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.
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