Volume 19 — West Virginia Reports

Stephens and others were defendants, allowed upon the petition of said Dryden. Hon. Joseph Smith, judge of the seventh judicial circuit rendered the decree appealed from. The facts of the case are fully stated in the opinion of the Court: relied on the following authorities: 10 Wall. 172; 17 Wall. 438; 11 Wall. 262; 1 Rand. 72; 8 Graft. 247; 5 Leigh 460; Gilm. 130; 2 Min.

Mattingly was plaintiff, and Hiratn Sutton and J. G. Mc-Luer were defendants, allowed on petition of said Mattingly. fíon. C, C. Cole special judge pronounced the decree appealed from. Haymond, Judge, furnishes the following statement of the case : This is a bill of injunction filed in the circuit court of Wood county.

Hon. James M. Jackson, Judge of the fifth judicial circuit, pronounced the decree appealed from.

Mann’s executors were plaintiff’s, and Robert Robinson and others were defendants, allowed upon the peti tion of said executors. Hon. Homer A. Holt, judge of the eighth judicial circuit, pronounced the decree appealed from. Green, Judge, furnishes the following statement of the case : On April 25, 1868, Mark L. Spotts, trustee, conveyed to John A. Hunter and Wm.

Writ of error and supersedeas to an order of the circuit court of the county of Kanawha entered on the 27th day of June, 1878, allowed upon the petition of John D. Lewis. Hon. Joseph Smith, judge of the seventh judicial circuit, made the order complained of.

Woodwine and wife were plaintiffs and Richard Woodrum, Houston L. Baber and Giles T. Lowry were defendants, allowed upon the petition of said Baber and Lowry. Hon. Homer A. Holt, judge of the eighth judicial circuit rendered the decrees appealed from.

F. Wortman and others were defendants, allowed upon the petition of said defendants. Hon. James M. Jackson, judge of the fifth judicial circuit rendered the decree appealed from.

Writ of error to a judgment of the circuit court of the county of Boone rendered on the 21st day of April, 1880, in a case in said court then pending, wherein the Board of Education of Sherman District was plaintiff, and Mandeville J. Hopkins was defendant, allowed upon the petition of said board. Hon. Evermont Ward, judge of the ninth judicial circuit, rendered the judgment complained of.

Writ of error and supersedeas to a judgment of the circuit court of the county of Morgan, rendered on the 29th day of September, 1879, in an action of assumpsit in said court then pending, wherein S. Canby was plaintiff, and the Board of Education of Sleepy Creek District was defendant, allowed upon the petition of said defendant. Hon. John Blair Hoge, judge of the third judicial circuit, rendered the judgment complained of.

Armstrong was plaintiff, and Jacob M. Wilson and others were defendants, allowed upon the petition of said Wilson. Hon. A. B. Fleming, judge of the second judicial circuit, rendered the decree appealed from.

Writ of error and supersedeas to a judgment of the circuit court of the county of Kanawha, rendered on the 13th day of June, 1879, in an action in said court then pending, wherein Thomas B. Swann, administrator of the estate of Stewart Eagle, deceased, was plaintiff, and Lewis Summers and others, debtors of the James River and Kanawha Company, were defendants, allowed upon the petition of the said Summers.

o four decrees of the circuit court of the county of Greenbrier, rendered respectively on the 13th day of November, 1876, the 7th day of February, 1877, the 26th day of May, 1877, and the 25t.h day of June, 1877, in a cause in said court then pending, wherein Hannah R. Beard was plaintiff, and Matthew Arbuckle and others were defendants, allowed upon the petition of said Arbuckle. Hon. Homer A. Holt, judge of the eighth judicial circuit, rendered the decree appealed from.

. Beard was plaintiff, and Matthew Arbuckle and others were defendants, allowed upon the petition of said Arbuckle. Hon. Homer A. Holt, judge of the eighth judicial circuit, rendered the decree appealed from. The facts of the case[appear in the opinion of the Court.

Wiley and John Stender were defendants, allowed upon the petition of said Orr. Hon. A. B. Fleming, judge of the second judicial circuit, rendered the decree appealed from. The facts of the case are stated in the opinion of the Court: cited the following authorities: Acts 1872-3 ch. 117 §§ 9, 25; Cool. Const. Lim. 3G8, 3G9 ; 32 Mo. 501; 1 Story Eq. Juris. § 187; Id. § 190; 2 Pars, on Cont. 783, 78G; 1 C. E. Green 48; 1 Stoi’y Eq. Juris. § 246 ; 1 Tuck. Com. 103; 6 Johns.

Hon. John Brannon, judge of the sixth judicial circuit, rendered the decree appealed from. The facts of the case are fully stated in the opinion of the court. cited the following authorities: Code ch. 93 §§ 10, 11; Acts 1872-3 ch. 193 § 6 ; Id. §§ 2, 3; 3 H. & M. 311; 7 Leigh 311; 3 Call 415; Dan. Alt. §§ 11, 12; 8 W. Va. 612, 613; 13 W. Va. 686; 5 Rand. 577; Hillyard Inj. p. 258 § 12; 2 Leigh. 370. cited the following authorities: Cons. Minn.

Hon. Homer A. Holt, judge of the eighth judicial circuit, rendered the decrees appealed from. The facts of the case are stated in the opinion of the Court. cited the following authorities : 7 W. Ya. 356; 10 Gratt. 291; 4?. Va. 146; Acts 1872, p. 168; 1 Gratt. 407; 6 Leigh 196; 3 Gratt. 148; Id. 134; 8 Gratt. 292; J. J. Marsh. 538; 2 Bibb 589; 2 Dana 422; 8 Dana 12; Pow.

Middleton was plaintiff, and Thomas Selby was defendant, allowed upon the petition of the said Selby. Hon. John Brannon, judge of the sixth judicial circuit, rendered the decrees appealed from. Patton, Judge, furnishes the following statement of the case : Henry C. Middleton instituted a suit in chancery in the circuit court of Randolph county against Thomas Selby to enforce the specific performance of a verbal contract for sale of land.

Spencer and Lewis M. Miller were plaintiffs, and Sarah D. Lee and others were defendants, allowed upon the petition of the said Lee. Hon. James M. Jackson, Judge of the fifth judicial circuit, rendered the decrees appealed from.

and others were defendants, allowed upon the petition of said Kight & Bro. Hon. James M. Jackson, judge of the fifth judicial circuit, rendered the decree complained of. HayjioND, Judge, furnishes the following statement of the case: This is a bill of injunction filed by the plaintiff in the circuit court of Wood county. The injunction was granted by said circuit court in term on the 22d day of July, 1875.

Writ of error to a judgment of the circuit court of the county of Monroe rendered on the 17th day May 1878, in an action in said court then pending, wherein the heirs of Seth Barton, deceased, were plaintiffs, and Thomas Gilchrist was defendant, allowed upon the petition of said Gilchrist. Hon. Homer A. Holt, judge of the eighth judicial circuit, rendered the judgment complained of.

C. Boggs administrator and othefs were defendants, allowed upon the petition of said defendants. Held: that if the facts as above stated were alleged and proven and a proper bill were filed, the doors of equity should be opened to afford proper relief to the plaintiff, unless some insuperable barrier was presented by the defendants.

Motion to dismiss a writ of error and supersedeas which had been allowed by this Court in an action on the case pending in the circuit court of the county of Kanawha, wherein William H. Tompkins was plaintiff, and the Kanawha Board was defendant, allowed upon the petition of said Board.

Writ of error and supersedeas to a judgment of the circuit court of the county of Marion, rendered on the 3d day of> February, 1881, in an action in said court then pending, wherein the Baltimore & Ohio Eailroad Company was plaintiff, and Isaac J. Vanderwarker and others were defendants, allowed upon the petition of said plaintiff. Hon. A. Brooks Fleming, judge of the second judicial circuit rendered the judgment complained of.

Setzer was plaintiff, and Charles T. Beale and others were defendants, allowed upon the petition of said Beale. Hon. Frank A. Guthrie, special judge, rendered the decrees appealed from.

Allowed upon the petition of said defendants. Hon. Joseph Smith, judge of the seventh judicial circuit, rendered the decree appealed from.

Compton was plaintiff, and J. C. Gilman, William Burk and C. Coville were defendants, allowed upon the petition of said Compton. Hon. J. M. Jackson, judge of the fifth judicial circuit, rendered the decree appealed from. The facts of the case are fully stated in the opinion of the Court. cited the following authorities: 5 W. Ya, 377 ; 21 Graft. 182; 2 Dan.

Hon. Thayer Melvin, Judge of the First Judicial Circuit, made the orders appealed from.

1. A motion for a continuance is addressed to the sound discretion of the court under all the circumstances of the case; and although an Appellate Court will supervise the action of the court below on such motion, it will not reverse a judgment on that ground, unless such action is plainly erroneous, (p.328.) Writ of error and supersedeas to a judgment of the circuit court of the county of Ohio, rendered on the 29th day of August, 1878, in an action of trespass on the case…

Writ of error and supersedeas to a judgment of the circuit court of the county of Kanawha rendered on the 11th day of June, 1880, in an action in said court then pending, wherein Mark G. Sayre was plaintiff, and William H. Edwards was the defendant, allowed upon the petition of said Ed wards. Hon. Joseph Smith, judge of the seventh judicial circuit, rendered the judgment complained of.

Hibbs were plaintiffs, and Amos Jones was defendant, allowed upon the petition of said plaintiffs. Hon. A. Brooks Fleming, judge of the second judicial circuit, rendered the judgment appealed from. HaymoNd, Judge : During the special term of this Court held in the fall of 1881, this cause was the subject of examination and consideration of each member of the Court as then constituted, in consultation thereon.

nicipal court of the. city of Wheeling, rendered respectively on the 27th day of August, 1877, on the 15th day of October, 1877, on the 4th day of December, 1877, on the 20th day of February, 1878, on the 29th day of February, 1878, and on the 4th day of March, 1878, in a cause in said court then pending wherein Thomas Hughes & Co. were plaintiffs, and Susan R. Hamilton and others were defendants, allowed upon the petition of said Hamilton.

Miller, Auditor of the State of West Virginia, was defendant, allowed upon the petition of said Miller. Hon. Thayer Melvin, judge of the first judicial circuit, rendered the decree appealed from. Johnson, President, furnishes the following statement of the case : The plaintiff in February, 1880, filed its bill of injunction in the circuit court of Ohio county, “to restrain Joseph S. Miller.

<p>1. If in a chancery cause land has been sold, and a sale confirmed, and a rule issued against the. purchaser to show why the land should not be resold, to which rule the purchaser, answers, and the evidence to overrule and support his answer "is all taken, and the plaintiff in the original'^ftjf^’then dies, and the court, the original cause not having been revived, enters a decree on the proceedings under the rule, Held :</p> <p>The court had jurisdiction to render such decree, (p. 457.)</p> <p>2. Exception to a commissioner’s report has to be of the nature of a specia demurrer; and if the report is erroneous, the party complaining of the report or excepting thereto must in his exceptions point out the errors with reasonable certainty, so as to direct the mind of the court to them ; and when he does so, the parts not excepted to arc admitted to be correct not only as regards the principles but as relates to the evidence, on which they are based, (p. 458.) ^</p> <p>3. If lands be sold under direction of a court of chancery by certain metes and bounds by a widow as guardian of her infant children, who own the land subject to the widow’s right of dower therein, and she conveys their interest as well as her own designating the boundaries of the land and warranting the title, and she having shown to the purchaser before the sale the tract offered to be sold, and he is put in possession and enjoys without controversy all the land so shown him, the title thereto being per ■ feet, but it turns out, that the boundaries set out in the deed include land not shown to the purchaser, and never held or claimed by the vendor, or those under whom she claims, the court by a rule in said cause may properly require the purchaser to pay the whole of the purchase-money without allowing him any abatement for the land, which was not shown him, but which is within the boundaries specified in his deed, and to which his title is worthless, (p. 459.)</p> <p>4. A special commissioner is by consent of parties appointed by a chancery court to make report on certain matters in controversy in the cause. The report of such commissioner may be _ set aside by the court for causes, which would justify the court in se’tting aside the report of a general commissioner on the subject, who has without the consent of parties been directed to make the report; such special commissioner is not to be regarded as an arbitrator chosen by the parties, nor his report as an award, (p. 462.)</p> <p>5. When a party has been guilty of a fraud in making a contract with another, a court of equity at the instance of the party defrauded may set aside ^■the contract or may award to the party defrauded a compensation for the injury inflicted by way of abatement from what may be due to the other party, provided the amount of such abatement can be ascertained with certainty by fixed rules; but if the nature of the fraud is such, that the injury done to the party defrauded cannot be definitely ascertained by any fixed rule but is in the nature of unliquidated damages, the court of equity has no jurisdiction to make such abatement, but the party injured should be left to his action of deceit at law. (p. 464.)</p> <p>6. Fraud is usually shown by either establishing a suggestio falsi or a swppres-sio veri. A suggestio falsi or misrepresentation, in order to amount to fraud, must not be about a trifling or immaterial thing, but must be material and not vague and inconclusive in its nature, and must .not be a mere matter opinion or abouta^act equally open to the enquiry of either parlj^-and in regard to'*wljph neither could be presumed to trust the other; and when the misrepresentation is material and not vague, in order to amount to fraud, it must have been actually relied upon by the other party, who must have bee£|pmisled by’it to his injury ^do or agree to do that, which he would not otherwise have done or agreed to do. (p. 464.)</p> <p>7. If a party to a contract makes a statement of a material fact not on his own knqjglgjlge but on information,-ah’et'if either from the express declaration of the party or from’mp nature of the fact stated the othor party understands, that the fact is stated on information and not on knowledge, the party cannot'bj^uilty 9f.'’1?aufd, if he hg,d reason. to^lieve and did believe his statemen£<¿tp-te true, though it turned out to be untrue, and though the other party did rely on it, and was by it misled to his injury. fop. 468, 471.) ^</p> <p>8. But if a party to a contract makes a statement of a' material fact, -when lie lias no personal knowledge of the fact and no real information on the subject, or if he makes a statement of such a fact as made on his own personal knowledge, when he really has no such personal knowledge but has information on the subject, which he believes to be reliable, he is still responsible as for a fraud, if the other party relied upon his statement, and was thereby misled to his injury; and a statement will be regarded as thus made on tbe personal knowledge of the party, though he does not say so expressly, if the mode of making the statement and the nature of the fact declared is such, as would naturally lead the other party to the conclusion, that this statement was made on personal knowledge and not on mere information. In such a case, if he would not be held responsible for the statement as a fraud, the party making it is bound to warn the party, to whom it is made, that it is made on information only, so as fairly to put him on enquiry, (pp. 464-168).</p> <p>9. If a mutual innocent mistake in reference to the substance of a contract is made by the parties, though neither party be guilty of fraud in the sense above explained, a court of equity has jurisdiction to rescind the contract and should do so or refrain from doing so acoording to circumstances. • The jurisdiction of a court of equity in such a case is based on the fact, that the minds of the parties to the contract because of such mistake never in fact met; so there was really no mutnal assent to the contract, . and no contractis binding withoutsuch mutual assent, (pp. 468, 476, 482).</p> <p>10. But no court of equity in such case of mutual innocent mistake, neither party being guilty of any fraud in the sense above explained, has a right to modify and alter the contract of the parties, so as to make it correspond with what, the court may think it probable, would have been the terms agreed upon by the parties, had they not by means of such innocent and mutual mistake been ignorant of the actual facts at the time, when the contract was entered into. All the court can do in such a case is to rescind the contract. It cannot modify the contract; for that would really be making a contract for the parties against their consent and then enforcing it, which would be usurpation of a very dangerous power, (pp. 468, 474).</p> <p>11. But though there be no fraud in a contract of sale, yet the vendor may sometimes be responsible for a false affirmation of a fact, when such affirmation amounts to an implied warranty, as it may, when it appears, that it was so intended by the parties to the contract; but this must appear, and it is not alone sufficient without this appearing to show, that the vendee relied on the statement of the vendor and was thereby induced to purchase at a price, he would not otherwise have agreed to give., It is therefore often difficult to determine, whether an affirmation does or does not amount to implied warranty, (pp. 472, 480).</p> <p>12. A court of equity may reform a written contract, where the suit is brought for the purpose, and it is alleged, that by fraud, accident or mistake of the scribe or by some other means the real agreement of the parties was not that, which is expressed in such written agreement; but except when such a suit as this is brought, no parol evidence can be introduced to explain, alter or modify in any manner a written agreement, (p. 483).</p> <p>13. To this rule there is one exception, that is, when on the face of the written contract the meaning of the parties is ambiguous. In such case the situation of the parties, the circumstances surrounding them, when the contract was entered into, and their conduct subsequently in carrying into effect the written contract may be received as evidence; but this is the only character of parol evidence, which can be received to show the real intention of the parties in such ambiguous contract, and all other, such as the verbal declarations of parties, must be excluded, (p. 483).</p> <p>14. Applying these principles to a written contract for a sale of land or to a deed conveying land, if it be a contract for a sale of land in gross, and the number of acres contained in the tract sold or conveyed is named, and on survey it turns out afterwards, that there is either a deficiency or excess in the number of acres in the tract, under some circumstances a court of equity might rescind the contract or annul the deed because of a considerable mistake of the parties as to the number of acres in the tract, though such mistake was mutual and innocent, and neither party was guilty of any fraud in the sense, -in which fraud is above explained Such rescission could not be made, unless the mistake was so material as to show, that it affected the substance of the contract, and that the minds of the parties had not really come together on the terms stated in the contract or deed. But in such a case, if there was no fraud in either party in the sense above explained, a court of equity could allow no abatement on account of a deficiency in the land, nor could it require the ven-dee to pay any increased price because of a surplus, the mutual and innocent mistake of the parties not authorizing a court of equity to make for them, as this would be doing, a new contract, such as the court might think it probable, they would have made, had they known the true quantity of the land, when the contract was made by them. (pp. 485-557.)</p> <p>15. But as the vendee of land has a right to rely on the statement of the vendor as to the number of acres in a tract of land, which he sells, and naturally does rely upon it; and as the quantity of land is generally a material matter in the purchase of a tract of land, it ought prima, facie to be regarded, that the vendee was induced to pay or agree to pay the price named in the contract or deed because of the statement in it by the vendor of the number of acres, which statement, if positive, should be regarded as a statement made on the personal knowledge of the vendor; and therefore in the absence of all other proof the vendor must be regarded as guilty of a fraud on the vendee; and a court of equity should for this reason require the vendor to make a proportionate abatement from the purchase-money, (pp. 485-557).</p> <p>16. This prima facie case of fraud can not be rebutted by the vendor by simply proving, that he believed, that the quantity of land named in the deed was the true quantity; for if he did not know the true quantity, he ought to have qualified his positive statement of the quantity by saying, that it was the estimated or supposed quantity, or in some other manner. But this prima facie case of fraud on the part of the vendor can be rebutted by parol proof showing, that the vendee did not in point of fact rely on the vendor’s statement of the quantity and was not induced by that statement to buy at the price, which he paid. (pp. 485-557).</p> <p>17. The law as above stated ■would not be varied by the statement of the vendor in the contract or deed, that the land contained a specified number of aeres more or less, as this statement would be no less positive than the other ; for the words “more or less” are not construed to mean “as estimated,” “as supposed,” but are construed to mean about the specified number of acres and are considered or designed to cover only such small errors of surveying, as usually occur in surveys, (pp. 485-557).</p> <p>18. If the vendor by his written contract agrees to convey, or by his deed does convey, for a specified price a tract of land described by metes and bounds or otherwise with the words added “ containing a specified number of acres,” this on the face of such contract or deed is a contract not by the acre but in gross and without any implied warranty of the quantity. But the specification of the quantity exactly without the addition of the words “more or less” or any other qualifying words renders the deed or contract ambiguous as to whether the parties did or did not intend, that the vendor by such positive affirmation of quantity should be regarded as making a warranty, that there was this 'quantity. And if in addition to the exact specification of the quantity of the land the contract or deed on its face shows, that the price to be paid for the land is a multiple of the number of acres specified, this would render' the deed ambiguous, as to whether it was a contract in gross or by the acre (pp. 485-557).</p> <p>19. If such deed or contract is rendered ambiguous on its face in the manner just spoken of, the court for aid in interpreting the same may con aider parol evidence of the circumstances, which surrounded the parties, and their situation, when the contract or deed was made, and also the conduct of the parties in carrying the contract into execution; but the court can consider no other sort of parol evidence, such as the declaration of the parties before, at the time of or after the execution of the deed or contract; nor can the court call in aid any kind of parol testimony to alter, explain, or modify the written contract or deed, if it is unambiguous on its face. (pp. 485-557).</p> <p>20. A court of equity has clearly jurisdiction to abate from the purchase-money due from a vendee for the deficiency in such a sale of land, by which the vendee was injured through the fraud of the vendor in misstating the quantity of the land on the face of his contract or deed or orally, (pp. 485-557).</p> <p>21. In such a suit the court can consider all sorts of parol evidence either to establish or rebut the alleged fraud of the vendor or to prove or disprove, that the statement of the vendor of the number of acres in the tract sold in gross was relied on by the vendee, or that it was not relied upon, or that by it he was or was not induced to purchase at the gross price, which he agreed to pay. The vendee in such a case would be permitted to prove by parol evidence, that the price named in the written contract or deed was arrived at by multiplying the number of acres spec-fied by a certain price per acre, which, by such parol proof it may be shown, he was willing to pay, and the vendor to receive, this being direct and positive proof going strongly to establish (taken in connection with the price named in the contract or deed) that the vendee did in point of fact rely on the statement of the vendor as to the number of acres in the tract and was thereby induced to pay the price, which he agreed to pay, for the tract. This evidence, though it assumes the form of proving, that the land was sold by the acre, is admissible not to contradict the written contract or deed but to prove, that the vendor’s statement of the quantity of the land did in point of fact deceive the vendee to his injury, and in this way to establish the fact at issue in a suit of this character, that is, the fraud of the vendor, (pp. 485-557).</p> <p>22. In this case the vendor by a written contract agreed to sell for $2,000.00 atract of land, the boundaries of which were setforth, containing one hundred and forty acres. This was clearly a contract in gross; and prima fade there was no warranty by the vendor, that there were one hundred and forty acres in the tract; but this contract is on its face ambiguous as to whether by this representation of the quantity as one hundred and forty acres the vendor intended to warrant this quantity, and therefore parol evidence was admissible to show the circumstances surrounding the parties and their situation, when the contract was made, and also their conduct in carrying into execution the contract, excluding oral declarations of the parties. The facts, which will be presently stated, showed clearly, that the vendor did not intend to warrant, that there were one hundred and forty acres in the tract; but the vendor was nevertheless responsible, if by her positive statement, that there were one hundred and forty acres in the tract, the vendee was induced to buy at the price of $2,000.00. The prima facie presumption is, that he was so induced, and the vendor was guilty of a fraud; but this she might rebut by proving the circumstances, under which the contract was made, the situation of the parties, their conduct in carrying the contract into execution and the oral-declaration of the parties at the time when the contract was made, and the oral declarations of the vendee subsequently. The oral testimony proved, that the vendor was a widow, who had a dower interest in the land, the land itself subject to this dower belonging to her children; that by the leave of the court she as the guardian of her children and in her own right sold this land to the vendee; that her husband had bought it about two years before for $2,000.00, and she sold it at the same price ; that the purchaser was about as well acquainted with the land as she was, both living near it; but at the time, when the price was agreed upon, neither of them probably knew the quantity of the land; that when they called together on the scrivener to reduce this contract to writing, they did not tell him to insert in the contract the number of acres, and he did not do so but took the balance of the description of the land from the deed to the vendor’s husband, which had been furnished the scrivener as an aid in drawing the contract; that when he read this contract over to the parties, the vendee said, that he bought the land, that had been conveyed to the vendor’s husband, and that the quantity of the land named in the deed, one hundred and forty acres, must be inserted; the vendor admitted, that the sale was of the land, which had been deeded to her husband, and that the price to be paid her was $2,000.00; that after some contention as to the propriety of inserting the quantity in the contract, it was inserted, and the contract was then signed; that the vendee tookpos-session of the land and held it a number of years, hut when pressed in this suit for the payment of the purchase-money, he had the land surveyed and found, that there was a deficiency of six and three-quarters, acres. Upon this state of facts it is held, that the vendee was not induced to pay $2,000.00 for the land by the representation of the vendor, that there was in the tract of one hundred and forty acres, on which representation he relied and acted, and therefore he is entitled to no abatement from the purchase-money, (pp. '557-563),</p> <p>23. The opinion of Judge Baldwin in the ease of Blessing v. Beatty, 1 Bob. B. p.-, and the subsequent Virginia eases which have adopted his views, as also the first syllabus in Nicholas v. Cooper, 2 W. Va. p 347 disapproved, (pp. 533-545).</p>

<p>1. Under a Constitution, which divides the government into three distinct departments, viz: the Legislative, the Executive and the Judicial, without special authority in the Constitution for so doing it is beyond the power of the Legislative department to authorize the courts to set aside judgments and grant new trials in cases after the term, at which the judgments were rendered, had passed, for such action would be judicial, (p. 569.)</p> <p>2 The people of the State, in their sovereign capacity, have the right in adopting a Constitution for their government to do anything, which they are not prohibited from doing by the Federal Constitution, which was made and ratified by the States themselves, (p. 572 )</p> <p>3. Before the ratification of the fourteenth amendment to the Constitution of the United States, the Legislature might, if authorized by the State Constitution, devest vested rights of property, where such rights were not vested by contract, (p. 572.)</p> <p>4. Since the ratification of said amendment such vested rights of property by a State can only be devested by '‘due process of law.” (p. 572.</p> <p>6. A judgment founded on a tort is in no sense a contract; therefore section 35 of article VIII of the Constitution of West Virginia, which provides, that :‘No citizen of this State, who aided or participated in the late war between the government of the United States and a part of the people thereof on either side, shall be liable in any proceedings civil or criminal, nor shall his property be seized or sold under final process issued upon judgments or decrees heretofore rendered or otherwise because of any act done according to the usages of civilized warfare in the prosecution of said war by either of the parties thereto,” is not inhibited by section 10 of article I of the Constitution of the United States, as it does not impair the obligation of a contract, (p. 573.)</p> <p>6. Section 35 of article VIII of the Constitution treats judgments as property and provides for the carrying out of the provision by “due process of law,” and such judgments, as are contemplated by said section, were not to be set aside or destroyed, until by “due process of law” it was ascertained, that they were recovered “because of an act done according to the usages of civilized warfare in the prosecution of the war by either of the parties thereto.” (p 578.)</p> <p>7. Section 35 of article VIII of the Constitution does not authorize the setting aside of the judgments therein specified and the granting of a new trial. The judgments must stand, until “by due process of law” it is ascertained, that they were recovered “because of acts done according'to the usages of civilized warfare in the prosecution of the war.” (p, 579.)</p> <p>8. “Due process of law” means, as used in said section, in the due course of legal proceedings according to those rules and forms, which have been established for the protection of private rights, securing to every person a judicial trial before he can be deprived of life, liberty or property, (p. 578.)</p> <p>9. The setting aside of a judgment of the character embraced in the said section of our Constitution, and the granting of a new trial upon affidavits filed and an inspection of the record of the judgment, as provided in section 3 of chapter 58 of the Acts of 1872-3, even if a new trial had been authorized by the Constitution, is not “due process of law. (p 582.)</p> <p>10. Section 3 of chapter 58 of the Acts of the Legislature of 1872-3, so far as it provides for the setting aside of the judgment or decree and the granting of a new-trial is unconstitutional and void. (p. 582.)</p>

<p>1. Where a State Constitution divides the government into three distinct and separate departments, viz: The Legislative, the Executive, and the Judicial, -without special authority in the Constitution for'so doing it is beyond the power of the Legislature to authorize courts to set aside judgments and grant new trials in eases after the term, at which the judgments were recovered, has passed, for such action would be judicial, (p. £92.)</p> <p>. 2. .But the people of the State in their sovereign capacity have the right in adopting a Constitution for their government to do anything which they are not prohibited from doing by the Federal Constitution, which was made and ratified by the States themselves, (p. 592.)</p> <p>3. Before the ratification of the Fourteenth Amendment to the Constitution of the United States the Legislature might, if authorized by the State Constitution, devest vested rights of property, when such rights were not vested by contract, (p. 592.)</p> <p>4. Since the ratification of the Fourteenth Amendment to the Federal Constitution vested rights of property can only be devested by a State by “due process of law.” (p. 592.)</p> <p>5. A judgment founded on a tort is in no sense a contract; therefore section 35 of Article VIII of our Constitution, as it only applies to judgments founded on tort, is not inhibited by section 10 of Article I. of the Con- ■ stitution of the United States, as it does not impair the obligation of a contract, (p. 592.</p> <p>6. A. supersedeas-bond executed under the requirement of the law for the purpose of indemnifying the plaintiff, while the judgment is being reviewed, has no effect apart from the judgment itself; and for its binding force it depends upon the fate of the judgment. If the judgment is void, the supersedeas-bond is necessarily void also, and such a bond, where the judgment is void, is not affected by section 10 of Article I of the Constitution of the United States. (p.593.)</p> <p>7. Section 35 of Article VIII of the Constitution of West Virginia, which declares, that “ no citizen of West Virginia, who participated in the war between the Government of the United States and a part of the people thereof on either, side, shall be held liable civilly or criminally; nor shall his property be seized or sold on final process issued on judgments heretofore recovered or otherwise because of an act done according to the usages of civilized warfare in the prosecution of said war by either of the parties thereto,” operates exproprio vigore, (p. 695.)</p> <p>8. A special plea, to an action of debt on a supersedeas-bond, that the original judgment, which on writ of error had been affirmed by the Supreme Court of Appeals of the State, “was recovered because of an act done by a citizen of this State according to the usages of civilized warfare in the prosecution of the late war between the Government of the United States and a part of the people thereof,” presents a complete de-fence to the action, (p. 595.) .</p> <p>9. Section 35 oi Article VIII of the Constitution of the State treats judgments- as property and provides for the carrying out of the provision by “due process of lawand such judgments, aswere contemplated by said section, were not to be declared void, until “by due process of law it was ascertained, that they were recovered 1 ‘because of acts done according to ' ' the usages of civilized warfare in the prosecution of the war,” and when so ascertained, they were to be treated as nullities, (p. 595.)</p> <p>10.“Due process of law as used in said section means, in the due course of ■ legal proceedings; according to the rules and forms, which have been established for the protection of private rights, securing to every person a judicial trial before he can be deprived of his property, (p. 595.)</p> <p>11. A trial in a action on an supersedeas-bond upon issue* joined upon special pleas, which set up the defence, that the original judgment was “recovered because of an act done by a citizen of this State according to the usages of civilized warfare, &c.,” and which issues were found for the defendants, and judgment for the defendants on the only ground, that the original judgment was void, and in effect deprived the plaintiff of the benefit of his judgment, was “due process of law.” (p. 595.)</p> <p>12. If in time of war an act Is done in good faith with a view to assist the side, in whose service the actor was engaged, and was such an act, as would be recognized by civilized nations as according to the usages of civilized warfare, although done without special orders, the actor could not be held liable therefor, (p. 59(5.)</p> <p>13. An instruction in tha language of the pleadings although general is not erroneous; therefore it was not error to instruct the jury: “If they believed the act done by the defendants was according to the usages of civilized warfare, they must find for the defendants.” If the plaintiff had desired, he had the right to have the court define to the jury the meaning of the phrase, “usages of civilized warfare.” (p. 597.)</p> <p>14 In time of war an officer has the right to arrest and imprison any one, whom he suspects and has reason from general representation or otherwise to suspect of giving aid and comfort to the enemy or of intending to give such aid and eomfort; and such arrest and imprisonment is “ao* cording to the usages of civilized warfare.” (p. 599.)</p>

<p>Section 36 of Article VIII of the Oonstitution does not authorize the setting aside of the judgments therein specified and the granting of new trials thereon. The judgments must stand, until by ‘ ‘due process of law” it is ascertained, that they were rendered “because of acts done according to the usages of civilized warfare in the prosecution of the war;” and when so ascertained such judgments are nullities, (p. 601.)</p>

<p>Section 35 of article VIII of tbe Constitution does not authorize the setting aside of the judgments therein specified and the granting of new trials. The judgments must stand, until by “due process of law” it is ascertained, that they were recovered “because of acts done according to the usages of civilized warfare in the prosecution of the war; ” and when so ascertained such judgments are nullities, (p. 601).</p>

<p>1. The declarations to a third person, of a trustee in a deed of trust upon land made to secure the payment of money due from the deed of trust debtor to his creditor, that the debt so secured has been paid, cannot be received as evidence against the cestui que trust as tending to prove the payment or non-existence of the trust-debt or for the purpose of estopping the cestui que trust from asserting his debt against the property covered by said deed of trust, where the trustee has not executed said deed of trust by sale thereunder. The power of the trustee over the legal estate vested in him exists only for the benefit of the cestui que trust. Generally in a court of equity no act or negligence of the former can prejudice the latter. (page 639.)</p> <p>2. A legal presumption of payment of a bond or covenant given for the payment of money does not arise from mere lapse of time, where the bond or covenant has not been due for twenty years before commencement of suit or proceedings for the recovery of the amount thereby due and payable. If a shorter period even a single day less than twenty years, has elapsed, the presumption of satisfaction from mere lapse of time does notarise, (p. 639.)</p> <p>3. While the mere lapse of twenty years without explanatory circumstances affords a presumption of law, that the debt is paid, even though it be due by specialty, still the payment may be inferred by the court or jury from circumstances with the lapse of a shorter period of time than twenty years, (p. 640.)</p> <p>4. When an action or proceeding is based upon a bond or covenant for the payment of money, if twenty years elapse between the time of its becoming due and the commencement of the action or proceeding, the defendant may without pleading the statute of limitations rely upon the presumption of payment; and upon issue joined on plea of payment payment may be inferred by the court or jury from circumstances coupled with a lapse of a shorter period than twenty years, (p. 640.)</p> <p>6. On the 3d day of February, 1863, near nine months after the Legislature of the reorganized government of Virginia had given the consent of Virginia to the formation of the new State of West Virginia, and some time after Congress had passed an act giving its consent to the formation of the new State of West Virginia, and providing for its admission into the Union as one of the United States,, upon conditions precedent expressed, the General Assembly of Virginia passed an act entitled “An act transferring to the proposed Stale of West Virginia, when the same shall become one of the United States, all this State’s interest in property, unpaid and uncollected taxes, fines, forfeitures, penalties and judgments, in counties embraced within the boundaries of the proposed State aforesaid.” This act contains seven sections, and the seventh and last section thereof provides, that “This act shall take effect, when the proposed State of West Virginia shall become one of the United States.” The said proposed State became one of the States of the United States on the 20th day of June, 1863. Held :</p> <p>I. That the said act of the General Assembly of the reorganized government of Virginia was not void, because the State of West Virginia was not in existence as one of the United States at the time of its passage, (p. 648.)</p> <p>II. That said act did take effect and become operative for the purposes of its enactment on the said 20th day of June, 1863. And although the Legislature of the State of West Virginia did not by an act in express terms “accept the said Virginia act,” yet the Legislature did by clear implication derived by acts touching the subjects of said Virginia act accept the said Virginia act (if any acceptance were necessary to make the said act effective for its purposes), (p, 648.)</p> <p>III. Under the circumstances, under whiclf'said Virginia act was passed, considering its purposes and character, it should be considered, that it became operative and effective for its purposes and objects on the 20th day of June, 1863, unless it appears, that the State of West Virginia on that day or afterwards dissented from or refused to accept the provisions of said Virginia act expressly or by implication, (p. 649.)</p> <p>6. The State of Virginia upon notices and motions by thenameof “The Commonwealth” instituted and prosecuted by the auditor of public accounts on the 6th day of March, 1860, recovered two several judgments against Edmund S. Cal well “in the circuit court of Eichmond” as one of the securities of John E. Lewis, late sheriff of Greenbrier county, the one being for $4,893.92, the balance of the land property, and capitation and September liceuse taxes of 1854 due from said John E. Lewis, late sheriff of Greenbrier county, with interest thereon to be computed at the rate of six per centum per annum from the 17th day of January, 1855, until paid, and the costs of the motion, $13.44, and the other being for $1,073.86, the balance of June, 1855, license taxes, due from said John E. Lewis, iate sheriff of Greenbrier county, with interest thereon to be computed at the rate of six per centum per annum from the 20th day of June, 1855, until paid, and $161.07 for damages thereon according to law, also the cost of the motion, $11.94. The law in force at the time said notices were given and motions made and judgments were rendered provided, that “ the auditor of public accounts shall institute and prosecute all proceedings proper to enforce payment of money to the Commonwealth - that the proceeding may be in the circuit court of the city of Eichmond — that when it is at law, it may be by action or motion — that “ every judgment on any such motion shall be in the name of the Commonwealth.” And the city of Eichmond being the capital of the State of Virginia, as judicially known to the court, Held:</p> <p>I. That each of said judgments is a valid judgment of the State of Virginia against said Edmund S. Calwell rendered in and by the circuit court of the city of Eichmond, Virginia, though in the name of the Commonwealth, “Commonwealth” under and by virtue of the law standing for and representing the State of Virginia for all purposes, of which all persons were bonnd to take notice. And the “ circuit court of the city of Eichmond” standing for and meaning the circuit court of the city of Eichmond under and by virtue of the law, of which all persons were also bound to take notice. Chapter 42, Code of Virginia, 1860, sections 1, 2 and 4. (p. 651.)</p> <p>II. That each of said judgments with their liens passed to and became vested in the State of- West Virginia under and by virtue of the said act of the General Assembly of Virginia, passed February the 3d, 1863, on the 20th day of June, 1863. (p. 651.)</p> <p>III. That each of said judgments belonged to the State of Virginia with their liens until the said 20th day of June, 1863. (p. 651).</p> <p>IV. The said judgments and each of them were and continued to be positive liens in favor of the State of Virginia upon all the lands of the said Edmund S. Calwell in the State of Yirginia, including those in the county of Greenbrier, now of the State of West Yirginia, from the time of their rendition until the said 20 th day of June, 1863. (p. 651).</p> <p>Y. That by virtue of the said Yirginia act of February the 3d, 1863, the said judgments with their said liens upon the said lands of said Edmund S. Calwell on the said 20th day of June, 1863, passed to and belonged to the State of West Yirginia, and said judgments on the date last aforesaid became and from (hence continued to be positive liens in favor of the State of West Yirginia upon the lands of said Edmund S. Calwell within the limits of the State of West Yirginia, including his lands in the said county of Greenbrier, (p. 652).</p> <p>VI. That said judgments did not cease to be liens upon the lands of said Calwell within the State of West Yirginia, upon the last named State becoming one of the States of the Union, to-wit, on the 20th day of June, 1863, nor did the liens of said judgment upon the lands of said Calwell within the State of West Virginia in any wise become discharged or released by the State of West Yirginia becoming one of the United States, (p. 654.)</p> <p>VII. The stalute of limitations did not commence to run against the State of Virginia as to said judgments for any purpose prior to the 20th day of June, 1863, when they with their liens passed to the State of West Virginia, (p. 651.)</p> <p>VIII. The statute of limitations did not commence to run against the State of West Yirginia for any purpose by virtue of her laws as to said judgments until the 1st day of April, 1869. (Code of 1868, chapter 35, section 20.) (p. 651.)</p> <p>7. Quiere: Does the statute of limitations run against the lien of a judgment upon the lands of a judgment-debtor, created by statute, in any case? (p. 653).</p> <p>8. The “authenticated abstract” of a judgment mentioned and referred to in section 4 of chapter 186 of the Code of Yirginia of 1860, in relation to docketing judgments is answered and fulfilled by presenting to the clerk of the county court an attested copy of the judgment in lieu of an “authenticated abstiaet” of the judgment; such copy of a judgment answers substantially for all purposes the requirements of said fourth section, and includes all that an abstract could show and more. (p. 664.)</p> <p>9. The said two judgments were docketed in the clerk’s office of the county court of Greenbrier county by the clerk thereof, in the name of ‘ ‘the Commonwealth against Edmund S. Calwell,” on the 29th day of September, 1860, in the judgment lien docket kept in the clerk’s office of said county court for the purpose of docketing judgments under the fourth section of said chapter 186 of said Code of 1860. Said judgments as docketed plainly show the date and the amount of each judgment and the dale of the docketing of each judgment and the amount and date of each credit. But the judgment was not indexed in the name of the defendant, Edmund S. Calwell. Held :</p> <p>I. That under chapter 186 ?? 1, and 8, of the said Code of 1860, indexing was not a necessary part of the docketing of the judgment; the docketing is complete without the indexing for the purpose of preserving the liens of the judgments upon the real estate of the said judgment-debtor in Greenbrier county, as against a purchaser thereof for valuable consideration without notice, (p. 667.)</p> <p>II. That said docketing of each of said judgments as aforesaid preserved the lien of each of said judgments upon the real estate of said Edmund S. Calwell, in the county of Greenbrier, in favor of the State of Virginia, as against a purchaser thereof for valuable consideration without notice until the 20th day of June, 1863, and preserved the lien of each of said judgments upon the real estate of the said Edmund S. Calwell, in the said county of Greenbrier, in favor of the State of West Virginia, as against a purchaser thereof for valuable consideration without notice, on the said 20th of June, 1863, and from thence forward.</p> <p>10. The said fourth section of chapter 186 of the Code of 1860, in so far as it relates to the quality of a judgment docket book, is directory, (p. 666.)</p> <p>11. As a general rule, where a statute directs certain proceedings to be done in a certain way, and the form does not appear essential to the judicial mind, the law will be regarded as directory, and the proceedings under it will be held valid, though the command of the statute as to form has not been strictly obeyed, the manner not being the essence of the thing to be done. (p. 666.)</p> <p>12. The liens of said two judgments upon said lands were in no wise impaired or discharged by any of the provisions of the Code of this State of 1868, such judgment-liens upon such lands being accrued rights, were not Intended to be affected by said Code. (Sections 1 and 2 of chapter 176 of the Code of 1868.) (p. 663.)</p>

<p>1. Homestead and building associations in this State are incorporated under the 54th chapter of our Code, page 411. The 25th section of this chapter provides. “Homestead and building associations formed under this chapter may be for the purpose of raising money to be used among the members of such corporation in buying lots or houses, or in building or repair, ing housesThe 20th section provides : “ Such corporations shall not use or direct the'funds thereof for or to any other object or purpose than those mentioned in the preceding section; and in case said funds shall not be so used or directed, the association so using or directing them shal* forfeit all its rights and privileges as a corporationand the 27th section provides: “ Every such corporation is authorized to levy, assess and collect from its members such sums of money by stated dues, fines, interest on loans advanced, and premiums bid by members for the right of precedence in taking loans, as the corporation by its laws shall provide; also to acquire, hold, convey, and encumber all such real estate and personal property, as may be legitimately pledged to it on such loans or transferred to it in the due course of lawful business ; provided that the dues, fines, and premiums'’paid by the members of such corporation, although paid in addition to the legal rate of interest on loans taken by them, shall not be construed to make the loans so taken usurious, Held :</p> <p>I. By virtue of these sections it is the duty of a building association in this State to see, that money paid to its 'members on loans advanced under the provisions of the 27th section is used by[.the member to buy lots or houses or to build or repair houses.</p> <p>II. When in redeeming shares a building association advances money to a member, who has bid the highest premium for the precedence in taking the money, such advance of money is a loan, and as such it is under the operation of the statute against usury, except so far as it is protected against the operation of the usury-law by the proviso in the 27th section, (p. 698.)</p> <p>III. 'When a building association fails to perform its duty in seeing, that the money so loaned by it is applied by the member to the purposes specified in the 25th section, it thereby forfeits the privilege conferred on it by the proviso in the 27th section of being exempted from the operation of the usury-law in receiving premiums on money so loaned and used for illegitimate purposes.</p> <p>IY. But in such a case the corporation has a right to enforce the payment of the principal of the money actually advanced to the member redeeming his share with legal interest thereon at the rate of six per cent, per annum, but has no right to collect compound interest on the money so actually advanced, though this be stipulated in the contract. Nor has it the right to enforce the payment of the premium bid, such premium being regarded as usurious interest in such a case. But it has in such case a right to enforce the collection of such reasonable fines, as it may have imposed on the member for the non-payment promptly of dues.</p> <p>Y. In any case a building association, that loans money to a member, has a right to take a deed of trust on the real estate of a third party to secure the payment of the money loaned and the interest thereon and all fines and other charges, with which the member may be legally assessed by reason of his ownership of the shares redeemed and the repayment of all sums, which the association may have to pay for taxes or insurance on the property conveyed by the deed of trust, and also to secure the premium bid by the member for the preference in taking such loan, provided the association has not forfeited its right to take or demand such premium by neglecting to see, that the money loaned was applied to the purposes named in the 25th section.</p> <p>VI. In such cases the building association is under no obligation to notify such third persons of the failure of the member, who has borrowed the money, to pay his interest, fines or dues promptly. Such third person must protect his own interest by making enquiries as to whether the member is fulfilling his obligations to the association.</p>

<p>1. The 27th section of chapter 54 of the Code of West Virginia, page 411, provides, that “every homestead and building association is authorized to levy, assess and collect from its members such sums of money by stated dues, fines, interest on loans advanced, and premiums bid by members for the right of precedence in taking loans, as the corporation by its laws shall provide.” Held : Under such section a building association may by its constitution impose fines for the non-payment of the dues of members promptly, provided first, that but one fine is imposed for a failure to pay the dues falling due at one time; the association is not authorized however to impose a second fine on a member, because he permits his dues, which fall due at a particular time, to remain unpaid for any length of time ; and provided secondly, that the fine imposed for the failure of a member to pay promptly his dues falling due at a particular time shall be reasonable; and the payment of an unreasonable fine for such failure will not be enforced, (p. 737.)</p> <p>2. A building association, the par value of whose shares is $150.00, and whose members by its constitution are required to pay twenty-five cents a week on each share as dues, by its constitution provides also for the imposition of a fine of ten cents a share for a failure to pay such dues promptly. Held :</p> <p>Such fine is reasonable and its payment may be enforced by the association. (p. 741.)</p> <p>3. A building association by its constitution provides, that the shares of stock in the association may be transferred, but when such transfer is made the party receiving the transfer shall pay to the association a transfer-fee of fifty cents for each share transferred. Held :</p> <p>This transfer-fee may be enforced by the association, (p. 737.)</p>

<p>1. The 25th section of chapter 54, page 411 of the Code of West Virginia provides, that “homestead and building associations formed under this chapter may be for the purpose of raising money to be used among the members of such corporations in buying lots or houses or in building or repairing Rouses.” And the 29tR section provides, tRat “every sucR corporation sRall adopt a constitution, which sRall be signed by tRe members thereof, and which shall embrace among other things this 25th section.” A charter is granted regularly to an association as a homestead and building association under this chapter of the Code ; but the 1st article in its constitution provides : “This association shall be called the United States Building, Land & Loan Association of 'Wheeling; and its' object shall be to -purchase real estate with or without improvements and for the accumulation of a fund, by which the members shall be enabled to build or purchase houses and secure loans." Another article provides : “This association is formed under and is subject to the corporation-laws of the State of West Virginia especially sections 25, 26, 27 and 28 of chapter 54 of the Code of West Virginia, which are hereby made a part of this constitution.” Held :</p> <p>I. Such corporation isa homestead and building association and has a right to enforce the performance of a contract with it, if such contract is of such a description, that it could be legally made and enforced by any other homestead and building association. (p. 755.)</p> <p>II. Held further : The failure of a member to sign the constitution of such association, if he has for a long time acted as a member of the association, will not prevent the association from enforcing the performance of a contract made with such member, though it be a contract, which the association was not authorized to make with any but a member, (p. 768.)</p> <p>2. The 27th section of chapter 54 of the Code of West Virginia provides, that “every homestead and building association is authorized to levy, assess and collect from its members such sums of money by stated dues, fines* interest on loans advanced and premiums bid by members for the right of precedence in taking loans, as the corporation by its laws shall provide, provided that the dues, fines and premiums paid by the members of such corporation, although paid in addition to the legal rates of interest on loans taken by them, shall not be construed to make the loans so taken usurious.” Held :</p> <p>Under this section such a corporation has no right to impose a fine for the non-payment of interest on money loaned to a member, (p. 763.)</p>

<p>1. By the 27th. section of chapter .74 oE the Code of West Virginia, page 411, it is provided, that “ Every homestead and building association is author- • ized to levy, assess and collect from its members such sums of money by stated dues, fines, interest on loans advanced, and premiums bid by members for the right of precedence in taking loans, as the corporation by its laws shall provide : Provided, That the dues, lines and premiums paid by the members of such corporation, although paid in addition to the legal rate of interest on loans taken by them, shall not be construed to make the loans so taken usurious Held,</p> <p>Upon the redemption of shares under this section by a building association the premium bid by a member must be regarded as the amount, which he proposes and agrees to have abated from the par value of his share at the close of the association, if the precedence in taking the loan is awarded to him, and not as the cash, which he is willing to pay for such precedence. The loan advanced under this section is the money actually paid by .the association to the member, whose shares are redeemed, and not the par value of the shares redeemed; and therefore the association has no authority under this section to take or demand interest on the par value of the shares redeemed. If it does so, it violates the statute against usury and is not protected by the proviso in this 27th section, and it can only recover the interest on the money actually advanced and paid to the member; nor would a provision in the constitution however express or the consent of the member to pay interest on the par value of the shares and to regard his bid of the premium as a cash-bid alter the 1 case ; for the association is not permitted by this section to take interest on anything but the money actually paid to the member for his own use. (p. 777.)</p> <p>2. A deed of trust taken to secure such a loan may also properly secure the payment of the dues, fines and charges against a member arising from his ownership of the shares redeemed and also the repayment of any taxes or insurance on the property conveyed by the deed of trust, as these provisions are necessary to render the property conveyed and the stock redeemed available security. The stock redeemed is to be regarded not as belonging to the building association but as pledged as collateral security for not only the actual loan and interest thereon but also as security for the premium bid, which is to be abated from the par value of the stock at the close of the association, (p. 781').</p>

<p>1. An article in the constitution of a building association provided: “Any member wishing to have his deed of trust released shall repay the full amount of money covered by his deed of trust, &c. ;• hut in all cases he shall receive credit on his note for dues paid on his stock to the association.” The notes taken by the association were not for the money actually loaned but for the par value of the stock; and it could demand interest not on the face value of these notes but only on the money actually loaned ; and the principal of the note was not intended (o be paid but both it and the premium was at the close of the association to be offset against the par value of the shares, which would then be due to the redeeming member. Held :</p> <p>This article of the constitution was intended to permit a redeeming member to pay up his loan in advance and obtain a release of his deed of trust and to provide, that where this was done, the settlement should be so made, that neither the association nor the borrower should sustain pecuniary loss, but each party should be left in the same pecuniary condition, that he would have been in, had the member not paid his loan in advance but continued a member of the association to its close; aud to effect this purpose of this article the details of the settlement so awkwardly expressed must be to some extent departed ñ-om ; but a mode of settlement should be adopted corresponding as closely, as may be, to the mode indicated in the article consistently with its general purpose. This would be effected by requiring the withdrawing member to pay the present value of all moneys, which he would be required to pay in the future, were he to continue to be a member of the association ; and this present value should be found by discounting the future payments of both dues and interest to the estimated close of the association at the rate of six per centum per annum for the average time of such future payments. Haigh v. United States Building, Land and Loan Jsso-ciation, (p. 802).</p> <p>2. A party, who has voluntarily paid money with a full knowledge of all the facts and circumstances but under a mistake as to the law, cannot recover it back ; and therefore a member of such building association, who has voluntarily paid more money to obtain a release of his deed of trust, than under its constitution the building association could have required, cannot recover it back, if he knew all the facts, when he made the payment, but was mistaken as to his legal rights, (p. 810)</p> <p>3. A member of a building association, wbo complies with its constitution and by-laws and under their provisions withdraws, can recover the amount due him under such constitution and by-laws by an action of as-sumpsit, in which there is no special count but only the common counts, (p. 801).</p> <p>4. If in such a suit the case is submitted by consent to the court in lieu of a jury, who renders a judgment for the plaintiff, and in a bill of exceptions taken by the defendant all the facts proven are certified by the court, and it appears, that they were all admissible under the common counts in the declaration and justify the judgment of the court, this court will not reverse such a judgment, because the circuit court overruled improperly a demurrer to a defective special count, as the defendant could not possibly be prejudiced in such a case by such error, (p 801).</p>