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23. Judicial Sale- Will - Title.-One who
buys at a judicial sale may demand a title free from any reasonable doubt, as condition precedent to the completion of his purchase. When the testator directed in substance that his residuary estate should remain in the hands of his executors, for the purpose of accumulation, inalienable for the period of ten years after his death, and the trust is not determinable within any two ascertained lives nor limited by life, such direction is void, under the statute. The title to the land and premises included in said residuary clause vested in the heirs at law of the testator, as though he had died intestate. Rice v. Barrett, N. Y. Ct. of App., April 13, 1886; 3 Cent. Rep. 440.
24. SHERIFF – Liability – Attachment – Proof of Debt-Consideration-Note-Fraud-Evidence Title. – Where a sheriff justifies the taking of property from the possession of A. as being the property of the debtor in an attachment suit, it is material and necessary for him to establish the relation of debtor and creditor between the plaintiff and defendant in that suit. And where a defendant in such suit, upon his examination as a witness, denied that he owed the alleged claim (a promissory note) sued on, and his evidence tended to show that the same was fraudulent and invalid, held competent and material to inquire, on the part of the plaintiff, into the consideration of the note, and the circumstances under which it was given. Where a party testified that he had derived title to the property in controversy a short time before it was attached, claimed by plaintiff to have been fraudulently transferred by defendant, it is proper, on his cross-examination, to inquire fully into the natnre of his title, and his knowledge of an alleged previous transfer, and also the amount of the consideration, and whether paid or not. Homberger v. Brandenberg, S. C. Minn., July 12, 1886. 29 N. W. Rep. 123.
25. TAXATION–Redemption by One as Agent with
out Authority-Ratification Presumed-Reassignment to Tax Purchaser will not Defeat Redemption, Statute Liberally Construed to Support Redemption. The agent to pay taxes in this case was a general real-estate agent. He turned over his business to another, including that for the lands in question. As this time these lands had been sold for taxes. The agent and his successor both wrote to the owner for ratification. Pending reply, the successor tendered redemption to the tax purchaser, and obtained an assignment of the certificate to his own use. He then advertised that he would apply for a deed himself. Under threat of prosecution from the purchaser, he then reassigned to the purchaser. IIeld, that the redemption was complete, a ratification must be presumed, and such redemption could not be undone by reassignment. Sec. 210 (last paragraph) and215 of the revenue act (2 Starr & C. St. c. 120, pars. 212, 217) provide that any redemption shall inure to the benefit of the owner, and that a receipt of redemption money, or a return of the certificate for cancellation, shall constitute a redemption. While these do not authorize a stranger to redeem, yet the redemption of a stranger with color of authority will inure to the benefit of the owner. Houston v. Buer. S. C. Ill. June 13, 1886. 7 N. East. R. 616.
One Tract-Enjoining Execution of Deed – Re. demption.-Where two lots of land were assessed in 1880 for taxation separately, and at different valuations, and were advertised in the same man. ner, but were not offered separately at the tax sale, but instead thereof were improperly sold as one tract only, and subsequently the owner of the lots brings an action to enjoin the issuance of a tax deed on account of the irregular sale, held that, before he is entitled to the injunction prayed for, he must pay or tender the full amount of taxes and charges, with interest thereon at the rate of 24 per cent. per annum. Sec. 127, c. 107, Comp. Laws 1879. Held, further, thet the owner of the lots so sold for taxes cannot redeem his lots, or enjoin the issuance of a tax deed on the tax sale,b y tendering the taxes and charges with only 10 per cent. inter. est thereon, even if he first calis the attention of the board of county commissioners of his county to the error or irregularity existing in the tax sale, and applies to the board for an order directing the county clerk not to convey the lots, if such appli. cation is refused by the board, and no order made concerning the return of the tax certificate, or the setting of the same aside. Miller v. Madden, s. C.
Kan., July 9, 1886. 11 Pac. Rep. 449. 27. TRESPASS- Telegraph and Telephone Company
-Right of Way – Entry on Adjoining LandDamages.-Where a municipal corporation grants the right of way through its streets to a telephone company, the grant so made must not be construed into a license to enter upon adjoining lands owned by private individuals. Entering on private premises, under such circumstances, without leave from the owner, is a trespass for which the company must respond in damages. Memphis Bell etc. Co. v. Hunt, S. C. Tenn., June 5, 1886. 1 $. W. Rep. 159.
28. VENDOR AND VENDEE- Vendor's Lien-Parties
to Proceedings to Enforce-Foreclosure of LienAdverse Title.-An action to enforce a vendor's lien on real estate is similar in principle to an equitable foreclosure, and the same rule, as to parties, applies to both proceedings. The only necessary or proper parties to the foreclosure of a mortgage or vendor's lien are the parties to the original contract, and those occupying the property, or claiming some interest therein subsequent to the original contract. No title adverse to the contract being enforced can be litigated, and the holder of such adverse title is an unnecessarry and improper party. Faubion v. Rogers, S. C. Tex.
June 22, 1886. 1S. W. Rep. 166. 29. WILL-Attempt to Create a Perpetuity-Pub
lic or Charitable Trust.-A will contained the following provision: “I give to Samuel Leeds and Josiah Dunham, Jr., their heirs and assigns forever, and to the survivor of them and his heirs forever, in trust to sell, dispose of, invest and manage the same, and appropriate such part of the principal and interest, as they may deem best, for the aid and support of those of my children and their descendants who may be destitute, and, in the opinion of the trustees, need such aid." Held, invalid, as tending to create a perpetuity for the benefit of those who might not be living at the time of the testator's death. Held, also, that this . provision of the will could not be sustained as a public or charitable trust. To constitute a public
or charitable trust there must be some benefit to be conferred upon or some duty to be performed toward, either the public at large,some part thereof, or an indefinite class of persons. Kent v. Dur. ham, S. Jud. Ct. Mass., July 1, 1886; 6 East. Rep., 261.
vilege until a question is put to him, after being sworn, the answer to which would have such tendency; and the court would then decide whether the answer would have such an effect. Under the California law the State is not prohibited from calling a party proceeded against in one information to testify against a defendant charged in another and different information: the former, when so called as a witness, however, retaining his right to object to answering a question put to him by reason of its tendency to criminate him. A refusal to be sworn as a witness on one day, and infliction of penalty and suffering of punishment for contempt in refusing to obey the order of the court to be sworn, will not prevent the court from again inflicting punishment for another and subsequent refusal to be sworn in the same case, on another day, this not being the case of double punishment for one offense; but each refusal being a separate offense, punishable separately. Ex parte Stice, S. C. Cal., June 24, 1886; 11 Pac. Rep. 459.
QUERIES AND ANSWERS.
30. Election-Party Claiming Under Will Must
Abide by Will as Whole. There is an implied condition that he who accepts a benefit under an instrument, e.g., a will, shall adopt the whole, conforming to all its provisions, and renouncing every right inconsistent with it. This rule has no application where the testator has only a part interest in the property devised, and devises the property by general terms. In such case that interest only is devised. But in this case the testator intended to devise the whole, and the will must be taken or rejected as a whole. Ditch v. Sennott, S. C. Ill.,
June 12, 1886; 7 N. E. Rep. 636. 31. Rights of Widow'— Parol Agreement
Promissory Notes-Liability of Deceased Partner Evidence-Executors and Administrators- With What Chargeable-Items Allowed – Attorney's Fees.—Where a son, to whom, with other sons, a father, had given property, enters into a parol agreement with them and thu fatber that he will, upon the father's giving him property in lieu of the same, surrender his interest in certain real estate to one of the sons, dies in possession of the property, wlthout making a transfer of his interest to the son, and by his will devises the same to his widow, such parol agreement cannot be set up against the rights of the widow, and she will be entitled to the property so devised to her by the will. Where several persons, as partners, make a note in writing, and deliver the same, and the payee afterwards assigns the note, and delivers the possession of it to one of the partners, the presumption is that the note has been paid with partnership funds; and where an effort is made to set up the note as an evidence of debt against one of the partners who has died, the burden is on the holder to prove bis claim against the deceased partner in some other way than by his own testimony and the production of the note. Where a person dies in the possession of a note or other security for debt, in the absence of any legal evidence showing that he has not parted with the title thereto, it becomes a part of the assets of his estate, with which bis executor is chargeable. When, in a suit brought against an executor for the settlement of his accounts, as such, he employs an attorney for the protection of his own private interests, connected with others, he is liable personally for the fees for such services, and for services rendered the estate by an attorney, he is entitled to an allowance out of the same. Robbins v. Robbins, Ky. Ct. App.,
June 15, 1886; 1 S. W. Rep. 152. 32. WITNESS-Privilege-Refusal of Witness to be
Sworn-Contempt-Competency-Refusal of a person to be sworn as a witness, or to obey an order of court that he be so sworn, is a contempt of court, and may be punished as such; and it is no excuse that the person sets up as his reason for the refusal that his testimony would tend to subject him to punishment for a felony. A person called as a witness cannot refuse to be sworn on the ground that his testimony would tend to subject him to punishment for a felony, nor can he urge such pri
(Correspondents are requested to draw up their answers in the form in which we print them, and not in the form of letters to the editor. They are also admonished to make their ansurers as brief as may be.-Ed.)
QUERIEA. 19. Under Code of Ga. $$ 2598, 2599, any person interested as distributee or legatee, may cite the administrator to appear before the ordinary for a settlement of his accounts; or, if the administrator chooses, he may cite all of the distributees to be present at the settlement. * Upon proof of such citation by a distributee, the ordinary may proceed to make an account, and settle finally between the distributee and administrator.
And enforce the same by execution or by attachment for contempt. Courts of Ordinary have general jurisdiction over testate and intestate estates. Under these provisions, on a citation by the executor, to one of the legatees, a non-resident of the county, has the Court of Ordinary jurisdiction to render judgment against said legatee for money overpaid him, by said executor, and enforce it either of the ways mentioned?
G. W. A.
To the Editor of the Central Law Journal:
In Vol. 23, page 157, is a criticism of the opinion our Supreme Court in Pierce v. Ry. Co. 36 Wis., 283 (erroneously cited as page 388).
Is it certain this court was in error in holding that in the absence of proof, the presumption is that the statute law of Illinois is the same as the statute law of Wisconsin? We think not. On the contrary, we think the proposition is good law, with proper exceptions. Rape v. Heaton, 9 Wis. 301; Welsh v. Dart, 12 Wis. 635; Draggo v. Graham, 9 Ind. 212; Annuasen v. Gil. bert, 24 Id. 293; Pelton v. Platner, 13 Ohio, 209; 2 Phillips on Ev. 10th Eng. Hill & Edwards,edition, page 427; Sedgwick on Construction of Statutes, etc. 138, note. Rape v. Heaton is re-affirmed in Hull v. Augustine, 23 Wis. 383, and the true distinction drawn prepared. It has an excellent Index, and will be found very convenient and useful to every lawyer in practice.” (Signed) C. E. Vanderburgh; John M Berry; Wm. Mitchell; D. C. Dickinsor.
where the statute works a forfeiture, or imposes a fine etc.
2. The critic then saye, "The case has been severely criticised as being on its face “unmistakeable evidence of having been poorly considered and hastily written, and wholly unsupported by respectable authority,” and refers to 2 Cent. L. J. 378.
We find no such language in the notice referred to, but waiving that, we submit:
1. Is this just, fair and courteous criticism?
2. Is it supporting testimony for you to cite a former statement, made by your journal, to support a present one. In other words, do you make it any stronger by stating it twice. How does it strike you?
J. C. GREGORY. Madison, Wis.
JETSAM AND FLOTSAM.
“I hear,” said somebody to Jeckyll,“that our friend Smith, the attorney, is dead, and leaves very few ef. fects." "He could scarcely do otherwise,” returned Jeckyll, "he had so very few causes.” This is as old as the hills-old enough to be quite new to the junior class.
WE beg to call the attention of our correspondent to the fact that, the comment to which he objects is that of a contributor who furnished us a note upon the case of Missouri Pacific, etc. Co. v. Maltby, published by us in full. The language he quotes, and which we have verified by reference to our files, is that of another contributor who, in our issue of June 11, 1875, furnished a note to the identical case in question, [Pierce v. Chicago, etc.R. R. Co.) then published in full in the Journal. It strikes us that as these two gentlemen, having made a special study of the subject, arrived at the same conclusion, the latter quoting the former, it is hardly fair to say that the JOURNAL cites itself as authority,
ED. CENT. L. J,
REPORTS OF THE DECISIONS of the Appellate Courts
of the State of Illinois. By James B. Bradwell, Volume XVIII Containing all the remaining opinions of the First District up to the 8th. day of June 1886, and all the remaining opinions of the Second District up to the 19th day of February 1886, and all the remaining opinions of the Third District up to the 5th day of January 1886, and all the remaining opinions of the Fourth District up to, and including a portion of those filed April 15, 1886. Chicago: Chicago Legal News Company. 1886.
On the subject of this Series of Reports we can add nothing to what we said in our notice of the preceding (17th) Vol. in our issue of the 18 June, Vol. 22 Central Law Journal p. 600. Like its predecessors, this volume is well printed and well bound, the arrangement of the matter, syllabi etc. is very good, and the work is in every respect as well worthy of the favor of the profession as the Reports of an intermediate court can be.
A gentleman who died recently in Paris left a leg. acy of six thousand dollars to his niece in Dubuque, Iowa, who, it appears, died about the same hour of the same day. The question, which died first, turns upon the relation of solar to true time, and must be determined by the difference of longitude. If the niece died at 4 a. m. and the uncle at 10 a. m., the instants of their death must have been identical. Assuming that to be the hour of the testator's death, if the niece died at any hour between four and ten, al. though the legacy would apparently revert to his es. tate, it would really vest in her and her heirs, since by solar time she would actually have survived her uncle.
The present Louisiana legislature has passed a Sunday law. For 170 years the people of New Orleans have devoted themselves to pleasure-seeking on Sunday. By the new law, all places of business will be closed on the Sabbath, except newspaper offices, book stores, public markets, drug stores, restaurants, theatres and other places of amusement where liquors are not sold, street cars and a few others of minor importance. Guests at hotels will, however, be allowed to purchase wine at the table. As it has been the custom to keep all bar-rooms, corner-groceries and small shops open throughout Sunday, the hotel men may well congratulate themselves. The Saturday evening and Sunday morning arrivals will fill up many pages of the hotel registers.
A knotty legal question has arisen in the State of North Carolina, which may have to be decided by the Superior (Quaere Supreme) Courtof that State. All of this because a colored man called a brother descendant of Ham a liar, and the offended party be-labored the head of the offending negro with the only available weapon, which chanced to be a ten pound mud turtle. The question to be decided is, whether or not a mud turtle is a lethal weapon. The court is fully competent to struggle with this problem, one of its learned judges having already decided that a bull-dog is a “deadly weapon.”
(In North Carolina, “deadly weapon” is sometimes a jurisdictional question, the law being that Justices of the peace have no jurisdiction to try and determine affrays in which a deadly weapon is used.)-ED. C. L. J.
A DIGEST OF THE DECISIONS of the Supreme Court
of Minnesota; embracing all reported cases from the 26th to the 33rd Volumes (inclusive) of Minnesota Reports-Second Edition-By T. T. Alexander, Member of the Ramsey County Bar. St. Paul: Hall Smyth Printing Company, 1886.
This is of course a local work,and that it has met the approbation of the profession in the region of its usefulness is abundantly apparent from the fact that this is a second edition. As a further evidence of its merits, we append the commendation it has received from the Judges of the Supreme Court of Minnesota, who say: "The second and enlarged edition of the Digest of Minnesota Reports, Vols. 26 to 33 inclusive, by Hon. T. T. Alexander, appears to be carefully and accurately
FRIGIITFUL.-A very innocent word may suggest frightful possibilities to one not familiar with its mean. ing:
“Uncle Pete, what did dey do wid dat nigger, Toothpick Ben, in de p'lice c'ot dis mo'nn?"
“De sentence was onexpected."
“Yes, but I spected dat; but far how many days did he exonerate him?"
The Central Law Journal. sociation is admirably arranged, as well as
most interesting and instructive. It shows
that, although the legislatures of the several ST. LOUIS, SEPTEMBER 3, 1886.
States have wasted a great deal of time,
(and, of course, money,) in futile local and CURRENT EVENTS.
unimportant legislation, and in the consider
ation of bills which they rejected, there are, AMERICAN BAR ASSOCIATION.-The attend
nevertheless, many grains of wheat in the ance at the late meeting of this body was
vast mass of chaff. Much salutary legislalarger than usual. The principal subject un
tion has taken place, tending to promote moder consideration, was “Codification,” which rality, good order, sobriety and education, to was formulated into a resolution recommend- protect women and children from oppression, ing that "the common law, so far as its sub
to regulate the domestic relations of the peostantive principles are settled, should be re
ple, to secure public health, and to suppress duced to the form of a statute.” This reso
gaming and intemperance. lution, after a prolonged debate, was adopt
The showing upon this line of legislation ed by a vole of fifty-eight to forty-one. The
is, we think, particularly good, and we must marked division of opinion, among those who
confess, it is better than we expected. Upwe may presume are representative men of on the more material interests of the country, the profession, does not presage a very early trade, the labor questions, corporations, etc., fruition of the hopes of the majority. Years
there has been much legislation, and Mr. will elapse before any definite, and general,
Butler's description of it is equally complete and effective action will be taken, and in the
and exhaustive. meantime, the law, already too bulky and complex, will increase in volume, and volumes, and complication, and the law's delay Mr. Tilden's Will—CHARITABLE Uses.will continue to be the shame and reproach
We learn, from the newspapers, that the valof the profession. Time, however, is an es
idity of Mr. Tilden's bequests to charitable sential element in all great reforms, every
uses is questioned in certain legal circles. thing comes at last to him who waits, and in
As we have not seen the full text of the will, due season will doubtless come the reform of
we shall, of course, express no opinion on the law, for which the Bar Association is la
the subject. We learned, in our earliest boring. Patience is, or ought to be, a pro- professional life, that no lawyer can safely fessional virtue, and there is no better field construe any instruments upon extracts, abfor its exercise than in this matter of law re
stracts, or statements of its contents, nor form.
upon anything less than a careful examination of the document itself. Nevertheless
we submit, for the consideration of those of MR. BUTLER'S ADDRESS.—We have read,
our reader who are curious upon the subject, with much pleasure, the address of William
the subjoined statement of the grounds upon Allen Butler, Esq., delivered before the
which is founded the opinion that the lanAmerican Bar Association, of which he is the
guage of Mr. Tilden's bequests is too uncerpresident. His address was framed in pur
tain and indefinite to support a trust for
charitable uses. suance of the Eighth Article of the Constitu
“The fatal weakness of the will is the thirtion of the Association, which provides that the president shall communicate the most
Mr. Tilden there requests noteworthy changes in the statute law, on
his executors to use his money to establish “a points of general interest, made in the several
free library and to promote such scientific States, and by Congress, during the preced
and educational objects as they may particuing year.
larly specify.' He should have specified the The information which Mr. Butler has, in
object and the sum of money to be devoted
to them, bimself. answer to this requisition, furnished the As
Again, Mr. Tilden donates money to an inVol. 23.-No. 10.
stitution, provided, 'it shall be incorporated nected with the bath-room, and the seain a form and manner satisfactory to my ex
water, escaping from the pipe, damaged the ecutors.'
rice. The question was whether this damage Further on, Mr. Tilden relegates to his exe
was caused by a 'danger and accident of the cutors the authority to organize the said cor
sea.' Lord Justice Lopes, before whom the poration, designate the first trustees thereof,
action was tried at Liverpool, held, on furand convey to, or apply to the use of the
ther consideration, that it was. He thought same the rest, residue, and remainder of all
that 'a loss arising from some inevitable accimy real and personal estate not specifically
dent at sea whereby seawater enters and disposed of by this instrument, or as much
damages goods is a danger or accident thereof as they may deem expedient.'
of the seas within the exception. Where Last of all, Mr. Tilden says: 'If, for any the effective cause is beyond human control, cause or reason, my said executors shall and in consequence, salt water enters which deem it expedient to convey said rest, resi- damages goods, it is an 'accident of the sea' due and remainder, or any part thereof, or to within the meaning of the contract of afapply the same, or any port thereof, to the freightment, and the true intention of the said institution, I authorize my executors to parties. Here it is a sea damage occurring apply the rest, residue and remainder of my at sea, and nobody's fault.' The Court of property, real and personal, to such charita- Appeal have unanimously reversed this deble, educational and scientific purposes as, in cision, though on different grounds. Lord the judgment of my said executors, will ren- Esher holds that ‘perils of the sea' mean perder the rest, residue and remainder of my ils to which vessels are exposed by reason of property most widely and substantially bene- their being on the sea. The damage done by ficial to interests of mankind.' The trouble the rats was not peculiar to the sea, or caused is, that he must himself decide what is ‘most by the sea. True, the rats let in the sea, but widely and substantially beneficial,' and such letting in was not cause, but effect. specify the sums set aside for it.”
Lords Justices Bowen and Fry proceeded on the ground that a loss could not be due to 'perils of the seas' which a reasonable exer
cise of skill on the part of the ship-owner NOTES OF RECENT DECISIONS.
could have averted. In the present case, the
ship-owner had not shown that the presence "THE GREAT Rat CASE''-DAMAGES CAUSED
of rats was inevitable, and not due to any deBY RATS AT SEA-CARRIER-UNDERWRITER
fect in the ship or his own carelessness." PERILS OF THE SEA.-At this season of the The London Law Times of the same date year, courts here have generally subsided in- commenting on this case says: “The witch to a condition of “innocuous desuetude,” but in ‘Macbeth' put to sea in a sieve 'like
proverbial black snake in August, and have thority that there are water-rats as well as lately been dealing with animals not less nim-land-rats; but, according to Pandorf v. Frable. The Solicitors' Journal of August 14th. ser, rats are not yet in the eye of the law seainforms us that, “the decision of the Court faring animals. Shylock explains that by of Appeals in the 'Great Rat Case' (Pandorf water-rats he means pirates, and pirates by & Co. v. Hamilton Frazer & Co.,) has been English law are among the perils of the sea; awaited with a good amount of interest in the but rats, say the Court of Appeal, are notmercantile world.” The case briefly stated
not even when perversely turning up their was this: "The action was brought by ship- noses at a cargo of rice they gnaw through a pers of rice for damages done to it, in the pipe and let in the salt water. It would be course of carriage in the defendants' ship. different, say the Court of Appeal, in a pol"The rice was shipped under bills of lading icy of assurance, because in that case the which contained an exception of 'dangers causa proxima may be looked at, but the case and accidents of the seas.' During the voy
before them was a charter party. In other age, rats gnawed through a metal pipe con- words, perils of the sea assured against by