The law is clearly settled and firmly applied, that when the facts show the long-continued exercise of a right, the court is bound to presume a legal origin, if such is possible, in fa- vor of the right. Ib.
In order to repel or destroy the presumption when it arises upon the proofs in the case, such facts must be shown as establish the legal impos- sibility of the supposed existence of a conveyance. That is, the facts must establish that it was legally impossible that a conveyance could have been ex- ecuted. Ib.
While the court usually apply the doctrine of presumption in analo- gy to the statute of limitations, they dot adhere rigidly to this rule either as to time or other elements of the statutory bar, and if there has been a 6 Dec 36.
long-continued actual occupation of the land, a grant may be presumed from occupancy for a period short of the statute where other circumstances jus- tify it. AGENCY-
In a suit for recovery of a commission for the sale of real estate, the failure of the owner to incorporate into the contract with the intending purchaser found by the agent provisions which make it binding, does not mili- tate against the agent's right to re-
cover. Heintz v. Boehmer.
In an action at law upon a policy of insurance, in which judgment was rendered in favor of plaintiffs and afterwards reversed in a reviewing court, on the application of defendant, the plaintiffs are not thereby estopped from amending their petition and ask- ing relief in equity for a reformation of the policy sued on. Mitchell v. Aetna Ins. Co.,
Where a tax-payer brings an action to prevent the illegal action of the city authorities, alleging that the action is brought on behalf of himself and other tax-payers, the court will permit the plaintiff to amend his peti- tion and allege that the action is brought on behalf of the corporation. Shaw v. Jones, et al.,
Where the superior court (whose decree in this case has been affirmed by the circuit court) fails to find that no notice of the pendency of the suit or notice to other creditors was given, and does not order that its judgment be certified to the court of insolvency to administer the trust for the benefit of creditors, there is error which was jurisdictional and which cannot be overlooked or the defect supplied in the present appeal. Ib.
Where a surety in an appeal bond states that if judgment be ad- judged against appellants, then he will pay such judgment and costs: Held, that execution and return of "no goods," etc., is not necessary as a con- dition precedent to maintaining an ac- tion on such bond. Drennan v. Shay.
ASSIGNMENT FOR CREDITORS-
The Hamilton county court
of insolvency has no jurisdiction to hear an attack upon the validity of an assignment based upon facts occurring prior to the filing of the deed, heard on application to set aside and stre from the files the deed of assignment filed by the Consumers' Ice & Refrig- erating Co. Consumers' Ice & Refrigeraung Co., Assignment of. 132.
When, for a valuable consid- eration from the payee, an order is drawn upon a third party and made payable out of a particular fund then due or to become due from him to the drawer, the delivery of the order to the payee operates as an assignment pro tanto of the fund, and the drawer is bound after notice of such assignment, to apply the fund as it accrues to the payment of the order, and the payee may, by action compel such application. Gamble v. Carlisle.
Partial assignments of a debt protected and enforced in Ib.
An assignment upon valid consideration may be made by mere delivery, an endorsement or instru- ment in writing not being necessary to pass the title.
Where an ir solvent debtor makes members of his immediate family his preferental creditors, the transac- tion is suspicious and calls for the clos- est scrutiny, ard the disclosure of an adequate consideration and the bona fides on the part of the creditors. In this class of cases the bona fides of he transaction is assailed by the creditors, and the burden of proof is upon them not only to show that the preference was upon an adequate consideration, but that it was done in good faith, and the introduction of the mere formal transfer raises no presumption what- ever of good faith
Where certain attorneys entered into a contract with an administratrix, whereby such attorneys were to prose- cute an action against a railroad company to recover damages for causing the wrongful death of the intestate, for which the attorneys were to receive a portion of the amount to be thus re- covered; but during the pendency of the action, a settlement was made between the administratrix and the company, without the knowledge or consent of the attorneys, whereupon they brought action to recover their share, against the railway company, the administratrix in- dividually as well as in her representa- tive capacity, and also against the guardian of the minor children of the intestate. Defendants demurred on the ground that separate causes of action against several defendants are improp- erly joined and that the petition does not state facts sufficient to constitute a cause of action: Held, that no cause of action can be maintained against either of these representative parties, either the administratrix or the guardian in their representative capacity; and that there is but one cause of action as against the railway company and the ad- ministratrix individually, and therefore there is no misjoinder of the causes of action, there being but one, and that the two parties can properly be united in the case and a good cause of action stated against them.
Hurd v. W. & L. E. R. R. Co
In defining the boundary lines of Warren county, the legislature used, in sec. 1, 1 O. L., 9, the following language: "Thence north to the Great Miami." Held, that the course "thence north to the Great Miami" was intend- ed to follow and fix the west boundary line of Warren county on the originally surveyed section line, although not running a true north course, and was not intended as a new line to be run straight or due north.
Comrs, of Warren Co. v. Comrs. of But- ler Co. 533.
BUILDING ASSOCIATIONS-
The court has no power on the application of the directors of a building association who assert no in- dividual rights in the property of the corporation, to divest the stockholders, without notice or consent, of the con- trol of their property and place it in the hands of an officer of the court for management and administration. Schone v. Consolidated Building & Savings Co. 246.
No shareholder is entitled to credit for payments made except those made in cash at the usual place of business of the association at the hour fixed by the by-laws for the receipt of dues, and made while the board of directors was ir session.
Sachs v. Duckworth Building & Loan Association. 254.
Payments made otherwise are nevertheless goou if the money ac- tually came to the association. Ib.
The burden of proof is upon the claimants to show payment made according to law, and this burden is not sustained by the mere introduction of the pass book, showing credits to the amount claimed.
Ib. The rules which govern the dealings between a depositor in a build- ing associa..on, who is familiar with the limitations imposed by the consti- tution upon its officers, are different from the rules which govern the deal- ings between third persons and officers of corporations where such third per- sons are not aware of any restrictions upon the apparent powers of such offi- Ib.
Where a building and loan association made a loan to a manufac- turing concern, a corporation, which had purchased stock in such associa- tion, and then executed a note on its stock in the association for the sum loaned, together with a mortgage on its real estate, which mortgage was duly recorded: Held, that the manufactur- ing concern had a right to borrow the money and give its note and mortgage to secure the same, and that the lon association had a right to loan the money and take the note and mortgage, and such loan association is entitled to recover on the note and mortgage. Bank v. Spinning & Stamping Co., 70.
Where a contract has been executed and fully performed, on the part einer of the corporation or other contracting parties, neither will be permitted to insist that the contract and such performance by one party were not within the corporate power of the company. Ib.
Every member of a building association is liable to contribute by assessment in the same proportion in which ne would be entitled to share in profits; and when under the present law, the association limits by its con- stitution the mortgage members from sharing in any profits except dues paid in to the credit of capital during each current year, so also is their liability to contribute to the losses and expenses of the association limited thereto. Richter v. Building & Loan Co.
Where the board of directors of a building and loan association, by the authority vested in them by its constitution, appoint an attorney to perform such service as the constitu- ion provides, such attorney to give bond and "hold his appointment at the
pleasure of the board," and the sure- ties on such bond have bound themselves to pay their princi- pal's default "during his contin- uance in office," such sureties will re- main liable for any default of their principal that may occur during his continuance as such attorney. New German Loan and Building Co. v. Kuehnert. v2.
The law does not require the appointment of an attorney for a building and loan company, nor does it give the directors authority to appoint agents who shall be officers of the corporation, therefore, such attorney is not in legal contemplation an officer of the corporation, and the bond given for the faithful performance of his duties is not in the ordinary sense an official bond.
« ZurückWeiter » |