Failure to furnish the assessors with the state- ment required by law, leaves it with the assessors to pass their judgment as to value of property upon same basis as upon individual property. Ib.
As to what will authorize an injunction to re- strain the collection of a tax, see INJUNCTION.
In an action upon the second of two notes, given upon consideration of the assignment of a judgment by the party receiving the notes, such assignment to be made upon the payment of the notes, an offer to assign must be shown before a recovery can be had. Berringer v. Wen- genroth. 47
The terms of a contract requiring the deliv- ery of bonds signed by Smith, as Governor, are not met by a tender of bonds signed by Smith, although the latter bonds may be good. Levy et al. v. Lurgess. 403
A parol sale of land with possession under it for twenty years makes a good title. Benedict v. Phelps. 150
When lands are sold under a contract of sale without a conveyance thereof, the legal title re- mains in the vendor. Smith v. Ferris. 163
Possession by a vendee is equivalent to notice of a claim. Chadwick v. Fanner. 197
The Indian title to lands in this State extends only to the right of occupation, and when they abandon possession, the right of possession at taches itself to the fee without grant. Howard et al. v. Moot.
The court will take judicial notice of the ex- tinguishment of the Indian title.
Where a party is in actual possession of pro- perty which he holds under a deed of trust, it is necessary to show fraud or mistake to impeach his title. Hill v. Heermans.
As to remedy where title fails, see EQUITY.
of a tax to pay railroad bonds which were ille- An action will not lie to restrain the levying gally issued, Comins et al. v, Board of Super- visors of Jefferson Co.
Where legislative authority has been given to a municipality, or to its officers, to subscribe for the stock of a railroad company, and to issue municipal bonds in payment, but only on some voring the subscription, and where it may be precedent condition, such as a popular vote fa- gathered from the legislative enactment that the officers of the municipality were invested with power to decide whether the condition pre- cedent has been complied with, their recital that it has been, made in the bonds issued by them and held by a bona fide purchaser, is conclusive for the recital is itself a decision of the fact by of the fact and binding upon the municipality, the appointed tribunal. Eves. Town of Coloma v. 228
In a suit upon negotiable town bonds, the town is bound by the recitals in the bonds, and in its official records. Town of Moultrie v. The Rockingham Ten Cents Savings Bank. 271
Where legislative authority has been given to a municipality to subscribe for the stock of a in payment of the subscription, on the happen- railroad company, and to issue municipal bonds ing of some precedent contingency of fact, and where it may be gathered from the legislative to execute the bonds were invested with power enactment that the officers or persons designated to decide whether the contingency had hap- necessary precedent to any subscription or issue pened, or whether the fact existed which was a of the bonds, their decision is final in a suit by the bona fide holder of the bonds against the municipality, and a recital in the bonds that the complied with is conclusive. Marcy v. Toon- requirements of the legislative act have been ship of Oswego,
The legislature has power to pass an act ratify. Chap. 809 of laws of 1871 is constitutional. ing bonds illegally issued. Holton v. Town of Thompson.
Where a petition of the tax-payers of a town, signed by a requisite number, is made to bond said town in aid of a railroad, the statute gives no right which the railroad company can enforce have entered into a contract pursuant to the against the town, even where the Commissioners provisions of the act of 1870. Buffalo & James town R. R. Co. v. Weeks et al.
Where a county judge has decided that town bonds shall be issued for railroad purposes, and appointed commissioners for that purpose, and a the commissioners afterwards issue the bonds certiorari is granted to review his decision, and
When bonds are sold under a contract of sale without a conveyance thereof, the legal title re- mains in the vendor. Smith v. Ferris. 163 Damages for opening a highway through such land should be awarded to, and all releases Ib. should be made by the vendor.
A husband who, with his wife, resides in a house built by him, upon his wife's land, the house and land being under his control, may maintain trespass for breaking and entering the house. Alexander v. Hard et al.
Under such circumstances, the presumption is rather that the wife is residing in the house by reason of her marital relations, rather than that Ib. she claims control or possession.
A person has no right to place a family in- fected with small-pox in an unoccupied dwelling house belonging to another, without the consent of the owner, or authority from the board of health of the town, although such removal of the family may be necessary to prevent the spread of the disease. Beckwith et al. v. Sturte- 187
As to costs in cases of trespass, see COSTS.
As to measure of damage in actions of trover, see DAMAGES.
As to when action for trover will lie, see Ac-
The holder of a sheriff's certificate of sale under judgment, which had run only fourteen months, is not entitled to the surplus moneys arising on a sale under a trust deed, which had been recorded prior to the judgment. Solt et al. 98 v. Wingart.
A trust-deed in and by which the grantor conveys all his real and personal property, in order to be relieved of the care of it, does not include family portrait. Hill v. Heermans. 304 Such a deed should be líberally construed. lb.
See also MARRIED WOMEN.
A trustee may purchase from the cestui que trust, under circumstances amounting to a fair and distinct dissolution of the trust at the time of the purchase. Graves v. Waterman, admr. 186
Under an agreement by which several lienors of land combined to perfect title in one who was to pay all the liens out of the future proceeds of said property, under which agreement title was perfected and rents collected, the one in whom the title became vested is bound to account, as
trustee, for the rents so collected; the words "future proceeds" are sufficiently comprehensive to include rents and profits. Belmont v. Pou- vert. 300
A trustee who has faithfully performed his duty as such cannot be removed on application of the cestui que trust. Hull v. Mitchison. 339
The period of the performance of his duty having passed, and there being no possibility of further performance, a trustee is bound to ac count for the trust estate, and is liable for any loss to it by his misfeasance or neglectful non- performance. Heims v. Goodwill.
trust is created for each of testator's children living at his death in one-seventh part of the estate, which ceases with the life of the cestuis que trust. Bruner v. Meigs et al., trustees. 553 Two of the children having died before the testator, their shares went to the heirs of testa- tor and not to the executors in trust. The shares vested immediately in those entitled in remainder, and did not depend upon the power given the executors to transfer such shares, and the vesting could not be defeated or delayed by the neglect or omissions of those vested with the power. Ib.
Where an agent, who is mployed to effect a loan on bond and mortgage, retains a part of such loan, upon the pretense that a portion the eof is for his services and the balance a bonus for his principals, they not receiving any portion of the part so retained, the mortgage is not usurious. Estevez et al. v. Pur y et al. 552 A party who purchases land subject to a purchase price, is the purchaser of the equity of fense that the note secured by the mortgage was usurious. Cramer v. Lepper. 587 MORTGAGE. As to defense of usury in foreclosure, see
As to consideration for undertaking in re-mortgage which he is to pay as a part of the plevin, see REPLEVIN.
As to justification of sureties, see ATTACH-redemption merely, and cannot set up as a de-
The usurious interest taken by a national bank in previous transactions only will be a matter of set-off. Ib.
The whole interest paid can be recovered only in an action as a penalty of debt. Ib.
It is not usurious to insert in a note, as liqui- dated damages, that after maturity it shall bear
Where the vendor of personal property, such as cigars, has done all in his power to complete
interest in excess of the legal rate. Downey its delivery to vendee, and thereafter exercises
It is not usury to insert in a promissory note that it shall draw interest, after maturity, at a rate in excess of that allowed by law. Kilbreth, trustee, v. Wright. 127
State banks, when usury is taken, only forfeit the excess of interest. Bank of Monroe v. Fin- ley.
The defense of usury is only a partial one.
An usurious agreement to extend the ment of a debt does not vitiate the debt securities; the agreement alone is void. Real Estate Trust Co. v. Keech. 327
no control over and asserts no possession in the property, the vendee's title is perfect. Straus et al v. Minzeshei»er.
The relative rights of vendors and purchasers of cigars are not affected by the Act of Congress of July 20, 1868, requiring the boxing and stamping of cigars before sale, so as to invalidate, as between themselves, their contract of sale for a supposed violation of the act. Ib.
10. A sold note signed by the broker of both par- pay-ties necessarily imports a purchase of the arti- or its cles therein described, and binds the vendee as well as the vendor. Butler v. Thomson et al. 295 As to obligation of vendor of the good will of a business, see CONTRACT.
The amount paid as consideration for such an agreement should be applied as part payment on the original debt.
As to liability of vendor of town bonds which are afterwards deciared void, see TOWN BONDS. As to effect of fraudulent representations on credit given on a sale, see FRAUDS.
Affidavit and notice to change venue for con- venience of witnesses should set out the grounds for belief that witnesses are material. Kelly v. Maltham et al. 173
Whether an order of special term changing place of trial for convenience of witnesses is ap- pealable, quære. Kellogg v. Smith. 431
Where papers under such an order are trans- mitted from one department to another the ap- peal must be taken in the latter. Ib.
An action to compel the assignment of a bond and mortgage is local, and must be tried in the county where the land is situated. Dings v, Parshall. 456
A declaration in the recognizance by which the prisoner is released on his own signature, that he elects to be tried by the Court of Special Sessions, no subsequent demand for trial by jury being made, is a waiver of the right of trial by jury. In the matter of Swan. 114
The looal agent of an insurance company who has authority to take applications and collect premiums and transmit them to the company, cannot waive compliance with the condition of a policy requiring proof of loss to be made with in a specified time, where the policy required all waivers and modifications to be in writing and signed by an officer of the company. Van Allen v. Farmers Joint Stock Ins. Co.
An agent of an insurance company may waive by parol a condition in a policy, even where the policy requires any waiver to be endorsed on the policy. Newton v. Allemania Fire Ins. Co. 599
As to waiver of submission of questions to the jury on trial, see PRACTICE.
As to waiver of irregularity in service, see
The transfer of a warehouse receipt, although in blank, and the transferee unknown to the warehouseman, yet if the latter have notice of transfer, he becomes the bailee of the transferee, and is bound to hold the deposit for him as owner. Central Savings Bank v. Garrison. 301 Where a warehouseman, having general no- tice of the transfer of a receipt given by him, permits the property to be taken from him by legal process, he will be liable to the transferee for the amount advanced by him on the receipt. 1.
A bequest of money to a legatee for her sup port during her natural life and with power to use so much of the principal as might be neces- sary for that purpose, with a remainder over to the testator's children, is valid. Smith et al. v. Van Nostrand. 228
Where answers are responsive to direct questions asked by an insurance company, they are to be regarded as warranties, where not It is competent for the testator to make the responsive, but volunteered without being call-life legatee custodian of the money, in which ed for, they are mere representations. Buell v. case such legatee becomes the trustee for the the Conn. Mutual Life Ins. Co.
Ib. A condition in the will in restraint of the sec ond marriage, whether of a man or woman, is not void. Allen v. Jackson. 308
The defendant having sold a cow to plaintiff, a farmer, with a warranty that she was free from foot and mouth disease, and the plaintiff having placed the cow with other cows, whereby the latter became infected with the disease and Devise to C. M. for life, and in the event of died, the defendant is liable for the entire loss. his leaving a son born or to be born in due time Smith v. Green. 238 after his decease who should live to attain the
age of twenty-one, then to such son and his heirs if he should live to attain twenty-one, with remainder over: Held, That on the death of C. M. his infantson took a vested estate in the devised proper ty, subject to be divested if he should die under twenty-one. Muskett v. Eaton. 330
In proceedings to have a will admitted to pro- bate, an inquisition of lunacy previously found raises a presumption of testator's incapacity, which it requires some evidence to overcome. Searles et al. exrs., v. Harvey et al. 359 The attestation clauses to a will in the pre- cise form provided by statute, are not essential prerequisites to its validity, nor is the clause de- claring the selection of the executor. Sisters of Charity, &c., v. Kelly et al.
Where the signature of the testator occurs after the disposing clause in the will, and be fore the attestation clauses, in a blank in the last clause of the will appointing the executor, the signature will be regarded as a signing at the end of the will, according to the provisions of the statute. lb.
In construing a bequest under a will, the in- tention of the testator from the whole will must govern. Watrous v. Smith. 404
A bequest that executors sell all personal and real estate, convert same into money and pay to a person named interest on $8,000 of sum real- zed, is a special legacy, and not demonstrative.
the exccutors shall place the proceeds of collec- The provisions of a will which provides that tion of debts due testator and all his property real and personal at interest on bond and mort- gage or otherwise, as in their judgment they may deem best, and that the proceeds, rent, in- come, or interest should be used for the support of testator's wife and children, and devising and bequeathing all his property to the children on the death of the wife, are too indefinite to au- thorize a conclusion that the executors were bound to sell the real estate in any event. Gour- ley, admr. v. Cam, be le: al. 542
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