortgage by disposal, by sale of a portion of the mortgaged premises and paying the taxes every year on the remainder There was no acquiescence in the assertion of adverse rights for none such were asserted until just 'before the commencement of the suit. The decree of foreclosure will be affirmed.
necessary, in the interests of society, that policemen should be protected; and that due retribution should fall upon those who maltreated them." Thero is no doubt of this; but there is another view of the subject which is equally if not still more importantthat the people should be protected from the abuse of power on the part of the police, who are, for the most part, ignorant men, often of violent passions, placed in a position of great power, and often tempted or disposed to abuse it. The peculiar danger arising from their position is this: that they are in a position of apparent authority, and that, if they abuse their power and are resisted, they are at once the accusers and the witnesses. They can convict the accused on their own testimony, and wreak a terrible revenge for any resistance they may encounter. Hence the law, while providing peculiarly severe penalties for the offense of assaulting or obstructing them in the execution of their duty imposes, in the very definition of the offense, a condition that they, at the time of the assault or obstruction, are engaged " in the execution of their duty." This, it is obvious, requires careful consideration; yet it is too often very carelessly passed over, in many classes of cases in which it appears clear that the first act of force or violence emanated from the policeman, and he has attempted to take the man, or has pushed bim, or the like. It is in all such cases to be considered whether the policeman, whether by common law or by statute, had any power to touch the party, either by pushing him or taking him into custody. For, if not, then the man would have a right to resist himself from assault; and it death ensued in the struggle the man, if he killed the policeman, would not be guilty of murder, and perhaps not even of manslaughter; and if the policeman killed the man he would be guilty of murder. No part of the law, perhaps, is of greater importance than this; for the very reason that it relates to scuffles, which may lead to violence that may cause homicide. If a policeman, without a warrant, endeavors to arrest a man for a mere misdemeanor not committed in his presence, the man may resist, even to death; and, unless he uses cruelly and unnecessarily a deadly weapon or deadly violence, even if he killed the policeman, he will not be guilty of murder, and may be legally justifiable. That was laid down by Lord Coke in the case of the pursuivant killed by tho man whom he illegally sought to arrest; and many cases in our own times have illustrated the doctrine. Lord Campbell held a man not criminally liable for violence in resisting a policemon who, without lawful authority, tried to take his gun from him. Regina v. Archer, “ Foster & Finlaison's Rep." 361. A constable has no right to arrest a disorderly person unless he is committing, or is on the point of committing, a breach of the peace; and, if he attempt it, he may be resisted. Re Lockley, 4 F. & F. 155; Re Spencer, 3 Id. 857. And, if the constable is killed in resisting him, it is not even manslaughter, unless there is some
Id. Some years ago, a man was tried at Hertford, before Mr. Justice Hannen, for the murder of a policeman who had, without having a warrant with him (though a warrant had been issued), tried to arrest him for some misdemeanor, and whom the man had killed by striking him with the butt of his gun. The man was convicted only of manslaughter, on the ground of supposed excess; though as it did not appear that he struck more than one blow, it is very questionable whether the conviction was right, but the point was not raised and reserved, as it ought to have been. These cases show the importance of this head of the law, and a decision of the Queen's Bench, during the late sittings, illustrates the principle on which it depends. There, a policeman had attempted, without warrant, to arrest a man for a misdemeanor not
ASSAULTS ON THE POLICE IN THE EXECUTION
OF THEIR DUTY.
There is a subject to which attention is constantly called, by convictions and sentences at the assizes, and other criminal courts, and which was lately illustrated by a judicial decision in the Queen's Bench, and appears to require greater consideration than it has hitherto received; we mean the offense of assaulting or obstructing the police in the execution of their duty. This, as is well known, is an offense visited with some severity, upon the principle that it is necessary to uphold and protect the police in the execution of their duty. Thus, at a recent assizes at Maidstone, a man was sentenced to twelve months' imprisonment with hard labor, for kicking a policeman; and, at the late assizes at Durham, Lord Justice Bramwell sentenced three men, who had knocked a policeman about, to ten years' penul servitude, observing that it
committed in his presence; the man resisted, and ous looseness in some enactment in the Police Act, struck him, and had been convicted summarily by the mistook the law, and too easily assumed that the magistrate of “assaulting the policeman in the execu- policeman was justified in using force to compel a pei. tion of his duty." The court set aside the conviction son to move on who was simply having a conversation. on the ground that the act of the policeman was ille- It is obvious that the accused ought to have been disgal, and that, therefore, he was not, at the time of charged, and the policeman punished and dismissed the assault, " in the execution of his duty." Leslie from the force. Under no sound canstruction, even v. Punshon, Q. B., Trinity Sittings. Thus it is clear of any enactment in the Police Act, could a policeman that, where the policeman attempts to arrest, unless be justified in assaulting a person engaged in a quiet he is legally justified in arresting, resistance to him, to conversation. But, supposing for a moment that any any extent necessary, will be lawful and justifiable, such monstrous consequence could follow from any and so can not form the subject of a criminal charge. enactment in the Police Act, at all events such can not On the same principle, it is manifest that, if the po- be the law in the country at common law. Yet cases liceman, having no power to arrest, offer any force or constantly occur which show that similar notions previolence to the person, as by pushing, this will justify vail in the country, where the common law applies. resistance, or so far excuse it that he will not be justi- In the case mentioned as occurring at the autumn fied in arresting the party for the resistance; and, if he
assizes at Maidstone, the
simply attempts to arrest, the man may resist apprehension, drunk on
a country road, and not at all disand the policemaŋ, if assaulted, will not be assaulted orderely; the policeman wanted to force him in the diin the execution of his duty,” but, on the contrary, rection contrary to his residence; the man naturally will be guilty of illegal violence while being lawfully wanted to go home; he resisted, the policeman used resisted. This is the class of cases of most common viotence to force him to go or to take him into custody, occurrence, and in which misapprehension of the law and a scuffle ensued, in which the man kicked the by the police, and by the magistrates, leads to great policeman, and was convicted of assaulting him in the illegalities on the part of the police, which provokes execution of his duty, and sentenced to a year's imviolence in resistance, and sometimes leads to fatal prisonment with hard labor. It should be stated that consequences. The police have a notion for instance, the man was not defended by counsel, and did not that if any one is drunk, or making a little noise, the succeed in making the judge understand his case. But person may be at once arrested and dragged to prison; cases occur which show that even the judges prior to and daily persons are thus treated, and, if they resist, the late decision in the Queen's Bench, and even since are charged with assaulting the police in the execution that decision, not knowing of it-have been rather of their duty, and probably convicted summarily or on loose in their notions of what at common law will justrial, and visited with severe punishment. Possibly tify a policcman in using force to a person on the highthis misapprehension of the law may have arisen from way. . A case occurred at the last assizes at Lewes. some stringent enactments, in rather loose language, before Mr. Justice Grove, which will illustrate the in the Metropolitan Police Act in London, and possibly question. A young man sued a policeman for assault; in some other local acts, in extension of the common and proved by several witnesses-more than one of them law. There is an enactment, for instance, as to being independent-that he was merely talking, with one or “drunk and disorderly," and there may be one as to two companions at the corner of a street, when the "creating a disturbance;” and the knowledge that policeman suddenly came over and told him to go on; the police act in such cases in the metropolis may have on bis refusing, seized him violently and pushed him given an erroneous notion that they may do so every across the street, and knocked him down, and then where. But it is obvious that these are extraordinary took him into custody, and dragged him through the enactments, deemed necessary for the preservation of streets to the police station, and lodged him in a cell, peace and order in populous cities; and, being in ex- where he was imprisoned all Saturday night, and all tension of the common law, and in derogation of per
Sunday and Sunday night until Monday morning, sonal liberty, they are to be construed strictly; and when he was discharged by the magistrates. The merely being drunk is not, by the statute, sufficient to constable denied knocking the man down, but admitjustify interference—the words being drunk and ted pushing him across the road and taking him into disorderly," which must mean disorderly, not only in custody; and, although hc alleged that the man struck the sense of being drunk, but of causing annoyance to
him, this he admitted was after he had seized him and others. So as to the words “creating a disturbance," pushed him; and all he could allege in justification it must
a disturbance tending to a breach was that the man was “making a disturbance," of of the peace.
Yet magistrates constantly allow which, however, he could give no other detinite dea very loose and arbitrary application of these statu- scription than that he was talking loudly with two of tory powers of the police; and, some years ago, his friends. Thus, therefore, the question came to this misapprehension of the law was painfully illustra- this, whether, if a man be talking loudly to a friend, ted. The managing clerk to a large city house, going at a corner of a street, and refuses to leave off when home one night after dining out, stopped to have a lit- desired to do so, a police may seize him, push or drag tle badinage with a servant girl. A policeman- him along, and if he resists, then drag him off to a pojealous, perhaps, of what looked like poaching on his lice station and place him in a cell for a day or night manor—roughly told him to move on. The gentleman until he can be brought before a magistrate on such an refused; the policeman pushed and hustled him, no
utter absence of any legal charge as to be at once disdoubt to provoke him; the gentleman resisted; a scuffle
charged. For there is not as the magistrate's clerk ensued, in which the gentleman struck a light blow;
no doubt told them-any such offense known to the upon which the policeman arrested him for assaulting
common law as merely “making a disturbance by talk. him in the execution of his duty; and, supporting the
ing loudly." In Fielding's "Treatise of the Office of charge by his own testimony, the magistrate convicted Constable''-which is carefully founded on the author. the accused gentleman, and sent him to prison for a
ity of Coke and Hale—it is laid down that, “except month. A body of gentleman who knew the unfortu
for treason or felony, a constable without warrant cap nate party--including a barrister of eminence-waited only arrest for an 'affray;' and that there can be no on the magistrate to entreat him to reconsider his sen
affray without an actual breach of the peace, as weaptence; but in vain, and the sentence was suffered. It ons drawn, blows struck or attempted, etc. Words is manifest that the magistrate, misled by the danger
will not make an affray; yet if there be words of me.
Unless there is an actual breach of the peace, or an affray, there is nothing of which the common law takes cognizance-nothing which justifies a conştable's interference; and if he interferes, and the parties do not desist, and he then threaten force, they may threaten resistance; and, if he uses force, they may resist; and, if he suffers any violence (unless excessive), it is his
fault; and, if he inflicts violence he 19 himself civilly criminally answerable, and, if he causes homicide, he is guilty of murder; while, if the person he has assaulted causes death (unintentionally, and with no wicked excess), he is not guilty of murder, nor even of manslaughter, but it is excusable homicide. The fact that death has sometimes been caused in these encounters shows the grave importance of the subject; and cases are constantly occurring which show that many of the police are quite capable of gross abuse of their powers, and of justifying their violence by false charges against their victims. The Court of Crown Cases has lately had before it a case of this kind, and Mr. Justice Hawkins a few days ago, on the Oxford Circuit, infiicted a sentence of just severity on two policemen who had conspired together to trump up a false charge by means of perjury. These instances show that it is necessary to scrutinize very carefully charges made by the police of assaulting them “in the execution of their duty.”—London Law Journal.
ABSTRACTS OF RECENT DECISIONS.
SUPREME COURT OF RHODE ISLAND.
March Term, 1879.
nance to beat or hurt any one, then may the constable arrest the offender, and carry him before a justice of the peace.” And the power to interfere in mere cases of disturbance, disorderly drinking, etc., is said to be confined to cases of such disturbance in a house. No doubt the magistrates' clerk was aware of this, and so advised them; and so they discharged the man. But, if he had committed no offense, then he was entitled to make a counter-charge against the constable of assault; and he made such charge in the action. The learned judge also very properly inquired whether there was any Police Act in force in Brighton that could give peculiar powers to the police beyond the common law; and was told that there was none. He appears, however, to have been under the impression that mere noise, without any idea of a breach of the peace, or any approach to a quarrel or affray-mere noisy talking of friends-might amount to a breach of the peace, justifying the exercise of force by a constable to disperse the persons talking; and he left the question to the jury whether there was such a noise. But this was quite contrary to the authorities, the effect of which is that there must be quarrel and an affray, and menace of blows such as would be an actual breach of the peace, to justify the interference of a constable. The jury, however, were slow to accept the definition of the law thus presented to them, or, at all events, to apply it and act upon it; and they deliberated a long time. The man, however, appeared to have been more than once turned out of public houses, and so was not a good plaintiff; and, on the other hand, a retired police officer gave it as his opinion that, in such a case as was described, the policeman would be justified in interfering; and so, at last, they found for the defendant. But the police officer's idea of the law is, of course, no authority; and the direction of the learned judge is not reconcilable with the best authorities as to the power of a constable at common law. In a case tried, last week, at Leicester, where a man sued a sergeant of police for assault where there was a “Guy Faux'' disturbance in which -as the police said—the plaintiff had taken part, and they had arrested him, and, on resistance, had struck him, but he had been fined by the magistrates on their testimony, the plaintiff, nevertheless, recovered a verdict. Mason v. Roberts, Leicester Summer Assizes. Yet in that case there certainly was a "disturbance'' and an “obstruction''-gathering a crowd, rolling tar barrels about, etc.,-which would justify the police in interfering, and if they were assaulted, then in arresting an assailant; and, therefore, the verdict must have gone on the ground of excess. But where there is mere noise of two or three friends loudly talking or singing, there can be no pretense for the police intering, and a mere push would be excess because no use of force at all would be justified; and probably, in the case at Lewes, the plaintiff, but for his antecedents, would have recovered a verdict, even on the issue presented to them by the judge. The direction, however was certainly not in accordance with the authorities, according to which nothing short of an actual breach of the peace by blows struck, or such menaces of violence as amount to an affray, will justify a constable in the use of force. Nor will any threat of resistance to himself, if he, without due cause, threatens the use of force, amount to an affray which will justify his arrest of a party, for the affray must arise before he threatens or offers force; and he cannot, by his own menace of illegal violence, provoke an affray to justify an arrest; for then it is he himself who creates the breach of the peace by the threat of illegal violence. He has in such a case, no right to interfere at all. Mere talking or singing does not, at common law, constitute an offense or breach of the peace, and a constable can not arbitrarily make it one by calliug it a “disturbance.”
INJURIES CAUSED BY SNOW AND ICE- LIABILITY OF Towns.-The provisions of Gen. Stat. R. I. ch. 60, sec. 15, exempting towns from liability for injuries caused by obstructions of snow and ice in the highways, unless notice of the particular obstruction causing the injury has been given to the highway officers, apply to obstructions of snow and ice produced by artificial causes as well as to those produced by natural causes. 2. Query, whether the exemption would lie if the obstruction causing the injury was made by the town authorities. Opinion by MATTESON, J.-Windsor v. Tripp.
NEGLIGENCE-PRESUMPTION. - When a plaintiff sues for injuries caused by the negligence of another, and his own case shows contributory negligence, he may be nonsuited, otherwise his case should be submitted to a jury. A was found fatally injured in an excavation in a highway. All that was known of the matter was that he had been seen walking along the highway in his usual manner. A's administrator sued the town, alleging that the negligence of its authorities resulted in A's death. Held, that the case should be submitted to a jury, and that the jury should consider A's habits as to temperance and caution, and his acquaintance with the locality, in deciding whether he had exercised reasonable care. Opinion by POTTER, J.-Cassidy v. Angell.
ESTOPPEL- STATEMENT BY AGENT DISCLAIMING TITLE OF PRINCIPAL TO PROPERTY.-1. S purchased certain articles of A, under an agreement by which they were to remain the property of A until paid for. They were directed and sent to s before being fully paid for, and while in transit were attached as the goods of S. The attaching creditor testified that B, A's agent to sell such articles in the place of S's residence, had told him the goods belonged to S. B denied
SUPREME COURT OF INDIANA.
making this statement. Held, that giving the information testified to by the attaching creditor did not fall within the scope of B's agency. 2. Held, further, that such information, even if given by B, would not bind A, unless given under special authority from A to B. Opinion by DURFEE, C. J.- Skelton v. Manchester.
ACCORD AND SATISFACTION — TENDER-PAYMENT OF EXCESSIVE INTEREST.-1. A defense of accord and satisfaction is not supported by proof of a tender of satisfaction without proof that the tender has been accepted or received. 2. A, the payee of certain mortgaged notes made by B, sues B for the amount due. B alleges in defense an agreement with A by which B was to find a purchaser for the mortgaged realty who was to pay the arrears of interest, refund certain expenses, and execute new notes to A, whereupon A was to accept the purchaser as his debtor and discharge B. B avers that he found such a purchaser but that A refused to consummate the agreement. A sold the realty at auction under the mortgaged power, bought it in, and brought the suit in question to recover a balance still due on the notes. Held, that the defense was bad as an accord and satisfaction, because it only showed a readiness on the part of B to join with A in executing the accord, but showed no satisfaction nor execution of the accord. “The rule that an accord is no bar without satisfaction is not questioned, but the defendant contends that a tender of satisfaction is satisfaction in legal effect. He cites Bradley v. Gregory, 2 Camp. 382, which contains a nisi prius ruling of Lord Ellenborough to that effect. The same doctrine is supported by Heirn v. Carron, 19° Niss. 361. But the preponderance of anthority is decidedly against it. Peytoe's Case, 9 Rep. 79, Rayne v. Orton, Cro. Eliz. 305; Allen v. Harris, 1 Ld. Raymond, 122; Lynn v. Bruce, 2 H. Bla. 317; Russell v. Lytle, 6 Wend. 390; Hawley v. Foote, 19 Wend. 516; Day v. Roth, 18 N. Y. 448; Claik v. Dinsmore, 5 N. H. 136; Clifton v. Litchfield, 106 Mass. 34; Hearne v. Kiehl, 38 Pa. St. 147; Young v. Jones, 64 Me. 563. These cases maintain or favor the doctrine that the satisfaction must be accepted or received as well as tendered. In Hawley v. Foote, 19 Wend. 516, the case of Coit v. Houston, 3Johns. Cas. 243 and 559, the last reference being to cases from Radcliff's Mss., which has been thought to hold otherwise, is explained and reconciled with them. We suppose the reason for the doctrine is, that a mere accord is not an obligatory contract, and therefore a tender in compliance with it does not bind the creditor unless he accepted it. If this is so when there is a tender of things which can be received, it is so a fortiori when there is no tender, but only a readiness and offer to join with the creditor in executing the accord. The case at bar is of the latter kind. The defendant shows simply a readiness or an offer on the part of a stranger to the accord to execute it in the defendant's behalf if the creditor would put it in his power to execute it by conveying the mortgaged estate to him. The accord remained unexecuted. The creditor has nothing to satisfy the debt. In such a state of things we think it would be going too far to hold that the debt has been satisfied. The cases that go furthest do not go to that extent.'' 2. The allege agreement was bad as an equitable defense, being an attempt in violation of the statute of frauds to substitute a new oral contract for the contract evidenced by the auctioneer's memorandum of sale. 3. A debtor after paying specifically as interest higher rates than the law requires can not charge the excess of his payments above the legal rate against the principal of his debt. Opinion by DURFEE, C. J.Pettis v. Ray.
October, 1879. SECRET LIENS-INNOCENT PURCHASER-DEMAND. -Appellant sold and delivered to Collins a safe, with a written agreement that until the last payment was made the title should remain in the appellant. Before Collins had completed the payments he sold the safe to appellee, who had no notice of the above mentioned agreement. Appellant sought to recover the safe without having made demand of it from the appellee. Held, that such secret liens upon property are instrnmentalities for the perpetration of fraud and injustice upon innocent third persons; are against public policy, and are not to be encouraged. Although enforceable, they can not be enforced against bona fide purchasers without notice, unless a demand is first made. 54 Ind. 58; 17 Ind. 90; 6 Ind. 455. Affirmed.-Hall Safe & Lock Co. v. Rigby.
OFFICIAL BOND-EXCESSIVE PENALTIES – VALIDITY.---This was an action by the appellee against appellant as surety on the official bond of Rufus Gale, who was the auditor of Jefferson county. The bond was in the usual form, but in the penalty of $5,000, larger than required by the statute. The breaches assigned were that Gale, as such auditor, had drawn certain warrants or orders upon the county treasurer payable to himself, which were drawn without any order from the board of county commisiioners. The following questions arose in the case: Is an official bond in a larger penalty than that prescribed by law void? Is such a bond valid as a voluntary bond for the amount of the penalty named therein? Is such bond valid to the amount of the penalty prescribed by the statute for euch bond? Held, that construing the several statutory provisions together, it is clear that the legislature intended that whatever departure there may have been from the provisions of the statute requiring the bond, in taking it, as to its form or substance, which includes the amount of the penalty named in it, the principal and surety should be bound upon it to the same extent and no further, as if the bond had been in all respects such as the law requires; in other words, that the priecipal and surety should be deemed liable as upon such a bond as the statute requires. The bond is not void, nor is it good for the whole amount of the penalty named in it; but it is good for the amount required by law for the penalty of such bond. Affirmed.--Graham v. State.
LIBEL - PUBLICATION IN NEWSPAPERS – PAROL RELEASE-DAMAGES.- This was an action for libel by appellee against appellant. Appellant was the publisher of a certain paper, and the complaint charged that he caused to be published in said paper certain libelous matter purporting to be a letter from King Kalakau, which, with the editor's comments, was as follows. “Never go into a law suit with Arch. McGinnis (the appellee) so long as he may be the owner of those books that beat Sutherland, Jim Ryan, Conk. erly, and whoever they might be brought up against, for McGinnis is chiefest among ten thousand and the one altogether lovely, on the swear. We begin to believe that old Kalakau is no bug-eater, if he is a maneater, for we met McGinnis under the fish last week in a suit on a plain promissory note for $585, and he came very near swearing us into his debt. If Beecher is really desirous of laying out Theodore Tilton in his suit now in progress in New York City, let him send for our friend McGinnis." Appellant answered, setting up a parol release and matters in mitigation. A trial resulted in a verdict for the plaintiff. Held, that it is not necessary that a crime should be charged in order to constitute a written publication a libel.
9 Johns. 214; 9 Ind. 388. Where the publication is plain and unambiguous it is a question of law for the court whether it is a libel or not. 6 Gray, 261; 48 N. Y. 472. Comparing the publication in this case with those which have been held libelous , both in England and America, it must be held to constitute a libel. Where the publication is a libel per se, no proof of damage is necessary. The cause of action in this case could be released by parol. 31 III. 422; 7 Ind. 597, Judgment affirmed.-Gabe v. McGinnis.
SHERIFF'S SALE – FAILURE TO SELL IN PARCELS -COLLATERAL ATTACK.-Suit to set aside a shcriff's sale of real estate, because the sheriff failed to sell in parcels. The plaintiff had judgment setting the sale aside. The sale was held void because the sheriff, through error of judgment, sold the land in a body instead of in parcels, believing that it could not be divided. The ground was a town lot and had never been subdivided. No fraud was imputed to the shertff. The plaintiff purchased the land of the execution defendant when it was bound by the lien of the judgment on which the sale was made. He took no steps to set the sale aside for irregularity, but waited until the year of redemption had expired, and then commenced suit to recover the ground, treating the sale as void. Held, that the sale was not void, and the judgment below was erroneous. It could not be attacked collaterally, but whether voidable in a direct proceeding to set the sale aside, not decided. Citing 19 Ind. 235; 23 Ind. 624; 45 Inp. 235; 59 Ind. 195; 62 Ind. 188. Judgment reversed.-Nelson v. Bronenberg.
assumes and agrees to pay the mortgage and interest.. After the conveyance to R., the note and mortgagewere assigned by the payee to the plaintiff. R., stille later, made two mortgages of the premises which came by assignment to the plaintiff, and finally gave the plaintiff a quit-claim deed of the premises, with special covenant of warranty against all persons claiming from or under bim, but against none other, and a covenant tbat the premises were free of all incumbrauces made by bim, except the two mortgages above referred to by bim, and a third mortgage which was discharged before suit. In an action at law upon said note, it was held, that the mortgage was not extinguished. To hold. otherwise would do injustice to the plaintiff, by depriving him of a personal remedy against the defendants which he did not intend to abandon or surrender. On the other hand no wrong is done to the defendants. So long as they retained the equity of redemption, they kept the right to have a discharge of the mortgage whenever they should pay the note. They saw fit to: give up their rights in consideration of the purchase money paid by R. for the equity, and his personal undertaking to pay the mortgage debt. Their position is of their own choosing. Their remedy is against their grantee. Opinion by SOULE, J.- Tucker v.. Crowley.
SUPREME COURT OF KANSAS.
September 24, 1879.
SUPREME JUDICIAL COURT OF MASSA
July, 1879. FIRE INSURANCE-CONVEYANCE- INSURABLE INTEREST.-Action on a policy of insurance issued by the defendant upon “his frame dwelling-house.” At the trial it appeared that the plaintiff was the owner in fee of the land upon which the insured building stood August 5, 1876; that on that day he conveyed the land by a warranty deed to one C; that on Sept. 7, 1876, the defendant issued said policy; that on Nov. 25, 1876, C reconveyed said land to the plaintiff by a warranty deed, and on the same day the plaintiff conveyed said land to y by a warranty deed, N at the same time, and as part of the same transaction, giving back to plaintiff a writing signed and sealed, stating that the conveyance was made simply to secure him from any liability for recognizing as a surety for the appearance of R in a criminal suit, and that the land was to be reconveyed to W upon N being held harmless; that the conveyance to C was for a similar purpose, and that a similar writing had been given by C to plaintiff; that R appeared in the criminal suit, and the land was reconveyed to plaintiff. In the proofs of loss upon a printed form, plaintiff swore that “the property belongs exclusively to me, and no one else has any interest therein." Held, that the plaintiff had an insurable interest at the time the policy was issued, which continued till its destruction. Opinion by COLT, J.-Walsh v. Fire Assn.
PROMISSORY NOTE — MORTGAGE - MERGER. - The defendants made their joint and several promissory note, payable to the order of L., and secured by a first mortgage upon real estate. After the making of said note and mortgage, the defendants conveyed the equity of redemption to R., by a deed reciting that the latter
BUILDING ASSOCIATIONS-LOAN OF FUNDS-PAYMENT OF PREMIUMS—No USURY. Where, under the “private corporation'' laws of 1868, 1870 and 1871,Gen. Stat. 19, et seq.; laws of 2870, pp. 125 and 126; laws of 1872, pp. 169, 170; the charter of an intended private corporation is duly drawn, subscribed, acknowledged and filed in the office of the secretary of State, and a duly certified copy thereof is issued to the company by the secretary of State, such company then has a valid corporate existeence, and may legally organize as a eorporation. It may then open books for subscription to its capital. stock, and when the larger portion thereof is subscribed for and taken and the amount taken is as much. as the law requires the corporation to possess, such corporation then has the power to transact such business as its charter contemplates, although the entire amount of the capital stock as fixed by the charter has not yet been subscribed for or taken. 2. A building and saving association fully organized under the said lawsof Kansas, whose object is, “the accumulation of a fund by small monthly installments, to enable mem-bers of the association to purchase real estate, erect: buildings, redeem mortgages, satisfy ground rent, loan money, pay taxes, and effect other similar purposes, '" has authority to loan money from such accumulated fund to its members. 3. Where a corporation is authorized to loan money but its charter does not expressly authorize it to take a mortgage or other secu-rity, the corporation will nevertheless have power by implication to take a mortgage to secure the repayment of its funds loaned, where the debt is bona fide and created in the regular course of business. 4. Where a note and mortgage are given to a de facto corporation in its corporate name for money loaned by the corporation to the maker of the note and mortgage, and such corporation apparently has the power" to loan money and take notes and mortgages therefor: Held, that the mere giving of said note and mortgage and the receiving of the money therefor, will, in the the absence of fraud and misrepreseptation, be considered such an administration of the