promise to pay the debt of another within the statute of frauds,
and was not binding unless made in writing.-Burson v. Bogart,
449.
Same-Instructions-Not Based on Evidence-Where defen-
dant verbally promised to pay to plaintiff the store account
of his tenant after the goods had been sold and charged to
the tenant, and there was no evidence of any consideration
passing from plaintiff to defendant or that plaintiff released
the tenant and accepted defendant as his debtor, an instruc-
tion to the effect that where there is a consideration for the
promise to pay, it is unnecessary for it to be in writing and
that to warrant a finding for plaintiff it must appear that
he accepted defendant and released the tenant, was prejudicial
error.-Ib.
Pleading-In an action upon a written contract the complaint
may allege the contract according to its legal effect or by
setting it out in haec verba.-Abby v. Dexter, 498.
Pleading-Demand-In an action upon a contract to pay money
an allegation that defendant failed and refused to pay the
money is a sufficient allegation of demand, especially in the
absence of a demurrer, and where it is apparent from the
answer that a demand would have been unavailing.-Ib.
Option to Pay in Land or Money-Time-Defendant by con-
tract dated January 10, 1893, stipulated to pay plaintiff a certain
amount by the conveyance of certain land within the year 1893,
and in case of failure to convey the land within the time stipu-
lated, defendant was to become immediately upon the expira-
tion of one year from date of the contract personally indebted
to plaintiff for the sum stated. Held, that the time within
which defendant had a right to pay the debt by the conveyance
of land expired on December 31, 1893, and not on January 10,
1894.-Ehrich v. Durkee, 502.
Option to Pay in Land-Demand for Conveyance-Description
-Where defendant contracted to pay plaintiff a certain sum
with an option to pay by the conveyance of land within a certain
time, the land to be selected by plaintiff, a demand by plaintiff,
within the time, for a conveyance in which the land was de-
scribed by definite boundaries on the south, east and west, and
called for a line on the north parallel with the south line, and
the width of the tract from north to south to be such as was.
necessary to make the amount of land he was entitled to under
the contract, contained a sufficiently definite description of the
land to form the basis of a deed.-Ib.
Option to Pay in Land-Absolute Liability-Where defendant
upon a valuable consideration contracted to pay a debt due to
plaintiff by a conveyance to plaintiff of certain land within a
certain time and in case of failure to convey to plaintiff the
land within the time limited, defendant to become personally
indebted to plaintiff, upon a failure by defendant to convey the
land within the time he became absolutely liable to pay plaintiff
the sum stipulated in money, and not merely such damages as
plaintiff might have sustained, and the fact that the debt was
originally the debt of another does not alter the relations of the
parties to the contract.-Ib.
Attorneys' Liens-Waiver-An agreement between an attorney
and his clients whereby the attorney at a sale of land, under a
decree obtained by him for his clients, was to purchase the
property in trust for his clients and sell the same, and out of the
proceeds pay his fee and costs, was a waiver of his attorney's
lien. Teller v. Hill, 509.
Judgments-Accord and Satisfaction-Defendants having a
judgment against plaintiff with a decree of foreclosure on plain-
tiff's mine, entered into a contract with plaintiff whereby defend-
ants agreed to accept within a certain time a certain sum with
interest in satisfaction of the judgment, and plaintiff's lessee
was to pay to defendants a certain part of the royalties due
plaintiff under the lease as such royalties fell due, to be applied
on the sum agreed to be paid in satisfaction of the judgment,
and in any event the amounts so paid to be credited on the
judgment and not to be recoverable back by plaintiff and the
parties agreed to stay further legal proceedings for the time
mentioned, the defendant to forbear the enforcement of his fore-
closure decree, and plaintiff agreed to sue out no writ of error
during the time; and the sum agreed on not having been paid
within the time, another contract was executed extending the
time for payment with a stipulation if not paid within the time
as extended defendants were to be relegated to their rights
under the decree. Held, that the contracts were not an accord
and satisfaction of the judgment and decree and that the amount
agreed on not having been paid within the time, defendants
could proceed to foreclose for the amount of the judgment less
the payments made under the contracts.-The Tabor Mines and
Mills Co. v. Newell, 520.
CONTRIBUTORY NEGLIGENCE: See NEGLIGENCE.
Easements-Evidence-Estoppel-Where the owner of land
across which another had an easement in an irrigating ditch
conveyed the land by deed containing the usual covenants
without excepting therefrom the easement, in an action by the
owner of the easement against the purchaser of the land to
enforce his right, the grantor was a competent witness on behalf
of plaintiff to testify to a parol grant by him to plaintiff of the
easement, and the evidence was not objectionable on the ground
that it tended to nullify the deed from witness to defendant.
Plaintiff not being a party to the deed, was not estopped by the
recitals therein.-Croke v. The American National Bank, 3.
Easements-Water Rights-An easement such as the right to
use an irrigating ditch to carry water for the purpose of irrigat-
ing land will pass as an appurtenance to the land without
specific mention in the deed if such was the intention of the
grantor, and the deed being silent such intention may be
gathered from the presumptions arising from the circumstances
surrounding the transaction.-The American National Bank v.
Hoeffer, 53.
Same-A. owned two separate tracts of land and constructed a
ditch across one tract to carry water for the purpose of irrigat-
ing the other. A. conveyed both tracts to S. but by separate
deeds and at different times and without specific mention of
the ditch. S. conveyed the tract irrigated by the ditch to H., and
several years later conveyed the land across which the ditch
was constructed to plaintiff, and H. conveyed with all the
appurtenances the tract so irrigated to defendant. None of the
deeds specifically mentioned the ditch. During the ownership
of A., S. and H. the ditch was continuously, openly and visibly
used to irrigate the land passed to defendant. Held, that the
circumstances surrounding the conveyances raised a reasona-
ble presumption that it was the intention of each of the grantors
to convey the easement in the ditch, and under such pre-
sumption defendant was the owner of such easement, and that
it was error to enjoin defendant from using the same.-Ib.
Deeds-Consideration-Parol Agreement-The fact that a deed
recites a certain sum as the whole consideration and acknowl-
edges the receipt thereof will not prevent the grantor from re-
covering an additional consideration upon an oral agreement of
the grantee even though such additional consideration was de-
pendent upon the happening of a contingency, if it were such
as not to defeat or impair the operation of the conveyance.—
Cheesman v. Nicholl, 174.
Same-Receipts-Where at the time of the execution and
delivery of a deed to real estate the grantee by parol agreed
to pay the grantor a certain sum in addition to the considera-
tion recited in the deed if the grantee should ever utilize the
property for any purpose and the grantee did utilize the property
for a reservoir, the grantor could maintain an action for the
additional consideration. And the fact that at the time of
delivering the deed the grantor executed a separate receipt in
which he acknowledged payment in full of all that was due
would not defeat his action for the additional amount that
afterwards became due upon the utilization of the property by
the grantee.—Ib.
Agreement-Instructions-Evidence-In
an action by a grantor against a grantee to collect an additional
consideration over and above that recited in the deed upon an
oral promise of the grantee, an instruction which told the jury
that the written instruments were presumed to contain all the
agreements of the parties and that the burden was upon the
plaintiff to establish the oral agreement by a perponderance
of evidence and that the evidence must be so clear as to
satisfy the jury that such agreement was made, was sufficient.
It was not the duty of the court to require the jury to find
the establishment of the parol agreement beyond a reasonable
doubt.-Ib.
Mortgages-Foreclosure-Sheriff's Deed-Order of Court Ap-
proving Sale-A sheriff's deed made in pursuance of the certi-
ficate of sale on the foreclosure of a mortgage is not void
because no order of court approving the sale was made prior to
the execution of the deed.-De Cunto, Barra & Co. v. Johnson,
220.
Contracts-Deeds-Assumption of Encumbrance of Grantee-
Plaintiff and J. exchanged real estate. At the request of a real
estate agent who acted for J. the deed was made by plaintiff to
defendant and contained a clause whereby the grantee assumed
the payment of a mortgage encumbrance thereon. Defendant
had no interest in the transaction and her name was inserted
as grantee without her knowledge or consent. The real
estate agent placed the deed on record and notified defendant
of the use of her name as grantee but said nothing about
the assumption of the mortgage. Afterwards the real estate
agent prepared a deed which defendant executed conveying the
land to another party. The mortgage was foreclosed and fail-
ing to sell for enough to pay the mortgage plaintiff was com-
pelled to pay the balance. Held, that defendant was not liable
on the agreement in the deed to assume the mortgage and plain-
tiff could not recover in an action against defendant for the
amount he was compelled to pay.-Gill v. Robertson, 313.
Fraud-Limitation-The owner of a lot without consideration
deeded it to his wife. Afterwards with the knowledge and con-
sent to his wife he deeded the same lot to plaintiff in considera-
tion that plaintiff should pay off certain encumbrances on the
lot. Plaintiff had no knowledge of the deed to the wife at
the time plaintiff accepted the deed from the husband. Plaintiff
paid off the encumbrance and went into possession and made
valuable improvements on the lot. Afterwards the wife deeded
the lot without consideration to another party who executed a
trust deed thereto to the wife. Held, that in an action by
plaintiff against the husband and wife, the wife's grantee and
the trustee in the deed of trust, to quiet title, limitation would
begin to run from the time the wife deeded the property to
another party and not from the date of the deed to plaintiff.-
Arnett v. Berg et al., 341.
Contracts-Option to Pay in Land or Money-Time-Defendant
by contract dated January 10, 1893, stipulated to pay plaintiff
a certain amount by the conveyance of certain land within the
year 1893, and in case of failure to convey the land within
the time stipulated, defendant was to become immediately upon
the expiration of one year from date of the contract personally
indebted to plaintiff for the sum stated. Held, that the time
within which defendant had a right to pay the debt by the
conveyance of land expired on December 31, 1893, and not on
January 10, 1894.-Ehrich v. Durkee, 502.
Contract-Option to Pay in Land-Demand for Conveyance-
Description-Where defendant contracted to pay plaintiff a
certain sum with an option to pay by the conveyance of land
within a certain time, the land to be selected by plaintiff, a
demand by plaintiff, within the time, for a conveyance in which
the land was described by definite boundaries on the south,
east and west, and called for a line on the north parallel with
the south line, and the width of the tract from north to south
to be such as was necessary to make the amount of land he
was entitled to under the contract, contained a sufficiently
definite description of the land to form the basis of a deed.-Ib.
Contracts-Option to Pay in Land-Absolute Liability-Where
defendant upon a valuable consideration contracted to pay a
debt due to plaintiff by a conveyance to plaintiff of certain
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