is called, are advisory only, and the court cannot commit reversible error in the giving or refusal of instructions. Peterson v. Estate of Bauer, 76 Neb. 652 (111 N. W. 361).

Conclusiveness and effect of verdict. 94. (1900.) A finding in an equity cause which does not respond to the issues, and which is, at plaintiff's instance, treated as, and declared to be, advisory only, will not warrant the court in rendering a personal judgment against the defendants; and in such case mandamus will not lie to compel the court to render a personal judgment in favor of the plaintiff on such finding. State, ex rel. Emerson, v. Dickinson, 59 Neb. 753 (82 N. W. 16).

95.

(1901.) The verdict in an equity case on a finding of fact is advisory only and not binding and conclusive on the trial court. Bank of Stockham v. Alter, 61 Neb. 359 (85 N. W. 300).

Waiver of right to jury trial.

96. (1902.) An order transferring an action in ejectment to the equity docket because of equitable defenses raised in an an swer, will not preclude the moving party from demanding that the purely legal issues be tried by jury, if his request for a jury trial is timely and is insisted upon. Schumacher v. Crane-Churchill Co., 66 Neb. 440 (92 N. W. 609).

97. (1902.) Where an action in ejectment has been transferred to the equity docket, going to trial upon all the issues, without demanding a jury as to any of them, it is a waiver of a jury as to that trial. Schumacher v. Crane-Churchill Co., 66 Neb. 440 (92 N. W. 609).

98. (1903.) When, in a suit in equity, the plaintiff tenders issues properly triable at law and by a jury only, but which are within the jurisdiction of the court, the defendant, upon raising such issues by answer, may, if he chooses, demand a jury for their trial, but if he neglect so to do he will be deemed to have waived his right. Horton v. Simon, 5 Unof. 172 (97 N. W. 604). Findings by court.

99. (1903.) A finding by a trial court "that there are no equities with the defendants and that all the equities are with the plaintiffs," is not a finding of fact, but a conclusion of law, and standing alone it is insufficient to support a judgment. Ganow v. Denny, 68 Neb. 706 (94 N. W. 959).

sufficient to bring the subject matter before the court, the decree may not be attacked collaterally merely for want of findings; such defect goes no further than to render the decree irregular or erroneous. Cizek v. Cizek, 69 Neb. 797 (96 N. W. 657).

VI. DECREE.

Sufficiency of recitals.

101. (1903.) The description in the decree, of the lands in controversy, held not sufficiently definite and certain. Egan v. Light, 4 Unof. 127 (93 N. W. 859). Interlocutory decree.

102. (1898.) Where, after an entry of an interlocutory decree finding a defendant entitled to a foreclosure against property which had been conveyed to him, he withdrew his cross-petition and without objection introduced additional evidence upon, and took part in, the trial of the issue whether or not he held the property in dispute in fraud of the rights of creditors of his grantor, he could not complain that the court had no power to enter a decree on the issue last indicated without formally setting aside the interlocutory decree first entered. Ellis v. Harris, 56 Neb. 398 (76 N. W. 898). Two decrees at same term.

103. (1901.) The rendition of two decrees in a case at the same term, but not on the same day, is not reversible error if the rights of the litigants have been correctly determined. Plummer v. Park, 62 Neb. 665 (87 N. W. 534).

Decree on conditions.

104. (1902.) Where, on a motion to make a decree absolute, which was contingent on the payment by the plaintiff of a certain sum and the costs in a certain action, it appeared that the plaintiff had complied with the decree on his part, save that through oversight he had omitted to pay a small item of costs which he thereupon tendered, the tender should have been accepted and the rule granted. Commercial State Bank of Crawford v. Ketchum, 3 Unof. 839 (92 N. W. 998).

105. (1904.) When a decree in equity requires the plaintiff to deposit money or securities in court as conditions precedent to enforcing the decree against the defendant, and defendant, within the time limited for making such deposit, appeals from said decree and supersedes the same, the time allowed for making the deposit is thereby extended until a like time after the decree

becomes again enforceable. Ruzicka บ. Hotory, 72 Neb. 589 (101 N. W. 328).

Conformity to pleadings and proof and verdict.

106. (1895.)

Where a defendant files no pleading except a demurrer to the petition on the ground that it does not state a cause of action, other defendants answering and presenting issues, a decree reciting that the case was heard on the pleadings and eviConce, then finding the facts as alleged in the petition and granting to plaintiff the relief prayed, will be treated as an order overruling the demurrer and entering judgment thereon. Moore v. Kime, 43 Neb. 517 (61 N. W. 736).

107. (1897.) Where issues in an equity case have been submitted to a jury, the judgment need not strictly conform to the verdict, but the court may, on determining other issues, enter such judgment as the whole case demands. Omaha Fire Ins. Co. r. Thompson, 50 Neb. 580 (70 N. W. 30).

108. (1898.) The findings and decree in an action in equity should respond to all the material issues presented by the pleadings. Clark v. Neumann, 56 Neb. 374 (76 N. W. 892).

109. (1899.) Decree in equity must conform to the pleading and proof. Ross v. Sumner, 57 Neb. 588 (78 N. W. 264). 110. (1903.) A prayer for general equitable relief, coupled with that of one for specific relief, can not be extended so as to warrant the granting of relief not embraced within and comprehended by the allegations of fact contained in the pleading. Grand Island Electric Light, Ice & Cold orage Co., 68 Neb. 233 (97 N. W. 613). Intry.

Vila v.

111. (1902.) In a suit for the foreclosure of a mechanic's lien, trial was had to the court, but before making findings of fact or pronouncing judgment, the district court adjourned to a certain date several days later, and the judge returned to his home in another county. Court did not reconvene on the day named, but on that date the clerk received by express from the judge memoranda of his findings and decree in the case, which he entered of record. At the next succeeding term an application on the part of defendants in the case to correct the record to show that no decree was in fact en

$116 tered was overruled. Held, Error. Conover v. Wright, 3 Unof. 211 (91 N. W. 545). 112. (1903.) The signature of the presid ing judge, to a decree or the record, is not essential to the validity of the decree. Gallentine v. Cummings, 4 Unof. 690 (96 N. W. 178).

Entry nunc pro tunc.

113. (1902.) In deciding a motion for a nunc pro tunc order, the district court may act upon any satisfactory competent evidence in support thereof, although minutes of the proceedings, or other writing appearing in or upon the records of the court are regarded as a better class of evidence. Harris t. Jennings, 64 Neb. 80 (89 N. W. 625; 97 Am. St. Rep. 635).

Lien.

114. (1904.) A decree wherein a party is directed to pay a specific fund in his hands into court for distribution among claimants thereto, will not be held to be a lien upon the real estate of such party in favor of the claimants, unless it is provided by the decree that the claimants recover of the party holding the fund, and that in default of payment execution may issue. Campbell v. Noyes, Norman & Co., 72 Neb. 201 (100 N. W. 205). Collateral attack. 115. (1903.) Where the court had jurisdiction of the parties and of the subject matter, and such subject matter was brought before it by the pleadings, its decree is not open to collateral attack, although the jurisdiction may have been exercised and the subject matter dealt with erroneously or irregularly. Cizek v. Cizek, 69 Neb. 797 (96 N. W. 657).

Action on decree.

EROSION.

See Water and Watercourses, § 70. ERROR.

See Appeal and Error.

1. (1876.) The administrator of the estate of a decedent with no heirs can convey no title to such lands, and has no right of possession to the same to deliver. State, ex rel. Roberts, v. Reeder, 5 Neb. 203.

2. (1876.) Upon the death of a tenant in fee with defect of heirs the title and right of possession to the lands, and also to his personal estate, eo instanti vest in the state, and by the operation of the laws of this state all such estate, real and personal, immediately becomes and constitutes a part of the general school fund of the state. State, ex rel. Roberts, v. Reeder, 5 Neb. 203. 3. (1876.) By the constitution the legislature is inhibited from diverting such

school funds derived from escheats to any other special objects; and, therefore, the legislative act approved February 17, 1875, vesting in trustees the escheated estate of Henry Hooper, deceased, for a special purpose and object, is a nullity. State, ex rel. Roberts, v. Reeder, 5 Neb. 203.

4. (1904.) Lands purchased by a county, under the provisions of section 1, article IX, chapter 77, Compiled Statutes, are held in trust for itself, the state, and all other political subdivisions entitled to any portion of such delinquent taxes. Such lands are not acquired by the state by escheat or forfeiture, and do not belong to the permanent school fund. Woodrough v. Douglas County, 71 Neb. 354 (98 N. W. 1092).

85

ditions, no title passes to such grantee. Patrick v. McCormick, 10 Neb. 1 (4 N. W. 312).

5. (1882.) It is only where the deed is delivered to a third person, to be held until some condition be performed on behalf of the grantee, that it can properly be said to be an escrow. If it be delivered to the grantee, although with the understanding that the wife of the grantor shall afterwards execute it also, this being solely for the benefit of the grantee, he may waive it, and the delivery is complete. Brittain v. Work, 13 Neb. 347 (14 N. W. 421).

6. (1893.) The finding of the trial court, that the deed executed by the plaintiff and deposited in escrow with a third person, to be delivered to the vendee on the performance by the latter of certain conditions, was delivered by the depository in escrow by instructions of the vendor before the conditions of the holding had been complied with, considered to be sustained by the evidence in the case. Eggleston v. Pollock, 38 Neb. 188 (56 N. W. 805).

Fraudulent or unauthorized delivery.

7. (1880.) A fraudulent delivery by, or procurement from, the depository of a deed deposited as an escrow will not operate to pass the title even in favor of a subsequent purchaser in good faith, without notice. Cotton v. Gregory, 10 Neb. 125 (4 N. W. 939).

$1 8. (1901.) A deed or other similar instrument placed in the hands of a third per son for delivery to the grantee when he shall perform some condition, is not legally effec tive, but is a mere nullity, if delivered by the depositary, or obtained from him in any way, without full compliance with the condi tion specified. Matteson v. Smith, 61 Neb. 761 (86 N. W. 472).

9. (1893.) Where a mortgage is executed and deposited in escrow with a third person to be delivered to the mortgagee on the performance by the latter of certain conditions, the delivery thereof by the custodian to the mortgagee, without the knowledge or consent of the mortgagor before the fulfillment of the conditions by the mortgagee, will not have the effect to confer any interest in the mortgaged property upon the latter, or upon an assignee with notice. A mortgage deliv ered to a third party in escrow, to be by him delivered upon the happening of some contingency, or upon the performance of some condition, does not become effectual as a delivered instrument until such second de livery. Roberson v. Reiter, 38 Neb. 198 (56 N. W. 877).

Actions.

10. (1906.) The depositary of funds in escrow is entitled to prove any facts which would defeat the plaintiff's claim thereto. Brockway v. Reynolds, 77 Neb. 225 (109 N. W. 154).

in the land. Therefore estates are divided into such as are freehold and those less than a freehold. Crawl v. Harrington, 33 Neb. 107 (49 N. W. 1118). Estate of inheritance.

2. (1891.) An estate less than a freehold is not an estate of inheritance. Crawl

v. Harrington, 33 Neb. 107 (49 N. W. 1118). Freehold estates.

3. (1891.) Al freehold estates are of inheritance except life estates. Crawl v. Harrington, 33 Neb. 107 (49 N. W. 1118).

4: (1898.) An estate less than a freehold is not an estate of inheritance, and a freehold estate is one of which possession, at the common law, could only be given by livery of seisin. Hall v. Crabb, 56 Neb. 392 (76 N. W. 865).

7. (1871.) There can be no merger unless a grea er and a less estate meet in the same person holding in the same right; nor where intervening rights or estates interfere nor where the interests of the party in whom the estates meet so require. Miller v. Finn. 1 Neb. 254.

8. (1889.) Where the general owner of real property receives a deed therefor from a person holding a tax title to said property, the title conveyed by such deed will become merged in the title of such general owner. Wygant v. Dahl, 26 Neb. 562 (42 N. W. 735).

9. (1896.) Whenever a person acquires a greater and lesser estat in the same property and there is no inte-vening estate, the lesser does not further exist as a sepa rate estate but is destroyed by or is considered in law as merged in the greater but when, in such a case, an intention that the estates remain separate and distinct is expressed or may be implied or inferred, no

merger can ensue but the intention will prevail. Mathews v. Jones, 47 Neb. 616 (66 N. W. 622).

10. (1898.) It is a general rule that where two unequal estates vest in the same person at the same time, without an intervening estate, the smaller is thereupon merged in the greater. But merger does not always or necessarily result from such a coinciding of such estate. Petersborough Savings Bank v. Pierce, 54 Neb. 712 (75 N. W. 20).

11. (1898.) Whether two estates will be held to have coalesced will depend upon the facts and circumstances in the particular case, the then intention of the party acquiring the two estates, and the equities of the parties to be affected. Petersborough Savings Bank v. Pierce, 54 Neb. 712 (75 N. W. 20).

12. (1899.) Generally, if two unequa! estates are vested in the same party at the one time, and there is no intervening estate, the inferior is merged in the superior. Oak Creek Valley Bank v. Helmer, 59 Neb. 176 (80 N. W. 891).

13. (1899.) The merger of an inferior in a superior estate is not an absolute effect of the vesting of the unequal titles in the one person at the same time. Whether such will be the effect may depend upon the intention of the party in whom the titles appear, either as directly expressed or as it may be inferred or implied from the facts and circumstances of the particular case. Oak Creek Valley Bank v. Helmer. 59 Neb. 176 (80 N. W. 891).

14. (1899.) Whether a merger results from the possession by the same person at the same time of two estates of different rank in the same property depends generally on the intention of the owner. Longfellow v. Barnard, 58 Neb. 612 (79 N. W. 255; 76 Am. St. Rep. 117).

15. (1902.) Where the owner of real estate, in whom apparently was merged the lesser into the greater estate, treats the two estates as having coalesced, and assumes to convey the full estate to another, this would be conclusive as to him on the question of merger, which would be held irrevocably to have taken place. Ames v. Miller, 65 Neb. 204 (91 N. W. 250).