« ForrigeFortsett »
satisfy his claims until after he has obtained a judgment and exhausted his remedy at law. 7. To bar the equity of redemption of a non-resident mortgagor, upon whom service of summons can not be made, such mortgagor should be constructively served as required by the code, and a judgment of foreclosure and sale, without such service, is no bar to an action to redeem. Judgment reversed. Opinion by JOHNSON, C. J.Endell v. Liebroch.
[Filed October 23, 1878.]
PETITION IN ERROR-CONSTRUCTION OF DEVISECONSTRUCTION OF STATUTES AS TO REAL ESTATE. -1. An authenticated transcript of a complete final record in the case was filed with the petition in error in the district court, and the clerk of the court, on his own motion, also placed the original papers and pleadings in the case among the files, without endorsing thereon additional file marks. Held, it was not error to overrule a motion to dismiss the petition in error for want of jurisdiction. 2. Where a husband devised real estate to his wife during her life, or while she remains unmarried, under which she takes possession and occupies the land with the knowledge of the heirs at law for a series of years after the time limited in which she may make her election, in the absence of a showing to the contrary she will be presumed to have made her election in fact. 3. A testator by his will clearly vested the title to a specific portion of his real estate in his executors in trust, with directions to sell the land and distribute the proceeds equally among his heirs at law, and it is claimed the executors are vested with a like trust and direction in and over other real estate devised. Held, that the court, in order to ascertain and carry out the intention of the testator in that respect, will look to the whole will and all its parts. 4. W devised to his wife H and his son J HW by a distinct and independent clause of his will, the use of certain estate during the life of H, or while she remained unmarried, and then provided: "But at the death of my said wife, or if she should intermarry with any other person after my decease, it is my will that the said aforementioned and described farm shall be sold and the proceeds of the same be equally divided between my children or their heirs forever; or that they, my said children, divide said farm to suit themselves as they may think best." Held, (1.) By this devise, standing unaffected by the other provisions of the will, no trust estate is created in the executors. Under this clause H and J HW take estate for life in the land described therein, determinable on the death or marriage of H, with remainder in fee to the heirs at law of the testator. 5. The act of April 13, 1865, entitled "An act supplemental to the act to authorize the sale or lease of estates tail and estates for life in certain cases," by negative provision extends and applies the acts of April 4, 1859, and March 30, 1864, to all estates, tail or for life, with remainder over to any other person or persons, and to all determinable estates which may be created by will, etc., after its passage. 6. Under the act of April 4, 1859, and the acts supplemental thereto, the owner of the life estate in possession, created by will subsequent to April 13, 1865, may institute proceedings for the sale of both the life estate and the estate in remainder; and this may be done notwithstanding the testator may have made special direction in his will for the disposition of the land on the determination of the life estate. 7. The act of April 4, 1859, S. & C, 550, and the supplemental acts of March 30, 1854, S. & S. 346, and April 13, 1865, S. & S. 347, in so far as they affect and apply to estates created subsequent to their passage are not in contravention of section 19 of article 1 of the constitution of this state. Judgment affirmed. Opinion by ASHBURN, J.-Nimmons v. Westfall.
"CIVIL DAMAGE" LAWS-EVIDENCE.-In an action for damages resulting from the sales of intoxicating liquors, under the seventh section of the statute on that subject (67 O. L. 102), it is not necessary that the illegal sales should be proved beyond a reasonable doubt. Opinion by OKEY, J.-Lyon v. Fleahmann.
WHERE A NEGOTIABLE PROMISSORY NOTE is transferred by indorsement, after maturity, the legal title is thereby vested in the indorsee; and after the in. dorsement the amount due on the note can not be garnished in the hands of the maker, whether he has notice of the transfer or not, as a debt due to the original holder. Judgment affirmed. Opinion by WHITE, C. J.-Knisely v. Evans.
1. AS BETWEEN A COPARTNERSHIP AND A CREDITOR thereof, a note given in the firm name, without authority, by one partner, after dissolution, for a debt of the firm, the parties' to the note intending to bind, and believing the note was binding on the firm, will not extinguish the firm debt. 2. As between the partners themselves, such transaction will not discharge the non-consenting partner from liability to make contribution to the partner paying the debt. Judgment affirmed. Opinion by GILMORE, J.-Gardner v. Conn.
DOWER-ELECTION-SETTLEMENT,-1. Where dower is barred by a legal jointure, an election, under the 43d section of the will's act, is not necessary to entitle the widow to take the provisions made for her in her husband's will; but where the bar is by an equitable jointure or settlement merely, quere? 2. The year within which the election under said section must be made, begins to run from the date of the service of a citation, and where the widow, appearing in open court without service of a citation, declines to make her election, she does not thereby waive the issuing and service of a citation, or estop herself from denying that a citation had been issued and served. 3. Whether a widow can take the provision made for her in the will of her husband, and also claim under an antenuptial contract, whereby her right of dower is barred, depends on the intention of the testator. 4. Where, by ante-nuptial settlement a sum of money is secured to the wife to be paid after the husband's death, and by a subsequent will the husband directs all his just debts of every kind to be first paid, and makes provision for the support of his wife during widowhood, with a declaration that the intent and meaning of the testator was to give to his wife the provision made for her in his will, she may claim the provision in the will, and also that made for her in the settlement. Opinion by MCILVAINE, J.-Bowen v. Bowen.
PRACTICE-PETITION IN ERROR.- Under the act of April 14, 1878, to revise the laws relating to civil procedure, sec. 3, ch. 1, 4, 75 O. L. 804, the applicant may file his petition in error in the district court without leave. Hence, where there are no special reasons for coming directly to this court, the applicant should
seek his remedy in the district court. The rule applied to applications for leave made to this court directly from the court of common pleas, is applicable in the present case. Benham v. Conklin, 3 Ohio St. 509; State v. Williams. 26 Ohio St. 170. Opinion PER CURIAM.-Kosminski v. Barrett.
REPORTS OF CASES DECIDED IN THE SUPREME COURT of the State of Oregon. C. M. BELLINGER, Reporter. Volume VI. San Francisco: A. L. Bancroft & Co. 1878.
The sixth volume of the Oregon reports contains the cases decided from the December term, 1876, to the December term, 1877,- nearly 100 in all. Among them the following points are decided: Permitting a jury to take a written charge to the jury room held to be erroneous: Smith v. Lownsdale, p. 78. The president of a railroad with authority to act as "business and financial agent" of the corporation has no power to execute a mortgage on the property of the road; Luse v. Isthmus Transit Ry. Co., p. 125. A promise, though without consideration, may be enforced if for a public object: Philomath College v. Hartless, p. 158. The moral character of a witness can not be impeached by showing particular acts of immoral conduct: Leverich v. Frank, p. 212. The jurisdiction of a court of aquity to enforce the provisions of lost instruments: Howe v. Taylor, p. 284. A person may in the same act commit more than one crime. Thus, a city ordinance which provides for punishing an act which is already a crime under the general laws of the state, does not deprive the circuit court of its jurisdiction to indict and try persons who are guilty under the ordinance for a violation of the state law: State v. Bergman, p. 341. A contract made by a foreign corporation before it has complied with the state laws regulating such corporation is, as to third parties, void, and can not be enforced against them: Bank of British Columbia v. Paige, p. 431.
The volume contains over 500 pages. A list of attorneys admitted to the Supreme Court during the term of the reports, and the rules of the court are prefaced.
REPORTS OF CASES IN THE SUPREME COURT OF NEBRASKA. 1868. Vol. VII. By GUY A. BROWN, Official Reporter. Lincoln, Nebraska. State Journal Co. 1878.
This volume contains a report of all decisions of this court filed prior to the October term, 1878, and not reported in the preceding volumes of this series. It contains 587 pages and over 100 cases. In an appendix, are given the proceedings in the Supreme Court on the death of the Chief Justice, which occurred on the 29th of May, 1878. Chief Justice Gantt was born in Pennsylvania in 1814. He went to Nebraska in 1857, and practised in Omaha till 1864, when he removed to Nebraska City. He was United States District At torney in 1863, and was first elected a judge of the Supreme Court in 1872. He is succeeded in the Chief Justiceship by Hon. Samuel Maxwell, formerly an associate justice of that court. In this volume we notice the following decisions: A mistake or abbreviation in the name of a grantee in a deed does not necessarily invalidate it, but may be explained by extrinsic evidence: Aultman Manfg. Co. v. Richardson, p. 1. A bank is barred by the representations of its president: Kennedy v. Otoe Nat. Bk., p. 58. Parol testimony is not admissible to prove the surrender of leased premises: Kittle v. St. John, p. 73. To what facts the cross-ex
amination of a witness must be restricted: Davis v. Neligh, p. 84. The employment of an attorney by the state not valid unless expressly authorized by law: Bradford v. State, p. 109. A contract to operate in grain options is void: Rudolf v. Winters, p. 125. The written agreement of attorneys, or those entered into by them in open court, in regard to the disposition of causes will be enforced, but oral agreements out of court will not: Rich v. State Nat. Bk., p. 201. Where one week's publication of a city ordinance is required, one publication fills the requirement of the law: State v. Hardy, p. 377.
The case of Knapp v. Gass, 63 Ill. 492, decided that the homestead "should contribute to dower as well as the other property." This decision was rendered June 18, 1872. Section 37, Rev. Stat. of Ill. 1877, ch 41, in force July 1, 1877, provides that "the surviving husband or wife shall have the homestead or dwellinghouse if he or she desires, and such allotment shail not affect his or her estate of homestead therein; but if the dower is allotted out of other lands, the acceptance of such allotment shall be a waiver and release of the estate of homestead of the person entitled to dower, and his or her children, unless it shall be otherwise ordered by the court." By a former enactment, in force July 1, 1873, the right of homestead became an estate and exempt from the laws of "conveyance, descent and devise," as well as from payment of debts. Rev. Stats. 1877, ch. 52, § 1. Under this act, until July. 1874, a dowress would be entitled to both estates regardless of the penury of a child or heir of the deceased, and the statute of 1874 was doubtless enacted with a view to prevent this injustice. And the law would therefore seem to be that, "unless otherwise ordered by the court," it would be error to take a decree for both dower and homestead out of independent parcels of the same estate, where the dower interest is of more than $1,000 value; since if the dower is assigned out of other lands than that occupied by the same homestead, the latter is waived. In such cases, the two estates, to the extent of $1,000, should occupy the area. This rule accords with the principle of justice which doubtless led to the passage of the act above quoted. It may be argued that even following a literal construction of the laws above cited, the estates of dower and homestead may be set off so as in part to
occupy different lands where the dower estate is worth less or no more than $1,000, provided the estates each include the dwelling-house; and this although the court has not decreed that such an assignment shall constitute no "waiver." But the answer is that, in view of the law and the reasons for its enactment, such a provision would be unjust and unreasonable. The law in question should be construed to meet the beneficient design that promoted its enactment. And "where the reason ceaseth there the law ceaseth also." Where, therefore, the court does not "otherwise provide," under the law of 1874, the case of Knapp v. Gass has no application, since a different rule is provided by statute. But suppose the court to decree that the acceptance of dower in some other part of an estate shall constitute no waiver of the homestead estate of the doweess, which may frequently be done from highly deserving considerations. How should the two estates be set off? Such an event would place the case precisely as it would have been before the act of 1874 was passed, and there being no other rule, that declared in the case above cited must apply, and the "homestead should contribute to dower as well as the other property." This can only be done by first assigning the estate of homestead; 2d, set off one-third of that estate as dower; 3d, out of the general estate, exclusive of the homestead estate, assign one-third, according to quantity and quality as dower. J. N. S. Quincy, Ill.
[7 Cent. L. J. 179.]
A placed B in possession of the land purchased by the latter, under a deed with a mistaken description. B then obtained what he purchased under a deed which, as between A and B, would be reformed on proof of the mistake, by decree for further conveyance. As between A and B, the remedy of the latter was, if procecdings became necessary, in equity to reform the deed. But B relies on his deed, without using that diligence which could have discovered the mistake, and conveys to C, taking back a consideration mortgage on the wrong premises, thereby falling into the same mistake, on his part, which A had committed. This was his mistake. He had no right to continue the mistake, since he, ex necessitate rei, could have discovered it by due inspection of the records. He chose to sell the land without this inspection, which, if had, would have enabled him to protect himself, both as against A, and also in this act of his own, to wit, a sale proected by a mortgage for the purchase-money; but he negligently falls into the mistake of another, and makes it his own act. His remedy, now, is against his vendee on the covenants of the mortgage, and if there be none, or none covering the case, or if there be no personal bond or obligation of the vendee, he is remediless, since he did not use diligence in ascertaining and enforcing his rights as against A, while in possession of the land, and he was equally negligent (concedendum) in providing for them as against C. Had he sought profesfessional aid in the first instance, or advice later, he would doubtless have escaped the slough of despond in which he seems fastened. And evidently the case of B is the ordinary case of one who "knows all about it himself," and grudges the comparatively trifling fee for professional aid, which would have protected him in the end from loss. M. S.
The answer of D to question No. 54 is all good enough, so far as it goes, but it does not reach the case I put in the statement of the question. The court undoubtedly erred in not reforming the mortgage. There is no error of any kind properly taken on the record. So an appeal is out of the question. B has
no remedy against A. I holds under order of court all properly made, so far as B is concerned. A was made a party to the foreclosure by B, in his suit against C to foreclose. A stood by failing to defend-after he knew of his own mistake. B's remedy is gone entirely, unless he can maintain an action against A, on the ground of mistake. Can he do this? J.
[7 Cent. L. J. 14.]
A conveyed to B the N. 200 feet of block 34, and in October, 1877, B conveyed to D. If the conveyances from A to B and from B to D were declared void, and A and wife were deceased, the title would vest in the heirs of A and descend to then, subject to the incumbrances placed by A, in his lifetime. To say that the title would still remain in D, as assumed by the question, would be paradoxical. D could not set up homestsad exemption, as against the creditors of A, nor against his own creditors, because his title was declared void; and E, the judgment-creditor, in asking to have D's title to the west 75 feet set aside, is simply asking for what has already been done.
HON. ELIJAH H. NORTON has been re-elected to the Supreme Court of this state.--The annual meeting of the St. Louis Bar Association was held on the 4th inst. The following officers were elected for the ensuing year: Alexander Martin, President; Alonzo W. Slayback, Henry Hitchcock and George W. Stewart, Vice Presidents; J. C. Withrow, Secretary; John W. Dryden, Treasurer. A report on the jury system in St. Louis was read, and the question of a change in the practice act of this state discussed.The following interesting suit was lately instituted in the United States Circuit Court, for the District or Louisiana. A took a prominent part in the Rebellion, consequently his property in New Orleans was confiscated and sold. But, before its sale, he (A) went to New Orleans, took the oath of allegiance to the United States government, and attended the sale and bought his own property. Soon afterwards he sold one piece of property, being joined in the sale by his wife, to B. A soon afterwards died and his wife comes in and claims that, inasmuch as the sale was one of confiscated property, that A only acquired a life's interest in the property, and hence the transfer made to B was only to exist during the life of A. Eminent counsel have been retained on both sides, and the decision is awaited with much interest. — -A subsariber sends us a copy of a petition recent ly filed in an Iowa court. It is as follows: "Comes now the plaintiff in this case by his attorney and for cause of action alleges: First. That said plaintiff holds a certain promissory note made and executed by said defendants, for a valuable consideration; that said note is for the principal sum of eighty dollars; that it is and has been due and unpaid for the term of nearly four years. Second. That said defendants have been frequently importuned to pay said notes, and though said importunities have been made with the greatest mildness, the defendants have not only disregarded them, but have also resisted said importunities with great pertinacity; that the plaintiff verily believes that said defendants intend to evade the payment of said note. Therefore, said plaintiff prays that he may have judgment against said defendants for the amount of said note, with costs and twenty-five doltars attorney fees."
The Central Law Journal.
SAINT LOUIS, NOVEMBER 15, 1878.
53 Ib. 442; and utterly denied in Losee v. Buchanan, 51 N. Y. 476, 486. As to the use of fire, see Bachelder v. Heagan, 18 Me. 32; and Hewey v. Nourse, 54 Ib. 256. As to the use of gas, see Holly v. Gas Light Co., 8 Gray, 123; and Hunt v. Gas Light Co. 1 Allen, 343.
In Uquehart v. Brayton, 18 Alb. L. J. 371, before the Supreme Court of Rhode Island, A had made three successive mortgages of his realty to B, C, and D. He then sold his realty to E, describing the mortgages in his deed of conveyance, and adding the words, "which said mortgages are hereby assumed by E, as part of the consideration of this deed." Subsequently B, the first mortgagee, sold the realty under the powers of his mortgage. D, the third mortgagee, then brought assumpsit against E, the purchaser from A, for the amount of A's mortgage note to D. The question was whether the agreement between the defendant and the grantor inured to the benefit of the plaintiff as one of the mortgagees, so as to enable him to sue the defendant directly, in other words, whether it created any privity of contract between them. The court held that D was entitled to recover. The decisions on this question are conflicting, but many of the more recent cases support the right of the mortgagee to maintain the ac tion. Burr v. Beers, 24 N. Y. 178; Lawrence v. Fox, 20 id. 268; Joslin v. New Jersey Car Spring Co., 26 N. J. Law, 141; Bassett v. Hughes, 5 Reporter, 634; Twichell v. Mears, 6 id. 40; Lamb. v. Tucker, 42 Iowa, 118; Putney v. Farnham, 27 Wis. 187; Bristow v. Lane 21 Ill. 194; Bohanan v. Pope, 42 Me. 93; Vrooman v. Turner, 8 Hun, 78; Brown v. Roger Williams Ins. Co., 5 R. I. 394; Motley v. Manufacturers' Ins. Co., 29 Me. 337; Carnegie v. Morrison 2 Metc. 381; Brewer v. Dyer, 7 Cush. 337; but cantra, see Mellen v. Whipple, 1 Gray, 317; and Crowell v. Currier, 27 N. J. Eq. 152, the right of action being denied in the latter case, however, solely on the ground that a promise implied from the acceptance of a deed is a specialty. "The ground of decision" said the court "is various It is sometimes stated in these cases.
The liability of persons having the possession and control of tenements for damage caused by water negligently allowed to escape, was considered in the Supreme Court of Maine in the late case of Simonton v. Long. The plaintiffs with their stock of goods occupied the first floor, and the defendants the hall in the third story, together with the appurtenances thereto, including a urinal supplied with water. The faucet in the closet regulating the flow of the water into the urinal having been left wide open, and the efflux, from some cause, not being equal to the influx, the water overflowed the bowl and flooded the plaintiffs' store and injured his stock. The pipe which supplied the water was only one-third as large as the waste pipe, and the amount of water which passed through it at any time depended upon the head and consequent pressure. The plumber testified that "if no cigar-stump, tobacco-quid, or other obstruction got into the bowl, with an ordinary pressure of water it would not run over;" but "you could get pressure enough to run it over;" that the greatest pressure came at night. And if the self-acting stop-cock had been put in just before, instead of soon after the time of the overflow, there would have been no overflow. The defendants were held liable for the damage. In Moore v. Noedel, 34 N. Y., 527, the court "In such a case where the occupation and right to use the water fixtures are exclusive, the party is responsible for their proper use and proper care.' The English cases holding a party who stores water on his own premises absolutely liable for its escape unless excused by the act of God or vis major are Fletcher v. Rylands, 1 Exch. 265, 3 H. L. 330; Smith v. Fletcher, 7 Exch. 305; Nichols v. Marsland, L. R. 2 Exch. Div. (C. A.) 1, 4 Cent. L. J. 319. This doctrine has received a quasi approval in Ball v. Nye, 99 Mass. 582;ly and in Wilson v. New Bedford, 108 Mass. 261, 266; while it has been criticised in Swett v. Cutts, 50 N. H. 437; and in Brown v. Collins, Vol. 7-No. 20.
broadly maintained that when one person contracts with another for the benefit of a third, the latter, though not privy to the considera
tion nor cognizant of the contract when made, may yet maintain an action upon it. It is sometimes argued that the grantee's retention of a part of the price, on agreeing to pay the grantor's debt, makes the money retained a sort of trust fund, as to which the law implies a promise in favor of the creditor: or, again, it is said the promise may be regarded as made to the creditor through the medium of the grantor acting as his agent, so that, when he is informed of it, he may ratify and adopt it. This is equivalent to regarding the transaction as a novation, or, if not, we think it may be so regarded. The case stands thus: B is indebted to A. B sells land to C, who agrees, instead of paying the price in full, to assume the debt, or to become A's debtor in lieu of B. If A were present assenting, the novation would be consummated on the instant, but A, being absent, learns of the agreement afterward and assents to it by bringing his action. Why may we not hold the novation consummated by the assent so given, as effectually as if given on the instant? If it be said that in order to create a privity between A and C the assent must be mutual, the answer is that C had already assented, and there was nothing wanting but A's assent to perfect the novation. To reach such a conclusion it is only necessary to make certain presumptions which are so appropriate to the nature of the transaction that the law can readily allow them."
IN Perkins v. Guy, recently decided by the Supreme Court of Mississippi, the question was elaborately argued whether the statute of limitations of the place in which a contract is made can be pleaded in bar in a foreign jurisdiction where both parties were resident in the former place during the whole statutory time. The court decided in the affirmative. The common-law rule was that the time of the limitation of actions on contracts depends on the law of the forum, and not on the law of the state or country where the contract was made. In 1705 the lord keeper applied the English statute to a judgment which had been recovered in France. Duplex v. De Rosen, 2 Vern. 540. In an early case at law, Williams v. Jones, 13 East, 439, Lord Ellenborough made the distinction which has ever since been followed in England. According
to the law received in the foreign court, there was only an extinction of the remedy, “but there is no law or authority that where there is an extinction of the remedy only in the foreign court, that shall operate, by comity, as an extinction of the remedy here also." "If it go to the extinction of the right itself, the case may be different." In one of the earliest cases in New York, the defendant pleaded in bar the statute of New York, which was six years; the plaintiff replied that the contract was made in Connecticut, where the statute was seventeen years. The court applied the New York statute. LeRoy v. Crowninshield, 2 Mason, 157, Mr. Justice Story stated, as the inclination of his mind, that where the remedy was completely barred by the "lex loci contractus, there was a virtual extinction of the right, which ought to be recognized in every other tribunal." But many years afterwards, perhaps after fuller investigation, and more mature consideration, the same eminent jurist, in the Conflict of Laws, said: "That, as the law of pre
In the case of
scription of a particular country, even where the contract is made in such country, forms no part of the contract itself, but merely acts upon it ex post facto, in case of a suit, it cannot properly be deemed a right stipulated for, or included in the contract." Mr. Angell, in his work on Limitations, page 63, section 66, says: "The doctrine of the common law, beyond all doubt, is firmly fixed, that the limitation prescribed by the lex fori, in respect of remedies, must prevail in all cases of personal actions." In an elaborate note appended to the report of Andrews v. Herriott,
4 Cow. 510, is a copious collection of the authorities on the subject. The case of Townsend v. Jamison, 9 How. 407, presented the precise question, whether a cause of action having accrued in Mississippi, and been completely barred there, the bar of the Mississippi statute might not be pleaded in a court of Louisiana; and the decision was that it could not. That is the settled rule in the Federal judiciary. McMoyle v. Cohen, 13 Pet. 312; McCluny v. Silliman, 3 Pet. 276; Hawkins v. Barney, 5 Pet. 457; Bank of United States v. Donnally, 8 Pet. 361. In the course of the judgment in Townsend v. Jamison, supra, the learned judge said: "It has become a fixed rule of the jus gentium