PERFORMANCE-Discretion of the Court.-An
application for specific performance is addressed to the sound dis-
cretion of the court. He who asks it must have shown himself prompt
and willing to comply with his contract, and it will not be granted
if it would be inequitable and work hardship upon the party against
whom it is asked. If, since the contract, the value of the land has
greatly increased, and the conditions changed, and the vendee is in
a condition where the enforced performance would greatly damage
him and especially where the purchaser is chargeable with the delay
by reason of the failure to perform, equity will refuse to compel
the vendor to convey. (W. Va.) Lowther Oil Co. v. Miller etc.
Oil Co., 1027.
2. SPECIFIC PERFORMANCE-Losing Right to by Long Delay
and Permitting Adverse Interests to Grow up.-If one holding a con-
tract for the purchase of lands delays for nine years completing pay-
ment of the purchase price, during which time he permits the vendor
to remain in possession, and rents from him and pays rent for some
years, and finally oil is discovered and the lands are greatly in-
creased in value, and leases are made by the vendor for the purpose
of permitting and encouraging the development of an oil field, and
large expenditures are made thereunder with the knowledge of the
purchaser and without his protest, he can no longer maintain suit
for specific performance of the contract to convey. (W. Va.)
Lowther Oil Co. v. Miller etc. Oil Co., 1027.
3. SPECIFIC PERFORMANCE-Estoppel.-A person who stands
by without making known his rights, and encourages and permits an
innocent purchaser to negotiate an oil lease with the owner of the
property and to thereafter incur great expenditure in the search
for and devoloping of oil, is estopped from maintaining a suit
against the land owner and such lessee to enforce a contract to pur-
chase the lands entered into before such lease was made. (W. Va.)
Lowther Oil Co. v. Miller etc. Oil Co., 1027.
4. PAROL GIFT OF REAL PROPERTY-Specific Performance
of. One who, upon the faith of a gift from the owner, enters into
the possession of real property and makes improvements of a valu-
able and permanent character, becomes entitled to specific perform-
ance by the owner. (Tex.) Cauble v. Worsham, 871.
5. SPECIFIC PERFORMANCE will not be Decreed of a Con-
tract Made with Intent to Defraud Creditors. (W. Va.) Lowther
Oil Co. v. Miller etc. Oil Co., 1027.
SPECIFIC PERFORMANCE-What Will not Defeat.-The
specific performance of a contract to furnish evidence and provide
for the prosecution of an action in favor of the defendant, in con-
sideration of a part of the judgment recovered, cannot be defeated
by showing that the plaintiff did not strictly comply with its terms
in advancing money, when the defendant has received and retains
the benefits of at least a substantial performance. (Colo.) Wood
v. Casserleigh, 138.
SPIRITUALISM.
See Wills, 8-10.
STATUTE OF LIMITATIONS.
See Limitation of Actions.
STOCK AND STOCKHOLDERS.
See Corporations.
See Dedication; Highways; Municipal Corporations.
STRIKES.
See Carriers, 17-19.
SURETYSHIP.
See Principal and Surety.
SWAMP LANDS.
See Public Lands, 3.
1. TAXATION of Property Belonging to a City.-Waterworks
Owned by a City and operated to supply public buildings and places
and for protection against fire and for furnishing water to the
public at fixed charges, and the rentals of which go into the publie
treasury and are expended for public benefit, are not subject to
taxation. (Kan.) Sumner County v. City of Wellington, 396.
2. CONSTITUTIONAL LAW-Exemption from Taxation.-Where
a constitution declares that the legislature shall provide for a uni-
form and equal rate of taxation, and that certain specified classes
of property shall be exempt from taxation, this does not preclude
the legislature from exempting other property. (Kan.) Summer
County v. City of Wellington, 396.
3. CONSTITUTIONAL LAW-Taxation-Retroactive Statute.—
A statute attempting to create a personal liability to pay assessments
previously made on land, where no liability existed when the assess-
ments were made, is unconstitutional and void. (Mich.) City of
Grand Rapids v. Lake Shore etc. Ry. Co., 473.
Tax Sales, adjournment of, power of officer to order, 655, 656.
TELEGRAPHS AND TELEPHONES.
1. TELEGRAPH CORPORATIONS-Damages for Mental An-
guish, When not Admissible. In an action against a telegraph cor-
poration for the negligent failure to deliver a message summoning
the plaintiff to the bedside of his mother then fatally ill, it is not
permissible to prove that she frequently inquired for her son and
kept calling his name and asked why he did not come to her. (Tex.)
Western Union Tel. Co. v. Waller, 936.
2. TELEGRAPH CORPORATIONS Conflict of Laws.-The fact
that damages for mental anguish are not recoverable in a state or
country where a telegraph message should have been delivered will
not prevent their recovery in an action in the state whence the mes-
sage was sent, if recoverable by its laws. (Tex.) Western Union
Tel. Co. v. Waller, 936.
3. TELEPHONE COMPANIES Negligence-Defense.-It being
the duty of a telephone company to remove its wires from a building
after the discontinuance of telephone service therein, and negligence
per se to fail to do so, it is no defense for it in an action sounding
in damages for injury to a third person resulting from such wires
being negligently allowed to remain therein, that the company did
all that could be done to obviate the danger of their being there.
(Ala.) Southern Bell Telephone etc. Co. v. McTyer, 62.
4. TELEPHONE COMPANIES-Negligence-Liability to Third
Persons. If telephone service has been discontinued in, and the in-
struments removed from, a building in which a mercantile business
is carried on, and the telephone company, instead of removing its
wires as suggested by the owner of the building, merely cuts them
loose from the instrument, twists their ends together and leaves
them dangling in the building, so that atmospheric electricity, strik-
ing them somewhere along their course on the outside, will be in-
ducted into the building and there discharged to the peril of persons-
and property therein, this is negligence per se on the part of the
telephone company, and renders it liable in damages, for whatever
injuries may result to customers, persons and property rightfully
on the premises. (Ala.) Southern Bell Telephone etc. Co. v. Mc-
Tyer, 62.
1. JOINT OWNERSHIP by an Individual and a Society. If a
lot is conveyed to an individual and a society, the latter being un-
able to acquire legal title because unincorporated, and a building is
erected under an agreement that each shall build and own a certain
portion, and thereafter the society holds continuous possession of its
part of the building, claiming one-half of the lot, and finally becom-
ing incorporated, a grantee under a deed from the individual alone,
which excepts the portion of the building owned by the society,
takes with notice of the society's claim. (Iowa) Truth Lodge No.
213 etc. v. Barton, 303.
COTENANCY-Ouster and Adverse Possession. The convey-
ance of the entire property by one cotenant operates as an ouster of
the others, and serves as a basis for adverse possession by the grantee.
(lowa) Murray v. Quigley, 276.
3. COTENANTS Statute of Limitations Effect of a Suit by
Some of the Cotenants.-A suit by one cotenant does not stop the
running of the statute of limitations against another in favor of
whom no right is asserted by such suit. (Tex.) Cauble v. Worsham,
$871.
TIME THE ESSENCE.
See Contracts, 3, 4.
See Contracts, 24-26; Negligence.
TRESPASS-Essentials of.-In order to maintain trespass for
the wrongful taking of personal property, the plaintiff must show that
he had at the time of the taking the actual possession of the prop-
erty or the right of immediate possession. (Ala.) Johnson v. Wil-
son, 52.
TRESPASSERS.
See Carriers, 23-25.
1. TRIAL-Right to Open and Close.-In an action against sure-
ties on a note, the execution of which is admitted, in which they
interpose as a defense a claim for damages in favor of their principal,
they are entitled to open and close the case. (Kan.) Park v. En-
sign, 352.
2. PRACTICE-Demurrer to the Evidence-Right to Interpose,
When not Waived. If the plaintiff offers in evidence a part of the
record in another action, the defendant may call for, and read, the
remainder of it, without waiving his right of demurrer to the evi-
dence. (Tenn.) Cooley v. Galyon, 823.
PRACTICE-Demurrer to the Evidence Cross-examination
does not Waive Right to Interpose. On cross-examination, the de-
fendant may bring out any matter pertinent to the issue, and by the
exercise of such right he does not waive his right of demurrer to
the evidence. (Tenn.) Cooley v. Galyon, 823.
4. JURY TRIAL.-Where Instructions are in Such Conflict as to
Confuse the Jury, the judgment should be reversed. (Tex.) Hous-
ton etc. Ry. Co. v. De Walt, 877.
5. JURY TRIAL.-Where Conflicting Theories are Included in a
Charge, one of which is erroneous as a matter of law, the judgment
must be reversed, though the other was correct, if it cannot be
known but the jury acted upon the erroneous theory. (Tex.) Gulf
etc. Ry. Co. v. Garren, 939.
6. JURY TRIAL-Error in One Instruction, When not Cured by
Others. An instruction that a servant of a railway must obey the
orders of his superior, and if the work required is extrahazardous,
the company is responsible for the master's orders being obeyed, is
erroneous, and the error is not cured nor rendered harmless by other
instructions correctly defining negligence and contributory negli-
gence and informing the jury that the plaintiff cannot recover if
guilty of contributory negligence. (Tex.) Houston etc. Ry. Co. v.
De Walt, 877.
7. INSTRUCTION.-A Party cannot Complain of an instruction
given at his own request. (Colo.) Denver etc. R. R. Co. v. Peter-
son, 76.
8. TRIAL-Instructions.-A request to give written charges to the
jury as an entirety is properly refused, if any of them is improper.
(Ala.) Verberg v. State, 17.
1. TROVER Evidence.-If in trover or trespass both parties
derive title to the property from the same person by virtue of a
mortgage executed by him, but the mortgage to the defendant was
executed under an assumed name, his mortgage is not admissible in
evidence, nor is the fact admissible that he sold the property included:
in the mortgage to the mortgagor. (Ala.) Johnson v. Wilson, 52.
2. TROVER-Essentials of. To support an action of trover, the
right of property, general or special, and possession, or an immediate
right of possession, must concur in the plaintiff at the time of the
conversion. (Ala.) Johnson v. Wilson, 52.
3. TROVER-Burden of Proof.-If by the terms of a chattel
mortgage the right of the mortgagee to take possession of the prop-
erty is postponed until the maturity of the note secured by the
mortgage, he cannot maintain an action for the conversion or taking
of the mortgaged property until after the law day of the mortgage,.
and the burden of proof is on hin to show that the conversion or
taking occurred after his right to take possession accrued under
the mortgage. (Ala.) Johnson v. Wilson, 52.
4. TROVER AND CONVERSION—Attachment-Dismissal.—If
the owner of goods turns them over to another, who has them shipped
in his own name by a carrier to himself as consignee, and a cred-
itor of the owner attaches them while in transit, induces the at-
taching officer to turn them over to him and then dismisses his.
attachment, he becomes a trespasser, and has no such legal pos-
session of the goods as is a defense to an action for their con-
version by the shipper, although the claim of the latter to them
is founded in fraud. (Mo.) Rosencranz v. Swofford Bros. etc. Co.,
609.
5. TROVER AND CONVERSION-Dismissal of Attachment-
Trespass Removal of Goods-Estoppel.-If a creditor of the owner
of goods which are in the legal possession of a third person, after
attaching them and gaining possession of them from the attaching
officer, dismisses his attachment, he becomes a trespasser, and if he
then transports the goods to another state, and again attaches them,
prosecuting his attachment there to judgment, such judgment is
void for want of jurisdiction, and no defense to a suit for conversion
by the person entitled to the legal possession of the goods; nor is
the latter estopped to question the jurisdiction of the court ren--
dering such judgment, although his claim to the goods is founded
in fraud. (Mo.) Rosencranz v. Swofford Bros. etc. Co., 609.
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