Volume 30 — Oregon Reports

From Multnomah: E. D. Shattuck, Judge. Action of damages against a sheriff for seizing and selling a stock of goods on which plaintiffs claimed to have a chattel mortgage. Another case between the same parties over the same questions was dismissed in this court at a previous term: Fisher v. Kelly, 26 Or. 249. After the failure of the first case on a technical point, this case was commenced, and came here on appeal by plaintiff from a judgment for defendant.

From Washington: Thos. A. McBride, Judge. Calvin Pomeroy was indicted and convicted in Washington County on a charge of buying, receiving, concealing, and attempting to conceal stolen property.

From Multnomah: E. D. Shattuck, Judge. Action by John Schmurr against the State insurance Co., of Salem, Oregon, to recover on a policy of fire insurance. After a jury trial plaintiff had judgment as prayed, from which defendant appeals.

From Marion: Geo. H. Burnett, Judge. John R. Stockman was convicted of violating one of the provisions of the legislative act set forth in sections 420-1-4207 of Hill’s Code, relating to the conduct and management of public warehouses.

From Multnomah: Loyal B. Stearns, Judge. This is a suit in equity by sundry creditors of.the California Vineyard Company, of Portland, to set aside certain conveyances and attachments as fraudulent, and to determine the distribution of the assets that might be discovered and saved by a receiver. Chas. A. Malarkey, as receiver, sold all the property of the company that could be found, and paid the proceeds into the registry of the court.

From Malheur: Morton D. Clifford, Judge. This is a suit instituted August 15, 1893, for the purpose of establishing the date and extent of plaintiff’s appropriation of water from the Malheur River, in Maiheur County, Oregon, and to enjoin the several defendants from in any way using the waters of said stream so as to interfere with the full and free use of its appropriation.

Motion to abate an appeal on account of the death of the defendant. The personal representatives of the deceased appeared to resist the motion, because it would leave in force against the estate a judgment for costs in favor of the State.

From Baker: Robert Eakin, Judge. This is a suit by Francis Clarno, as assignee of the Virtue Mining Company, a private corporation, against George W. Grayson, and it is based upon a certain contract and its modifications touching the Virtue Mine, situated in Baker County, Oregon. On the 19th day of November, 1891, the defendant, Geo.

From Multnomah: Thos. A. Stephens, Judge. Appellant W. E. Ellsworth was on the 20th day of February, 1895, indicted by the grand jury of Multnomah County for the crime of murder, by administering to his wife, Edith Ellsworth, strychnine. To this indictment he pleaded not guilty; a trial was had which resulted in a disagreement of the jury, and afterwards a second trial was had, when the jury returned a verdict of guilty of manslaughter.

<p>1. Trusts — Statute of Frauds — Code, § 781. — Though a trust in real estate cannot be created by parol, the same rule does not apply to personal property; and if a grantee sells land under a parol agreement to convert it into money and pay the grantor’s debts, his subsequent acknowledgment of the trust will bind him.</p> <p>2. Parol Evidence — Express Trust. — In a suit to enforce_ a trust in personal property which is the proceeds of land held in trust, parol evidence is admissible to prove the original agreement under which the premises were held, as a consideration for a subsequent declaration of the trust by the trustee.</p> <p>3. Vendor and Purchaser — Possession as Notice. — Possession of land by a third person is constructive notice of such person’s legal and equitable rights; Petrain v. Kiernan, 23 Or. 455, and Exon v. Dancke, 24 Or. no, applied and followed.</p> <p>4. Verbal Contract Concerning Land — Statute of Frauds— Memorandum * — Part Performance. — A deed deposited in escrow is insufficient to take an oral contract for the sale of land out of the statute of frauds, unless such deed contains a memorandum of the agreement; nor is payment of the purchase price such a part performance as to overcome the plea of the statute; but taking possession in pursuance of the terms of the contract, and making improvements, is sufficient for that purpose.</p> <p>5. Specific Performance. — The vendor in a parol contract for the sale of lands may enforce specific performance thereof, where he has delivered possession to the purchaser, who has held such possession and made improvements entitling him to the enforcement of the contract as against the vendor.</p> <p>6. Defect of Parties — Demurrer—Code, § 71. — Where an objection for defect of parties is apparent on the face of the pleadings, the objection must be made by demurrer (section 71, Hill’s Code), or it will be deemed waived.</p> <p>7. Presumption — Cross Appeal. — A party who does not appeal from a judgment or decree is presumably satisfied, and his interests will not be considered on appeal.</p>

From Multnomah: E. D. Shattuck, Judge. Action of damages for breach of a contract of marriage, brought by May Osmun against H. D. Winters. There was a verdict for plaintiff for $10,500, which was reversed in this court, 25 Or. 260 (35 Pac. 260). On a second trial the jury disagreed, but on a third trial there was a verdict of $9,000, from which this appeal is taken.

<p>Amending Pleading During Trial — Discretion—Code, § 101. — In an action against an officer to recover damages for selling the property of plaintiff on an execution against another, where the answer merely denies plaintiff’s ownership, it is within the discretion of the trial court, and is not a substantial change in the defense, under section 101 of Hill’s Code, to permit defendant to amend during the trial by adding an allegation that plaintiff fraudulently took and held the property in question: Foster v. Henderson, 29 Or. 210, cited and approved.</p>

<p>1. Sufficiency of Description in Tax Deed — Code, § 2773. — The correct interpretation of section 2773, Hill’s Code, is that if land is so situated that it cannot be definitely described by legal subdivisions, or by lots and blocks, it must be described in some other manner that will make its location certain. Measured by this rule, a description in an assessment roll and in a tax deed as a “fraction of lot 2 in block 49,” for example, is so indefinite that it entirely fails to identify any parcel of land whatever, and is absolutely meaningless.</p> <p>2. Recovery of Amount Paid by Purchaser at Tax Sale — Hill’s Code, § 2821. — The provision of our code (section 2821) that when the holder of a tax title sues for the land described in his tax deed, the owner must deposit in court the amount paid for the tax deed, with interest, etc., as a condition precedent to filing his answer, is supported on the theory that the tax purchaser has acquired the lien of the county for the tax, and that, the purchaser having paid to the county by his purchase a just obligation of the citizen’s, the latter ought to repay him before getting the lien released; but where the tax itself is void, or where the assessment is so irregular that it is impossible to say what property is intended to be affected by it, no lien is created; and consequently the tax purchaser can acquire none. In such cases the owner need not make any tender with his answer.</p>

From Multnomah: Hartwell Hurley, Judge. This is an action by the Bridal Veil Lumbering Co. against D. S. Johnson, to condemn a right of way for a railroad.

<p>1. Proof of Handwriting — Comparison with Genuine Writings.— Under section 765 of Hill’s Code, providing that evidence as to handwriting may be given by a comparison by a skilled witness, or by the jury, with writings admitted or treated as genuine by the party against whom the evidence is offered, it is competent for a party to use as standards, for the purpose of showing by a comparison of handwriting that a material letter was written hj such adverse party, any writings admitted or shown to be genuine, regardless of whether they refer to the matter in issue or not.</p> <p>2. Evidence of Character * in Fire Insurance Cases. — In an action on a fire insurance policy, payment of which is contested on the ground that the fire was set by the insured, evidence as to the general good character of the plaintiff is not admissible, as this is not a case where the issue involves character, under section 842 of Hill’s Code.</p>

From Clackamas: Thos. A. McBride, Judge. This is a mandamus proceeding by the municipal corporation of Oregon City to compel the county treasurer of Clackamas County to pay over to the plaintiff certain road taxes collected under the general laws of the State. A demurrer to the alternative writ having been sustained, the petitioner appeals.

From Marion: Geo. H. Burnett, Judge. Action by J. C. Booth against Z. F. Moody to recover commissions for procuring a purchaser of certain lands belonging to- defendant. There was a judgment for the plaintiff, and defendant appeals.

<p>From Multnomah: E. D. Shattuck, Judge.</p> <p>Suit by Elizabeth Ryan against A. G. Ryan for divorce, which was granted, and the defendant appeals.</p>

From Wasco: W. L. Bradshaw, Judge. Suit in equity by John Barger against O. D. Taylor and wife to foreclose two mortgages, securing certain notes. There was a decree allowing a small recovery on one note, and declaring the principal of the second note forfeited for usury, under the terms of section 3589 of Hill’s Code, from which plaintiff appealed.

From Marion: Geo. H. Burnett, Judge. Action on a promissory note. The court struck out certain allegations of the answer and then sustained a demurrer to the new matter remaining. Judgment having-been entered for plaintiff, the defendants appeal.

<p>When an Attorney’s Lien Attaches to a Judgment — Code, § 1044. — An attorney’s lien does not attach to a judgment, or become binding on the judgment debtor, until the attorney has given notice of his lien to such debtor, and filed the original with the clerk of the court where the judgment was entered, as required by section 1044 of Hill’s Code; so that if the debtor pays or settles the judgment before notice of the lien is served, the lien will not attach, regardless of whether the satisfaction has been entered or not. *</p>

From Coos: J. C. Fullerton, Judge. Petition for writ of review by the Southern Pacific Company against Coos County and its officers, to avoid the results of certain tax levies. The Circuit Court, after a hearing on the merits, dismissed the petition, whereupon this appeal was prosecuted by plaintiff.

<p>Vendor and Purchaser — Bond for Deed. — A vendor in an action at law in Oregon has the right, as between itself and the defaulting purchaser, to declare the contract at an end, and to enforce the provisions as to forfeiture agreed upon: Sayre v. Mohney, 30 Or. -, cited.</p> <p>Brokers’ Contract — Commissions.—Real estate brokers agreed to sell certain lots in consideration of all the proceeds above $800 an acre. It was also agreed that the price might be paid in installments of $5 or more a month, the brokers to retain $10 from the first two installments, and one-half of each installment thereafter till their commissions were paid. Later there was a supplementary agreement that, if any of the purchasers on credit should forfeit their contracts, all forfeited installments paid to the brokers on such sales might be retained as commissions; and, should they effect a resale on credit, all installments thereafter paid were to be divided equally, till the vendor should have received under the new sale $800 an acre. Held, that, where contracts were forfeited for non-payment, unpaid commissions for the original sales were also forfeited.</p>

From Multnomah: Loyal B. Stearns, Judge. Suit in equity by Rebecca J. Barger against Cyrus W. Barger and Eliza Helm, her children, and others, to have a trust declared in certain land in plaintiff’s favor. The lower court entered a pro forma decree for the defendants, confirming the report of Jarvis Varnal Beach, Esq., referee. Plaintiff appeals.

From Marion: H. H. Hewitt, Judge. This suit was brought by S. Z. Mitchell, E. P. McCornack, and others against Thos. Holman, A. S. Bush, and others, to compel the allowance of an offset to a judgment obtained against the plaintiffs by Bush on a note which he held as collateral from Holman.

From Multnomah: Michael G. Munly, Judge. Suit by Avery & Opdycke against Butler & Dill, and others, to foreclose a mechanics’ lien. The Builders’ Sash & Door Mfg. Co. intervened to foreclose a lien, and from a decree dismissing its claims it appeals.

<p>Adverse Party — Service of Notice of Appeal. — In a suit against a county and its treasurer and sheriff to restrain the levy of a tax to meet the payment of certain county warrants which are claimed to have been illegally issued, the county is an adverse party so as to require it to be served with the notice of appeal by the other defendants from a decree granting the injunction, for if the decree be modified or reversed, _ its liability to pay will certainly be affected: Hamilton v. Blair, 23 Or. 64; The Victorian, 24 Or. 121; and Moody v. Miller, 24 Or. 179, approved and followed.</p>

From Linn: Geo. H. Burnett, Judge. Action by the First National Bank of Portland, Oregon, against the Linn County National Bank of Albany, Oregon, to recover damages for the negligence of the latter in matter of collecting a certain draft. There was a judgment for defendant, and plaintiff appeals.

From Clatsop: Thos. A. McBride, Judge. Mandamus by W. H. Patterson against Fox and -others, constituting the State Board of Pilot Commissioners, to compel the issuance of a renewal license. The writ was made peremptory, and defendants appeal.

<p>Appeal From Decree Sustaining Demurrer — Disposition op Cause on Affirmance. — Where a decree sustaining a demurrer to a complaint on the ground that it does not state a cause of suit is affirmed, final judgment will not be entered, but the cause will be remanded for such further proceedings as may be deemed proper: Powell v. Dayton, etc., R. R. Co., 14 Or. 22, approved and followed.</p>

From Multnomah: E. D. Shattuck, Judge. ■ Action by John F. Duffy against M. J. McMahon, and from a judgment for plaintiff the defendant attempted to appeal. Respondents now move to dismiss because the notice of appeal does not describe the judgment in this case.

From Coos; J. C. Fullerton, Judge. Petition for writ of review by the Oregon Coal & Navigation Company against Coos County and the members of its board of commissioners to review the action of said board as a board of equalization in fixing the assessment of petitioners’ property. The court set aside the assessment, and defendants appeal.

<p>1. Ejectment — Proof of Ouster. — In an action by a tenant against his co-tenant to be admitted into possession, a denial in the answer of plaintiff’s title and right of entry is an ouster.</p> <p>2. Running of Statute of Limitations * — Code, §§ 4 and 519. — In computing the time limited by section 4 of Hill’s Code of Oregon for bringing action to recover possession of real property, the day on which the cause of action accrued should be excluded, since the rule prescribed by section 519 of the Code (i. e., that the time within which an act is to be done shall be computed by excluding the first day and including the last) applies to all computations of time.</p> <p>3. Presumption of Survivorship. — A conclusion of law that the share of one of several joint heirs capable of making a will descended on his death to the survivors, is not supported, in the absence of a finding that he died intestate, or that he did not leave a widow, child, or parent surviving.</p>

From Multnomah: Loyal B. Stearns, Judge. Suit by Inman, Poulsen & Co. (a corporation) against E. J. Sprague and wife, John Myers, their assignee, the Commercial & Savings Bank,' and the Portland Lumbering & Mfg Co., to have certain instruments cancelled, as constituting a general assignment for creditors with preferences. There was a decree for defendants, and plaintiff appeals.

<p>Cross Examination — Code, § 837. — A witness who has testified on direct examination that the scow, the condition of which at the time it sank is in issue, was built by a certain person and was in good condition at the time it was delivered to defendant, may be asked on cross examination if he knew the builder before he built the scow, and whether he ever knew or heard of the scow being sunk before it was finally sunk in defendant’s service, in view of section 837, Hill’s Code, permitting an adverse party to cross examine a witness as to any matter stated in his direct examination, or connected therewith: Maxwell v. Bolles, 28 Or. 1, cited and applied.</p> <p>Idem. — In an action for damages for the loss of a scow, where a witness has testified that he calked the scow just before its delivery to defendant, and that it was then in good condition and worth a certain sum, defendant may, on cross examination, ask: “Did you ever know anything about that scow before you were called to repair it? Did you ever examine it?” for the purpose of showing the means of knowledge and extent of information of the witness on the question of value.</p> <p>Opinion Evidence. — The fact that a witness has had his attention called to scows, and has heard men accustomed to buying and handling such property discuss their value, does not render him competent to give an opinion of the value of a scow in controversy, where it is not shown that he ever saw the property in question, nor was even familiar with the market value of such articles, or knew anything about the cost or manner of their construction. Opinion evidence may in some cases be received, but it must first be made to appear that the witness has had the means of forming an intelligent opinion derived from an adequate knowledge of the nature and kind of property under consideration, and of its value.</p>

<p>Highways — Jurisdiction of County Courts. — In Oregon, county courts are of inferior and limited jurisdiction in the matter of laying out and establishing roads, but the same intendments obtain in favor of the regularity of their proceedings as prevail in courts of general jurisdiction, when the record shows that jurisdiction has been obtained of the particular subject and of the parties interested in locating and establishing the road: State v. Myers, 20 Or. 442, cited and applied.</p> <p>Establishing Public Highways — -Notice Is Jurisdictional — Code, § 4063. — The legislature can prescribe the necessity and manner of taking private property for public use, but somewhere in the course of the proceeding there must be a notice to the owner of the property affected, otherwise the taking will be without “due process of law”; so, an order of a county court establishing a county road, made without the notice required by section 4063, Hill’s Code, is entirely void for lack of jurisdiction.</p> <p>Jurisdictional Defect — Curative Act. — The act of October 29, 1870 (Laws 1870, p. 67), curing defects in proceedings for laying out and establishing highways, does not make valid any proceeding of that kind that was originally void through want of notice; for, while the legislature may cure irregularities, it cannot make-good retrospectively what it had no power to originally authorize.</p> <p>Adverse User — County Road. — The uninterrupted obstruction of a, county road for more than ten years bars the rights of the public by adverse possession, though on a few occasions persons have been permitted to drive across fhe premises. -</p>

From Benton: J. C. Fullerton, Judge. This is a suit by Alex Sime to enjoin Wm. Spencer, who is the supervisor of road district No. 30, in Benton County, from opening a newly- laid county road ordered opened by the County Court. A demurrer was interposed to the complaint, which was sustained, and a decree entered in favor of defendant, dismissing the complaint, and for costs and disbursements. Plaintiff appeals.

From Multnomah: E. D. Shattuck, Judge. This is an action by John J. Jennings against Anna P.Gamer and others to recover commissions alleged to have been earned by plaintiff in procuring the exchange of certain real and personal property in behalf of the defendants.

<p>1. Default as a Waiver of Defects in Pleadings. — The question of the sufficiency of a complaint cannot be raised on appeal from a judgment given for want of an answer: Askren v. Squire, 29 Or. 228, applied.</p> <p>2. Service of Process on Corporation. — Service of summons on one of the principal officers of a private corporation at its principal office or place of business gives the court jurisdiction of the corporation, regardless of whether the officer served resided in or had an office in such county; though, where the service is made on some inferior clerk or agent, the return must show the facts authorizing such substituted service: Caro v. Oregon & California R. R. Co., 10 Or. 510, cited and approved.</p> <p>3. Amendment of Return — Discretion of Court. — The practice in allowing amendments to returns of writs should be liberally exercised in furtherance of justice.</p>

From Multnomah: Loyal B. Stearns, Judge. Suit for injunction by Milton W. Smith against John W. Minto, chief of police of Portland, to restrain the collection of a certain street assessment. Plaintiff prevailed, and defendant appealed.

From Multnomah: Hartwell Hurley, Judge. Some time prior to September 29, 1892, the plaintiff Jacob Haas purchased of one Shaw certain real property situate in Mt. Tabor Garden Addition, in Multnomah County, Oregon, upon which there was a mortgage to secure the payment of $5,812, and, as part of the purchase price, assumed and agreed to pay $5,712 of the sum so secured.

From Multnomah: Hartwell Hurley, Judge. Action at law for the possession of certain personal property. Plaintiff claims under a chattel mortgage given by the owner, while defendants insist that the machinery became attached to the freehold and could not be moved. The trial court held otherwise, reversing the referee, and defendants appeal.

<p>From Curry: J. C. Fullerton, Judge.</p> <p>Action by Jefferson Williams, Jr., as administrator, against S. J. Culver, on a note. There was judgment for plaintiff on a demurrer to the answer.</p>

<p>From Crook.</p> <p>Action by Connor Bros, against William S. Clark. From a decree in favor of plaintiffs, defendant appeals.</p>

From Coos: J. C. Fullerton, Judge. Application by H. W. Dunham for writ of mandamus against W. H. S. Hyde, recorder of the town of Marsh-field. The writ was granted, and defendant appeals.

From Multnomah: E. D. Shattuck, Judge. This is a mandamus proceeding by the Northern Counties Investment Trust, Limited, a corporation, against Geo. C. Sears, as sheriff of Multnomah County, to compel him as such officer to serve a summons upon the defendants in a cause pending in the Circuit Court of the State of Oregon for Multnomah County, wherein the Northern Counties Investment Trust, Limited, is plaintiff, and George H. Dedman et al. are defendants.

From Baker: James A. Fee, Judge. Appeal by defendants from a judgment of the Circuit Court for Baker County in favor of plaintiff in an action brought to enforce defendant’s liability on bond of the city treasurer, for money alleged to have been misappropriated by him.

From Malheur: Morton D. Clifford, Judge. This is an action to recover an alleged balance claimed to be due on a chose in action assigned to plaintiff, The First National Bank of Idaho.

From Multnomah: E. D. Shattuck, Judge. Action by Edward Holman against the DeLin-RiverFinley Co., a corporation, John P. Finley, and C. R. Rieger to recover under a certain lease assigned to him by T. L. Ray and others. The facts are fully stated in the opinion. There was a judgment against the corporation and J. P. Finley, from which they have prosecuted this appeal.

From Multnomah: E. D. Shattuck, Judge. Action on a promissory note, and from a judgment for plaintiff one defendant appeals. The facts are fully stated in the opinion.

From Multnomah: Loyal B. Stearns, Judge. Cross bill by Osmon Royal against Ladru Royal, to enjoin an action of ejectment, and to enforce a trust in the land. From a decree enforcing the trust, but charging plaintiff with certain sums, he appeals.

From Multnomah: Thos. A. Stephens, Judge. Jonathan Tice was convicted of forging the signature of Nancy M. Love to a will. Several others were charged with complicity in the affair, but they either pleaded guilty or were already in the service of the State for other incidents, so that Tice was the only one tried.

From Multnomah: E. D. Shattuck, Judge. This is an action by J. M. Nickum, 'as receiver of the Oregon Fertilizing Company (a private corporation), to recover from Burckhardt Bros, an amount claimed to be due on a certain alleged subscription to the capital stock of said company. The defendants filed a plea in abatement to the effect that the alleged corporation was never legally organized.

<p>1. Limit of Municipal Power Over Nuisances. * — Under a charter giving to the city the power to prevent and restrain nuisances, and “to declare what shall constitute a nuisance,” an ordinance absolutely prohibiting a railroad company from fencing its track in the platted portion of the city, and declaring such fence a nuisance, is void, since the city cannot assert a particular use of property to be a nuisance, unless such use comes within the common law or statutory idea of a nuisance, or is so in fact.</p> <p>2. Effect of Plea of Guilty- — Criminal Law.- — A plea of guilty to a charge of violating a city ordinance is only an admission that defendant committed the acts charged, and is immaterial where the ordinance is void.</p>

From Umatilla: Stephen A. Lowell, Judge. This is a proceeding by a writ of review to determine the propriety of a certain claim filed by the sheriff against Umatilla County for expenses incurred while serving within such county grand jury subpoenas and other criminal processes on behalf of the public prosecutor.

From Multnomah: Loyal B. Stearns, Judge. This is a proceeding by the heirs of James John, deceased, against Philip T. Smith, executor of the will of' said John, involving the validity of certain charitable bequests contained in such will. The County Court, where the proceeding was commenced, sustained the will as it was written, and on appeal to the Circuit Court the decision was affirmed, from which the petitioners appeal.

From Umatilla: Stephen A. Lowell, Judge. Suit by C. W. Brownfield to restrain the officials of Umatilla County from issuing to Zoeth Houser, the county sheriff, a warrant for a certain sum theretofore audited and allowed by the County Court, but claimed to be partly composed of items that were properly not chargeable against the county; and to obtain an accounting of sundry amounts said to have been before improperly paid to the sheriff.

From Multnomah: E. D. Shattuck, Judge. This is an appeal from an order of the trial court overruling a motion to set aside a default order and judgment. it appears from the record that Francis Fratt sued H. C. Wilson, in Multnomah County, on a transitory cause of action, and caused the summons to be served on the defendant personally in Lake County. Wilson was at the time a resident of California, but was temporarily in Lake-County on business.

From Coos: J. C. Fullerton, Judge. This is an action to recover upon a subsidy agreement signed by the defendant with others and delivered to plaintiff.

<p>Limitation of Actions — Section 24 of Hill’s Code as a Rule of Evidence. — The effect of any payment of principal or interest with regard to the running of the statute of limitations is not influenced by section 24 of Hill’s Code, providing that no acknowledgment or promise shall be sufficient evidence of a new or continuing contract to take a case out of the operation of the statute, unless the same is in writing, signed by the party to be charged; this simply prescribes the character of evidence by which the acknowledgment or promise shall be proven, and in no wise affects the legal consequence of a part payment.</p> <p>Statute of Limitations — Effect of Part Payment — Code, § 25.— Section 25, Hill’s Code, providing that whenever a part payment is made on an existing debt the limitation shall commence from the date of the last payment, applies only to payments before the statute has run, and does not operate to revive a debt that has already expired: Creighton v. Vincent. 10 Or. 56, cited and approved.</p> <p>When Part Payment Will Not Toll the Statute of Limitations. — A payment on a debt by a person who is in no way liable to the creditor, and who has no property interest to be protected against the enforcement of the debt, will not prevent the running of the statute of limitations in favor of the persons liable thereon, or on whose property it is a charge. This rule is not affected by section 25 of Hill’s Code, providing that whenever any payment of principal or interest is made on an existing contract after the same becomes due, the limitation shall commence from the time the last payment is made.</p> <p>Idem. — One who purchases mortgaged premises without assuming payment of the mortgage has no such interest after a sale of the premises on a covenant of warranty as will make a payment by him on the mortgage debt effective to remove the bar of the statute of limitations as against either the person liable for the debt or the owner of the land.</p> <p>Statute of Limitations — PXyment by Grantee of Mortgagor.— The mere fact that the mortgagor’s grantee is liable on his covenants of warranty does not make his payments effective to toll' the statutes, either against the original debtor or the subsequent-grantees.</p>

This case was considered, and the decree of the court below affirmed at the Pendleton term in 1896 (29 Or. 354, 45 Pac. 904), and comes up now on a motion for a rehearing. The particular grounds of the application are stated in the opinion.

<p>Mandamus to Compel Settlement of Bill of Exceptions — Discretion. — Mandamus will not lie to compel a circuit judge to allow a bill of exceptions after failure of the appellant to present the same within the time allowed therefor, where the excuse for the delay is inability to obtain a copy of the official report from the stenographer, and a mistaken belief as to the time allowed for presenting the bill.</p> <p>Discretion of Court in Settling Bills of Exceptions. — A trial judge has a wide discretion in the matter of presenting and settling bills of exceptions, and the appellate court will not attempt to control his action by mandamus except under unusual circumstances. The practice in such matters should be liberal, however.</p>

From Coos: J. C. Fullerton. Judge. Suit for the foreclosure of certain mechanics’ liens, and from the decree entered plaintiff appeals.

From Coos: J. C. Fullerton, Judge. Action to recover the amount of three certain notes given to aid a railroad subsidy, and transferred to plaintiff. Defendant appeals from a judgment against him.

From Coos: J. C. Fullerton, Judge. Action by the Coos Bay, Roseburg & Eastern Railroad & Navigation Company to recover from W. L. Dixon certain sums by him subscribed toward building the line of plaintiff’s road. From a judgment against it, the company appeals.

From Union: Robert Eakin, Judge. Proceeding on execution by J. D. McKinnon against H. C. Cotner and another, defendants, and the American Fire Insurance Company of Philadelphia, garnishee. A demurrer to the answer of the garnishee was sustained, and it appeals.

From Benton: J. C. Fullerton, Judge. Action by A. Jacobs against Levi Oren, in Justice’s Court. On appeal to the Circuit Court, plaintiff recovered judgment for a part of the amount claimed, together with his costs and disbursements, and defendant appeals.

<p>Landlord and Tenant — Chattel Mortgage on Crop — Farm Lease. — Under a lease stipulating that the crops raised on the demised premises shall be and remain the property of the landlord till the rent is fully paid, the title to the crops does not vest in the tenant till he has paid the rent (Fox v. McKinney, 9 Or. 493, approved and followed), and the effect of such a provision is not to make the instrument a mortgage which must be filed to give it validity against subsequent mortgagees and purchasers in good faith. Under such circumstances, a chattel mortgage on the growing crops does not take precedence over the landlord’s claim for rent, though the lease be unrecorded.</p>