was burned, and not replaced, is waived by the successor to the grantor's interest by his after- wards laying down a part of the fence.-Bonni- well v. Madison (Iowa) 530.
While it is a general rule that no demand for performance of a condition subsequent is neces- sary, yet, where there is an evident waiver of performance by the immediate grantor of the party seeking to enforce the forfeiture, a de- mand is necessary before the right of re-entry exists. Bonniwell v. Madison (Iowa) 530.
A deed conveying "a piece of timber" held to convey the land on which the timber was stand- ing. Godden v. Coonan (Iowa) 852.
Exception in deed reserving right of way for railroad construed.-Heinzman v. Winona & St. P. Ry. Co. (Minn.) 956.
A quitclaim deed passes only interest of gran- tor subject to equities against him.--Arlington Mill & Elevator Co. v. Yates (Neb.) 677.
Surrender of unrecorded deed by grantee to grantor will not reinvest title in him.-Brown v. Hartman (Neb.) 776.
Grantee in quitclaim deed does not take after acquired title of grantor.-Troxell v. Stevens (Neb.) 781.
Under Comp. St. c. 73, § 51, after-acquired in- terest inures to grantee, where deed purports to convey a greater interest than grantor owned.- -Troxell v. Stevens (Neb.) 781.
After-acquired title does not inure to grantee, where deed to which he claims has been cancel- ed by the court. - Troxell v. Stevens (Neb.) 781. §4. Evidence.
St. 1894, c. 73, tit. 4, providing for the perpetua- tion of testimony.-State v. Elliott (Minn.) 952.
DESCENT AND DISTRIBUTION. See, also, "Executors and Administrators"; "Homestead," § 2. Inheritance by, from, or through bastards, see "Bastards," § 1.
§1. Persons entitled and their respec- tive shares.
Evidence held not to show election by widow to take homestead in lieu of her distributive share. -In re Lund's Estate (Iowa) 1048.
Judgment for plaintiff in action against heirs on bond given to secure distribution held justified by the evidence. -Olson v. Royem (Minn.) 818. § 2. Rights of heirs.
Evidence held not sufficient to show that con- veyances purchased and paid for by a father, but taken in the name of his son, were an advance- ment.-Culp v. Price (Iowa) 848.
Land purchased and paid for by a father, but the title to which was taken in the name of his son, will be presumed an advancement, in the absence of proof that a trust was intended.- Culp v. Price (Iowa) 848.
Deeds executed by a husband to his wife during his last sickness, and induced by fraud and undue influence, may be set aside in eq- uity, at the instance of the grantor's heirs, after his death.-Disch v. Timm (Wis.) 196.
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.-- Bader v. Dyer (Iowa) 469.
devised or bequeathed, see "Wills," § 4.
DIRECTING VERDICT.
In civil actions, see "Trial," § 4.
From employment, see "Master and Servant," indebtedness, see "Compromise and Settle-
From liability as guarantor, see "Guaranty," § 3.
as insurer, see "Insurance," § 14. as surety, see "Principal and Surety," § 2.
DISCONTINUANCE.
Of action, see "Dismissal and Nonsuit," § 1.
Of estate of decedent, see "Descent and Dis- tribution"; "Executors and Administrators," § 5.
Of proceeds of foreclosure, see "Mortgages," 88 Of judgments, see "Judgment," § 5.
If the husband's cruelty is disproportionate to the wife's offense, her conduct affords him no justification. Walton v. Walton (Neb.) 392.
No conduct on the part of a wife that does not threaten great and immediate bodily injury will justify the husband in beating or choking her.-Walton v. Walton (Neb.) 392.
§3. Proceedings and relief.
Whether cruelty of the husband is so far disproportionate to the wife's offense as to be unjustifiable is a mixed question of law and fact.-Walton v. Walton (Neb.) 392.
Whether a wife's disobedience provoked the husband's cruelty is a question of fact.-Wal- ton v. Walton (Neb.) 392.
Defendant may file a cross petition for af- firmative relief. Berdolt v. Berdolt (Neb.) 399.
Charges made in a petition for divorce do not furnish proper grounds to be pleaded in cross petition for affirmative relief.-Berdolt v. Ber- dolt (Neb.) 399.
§4. Alimony and allowances.
Where the husband was worth $24,000, held, that $5,000 permanent alimony and counsel fees of $700 were proper.-Walton v. Walton (Neb.) 392.
The wife, by praying for a reasonable sum as permanent alimony, elects to take such sum in lieu of dower.-Walton v. Walton (Neb.) 392.
Permanent alimony in the sum of $5.000 held excessive.-Berdolt v. Berdolt (Neb.) 399. As no alimony can be granted wife on divorce for her fault, an agreement by the husband to pay her a monthly sum is a matter of con- tract, and cannot be enforced by attachment for contempt. Glynn v. Glynn (N. D.) 594.
§ 5. Custody and support of children. Where a decree has settled custody of chil- dren in one parent, the court will not give them into custody of the other by committing them to strangers with whom that other lives. -Norval v. Zinsmaster (Neb.) 373.
Decree for divorce in favor of husband held not to change statutory duties or rights touch- ing his son.-Glynn v. Glynn (N. D.) 594.
In cities, see "Municipal Corporations," § 11.
DUE PROCESS OF LAW.
See "Constitutional Law," § 8.
Prescriptive rights may be acquired in an al- ley, though it was laid out as such.-Moon v. Mills (Mich.) 926.
§2. Use and obstruction.
A grantor of a right of way cannot object to a use thereof by the grantee on the ground that he must pass over the land of a third person, from whom he has obtained no right of way.- Godden v. Coonan (Iowa) 852.
Abutting owner on a right of way, who erects an obstruction which does not tend to injure the other owners, cannot be compelled to remove it. -Moon v. Mills (Mich.) 926.
Of passenger, see "Carriers," § 2.
EJECTMENT.
See, also, "Real Actions."
§ 1. Right of action.
Ejectment may be maintained against a pur- chaser in possession under void or irregular fore- closure of mortgage. Bowen v. Brogan (Mich.) 942.
Plaintiff must recover on the strength of his own title. Comstock v. Kerwin (Neb.) 387. § 2. Pleading.
An ouster may be admitted by the pleadings. -Carpenter v. Carpenter (Mich.) 703.
A plea of the general issue, together with evi- dence that defendant had been in possession for 12 years claiming title, held sufficient evidence of ouster.-Carpenter v. Carpenter (Mich.) 703.
A counterclaim for improvements in an action for possession of land held sufficient as against a general demurrer.-Parker v. Vinson (S. D.) 1023.
A general denial of the allegation in defend- ant's counterclaim for improvements puts in is- sue the value of the improvements.-Parker v. Vinson (S. D.) 1023.
What constitutes permanent improvements is a question of fact.-Parker v. Vinson (S. D.) 1023.
§ 4. Improvements.
Where appraisement under occupying claim- ants' act has been made, unsuccessful occupant cannot be ousted until election of owner to pay, and payment, or election to accept value of land and refusal to pay same. -Troxell v. Stevens (Neb.) 781.
Under occupying claimants' act, occupant may not have land and improvements sold to pay respective interests until time fixed by court for election by successful owner. - Troxell v. Stevens (Neb.) 781.
absque injuria.-Kuhl v. Chicago & N. W. Ry. Co. (Wis.) 155.
§2. Proceedings to take property and assess compensation.
Pub. Acts 1895, No. 215, с. 25, § 17, which provides for a trial in condemnation proceedings. by a jury of the regular panel, violates Const. art. 15. § 15, and Id. art. 18, § 2, providing for a jury of freeholders of the vicinage.-City of Mt. Clemens v. Macomb Circuit Judge (Mich.) 936.
On assessment of damages under Laws 1891, c. 94, where there are no adverse claims, the amount is the only issue.-Board of Education of Webster Independent School Dist., No. 101, v. Prior (S. D.) 106.
§3. Remedies of owners of property. Condemnation proceedings as to cemetery held 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.
Evidence held to warrant finding that organ-
ization of Independent Democrats was merely a temporary movement in 1896, which died aft- er the election of that year.-State v. District Court of Ramsey County (Minn.) 28.
Evidence held to show that certain person acted fraudulently in assuming to act as coun- ty committee of the Independent Democratic Party in calling county convention.-State v. District Court of Ramsey County (Minn.) 28.
Failure of secretary of political convention, in preparation of certificate of nominations, to include the name of one person nominated, held to create a vacancy within the provisions of the election law, so as to authorize the vacancy to be filled by committee appointed by the nomi- nating convention for such purpose.-State v. Clark (Neb.) 87.
Nomination to public office by 4 out of 28 members of a political county committee held invalid where no notice was given of meeting to other members.-State v. Smith (Neb.) 384.
owner of the lot condemned.-Sacks v. City of Minneapolis (Minn.) 563.
Owner cannot maintain ejectment where rail- road company has, with his prior consent or ac- quiescence, constructed track across his land.- Chicago, B. & Q. R. Co. v. Englehart (Neb.) 1092.
The right to compensation is assignable, and independent of subsequent ownership of the land. Kuhl v. Chicago & N. W. Ry. Co. (Wis.) 155.
Where damages recoverable for land injured by railway are dependent on statute, Rev. St. § 4222, subd. 3, applies.-Kuhl v. Chicago & N. W. Ry. Co. (Wis.) 155.
Where claim for damages by building a road is for land taken or damages to land not taken, Rev. St. 4222, subd. 3, limiting right of ac- tion to six years, applies.-Kuhl v. Chicago & N. W. Ry. Co. (Wis.) 155.
Right to compensation does not constitute a right in land, but a right to recover the value thereof, or damages recoverable in law. Kuhl v. Chicago & N. W. Ry. Co. (Wis.) 155.
Pub. Laws 1891, Act No. 190, § 22, requiring See "Master and Servant."
the inspector to write his initials in the upper left-hand corner of the back of each ballot, is directory as to the exact location of the signa- ture on the back. Horning v. Burgess (Mich.) 446.
Any duly-qualified elector may proceed, un- der Gen. St. 1894, § 48, to have official ballot corrected.-State v. District Court of Ramsey County (Minn.) 28.
EMINENT DOMAIN.
§1. Compensation.
A railroad constructed on land with permission of owner held a permanent structure, and right to compensation is a personal claim, which will not pass to purchaser of the land except by ex- press grant.-Chicago, B. & Q. R. Co. v. Engle- hart (Neb.) 1092.
Where railroad company is constructed across or in front of the land of another without ob-
jection, he will be held to have accepted, in lieu of rights of property affected, a right to com- pensation. Kuhl v. Chicago & N. W. Ry. Co. (Wis.) 155.
Under Laws 1889, с. 255, abutting owner ac- quires no interest in land in a highway not pre- viously possessed by him, but is entitled, in case of its taking for a street, to consequential damages ensuing.-Kuhl v. Chicago & N. W. Ry. Co. (Wis.) 155.
In the absence of statute, injuries to prop- erty, where no part is taken, are damnum
Of judgment, see "Judgment," § 5. Re-entry by landlord, see "Landlord and Ten- ant," § 7.
ENTRY, WRIT OF.
See "Ejectment"; "Real Actions."
Equitable estoppel, see "Estoppel," § 1.
set-off, see "Set-Off and Counterclaim." Particular subjects of equitable jurisdiction and equitable remedies.
See "Creditors' Suit"; "Fraudulent Convey- ances"; "Injunction"; "Quieting Title"; "Re- ceivers"; "Specific Performance"; "Trusts."
By proceedings under Code 1873, §§ 3150- 3154, an administrator who is also an heir may be compelled to pay a judgment against himself out of his distributive share. Casady v. Grim- melman (Iowa) 1067.
Where complaint alleges that holder of sher- iff's certificate of sale, by fraud, prevented owner from redeeming, and took sheriff's deed, in vio- lation of oral agreement, the facts entitled party to relief in equity.-Prondzinski v. Garbutt (N. D.) 1012.
Of tenant to dispute title of landlord, see "Land- lord and Tenant," § 2.
To avoid or forfeit insurance policy, see "In- surance," § 9.
§1. Equitable estoppel.
An executor taking a prominent part in the settlement of an estate, accepting the provisions of the will in her favor, and recognizing rights of heirs in the residue, held estopped after many years from suing for fee of said real estate, as entitled to one-third thereof as her distributive share.-Goldizen v. Goldizen (Iowa) 1053.
Evidence held sufficient to support a finding that plaintiff was estopped from asserting own- ership of property levied on under execution.- Nodle v. Hawthorne (Iowa) 1062.
A husband who agreed jointly with his wife whom he knew to be incompetent to furnish the consideration for a conveyance made to her held estopped from attacking the conveyance after the grantor's death, because of such incompe- tency.-Burkhardt v. Burkhardt (Iowa) 1069.
Facts held not to estop a landlord to assert ownership to a crop maturing after the ter- mination of a one-year parol lease. Smith v. Sprague (Mich.) 689.
Those taking benefit of the seed-grain acts of
1893 held estopped to deny their validity.-Wil- liam Deering & Co. v. Peterson (Minn.) 568.
Applicant for seed-grain loan, having ac- cepted the benefit of the act, and all those standing in his shoes, held estopped to assert that he was not entitled to the benefits, or that the allowance to him was irregular.-William Deering & Co. v. Peterson (Minn.) 568.
Sureties on bond given by heir at law to secure distribution held estopped to deny execution or validity of bond as to creditors. Olson v. Roy- em (Minn.) 818.
Maker of note held not estopped to set up its illegality as a defense. - Dickson v. Baker (Minn.) 820.
A party cannot set up a defense irreconci- lably inconsistent with the position assumed prior to the suit.-Columbia Nat. Bank v. Ger- man Nat. Bank (Neb.) 346.
The maker of a note presented to the payee as a gift held estopped to deny want of con- sideration.-Ricketts v. Scothorn (Neb.) 365.
One buying land at execution sale after prior incumbrance has been deducted from price hold estopped to deny validity of incumbrance.- Arlington Mill & Elevator Co. v. Yates (Neb.) 677.
One loaning money to firm, and receiving a payment from one partner and crediting it on the debt, held not estopped, where an insolvent proved her full claim without her knowledge 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.-Foss v. Streator (Neb.) 764.
Makers of notes held estopped to repudiate lia- bility on the ground of a mistake of fact, or to plead want of consideration.-Union & Planters' Bank of Memphis v. Jefferson (Wis.) 889.
Admissibility of evidence under pleading, see "Pleading," § 9.
Applicability of instructions to evidence, see "Trial," § 5.
Questions of fact for jury, see "Trial," § 4. Reception at trial, see "Criminal Law," § 6. Review on appeal or writ of error, see "Appeal and Error," § 24.
Verdict or findings contrary to evidence, see "New Trial," § 2.
As to particular facts or issues.
See "Adverse Possession," § 3; "Boundaries." §2; "Damages," § 4; "Deeds," § 4; "Fraudu- lent Conveyances," § 2.
In particular civil actions or proceedings. See "Ejectment," § 2; "Fraud," § 1; "Negli- gence," § 3; "Replevin," § 4.
Actions for causing death, see "Death," § 1. Foreclosure, see "Mortgages," §§ 9-19. Probate proceedings, see "Wills," § 3.
In particular criminal prosecutions. See "Burglary," § 1; "Homicide," § 3; "Lar- ceny," § 1.
§1. Judicial notice.
Courts can take judicial notice of customs and usages in regard to use of Bible in public schools.-Pfeiffer v. Board of Education of City of Detroit (Mich.) 250.
Courts will not take judicial notice of the fact that a given tract of land is situated in a particular county. - Kretzschmar v. Mechan (Minn.) 41.
The court cannot judicially notice the value of grain at a given date, though the evidence shows its value at a time two weeks earlier.- Towne v. St. Anthony & D. Elevator Co. (N. D.) 608.
It is presumed that the common law exists in a sister state.-Pardoe v. Merritt (Minn.) 552.
It cannot be presumed that a county or its officers complied with an unconstitutional stat- ute. William Deering & Co. v. Peterson (Minn.) 568.
It will be presumed that the statute of a sis- ter state is similar to that of the state of the forum. Fisher v. Donovan (Neb.) 778.
A letter duly addressed, stamped, and mailed is presumed to have reached the addressee.-Na- tional Masonic Acc. Ass'n v. Burr (Neb.) 1098.
Presumption that letter duly stamped and mailed reached addressee may be overcome by proper evidence.-National Masonic Acc. Ass'n v. Burr (Neb.) 1098.
It will not be presumed that a building associa- tion violated its charter, as well as the stat- ute under which it was created, by refusing to
allow members to secure funds by competitive bidding. United States Savings & Loan Co. v. Shain (N. D.) 1006.
Where there is no eyewitness of an accident resulting in death, it will be presumed that the person injured was in the exercise of due care, until the contrary is shown.-Cameron v. Great Northern Ry. Co. (N. D.) 1016.
In the absence of fraud or mistake, parties are conclusively presumed to know the con- tents of their written contracts. Straker v. Phoenix Ins. Co. of Brooklyn, N. Y. (Wis.)
§3. Burden of proof.
On an issue whether a bank made a payment to a depositor without receiving a check or other voucher, the burden is on the bank.- Kuenster v. Woodhouse (Wis.) 165.
A question asked plaintiff on cross-examina- tion, as to whether he knew the contents of an answer which he had denied in the verified reply, is immaterial, since such knowledge is presumed. -Morey v. Laird (Iowa) 835.
In proceedings under Code 1873, §§ 3150-3154, to compel an administrator to pay a judgment against himself out of his distributive share, decedent's unprobated will is immaterial.-Cas- ady v. Grimmelman (Iowa) 1067.
In a suit to recover a balance of a bank ac- count, testimony that during such time plain- tiffs were associated in business with third per- sons is immaterial.-Kuenster v. Woodhouse (Wis.) 165.
§5. Best and secondary evidence.
When a statute expressly makes the record of an instrument prima facie evidence of the facts therein stated, the record is not subject to the objection of being secondary evidence.- First Methodist Episcopal Church v. Fadden (N. D.) 615.
§ 6. Demonstrative evidence.
The use of a model of a machine different from the one in question is not error where the witness is cautioned to refer only to the parts in which the two machines are similar.-Mc- Mahon v. City of Dubuque (Iowa) 517.
The admissions of a superintendent of a manu- facturing company are admissible against the company.-Black v. Des Moines Manufacturing & Supply Co. (Iowa) 504.
A pleading is not complete evidence of the facts averred.-Green v. Morse (Neb.) 925.
Though, under Rev. St. 1898, § 2661, a reply to an answer containing no counterclaim is su-
perfluous, yet, where it was treated as a proper pleading, admissions therein bind plaintiff.-Sims v. Mutual Fire Ins. Co. (Wis.) 908.
Declarations of a person in possession of per- sonal property levied on under execution, ex- planatory thereof, are admissible in evidence as to ownership. -Nodle v. Hawthorne (Iowa) 1062.
The authority of a co-tenant to bind his co- tenant by an agreement with the landlord al- tering the lease cannot be proved by the dec-
larations of the tenant. -McPherson v. Pinch (Mich.) 321.
Where possession of personal property is shown, declarations while in possession, as to the character thereof, are admissible to prove own- ership.-Rollofson v. Nash (Minn.) 954.
Declarations by vendor of property after trans- fer, tending to defeat purchaser's title as against creditors of vendor, held inadmissible, in absence of proof of collusion.-O. S. Paulson Mercantile Co. v. Seaver (N. D.) 1001.
action as to creditors of vendor, held admissible, where purchaser failed to contradict the state- ments when made.-O. S. Paulson Mercantile Co. v. Seaver (N. D.) 1001.
Where purchaser of property states to credit- ors of vendor that such property was still the property of the seller, his declarations are ad- missible as against a subsequent purchaser from him.-O. S. Paulson Mercantile Co. v. Seaver (N. D.) 1001.
Representations as to ownership, inducing an- other to act on the faith thereof, held evidence against person making them, though not effect- ive as estoppel.-Frei v. McMurdo (Wis.) 915.
Evidence that an insurance agent had stated that he had not received a portion of his com- mission is hearsay. Gore v. Canada Life As- sur. Co. (Mich.) 650.
On an issue as to the salary of the president of a corporation it was error to admit conversa-
tions between the president and his wife as to what agreement he had made with the corpora- tion, it being hearsay. Church v. Church Ce mentico Co. (Minn.) 548.
In an action by a bank to recover money loan- ed, on the ground of fraud of defendant, evi- dence of directors as to the representations
their cashier told them defendant had made to him in applying for the loan held not objection- able as hearsay.-National Bank of Merrill v. Illinois & W. Lumber Co. (Wis.) 185.
§ 10. Documentary evidence.
A written memorandum of agreement, assent- ed to by one of the parties, but not signed by him, is admissible against him to prove the con- tract.-McDermott v. Abney (Iowa) 505.
Judgment of a district court consisting of transcript of judgment of superior court cannot be proved by certificate of clerk of superior court.-Peterson v. Gittings (Iowa) 1056.
Books of an insurance company, the entries in which were verified by a witness under whose dictation they were made, are admissi- ble in evidence.-Union Cent. Life Ins. Co. v. Smith (Mich.) 706.
Gen. St. 1894, § 5751, providing for admission in evidence in certain cases of written instru- ments without proof of execution, held not to apply to an instrument which does not purport to have been executed by or for the defendant.
- McGinty v. St. Paul, M. & M. Ry. Co. (Minn.)
Introduction of instrument in evidence will not carry indorsements thereon, unless the of- fer is broad enough to include them.-Com-
stock v. Kerwin (Neb.) 387.
One cannot invoke Comp. St. e. 73, § 62, re- lating to the death of claimant of a private land claim before entry, unless he complies with the provisions of such section. Comstock v. Kerwin (Neb.) 387.
Transcript of record of foreign court held in- admissible, unless authenticated as provided by Code Civ. Proc. § 414. Comstock v. Kerwin (Neb.) 387.
Book entries of a bank of moneys received and paid out are evidence only so far as they show transactions with the parties to the ac- tion.- Kuenster v. Woodhouse (Wis.) 165.
§11. Parol or extrinsic evidence affect- ing writings.
Parol evidence held admissible to vary record of proceeding of city council. -State v. Alexander (Iowa) 841.
Where there is an issue as to whether a writ- ing constitutes the contract between the par-
Statements by vendor of personalty in presence ties, held, evidence of a verbal contract is ad- of purchaser, impeaching good faith of trans-missible.-Brennecke v. Heald (Iowa) 1063.
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