V.

chasing property at foreclosure, cut off title of tition in attachment was amended so as to state remainder-men-Bowen v. Brogan (Mich.) 942. a different cause of action, and was held good,

mortgagees could not, in independent action, atLIFE INSURANCE.

tach the attachment.-Nagle v. First Nat. Bank

(Neb.) 1074. See "Insurance," $ 7.

LIVE STOCK. LIMITATION OF ACTIONS. Injuries from operation of railroads, see “Rail

roads," 8 1. See “Adverse Possession." $1. Statutes of limitation.

LOAN ASSOCIATIONS. Code 1897, § 3439, in effect October 1, 1897, barring an action on a judgment after 20 years, See "Building and Loan Associations.” does not apply to proceedings on a judgment over 20 years old, terminated in June, 1897.Casady v. Grimmelman (Iowa) 1067.

LOCAL ACTIONS. Limitations held under the evidence no bar to See “Venue,” $ 1. an action on a bond by heirs to secure distribution of estate.-Olson v. Royem (Minn.) 818.

LOCATION. $ 2. Computation of period of limita- of mining claim, see “Mines and Minerals,” $ 1.

tion. Where void tax deed is issued to lien claimant, a failure of title which it assumes to con

LOGS AND LOGGING. vey arises on the issuance of the deed.-Carson v. Broady (Neb.) 80.

Corporation organized under Gen. St. 1894, $ Where petition in action against firm was 2633, to improve a stream for driving logs, but amended to run against individual members, not empowered to handle them, cannot collect and limitations ran against the firm, a subse- tolls provided for in such section.-Northwestquent amendment to make the action one ern Improvement & Boom Co. v. O'Brien against the firm was ineffectual.-Wigton v. (Minn.) 989. Smith (Neb.) 772.

To entitle corporation organized under Gen. Action for relief for fraud is barred in four St. 1894, § 2633, to collect tolls for driving years after discovery.-Buerstetta v. Tecumseh logs, it is no necessary to improve the whole Nat. Bank (Neb.) 1094.

stream, but only that it take possession of a

considerab Where facts incorporated in petition by way of provement & Boom Co. v. O'Brien (Minn.) 989.

portion thereof.-Northwestern Imamendment constitute a separate cause of action, limitations run against such cause until the

Power to drive logs is not incidental to powfiling of the amendment.-Buerstetta v. Tecum- er given the corporation to improve a stream.seh Nat. Bank (Neb.) 1094.

Northwestern Improvement & Boom Co.

O'Brien (Minn.) 989. Where railroad company constructs its road without compensation, and conveys it to another, which does not assume the liability, limita

MACHINERY. tions run from the time of the taking.-Kuhl v. Chicago & N. W. Ry. Co. (Wis.) 155.

Liability of employer for defects, see "Master

and Servant," $8 3–8. Where railroad company constructs its line without making compensation, and assigns to one assuming its liabilities for injuries to own

MALICE. ers of land, limitations run on such obligations from the agreement between the vendor and What constitutes, see "Homicide," $ 1. vendee.-Kuhl y. Chicago & N. W. Ry. Co. (Wis.) 155.

MALICIOUS PROSECUTION. Facts held not to show an attempt to commence an action within Rev. St. 1808, 8 4240, See, also, “False Imprisonment." suspending limitations, where an unsuccessful

8 1. Actions. attempt to commence an action is made.--Moul

Admission of evidence that defendant did not ton v. Williams (Wis.) 918.

state all the facts on which the prosecution $ 3. Operation and effect of bar by was based to the prosecuting attorney held erlimitation.

ror, where defendant stated that he did not rely The statute can only be waived by defend- on such attorney's advice.-McClay v. Hicks ant's failure to plead it and insist thereon.- (Mich.) 636. Moulton v. Williams (Wis.) 918.

Evidence held sufficient to make a question for The benefit of a statute held not waived by an the jury whether there was probable cause. appearance in response to a void service of a McClay v. Hicks (Mich.) 636. summons from a justice, followed by a suffi

If the facts are disputed, the court should cient service, where limitations had run against charge hypothetically what facts would conthe action after the first, and before the second, stitute probable

McClay Hicks service.-Moulton v. Williams (Wis.) 918.

(Mich.) 636. LIQUOR SELLING.

MANDAMUS. See "Intoxicating Liquors."

8 1. Subjects and purposes of relief.

Mandamus lies to compel an express comLIS PENDENS.

pany to discharge the duties imposed on it by

law.-Attorney General v. American Exp. Co. One who, by voluntary transfer, acquires

(Mich.) 317. rights in property after attachment levied there- Mandamus is the proper remedy to compel on, is bound by the adjudication in the attach- highway commissioners of adjoining towns to rement case.-Nagle v. First Nat. Bank (Neb.) build a bridge on a town-line road.-Bigelow v. 1074.

Brooks (Mich.) 810. Where, after attachment levied, the debtor Gen. St. 1894, § 8041, relating to veteran solmortgages property to other creditors, and pe- diers, does not confer on any of them a right

cause.

ances

to public office, so as to entitle him to maintain | $ 2. Services and compensation. mandamus.--State v. Copeland (Minn.) 221. A sheriff's sale of employer's property held

Mandamus will not lie to enforce Gen. St. not of itself a breach by employer of a 1894, § 8041, relating to employment of veterans

tract of hire.- Nash v. H. R. Gladding Co. in the public service.-State v. Copeland (Minn.)

(Mich.) 7. 221.

§ 3. Master's liability for injuries to The district court may, by rule, compel coun

servant - Machinery and applity judge to make up record containing true history of proceedings before him.-New Home A servant who, without objection or promise Sewing-Mach. Co. v. Thornburg (Web.) 86. to repair, operates a defective machine for three

Mandamus may be maintained to reinstate a years, knowing it to be dangerous, cannot repupil if action of officer refusing admission was

cover for injuries resulting from the defect.arbitrary.-Jackson v. State (Neb.) 662.

McCarthy v. Mulgrew (Iowa) 527. Mandamus lies to compel county commission

Owner of steamer tied up for winter held not ers to order special county seat election on prop- negligent in failing to have watchmen while er petition presented.-Barry v. State (Neb.) Williams Transp. Line (Mich.) 633.

crew were sleeping on board.-Lang y. H. W. 1096. § 2. Jurisdiction, proceedings, and re-ed by the defect which he was employed to re

A servant cannot recover for an injury causlief. A writ compelling an express company to pair. --- Broderick v. St. Paul City Ry. Co.

(Minn.) 28. carry goods for all shippers within the state at the regular rates held not too broad, though

Evidence in action for injuries to railroad emthe petition was on the relation of only a few ployé held not to show defendant guilty of negshippers.--Attorney General v. American Exp. ligence.--Barrett v. Great Northern Ry. Co. Co. (Mich.) 317.

(Minn.) 510. The word “corporation," as used in Cir. Ct. A finding that a reasonably careful inspection Rule No. 46, in regard to jurisdiction in man

of the brake of a car would have revealed its damus proceedings, held synonymous with the defective condition held justified.-Union Stockterm "joint-stock corporation."-Attorney Gen- Yards Co. v. Goodwin (Neb.) 357. eral v. American Exp. Co. (Mich.) 317.

In inspecting a car, such a test must be apWhere, on an application for mandamus to plied as would probably reveal a defect if one compel a county board to act on a claim, the existed.-Union Stock-Yards Co. v. Goodwin sworn answer shows that, on receiving the or- (Neb.) 357. der to show cause, the respondents disallowed

A jury may draw rational inferences from the the claim, held, the answer must be taken as

facts proved or admitted.-Union Stock-Yards true and the writ denied.--Gallagher v. Board Co. v. Goodwin (Neb.) 357. of Sup’rs of Cheboygan County (Mich.) 930.

A corporation using the cars of another cor

poration is charged with the same duty as to MANDATE.

inspecting them, as against its employés, as if See "Mandamus."

the cars were its own.-Union Stock-Yards Co.

v. Goodwin (Neb.) 357. To lower court or decision on appeal or writ of error, see "Appeal and Error," 8 30.

Whether the master exercised due care in keeping appliances safe and adequate held a

question for the jury.-Cameron v. Great NorMARRIAGE.

thern Ry. Co. (N. D.) 1016. See, also, “Divorce"; "Husband and Wife." Evidence had not to show a master negligent Under How. Ann. St. $ 6224, the marriage of -Schiefelbein v. Badger Paper Co. (Wis.) 742.

in not maintaining a guard on a revolving fan. a minor is to be deemed void whenever, after he or she comes of age, the question of its va- A master held liable for injuries received by Tidity arises, and there has been no cohabitation a servant through a defective elevator, while after removal of disability. People v. Schoon- riding thereon, in the course of his employment. maker (Mich.) 934.

--Anderson v. Hayes (Wis.) 903. When there is no parent and no guardian of

Waruing and instructing serva minor applicant for a license, a guardian must

ant. be appointed before the probate judge can perform the ceremony, under Pub. Acts 1897. No. guarded revolving iron rollers is so obvious that

The danger of using a machine containing un180, $ 1.-People v. Schoonmaker (Mich.) 934.

the master need not warn a servant of it.--c

Carthy v. Mulgrew (Iowa) 527.
MARRIED WOMEN.

Master held not liable for injury to servant al-
See "Husband and Wife."

though he did not warn her of danger, where
such danger was obvious.--Hanson v. Hammell

(Iowa) 839.
MASTER AND SERVANT.

Failure of man employed to give notice to § 1. The relation.

other employés of movement of apparatus in uinIn an action for a wrongful discharge, an em- loading coal held not to render master liable ployé may prove that he received no compensa

for injuries resulting.-Portance v. Lehigh Val. tion for work done for his father after the dis- Coal Co. (Wis.) 875. charge.-Gwinn v. King (Iowa) 83.

8 5. Fellow servants. A wrongfully discharged servant need not ac- Evidence of acts held admissible to show that cept other employment from the master unless a fellow servant did not have sufficient judgit be in the same line as the first, and the offer ment to be competent for the other part of the be so made as that the acceptance will not mooli- work in which he was employed.-lorrow v. fy the original agreement.-Jackson v. Iude St. Paul City Ry. Co. (Minn.) 303. pendent School Dist. of Steamboat Rock (Iowa) 800.

Laws Wis. 1893, c. 220, providing for recor

ery by employé for injuries suffered, while opHiring by agent of a servant for three months erating scars" of defendant, through negligence held not a hiring for an unreasonable length of of other employé, held to include hand cars.time.-Drohan v. Merrill & Ring Lumber Co. Benson v. Chicago, St. P., M. & 0. Ry. Co. (Minn.) 957.

(Minn.) 798.

§ 6. — Risks assumed by servant. always on him.-Brownfield v. Chicago, R. I.

Member of crew of steamer tied up for win- & P. Ry. Co. (Iowa) 1038. ter held to assume risk of sleeping aboard without watchmen.-Lang v. H. W. Williams

The question whether a fireman having reason Transp. Line (Mich.) 633.

to apprehend an accident is justified in remain

ing on the engine because the engineer, after A brakeman who goes on a car to set a brake being communicated with, continued on the run, knowing that the car has not been inspected held for the jury.-Brownfield v. Chicago, R. I. does not for that reason assume the risk of a & P. Ry. Co. (Iowa) 1038. defect in the brake.-Union Stock-Yards Co. v. Goodwin (Neb.) 357.

Res ipsa loquitur does not apply to injuries

received by a locomotive fireman riding on an An employé who uses cars in the master's engine, which was derailed because of a broken possession, but belonging to some other corpora- axle.-Brownfield v. Chicago, R. I. & P. Ry. tion, assumes only the risk that he would if Co. (Iowa) 1038. the cars belonged to the master.-Union Stock

Instruction in action for injuries to employé Yards Co. v. Goodwin (Neb.) 357.

on railroad track, that failure to give a cusThat a servant knew of a rule or custom con- tomary notice was negligence, held ground for cerning the conduct of the business, and con- reversal.-Anderson v. Great Northern Ry. Co. tinued in the service, and thereby assumed the (Minn.) 240. risk, held affirmative matter of defense, which Verdict finding fellow servant incompetent, to must be pleaded. -Union Stock-Yards Co. v. the knowledge of his master, held sustained by Goodwin (Neb.) 357.

the evidence.-Morrow v. St. Paul City Ry. Co. A man of 10 years' experience, who had work- (Minn.) 303. ed for defendants 3 or 4 months, held to have Evidence in action to recover for personal inassumed the risk of lack of precautionary regu- juries by railroad employé reviewed, and held, lations prescribed by defendant.-Portance v. that the questions of negligence on the part of Lehigh Val. Coal Co. (Wis.) 875.

defendant and contributory negligence of plainAn employé knowing how the work which he tiff were for the jury.-Munch v. Great Northis assisting to perform is being done, and the ern Ry. Co. (Minn.) 541. condition of the appliances, is bound to appre- Whether an employé assumed the risk by hend the dangers.-Dugal v. City of Chippewa which he was injured held a question for the Falls (Wis.) 878.

jury.-Cameron v. Great Northern Ry. Co. (N. Contributory

D.) 1016.

negligence of servant.

Whether defendant's negligence as shown to A brakeman held negligent in attempting to exist was the proximate cause of the injury held uncouple moving cars while passing a switch a question for the jury.---Cameron v. Great Norknopin to him to be dangerous.-Quinn v. Chi-thern Ry. Co. (N. D.) 1016. cago, R. I. & P. Ry. Co. (Iowa) 464.

Where a verdict for plaintiff was based solely Whether plaintiff's negligence contributed to on his evidence, which was conflicting and was the injury held a question for the jury.-Cam- discredited by several witnesses, and by his eron v. Great Northern Ry. Co. (N. D.) 1016.

own oral and written statements outside of

court, held an abuse of discretion to refuse to 8 8. Actions.

set it aside.-Lee v. Chicago, St. P., M. & 0. Where defendant in an action for the death Ry. Co. (Wis.) 714. of a brakeman, alleged to be due to a defective A complaint to recover for injuries received switch, relies equally upon the defenses of con- from a defective elevator held uot demurrable. tributory negligence and assumption of risk, an as showing that the elevator fell whenever used, instruction that “the first and principal ques: and that the servant, therefore, knew of the detion to be determined is that of negligence" fect.-Anderson v. Hayes (Wis.) 891; Turnquist is error.-Quinn v. Chicago, R. I. & P. Ry. Co.

v. Same, Id. (Iowa) 464. In an action for the death of a brakeman al

MATERIALITY. leged to be due to a defective switch, an instruction submitting the question whether the switch Of evidence in civil actions, see "Evidence,” $ 4. was out of repair, where there was no evidence to that effect, is error.-Quinn v. Chicago, R. I.

MEASURES. & P. Ry. Co. (Iowa) 461.

Instruction as to what plaintiff must show See "Weights and Measures." in order to recover, which oinits defendant's defense of assumption of risk, held error.-Quinn

MECHANICS' LIENS. v. Chicago, R. I. & P. Ry. Co. (Iowa) 161.

§ 1. Right to lien. In an action for injuries received on revolving

One who furnishes terra cotta work for a iron rollers, evidence that the master did not public building, manufacturing it into the forms warn the servant of the danger of certain ex required by the plans, it being placed into the posed gearings held properly excluded, since the building by the contractor, is a subcontractor, gearings did not cause the injury.-McCarthy v. and not a material man, within 3 How. Ann. Mulgrew (Iowa) 527.

St. § 8411a.- People v. Cotteral (Mich.) 312. Evidence that a machine was out of repair a year prior to the injury held not to show that it school building held a material man, and enti

Person furnishing blackboards for public was defective at the time of the accident.--Mc- tled to a lien on the building.–People v. ThompCarthy v. Mulgrew (Iowa) 527.

son (Mich.) 314. Whether a fireman should appreciate the peril

A party held not entitled to a lien as subconof remaining on the engine after it commenced to act in an unusual manner, he not knowing (Laws 1893, Act. No. 199).-Fuller v. Detroit

tractor under the Mechanics' Lien Law, 8 1 the cause thereof, is for the jury.-Brownfield Loan & Building Ass'n (Mich.) 612. v. Chicago, R. I. & P. Ry. Co. (Iowa) 1038. The question whether the derailment of a No. 179), providing that a person furnishing

Mechanics' Lien Law, $ 3 (Laws 1891, Act train was due to a broken axle of the engine is material for the erection of a new building for the jury. -Brownfield v. Chicago, R. I. & shall have a lien thereon, held not to apply P. Ry. Co. (Iowa) 1038.

where the material furnished is for finishing an The burden of proving the negligence which incomplete building.--Fuller v. Detroit Loan & was the proximate cause of a servant's injury is Building Ass'n (Mich.) 612.

are

To constitute single contract, it is not nec

MISREPRESENTATION. essary that all the materials should be furnished at one time.-Watkins v. Bugge (Neb.) See “False Pretenses"; "Frand." 83. § 2. Proceedings to perfect.

MODIFICATION. Code, $ 357, held not to permit amendment of a mechanic's lien affidavit as against a subse- Of judgment or order on appeal, see “Appeal quent bona fide mortgagee.-McGillivray v. Case and Error," § 28. (Iowa) 483. An affidavit to a statement for a mechanic's

MONEY RECEIVED. lien claimed by a partnership is insufficient if signed in the firm name.- McGillivray v. Case Recovery of payment in general, see "Payment," (Iowa) 183.

$ 3. To entitle subcontractor to lien, he must file of tax paid, see “Taxation," g 3. sworn claim with register of deeds of proper Evidence in action for money received held to county.-Watkins v. Bugge (Neb.) 83.

justify verdict for plaintiff.—Backus v. A. H. The expressions "filed in the office of the reg. Barber & Co. (Minn.) 959. ister of deeds" and "filed with the register of deeds" equivalent.-Watkins v. Bugge

MONTH. (Neb.) 83.

Proper filing of claim consists in placing Tenancy from month to month, see “Landlord sworn statement in custody of, and leaving and Tenant," $ 4. same with proper officer for record.-Watkins v. Bugge (Neb.) 83.

MORTGAGES. Failure of register of deeds to record sworn statement filed does not affect the lien.-Wat- Discharge of mortgage as consideration for kins v. Bugge (Neb.) 83.

note, see “Bills and Notes," $ 1. Delivery of materials at different times held, under the evidence, to have been done under

Mortgages of particular species of property. a single contract.-Watkins v. Bugge (Neb.) Personal property, see “Chattel Mortgages." 83.

§ 1. Requisites and validity. § 3. Operation and effect.

Words of conveyance in a mortgage, being inA decree of foreclosure of a mechanic's lien operative, are unnecessary.-Morrill v. Skinner held to establish a lien on an equitable interest. (Neb.) 375. --Sheppard v. Messenger (Iowa) 515.

Discharge of a debtor and extension of time 8 4. Enforcement.

for paying the debt held a consideration to supForeclosure of a mechanic's lien against the port a note of a third person for the debt and holder of an equitable interest held not invalid a mortgage securing it.-Morrill v. Skinner because the holder of the legal title was not a

(Neb.) 375. party.--Sheppard v. Messenger (Iowa) 515. The promise of one to assume a debt of an

other in consideration of a conveyance by the

other to the promisor supports a note and mortMILITIA.

gage made by the promisor to the creditor in

fulfillment of the promise.-Morrill v. Skinner The National Guard are not "troops," within (Neb.) 375. Const. U. S. art. 1, § 10, nor a "standing army, within Bill of Rights, $ 14.--State v. Wagener

A quitclaim deed given to secure a debt held a (Minn.) 424.

mortgage.-Huston v. Canfield (Neb.) 763; Can

field v. Same, Id. MINES AND MINERALS.

§ 2. Recording and registration.

An unrecorded mortgage is not void as to § 1. Public mineral lands.

creditors generally, but only as to those whose Co-tenant of mining claim, who, on work not Bank v. Stewart (Neb.) 370.

transfers have been first recorded.-Blair State being done, relocates it, holds it as trustee for co-tenants.-McCarthy v. Speed (S. D.) 590. $ 3. Construction and operation. Owner of unpatented placer claim can lo

A mortgage helil not to secure payment for cate a lode claim within the boundaries of his services in trying to obtain extension of the time placer claim.-McCarthy v. Speed (S. D.) 590.

for paying the principal debt, it not being ob

tained.-Steckel v. Standley (Iowa) 489. § 2. Title, conveyances, and contracts. Citizenship and right to maintain claim de beneficiaries for legal services to be performed

A mortgage securing the mortgagee or his pendent thereon cannot be questioned in an ac- does not secure a stranger performing them, as tion with other persons to determine adverse against a purchaser of the land, though the claims to mining property.–McCarthy v. Speed stranger“afterwards acquire the mortgage.(S. D.) 590.

Steckel v. Standley (Iowa) 489. One locating a lode claim, and recording certificate, held estopped, as against one to whom of the consideration for land conveyed as se

An assumption of a mortgage held not a part he sold an interest, to assert that there was no discovery to support the location.-McCarthy not personally liable on the first mortgage.

curity merely, and the second mortgagee was v. Speed (S. D.) 590.

Webber v. Lawrence (Mich.) 266. 83. Operation of mines, quarries, and An unrecorded mortgage held fraudulent as wells.

against a judgment creditor who extended credUnder How. Ann. St. § 8408, lien for labor it on the faith of the apparently unincumbered against mining company held superior to mort. title.--Belcher v. Curtis (Mich.) 310. gage lien prior in time.-Atlantic Dynamite Co. v. Ropes Gold & Silver Co. (Mich.) 938; Ish

Extension of mortgage by executors of mortpeming Nat. Bank v. Johnson, Id.

gagee without knowledge of second mortgage held not a release from the lien of the first

mortgage.-Norton v. Myers (Minn.) 298. MINORS.

Knowledge of testator of second mortgage on See "Infants."

property on which he holds first mortgage held

not knowledge of his executors.-Norton v. Conveyance of legal title will not defeat a Myers (Minn.) 298.

prior mortgage of an equitable estate, where Mortgages executed on the same day to differ- rights of innocent purchaser without notice are ent mortgagees held co-ordinate.-Terry v. Mo- not involved. - Arlington Mill & Elevator Co. v. ran (Minn.) 777.

Yates (Neb.) 677. $ 4. Rights and liabilities of parties.

One who accepts a conveyance agreeing to A mortgagor held not entitled to enforce an

pay a mortgage thereon is bound to the incumagreement of a second mortgagee to pay the brancer, and estopped from denying the validifirst mortgage, because the mortgagor had fail- lt_of the incumbrance.—Goos v. Goos (Xeb.)

687. ed to perform his own part of the agreement.Webber v. Lawrence (Mich.) 266.

Conveyance of premises to the mortgagee, and Under 2 How. Ann. St. $ 7847. a mortgage the giving of the note for the debt, held a couis a mere security, and the title to the mortgaged sideration for the mortgagee's assuming a subpremises remains in the mortgagor.-Dawson v. sequent incumbrance.-Goos v. Goos (Neb.) 687. Peter (Mich.) 997.

§ 7. Payment or performance of conDefendant hell to occupy the position of see

dition, release, and satisfaction. ond mortgagee, so that as such he owed the A purchaser of lands held protected as a bona first mortgagee no duty to pay taxes.- Ameri- fide purchaser from a foreclosure of a mortgage can Baptist Missionary Union v. Weeks (Minn.) erroneously discharged of record.-Lowry v. Ben36.

nett (Mich.) 935. Right of second mortgagee to hold tax title Evidence held insufficient to sustain finding as security for reimbursement by the first mort- that consideration of mortgage was not paid to gagee held not extinguished by his failure to mortgagor.-Dart v. Minnesota Loan & Trust pay taxes which accrued after he became own- Co. (Minn.) 288. er, subject to the first mortgage.-American Baptist Missionary Union v. Weeks (Minn.) 36. been paid in full to authorized agents of mort

Finding of trial court that a mortgage had Where a second mortgagee purchased a tax gagee held justified by the evidence.-Bailey v. title to protect his interest, and the purchase Anderson (Klinn.) 414. inured to the first mortgagee's benefit, the second mortgagee was entitled to reimbursement.

Evidence held insufficient to show payment of American Baptist Missionary Union v. Weeks mortgage note to mortgagee's agent.-Dwight v. (Minn.) 36.

Lenz (Minn.) 546. As between first and second mortgagee, one

Evidence held to show payment of note and cannot acquire tax title on the mortgaged prop- mortgage sued on.-Lynn v. Hanson (Minn.) erty as against the other.-Norton v. Myers

976. (Minn.) 298.

Where mortgagor pays debt to supposed agent, Possession of portion of mortgaged property without production of note and mortgage, he asby subsequent grantee held not notice to exec- sumes risk of establishing authority of agent utors of first mortgagee of existence of second to receive such payment.-Budd v. Broen (Minn.) mortgage.-Norton v. Myers Minn.) 298.

979. Mortgagee held entitled to reimbursement for Evidence held not to show an unconditional taxes and insurance premiums paid and interest payment of a mortgage.--Gage v. Gage (S. D.) thereon.-Northwestern Mut. Life Ins. Co. v.

109. Butler (Neb.) 667.

$ 8. Foreclosure by exercise of power Bond and mortgage providing for payment on

of sale. default of taxes and assessments held to include A foreclosure of the whole of the mortgage special assessments by law made liens on mort- premises for an installment of the mortgage gaged property.--Northwestern Mut. Life Ins. debt exhausts lien of mortgage.-Darelius v. Co. v. Butler (Neb.) 667.

Davis (Minn.) 214. The fact that a first mortgagee was induced In action to recover surplus in hands of mortto agree to pay a second mortgage by threats gagee after foreclosure, held, that the burden of the mortgagors either to convey or lease the was on mortgagee to show that he had made land held not to constitute fraud or duress.- certain payments for taxes, as alleged.-SimGoos v. Goos (Neb.) 687.

mer v. Blabon (Minn.) 233. Mortgagor in possession held entitled to rents In action by assignee of second mortgage to and profits, which right descends to his grantee recover surplus on foreclosure of first mortor subsequent mortgagee in possession.--Hus- gage, where execution of second mortgage was ton v. Cantield (Web.) 763; Cantield v. Same, denied, held, that note referred to in mortgage Id.

must be introduced in evidence, or its absence Assignment of mortgage or debt.

accounted for.-Gray v. Blabon (Minn.) 234. Assignment of mortgage carries with it im- Surplus remaining after payment of debt on plied warranty of genuineness.-Waller v. Staforeclosure sale belongs to the same persons, ples (Iowa) 570.

and is subject to the same liens, as the land at

the time of the sale.-Perkins v. Stewart (Minn.) A person who holds an assignment of a mort

131. gage as collateral security has authority to receive payments and discharge it, and especially Mortgagee foreclosing under power of sale, so when the assignment so empowers him.- failing to ascertain to whom the surplus belongs, Lowry v. Bennett (Mich.) 935.

and pay it over, held chargeable with interest.--

Perkins v. Stewart (Minn.) 131. $ 6. Transfer of property mortgaged or of equity of redemption.

Gen. St. 1894, 8 6051, requiring party foreThe fact that a grantee withholds a portion of closing by advertisement to file, 10 days after the price claimed by a mortgagee as security foreclosure, affidavit of expenses, is constituagainst the claim does not prevent him from tional.- Perkins v. Stewart (Minn.) 134. disputing the validity of the claim.-Steckel v. That mortgagee assigns his certificate of foreStandley (Iowa) 189.

closure, on being paid the amount due thereon, Evidence held to show that land was convey

to third person at request of mortgagor, does not ed by a husband to the wife in consideration estop the latter from recovering surplus which of her assuming as a charge thereon a debt mortgagee retains.-Johnson v. Stewart (Minn.) which he had ineffectually attempted to secure

135. by mortgage thereof.-Morrill v. Skinner (Neb.) An officer, who sells mortgaged property for 375.

an amount in excess of that due, cannot ex77 N.W.-74

§ 5.