Volume 20 — South Dakota Reports

<p>In a prosecution for larceny, where it is shown that the property stolen was in possession of the owner’s agent, the fact that the taking was without the owner’s consent may be shown by testimony that it was without the knowledge or consent of the agent, and by confessions of defendant, and the owner himself need not be called to testify to his non-consent.</p> <p>In a prosecution for larceny, an instruction that the information charged defendant with having taken a colt from the complaining witness, who was the owner’s agent, whereas in fact the information did not so charge, was not prejudicial, where the evidence all showed that the colt was in the possession of the owner’s agent when it as taken.</p> <p>In a prosecution for larceny of a colt, a charge telling the jury that they were acquainted with the situation in the country, and the manner of procedure in relation to stock, and the character of the business, and the'way stock was handled, and- that they had an opportunity to use •their knowledge in regard to those matters, was not subject to the objection of authorizing the jury to base their verdict on their own knowledge instead of on the evidence.</p> <p>In a prosecution for larceny, a charge that ‘‘the question for this jury, and probably the main question, will be, who is the owner of this colt?” was not prejudicial, as withdrawing from the jury the questions of intent and mistake on the part of accused, where such questions were fully and clearly submitted to the jury by other portions of the charge, and they were instructed that, if defendant made an honest mistake, he could not be convicted.</p> <p>Where a sentence imposed in a criminal case is within the maximum limit authorized by the statute, the Supreme Court cannot review the reasons or motives which induced. tne trial court to fix the length of the term.</p>

Hon. J. H. McCoy, Judge. Action by C. S. Barton against J. Lee Koon and others. Judgment for plaintiff. Defendants appeal. The original contract pleaded and reíied upon was in writing, and the modification pleaded must be construed as being also in writing.

Hon. Joseph W. Jones, Judge. . Action by C. J. Miller against Thorston Gudmenson Tjexhus. From a judgment for defendant, plaintiff appeals.

<p>Error from Circuit Court, .Sanborn County. . Hon. -Frank B. Smith, Judge.</p> <p>Henry Shanley was convicted of assault with intent to’kill, and .brings error.</p>

<p>Rev. Pol. Code, § 2834, requires the payment in each county in which the business is done of a license on the business of selling or offering for sale intoxicating liquors by a traveling salesman. Section 2838 makes it an offense to' so sell without a license. Section 2852 makes all persons engaged in such unlawful selling, whether as owner or employe, equally liable as principals. Held, there was a violation of the statute by a traveling salesman for liquor dealers having their place of business in another state, where he, within the state, solicited orders for liquor though, according to their conditions, they were forwarded to the dealers subject to their approval, and the liquor was delivered to the purchasers outside the state on board the cars.</p> <p>The interstate commerce clause of the federal Constitution is not contravened by Rev. Pol. Code, §§ 2834, 2838, 2852, making it an offense for a traveling salesman to take orders for intoxicating liquor, without a license.</p> <p>Haney, X, dissenting.</p>

<p>APPEAR from Circuit Court, Davison County. Hon. Frank B. Smith, Judge. .</p> <p>Action by Adam Foss against Frank Van Wagenen. Judgment for plaintiff. Defendant appeals.</p>

<p>The provision in a contract between owners of adjoining lots, authorizing either to build a party wall on the line, the other, when using it, to pay half the cost, “and the said parties hereby convey to each other such interest in the land to be covered by said party wall as may be necessary to carry out the terms of this agreement,” does not convey a fee simple, but merely gives an easement.</p> <p>The presence of a party wall on the dividing line between adjoining lots is not constructive notice to a purchaser of one of them, so as to malte him liable, on using the wall, for half of its cost, under the unrecorded contract between his grantor and the owner of the other lot, whereby each conveyed to the other such interest in the land to be covered by the wall as should be necessary to carry out the agreement, and either was authorized to build the wall, the other, on using it, to pay half the cost.</p>

<p>Appeal from Circuit Court, Hutchinson County. Lion. E. G. Smith, Judge.</p> <p>Action by James Dougherty against the Chicago, Milwaukee & •St. Paul Railway Company. Judgment for - plaintiff. Defendant appeals.</p>

. Appeal from Circuit Court, Lincoln County. Hon. Joseph W. Jones, Judge. Action by Otto F. Webber against J. V. Conklin. From a judgment for defendant, plaintiff appeals. Every assignment should confer upon the assignee the right to recover all property, or right or equities in property, which might be reached or recovered by any of the creditors of such assignor.

<p>Appeal from Circuit Court, Day County. Hon. J. H. McCoy, Judge.</p> <p>Action by Hanna Kjetland against Christ Pederson. From an order, defendant appeals.</p>

<p>Appeal from Circuit Court, Lake County. Hon. Joseph W. Jones, Judge.</p> <p>Action by A. H. Wheaton against the Liverpool & London & Globe Insurance Company. Judgment for plaintiff. Defendant appeals.</p>

Hon. Charles S. Whiting, Judge. • Action by W. A. Gordon against C. A. Kelley and another. From a default judgment for plaintiff, and from an order denying a motion to vacate it and for leave to answer. Defendants appeal.

Hon. E®vi McGkR, Judge. Action by the Bishop & Babcock Company against Adeline Schleuning and others, co-partners as Sclileuning & Co. From judgment for defendants, and from an order denying a new trial, plaintiff appeals.

Hon. J. W. JoNTis, Judge. Action by Thompson & Juve, a firm composed of Anton Thompson and another, against Charles T. Scroyer, in which the Kellogg-Mackay-Cameron Company intervened. From a judgment in favor of the intervener, plaintiff appeals.

<p>Appeal from Circuit Court, Turner County. Hon. E. G. Smith, Judge.</p> <p>- Action by Charles H. Barrett against Thomas McCarty and others. From a judgment for plaintiff, defendant Thomas McCarty appeals.</p>

<p>Appeal from Circuit Court, Deuel County. Hon. Gso. H. Makouis, Judge.</p> <p>Action by William T. Ravin against William Kreger. From an order granting a new trial after a verdict for plaintiff, he appeals.</p>

<p>Appeal from Circuit Court, Lincoln County. Hon. E. G. SMITH, Judge.</p> <p>Action by the City of Centerville against George B. Gayken. Demurrer to the complaint was overruled, and defendant appeals.</p>

<p>Appeal from Circuit Court, Pennington County. Hon. Riivi McGuii, Judge.</p> <p>Action by John Plebert against Frank Hebert. From a judgment for plaintiff, defendant appeals.</p>

<p>Where a contract for tlie sale of a threshing outfit contained a written warranty that the machine was well made and of good material, and the title and right of possession was retained in the vendors untill full settlement was made therefor, the contract did not constitute an immediate sale, but was only an agreement for sale with a warranty and right of inspection and rescission for a breach of contract, as provided by Rev. Civ. Code, §§ 1299, 1301, 1339, 1340.</p> <p>Where a contract for the sale of a threshing outfit warranted the same to be well made and of good material, and on a delivery being tendered it appeared that most of the machine was apparently old, out of order, and put together in a bungling manner, the buyers were justified in refusing to accept the same and in rescinding the entire contract.</p>

<p>Appeal from Circuit Court, Marshall County.</p> <p>Quo Warranto by the state, on the relation of Charles T. Hel-lier, against Marshall Vincent. From a judgment for defendant, relator appeals.</p>

Hon. Joseph W. JoNES, Judge. Action by Charley A. Foss against the Modern Woodmen of America, in which, on the application of defendant, Rolf Petterson, by Gustave Petterson, his guardian, was substituted as a party defendant. From a judgment for defendant Rolf Petterson, plaintiff appeals.

Honorable Frank B. Smith, Judge. A. M. Lamphere was convicted of grand larceny of a cow and two sucking calves, of the value of $55, the property of one Philip Nuss, and he brings error.

Hon. Joseph W. Jones, Judge. Action by Katie Bowen against the Mutual Life Insurance Company of New York. From a judgment for defendant, plaintiff appeals. ■A witness cannot testify as to his understanding of the meaning of a contract. Moline Plow Co. v. Gilbert, 3 Dak. 239; Seitz v. Brewers, etc., Mach. Co., 141 U. S. 518; Eels v. St. Louis, etc., Ry. Co., 52 Fed. 905; Wilkins v. Carter, 19 S. W. 998; Tourtelot v. Whitehead, 84 N. W. 8; I Greenleaf on Ev. § 275; II Phil.

<p>Appeal from Circuit Court, Codington County. Hon. Julian BlnNLTT, Judge.</p> <p>Action by the Atlas Lumber & Coal Company against M. D. Flint and another. From a judgment for plaintiff, defendant M. D. Flint, appeals.</p>

Original application for mandamus by the state, on relation of T. BI. Null, acting state’s attorney of Beadle county, to compel the circuit court of such county, presided over by Hon. Loring E. Gaffy, judge, to establish and authenticate two copies of certain lost or stolen indictments.

Hon. JuuiAN BUN-NE'ri', Judge. Action by A. M. Johnson and another, doing business under the firm name of.Johnson & Johnson, against John Berry and another. From an order granting a new trial after verdict for plaintiffs, they appeal.

Hon. E. G. Smith, Judge. Haiden C. Edmunds was convicted of manslaughter in the first degree, and he brings error. The elements of manslaughter in the first degree, as defined by our statute are as follows: The crime must be perpetrated without design- to effect death and in the heat of passion but in a cruel and unusual manner, or by means of a dangerous weapon, and under such circumstances as do not constitute excusable or justifiable homicide.

Hon. Loring E. Gappy, Judge. Proceedings by Fred Griffin against the board of county commissioners of Walworth county, and R. C. Chesky and another, made defendants by leave of court, to contest a proceeding for the removal of the county seat of Walworth county. From a judgment in favor of defendants, contestant appeals.

<p>Under Rev. Code Cr. Proc. §§ 408, 409, providing that, whenever a' crime is distinguished into degrees, the jury, if they convict, must find the degree of the crime of which defendant is guilty, it is indispensable, on trial for murder, that the jury designate the degree of the crime.</p> <p>Where, in a prosecution for homicide, the jury, if defendant's evidence was believed, might have found the killing justifiable, or that defendant was guilty, at most, of manslaughter in the second degree, it was error to refuse, to charge on the latter offense; the jury, on a charge of manslaughter, being entitled to convict of either degree thereof.</p> <p>Haney, J., dissenting.</p>

<p>A statutory notice of an election contest, which recites that the grounds upon which plaintiff will contest defendant’s right to the office and upon which he claims the office for himself “are set out in the hereunto attached complaint, which said complaint is hereby made a part of this notice,” makes the complaint a part of the notice of contest, and ’he recitals thereof should he considered in determining the suffiicency of the facts upon which contestant relies.</p> <p>Rev. Pol. Code, § 1995, requires any person contesting an election to furnish sufficient surety for costs as provided in the Code of Civil Procedure. Rev. Code Civ. Proe. § 437, provides that, where security for costs has been given and is insufficient, defendant may move for additional security, and, if the additional security is not given within a reasonable time to be fixed by the court, the action may be dismissed. Held, that, where contestant in an election contest gave insufficient security for costs, the court should not have dismissed the contest, in the absence of a showing that contestant acted in had faith, until a motion for additional security had been made and granted and the time fixed by the court for giving such security had elapsed.</p>

<p>Appeal from Circuit Court, Minnehaha County. Hon. Joseph W. Jones, Judge.</p> <p>Action by Joe Kirby against the Citizens Telephone Company and another. From a judgment in favor of defendants, plaintiff appeals.</p>

<p>Appeal from Circuit Court, Clay County. Lion. E. G. Smith, Judge.</p> <p>Charles D. Cram was acquitted of peddling without a license, and the state appeals.</p>

Hon. Levi McGee, Judge. Action by Buel R. Wood against the Saginaw Gold Mining & Milling Company. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals.

<p>The unexplained fact of a saloon being open on Sunday, in violation of Rev. Pol. Code, § 2847, requiring all saloons to be closed on Sunday, is sufficient to justify a conviction of the keeper thereof.</p> <p>On a prosecution of the keeper of a saloon for keeping it open on Sunday, it is no defense that the saloon was opened by the keeper’s bartender without authority and contrary to the keeper’s instructions.</p> <p>Since Rev. Pol. Code, § 2847, requiring “all saloons * * * and all other places * * * where” liquors are sold to he closed on Sunday, ooes not refer alone to legally licensed saloons, the allegation in an information for a violation of the statute that the place was a licensed saloon, is surplusage, and the keeper may he convicted, though his liquor license is void.</p> <p>An instruction that the reasonable doubt which entitles a defendant to an acquittal is a doubt of guilt reasonably arising from all the evidence is not misleading because it declares that the doubt must be such a doubt as the juror is able to give a reason for.</p>

<p>Appeal from Circuit Court, Brown County. Lion. Chas. S. Wx-iiting, Judge.</p> <p>Action by D. E. Matchett against Rudolph Liebig. From an older setting aside a default judgment, plaintiff appeals.</p>

<p>Hon. D. R. üaitjíy, Judge.</p> <p>(In rehearing.</p>

<p>Plon. Joseph W. Jones, Judge.</p> <p>On rehearing.</p>

<p>Appeal from Circuit Court, Minnehaha County. Hon. Joseph. W. Jones, Judge.</p> <p>Action by Mary Garrigan against Joe Huntimer and others.. From a judgment of dismissal, plaintiff appeals.</p>

<p>Appeal from Circuit Court, Potter County. Hon. LoriNG E. GaRRy, Judge.</p> <p>Action by N. J. Schlachter against St. Bernard’s Roman Catholic Church of Hoven, Potter county, S. D., and others. From a judgment in favor of plaintiff, defendants appeal.</p>

Hon. Lorikg E. Garry, Judge. Action by Anna Edge and others against the St. Paul Fire & Marine Insurance Company. From a judgment in favor of plaintiffs, defendant appeals. Under the open mortgage clause' the insurance is of the interest of the mortgagor and not of the interest of the mortgagee. 13 Am. & Eng. Ency. of Law, 2nd Ed., 202; Grosvenor v. Ins. Co., 17 N. Y. 391, 393; Bates v. Equitable Ins. Co., 10, Wall. 33, 36; Williamson v. Ins.

<p>A deed, absolute in form and without limitations or qualifications as to the interest intended to be conveyed, and containing covenants, cannot be varied by parol evidence as to the intention of the parties as. to the interest to be conveyed.</p> <p>By the express provisions of Rev. Civ. Code^ § 947, where one purports to grant real estate in fee simple, any subsequent title acquired by him passes to the grantee or his successors.</p> <p>The provision of the Code that every transfer of an interest in property “as security” for the performance of an act is to be deemed a mortgage does not authorize parol evidence as to the intent of the parties in the execution of a deed absolute in form and without limitations or qual-ifieatiors as to the interest intended to be conveyed.</p> <p>Fuller, P. J., dissenting.</p>

<p>Appeal from Circuit Court, Jerauld County. Hon. Frank B. Smith, Judge.</p> <p>Suit by Henry Herman against William Winter. From a judgment in favor of plaintiff, defendant appeals.</p>

<p>The construction of a tunnel on property outside of a ruining claim, made solely with reference to the development of the claim, is work on the claim, available as annual development work thereon.</p> <p>The admission of incompetent testimony in a case tried by the court is no ground for reversal, unless it appears, after disregarding the same, that there is a preponderance of evidence against the court’s finding.</p> <p>Fuller, P. J., dissenting in part.</p>

<p>Appeal from ‘Circuit Court, Minnehaha. Hon. Joseph W. Jones, Judge.</p> <p>Action by George W. Barrett against Minerva E. Barrett. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from Circuit Court, Minnehaha County. Hon. J. W. Jones, Judge.</p> <p>Action by Lena M. Hawley against Amon P. Bond. From a judgment for plaintiff, defendant appeals.</p>

Hon. LoRing E. GaRRy, Judge. Action by James Philip, as administrator of the estate of Frank Porter, deceased, against Royal B. Stearns and others. From a judgment in favor of plaintiff, defendants appeal.

<p>On rehearing.</p> <p>Title passes to government land when final proof is completed regardless of the time of the issuance of the patent. United States v. Freyeberg, 32 Fed. 195. The equitable title to public lands is in the purchaser immediately upon the lawful entry thereon, payment of the purchase money and issue of a Certificate of Purchase. Amadore Median Gold Mining Co. v. South Spring Hill Gold Mining Co. 36 Fed Rep. 663; Smith v. Ewing, 32 Fed. Rep. 741. The issuance of a patent after the entryman has completed his final proof is only a ministerial or a clerical act on the part of the Government, and neglect or delay in the issuance of the patent by the Government does not affect the rights of the entryman and his ownership of the property. Myers, v. Croft, 13 Wall 291; Brill v. Stiles, 35 Ill., 209; Sillyman'v. King, 36 la., 207; Moyer v. McCullough, v. Ind., 339. The patent takes effect from the date of final proof. Chapley v. Ferris, 45 Cal. 535. The patent when issued related to the time of the purchase and gave the patentee title as of that day. Fisher v. Hallock, 15 N. W. R. 552; Godding v. Decker, 32 Pac. 822; St. Onge v. Day, 18 Pac. 278.</p> <p>Until the patent issues the legal title to public lands remain in the United States. The patent is the instrument which, under the acts of Congress passes the title of the United States and vests the land in the purchaser or entryman. Gibson v. Chateau,et al, 13 Wall. P. 92; Bowne v. Walcott, 48 N. W. 336; Lessee of Grig-non v. Astor, 2 How. 317; Stringer v. Lessee of Young, 3 Peters 320; Boardman v. Lessors of Reed et al, 6 Peters 328; Bagnell v. Broderick, 13 Peters, 436; Wilcox v. Jacobson, 13 Peters 516; Guaranty Savings Bank v. Bludow, 69 N. W. 41; American Mortgage Co. v. Hoffer, 12 C. C. A. 293, 64 Fed. 553; United States v. Sternau, x C. C. A. 552, 50 Fed. 507; Vantongeren v. Heffernan, 5 Dak. 180, 38 N. W. 52. All exemption laws of, the United States and of the State are to be construed liberally so as to best carry out the intent of Congress and of the Legislature. Kingman v. O'Callahan, 4 S. D. 68, 57 N. W. 912; Noyes v. Belding 5 S. D. 603, 59 N. W. 1069; Seymour v. Sanders, 3 Dill. 437.</p>

Hon. Joseph W. Jones, Judge. Action by Jewett Bros, and Jewett, a corporation, against E. W. Smail, food and dairy commissioner of the state of South Dakota. From an order granting a temporary injunction, defendant appeals. Inspection is the examination of certain articles made by law subject to such examination, so that they may be declared fit for commerce; an examination of an article to determine its fitness for a given purpose. 16 Ency. of Raw, (2nd Ed.) 808.

<p>Appeal from Circuit Court, Minnehaha County. Hon. Joseph W. Jones, Judge.</p> <p>John Xeeb was convicted of a violation of a city ordinance of the city of Sioux Falls, and he appeals.</p>

Hon. Jurian Brn-NRT, Judge. Action by M. P. Hobart against Ditlew M. Frederiksen. From a judgment for plaintiff, and from an. order denying a new trial, defendant appeals.

<p>A mortgagor and mortgagee in a chattel mortgage may join in an action to recover the-mortgaged chattels, though the possessory right to them is exclusively in the mortgagor; the seizure of the chattels constituting an infringement on the rights of the mortgagee.</p> <p>Evidence in an action for the possession of personalty, defended on the sole ground that defendant was not in the possession thereof at the commencement of the action, examined, and held to support a finding that the action was commenced before defendant had sold the property, authorizing a recovery.</p> <p>An action for the possession of personalty must be brought while defendant is in the possession of the property, and, if defendant before the commencement of the action has disposed of the same, the action will not lie; defendant then not being in a position to return the identical property.</p> <p>A chattel mortgage described the property as one bald-faced mare five years old, weight about 1,400 pounds, and one black mare seven years old, weight 1,200 pounds, in possession of the mortgagor. The mortgagor had no other mares answering the description, and the evidence showed that the mare five years old had white hind feet, roanish color, and white hair scattered, and weighed between 1,400 and 1,500 pounds, and that the other mare was black, with, a star in her forehead, about seven years old, and weighed about 1,300 pounds. Held, that th'e testimony did not conflict with the description of the animals as given in the mortgage, which sufficiently described tnem as between the parties and as against a third person having knowledge that the animals were mortgaged.</p>

Honorable E. G. Smith, Judge. Action by William H. McVay, as administrator, etc., against Frances E. Tousley and others. Judgment for plaintiff, and defendants appeal.

<p>Grammatical rules of construction are not rules of law, and in the interpretation of statutes must be made subservient to the Legislative intent.</p> <p>Laws 1899, p. 44, c. 41, § 3, relative to the levy of county taxes, empowers county commissioners to malee specified levies at specified rates, and then provides for. a levy for the county sinking fund of an amount sufficient to pay one year’s interest on the bonded indebtedness, and not to exceed 15 per cent, of the principal, and concludes, in the subdivision which authorizes that levy, with the proviso “that the total county tax rate shall not exceed in any one year the sum of eight mills on the dollar for all purposes.” Held, that the eight-mill limitation on the county tax rate qualifies the whole section, and limits the county tax rate to eight mills ‘‘for all purposes,” and does not merely limit the rate of levy for the sinking fund.</p> <p>Laws 1899, p. 44, c. 41, § 3, which authorizes the county commissioners to levy a six mill tax for general purposes, a two-mill tax for county roads, a two-mill tax for county bridges, a further tax for insane purposes, and a tax for the cousty sinking fund, and provides that the total county tax rate shall not exceed eight mills on the dollar, is, in view of the fact that it authorizes taxes in excess of the limitation prescribed for the aggregate tax rate for purposes other than the sinking fund, and thus makes it possible for the county to evade the liquidation of and payment of interest on its bonded indebtedness, an unconstitutional impairment of the obligation of contracts.</p>

<p>Appeal from Circuit Court, Stanley County. Hon. LorinG E. GaRRy, Judge.</p> <p>Action by Cora E. Gordon against George A. Gordon. Erom an order denying a motion to vacate a default judgment, defendant appeals.</p>

Hon. E. G. Smith, Judge. Action by Edmund A. Bruce against Edwin P. Wanzer. Eronr a judgment in favor of plaintiff, and from an order denying a new trial, defendant appeals.

<p>An indictment is valid, though found by a grand jury, members of which were drawn irregularly; they having the requisite qualifications.</p> <p>The keeping of a disorderly house, being an offense not consisting of a specific act, but in conducting a public nuisance, an indictment therefor need not allege the particular location of the house, but. merely that it was in the county, so as to show jurisdiction.</p> <p>It is for the court to determine, from the evidence and the man--ner and conduct of witnesses, whether they are unwilling witnesses, so as to allow leading questions to he propounded to them.</p> <p>For the court to state in the.presence of the jury that witnesses are unwilling, and that therefore leading questions may he asked them, is not error.</p> <p>Exercise of the court’s discretion in allowing leading questions to he asked witnesses as unwilling will be reviewed only for manifest abuse of such discretion.</p> <p>On a prosecution for keeping a disorderly house, testimony of witnesses as to the manner of 'conducting the business, in connection with the house, who went there, what they did there, the presence of other hacks there at the same time, the visits being at night, and the purpose and object of their going there, and the people taken there, is competent and admissible as showing the character of the house and the business carried on there; the provisions of Laws 1903, p. 180, c. 154, § 3, that on a trial for keeping a house of ill fame the state may, for the purpose of establishing its character, introduce evidence of the general reputation of the house so kept, not being exclusive, but merely cumulative.</p> <p>On a prosecution for keeping a house of ill fame", evidence of sales of liquor on the premises, and by whom and in what manner made, is competent, in view of the manner of sale, to show the character of the house and defendant’s connection with it.</p> <p>On a prosecution for a felony, the state may, in the discretion of the .court, dependent on the intentional withholding from the defendant of their names and the state’s knowledge thereof, use witnesses whose names were not on the indictment.</p> <p>On a prosecution for keeping a disorderly house, a justice of the peace may testify to the reputation of the house from discussions he had heard between peace officers; this not being the admission of proceedings in and records of the justice court.</p> <p>It is not error, on a prosecution for keeping a disorderly house, to admit testimony of the sheriff as to finding together therein defendant and one of the female inmates, and as to the conversation at the time between them and with him.</p> <p>One may be convicted of keeping a disorderly house, though some one else is equally guilty in maintaining it.</p>

<p>Appeal from Circuit Court, Union County. Hon. Joseph W. Jones, Judge.</p> <p>Action by Joseph Remilliard against George Authier. From a judgment in favor of defendant, plaintiff appeals.</p>

Hon. Joseph W. Jones, Judge. Action by C. M. Nelson against the National Drill Manufacturing Company. From a judgment for plaintiff and an order denying a ne'w trial, defendant appeals.

<p>On rehearing.</p> <p>1-Ion. J. H. McCoy, Judge.</p>

Hon. George H. Marquis, Judge. Carl Jackson was convicted of subscribing and making a false íeport to the bank examiner, in violation of Laws 1903, p. 81, c. 79, and brings error.

<p>Appeal from Circuit Court, Clay County. Hon. E. G. SmiTi-i, Judge.</p> <p>Certiorari by O. T. Salmer against the board of Commissioners of Clay county and another. From a judgment in favor of plaintiff, defendants appeal.</p>

<p>Appeal from Circuit Court, Day County. Hon. J. H. McCoy,. Judge.</p> <p>Action by the Sioux Falls Brewing & Malting Company against J. D. Wood. From a judgment in favor of defendant, plaintiff appeals.</p>

<p>Where a complaint alleged, that defendant agreed to purchase from plaintiff a mechanic’s lien, provided it should prove to he a “first claim” on the property, and it was alleged that it was- a first claim, hut that defendant failed to purchase, and the answer denied that the lien was a first claim, and it appeared that there were taxes upon the property, and the court found that the lien was not a first claim and that the taxes were valid claims against the property, it was a sufficient finding upon the issue as to whether the taxes were claims within the meaning of the parties, though stated as a conclusion of law.</p>

<p>Appeal from Circuit Court, McCook County. Hon. Joseph W. JONES, Judge.</p> <p>Action by the Commercial State Bank of Salem against Pon-sonby Kendall and others. From a judgment in favor of defendants, plaintiff appeals.</p>

Hon. J. H. McCoy, Judge. Action by Archie Flanders against Minard P. French, in which Clayton Jones was garnished and M. R. Baskerville intervened, claiming the fund attached under a chattel mortgage. From a judgment in favor of plaintiff, intervener appeals. An agreement can be made in this state to create a lieu upon property not yet acquired by the lienor or not yet in existence. Civ. Code Sec. 2024. Sykes v. Hannawalt, 65 N. W. 682.

<p>Appeal from Circuit Court, Beadle County. Hon. Charuís S. Whiting, Judge.</p> <p>Action by Charles C. Issenhuth against Andrew Riegel. Judgment for defendant. Plaintiff appeals.</p>

<p>• Appeal from Circuit Court, Minnehaha County. Hon. Joseph W- Jones, Judge.</p> <p>Action by Nelson O. Helland against the Colton State Bank. Judgment for plaintiff. Defendant appeals.</p>

'Hon. Julian Biínnett, Judge. ■ Action by Ara D. Sprague against Richard Lovett, administrator of the estate of Jacob Lovett, deceased, and others. From a judgment in favor of plaintiff, certain defendants appeal.

Hon. E. G, Smith, Judge. Action by Mary A. Stafford against Henry Levinger and others. From a judgment for plaintiff, and from an order denying a new trial, defendants appeal.

Hon. J. H. McCoy, Judge. Action by the Frederick Milling Company against the Frederick Farmers’ Alliance Company. From an order denying plaintiff’s preliminary motion to vacate an order to show cause why a stipulation, judgment, etc., in the mortgage foreclosure proceedings should not be vacated, plaintiff appeals.

Hon. Lkvi Mc-GiSk, Judge. Action by William Peano- against John R. Brennan. From an-order sustaining a demurrer to- the complaint, plaintiff appeals. The land upon which the trespass is alleged to have been committed lies within the Sioux Reservation in South Dakota; as th.e land is within the state the Indian is entitled to protection under the state laws. Sec. 26 Civiy Code, S. D. 1903. Sec. 1, Art. 6, Constitution S. D., Chap, i, Political Code, Sec. 1.

<p>Appeal from Circuit Court, Turner County. Hon. E. G. Smite, Judge.</p> <p>Action -by the Independent School District No. -2, Turner County, against the District No. 37, Clay County, and others. From a judgment for defendants, plaintiff appeals.</p>

<p>A third person bought a threshing engine from defendant. On it proving unsatisfactory, it was agreed that defendant would deliver a new one in its place. While the third person was running the engine to defendant’s place of business, he requested defendant to furnish men to assist him; it being agreed that the third person would pay for them. Defendant sent two of his servants, and while one of them was assisting the third person’s engineer in running the engine on the highway the engine emitted sparks and set a fire which destroyed plaintiff’s property: Held, that defendant was not liable for damages sustained; the persons operating the engine being the third person’s employees.</p> <p>Where both parties moved for the direction of a verdict, both parties admitted that the evidence was undisputed, so that the only question was one of law; and it was error to direct a verdict for plaintiffs on there being no sufficient evidence to support it.</p>

<p>A Bill of exceptions, consisting merely of a transcript of the official stenographer’s notes, to which were attached papers and the certificate of the trial judge, and containing no specifications of errors, will not be regarded on appeal.</p>

<p>Appeal from Circuit Court, Marshall County. Hon. James H. McCoy, Judge.</p> <p>Action by the Deere & Webber Company against W. D. Hinck-ley. From a judgment for plaintiff, defendant appeals.</p>

<p>Where, in an action for assault, the evidence was conflicting as to-whether or not there was any assault committed hy defendant, and whether or not the assault, if in fact committed, was justifiably made in self-defense, the court properly submitted to the jury the question whether or not the assault was malicious as bearing on the question of exemplary damages.</p> <p>Where, in an action for assault the evidence was conflicting, the court properly charged that if the evidence failed to show by a fair preponderance that the assault, if any, was unlawful, or to show any force or violence used by defendant on plaintiff, the latter was not entitled to recover anything.</p> <p>Where, in an action for assault, the evidence showed that in the scuffle between the parties both fell to the ground, and that plaintiff was slightly injured and his clothes somewhat torn, an instruction requesting the jury to “take the case, and give it just such consideration as you would a more serious affair. If the law has been violated, do not hesitate to treat it the same as you would any other case” — was not prejudicial, as in effect expressing a view that the case was a trifling one, thereby tending to prejudice plaintiff in the minds of the-jury.</p>

<p>Appeal from Circuit Court, Hughes County. Hon. Lortng E. GaRRy, Judge.</p> <p>Action by Louis L- Stephens against Oliver H. P. Eaus. From a judgment for plaintiff, defendant appeals.</p>

Hon. J. H. McCoy, Judge. Action by L,ewis Hannicker against Casper Lepper and another. From a judgment in favor of plaintiff, defendants appeal. A person in making the excavation, after notice to the coterminous lot owner, is only required to use ordinary care and skill and take reasonable precautions to sustain the adjoining land, not the land with its superincumbent weight, but the land itself.

<p>A mere unexecuted, agreement to'accept a mortgage on land to secure the amount due for the construction of a well thereon did not constitute a taking of collateral security within Code Civ. Proc. § 695, providing that no person is entitled to a mechanics’ lien who takes collateral security on the same contract.</p> <p>The drilling and casing of a well under a contract with the owner of land constitutes an improvement for which the contractor is entitled to a mechanic’s lien, under Code Civ. Proc. § 696, providing that every person who shall do any labor upon or furnish any materials, etc., for any building, erection, or other improvements on land, shall be entitled to a lien.</p>

Hon. Lbvi McGbb, Judge. Action by Eva McQueen against the Bank of -Edgemont. From a judgment for plaintiff, defendant appeals.

<p>Rev. Code Civ. Proc. 1903, § 119, provides that a complaint shall contain a plain and concise statement of the facts constituting the cause of action without unnecessary repetition, and a demand of the relief to which plaintiff supposes himself entitled, and that if a recovery of money is demanded, the amount thereof shall he stated. A complaint for work and labor alleged that defendant was indebted to plaintiff in the sum of $73 5, for that defendant employed plaintiff to work on a certain mine on February 18, 1900, and that he continued so to work "until October 21st of the same year, 245 days, at $3 a day; that no part of the amount had been paid, except $100; and that there was still due plaintiff the amount of $635, which is unpaid. Held, that the complaint was not demurrable for failure to state that the labor was performed at defendant’s instance and request, for failure - to allege an implied promise to pay, that defendant was the owner of the mine, that plaintiff’s services were of the value of $3 a day, or that defendant agreed to pay such amount.</p> <p>Where, in an action for work and labor on a mine, plaintiff alleged that he had worked 245 days at $3 per day, such allegation was-4n effect an allegation that his services were of the value of $3 a day, and, being denied, it was proper in support thereof for him to prove that ordinary miners’ wages were $3 per day.</p> <p>Where, in an action by a miner for work and labor performed, defendant denied that he had employed plaintiff to work on the mine, or that defendant was working the mine during the time plaintiff claimed to have been employed by him, questions asked defendant on cross-examination, as to whether he had not employed certain persons to work in the mine, and paid them during the time that plaintiff claimed to have worked therein, was not obectionablé as improper cross-examination.</p> <p>Rev. Civ. Code 1903, § 2289, provides that every person, who is entitled to recover damages, certain or capable of being made certain by calculation, and the right to recover which is vested in him on a particular date, is entitled to interest from that day, etc. Held, that where plaintiff, in an action for work and labor, concluded the work sued for, on October 1, 1900, a verdict for plaintiff assessing his damages at $545, “with interest at 7 per cent, per annum,” was not fatally defective for failure to fix the time from which interest was to run; plaintiff being entitled to recover interest from the date he concluded, his work.</p>

Hon. Joseph W. Jones, Judge. Action by H. D. Schmidt against Sarah Musson and others. From a judgment for defendants, plaintiff appeals. To constitute delivery of a deed it is not sufficient that there be a mere delivery of its possession, but this act must be accompanied with the intent that the deed should become operative as such.

Hon. Lwi McGKR, Judge. Action by Minot Davis against the Holy Terror Mining Company. From a judgment for plaintiff, defendant appeals. Damages should be compensatory, and no more. Section 2293 C. C. 1903; Peterson Railway Accident Law, p. 468-9 and 70; Torske v. Com.

<p>Appeal from Circuit Court, McPherson County. Hon. Loring E. Garry, Judge.</p> <p>Action by D. O. Kierbow against Henry Young, sheriff of Mc-pherson county. From an order overruling a demurrer to the complaint, defendant appeals.</p>

Hon. J. H. McCoy, Judge. Action by E. A. Nerger and another, doing business as the Waubay Mercantile Company, against the Equitable Fire Association. From a judgment for plaintiffs, defendant appeals.

<p>The validity of a contract affecting real property should be der tennined by the law of the state in which it is situate and where it was to be performed, and not by the law of the place where it was executed.</p> <p>Under the express provisions of Rev. Civ. Code, § 123S, an agreement for the sale of real property made by an agent is "invalid unless the authority of the agent be in writing subscribed by the party to be-charged.</p> <p>Evidence examined, and held insufficient to sustain a finding that a contract authorizing an agent to sell land was entered into personally by the owner and executed in her presence, at her request, by her son.</p> <p>A view of the transaction in controversy, not presented by the-pleadings or evidence, cannot be considered on appeal.</p> <p>The measure of damages for breach of an agreement to convey an estate in real property is fixed by Rev. Civ. Code, § 2298, which-provides that the detriment caused by the breach of an agreement to-convey an estate in real property, is deemed to be the price paid and the expenses properly incurred in examining the title and preparing the necessary papers, with interest thereon, but adding thereto, in case of bad faith, the difference between the price agreed to be paid and the value of the estate agreed to be conveyed at the time of the-■breach, and the expenses propeny incurred in preparing to enter upon, the land.</p> <p>The measure of damages for breach of a contract employing a broker to sell land is either the compensation fixed by the contract or reasonable compensation for his services.</p>

Hon. EraNK B. Smith, Judge. Action by George Schriner against Isiah Dickinson and another. From a judgment in favor of plaintiff, defendants appeal. Where a contract is made by an'agent and the principal is disclosed and the agent is known to be acting as such, the latter cannot be made personally liable unless he agrees to be so. Whitney v. Wyman, U. S. 25 Daw Ed. 1050; Ames v. Holderbaum, C. C. 44 Fed. 224; Benson v. Post, Dak. y N. W. 684; Post v. Pearson, U. S. 27 Law.

<p>Appeal from Circuit Court, Codington County. Hon. George H. Marquis, Judge.</p> <p>Action by S. B. Dickinson against the National Life & Trust Company. From a judgment in favor of plaintiff, defendant appeals.</p>

Hon. FRANK B. ■Smith, Judge. Habeas corpus by Henry Pratt to obtain his release from imprisonment on a charge of perjury. From an order denying a writ, petitioner appeals. A party charged with crime has a constitutional right to a speedy trial, and the court has no discretionary -pozver to deny him a right so important, and to prolong his imprisonment without such trial beyond the time provided by law. People v. Morino, 24 Pac. 892.

Hon. Loring E. 'GaRFy, Judge. Action by Roverta J. Bandow against John W. Wolven. From a judgment for plaintiff, defendant appeals. The omission of the magistrate’s certificate that the oath certified and signed by the assessors were administered to them, does not invalidate the list, when in fact the oath was’ administered. Dcsty on Tax. Vol. I, p. 585, note 23; Blodgett v. Holbrook, 39 Vt. 336. The presumption is that oath was taken. Sess.

Hon. Lorirtg E. Garry, Judge. Action by Alfred J. Hanson against James Henderson and another, co-partners doing business under the firm name of James Henderson & Son. From a judgment for defendants, plaintiff appeals.

<p>linder Rev. Civ. Code, § 1256, providing that a contract is to be interpreted acocrding to the law and usage of the place where it is to-be performed, or if it does not indicate the place of performance according to the law of the place where it is made, the negotiability of a note payable in Boston is to be determined according to the law of Massachusetts.</p> <p>Where the wife of a loan broker knew that he was making loans and taking securities in her name, and transferring the same by in-dorsement without any objection being made by her, and a note and mortgage were taken by the husband in the wife’s name,'and thereafter transferred by him for a valuable consideratio'n, it was immaterial whether the note was indorsed by her or her husband.</p> <p>Where an action was brought in South Dakota to foreclose a mortgage securing a note payable in Massachusetts .the court would administer the lex fori in determining what constituted a valid defense to-the action, though the validity and interpretation of the contract was controlled by the law of the foreign state.</p> <p>A suit to foreclose a mortgage, securing a non-negotiable note which had been assigned to plaintiff, was without prejudice to any defense existing before notice of the assignment under Rev. Code Civ. Proc. § 81, providing that in case of the assignment of a thing in action, the action is without prejudice to any set-off or other defense existing at the time or before notice of the assignment, excepting negotiable notes or bills of exchange transferred in good faith before maturity, etc.</p> <p>Where the wife of a loan broker permitted him to take and transfer notes and securities in her name, she was bound by his act in receiving payment from a mortgagor who executed a non-negotiable note and mortgage to her, which her husband transferred to another.</p> <p>Where defendant purchased mortgaged premises subject to a mortgage securing a non-negotiable note, on the faith of the records showing no assignment of the note and mortgage, and later paid the-same to the payee’s husband, who was authorized to receive payment, without notice of the assignment, the mortgage was unenforceable against him by the assignee.</p>

<p>Tlie trial court’s findings of fact in an action to determine a disputed boundary tried by the court are presumed to be correct on appeal, and the burden is on the appellant to show that the greater-weight of the evidence is against the findings objected to.</p>

<p>In an action for wrongful ■ conversion against a bank which'acquired title under a mortgage given by a purchaser from the plaintiff, the record of an action by the plaintiff against the purchaser to set aside a sale to him was admissible to show the invalidity of the transfer as between them.</p> <p>A person receiving a mortgage of personal property pending an action to recover the property or its value is not affected by the doctrine of lis pendens.</p> <p>Evidence held not to show that a mortgagee of personal property had either actual or constructive notice of a suit relating to the property.</p>

<p>Where a vendor of land received a payment 12 or 13 days after the same was due without objection, and permitted one year’s rent to remain unpaid 13 days after due before notifying the purchaser of her election to terminate the contract, she waived the benefits of a provision malting timeNhe essence thereof to the extent, at least, that she was required to give the purchaser notice of her intent to terminate the contract and give him a reasonable opportunity to comply therewith.</p>

<p>An owner conveyed land and mining ground to a grantee to secure him against loss resulting from liis signing a bail bond. The bond was forfeited and the grantee paid it. He then cold the mining ground for a sum in excess of the bond. The owner sold the mining ground to a third person, who purchased the land at a delinquent tax sale. Held, that, in a suit by a grantee to quiet title, .the third person was entitled to set up the facts, and demand as a counterclaim an accounting, together with an anullment of the' deed conveying the land, under Rev. Code Civ. Proc., § 127, authorizing a defendant to set up as a counterclaim a claim arising out of the transaction set forth as the foundation of plaintiff’s claim, and section 681, providing that in actions for real property, on which improvements have been made, the value thereof must be allowed as a counterclaim, did not limit the recovery to the value of improvements.</p>

Hon. Lkvi McGeu, Judge. Action by James Belknap against Charles E. Belknap. From a judgment for defendant and an order denying a new trial, plaintiff appeals. An instruction is erroneous, where it assumes the existence of an issue as to a fact which is not in dispute. Texas L. & L. C. C. v. Watson', 22 S. W. 873. If it is not the expression of an opinion it is at least the assumption of a fact, either of which is error.

<p>Appeal from clerk’s taxation of costs.</p>

Error from Circuit Court, Lyman County. Hon. Frank B. •Smith, Judge. W. E. Place was convicted of keeping a saloon open on Sunday, and brings error. The old rule permitting' coercion of a jury in order to cecure ■a verdict has been swept away and under our present method the independence of a jury is respected. People v. Sheldon, 156 N. V. •268, 41 L. R. A. 644.

<p>Appeal from Circuit Court, Brookings County. Hon. Georgs H. MaRQuis, Judge.</p> <p>G. A. -Williams was convicted of illegally selling intoxicating" liquor, and appeals.</p>

<p>When a party moves for a new trial on the ground of misconduct of a jury, lie must aver and show affirmatively that both he and his counsel were ignorant of the misconduct until after the trial.</p> <p>Where the evidence is not contained in the record on appeal, the instructions will he presumed to be correct unless wrong under any state of facts which might have been proven on the trial.</p> <p>Where the giving of certain instructions is complained of on appeal, but the record does not contain the evidence nor the other instructions, those alleged to be erroneous cannot be reviewed, unless it appears that they were the only ones asked or given upon the particular point to which they relate.</p>

Hon. A. W. CampbEij,, Judge. Judicial settlement of the estate of John McClellan, deceased. Rrom a decree of the circuit court setting aside the appointment of William Van Eps, the administrator, Mary A. Vine and others, as. alleged brothers and sisters of the decedent, and John S. McClellan and others, as alleged children and grandchildren of decedent, appeal. Administration must he granted to the persons entitled to inherit in the order named in the statute.

Hon. LoriNG E. Garry, Judge. Action by the American Copying Company against the Eureka Bazaar. From a judgment in favor of defendant, plaintiff appeals. The failure of a foreign corporation to comply with the laws of this state requiring it to file its articles of incorporation are matters of defense which must be set out and alleged in the answer. Acme Mercantile Agency v. Rochford, 10 S. D. 203.

<p>Appeal from Circuit Court, Spink County. Hon. Chari,Rs S. 'Whiting, Judge.</p> <p>Action by the Northwestern Mortgage Trust Company against A. L. Ellis. From a judgment in favor of plaintiff, defendant appeals.</p>

<p>Under Rev. Code Civ. Proc. § 257, providing that exceptions to the giving or refusing of any instruction may he taken at any time before the entry of final judgment, exceptions taken after the final judgment are too late, and cannot he considered on appeal.</p> <p>Any error in striking out the testimony of a witness in an action for conversion that he was in possession of the property in question at a certain time was harmless, where the question of his possession was not material and where the fact stated was established by other evidence.</p> <p>Where it was not disputed that defendant had possession of the property involved in an action of conversion, any error in striking out testimony as to his possession was harmless.</p> <p>In an action for conversion, testimony that plaintiff said that she had got rid of the property in question, hut that she did not say exactly what property she had disposed of, hut the witness thought it was the property in question, was properly struck out.</p> <p>Evidence in an action for conversion held sufficient to support a verdict in favor of plaintiff.</p> <p>In an action for conversion, where the plaintiff’s ownership of the property at a time prior to the commencement of the action was admitted, the burden is on defendant to establish his claim that he had acquired title .to it.</p> <p>In an action for conversion, where the jury gave a verdict in excess of the amount claimed in the complaint, the court properly reduced the amount of the judgment instead of granting a new trial.</p>

Lion. W. G. Ríes, Judge. Action by Edward Hanschka against Matt Vodopich and another. From a judgment for defendants, plaintiff appeals. Time is never considered as of the essence of a contract, unless by its terms expressly so provided. Rev. Civ. Code, § 12671 Strunk v. Smith, 8 S. D. 411; Cheney v. Libbey, 134 U. S. 68.

<p>Appeal from Circuit Court, Roberts County. Hon. J. H. McCoy, Judge.</p> <p>Zach Flrite was convicted of murder, and brings error.</p>

Proceeding in prohibition by William B. Davenport against Samuel H. Elrod and others, as members of the capitol commission of the státe of South Dakota. The legislature shall not delegate to any special commission, private corporation, or association, any power to make, supervise or interfere with any municipal improvement, money, property; effects, whether held in trust or otherwise, or levy taxes, or select a capitol site, or perform any municipal functions whatever. Con.

<p>No question not presented and ruled on in the trial court can be raised on appeal.</p> <p>A general objection to evidence will not be reviewed on appeal, unless it clearly appears that the objection could not have been obviated had the same been specifically pointed out.</p> <p>Rev. Civ. Code, § 12 01, subd. 2, provides that actual fraud is where a party to a contract, with intent to deceive another party thereto, or induce him to enter into it, positively asserts in a'manner not warranted by the information of the person making it that which is not true, though he believes it to be true. Held that, where a seller makes representations as to the kind or quality of the goods sold which are relied on by the purchaser, the seller is liable for any damages accruing to the purchaser by reason of the falsity of the representations, even though the seller believed the representations to be true, as he is bound to know whether as a matter of fact his representations are true.</p> <p>In an action for damages from false representations on the sale of a horse, to the effect that he was of a certain pedigree, an instruction that, in ascertaining the value of the horse as he would have been had he been of the stock represented, it was not necessary that the jury should take the price at which he was sold, but that plaintiff was entitled to receive the benefit of the value of such a horse as was indicated by the representations, though he was worth more than the amount paid,- the measure of damages being limited, however, to the amount set up in the complaint, was proper.</p>

Hon. J. H. McCoy,. Judge. Actions by A. O. Chilson and another against Elmer E. Youngs- and others to foreclose a mortgage, and by Carl Malmberg to quiet title to the mortgaged premises, in which Chilson and Haugen intervened. The actions were consolidated, and from a judgment foreclosing the mortgage, Malmberg appeals.

<p>Appeal from Circuit Court, Lawrence County. Hon. W. G. Rich, Judge.</p> <p>John Kapelino was convicted of assault, and appeals.</p>

<p>Appeal from Circuit Court, Brule County. Hon. Frank B. Smith, Judge.</p> <p>Action by H. W. Hinricks against Thomas Brady. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from Circuit Court, Minnehaha County. Horn Joseph W. Jokes, Judge. - ... *■ ■ ■ • -,- .- .</p> <p>Action by W. H. Lyon against N, E. Phillips. From a judgment for plaintiff, defendant appeals.</p>

<p>Error to Circuit Court, Meade County. Hon. Levi McGee, Judge.</p> <p>Jerry Crowley was convicted of grand larceny, and from an •order granting a new trial the state brings error.</p>

<p>The privilege of a witness to refuse to give evidence criminating himself belongs to the witness, and is not a right of the party against whom he is called to testify, so that objection having been.made only by the party, he may not complain that it was overruled.</p> <p>Under Rev. Code Cr. Proc. § 364, requiring, as corroboration of' an accomplice, such other evidence as tends to connect defendant with commission of the offense, testimony, on a prosecution for incest by defendant with his daughter,' as to the manner in which the family lived, the opportunities for commission of the crime, the payment of money by defendant for sending away the child born to the daughter, and his silence when, in his presence, the daughter stated to another that he was the father of the child, is sufficient corroboration.</p>

Hon. W. G. Rice, Judge. Action by Patrick Murphy against the Reliance Gold Mining Company and others. From an order overruling a demurrer to the-complaint, the defendant appeals.

Hon. Levi McGee, Judge. Action by the Black Hills Real Estate Agency against Plerman Erb, in which the Sweeney Cattle Company was substituted as plaintiff. From a judgment for plaintiff, defendant appeals.

<p>Original application by Emma Kauffman to be admitted to bail.</p>

<p>On petition for rehearing.</p>

Hon. Loring E. Gafty; Judge. Action by Sioux K. Grigsby against John W. Wolven, continued on his death against Edwin J. Wolven and another as executors. From a judgment for plaintiff, defendants appeal.

• Hon. E. G. Smith, Judge. Action by Wilson S. Jones against Isaac S. Jones, prosecuted on the death of plaintiff by H. W. Subera, as executor of plaintiff. From a judgment for defendant, plaintiff appeals.

<p>A deed absolute in form will not be deemed a mortgage, unless it is shown that a debt existed at the time of the transaction.</p> <p>Evidence examined, and held to warrant a finding that a deed absolute in form was an absolute conveyance and not a-mortgage.</p> <p>Where an owner executed a conveyance for the purpose of preventing another from collecting a judgment that might be recovered in an action pending, neither he nor his heirs could obtain relief in equity.</p> <p>A warranty deed with full covenants and conveying to the grantee a title in fee,t without power of revocation or anything to indicate that the grantor intended to reserve an interest or postpone the vesting of title until his death,' and not executed in conformity with Rev. Civ. Code, §§ 1006-1011, relating to the execution of wills, is not a will either under the statute or in the absence of statute.</p>

<p>Under Laws 1890, p. 293, c. 134, providing that the county treasurer shall receive a salary not exceeding $1,500 per annum payable-monthly from the special salary fund, and if the fees paid into the-county treasury by him do not equal that amount, he shall receive a sum equal to the fees paid into the treasury, and any deficiency during-any quarter is to be made up from excessive fees paid for services rendered during the calendar year in which the deficiency occurs, and Laws 1891, p. 175, c. 65, providing that all county officers for whose services a salary is provided, shall receive no other compensation, a county treasurer is not entitled to commissions on real estate sold to-the county, nor to compensation for the issuance of tax sale certificates, and an allowance of a claim therefore is illegal.</p> <p>Where a board of county commissioners allows an illegal demand against the county, the county, though entitled to' appeal therefrom,, may recover from the claimant the amount paid to him.</p> <p>A county may recover the money paid to a claimant presenting an illegal demand which is allowed by the county commissioners and then paid, for a board has power only to audit accounts legally chargeable to the county.</p>

Hon. Charles S. Whiting, Judge. .Action by Louis Schroecler against Henry Pehling. From a judgment in favor of plaintiff, defendant appeals. Under a statute like ours, an execution issued after the statutory period, without revivor, and the pretended sale under it, are void, giving no title to the purchaser. Coward v. Christian, 6 Am. St. Rep. 533; Halsey v. VanFliet, 27 Kan. 474; Hanson v. Johnson, 20 Minn. 194; Rollins v. McIntyre, 87 Mo. 496.

<p>A complaint of a subcontractor for the enforcement of his lien alleged the ownership of the property in the alternative. Defendant did not demur nor object to the introduction of evidence and entered into a stipulation as to the ownership. Held, that the objection was not available on appeal.</p> <p>Rev. Code Civ. Proc. § 96, provides that the court may determine any controversy between parties before it, when it can be done without prejudicing others, but when a complete determination of the controversy cannot be had without other parties they must be brought in. Section 708 provides that, if action is brought by one or more to enforce mechanics’ liens, the court shall require that “all persons claiming liens’’ against the property be “made defendants or joined with the plaintiff as shall seem to the court to be just and proper.” There is no requirement that the principal contractor be made a party to an action foreclosing- the subcontractor’s lien, nor need the subcontractor exhaust his remedy .against the contractor before proceeding against the property The owner also can introduce any defense available to the contractor. Held, that a nonresident principal contractor was not a necessary party to the enforcement of the subcontractor’s lien.</p> <p>Where a cross-complaint for foreclosure of a subcontractor’s lien was in two counts, and one of them contained correct allegations as to the ownership of the property, a demurrer to the whole pleading was properly overruled.</p> <p>A contractor who in good faith intended to comply .with his corn-tract to furnish certain material and labor for ¡51,400, but by inadvertence failed as to matters which could be remedied for $177, is entitled to judgment for the contract price less the cost of remedying the defects.</p> <p>It is not reversible error to amend the court’s findings of fact, so as to conform to the facts as stipulated by the parties.</p>