was barned, and not replaced, is waived by the | St. 1894, c. 73, tit. 4, providing for the perpetuasuccessor to the grantor's interest by his after- tion of testimony.--State v. Elliott (Minn.) 952. wards laying down a part of the fence.-Bonniwell v. Madison (Iowa) 530. DESCENT AND DISTRIBUTION. While it is a general rule that no demand for performance of a condition subsequent is neces. See, also, “Executors and Administrators"; sa ry, yet, where there is an evident waiver of “Homestead," $ 2. performance by the immediate grantor of the Inheritance by, from, or through bastards, see party seeking to enforce the forfeiture, a de “Bastards," $ 1. mand is necessary before the right of re-entry exists.-Bonniwell v. Madison (Iowa) 530. 8 1. Persons entitled and their respecA deed conveying "a piece of timber” held to tivo shares. convey the land on which the timber was stand Evidence held not to show election by widow to ing.-Godden v. Coonan (Iowa) 852. take homestead in lieu of her distributive share. -In re Lund's Estate (Iowa) 1018. Exception in deed reserving right of way for railroad construed.-Heinzman v. Winona & St. Judgment for plaintiff in action against heirs P. Ry. Co. (Minn.) 956. on bond given to secure distribution held justified by the evidence.-Olson v. Royem (Minn.) 818. A quitclaim deed passes only interest of gran. tor subject to equities against him.-Arlington $ 2. Rights of heirs. Mill & Elevator Co. v. Yates (Neb.) 677. Evidence held not sufficient to show that conSurrender of unrecorded deed by grantee to taken in the name of his son, were an advance veyances purchased and paid for by a father, but grantor will not reinvest title in hiin.--Brown v. ment.--Culp v. Price (Iowa) 818. Hartman (Neb.) 776. Grantee in quitclaim deed does not take after the title to which was taken in the name of his Land purchased and paid for by a father, but acquired title of grantor.--Troxell v. Stevens (Neb.) 781. son, will be presumed an advancement, in the absence of proof that a trust was intended.Under Comp. St. c. 73, $ 51, after-acquired in Culp v. Price (Iowa) 848. terest inures to grantee, where deed purports to convey a greater interest than grantor owned.- during his last sickness, and induced by fraud Deeds executed by a husband to his wife -Troxell v. Stevens (Neb.) 781. and undue influence, may be set aside in egAfter-acquired title does not inure to grantee, uity, at the instance of the grantor's heirs, where deed to which he claims has been cancel after his death.-Disch v. Timm (Wis.) 196. ed by the court.-Troxell y. Stevens (Neb.) 781. § 4. Evidence. DESCRIPTION. The fact that a husband paid most of the price is not conclusive that the wife's name was in- of property conveyed, see "Deeds,” $ 3. serted in the deed as a grantee by mistake.-- devised or bequeathed, see "Wills," § 4. Bader v. Dyer (lowa) 469. DETINUE. See "Replevin." DEVISES. See "Wills." DIRECTING VERDICT. 88 9-19. In civil actions, see “Trial," 8 4. DISCHARGE. taken in replevin, see "Replevin," From employment, see "Master and Servant," 3. § 1. indebtedness, see "Compromise and SettleDEMAND. ment." From liability as guaraator, see "Guaranty," For payment of bill or note, see "Bills and § 3. Notes," $ 5. as insurer, see "Insurance," $ 14. as surety, see “Principal and Surety," 8 2. DEMONSTRATIVE EVIDENCE. In civil actions, see “Evidence," $ 6. DISCONTINUANCE. Of action, see “Dismissal and Nonsuit,” $ 1. DISCRETION OF COURT. Review in civil actions, see "Appeal and Er ror," $ 23. In pleading, see “Pleading," $ 2. DISMISSAL AND NONSUIT. At trial, see "Trial," $ 4. Dismissal of appeal or writ of error, see “Appeal See, also, “Witnesses." and Error," $ 19. Taking of testimony to perpetuate evidence re- & l. Voluntary. lating to, and contained in, the ballots cast at Plaintiff cannot dismiss case where he may election, which ballots were in sealed ballot box- be liable to a judgment against objection of es, and in the oflicial custody of the city clerk, defendant, though the recovery be only for under the law, held not to come within Gen. nominal damages.-Houck v. Linn (Neb.) 51. of property § 2. Involuntary. § 6. Operation and effect of divorce, Defect in initial name of party may be raised and rights of divorced persons. by motion to dismiss as well as by plea in On divorce from bed and board the divorced abatement.-Stever v. Brown (Mich.) 704. wife is barred from dower and homestead Where petition in suit against firm was rights, regardless of common-law rules.-Gallachanged to one against individual members, ger v. Gallager (Wis.) 145. there was a discontinuance of action against On divorce from bed and board and division the firm.-Wigton v. Smith (Neb.) 772. of property under the statute, relations of par ties as to property rights, except as preserved DISTRIBUTION. in the decree, are terminated.-Gallager v. Gal lager (Wis.) 145. Of estate of decedent, see "Descent and Distribution"; "Executors and Administrators," DOCKETS. § 5. of proceeds of foreclosure, see “Mortgages,” $8 Of judgments, see "Judgment,” $ 5. 9-19. DIVISION. DOMICILE. Of municipal corporations, see "Municipal Corporations," $ 1. Of parties as affecting venue, see "Venue," $ 2. Settlement of pauper, see "Paupers," 8 1. DONATIONS. DRAINS. In cities, see “Municipal Corporations," $ 11. not appearing.-Walton v. Walton (Neb.) 392. Slanderous charges against the wife held to DUE PROCESS OF LAW. constitute extreme cruelty.-Walton v. Walton (Neb.) 392; Berdolt v. Berdolt (Neb.) 399. See “Constitutional Law," $ 8. 8 2. Defenses. If the husband's cruelty is disproportionate EASEMENTS. to the wife's offense, her conduct affords him no justification.-Walton v. Walton (Neb.) 392. & 1. Creation. Prescriptive rights may be acquired in an alNo conduct on the part of a wife that does ley, though it was laid out as such.-Moon v. not threaten great and immediate bodily injury Mills (Mich.) 926. will justify the husband in heating or choking her.-Walton v. Walton (Neb.) 392. § 2. Use and obstruction. A grantor of a right of way cannot object to § 3. Proceedings and relief. Whether cruelty of the husband is so far he must pass over the land of a third person, a use thereof by the grantee on the ground that disproportionate to the wife's offense as to be from whom he has obtained no right of way.unjustifiable is a mixed question of law and Godden v. Coonan (Iowa) 852. fact.-Walton v. Walton (Neb.) 392. Abutting owner on a right of way, who erects Whether a wife's disobedience provoked the an obstruction which does not tend to injure the husband's cruelty is a questio of fact.-Wal- other owners, cannot be compelled to remove it. ton v. Walton (Neb.) 392. -Moon v. Mills (Mich.) 926. Defendant may file a cross petition for affirmative relief.-Berdolt v. Berdolt (Neb.) 399. EJECTION. Charges made in a petition for divorce do not furnish proper grounds to be pleaded in cross Of passenger, see “Carriers," $ 2. petition for affirmative relief. -- Berdolt v. Berdolt (Neb.) 399. EJECTMENT. § 4. Alimony and allowances. Where the husband was worth $24.000, held, See, also, “Real Actions." that $5,000 permanent alimony and counsel fees of $700 were proper.-Walton v. Walton § 1. Right of action. (Neb.) 392. Ejectment may be maintained against a purThe wife, by praying for a reasonable sum closure of mortgage.-Bowen v. Brogan (Mich.) chaser in possession under void or irregular foreas permanent alimony, elects to take such sum 942. in lieu of dower.- Walton v. Walton Neb.) 392. Plaintiff must recover on the strength of his Permanent alimony in the sum of $5,000 own title.-Comstock v. Kerwin (Neb.) 387. held excessive.-Berdolt v. Berdolt (Neb.) 399.8 2. Pleading. As no alimony can be granted wife on divorce An ouster may be admitted by the pleadings. for her fault, an agreement by the husband to --Carpenter v. Carpenter (Mich.) 703. pay her a monthly sum is a matter of con A plea of the general issue, together with evitract, and cannot be enforced by attachment dence that defendant had been in possession for for contempt.-Glynn v. Glynn (N. D.) 594. 12 years claiming title, held sufficient evidence $ 5. Custody and support of children. of ouster.-Carpenter v. Carpenter (Mich.) 703. Where a decree has settled custody of chil- A counterclaim for improvements in an action dren in one parent, the court will not give for possession of land held sufficient as against them into custody of the other by committing a general demurrer.-Parker v. Vinson (Š. D.) them to strangers with whom that other lives. 1023. -Norval v. Zinsmaster (Neb.) 373. A general denial of the allegation in defendDecree for divorce in favor of husband held ant's counterclaim for improvements puts in ispot to change statutory duties or rights touch- sue the value of the improvements.--Parker v. ing his son.-Glynn v. Glynn (N. D.) 594. Vinson (S. D.) 1023. § 3. Trial. absque injuria.-Kuhl v. Chicago & N. W. Ry. What constitutes permanent improvements is Co. (Wis.) 155. a question of fact.–Parker v. Vinson (S. D.) § 2. Proceedings to take property and 1023. assess compensation. § 4. Improvements. Pub. Acts 1895, No. 215, c. 25, § 17, which Where appraisement under occupying claim. provides for a trial in condemnation proceedings. ants' act has been made, unsuccessful occupant by a jury of the regular panel, violates Const. cannot be ousted until election of owner to art. 15. & 15, and Id. art. 18. $ 2, providing for a pay, and payment, or election to accept value jury of freeholders of the vicinage.-City of Mt. of land and refusal to pay same.-Troxell v. Clemens v. Macomb Circuit Judge (Mich.) 936. Stevens (Neb.) 781. On assessment of damages under Laws 1891, Under occupying claimants' act, occupant may c. 94, where there are no adverse claims, the not hare land and improvements sold to pay amount is the only issue.-Board of Education respective interests until time fixed_by court of Webster Independent School Dist., No. 101, for election by successful owner.-Troxell v. v. Prior (S. D.) 106. Stevens (Neb.) 781. § 3. Remedies of owners of property. Condemnation proceedings as to cemetery ELECTION. hed within the general scope of the corporate powers of the city charter, so as to render it Between testamentary provisions and other liable where it did not obtain the consent of the rights, see “Wills," $ 5. owner of the lot condemned.-Sacks v. City of Minneapolis (Minn.) 563. Owner cannot maintain ejectment where rail§ 1. Nominations. road company has, with his prior consent or acEvidence held to warrant finding that organ, Chicago, B. & Q. R. Co. v. Englehart (Neb.) quiescence, constructed track across his land.ization of Independent Democrats was merely 1092. a temporary movement in 1896, which died after the election of that year.-State v. District The right to compensation is assignable, Court of Ramsey County (Minn.) 28. and independent of subsequent ownership of Evidence held to show that certain person (Wis.) 155. the land. - Kuhl v. Chicago & N. W. Ry. Co. acted fraudulently in assuming to act as county committee of the Independent Democratic Where damages recoverable for land injured Party in calling county convention.-State v. by railway are dependent on statute, Rev. St. District Court of Ramsey County Minn.) 28. § 4222, subd. 3, applies.-Kuhl v. Chicago & N. W. Ry. Co. (Wis.) 155. Where claim for damages by building a road right in land, but a right to recover the value Nomination to public office by 4 out of 28 thereof, or damages recoverable in law.-Kuhl members of a political county committee held v. Chicago & N. W. Ry. Co. (Wis.) 155. invalid where no notice was given of meeting to other members.-State v. Smith (Neb.) 384. EMPLOYES. Pub. Laws 1891, Act No. 190, $ 22, requiring See “Master and Servant." ENTRY. Re-entry by landlord, see "Landlord and Ten. ENTRY, WRIT OF. See "Ejectment"; "Real Actions." EQUITY. A railroad constructed on land with permission Equitable estoppel. see "Estoppel," $ 1. of owner held a permanent structure, and right set-off, see "Set-Off and Counterclaim." to compensation is a personal claim, which will not pass to purchaser of the land except by ex- Particular subjects of equitable jurisdiction and press grant. ---Chicago, B. & Q. R. Co. v. Engle equitable remedies. hart (Neb.) 1092. See “Creditors' Suit"; "Fraudulent ConveyWhere railroad company is constructed across ances”; “Injunction"; "Quieting Title"; "Reor in front of the land of another without ob- ceivers"; "Specific Performance"; "Trusts." jection, he will be held to have accepted, in lieu 8 1. Jurisdiction. of rights of property affected, a right to coinpensation.-Kubi v. Chicago & N. W. Ry. Co. 3131, an administrator who is also an heir may By proceedings under Code 1873, 88 3150– (Wis.) 155. be compelled to pay a judgment against himself Under Laws 1889, c. 255, abutting owner ac- out of his distributive share.-Casady v. Grimquires no interest in land in a highway not pre- melman (Iowa) 1067. viously possessed by him, but is entitled, in case of its taking for a street, to consequential iff's certificate of sale, by fraud, prevented owner Where complaint alleges that holder of sherdamages ensuing.-Kuhl v. Chicago & N. W. from redeeming, and took sheriff's deed, in vioRy. Co. (Wis.) 155. lation of oral agreement, the facts entitled party In the absence of statute, injuries to prop- to relief in equity.-Prondzinski v. Garbutt (N. erty, where no part is taken, are damnum | D.) 1012. § 2. Pleading. One buying land at execution sale after prior An amendment to a bill after submission of incumbrance has been deducted from price hrid the cause held properly disregarded where it had estopped to deny validity of incumbrance.involved taking of further testimony.-Burk- Arlington Mill & Elevator Co. v. Yates (Neb.) hardt v. Burkhardt (Iowa) 1069. 677. 8 3. Decree. One loaning money to firm, and receiving a An entry of a decree in the chancery record payment from one partner and crediting it on is sufficient, although there is no calendar en- the debt, held not estopped, where an insolvent try, and no decree is filed.-Spaulding v. O'Con- proved her full claim without her knowledge nor (Mich.) 323. against the firm, to assert that the money paid to her by the partner was a partial payment of the debt, and not a loan.-Fossy. Streator ERROR, WRIT OF. (Neb.) 764. See "Appeal and Error.” Makers of notes held estopped to repudiate lia. bility on the ground of a mistake of fact, or to ESTABLISHMENT. plead want of consideration.—Union & Planters' Bank of Memphis v. Jefferson (Wis.) 889. EVIDENCE. See, also, "Affidavits"; "Depositions"; "WitCreated by deed, see "Deeds," $ 3. nesses. Decedents' estates, see "Descent and Distribu- Admissibility, of evidence under pleading, see tion"; "Executors and Administrators." "Pleading," $ 9. Estates for years, see "Landlord and Tenant.": Applicability of instructions to evidence, see Tenancy in common, see "Tenancy in Common.” "Trial," 8 5. Questions of fact for jury, see "Trial,” & 4. Particular estates. Reception at trial, see “Criminal Law," $ 6. See "Life Estates." Review on appeal or writ of error, see "Appeal and Error," $ 24. ESTOPPEL. Verdict or findings contrary to evidence, see "New Trial," $ 2. Or tenant to dispute title of landlord, see “Land As to particular facts or issues. lord and Tenant," $ 2. See “Adverse Possession,” $ 3; “Boundaries." To avoid or forfeit insurance policy, see “In $ 2; "Damages," $ 4; “Deeds," $ 4; "Fraudusurance," $ 9. lent Conveyances," $ 2. § 1. Equitable estoppel. An executor taking a prominent part in the See "Ejectment,” $ 2; "Fraud," § 1; "Negli In particular civil actions or proceedings. settlement of an estate, accepting the provisions of the will in her favor, and recognizing rights gence," $ 3; “Replevin," 8 4. of heirs in the residue, held estopped after many Actions for causing death, see "Death," § 1. years from suing for fee of said real estate, as Foreclosure, see "Mortgages,” 889_19. entitled to one-third thereof as her distributive Probate proceedings, see “Wills," $ 3. share.-Goldizen v. Goldizen (Iowa) 1053. In particular criminal prosecutions. Evidence held sufficient to support a finding See "Burglary,” $ 1; "Homicide,” $ 3; “Larthat plaintiff was estopped from asserting own ceny," $ 1. ership of property levied on under execution.Nodle v. Hawthorne (Iowa) 1062. § 1. Judicial notice. A husband who agreed jointly with his wife Courts can take judicial notice of customs whom he knew to be incompetent to furnish the and usages, in regard to use of Bible in public consideration for a conveyance made to her held schools.-Pfeiffer v. Board of Education of City estopped from attacking the conveyance after of Detroit (Mich.) 250. the grantor's death, because of such incompe Courts will not take judicial notice of the tency.-Burkhardt v. Burkhardt (Iowa) 1009. fact that a given tract of land is situated in a Facts held not to estop a landlord to assert particular, county. – Kretzschmar v. Meehan ownership to a crop maturing after the ter (Minn.) 41. mination of a one-year parol lease.-Smith v. The court cannot judicially notice the value Sprague (Mich.) 689. of grain at a given date, though the evidence Those taking benefit of the seed-grain acts of Towne v. St. Anthony & D. Elevator Co. (N. shows its value at a time two weeks earlier.-1893 held estopped to deny their validity.-William Deering & Co. v. Peterson (Minn.) 368. D.) 608. Applicant for seed-grain loan, having ac $ 2. Presumptions. 'cepted the benefit of the act, and all those It is presumed that the common law exists in standing in his shoes, held estopped to assert a sister state.-Pardoe v. Merritt (Minn.) 552. that he was not entitled to the benefits, or that It cannot be presumed that a county or its the allowance to him was irregular.-William officers complied with an unconstitutional statDeering & Co. v. Peterson (Minn.) 568. ute. - William Deering & Co. v. Peterson Sureties on bond given by heir at law to secure (Minn.) 568. distribution held estopped to deny execution or It will be presumed that the statute of a sisvalidity of bond as to creditors.-Olson v. Roy- ter state is similar to that of the state of the em (Minn.) 818. forum.-Fisher v. Donovan (Neb.) 778. Maker of note held not estopped to set up its A letter duly addressed, stamped, and mailed illegality as a defense. - Dickson Baker is presumed to have reached the addressee.- Va(Minn.) 820. tional Masonic Acc. Ass'n v. Burr (Neb.) 1098. A party cannot set up a defense irreconci- Presumption that letter duiy stamped and lably inconsistent with the position assumed mailed reached addressee may be overcome by prior to the suit.-Columbia Sat. Bank v. Ger- proper evidence.- National Masonic Acc. Ass'n man Nat. Bank (Neb.) 346. v. Burr (Neb.) 1098. The maker of a note presented to the payee It will not be presumed that a building associaas a gift held estopped to deny want of con- tion violated its charter, as well as the statsideration.-Ricketts v. Scothorn (Web.) 365. ute under which it was created, by refusing to V. 1149 allow members to secure funds by competitive action as to creditors of vendor, held admissible, bidding.–United States Savings & Loan Co. v. where purchaser failed to contradict the stateShain (N. D.) 1006. ments when made.-0. S. Paulson Mercantile Where there is no eyewitness of an accident Co. v. Seaver (N. D.) 1001. resulting in death, it will be presumed that Where purchaser of property states to creditthe person injured was in the exercise of due ors of vendor that such property was still the care, until the contrary is shown.--Cameron v. property of the seller, his declarations are adGreat Northern Ry. Co. (N. D.) 1016. missible as against a subsequent purchaser from In the absence of fraud or mistake, parties him.-0. S. Paulson Mercantile Co. v. Seaver are conclusively presumed to know the con- (N. D.) 1001. tents of their written contracts.-Straker v. Representations as to ownership, inducing anPhoenix Ins. Co. of Brooklyn, N. Y. (Wis.) other to act on the faith thereof, held evidence 752. against person making them, though not effect$ 3. Burden of proof. ive as estoppel.-Frei v. McMurdo (Wis.) 915. On an issue whether a bank made a payment to a depositor without receiving a check or 8 9. Hearsay. other poucher, the burden is on the bank.- that he had not received a portion of his com Evidence that an insurance agent had stated Kuenster v. Woodhouse (Wis.) 165. mission is hearsay.-Gore v. Canada Life As§ 4. Materiality. sur. Co. (Mich.) 650. A question asked plaintiff on cross-examination, as to whether he knew the contents of an On an issue as to the salary of the president of answer which he had denied in the verified reply, tions between the president and his wife as to a corporation it was error to admit conversais immaterial, since such knowledge is presumed. what agreement he had made with the corpora--Morey v. Laird (Iowa) 835. tion, it being hearsay.--Church v. Church Ce. In proceedings under Code 1873, 88 3150-3154, mentico Co. (Minn.) 548. to compel an administrator to pay a judgment against himself out of his distributive share, ed, on the ground of fraud of defendant, evi In an action by a bank to recover money loandecedent's unprobated will is immaterial.-Cas-dence of directors as to the representations ady v. Grimmelman (Iowa) 1067. their cashier told them defendant had made to In a suit to recover a balance of a bank ac- him in applying for the loan held not objectioncount, testimony that during such time plain- able as hearsay.-National Bank of Merrill v. tiffs were associated in business with third per- Illinois & W. Lumber Co. (Wis.) 185. sons is immaterial.-Kuenster 1. Woodhouse (Wis.) 165. 8 10. Documentary evidence. A written memorandum of agreement, assent5. Best and secondary evidence. When a statute expressly makes the record him, is admissible against him to prove the con ed to by one of the parties, but not signed by of an instrument prima facie evidence of the tract. -McDermott v. Abney (Iowa) 505. facts therein stated, the record is not subject to the objection of being secondary evidence.- Judgment of a district court consisting of First Methodist Episcopal Church v. Fadden transcript of judgment of superior court cannot (N. D.) 615. be proved by certificate of clerk of superior $ 6. Demonstrative evidence. court.-Peterson v. Gittings (Iowa) 1056. The use of a model of a machine different Books of an insurance company, the entries from the one in question is not error where the in which were verified by a witness under witness is cautioned to refer only to the parts whose dictation they were made, are admissiin which the two machines are similar.-Me- ble in evidence.-Union Cent. Life Ins. Co. v. Mahon v. City of Dubuque (Iowa) 517. Smith (Mich.) 706. $ 7. Admissions. Gen. St. 1894, § 5751, providing for admission The admissions of a superintendent of a manu- in evidence in certain cases of written instrufacturing company are admissible against the ments without proof of execution, held not to company. - Black v. Des Moines Manufacturing apply to an instrument which does not purport & Supply Co. (Iowa) 504. to have been executed by or for the defendant. A pleading is not complete evidence of the - VcGinty v. St. Paul, M. & M. Ry. Co. (Minn.) facts averred.-Green v. Morse (Neb.) 925. 141. Though, under Rev. St. 1898, & 2661, a reply Introduction of instrument in evidence will to an answer containing no counterclaim is su not carry indorsements thereon, unless the ofperfluous, yet, where it was treated as a proper fer is broad enough to include them.-Compleading, admissions therein bind plaintiff.-Sims stock v. Kerwin (Neb.) 387. v. Mutual Fire Ins. Co. (Wis.) 908. One cannot invoke Comp. St. c. 73, $ 62, re$ 8. Declarations. lating to the death of claimant of a private Declarations of a person in possession of per- the provisions of such section.--Comstock v. land claim before entry, unless he complies with sonal property levied on under execution, ex: Kerwin (Neb.) 387. planatory thereof, are admissible in evidence as to ownership.-Nodle v. Hawthorne (Iowa) 1062. Transcript of record of foreign court held inThe authority of a co-tenant to bind his co- Code Civ.' Proc. 414.-Comstock v. Kerwin admissible, unless authenticated as provided by tenant by an agreement with the landlord altering the lease cannot be proved by the dec (Neb.) 387. larations of the tenant.-McPherson v. Pinch Book entries of a bank of moneys received (Mich.) 321. and paid out are evidence only so far as they Where possession of personal property is show transactions with the parties to the acshown, declarations while in possession, as to the tion.-Kuenster v. Woodhouse (Wis.) 165. character thereof, are admissible to prove own- $11. Parol or extrinsic evidence affectership.-Rollofson v. Nash (Minn.) 954. ing writings. Declarations by vendor of property after trans- Parol evidence held admissible to vary record fer, tending to defeat purchaser's title as against of proceeding of city council.--State v. Alexander creditors of vendor, held inadmissible, in absence (Iowa) 811. of proof of collusion.-0. S. Paulson Mercantile Where there is an issue as to whether a writCo. v. Seaver (N. D.) 1001. ing constitutes the contract between the parStatements by vendor of personalty in presence ties, held, evidence of a verbal contract is adof purchaser, impeaching good faith of trans- I missible.-Brennecke v. Heald (Iowa) 1063. |
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