« ForrigeFortsett »
C. C. 662, and Barnesley v. Powell, Amb. 102. The principal ruling in Perkins v. Perkins has been recently repeated in Steel v. Chester, 1 Tenn. Leg. Rep. 211.
Considering it, then, as settled that the lien of the attorney may be declared in the suit in which the services are rendered, and that the attorney must then enforce the lien by appropriate proceedings" in a court having jurisdiction of the question," the complainants were entitled to file the present bill. For the enforcement of equitable liens belongs to this court, and the appropriate mode of proceeding is by original bill. Clearly, too, the lapse of time since the services were rendered and the lien declared offer no obstacle to the assertion of their rights as between them and their late client, Bigley. In the case of a personal judgment, the lien of the attorney may be extended beyond its rendition by notice to the debtor, so that it will not be lost by several years' delay. Stone v. Hyde, 9 Shepley, 318. And then the lien is binding upon an assignee of the judgment. Cunningham v. McGrady, 2 Baxt. 141. In like manner, if the title of the client to the land depends upon the decree in which the lien is declared, so as to be notice to any person acquiring a title under the debtor, or if the declaration of the lien be itself notice, then the delay would not prejudice the right as to any person subject to be affected by notice. But the argument is that the lien, like that of the vendor who has parted with the title, is purely equitable, and that creditors are not affected by notice. Roberts v. Rose, 2 Hum. 145, and Fain v. Inman, 6 Heisk. 5.
The attorney's lien, according to the decision in Hunt v. McClanahan, dates from the commencemencement of the suit in which the services were rendered, the pendency of the suit being itself notice to all persons of the existence of the lien, and the court add, "the lien may be preserved, and the notice extended by stating its existence in the judgment or decree." It has not been contended, and, I presume, can not be that the notice to all persons" given by the pendency of the suit would not affect the creditors of the client, as well as purchasers under him. The lien would, otherwise, be of little value. But if the notice given by the pending suit includes creditors, the notice extended by stating the existence of the lien in the decree must equally include creditors. The court manifestly contemplate that the notice thus extended shall have all the efficacy of the notice by lis pendens. In this view, the point must be considered as settled by the decision of the supreme court in Hunt v. McClanahan. And the distinction between the lawyer's lien and the vendor's lien is, that the former is an actual lien declared by record which fixes the right and is "notice to all persons," while the latter is "a mere capacity to acquire a lien " by taking proper proceedings, and not a lien until these proceedings are taken. Fain v. Inman, 6 Heisk. 15.
It is assigned as a ground of demurrer that the bill does not show any registration of the decree declaring a lien, our registry laws looking to notice of liens on realty in that rode to affect the
rights of creditors. But there is no provision for the registration of such a lien, nor of a decree, in the attitude of the decree in question, if we treat the declaration of the lien as a judgment or decree. The Code, § 2030, sub-sections 15, 16, 17, only provides for the registration of judgments or decrees when rendered in a county other than that of the defendant's residence, where it divests and vests title, and where the object is to acquire a lien on equitable estates. But this decree was rendered in the county of defendant Bigley's residence, does not purport to divest and vest tile, and the estate sought to be reached is legal, not equitable. Moreover, the Code, § 2075 only makes instruments, which are required by law to be registered, void, if unregistered, "as to existing, or subsequent creditors of, or bona fide purchasers from the makers without notice." But a right acquired by judicial decree on the property of the client can scarcely be construed to be the act of the latter so as to bring him within the word "makers" of the statute. And judicial sales, it is settled, and a fortiori judicial charges and liens, are not within the purview of the registry laws. Floyd v. Goodwin, 8 Yer. 484; Dromgoole v. Spence, at Nashville, February 16, 1878. And the declaration of a lien is clearly not a judgment which must be executed within the year in order to its efficacy, for the judgment contemplated by the statute is a moneyed demand for which an execution may issue. Code § 2982. It is a more charge, and not " a determination of the rights of the parties," under the Code, § 2970. Whatever may be the effect of declaring the lawyer's lien, and I am bound by the decisions to give it some effect, there is nothing in the statutes which requires it to be registered in order to have that effect, nor limiting its duration to any specified time short of the ordinary period of limitation applicable to the particular demand.
The demurrants in this case, upon the facts on which their rights have been rested in argument, and which I am taking for granted although not stated in the bill, are judgment-creditors of Bigley. "No man," says the master of the rolls, "can call a judgment-creditor a purchaser; nor has such creditor any right to the (debtor's) land; he has neither jus in re nor ad rem. All that he has by the judgment is a lien on the land." Brace v. Duchess of Marlborough, 2 P. W., 491. At law, a judgment is a general lien on the legal interest of the debtor in his real estate, but in equity that general lien is so controlled as to protect the rights of those who are entitled to an equitable interest in the land, or the proceeds thereof, or who have an equitable lien or charge equally as meritorious as that of the judgment-creditor. The court of chancery will protect the equitable rights of third persons against the legal lien, and will limit that lien to the actual interest which the judgment-debtor has in the estate. Burgh v. Francis, Finch 28; Finch v. Earl of Winchelsea, 1 P. W., 282; Matter of Howe, 1 Paige, 125; Keirsted v. Avery, 4 Paige, 15; Brown v. Pierce, 2 Wall. 205, 218. And a purchaser under the execution in such case with notice certainly, and in some instances without notice, will take subject to the equity. Or, to use the language
of our own supreme court, a purchaser at execution sale takes precisely as the defendant held, subject to all equities that he was, and liable to convey to others as he was. Berry v. Walden, 4 Hayw. 174; Whitworth v. Gaugain, 3 Hare, 416, 425; White v. Carpenter, 2 Paige, 217, 267; Moyer v. Hinman, 13 N. Y., 180; Siemon v. Schurck, 29 N. Y. 598; Freeman v. Mebane, 2 Jones Eq. 44. And, e converso, an equitable or imperfect lien or title, which will be good against the defendant in a judgment, is equally good against the judgment-creditor, or purchaser with notice under the judgment. Bank v. Campbell, 2 Rich Eq. 191; Delaire v. Keenan, 3 Des. 74; Hoagland v. Latourette, 1 Green. Ch. 254, Gouverneur v. Titus, 6 Paige, 347. It was upon these general principles that the lien of a vendor for unpaid purchase-money, although he had parted with the title, was preferred in equity to the claim of a judgment-creditor, or a purchaser under his exeeution. 2 Sto. Eq. Jur. § 1228.
The policy of our registration laws has been allowed to overrule the general doctrine in the case of this particular lien, although not embraced within the letter of these laws. But a different conclusion has been reached in relation to other equities, resting upon the same principles, where the analogy of the registration laws was less obvious. Thus, the equity of a joint owner of real or personal property to be re-imbursed the excess of his expenditures in the purchase or improvement of the joint property, or otherwise created, is held to be superior to the right of a judgment-creditor of the co-owner seeking satisfaction out of his interest. Colman v. Pinkard, 2 Hum. 185; Sweat v. Henson, 5 Hum. 49; Williams v. Love, 2 Head, 80; Withers v. Pemberton, 3 Coldw. 56. So, of the lien of a partner on partnership property, without regard to the question of the legal title, as against individual creditors of the other partner. Haskins v. Everett, 4 Sneed, 531, and other cases ut supra. So, of the equity or trust resulting from the payment of the purchase-money. Thomas v. Walker, 6 Hum. 93; Sandford v. Weeden, 2 Heisk. 81. So, of the lien of a trustee for advances, or expenditures for the benefit of the trust estate. Shacklett v. Polk, 4 Heisk. 113; Morrison v. Morrison, 7 D. M. & G. 226; Perry on Trusts, § 907. The lawyer's lien seems to fall within these classes, rather than within the analogy of the vendor's equity. For it is difficult to see how the policy of the registry laws can affect an equitable lien which is not required, nor authorized to be registered; which, it is to be hoped, is "not quite a myth," and which is an actual lien judicially declared, and not mere capacity to acquire a lien."
The underlying principle of the decisions touching these equitable liens as against creditors is, that the creditor's right is to subject the property of his debtor. He has no right to subject the interest of a third person in the property of the debtor, even if it be a mere lien or equity. All the authorities agree that, independent of the registration laws, the creditor's equity is, at most, only equal to the equity of the third person, in which case the fundamental rule is, qui prior est in
tempore potior est in jure. The doubt in the authority is, how far chancery will interfere to assert the prior equity against the legal title acquired under the junior equity with notice. 2 Lead. Cas. in Eq. 94, American notes to Basset v. Nosworthy. In the case before us the legal title has not yet been acquired by the demurrants. The complainants have the prior" equitable lien " with "notice to all persons" by the declaration of the lien in the decree of the supreme court. The demurrants have the junior equity acquired by the bill, decree and sale of this court, the sale not having been confirmed, nor of course any title vested. The superior equity is still with the complainants, except to the extent of the costs incurred by the demurrants before the filing of complainants' bill.
ENGRAFTING EXCEPTIONS ON STATUTES OF EXEMPTION.
To the Editor of the Central Law Journal:
I have noticed with interest an article in the AprilMay number of the Southern Law Review, devoted in part to the question, whether an insolvent debtor can convert his assets into that specific kind of property which the statutes declares shall be exempt; and a letter in the CENTRAL LAW JOURNAL of June 14, 1878, p, 474, on the same subject.
Considering how frequently the question might have been presented, it is strange how seldom it has been before the courts. This, I think, is because, in the numberless cases naturally involving the question, it has been thought by the profession until quite recently that the courts could not declare an exception to the right of exemption when the statute had made none. However this may be, the point is now dignified by a conflict of authority, and the frequency with which it must be met gives to it an importance which justifies its most careful consideration.
The constitution of Wisconsin requires the legislature to exempt a reasonable amount of property from seizure or sale for any debt contracted after January 1, 1849. Pursuant to this, the legislature has declared that the "dwelling-house" "owned and occupied by any resident of this state," shall be exempt from seizure or sale for "any debt or liability contracted since January 1, 1849." So far as this question is concerned, the provisions in other states, and as to other exemptions, are substantially the same.
An insolvent debtor residing within this state and purchasing a homestead which he occupies, as to any debt contracted since January 1, 1849, is certainly within the language of this statute. There is no possible way by which such a case can be withdrawn from the operation of the law but by creating an exception or proviso which will qualify every material clause in it, and which could hardly be expressed more briefly than this; provided, that if such dwelling-house is purchased whilst the owner is insolvent it shall not be exempt as to debts existing at the time of its purchase. That wonld be a stronger case of judicial legislation than has yet been attempted with any other statute. "General words in a statute must receive a general construction, and if there is no express excep. tion the courts can create none." "The proposition, however it may once have been held or considered, that the courts, upon what is termed an equitable construction or otherwise, may, against the plain lan
guage of the statute, and in opposition to the intent clearly expressed by the words, mitigate the 'violence of the letter' by introducing exceptions where the statute itself contains none, so as to relieve in cases of hardship or particular inconvenienee, has been too long and too frequently rejected to be now the subject of serious argument or doubt.". Dixon, C. J. in Duckling v. Simmons, 28 Wis. 276. The authorities cited in this opinion show it be in accordance with the rule elsewhere.
But not only the plain language, but the reason and policy of the statute require the allowance of the exemption, although acquired when the debtor was insolvent. The homestead law intends, to some extent, the protection of the debtor, but more than this the independence of the family, and through this the welfare of society which is its paramount aim. "The wife and children even more than the debtor are the intended beneficiaries of this legislation." See article by Judge Dillon, 1 Am. L. Reg. 646; Robinson v. Wiley, 15 N. Y. 494; Parsons v. Lionigston, 11 Iowa, 106.
Manifestly the debtor and his family need this asylum just as much whether he was insolvent when it was acquired or not. Surely the welfare of society requires that the independence of the family should be sustained by the influences of a home, whether it was founded during the adversity of prosperity of the debtor. And the hardship to the creditor is no greater in one case than in the other. The law says to the creditor that the debtor, who has no homestead, may acquire one which shall be exempt from any debt contracted since 1849, and the credit is given in view of this legal right of the debtor. The creditor has the same notice of the right of the debtor to a homestead, where the homestead is not yet acquired, as where it is acquired when the debt is contracted. The legisla ture deemed the hardship to the family and the evils to society that would flow from depriving the debtor of his home greater than the injury to the creditor caused by securing such home from seizure and sale to pay debts. And by apt words the legislature bas, in this statute, enforced this superior right of the debtor and his family by permitting the acquisition of a homestead without any limitation or exception concerning the debtor's financial condition at the time of its acquisition.
Although the homestead exemption is, perhaps, founded upon broader grounds of public policy than some of the exemptions of personal property, as to this question, there can be no distinction between the two. If a debtor, owing $10,000, and having $1,000 in cash, but no other assets, can not buy a home which will be exempt, he can not purchase with it furniture, clothing, or anything else, that will be exempt. He could not buy a coat or a pair of boots. For no limitation not found in the statute, as to kind or amount, can be adopted which is founded upon any principle. If the courts say such a debtor may buy $100 worth of clothing, but may not buy $500 worth of furniture and tools in trade, or a homestead for $1,000, what is that but making law? It is qualifying the general exception which is sought to be engrafted on the statute, so that that exception when fully expressed is more extensive than the law itself.
True, courts frequently recognize exceptions to rules of the common law generally expressed in imperative terms. The courts, however, do Lot create such exceptions. They are a part of the common law as much as the rule itself. This statute changes the common law, and for the courts to engraft upon it the proposed exception is as unjustifiable as it would be for them to make an exception to a rule of the common law when such exception never existed in the common law.
It is sometimes said it is fraudulent for an insolvent to convert his assets into exempt property. That can not be true if the policy and unambiguous language of the law authorizes it, to the extent which the law specifies the debtor may lawfully prefer his family to his creditors. The statute, I admit, is unwise in so far as it does not limit the value of the authorized homestead. The injustice of withholding a homestead of enormous value from creditors is, however, about the same, whether the debtor became insolvent before or after its acquisition. At any rate, the operation of the statute as to the kind of property exempted can not be affected by the limitation or want of limitation, as to value. The construction in this respect must be the same, whether the value be limited to one, ten or one hundred thousand dollars. The only decisions against the right to such exemption, where the question has been fairly and directly involved, have been in the inferior federal courts, where the question has arisen in the enforcement of the bankrupt act. The policy and language of the state statute were not discussed. Those decisions are Pratt v. Burr, 5 Biss. 36; Re Wright, 8 B. Reg. 431; Re Boothley & Gibbs, 14 B. R. 223. The case of Riddle v. Shuly, 5 Cal. 488, is regarded as overruled by Randall v. Buffington, 10 Cal. 493. See In re Henkle, 2 Sawyer, 305.
The contrary is held by Cipperly v. Rhodes, 53 Ill. 346; O'Donnell v. Segar, 25 Mich. 568; In re Henkle, 2 Sawyer, 305; Buffington v. Randall, 10 Cal. 493; North v. Shearin, 15 Tex, 174; McManus v. Campbell, 37 Tex. 174; s. C., 32 Tex. 442; Tucker v. Drake, 11 Allen (Mass.). 52. Of the text books, Bump on Fraud. Con. p. 242, and Smythe on Homesteads, §232, adopt the same view. The question seems not to have been noticed by any other text-book. The case of Tucker v. Drake, supra, is not cited by Mr. Bump or Mr. Ordway. The court say: "If a debtor, knowing that he is unable to pay his debts, purchases property exempt from levy on execution, he exercises a privilege which the law gives him and wrongs no one. If he buys provisions for his family, or a cow, or necessary clothing, he merely puts his property in a shape which the humanity of the law authorizes. And there is nothing to distinguish the exemption of a homestead from the like exemption of personal property. He conceals no
property. He merely puts his property into a shape in which it will be the subject of a beneficial provision for himself, which the law recognizes and allows." pp. 146, 147. GEO. G. GREENE.
offense than that charged in the affidavit. The court through SCHOLFIELD, C. J., say: "That the affidavit might have been amended, we have no doubt. It was in the nature of an information which, at common law, was always held amendable. In Rex v. Wilkes, 4 Burrow, 320, Lord Mansfield says: "There is great difference between amending an indictment and amending an information. Indictments were framed upon the oaths of a jury, and ought only to be amended by themselves, but informations are as declarations in the king's court. An officer of the crown has the right of framing them originally, and may with leave amend in like manner as any plaintiff may do.' This principle is equally applicable obviously to all prosecutions commenced by affidavit. It is in consonance with the spirit of modern legislation, in regard to practice, and we are unable to conceive of a single substantial reason why amendments should not be allowed to affidavits upon which criminal prosecutions before justices of the peace are predicated," The court hold, however, that the record does not show that the affidavit was properly amended so as to bring the offense within the statute, which reads: "Whoever keeps, or suffers to be kept, any tables or other apparatus for the purpose of playing at any game for money or other valuable things," etc. The court say in conclusion: "It is not required that in records of this character their should be that technical precision required in records of conviction, in prosecutions originating in the circuit court; still there should be enough to show with reasonable certainty that that, of which the party is convicted, is an offense under the law, and one of which a justice of the peace has jurisdiction." Reversed and remanded.-Truitt v. People.
TRESPASS-JUSTIFICATION - REPLEVY OF HOUSE BY OFFICER.-This was an action of trespass quare clausum fregit, brought by plaintiff against defendants, the declaration charging that the defendants forcibly and unlawfully entered upon plaintiff's close and removed therefrom his dwelling-house, the same being attached to the freehold, and being real estate. The defendants plead in substance that, acting as sheriffs and deputy-sheriffs, they seized the said dwellinghouse under a writ of replevin against plaintiff, which reciting the wrongful detention of the following goods and chattels, to wit: one-story frame dwelling-house," commanded them to "replevy and deliver the said goods and chattels to the plaintiff." The question presented upon the pleadings is whether the writ of replevin is a sufficient justification for the sheriff. The court, through SHELDON, J., say: "The sheriff but obeyed his writ, and did the very thing he was commanded to do. The law in such cases protects the officer. In 7 Metc. 257, Shaw, C. J., says: 'As a general rule, the officer is bound only to see that the process which he is called on to execute is in due and regular form and issued from a court having jurisdiction of the subject. In such case he is justified in obeying his precept.' It is asserted that there was here an attempt to replevy what was a parcel of the real estate of the appellant; that real estate is not the subject of replevin. The question is not what was the actual fact, but what was the officer justified in regarding as the fact. Although it ordinarily is attached to and forms a part of the realty, there may be circumstances existing in which it will be a personal chattel. Surely it was not for the sheriff to set up against this the ordinary presumption that the house was part of the realty and refuse to obey the writ. It did not belong to him to institute an inquiry whether or not the house was the personal property of the plaintiff. But he might act upon the writ itself as his sufficient authority, and if the defendant should thereby be wrongfully injured, his resort for redress should be to him who sued out the writ and not to the ministerial officer who obeyed
OF POSSESSION BY PLAINTIFF.-This was an action of debt brought by plaintiff against defendants, heirs at law of one M, on a penal bond conditioned, if the defendants should make to the plaintiff a good and sufficient deed of conveyance in fee simple, free from incumbrance, within sixty days from the 15th day of March, 1871, to certain real real estate-then the obligation was to be void. The breach alleged was that the defendants did not, nor would they deliver a good and sufficient deed of the premises within sixty days from the 15th day of March, nor at any time afterwards, but wholly neglected to do so. The defendants put in two pleas, alleging, in substance, that, after making the writing obligatory, and before the commencement of the suit, the plaintiff, under this agreement, entered into and took possession of the premises therein described, and remained in the occupancy of the same up to and long after the commencement of this suit, and that defendants executed a deed to said while premises, and that on the 17th day of
plaintiff was in possession of the premises, offered to deliver the same to the plaintiffs, etc. To these pleas there was a demurrer, which was overruled, and plaintiff appeals. Plaintiff contends that the pleas are defective, because they aver a tender of the deed after the sixty days, but adroitly avoid the breach assigned by plaintiff, by averring that while the plaintiff was in possession they tendered a deed. BREESE, J., who delivered the opinion of the court, says: "We think a full answer to the objections urged by plaintiff in error is, that the pleadings show that, at the time of the commencement of the suit, the plaintiff was in the actual and undisputed occupancy of the premises. While so in possession no authority was cited to show that she could maintain an action for the penalty of the bond. Plaintiff should, before suit brought, have restored the possession. It would not be just that she should retain the estate and recover back the purchase-money." Affirmed.-Long v. Sanders.
[Filed at Ottawa, June. 21, 1878.]
PARTNERSHIP-DISSOLUTION - NOTICE.- Opinion by DICKEY, J.: "Appellant and his brother, Freder ick, in 1868, formed a partnership and carried on a business which required the purchase of certain classes of lumber. They carried on this business until some time in 1869, say about eighteen months, and then appellant withdrew from the firm. There is no proof that appellant had any dealing of any kind with the firm while it existed. Some time in 1870 appellees began to sell lumber to Frederick, and from time to time to receive payments, and so continued to do some two or three years; and when that business was closed a balance was due appellants, and for that balance this suit was brought against both of the brothers, charging them as partners. Service was had upon appellant alone. He put in issue properly his liability as a partner. On the trial no proof was given tending to show either that plaintiffs had dealt with the firm while it was in existence, or that appellant had afterwards held himself out to plaintiffs, or to the world, as a partner, either affirmatively or by an acquiescence in known acts of his brother tending to that conclusion. It was insisted by appellees that Frederick had, in one mode and another, represented that appellant was his partner, and that on the faith of such representations appellees had given him credit. The court charged the jury that appellant, as an outgoing partner, was chargeable for subsequent debts, unless he had given public notice of the dissolution, or notice thereof had actually come to appellees before they gave the credit. The duty of a retiring partner to give notice of the disso
lution of the partnership is a duty which he owes to those only who had before that dealt with the firm. To strangers he owed no such duty. As to them he could only be charged as a partner (when, in fact, he was not), by showing that he in some manner continued to hold himself out to the world as such, or did so hold himself out to the parties relying upon that idea. This, of course, he might do in divers ways. If he knowingly suffered his name to be used in the firm name, or to continue on a sign, or to be used in bill-heads, or by permitting representations made to that effect, with his knowledge, to go uncontradicted. The proofs in this case do not show any fault of appellant in this regard. The ruling of the law on this question by the circuit court was erroneous, and for this error the judgment must be reversed and the cause remanded for a new trial. Reversed and remanded."-Nussbaumer v. Becker.
EVICTION-PROMISSORY NOTE - EXTENT OF ASSIGNOR'S LIABILITY.-1. An eviction is a turning out of possession, or placing a party in such a situation that his expulsion being inevitable, he voluntarily surrenders the possession in order to avoid expulsion. 2. The contract of the assignor of notes negotiable by statute, but not by the law-merchant, is a warranty that the maker is liable on the note and able to pay it. The liability of the assignor to the assignee, in such case, can not exceed the amount paid by the assignee on such contract, with interest from the time of payment. Opinion by Howк, J.-Black v. Duncan.
JUDGMENT-LIENS- NATURE AND EXTENT OF.-A judgment is not a specific lien on any particular real estate of the judgment-debtor, but a general lien upon all his real estate, subject to all prior liens, either legal or equitable. A judgment-creditor has no jus in re, but a mere power to make his general lien effectual by an execution and levy. A judgment-lien on land constitutes no property or right in the land itself; it only confers a right to levy on the land to the exclusion of other adverse interests acquired subsequent to the judgment, and when a levy is actually made the title of the creditor for this purpose relates back to the date of the judgment, so as to cut out intermediate incumbrances. The attaching of the lien upon the legal title forms no impediment to the assertion of all equities previously existing over the property. The lien creates a preference over subsequent acquired rights, but does not inquity attach to the mere legal title to the land, as existing in the defendant at its rendition, to the exclusion of a prior equitable title in a third person. 57 Ind. 393. Opinion by NIBLACK, C. J.-Wharton v. Wilson, Admr.
RESULTING TRUST-MONEY DEPOSITED IN BANK. -A loaned B money, taking a mortgage on real estate to secure its payment. Afterwards B, wishing to borrow more money on the real estate, procured A to release his mortgage, agreeing that the money so borrowed should be held for A's use, and immediately applied to the payment of his debt. A released his mortgage and B secured from C more than enough money to pay A's claim, and deposited money in bank
in his own name. Before B had settled with A, B died insolvent, and the bank appropriated the money otherwise than to pay A's claim. Where a person, as an agent, has money of another in his hands and deposits it in a bank in his own name, the beneficial owner may recover the money or its value from the bank, where no rights of innocent persons have intervened. 57 Penn. St. 202. But on the facts stated, held, the title to the money did not vest in A so as to convert B into a trustee for him, nor had a trust attached to any definite part of the money which A could enforce against the bank. If the bank had had notice of all the facts, perhaps a case of specific performance of the contract to apply a portion of the money deposited by B to the payment of A's claim might have been made. Story's Eq. Juris. 759, et seq. Opinion by PERKINS, J.-Tullis v. First Nat. Bank of Attica.
PRO TEM. JUDGE -DEPOSITION- LANDLORD AND TENANT-POSSESSION UNDER PURCHASE.-1. Where the proceedings of the court below are sought to be reviewed by a case made, and the case made recitesthat the trial and proceedings were had before a judge pro tem.: Held, that the judge pro tem. is the proper person to sign and settle the case made, and held, that to make such signature proper as a part of the authentication of the case made, it is not necessary to set forth in the record the mode or reasons of the selection of the pro tem. judge, nor his qua'ification to the of fice. 2. A deposition to be read on the trial of a case in the district court must be filed at least one day before the day of trial; and the statute means thereby, that one clear day must intervene between the filing of the deposition and the commencement of the trial at which it is to be read; to properly compute the time within said statute, both the day on which the deposition is filed and the day of the trial are to be excluded. 3. Where possession is taken by a defendant of certain premises, for which rent is sued for, under an agreement with the plaintiff to exchange lands free from all encumbrances, and where each gives the other possession of his real estate, and the possession is continued by the defendant solely on the representations and promises of the plaintiff to consummate the trade by executing a deed and clearing off a mortgage-lien on the property occupied by the defendant, and the bargain fails of consummation by the refusal of the plaintiff to free his lands from the mortgage-lien and make the deed, and defendant is evicted under proceedings to foreclose the mortgage: Held, that the plaintiff can not recover in an action for rent for such occupation of the premises by defendant, as he can not, without the consent of the defendant, under such circumstances, convert him into a tenant, so as to charge him with rent. Opinion by HORTON, C. J.-Reversed. All the justices concurring.-Garvin v. Jen