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court therein, "entered in record, No. 11 of the records of said court, on page 381", is sufficient to put subsequent purchasers or mortgagees, from the grantee, on inquiry as to the character, extent and contents of the order and judgment. As to all matters affecting his title which such record would disclose and with respect to equities in favor of third persons, which might thus have been discovered, they can not be deemed innocent purchasers; Singer v. Scheible, 109-583.

2. Deed formal, except that it does not contain a reference to the page in the order book of the court, where the order of sale is entered. The omission will not render the deed void; Hamman v. Mink, 99–286.

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1025. Marriage voidable. Under this section, where either of the parties to a marriage is incapable, from unsoundness of mind or want of understanding, of contracting said marriage, a suit for the annulment of such marriage can be maintained on a complaint in the name of the incapable party only; not in the name of his or her guardian; Pence v. Aughe, 101-320.

1027. When issue legitimate, though former marriage exists. This section does not render the marriage valid, in any sense, nor affect the relation of the parties to the marriage; Light . Lane, 41-539; though the marriage was contracted bona fide during a previous marriage and in ignorance of its existence; Teter v. Teter, 88-498. 1029. Decree conclusive. The husband has an action for crim. con. with his wife, accomplished after a final separation from her, which is followed before the commencement of the action- by a divorce, granted to her, on account of his cruelty; Michael v. Dunkle, 84-545.

2. An appeal lies from a decree of divorce; and the order granting the divorce may be reversed; Garner v. Garner, 38-139; Sullivan v. Sullivan, 34-368.

1030. Judgment, how opened. It is not in accordance with the former usage, practice and legislation of the state to disturb, for any reason, judgments or decrees for divorce; Powell v. Powell, 104–23; M’Quigg v. M'Quigg, 13-294. Such a decree can not be set aside for any cause-not even for fraud; M'Quigg v. M'Quigg, 13–294, overruled in Earle v. Earle, 91-27, in which case it was, however, held that such decree can not be reviewed under the statute authorizing the review of judgments in ordinary civil actions (sect. 615).

2. Divorce obtained on notice by publication merely and the decree, under this section, forbidding the party who obtains the divorce to marry within two years. Where such party, in violation of the decree, does marry within that time the marriage is unlawful and voidable but not absolutely void. It will become void, however, if within the two years the decree is opened by the party against whom it was obtained; Mason v. Mason, 101-27.

1031. Petition for divorce-Residence - Affidavit. The provisions of the last sentence of this section, in relation to the affidavit of plaintiff's residence and occupation, are so far mandatory as to require a substantial compliance therewith. Where, however, objections to such affidavit relate chiefly to formal matters and a substituted affidavit is filed, in substantial conformity with the requirements of the statute, a motion to dismiss or to quash the summons, for want of a sufficient affidavit, is correctly overruled; Eastes v. Eastes, 79-368.

1032. Causes for divorce. No rule of law prevents a conviction solely on the testimony of an accomplice; Nevill v. State, 60-308; Ulmer v. State, 14-52. In an action for divorce for adultery, a witness shown guilty, by his testimony, should be received with caution and his testimony be entitled to less weight; Lewis v. Lewis, 9-105.

2. That a husband, without cause and within three years after marriage, abandons his wife and infant child, absconds from the state and, without explanation, excuse or even correspondence to her, leaves her dependent upon her own labor and the charity of friends for the support of herself and child is cruel treatment, within the meaning of the statute, to entitle the wife to a decree; Eastes v Eastes, 79-371.

3. False charges of adultery publicly made by a husband against his wife, constitute cruel and inhuman treatment of the wife, within the meaning of the statute; Graft v. Graft, 76-136; S. E., Shores v. Shores, 23-546.

4. The cause of failure of a husband to make provision for his family does not apply where the failure arises from mental or physical disease. Insanity, arising subsequent to marriage, is not a cause for divorce; Baker v. Baker, 82-146.

1035. Summons and service. The provisions of section 516 in relation to the issue and service of process have no application to suits or proceedings for divorce, but these are governed by this article (37). The fact that summons is issued for a day in term, other than the first day, will afford no sufficient ground for quashing the writ; but its service will be sufficient notice of the pendency of the writ for the next ensuing term of the court; Eastes v. Eastes, 79-366 (section 516 was amended by statute approved March 8, 1883, stat. 1883, p. 199, to make the provision thereby applicable to actions for divorce).

2. Where a judgment for alimony is obtained against a non resident, without notice, upon a false return of service of process, procured by the fraud of the plaintiff, the judgment is void and may be attacked collaterally, the return not being conclusive; Cavanaugh v. Smith, 84-383.

1036. Notice by publication. A failure to serve the summons ten days before the first day of the term of court is no cause for setting the service aside or quashing the writ, but, merely a cause for continuance; Bratton v. Bratton, 79-589.

1037. Issue and trial. Suits for divorce are to be regarded, to a very great extent, as ordinary civil actions; Evans v. Evans, 105-204. It is, also, true that where special provisions are contained in the statute regulating proceedings in divorce they will govern, although differing from the rules which obtain in ordinary civil actions; Powell . Powell, 104-20; Simons . Simons, 107-197.

1041. Witnesses - Depositions. The wife is a competent witness in an action, by her, for divorce, to testify as to the husband's habits of intoxication and his treatment of her and in relation to her conduct as his wife; Smith v. Smith, 77-82; see Brown v. Norton, 67-424; Hutchason v. State, 67-449.

1042. Interlocutory orders, how enforced. The effect of this section is that no liens for attorney's fees can be taken on a judgment for alimony over and above the amount of the allowance - if one be made by the court, for the wife's reasonable expenses in the case. Such allowance includes her attorney's fees and is conclusive on the parties, including the attorney interested, as to what is a reasonable allowance; M'Cabe v. Britton, 79-232; see Husband v. Husband, 67-583.

2. A promise, during marriage, that after a divorce is obtained, a woman will pay a certain sum of money, in consideration of services rendered in obtaining a divorce, is void; Cook v. Walton, 38-228.

1045. Alimony. The amount of alimony is largely matter of discretion of the trial court and will not be reversed on appeal, unless an abuse of discretion be clearly shown; Simons v. Simons, 107-198; Eastes v. Eastes, 79-372; Conn v. Conn, 57-323; Powell v. Powell, 53-513; Ryce v. Ryce, 52-64. This is so, also, as to the allowances to the wife for expenses and attorney's fees. Nor will the court interfere with the order unless objection be first made below; Henderson v. Henderson, 110-319.

2. Divorce being granted, the court has full authority to provide for the support of the children. In determining the amount of such provision and of alimony the court should consider not only the amount of the husband's present estate but, also, his ability to earn in future; Logan v. Logan, 90-111.

3. A husband having settled property on his wife, she afterward applied for a divorce, alleging his misconduct but not insisting on alimony. He is not entitled to show the value of the property and the consideration of the settlement, nor, in the event of a divorce being granted the wife, can he obtain a revocation; Stultz v. Stultz, 107-401.

4. A wife having joined her husband in conveying the latter's land to a third person, in order to place it beyond the reach of an anticipated action against her husband, can not, after obtaining a divorce, have the conveyance set aside and the land subjected to the payment of a judgment for alimony rendered in her favor; Barrow v. Barrow, 108-346.

5. Husband's estate worth seven thousand dollars, consisting largely of a farm of one hundred and twenty acres; allowance of four thousand dollars, without provision for the maintenance and education of an infant child, committed to the mother's custody; excessive by fifteen hundred dollars; Graft v. Graft, 76-141.

6. Marriage the husband being seventy-seven and the wife thirty-three years of age; existing an ante nuptial contract, as to property, containing a release of all share in the husband's estate upon his death and it appeared that the husband had made provision for the wife beyond the requirements of the contract. Allowance to the wife of twenty-five dollars for attorney's fees and refusal to allow alimony not disturbed; Corey v. Corey, 81-47.

7. Husband by his seventh marriage and wife by her fourth, lived together fourteen months. He had property worth twenty-five hundred dollars. She left to visit a sick son, by a former marriage. He went to Missouri and they remained apart, but, prior to the separation, without cause or reason, she refused to permit conjugal privileges. He had expended twenty-six dollars in repairing her house, allowed her to retain household goods worth one hundred and thirty dollars and, while they lived together, comfortably supported her; alimony one hundred dollars sufficient; Tumbleson v. Tumbleson, 79–559.

8. A decree awarding alimony is a judgment upon which an action may be maintained, in the same court in which it was rendered; Hansford v. Van Anken, 79-304. 1046. Custody of children. The duty of making provision for children is imposed independent of the wishes of the parents or of any issues they may make in the pleadings, as to their fitness or unfitness for such custody. The court has the right, of necessity, to commit the children to the custody of either party, to the exclusion of the other, or to commit them to the custody of strangers; Dubois v. Johnson, 96-9.

2. Upon trial of an application by a divorced wife for a writ of habeas corpus, against her late husband and her verified complaint for the custody of a child, evidence that the child is five years of age, weighing but little over thirty pounds, and not a hearty boy warrants the judge's finding, in favor of the mother, that the care, custody and control of the child be given her. In such a case the mother, unless an unfit person, should have the custody etc. of the child; Reeves v. Reeves, 75-344. 3. A finding in favor of the wife is sufficient to authorize an award to her of the custody of a child eight years of age, unless an abuse of judicial discretion be affirmatively shown; Graft v. Graft, 76-141.

4. Upon the death of a mother, to whom, in a proceeding for divorce, the custody of the children was awarded, on the ground that the father was not a suitable person to have their care, the latter may, on a satisfactory showing of fitness, secure their custody, as the judgment is not a perpetual bar to such right; Bryam v. Lyon, 104-234.

5. Decree of divorce having given the custody of a child to the mother and forbidden its removal beyond the jurisdiction of the court, a disregard of the condition will not, per se, give the custody to the father; Joab v. Sheets, 99-332.

ARTICLE 38- EJECTMENT.

1050. Action for possession. Where a receiver is in possession of land, under a decree of the federal circuit court, no action can be maintained, in a state court, to recover possession of such land; F. W. etc. R. R. Co. v. Mellett, 92-538.

2. In an action to recover possession of real estate and to quiet title thereto plaintiff may, as an incident to such action, have a mistake in his title papers corrected; Smith v. Kigler, 74-583; Hunter v. M'Coy, 14-528.

3. An action to recover real property and a compensation for use and occupation of the premises (sects. 1058-9) sounds in tort; Dorrell v. Hannah, 80-498.

1054. Contents of complaint. A complaint, in ejectment, must describe the lands with certainty and the degree of certainty sufficient in a deed will not always be sufficient in pleading; Coll. Corner etc. Co. v. Moss, 92-121; with reasonable certainty; Leary v. Langsdale, 35-74.

2. Any description is good which will enable the sheriff to put the claimant in to possession; the sheriff must be able to identify the property; Cunningham v. M'Collum, 98-40.

3. Complaint is bad on demurrer, for want of sufficient facts, if the description of the real estate is so defective that the proper officer of the court can not know or learn therefrom on what premises he must enter to execute a judgment; Lenninger v. Wenrick, 98-597; Jolly . Ghering, 40-139; Rosenbaum v. Schmidt, 54-231; Whittelsey v. Beall, 5 B., 143; S. E., Gigos v. Cochran, 54-393; Halstead v. Board, 56–363; Hammond v. Stoy, 85-457.

4. A description is sufficient if, by the aid of a competent surveyor and persons knowing the location of monuments, mentioned as points in the boundaries, the lands can be found: Brown v. Anderson, 90-95.

5. Where the complaint does not disclose the county in which the land is situated and a court of general jurisdiction, without objection, proceeds to judgment, it will

be presumed, after judgment, that the land is in the county where the suit was instituted; Brown . Anderson, 90-95.

6. Complaint describing the lands as "the N. E. part of the N. W. 1-4 of " etc., "containing 35 acres is bad, on demurrer; Roberts v. Lanam, 92-382, following Shoemaker v. M'Monigle, 86-421, in which case the description was identical with this, save as to the number of acres.

7. If in a complaint the description of the land be valid but uncertain or obscure the court may require it to be made more specific; Hammond . Stoy, 85-458.

8. It is not necessary that it should be averred, in the complaint, that the party seeking to recover is the owner of the land in controversy in fee. Any one having a subsisting interest (sect. 1050) in real estate and a right to the possession thereof may recover the same, by an action to be brought against the tenant in possession. So, where the complaint does not directly aver the ownership of the fee in the plaintiff, nor the right of possession, but, does contain averments from which the inference is irresistible that such plaintiff has a subsisting interest in the real estate in dispute and is entitled to the possession, the complaint will be sufficient on demurrer; Vance v. Schroyer, 82-116. That is, if by the facts averred title is shown in the plaintiff, but there is a failure to aver the conclusion that he is the owner, the complaint is good on demurrer; Lovely v. Speisshofer, 85-456.

9. That a complaint does not state the nature or extent of the interest which plaintiff claims therein is not an objection which can be reached by demurrer. Semble, a motion to make more specific will lie; Schenck v. Kelly, 88-445; see Steeple v. Downing, 60-478, followed in Burt v. Bowles, 69-8.

10. A complaint which fails to allege that plaintiff was entitled to the possession, at the time he commenced his action is insufficient, on demurrer; Miller . Shriner, 87-143. Such defect is not cured by filing a supplementary complaint, by plaintiff's heirs, he having died, alleging that they are entitled to the immediate possession; Simons v. Lindley, 108-299; Nat. B'k v. Corey, 94-457; Vance v. Schroyer, 77-501; M'Carnan v. Cochran, 57-166.

11. While it is necessary to aver the right of possession in the complaint it is not required that it be made in the exact words of the statute. If the averments show the right and that defendant unlawfully detains it from him it is sufficient; Swaynie v. Vess, 91-584.

12. A complaint which fails to allege that plaintff is entitled to the possession, or facts showing such right, is bad both before and after verdict. The omission from the complaint of a fact essential to the plaintiff's cause of action is not cured by verdict (see Eberhart v. Reister, 96-478; Nat. Bk. v. Corey, 94–457); Mansur v. Streight, 103-359.

13. The complaint must show that the defendant, wrongfully, unlawfully, or otherwise, keeps plaintiff out of possession, or it will be vulnerable to demurrer, for want of sufficient facts; Nat. Bk. v. Corey, 94-461; Levi v. Engle, 91-330; Vance . Schroyer, 77-501; M'Carnan v. Cochran, 57-166.

14. The omission of the word "unlawfully", does not render the complaint bad, on demurrer thereto for want of facts, if its equivalent in meaning is used; Swaynie c. Vess, 91-585. The allegation that the plaintiff is entitled to the possession and that the defendant keeps him out of it " without right" is sufficient; Smith v. Kyler, 74-581.

1055. Answer in denial — Effect. In an action for the recovery of the possession of real property, no error is committed in striking out a special paragraph of answer when there is on file an answer of general denial; for, under that all defenses to the action may be given in; West v. West, 89-530; Wood v. Eckhouse, 79-355.

2. Though all defenses may be made under the general denial, defendant may plead specially; Vanduyn v. Hepner, 45-589. When he so does and his answers are bad it is error to overrule a demurrer to them; Schenck v. Kelley, 88-445; Over Shannon, 75-353; Berlin v. Oglesbee, 65-308; Steeple v. Downing, 60-478.

3. Any facts which show that, according to the principles of equity, as applied by courts of chancery, the plaintiff should not recover may be given in evidence under the general denial. Any state of facts which will entitle the defendant to the reformation of an instrument or which would invoke the aid of a court of chancery, for relief against the claim or title put forward by plaintiff is an equitable defense; East v. Peden, 108-94.

4. This section does not change the rule that, under the original pleadings, suits are determined upon the facts existing at their commencement. Therefore, in an

action of ejectment, matter of defense occurring after suit brought is not available; Musselman v. Manly, 42-462; see Maxwell v. Boyne, 36-120; Carr v. Ellis, 37-465; Moore v. Worley, 24-81. The defense to be given in evidence, under the general denial, must still be a defense existing at the commencement of the action; Johnson v. Briscoe, 92-370.

5. On a complaint in ejectment, where the answer is a general denial, partition can not be awarded; Roberts v. Lanam, 92-382.

6. An answer alleging that defendant claimed the property as exempt from sale under execution and that the sheriff had wrongfully refused to allow his claim, failing to allege that he had any title to such real estate, or any facts from which such an inference could be drawn, is insufficient, on demurrer; Över v. Shannon, 75-354. 7. Where plaintiff alleges that he is the owner in fee simple, an answer which avers that he has only an estate for years is sufficient; as proof of the latter will not support an averment of the former; Hunt v. Campbell, 83-54.

8. In an action to quiet title (sect. 1071) any matter of defense, legal or equitable, may be given in evidence under the general denial; Hogg v. Link, 90–349.

1056. Proof of defendant's possession. By appearing and pleading to a complaint, in ejectment, though by the general denial, the defendant admits his possession of the property, for the purposes of the action; Holman v. Elliott, 86–233.

2. Where the possession of defendant is established and the right of recovery on the part of plaintiff is shown the possession is so far shown to be unlawful as to throw upon defendant the burden of showing his possession to be lawful; Willhelm v. Humphries, 97-519.

1057. Plaintiff must show title. The burden is on plaintiff, in ejectment, to make out his title and right of possession by affirmative proof. Where defendant pleads in confession and avoidance and there is a reply in denial, the burden is on defendant, as to the affirmative matter; Roots v. Beck, 109-473.

2. In ejectment, or in an action to quiet title, plaintiff need not show a perfect title in himself. The issue is his legal right to the possession, as against the defendant; Doe v. West, 1 B., 133. The possession of plaintiff is, prima facie, evidence of title; Hotten v. Board etc., 55-194; Morse v. Doe, 2-65; Shiel v. Ferriter, 7 B., 574; Robinoe v. Doe, 6 B., 85. Possession is usually constructive notice to all the world of the rights of the possessor. The rule is, however, subject to exceptions; Tuttle v. Churchman, 74-311; Campbell v. Brackenridge, 8 B., 471.

3. Mortgagee, having rightfully taken possession under his mortgage, has a right to hold possession until the mortgage debt is fully paid; Schenck v. Kelley, 88-447; see Givan v. Doe, 7 B., 210; Johnson v. Cornell, 29-59.

4. Defendant who claims title through a sheriff's sale can not maintain it unless the sheriff's deed described the land in dispute; Goss v. Meador, 78-530.

1058. Use of premises - Recovery for — Limit. A recovery for use and occupation of land can be had for no more than six years prior to the commencement of the action therefor. If, however, defendant asks a set off, for the value of improvements, plaintiff may have a counter set off, for the use and occupation of the premises before the commencement of the six years for which there may be a direct recovery; Hyatt v. Cochran, 85–233.

2. In an action to recover possession of real property, and rents and damages for its detention, tried during May, 1882, no error was committed in allowing proof of the rental value from September 1, 1881, to September 1, 1882, for the purpose of showing the amount of damages sustained by its detention, from September 1, 1881, to the time of trial; Cooper v. Robertson, 87-224.

3, Where the only evidence, on the subject, is that defendant received one hundred dollars, as rent of the premises, and had no further connection with the possession, an assessment of damages in the sum of five hundred dollars is excessive; Dobbins v. Baker, 80-56.

4. There is no exemption from execution on a judgment for damages recovered in ejectment. The damages properly recoverable. in such action, are for the time of the tortious holding only; Smith v. Wood, 83-524.

1060. Recovery, separate or joint, according to rights. One paragraph of complaint for possession and one to quiet title. Verdict, upon the whole complaint, finding upon all the issues against all defendants. In such case it is not necessary that the jury should find upon each paragraph separately; Carver v. Carver, 97-505; see Hersham. Hersham, 63-451.

1061. Damages and set off.

While, under section 1058, a recovery, for the use

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