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CHAPTER 31.—FISH.

SECTION 1. [Fish commissioner-Appointment.]-That the governor shall nominate, and by and with the advice and consent of the senate appoint three resident citizens of the state of Nebraska, who shall constitute a board of fish commissioners, who shall hold such office for the term of three years from the date of such appointment and until the appointment of their successors; Provided, That the persons first appointed under this act shall hold such office one, two, and three years, respectively, whose respective terms of office shall be designated in such appointment, and thereafter the governor shall in like manner fill all vacancies in said board during the remainder of the term. [1879, § 1, 154.]

SEC. 2. [Same-Government.]-The board may adopt by-laws for its government not inconsistent with the laws of the state. The person whose unexpired term of office is the shortest shall preside at the business meetings of the board. In the determination of all questions by the board, two members must concur.

SEC. 3. [Compensation-Expenses.]-The members of the board shail receive no compensation for services performed, but they shall be reimbursed actual and necessary expenses incurred in the discharge of the duties of the commission, not to exceed the sum of $500 in any one year, out of money appropriated for that purpose.

SEC. 4. [Powers-Duties.]-The board shall have the entire charge and supervision of all public waters pertaining to the collection, propagation, cultivation, distribution, and protection of fish in this state. It shall have control of all property of the state obtained or held for the purposes contemplated by this act. It shall receive all fish and fish spawn donated to the state by the United States fishery commission, or from other sources or persons, or purchased by the state. It may establish hatching boxes, etc., for the preservation and hatching of spawn and fry, and in the most practical and economical manner procure and distribute fish in the public waters of this state, and adopt such other means as shall, in its judgment, best promote the increase and preservation of food fishes.

SEC. 5. [Same.]-The commissioners may take or cause to be taken, under the direction of the board, any fish at any time for the purpose of fish culture or for scientific observation. They shall give special attention to the enforcement of the laws of the state relative to the protection of fish and fisheries in the state.

SEC. 6. [Report to governor.]--The board shall annually, on or before the first day of January in each year, report its transactions, with an account in detail of all its receipts and expenditures, to the governor, also of all spawn and fish taken or received and distributed, giving time, place, and sources from which received, and such other matters as appertain to the fishery interests of the state.

CHAP. 31. "An act creating a board of fish commissioners for the propagation and distribution of fish in the public waters of Nebraska." Laws 1879, 154.

CHAPTER 32.-FRAUDS.

FRAUDULENT CONVEYANCES AND CONTRACTS RELATIVE TO REAL ESTATE.

SECTION 1. [When void.]-Every conveyance of, or charge upon, any estate or interest in lands, or the rents and profits thereof, made or created with intent to defraud prior or subsequent purchasers for a valuable consideration, shall, as against such purchasers, be void. [R. S. 292. G. S. 391.]

SEC. 2. [Subsequent purchaser.]-No such conveyance or charge shall be deemed fraudulent, in favor of a subsequent purchaser, who shall have actual or legal notice thereof at the time of his purchase, unless it shall appear that the grantor in such conveyance, or person to be benefited by such charge, was privy to the fraud intended.

SEC. 3. [Conveyance to be in writing.]-No estate or interest in land, other than leases for a term not exceeding one year, nor any trust or power over or concerning lands, or in any manner relating thereto, shall hereafter be created, granted, assigned, or surrendered or declared, unless by act or operation of law, or by a deed or conveyance in writing, subscribed by the party creating, granting, assigning, surrendering, or declaring the same.

SEC. 4. [Wills and trusts.]-The preceding section shall not be construed to affect in any manner the power of a testator in the disposition of his real estate by a last will and testament, nor to prevent any trust from arising or being extinguished by implication or operation of law.

SEC. 5. [Lease.]-Every contract for the leasing, for a longer period than one year, or for the sale of any lands, or any interest in lands, shall be void unless the contract, or some note or memorandum thereof, be in writing, and signed by the party by whom the lease or sale is to be made.

SEC. 6. [Specific performance.]-Nothing in this chapter contained shall b construed to abridge the powers of the court of chancery to compel the specific performance of agreements in cases of part performance.

FRAUDULENT CONVEYANCES AND CONTRACTS RELATIVE TO GOODS, CHATTELS, AND THINGS IN ACTION.

SEC. 7. [When void.]-All deeds of gift, all conveyance, and all transfers or assignments, verbal or written, of goods, chattels, or things in action, made in trust for

SEC. 1. Statute does not render contract void, but voidable. 8 Neb. 114. 11 Id. 227. Exempt property not susceptible of fraudulent alienation. 8 Neb. 174. 10 Id. 117. 13 Id. 403. Bona fide purchasers for valuable consideration without notice protected. 6 Neb. 99. But one who purchases with notice, though for a valuable consideration, is not bona fide. Id.; 11 Id. 328. Fraudulent intent must have been participated in or at least known to the purchaser; 9 Neb. 47. 13 İd. 514. 22 Id. 814. But where purchaser has notice of fraudulent intent, he is not site. 15 Neb. 514. 15 Id. 404. 12 Id. 456. 22 Id. 814. Burden of proof on purchaser. 15 Neb. 289. 19 Id. 47. Debtor cannot mortgage all his property to preferred creditor. 29 Id., 108. 30 Id., 800.

SEC. 3. Parol testimony inadimissible to prove surrender of leased premises. 7 Nep. 75. Payment of a small portion of purchase money is not such part performance as takes the contract out of the statute. 1 Neb. 53. 17 Id. 58. 20 Id. 50. Whether payment of considerable portion sufficient, quaere. 13 Neb. 306. Part performance by the vendor, including delivery of possession and full performance by the vendee, will take the case out of the stat ute. 10 Neb. 138. Verbal contract for purchase of real property with payment of a portion of purchase price and actual possession, would constitute a valid contract not within the statute. 25 Neb. 94. Third party purchasing from vendor while first vendee is in possession takes property subject to his rights. Id. Parol agreements held not within the statute. 9 Neb. 384. Under this section acknowledgment and record of deed not necessary to pass title. 12 Neb. 155. Statute no defense in action to recover price of land conveyed. 12 Neb. 634. 14 Id. 177. Authority of agent to sell must be in writing unless there is subsequent ratification of his acts. 14 Neb. 292. Memorandum of contract which contains names of the parties, description of property, price, and refers to ten year terms of the seller as the terms of sale, is sufficient. Memorandum signed by agent in his own name binding on principal. 15 Neb. 131. Agreement need only be signed by him to be charged. 12 Neb. 552. 17 Id. 679. Express trust cannot be raised by parol. 19 Neb. 440. Memorandum as evidenced by letters passing between parties, Held, Sufficient to take case out of the statute. 16 Neb. 238. Where order for goods is entire, the acceptance of part of the goods takes case out of the statute. 16 Neb. 402. Direct promise of agent, who is in possession of goods of an insolvent debtor in satisfaction of a debt of his principal, to pay the claim of another against such debtor, if he will not disturb him in the possession of such goods, is not a promise to answer for the debt of another and need not be in writing. 24 Neb. 655. Parol agreement to convey does not create express trust. 3 Neb. 61. 19 Id. 433. 20 Id., 347. 31 Id., 340. Trust may be created by written contract. 30 Id., 469. Contemporaneous oral agreement of conditions. 30 Id., 302,

SEC. 5. Contracts of agents. 8 Neb., 213. 17 Id., 124. Leases. 13 Neb., 6. 15 Id., 170. 19 Id., 542. Oral acceptance of an option to purchase contained in a lease, Held, Sufficient under the statute. 25 Neb., 517. Contract of sale. 11 Id., 196. 20 Id., 662. SEC. 6. Part performance, deposit of building material. 30 Neb., 489.

SEC. 7. Decisions relative to assignments. See chap. 6.

the use of the person making the same, shall be void as against the creditors, existing or subsequent, of such person.

SEC. 8. [Contract to be written.]—In the following cases every agreement shall be void unless such agreement, or some note or memorandum thereof, be in writ ing, and subscribed by the party to be charged therewith: First-Every agreement that by its terms is not to be performed within one year from the making thereof. Second-Every special promise to answer for the debt, default, or misdoings of another person. Third-Every agreement, promise, or undertaking made upon consideration of marriage, except mutual promises to marry. Fourth-Every special promise by an executor or administrator to answer damages out of his own estate.

SEC. 9. [Same.]-Every contract for the sale of any goods, chattels, or things in action, for the price of fifty dollars or more, shall be void unless-First-A note or memorandum of such contract be made in writing, and be subscribed by the party to be charged thereby; or, Second-Unless the buyer shall accept and receive part of such goods or the evidences, or some of them, of such things in action; or, Third-Unless the buyer shall, at the time, pay some part of the purchase money.

SEC. 10. [Public auction.]-Whenever goods shall be sold at public auction, and the auctioneer shall, at the time of sale, enter in a sale book a memorandum specifying the nature and price of the property sold, the terms of the sale, the name of the purchaser, and the name of the person on whose account the sale is made, such memorandum shall be deemed a note of the contract of sale within the meaning of the last section.

SEC. 11. [Sale void unless accompanied by delivery.]-Every sale made by a vendor of goods and chattels in his possession or under his control, and every assignment of goods and chattels, by way of mortgage or security, or upon any condition whatever, unless the same be accompanied by an immediate delivery, and be followed by an actual and continued change of possession, of the things sold, mortgaged, or assigned, shall be presumed to be fraudulent and void, as against the creditors of the vendor, or the creditors of the person making such assignment, or subsequent purchasers in good faith; and shall be conclusive evidence of fraud unless it shall be made to appear on the part of the persons claiming under such sale or assignment that the same was made in good faith, and without any intent to defraud such creditors or purchasers. SEC. 12. [Creditors.]-The term "creditors," as used in the last section, shall be construed to include all persons who shall be creditors of the vendor or assignor at any time whilst such goods and chattels shall remain in his possession or under his control.

SEC. 13. [Exception.]-Nothing contained in sections ten and eleven shall be construed to apply to contracts of bottomry or respondentia, nor to assignments or hypothecations of vessels or goods at sea, or in foreign ports, or upon the waters of a navigable stream, if the assignee or mortgagee shall take possession of such vessels or goods as soon as may be after the arrival thereof.

SEC. 14. [Chattel mortgage.]—Every mortgage or conveyance intended to

SEC. 8. Promises, Held, Good under the statute. 12 Neb. 70. 14 Id. 20. 15 Id. 101, 131. 9 Id. 384. 18 Id. 567. 19 Id. 532. Promises, Held, Void. 10 Neb. 368. 16 Id. 17. And see 13 Neb. 306. There being no delivery of the deed in question, Held, That it was not available as a memorandum of a contract; nor would certain mortgage and notes executed by the grantee, but not delivered, constitute such memorandum sufficient to take the case out of the statute. 24 Neb. 86. Promise to pay debt of another; case stated, and promise, Held, To be an original undertaking and not within the statute. 25 Neb. 226.

SEC. 9. Object of section stated. 9 Neb. 180. Defense cannot be interposed by strangers. 10 Neb. 417. SEC. 11. Question of fraud, how raised. 2 Neb. 151. 13 Id. 77. Retention of possession by mortgagor. 3Neb. 75. 6 Id. 219, 333, 397, 400. 11 Id. 120, 122. 7 Id. 138, 433. 8 Id. 377. 9 Id. 50. 12 Id. 586. 13 Id. 264. 14 Id. 393. 16 Neb. 439. See also 12 Id. 456. 20 Neb. 554. 25 Id. 80. Replevin by mortgagee. 18 Neb. 225. Presumption of fraud. 20 Neb., 171. Delivery without removal. 27 Id., 414. Mortgage greatly in excess of debt. Void as to creditors. 33 Id. 714. Retention of possession only prima facie evidence of fraud. 54 Neb., 568.

SEC. 12 Cited 12 Neb., 5×6.

SEC. 14. Mortgage between parties good though not written. 8 Neb., 4. 22 Id., 114. Good between parties, though not recorded. 11 Neb., 496. Or filed. 31 Id., 792. Failure of clerk to index does not render mortgage void as to subsequent mortgagee. 11 Neb., 501. Filing in case stated Held, Insufficient as legal notice. 25 Neb. 418. Refiling and recording not necessary for protection of mortgagee. 13 Neb., 76. Object of filing stated, 16 Neb., 461. Filed in county where mortgagor resides is notice into whatever county mortgagor removes property. Neb, 555. 25 Id., 70. Mortgagee cannot withdraw original instrument from office of clerk where filed and proceed to foreclose. 24 Neb., 595. Removal of property to another county; mortgage must be duly filed in county where sale is to take place.

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operate as a mortgage of goods and chattels hereafter made, which shall not be accompanied by an immediate delivery and be followed by an actual and continued change of possession of the things mortgaged, shall be absolutely void as against the creditor of the mortgager, and as against subsequent purchasers and mortgagers in good faith, unless the mortgage, or a true copy thereof, shall be filed in the office of the county clerk of the county where the mortgager executing the same resides, or in case he is a nonresident of the state, then in the office of the clerk of the county where the property mortgaged may be at the time of executing such mortgage, and such clerk shall endorse on such instrument or copy the time of receiving the same, and shall keep the same in his office for the inspection of all persons; and such mortgage or instrument may be so filed, although not acknowledged, and shall be valid as if the same were fully spread at large upon the records of the county. [1879, 107.]

SEC. 15. [Index.]-Such clerk shall also enter in a book to be provided by him for that purpose the names of all the parties to such instrument, arranging the names of such mortgagors alphabetically, and shall note thereon the time of filing such instrument or copy. Such mortgage when satisfied shall be discharged by an entry by the mortgagee, his agent or assignee on the margin of such index, which shall be attested by the clerk without fee; Provided, also, That the county clerk may discharge a mortgage on the presentation or receipt of an order in writing, signed by the mortgagee thereof and a tested by a justice of the peace or some officer with a seal. Any mortgagee, assig.ee, or their legal personal representatives, after full performance of the conditions of the mortgage, who for the space of ten (10) days after being requested shall refuse or neglect to discharge the same as provided in this section, shall be liable to the mortga gor, his heirs, or assigns in the sum of fifty ($50) dollars damages; and also for all actual damages sustained by the mortgagor, occasioned by such neglect or refusal, said damages to be recovered in the proper action. [Amended 1885, chap. 53.]

SEC. 16. [Ceases to be valid in five years.]—Every such mortgage shall cease to be valid as against the creditors of the person making the same, or subsequent purchasers or mortgagees in good faith, after the expiration of five years from the filing of the same copy thereof. Every such clerk shall be entitled to receive the following fees for services under the provisions of this chapter: For filing such instrument or copy thereof, ten (10) cents; for entering the same in a book, ten (10) cents; and for certified copies of such instruments so filed as aforesaid, for every one hundred words, ten (10) cents. [1879, 108.]

GENERAL PROVISIONS.

SEC. 17. [Agreements to defraud.]-Every conveyance or assignment, in writing or otherwise, of any estate or interest in lands, or in goods or things in action, or of any rents or profits issuing therefrom, and every charge upon lands, goods, or things in action, or upon the rents and profits thereof, made with the intent to hinder, delay, or defraud creditors or persons of their lawful rights, damages, forfeitures, debts, or demands, and every bond or other evidence of debt given, suit commenced, or decree or judgment suffered, with the like intent as against the person so hindered, delayed, or defrauded, shall be void.

SEC. 18. [Grants or assignments.]-Every grant or assignment of any existing trust in lands, goods, or things in action, unless the same shall be in writing, subscribed by the party making the same, shall be void.

SEC. 19. [Void, as to heirs, etc.]-Every conveyance, charge, instrument, or proceeding declared to be void, by the provisions of this chapter, as against creditors

21 Neb. 400. Mortgage properly filed becomes part of the records of county; duly certified to by proper officers is competent evidence of equal credibility to the original. 25 Neb. 563. Execution of mortgage under assumed and fictitious name; mortgage properly filed; sale by mortgagor to third party under his true name, Held, That title did not pass by the latter sale. 25 Neb. 456. In execution of nattel mortgage a trust is created in favor of mortgagor in respect to residue of property after claim of mortgagee is satisfied. 24 Neb., 63. Sureties not necessarily bona fide purchasers. 34 Id., 416.

SEC. 17. Cause of action, how stated. 7 Neb.. 434. Vendee participating in fraud. 6 Neb., 99. Rights of alimony included. 18 Neb., 476. Section cited. 19 Neb.. 341. 7 Id., 24. 22 Id., 814. See also chap. 6, ante. Right

of action limited to person hindered, etc. 28 Neb., 575.

or purchasers, shall be equally void against the heirs, successors, personal representatives, or assignees of such creditors or purchasers.

SEC. 20. [Fraudulent intent.]-The question of fraudulent intent in all cases arising under the provisions of this chapter shall be deemed a question of fact, and not of law, and no conveyance or charge shall be adjudged fraudulent, as against creditors or purchasers, solely on the ground that it was not founded on a valuable consideration.

SEC. 21. [Title of purchasers.]-The provisions of this chapter shall not be construed in any manner to affect or impair the title of a purchaser for a valuable consideration, unless it shall appear that such purchaser had previous notice of the fraudulent intent of his immediate grantor, or of the fraud rendering void the title of such grantor.

SEC. 22., [Lands.]-The term "lands,” as used in this chapter, shall be construed as co-extensive in meaning with "lands, tenements, and hereditaments," and the terms "estate and interest in lands" shall be construed to embrace every estate and interest, free hold and chattel, legal and equitable, present and future, vested and contingent, in lands as above described.

SEC. 23. [Conveyance.]-The term "conveyance," as used in this chapter, shall be construed to embrace every instrument in writing (except a last will and testament), whatever may be its form, and by whatever name it may be known in law, by which any estate or interest in lands is created, aliened, assigned, or surrendered.

SEC. 24. [Consideration.]-The consideration of any contract or agreement, required by the provisions of this chapter to be in writing, need not be set forth in the contract or agreement, or in the note or memorandum thereof, but may be proved by any other legal evidence.

SEC. 25. [Agents.]-Every instrument required by any of the provisions of this chapter to be subscribed by any party may be subscribed by his agent, thereunto authorized by writing.

SEC. 26. [Contracts, etc., to be in writing.]-That no sale, contract, or lease, wherein the transfer of title or ownership of personal property is made to depend upon any condition, shall be valid against any purchaser or judgment creditor of the vendee or lessee in actual possession, obtained in pursuance of such sale, contract, or lease without notice, unless the same be in writing, signed by the vendee or lessee, and a copy thereof filed in the office of the clerk of the county, within which such vendee or lessee resides; said copy shall have attached thereto an affidavit of such vendor or lessor, or his agent or attorney, which shall set forth the names of the vendor and vendee or lessor and lessee, or description of the property transferred and the full and true interest of the vendor or lessor therein. All such sales and transfers shall cease to be valid against purchasers in good faith or judgment or attaching creditors without notice at the expiration of five years, unless such vendor or lessor, shall, within thirty days, prior to the expiration of the five years from the date of such sale or transfer, file a copy thereof, verified as aforesaid, in the office of said clerk, and the said vendor or lessor may preserve the validity of his said sale or transfer of personal property by an annual refiling in the manner as aforesaid of such copy. [1879, § 1, 102.]

SEC. 27. [Index.]-The county clerk, on presentation, shall file such copy in his office, and index the same in the same manner as chattel mortgages are required to be indexed, and he shall receive therefor a fee of twenty-five cents. This act shall not be

held to apply to chattel mortgages. [Id. § 2.]

SEC. 28. [Fraudulent transfer.]-If any person or persons in this state,

SEC. 20. 4 Neb., 171. 6 Id., 99.

12 Id., 586. 13 Id., 33. And see 16 Neb., 93. 31 Id., 453. Intent must be plead. 12 Neb., 586.

18 Id., 453, 573. 19 Id., 47.

SEC. 21.

Cited 22 Neb., 814.

SEC. 23.

Cited 14 Neb.. 292.

SEC. 24. SEC. 25.

Cited 20 Neb., 657.

Cited 1 Neb., 52. 3 Id., 213. 14 Id.. 292.

SEC. 26. See 5 Neb., 180. 9 Id., 444. 13 Id., 72. 18 Id., 581. See 30 Id., 860.

statute. 35 Id., 536. SEC. 28.

Agreements to sell not within

Attaching and judgment creditors on same footing. 34 Id.. 8. "An act to prohibit the fraudulent transfer of property and to declare the same a crime, and to prescribe the punishment thereof." Passed and took effect June 1, 1883. This act, in so far as it prohibits the

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