Volume 56 — Utah Reports

<p>1. MUNICIPAL CORPORATIONS-INCREASE IN VALUE 3TROM WIDENING Street Immaterial in Action for Failure to Repair Ditch. Ia landowner’s action against city for negligence in failure to keep ditch constructed by city in widening a street in repair, any benefit to the land and enhancement in value of the property as a result of the widening of the street was immaterial.</p> <p>2. Appeal anb Error — Instructions Adverse to Plaintiff are Law of Case on Defendant’s Appeal. Where plaintiff excepted to instructions but did not assign them as error or appeal from the judgment, the instructions became the law of the case on defendant’s appeal.</p> <p>3. Municipal Corporations — Instruction on Negligent Construction Improper in Action fob Failure to Keep Ditch in Repair. In landowner’s action against city for negligence in failing to keep ditch in repair, where there was no allegation of negligence in original construction of ditch, instruction as to negligence in construction held improper, not being within the issues of the case.1</p> <p>4. Trial — Instructions to Be Confined to the Issue. Instructions should he confined to the issues presented by the pleadings and the evidence.2</p> <p>5. Municipal Corporations — Assumption op Jurisdiction Over Water May Ripen Into a Right to Control It. A city cannot be compelled to assume jurisdiction over the water flowing into or within the city; but where it, in the exercise of its discretion under statutes relating thereto, does assume jurisdiction and thereafter continues to exercise it, such conduct may ripen into a right to not only control the water flowing into the city but also the right to act as distributing agent for those entitled to the water.</p> <p>6. Municipal Corporations — City Liable por Negligence in Control op Water Over Which It Has Assumed Jurisdiction. A city may become liable for injury caused by its negligence in the control of water flowing into the city over which it had assumed jurisdiction.3</p> <p>7. Municipal Corporations — City Not Required to Exercise Control and Regulation op Ditch Running Along Street. City cannot be required to assume control and regulation of water in ditch running alongside of street which has been exclusively managed and controlled by the farmers who alone are benefited thereby, the exercising of control over such ditch being merely discretionary with the city and not mandatory.4</p> <p>8. Municipal Corporations — City Reconstructing Ditch on Widening Street Not Required to Keep New Ditch in Repair. City’s agreement to widen street, to reconstruct old ditch and to grade and maintain street, in consideration of landowner’s conveyance of easement in strip of land, did not obligate city to keep reconstructed ditch in repair so as to prevent injury to the land of such owner, its obligation being merely to exercise ordinary care in the reconstruction of the ditch so as not to .injure such land.5</p> <p>9. Municipal Corporations — Obstruction -op Access Constitutes Nuisance Entitling Owner to Reliep. If an obstruction is wrongfully placed between an abutting owner and the street itself so as to' prevent access from the street to the owner’s premises, such obstruction becomes á nuisance, and the owner of the premises is entitled to legal or equitable relief.</p>

<p>1. Taxation — Residuary Devise and Bequest to Wiee Held in Lieu or Distributive Share, and Subject to Inheritance Tax. Under Comp. Laws 1917, section 6406, giving the wife one-third of the value of the husband’s real property, section 6407, providing that a provision hy will for the widow shall he construed to he in lieu of such distributive share unless it appears that the decedent designed it to he additional thereto, and sections 6347, 6348, and 6364, as to the construction of wills, a devise and bequest of the residue of the personal and real estate of the testator after nominal bequests to the children was in lieu of the wife’s distributive share so as to prevent exemption of such share from the inheritance tax.1</p> <p>2. Taxation — Decree oe Distribution Held to Show Election to Take Under Will. A decree providing for distribution of an estate “in pursuance of and according to the provisions of the last will of the said deceased,” and then distributing it in harmony with the will, showed a waiver by the widow and executrix of her right to take under the statute and an election to take under the will.</p> <p>3. Executobs and Administrators — Executrix Bound to See That Estate is Distbibuted According to Will. It is the duty of an executrix to see that the estate is distributed in accordance with the will.</p> <p>4. Evidence — Executeix Pkesumed to Have Administered Estate According to Will. The presumption is that an executrix administered the estate in accordance with the provisions of the will.</p> <p>GIDEON, J., dissenting.</p>

<p>1. Municipal Corporations — Finding of Negligence of Motorist Who Stbuck: Cyclist Supported by Evidence. In an action by a cyclist who was struck by a rapidly moving motorcar, evidence held sufficient to sustain a finding that the motorist was proceeding at an excessive and negligent speed.</p> <p>2. Municipal Corporations — Whether a Cyclist Struck by a Rapidly Moving Motorcar Was on the Wrong Side of the Highway Held for the Jury. In an action by a cyclist who was run down by defendant’s rapidly moving motorcar, the question whether the cyclist was on the wrong side of the street as claimed by defendant, held for the jury.</p> <p>3. Municipal Corporations — Party Confronted with Sudden Emergency Is Not Held to High Standard of Care. Where a cyclist was confronted with an emergency resulting from a motorist’s driving at an excessive speed, the cyclist cannot be held to the high degree of care to which the motorist should be held, and, although the cyclist might by a sudden turn have been able to avoid the danger, his failure will not be treated as negligent.1</p> <p>4. Trial — Requested Instruction Properly Refused Where It Assumed That Injured Plaintiff Was on Wrong Side of Road. In an action by cyclist run down by motorcar, where question whether the cyclist was on the wrong side of the road was dis? puted, an instruction that the motorist had the right to presume every person would obey the law by traveling on the right-hand side of the road, and that no duty rested on him until he had reason to believe that the cyclist was traveling on the wrong side of the road, was properly refused, assuming the disputed question of fact.</p>

<p>1. Larceny — Intention to Benefit by Taking Not Essential. To establish the crime of larceny, it is not essential that accused intended to benefit from the taking.</p> <p>2. Laeceny — Intent to Steal at Time of Theft Is Essential Element — “Felonious Intent.” Under Comp. Daws 1917, section 8285, defining larceny as the felonious stealing, taking, etc., the personal property of another, the felonious intent — that is, the intent to steal — must be shown to have been present at the time of the taking (citing Words and Phrases, First and Second Series, Felonious Intent; Larceny).1</p> <p>3. Larceny — Evidence Held Not to Show Intent to Steal by Killing Trespassing Horses. Evidence showing that defendant had repeatedly stated in public that he intended to kill horses allowed-to run at large, which were trespassing upon and injuring his property, and that he did corral a herd of such horses, and, after turning loose those which had been branded, killed the others, is not sufficient to warrant an inference of intention to steal.</p> <p>4. Criminal Law — Jury Cannot Disbelieve Defendant’s Statements as to Intent Made at Time of Alleged Criminal Act. Though the jury can disbelieve statements of accused as to his intentions, and as a general rule the determination of intention is the exclusive province of the jury, they cannot disbelieve an intention declared at the time of the act with which all of the acts of accused were in harmony.</p> <p>5. Larceny — Mere Intention to Deprive Another of His Property Is Not Sufficient. The intentional killing of horses belonging to another, thereby depriving the owner of his property, but without an intent to steal, does not constitute larceny, though it might be malicious mischief, as defined by Comp. Laws 1917, section 8385 or 8388.</p> <p>6. Criminal Law — Supreme Court Can Determine Effect of Undisputed Evidence Supporting- Only One Conclusion. Where the evidence leaves no room for doubt that the intention of accused was to take the horses in order to destroy them, and no conflicting inference might legitimately be deduced therefrom, the Supreme Court can declare the effect of the evidence as a matter of law and reverse a conviction of larceny.</p>

B. Morgan, Judge. Action by the Salt Lake & Utah Railroad Company against Elizabeth Dolder Schramm and others for condemnation of property. From a judgment of condemnation and for damages in favor of the defendant owners, plaintiff appeals, and defendants cross-appeal.

<p>1. Statutes — Should be Construed in Light of Existing Circumstances. In seeking to arrive at the legislative intent, statutes should be construed in light of existing circumstances.1</p> <p>2. Master and Servant — Pending Cases Not Affected by Amendment to Compensation Act. In view of Comp. Laws 1917, sections 6839, 5840, 5842, amendment of Industrial Commission Act (Comp. Laws 1917, section 3148), by Laws 1919, chapter 63, section 3148a, to provide for review of decisions of commission on certiorari or review in Supreme Court in first instance instead of district court, held not to have affected cases pending and being prosecuted prior to time amendment became effective.</p>

<p>1. CARRIERS-INJURY TO SHIPMENT MEASURED BY MARKET VALUE at Destination not Subsequent Retail Sale Price Elsewhere. In an action for damages to fruit during shipment, I the measure of damage is the difference .between the market value of the fruit in good condition at place of destination and the market value in damaged condition at such place; the price at which they were subsequently sold in small lots at another place by the one who bought them being immaterial.1</p> <p>2. Trial — Instructions not Erroneous as Assuming- Market Value at Place oe Destination in View oe Other Instruction. Where the issue whether there was a market value for fruit at place of destination was otherwise submitted to the jury, an instruction, stating the measure of damages as the difference between the market value in good condition and such value * after damage at the place of • destination, and enumerating elements on which such value could be determined, was not erroneous as assuming that the fruit had a market value at the place of destination.</p> <p>S. Trial — Instruction Need not Repeat Requirements oe Finding oe Damage. Where an instruction on measure of damages for -fruit injured in shipment stated at the beginning as an element the value in the damaged condition if jury found they were damaged, the omission of the latter words in later references to the damaged condition could not have misled the jury, and was not prejudicial error, reading the instructions as a whole.</p> <p>4. Trial — -Requested Instructions Covered by Charge Need not be Given. It was not error to refuse instructions requested by defendants, even if they were correct and applicable to the facts, where they were substantially covered by the court’s charge.</p> <p>5. Appeal and Error — Erroneous Admission oe Evidence not Ae-eeoting Substantial Rights is not Prejudicial. Erroneous ruling by the court as to the admission or exclusion of testimony which did not jeopardize the substantial rights of appellants do not require reversal, under Comp. Laws 1917, section 6968.</p> <p>6. Trial — Motion eor Nonsuit Must State Particular Geounds. A motion for nonsuit must state the particular grounds, and a motion therefor because plaintiff had failed to prove any negligence of defendants, and had failed to prove any damages, is too general.2</p> <p>7. Appeal and Error — Objection that Plaintiff Should Prove which Carrier was Negligent Must be Made Below. In an action against several connecting carriers for damages to fruit shipment occasioned by negligent failure to keep the drains of refrigerator cars open, in which each defendant' may have participated, where all defendants answered jointly and participated jointly in the trial, they could not, for the first time on appeal urge that a nonsuit should have been directed because plaintiff failed to show which carrier’s negligence caused the injury.</p> <p>8. Carriers — Caemaok Amendment does not Prevent Common-Law Action. The Carmack Amendment (Comp. St. sections 8604a, 8604aa), giving shipper a right of action against the initial carrier which issued the bill of lading, but providing that it should not deprive any holder of receipt or bill of lading of any remedy under existing law, does not deprive shipper of his common-law right to sue all carriers jointly.</p>

Original proceedings by the Amalgamated Sugar Company, employer, and the Continental Casualty Company, insurer, to review an award of the Industrial Commission of Utah awarding compensation under the Workmen’s Compensation Act in favor of Ánnie C. Benson.

E. Bramel, Judge. Action by Daniel 0. Larson, Treasurer of the State of Utah, against John W. MacMiller and another, as executors of estate of Harry S. Harkness, deceased. Judgment for plaintiff for part of sum claimed, and plaintiff appeals.

<p>Appeal from District Court, Third District, Salt Lake County; P. C. Evans, Judge.</p> <p>Action by Edna Cowan against the Salt Lake & Utah Railroad Company. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from District Court, Third District, Salt Lake County; Wm. H. Bramel, Judge.</p> <p>Action by David Rosenthal against Henry Harber. Judgment for plaintiff, a new trial was denied, and defendant appeals.</p>

N. Hayes, Judge. Action by Martha 0. Rockhill and another, administratrix and administrator of the estate of A. B. Rockhill, deceased, against William 0. Greer, to recover on a promissory note, with counterclaim by defendant. Judgment for plaintiffs, and defendant appeals.

<p>1. Criminal Law — No Appeal prom Conviction in District Court on/ Appeal prom City Court, where Constitutionality or Validity op Statute is not Involved. District Court’s judgment oí conviction for violation of the Prohibition Act on an appeal from conviction in the city court under Comp. Laws 1917, section 1717, re-enacted in Laws 1919, chapter 34, is not ap-pealable to Supreme Court unless the constitutionality or validity of a statute is involved; the district court’s judgment being final in such case.1</p> <p>2. Statutes — Legislature Having Re-enacted Statute Will be Presumed to have been Satisfied with Court Constrction Prior to Re-enactment. The Supreme Court must assume that the Legislature in re-enacting a statute was satisfied with the construction the Supreme Court placed on the statute prior to its re-enactment.</p>

<p>Original application by tbe Ogden Portland Cement Company against tbe. Public Utilities Commission of Utah for writ of prohibition.</p>

<p>1. Waters and Water Cotjbses — Upper Appropriator Must Show that Waters Diverted did not Come from Stream. Where, after lands in vicinity were irrigated from the waters of a river, plaintiff’s property became marshy and he collected the surplus water in a drain and diverted it so that it did not as it otherwise would have returned to the river, where it would he diverted by defendant, a lower prior appropriator, plaintiff has the burden of proving his contention that the waters be diverted came from a reservoir and not from the river.</p> <p>2. ■ Waters and Water Cotjbses — Where Waters Used fob Irrigation Would Return to Stream, They Cannot bis Diverted. Where, after irrigation of highlands was begun, plaintiff’s land became marshy from seepage waters, and, though they would have returned to the stream from which they were diverted and were one of the sources of supply of the stream, plaintiff collected and diverted the waters to the prejudice of lower prior appropriator, he will be restrained in view of the fact such underground waters constituted the direct source of supply of the stream.1</p> <p>On Application for Rehearing.</p> <p>3.Waters and Water Courses — Seepage Waters May be Used Where They are not Diverted to the Prejudice of Loweb Prior Appropriator. Where seepage waters which would otherwise return to a stream and were part of the source of supply can be used by plaintiff on whose lands they collected, he may use them so long as such diversion does not prevent their return to the stream and injure the lower prior appropriator.</p>

<p>1. MTTiymrpAT. CORPORATIONS — Statute Permitting Prosecution eor Violation oe Ordinance in Name oe Municipality Constitutional. Const, art. 8, section 18, requiring the style of process to be “The State of Utah,” is not violated by Comp. Laws 1917, section 585, providing that offenses against municipal ordinances shall be prosecuted in the name of municipality.</p> <p>2. Constitutional Law — Eminent Domain — Municipal Corpoka-tions — Garbage Ordinance Held not Illegal as Discriminatory nor as Taking Property of One and Giving it to Another. A city ordinance enacted under Comp. Laws 1917, sections 570x23, 570x63, 570x64, 570x87, providing for removal and disposal of garbage for the preservation of public health, held not illegal because discriminatory and arbitrary or because, under the guise of protecting the public health, property of one citizen is taken and given to another.</p> <p>3. Mandamus — Municipal Corporations — for Refusal of Permit to Remove Garbage, Household Must Resort to Mandamus. Where parties applied for permit to remove garbage for their own use, their remedy for denial of permit is by mandamus, and not by proceeding in violation of ordinance to dispose of their own garbage, and where doing so they were subject to prosecution under the ordinance, although using the hauling equipment and otherwise proceeding as required by such ordinance. .</p>

<p>Action by Uintah. Power & Light Company and another against the Industrial Commission of Utah to review an award by the Commission of compensation for the death of Alex A. Hunt.</p>

Original application by the Union Portland Cement Company against the Public Utilities Commission of Utah for writ of prohibition to restrain defendant from exercising jurisdiction to pass upon the reasonableness of a certain electric light and power contract.

<p>1. Damages — Special Damages Must be Pleaded. Special damages must he pleaded.</p> <p>2. Replevin — Judgment fob -Value and fob Damages fob Detention Peopeb. Under Comp. Laws 1917, section 6864, in replevin for automobile, where evidence showed defendant had sold car, plaintiff was entitled to judgment for value, not as damages for conversion, but as a substitute for property, and was also entitled to damages for talcing and" withholding, not being limited to interest on value from taking.</p> <p>S. Replevin — Damages Held “General Damages” and Recoverable, Though not Specially Pleadeu. In view of Comp. Laws 1917, section 6864, damages to plaintiff in replevin for taking and withholding of property, awarded in addition to judgment for its value, were general, not special, having necessarily resulted, and did not need to be specially pleaded.1</p> <p>4. Appeal and Error — Theory of Damages not Raised_ Below not Reviewable. In replevin, where defendant relied wholly on contention that damages for taking could not exceed interest on value fixed at time, and did not raise by answer or request for instructions issue that no deduction from damages was made because of deterioration property would have suffered in plaintiff’s possession, question is not before Supreme Court for review.</p>

<p>1. Appeal and Ebroe — Respondents not Entitled to Asseet Appeal was not Taken in Time. In an action in which the first count sought recovery of real property and the second count ashed that plaintiff’s title to an adjoining strip be quieted, where the case was tried and submitted and determined as an action in equity, plaintiffs could not assert that it was other than one in equity, as the basis for a motion to dismiss the appeal, because not taken in time, though the relief prayed for in the first cause of action could have been recovered in an action of forcible detainer.</p> <p>2. Appeal and Ereoe — Acceptance of Benefits oe Acquiescence in Judgment Defeats Appeal. A party to an action accepting the benefit of a judgment in his favor or acquiescing in a judgment against him thereby waives his right to have the judgment reviewed on appeal.</p> <p>S. Appeal and Error — Surrender oe Possession oe Property in Dispute held to Prevent Review. In an action to recover possession of land and quiet title and to recover the reasonable rental value, defended on the ground that defendant had a lease at a rental less than the alleged reasonable rental and having some time to run, defendant’s surrender of the premises after an adverse judgment prevented an appeal by it, as it thereby abandoned its contention that it had a lease and escaped liability for the rent for the rest of the claimed term.</p>

H. Bramel, Judge. Action by the Big Cottonwood Tanner Ditch Company and others against Vincent Shurtliff and wife. From a decree rendered the plaintiffs appeal, and respondents cross-appeal.

<p>1. States — Auditor Mat Object to Use of Monet for Purposes for Which not Appropriated. Under Comp. Laws 1917, section 5715, subd. 16, requiring tbe Auditor to draw warrants on the State Treasurer for the payment of moneys directed by law to be paid out of the treasury, but providing that no warrant must be drawn unless authorized by law, when money is appropriated for a particular purpose, and it is attempted to be used for a different purpose, it is the Auditor’s privilege' and duty to object and refuse to draw a warrant.</p> <p>2. States — Auditor Cannot Inquire Into Desirabilitt of Investment bt Land Board. If the investment of the funds of the State Land Board in town bonds is authorized by law, the Auditor on requisition from the board for a warrant, has no power to ascertain whether the investment is desirable or the security sufficient, or investigate any of the preliminary steps leading up to the action of the Land Board in deciding to make the investment.</p> <p>3. Mandamus — Presumption Indulged that Land Board Has Satisfied Itself as to Desirabilitt of Investment. In' a mandamus proceeding by the State Land Board to compel the Auditor to issue his warrant for an amount which the board desires to invest in town bonds, the presumption may be indulged, in the absence of any showing to the contrary, that the board has satisfied itself as to the desirability of the investment, the sufficiency of the security, and the legality of the bonds.</p> <p>4. States — Funds of State Land Board Mat Be Invested in Town Bonds; “Citt.” Under Comp. Laws 1917, section 5607, authorizing the State Land Board to invest its funds in government, state, county, city, or school district bonds, it may invest funds in town bonds, in view of section 5848, providing that, in the construction of statutes, “city” may mean incorporated town, and also in view of the custom of the Land Board for more than fourteen years to make such investments.1</p> <p>6. Statutes — Words Considered in Relationship to Context and General Purpose. To determine the intent of the Legislature, the words used hy it must he considered in their relationship to the context and the general purpose or intent of the act in which such words are found.</p> <p>6. Evidence- — Judicial Notice Taken oe Acts of Auditor and State Land Board. Under Comp. Laws 1917, section 7076, the court will take judicial notice of the acts and proceedings of the Auditor and State Land Board, as they are parts of the executive department of the state.</p> <p>7. Statutes — Legislature Presumed to Know Construction by State Officers. The Legislature is presumed to know the construction placed upon a statute by state officers acting under it.</p> <p>8. Statutes — Executive Construction, Though not Binding, Entitled to Consideration. While the construction of a statute by the executive department is not binding upon the courts, it is entitled to serious consideration, unless it does violence to the apparent intent of the language used, especially if the statute has been in force for any great length of time and has been so construed.</p> <p>FRICK, J., dissenting in part.</p>

<p>1. BkokerS' — Complaint Insufficient to Show that Services Were Rendered Pursuant to Express Contract. A complaint alleging that on a specified date defendant contracted to sell mining claims, that plaintiff, at defendant’s special ■ instance and request, negotiated for such sale, that on the date specified defendant, in consideration of such services, agreed to pay plaintiff specified commissions, and that certain payments were thereafter made, did not show that the services were rendered pursuant to an express contract of employment.1</p> <p>2. Brokers — -Express Agreement in Writing to Pat Commissions does not Warrant Recovery Without Express Employment. Under Comp. Laws 1917, Section 5817, requiring agreements authorizing brokers to purchase or sell real estate for compensation to be in writing, an express agreement to pay commissions will not support a recovery if there is no express contract authorizing the broker to make the sale.</p> <p>3. Pleading — Allegations Admitted by Demurrer. On demurrer to the complaint, the statements therein are conceded to be true.</p> <p>4. Brokers — Requisites of Complaint in Broker’s Action for Sale of Land Stated. Under Comp. Laws 1917, Section 5817, the complaint in a broker’s action for commissions for selling land must allege an express contract, either by stating it in full or by stating its legal effect, and it must appear from the contract that the agent was authorized to sell, and the amount, terms, and conditions upon which his commission was to be paid.</p> <p>5. BROKERS — Contract Presumed to be Written when Complaint does not Show Contrary. In a broker’s action for commissions, if an express contract of employment is alleged, and the complaint does not show on its face that the contract was a parol one, it will be assumed that it was in writing as required by Comp. Laws 1917, Section 5817.</p>

Proceedings under Workmen’s'Compensation Act for compensation for death of J. C. Johnson, opposed by the State Road Commission, employer. Award for claimant by the Industrial Commission, and employer brings certiorari.

<p>1. Adultery — May Be Proved by Circumstantial Evidence. In a prosecution for adultery, the guilt of defendant may be established by circumstantial evidence without the testimony of any witness who saw the act, or admissions of the accused or his accomplice'.</p> <p>2. Adultery — Evidence Held Sufficient to Sustain Conviction. Circumstantial evidence that defendant, partially undressed, was in the room with a girl to whom he had previously shown undue attention and written amatory letters, at two a. m., held sufficient to sustain conviction for adultery, though the evidence as to those circumstances was contradicted.</p>

<p>Appeal from District Court, Fifth District, Washington County; Joshua Greenwood, Judge.</p> <p>Action by Frank Staheli against T. M. Adams and others. Judgment for plaintiff, and defendants appeal.</p>

<p>1. VENDOR AND PURCHASER-CONTRACT HELD A SALE AND NOT AN Option. Pacts held to show that plaintiffs made a sale of their equity of redemption to defendant, and did not merely give defendant an option to purchase it.</p> <p>2. Vendor and Purchaser — Condition on whici-i Price Became Payable held Performed. Where defendant agreed to pay the purchase price for plaintiff’s equity of redemption upon consummating sale thereof to a third party, held, that the sale to the third party was consummated, so as to make the price payable, when, after the period of redemption had expired, deed to the property to such third party was executed by the mortgagee, to whom a sheriff’s deed had been executed, and the consideration therefor was received by defendant exactly as if he himself had executed the deed.</p> <p>3. Courts — Action for Price Held not to Involve “Title or Possession of Real Property” Ousting City Court of Jurisdiction. In action for purchase price of real property, defend- , ant’s denial that he purchased plaintiffs’ interest did not involve either the “title or possession of real property” in the sense in which these words are used in Comp. Daws 1917, Section 1711, as to city courts’ jurisdiction.1</p>

Anderson, Judge. Ernest Brown was found guilty of delinquency and com •mitted to the State Industrial School by Hugo V. Anderson, as Judge of tbe Juvenile Court of Salt Lake County, and the mother of the delinquent, Mrs. Lola Hobson Bedford, appeals.

<p>1. Husband and Wife — Separation did not Absolve Husband from Duty to Support. The fact that the parties separated did not absolve the husband from his duty to support his wife, and did not justify refusal to help her during an illness.</p> <p>2. Divorce — Wife Entitled fob Husband’s Willful Refusal to Support. Where husband and wife separated by agreement, and thereafter the husband contributed nothing to the wife’s support, even during an illness following an operation, the wife is entitled to divorce for the husband’s wilful and intentional neglect and refusal to support her.</p> <p>3. Divorce — Court may not Arbitrarily Refuse Decree on Stat-^ utory Ground of Nonsupport. Where the evidence shows a settled purpose on the part of defendant husband not to support plaintiff wife, the court may not arbitrarily refuse to grant her a divorce; the cause being statutory.1</p>

<p>1. Appeal and Error — No Appeal ebom Order Appointing Special Administrator, not Being “Final Judgment.” No appeal will lie from an order appointing a special administrator of the estate of a decedent; such an order not being a “final judgment,” under Const., article 8, section 9, and Comp. Laws 1917, sections 6990, 7606.</p> <p>2. Appeal and Error — Right of Appeal Statutory. The right of appeal does not exist unless given hy constitutional or statutory authority, expressed or necessarily implied.1</p>

<p>1. Appeal and Error — Orders Extending Time por Bilí, of Exceptions Attached to Judgment Ron. not Considered. Orders attacked to the judgment roll, extending the time in which to prepare and serve a proposed bill of exceptions, cannot be considered in determining the jurisdiction of the district court to settle the bill after the expiration of thirty days, under Comp. Laws 1917, section 6969, where such orders are nowhere found in the bill itself.1</p> <p>2. Appeal and Error — Bill op Exception, not Shown to Have Been Settled Within Time as Extended, Stricken. Under Comp. Laws 1917, section 6969, where action of the court in settling a bill of exceptions after the expiration of thirty days does not appear to have been taken within time extended by the court, the bill will be stricken on motion.</p> <p>3. Appeal and Error — Assignments Depending upon Exceptions not Considered where Bill Stricken. Where errors assigned relate wholly to the admission of testimony and the giving and refusal of instructions,. and such matters are only found in the bill of exceptions, the assignments cannot be considered, where the bill of exceptions has been stricken.</p>

District Court, Weber County Second District ; ,J. J. Willis, Judge pro tem. Application by John Mark, alias George Crus, for a writ of babeas corpus against Tbomas E. Browning, as Chief of Police of Ogden City. From a judgment remanding applicant into custody, he appeals.

<p>1. Municipal Corporations — Child not Guilty of Contributory Negligence as Matter of Law When Run Over by Automobile. A child of four years and ten months cannot as a matter of law he held to have appreciated the danger of crossing a street when an automobile was approaching, and is not presumed to conduct herself as an adult person would under similar circumstances.1</p> <p>2. Negligence — Degree of Care Required of Child Graduated to Age. The degree of care required of a child must he graduated to its age, capacity and experience, and must he measured by what might ordinarily he expected of a child of like age and capacity under similar conditions, and, if it acted as might reasonably he expected of such a child, it cannot he charged with contributory negligence.</p> <p>3. Municipal Corporations — Care Required of Automobilist on Street; “Ordinary Care.” An operator of an automobile on a public street is not an insurer against damages to children or other persons, and is only required to exercise ordinary care, or such care as an ordinarily prudent person would exercise under like or similar circumstances, hut the degree of care required to be exercised will be greater when the safety of children, or others of immature judgment, is involved, and when such facts are known to the operator of the car.</p> <p>4. Municipal Corporations — Blowing Horn by Automobilist Did Not Relieve of Charge of Negligence as to Child. The fac^ that defendant automobilist sounded a horn when approaching a girl under five years of age about to cross the street could not relieve him of the charge of negligence, as such a child could not appreciate or understand the object sought or the reasons given for such warning.</p> <p>5. Municipal Corporations — Negligence of Automobilist Running Over Child for Jury. In an action for personal injuries to a little girl four years and ten months old, received when run down by defendant's automobile, whether defendant was negligent in assuming that the little girl would not get in front of the automobile after having seen it foeM for the jury.</p>

<p>Pines — In City Court eor Violation oe Pish and Game Daws Belong to Commissioner. Daws 1919, chapter 34, section 1-, amending Comp. Daws 1917, section 1726, providing that fines imposed by city court for violation of state laws shall be divided between the county and the city, which was similar to a provision in the original city court act passed before there was a game and fish fund, is a general statute, while Daws of 1919, chapter 47, section 37, giving fines for violation of fish and game laws to the fish and game commissioner is a special provision originally adopted subsequent to the former, and therefore controls, so that fines imposed by city court for violation of fish and game laws belong to the commissioner, and not to the county and city.1</p>

<p>1. Contempt — Statement of Deputy Sheriff to Couet Not in Poem of Affidavit Held Sufficient Basis foe Contempt Pboceedings. In contempt proceedings against the attorneys of a garnishee hank for advising their client not to comply with a court order requiring a safety deposit hox to he opened for inspection, a statement hy the deputy sheriff serving the order, made to the court under oath and reduced to writing, held sufficient under Comp. Laws 1917, section 7060, as a basis for an order to show cause why a contempt order should not he issued; it not being requisite to give the court jurisdiction that the facts appear to the court in the form of an affidavit, designated as such.</p> <p>2. Contempt — Rights of Attoeneys to Advise Noncompliance with Court Order Stated. While it is the duty of attorneys to promptly obey all lawful orders of the court and to advise their clients when called on for advice to obey them, yet it is also their duty, in case a reasonable doubt exists respecting the jurisdiction of the court, or that the order in question was improperly made, to preserve and protect the legal rights of their clients by assailing any order in the proper manner and within proper time, in view of Const, art. 1, section 11, providing that every injured person shall have a remedy.</p> <p>3. Contempt — Advising Client, Garnished to Disobey Order Requiring Safety Deposit Box to be Opened, Held not Contempt. Where in garnishment proceedings it was sought to reach the contents of a safety deposit box in garnishee’s possession, and garnishee’s attorneys advised it to disobey an order requiring the box to be opened, such advice did not constitute contempt of court; the attorneys having’ reason to believe that the order was improper.</p> <p>4. Contempt — Characterizing Court Order as “Foolish” or “Damned Foolish” Held not Contempt. That a garnishees’ attorney, after an order has been made requiring the garnishee to open a safety deposit box for inspection, has characterized the order as a “foolish” or as a “damned foolish” order held not to constitute contempt.</p> <p>5. Contempt — Questions to be Considered by Reviewing Court in Contempt Proceedings Stated. In contempt proceedings, where appeals are allowed, it is the duty of the reviewing court to pass upon the question as to whether the trial court had jurisdiction to enter the judgment or malee the order which is made a basis of the proceedings and whether the acts, words, or conduct complained of constituted contempt.</p>

M. Stephens, Judge. Action by West Cache Sugar Company against John A. Hendrickson and another and the Zion’s Savings Bank & Trust Company, garnishee. Plaintiff recovered judgment against the principal defendants, and the court directed garnishment to be issued, under which an order was entered, requiring the garnishee to deliver the contents of a safety deposit bos to the sheriff. From a denial of a motion to quash such order, the garnishee appeals.

Proceeding by Minnie R. McVicar under the Workmen’s Compensation Act for compensation for the death of her son, James Allen McVicar, opposed by the Imperial Lead Mining Company, employer. Award for claimant by the Industrial Commission, and claimant applies for writ of review to determine its lawfulness.

<p>1. Statutes — Construed as Whole. What a statute says must be taken as a whole in construing it.</p> <p>2. Taxation — Bank Deposits Assessable as Solvent Ceedits, and Taxpayer Entitled to Deduct Debts. Under Comp. Laws 1917, sections 5865, 5877, bank deposits should be assessed for taxation to the depositors as solvent credits, not as money, and from the sum total of his credits a taxpayer is entitled to a deduction of debts owing by him.</p>

<p>Appeal from District Court, Seventh District, Sanpete County; Geo. Christensen, Judge.</p> <p>Ignacio Martinez was convicted of murder in the second degree, and he appeals.</p>

<p>Appeal from District Court, First District, Box Elder County; J. D. Gall, Judge.</p> <p>Action by the Consolidated Wagon & Machine Company against H. G-. Wright. Verdict and judgment lor defendant, and plaintiff appeals.</p>

<p>1. Evidence — Trusts—Evidence Held to Show Land was Held in Trust. In an action by plaintiff, as surviviing partner of defendant’s husband to recover land standing in the name of defendant alleged to be partnership property, held shown by sufficiently clear, cogent, and convincing evidence that the land was held in trust for the partnership.</p> <p>2. Evidence — 'Witnesses—Partnership Book Entries Authenticated by Party Admissible and May Be Used to Refresh Recollection. In an action by a surviving partner against the wife of deceased partner, entries in the partnership books made by plaintiff were not admissible per se, but the plaintiff could use them to refresh his recollection, and if they did refresh he could then testify from memory; but if they did not refresh it, but he was able to state he knew the entries were correct when made, then they were admissible.1</p> <p>3. Appeal and Error — Court Presumed to Have Based Finding ón Evidence Free From Objection. Case having been tried to the court without a jury, it must be presented on appeal that the court based its findings on evidence free from objection as to competency.</p>

<p>1. Municipal Coepoeations — Legislature May Impose Conditions on Right to Sue Cities and Towns. The Legislature may impose such conditions on the right to sue municipalities as in its judgment may seem wise and proper.1</p> <p>2. Municipal Coepoeations — No Recoveby in Excess of Claim in Notice to City Without Pleading Excuse. Plaintiff suing city could not recover for permanent injuries an amount in excess of that claimed in notice to city, under Comp. Laws 1917, sections 816, 817, not indicating that she was permanently injured, in absence of allegations and proof of an excuse for the failure to allege injuries to be permanent and to claim larger amount.2</p> <p>3. Municipal Coepoeations — Pleading Held to Authobize Recov-eby of Excess of That Claimed in Notice. Claimant against city by alleging and proving that he did not know, and could not in exercise of reasonable diligence have discovered, the serious consequences of the injury within the thirty days in which he was required to give the city notice, under Comp. Laws 1917, sections 816, 817, and that failure to fully describe consequences at such time was through no fault or negligence on his part, may recover an amount in excess of that claimed in notice in view of section 6619.</p> <p>4. Municipal Corporations — Not Liable for Ordinary Accumulations of Snow and Ice on Sidewalk. A city is not liable for injuries from ordinary accumulations of snow and ice on sidewalk, the failure to remove such accumulations not constituting negligence.</p> <p>5. Negligence — “Negligence” in General Defined. Negligence consists in doing or omitting to do any act which an ordinarily prudent and careful person under the same circumstances would do or omit to do, hut ntft in doing or omitting to do an act which can only be done or prevented by the exercise of extraordinary exertion or care or by the expenditure of extraordinary sums of money.</p> <p>6. Municipal Corporations — Liable for Injuries from Snow and Ice Placed on Streets or Sidewalks. Qities and towns are liable for injuries from snow and ice placed on streets or sidewalks by their own acts.</p>

<p>1. VENDOR AND PURCHASER — INSTALLMENT CONTRACT OBLIGATED Buyers to Pay Only Fifteen Dollars a Month. A contract by buyers of realty to pay $200 cash and fifteen dollars a month, thereafter until whole of price had been paid, with interest on deferred payments at eight per cent, per annum, obligated buyers to pay fifteen dollars each month in extinguishment of the interest for that month, balance of payment to be applied on principal.</p> <p>2. Vendor and Purchase® — Construction of Contract by Parties Binding. Where the buyers of land agreed to pay $200 in cash and fifteen dollars a month thereafter until the whole price was paid, with interest on deferred payments at eight per cent, per annum, an engagement possibly ambiguous, construction of parties for nine years, effected by buyers making, and' the sellers accepting a, payment of fifteen dollars each month in extinguishment of the interest due, balance for application on the principal, was binding on the parties.</p> <p>3. Mortgages — Transferee Charged with Notice of Rights of Persows in Possession. The transferee of a note and the mortgage securing it was charged with notice of all the rights of prior purchasers from the mortgagor, in possession.1</p> <p>4. Appeal and Error — Cross-Appeal Must re Taken to Reverse or Modify Judgment in Favor of Party Assigning Cross-Error. Where the purpose of a cross-assignment is to reverse or modify judgment in favor of the person assigning cross-errors, it is necessary to take cross-appeals.2</p>

<p>1. Prohibition — General Demurrer Tests Sufficiency of Plaintiff’s Allegations. General demurrer to plaintiff’s affidavit and petition for writ of prohibition tests the sufficiency of the grounds complained of as invalidating proposed bond issue and sale.</p> <p>2. Schools and School Districts — Time for Keeping Polls Open at Bond Election Not Controlled by General Election Statute. In vipw of Comp. Laws 1917, section 5839, providing the revised statutes establish the laws respecting the subjects to which they relate, section 2111, fixing time for which polls shall be opened at the general election, does not control a special election under section 4627 for bonding a school district of the first class, and the school board may provide polls shall be opened between 1 and 7 o’clock p. m., it being incumbent on board to> give notice of time and place of election, and to exercise a reasonable discretion as to how long the polls should remain opened.1</p> <p>3. Schools and School Districts — Resolution and Notice for Bond Election Held not to Invalidate It. Resolution of school board of district of the first class calling for election on question of a bond issue, and notice of the election as published and posted, providing the question should be submitted to the qualified voters and taxpayers,'did not invalidate the election; a qualified voter and taxpayer, under Comp. Laws 1917, section 4630, being one who has registered and paid taxes.</p> <p>4. Schools and School Districts — Bond Issue to Improve School. HOUSES AND MAKE ADDITIONS HELD AUTHORIZED; “IMPROVEMENT.” Bond issue by school district of first class for making improvements to present schoolhouses and for additions held authorized by Comp. Laws 1917, section 4627, authorizing such issues for improving the grounds, etc., “improvement” meaning a valuable useful addition, as buildings, fences, etc., are improvements of real estate, and repairs and additions are improvements of buildings.</p>

<p>1. CONSTITUTIONAL LAW-RESERVED POWER OF STATE TO FlX PARE Can Be Exercised Despite City Ordinance. Power to fix fare to be received by a street railway or its proprietary companies having been retained by the state by the Public Utilities Act, such power can be exercised by it whenever the necessity requires, despite ordinance of city granting railway right to operate over a street; such action not impairing obligation of a contract.1</p> <p>2. Street Railroads — Literal Compliance with Forfeiture ’ Provisions Must be Shown. The law does not favor forfeitures, and any party to a contract, as a contract between a municipality and a street railroad, insisting upon a forfeiture of the other’s right thereunder, 'must show literal compliance with all provisions giving him such right.</p>

W. Agee, Judge. ■ Action by tbe Huntsville Irrigation Association and others against Peter Rollo and others. Judgment for the named defendant and judgment of dismissal as to defendants not named, and plaintiffs appeal.

<p>1. CORPORATIONS-“DIRECTORS” ARE MANAGING AGENTS AND MAY BE Charged as Trustees with Corporate Money or Funds. Directors are not trustees in the true sense of the term, hut are the managing agents of the corporation, and as such sustain a fiduciary relation hoth to it and to the stockholders collectively, and if they wrongfully deal with or appropriate money or funds of the corporation they may be charged as trustees with respect to such property the same as any other agent or person who sustains a fiduciary relation to his principal.. . .</p> <p>2. Limitation of Actions — Cause of Action foe Corporate Dibectobs’ Fraudulent Act Arises on Discovery of Fraud. Corporation’s action to have defendants declared trustees for the benefit of the corporation 'as to mining claim on ground that relocation was pursuant to collusive agreement between director of the corporation and reloeators was barred by limitations under Comp. Laws 1917, section 6468, subd. 4, three years from the discovery of the directors’ violation of the fiduciary relationship, the fiduciary relationship of the director to the corporation arising out of a constructive or implied trust and not an expressed trust.1</p> <p>3. Equity — Laches Based Upon Principles of Equity. The doctrine of laches is not based upon time alone, but rests on the' maxims and principles of equity.</p> <p>4. Corporations — Continue to Exist Though Without Officers or Doing Business. That a corporation was without directors and officers, and had entirely ceased to do business did not deprive it from being a corporation and continuing to exist as such.</p> <p>5. Corporations — That Corporation was Without Officers no Defense of Limitations anj> Laches. In an action by a corporation defended on the ground of laches and limitations, it was no answer to such defense that the corporation was without officers and directors and had ceased to do business during the interval between the time of the fraud complained of and the commencement of the action, since the stockholders could have at any time elected the necessary officers to bring the action or could have brought action in their own name.</p> <p>6. Evidence — Court will Take Judicial Notice of Corporation Laws. The court will take judicial notice that two persons were not the sole incorporators of the corporation and owned all the stock thereof, since such a corporation and ownership would have been in violation of the statute.</p> <p>7. Mines and ' Minerals — Action as to Mining Claim Based on Collusive Agreement witi-i Corporate Director Held Barred by Laches. Corporation’s action to declare a trust based on the relocation of mining claim on which plaintiff corporation had made original location, pursuant to collusive agreement between defendants and director of plaintiff corporation, brought fifteen years after the fraud complained of, was barred by laches; the corporation and stockholders being charged with notice of the relocation.</p> <p>8. Evidence — Judicial Notice Taken of Mode of Obtaining Title to Mining Claim. Court will take judicial notice how and under what law the title to lode mining claims may he obtained from the government of the United States.</p> <p>9. CORPORATIONS-LIMITATION OF ACTIONS — ALLEGATION OF LOSS OF Books Does not Overcome. Defense of Laches and Limitations. Allegation that books of corporation were lost' during interval between fraud committed by director and the commencement of action based thereon is not sufficient to overcome defense of laches and limitations in absence of allegation that diligent effort had been made to find books. /</p> <p>10. Evidence — Court toll Take Judicial Notice as to Land Laws. Court will take judicial notice of the law that lands in the United States bearing metalliferous ores can be acquired only by means of development, and that improvements must be made annually either on the particular claim or on some contiguous claim, and that, if not made on the claim, notice must be posted thereon as to place where work is being done or improvements being made.</p> <p>11. CORPORATIONS-DIRECTORS HELD TO HlGII DEGREE OF FIDELITY. Directors are held to a very high degree of integrity and fidelity in the discharge of their duties.</p> <p>12. Equity — Will not Permit Wrongdoer to Profit. Equity will not permit a wrongdoer to profit by his wrong.</p> <p>13. Equity — Will not Encourage Stale Claims. Equity should always insist upon reasonable diligence, and not encourage stale claims, and thus open the doors of courts to those who have slept upon their rights.</p> <p>GIDEON and WEBER, JJ., dissenting.</p>

<p>1. Appeal and Error — Opinion on Former Appeal Law of Case on Subsequent Appeal. Opinion on former appeal is controlling on subsequent appeal as to all questions raised and passed on on former appeal.</p> <p>2. Insueanoe — Insured Held to Have Made Statements in Application. In action on life policy, in which insurer sought to avoid policy on ground of false statements in application as to condition of his health, insured not having denied reading application before signing, he will be deemed to have made statements therein, where application expressly stated that no information with which insurer should he made acquainted had been withheld, that statements therein by insured constituted the basis of the policy, were true, and were offered to insurer as a consideration for the contract.</p> <p>3. INSURANCE — Representations as to Insured’s Health Held Material. Representations in application for life policy as to condition of husband’s health and as to consultation of physicians held material.</p> <p>4. Insurance- — -Material Representations as to Health Known False Avoid Policy. If insured, at the time of making his application for a policy, has knowledge, or good reason to know, that he is afflicted with a disease that renders his condition serious, and that thereby his longevity will be prejudicially impaired, his statements and representations to the contrary, in reply to specific inquiries, constitute a fraud upon the insurer which invalidates the policy.</p> <p>5. Insurance — Refusal to Direct Verdict for Insurer Held Error. In action on life policy, defended on ground that insured in application represented himself to be in good health, where it was conclusively established beyond the possibility of a doubt that insured was suffering from the disease from which he died at the time that he applied for, the policy, and where there was uncontradicted testimony that insured himself stated shortly before making application that he was under constant care of a doctor, and that he was in serious condition, court’s refusal to direct verdict for insurer on ground that false statements avoided the policy, in view of Comp. Laws 1917, section 1154, subd. 3, held reversible error.</p> <p>"WEBER, J., dissenting.</p>

Petition by Robert J. Eames and wife, as father and mother and Lucy K. Eames, to the Industrial Commission of Utah for an award against Geo. A. Lowe Company, employer. Award granted. Application for rehearing denied, and the employer and the .¿Etna Life Insurance Company, insurer, bring certiorari to the Industrial Commission.

G. Evans, Judge. Action by the Bankers Trust Company, as administrator with the will annexed of the estate of George Y. Wallace, deceased, against L. E. Riter, Jr., and others. From a judgment dismissing the action, plaintiff appeals.

<p>Appeal from District Court, First District, Box Elder County; J. D. Call, Judge.</p> <p>Action by Thomas J. P. Rose against M. A. Gam. Judgment for defendant, and plaintiff appeals..</p>

Original proceedings by C. F. Stillman and others, constituting the board of county commissioners of Salt Lake county, against James E. Lynch, as assessor of said county. Hearing upon demurrer, motion to quash altérnative writ, and to dismiss.

Louis Brown, Judge. Proceeding by E. T. Young, administrator of the estate of George B. Greenwood, deceased, against John Corless, Sheriff of Salt Lake County, and the State Bank of Beaver County. Judgment for plaintiff, and defendants appeal.

Proceedings under Workmen’s Compensation Act by Louis Varoukas lor compensation for injuries, opposed by the Standard Coal Company, employer. Award by Industrial Commission of Utah for claimant, and on denial of his application for additional compensation, he presents the record to the Supreme Court for review.

<p>Schools and School Districts — Consolidated District, Without Election, Could not Issue and Sell Bonds to Pat Indebtedness Created in Violation oe Constitution Prior to Consolidation. A consolidated school district has not the power, under Comp. Laws 1917, section 4619, and Laws 1919, chapter 91, section 1, to issue and sell bonds of the consolidated school district to pay an indebtedness created by one of the school districts prior to consolidation, in violation of Const, art. 14, section 3, providing that an indebtedness cannot be created-in excess of the taxes of the current year unless an election shall be held and a majority of the voters shall favor such a debt.</p>

<p>1. Quietiito Title — State Mat Authorize Proceedings in rem. Tlie state has the power, for the purpose of settling and quieting title to real property within its limits, to authorize proceedings in the nature of actions in rem.</p> <p>2. Constitutional Law — Torrens Act Held not Unconstitutional as Denting Due Process. Uniform Land Registration Act, providing for registration of title under the Torrens system, after personal service on all interested persons made known to court at any time before final decree, and who are residents under the state not under disability, and for publication of notice of hearing in the same manner and with the same effect as in other proceedings in rem, held constitutional as against the contention that, because of insufiiciency of notice to interested parties, it permits the taking of property without due process of law, in view of section 6551, Comp. Laws 1917.</p> <p>3. Constitutional Law — Necessitt of Statute not Controlling on Question of Constitutionalitt. The necessity or want of necessity of a statute in a particular case is not a controlling factor on question of the constitutionality of the statute.</p> <p>4. Courts — Supreme Court not Bound bt Opinion of Courts of Other States. The Supreme Court is not- hound by the majority or unanimous opinions of the courts of a sister state, or by the unanimous opinion of the courts of all the states. •</p> <p>5. Constitutional Law — Torrens Act not Unconstitutional as Conferring Judicial Authority on-Registrars of Title. Uniform Land Registration Act, providing for registration of title under the Torrens system, held not to confer judicial authority on county clerks as ex officio registrars of title, in violation of Const, art. 5, section 1, the duties of the registrars of title being ministerial and not judicial.</p>

<p>1. PRINCIPAL AND AGENT-POWER OF ATTORNEY HELD NOT TO AUTHORIZE a Conveyance for Nominal Consideration. A power of attorney, for the maker’s use and benefit, to bargain, sell, and convey the maker’s land upon such terms and conditions as the holder might see fit, did not authorize the holder to convey land for a nominal consideration of two dollars; that being, in effect, a gift.</p> <p>2. Principal and Agent — General Power of Attorney Does Not Permit Attorney to Act for Own Benefit. A power of attorney given to act in the name of and on behalf of his principal, couched in general language, in the absence of any showing of a contrary intent, must be construed as authorizing an act only in the separate individual business of the principal and for his benefit, and not as permitting the attorney to engage in transactions foreign or repugnant to that business, or as binding the principal by acts done not for his benefit, but for the private benefit of the attorney or others.</p> <p>3. Adverse Possession — Plica of Adverse Possession Not Defective Because Not Alleging Bar by Limitations. In an action to cancel a mortgage upon real estate and to quiet title thereto, an answer specifically denying plaintiff’s ownership of the property, and alleging title in defendants by adverse possession, was not defective because not accompanied by plea that action was barred by statute of limitations.</p> <p>4. Adverse Possession — Plea of Possession “Since 1903” Not Defective Because Not Alleging “Ever Since.” In an action to cancel a mortgage upon realty or to quiet title thereto, a plea alleging that “since the year 1903” defendants and their predecessors in title had been in the notorious and exclusive possession, occupancy, and ownership of the property under an adverse claim of ownership and title was not defective because alleging “since the year 1903,” etc., instead of “ever since,” etc.</p> <p>5. Adverse Possession — Plea Not Defective Though Not Alleging Possession Was Continuous and Uninterrupted. In an action to cancel a mortgage on realty and to quiet title thereto, a plea alleging that defendants claimed adversely to all the world, and that their possession had been exclusive, was not defective because not alleging their possession was continuous and uninterrupted.1</p> <p>6. Adverse Possession — Not Established Unless Claimants Had Paid Taxes as Required by Statute. Defendants’ exclusive, continuous, and uninterrupted possession of property under a claim of right and adverse to all the world from 1903 until the commencement of the plaintiff’s action to cancel a mortgage upon realty and to quiet title thereto would be unavailing, unless they paid all taxes levied and assessed against the property during a period of seven years within such time, as required by Comp. Daws 1917, section 6456.2</p> <p>On Application for Rehearing.</p> <p>7. Evidence — Consideration Expressed in a Deed is Prima Facie True Consideration. While the expressed consideration in a deed is not conclusive, where no attempt is made to prove another or different consideration that expressed in the deed is prima facie the true consideration.3</p> <p>8. Principal and Agent — Conveyance by Agent, for Two Dollabs Held a Gift and Beyond His Power. Where a power of attorney to convey land for the maker’s benefit related to two city lots in a county seat, aggregating two and one-half acres, with water right therefor and a dwelling house thereon, to which the maker had quieted his title by suit, a conveyance by the attorney for a consideration of two dollars was made upon a nominal consideration, so that the deed was an attempted gift, beyond the power of the attorney.</p> <p>9. Principal and Agent — Burden of Proof to Prove Consideration for Deed Made Under Power of Attorney. Where deed purporting to be made under power of attorney expressed only a nominal consideration, while the power of attorney did not authorize a gift of the property or a sale for a nominal consideration, the burden of proof was on one claiming under such a deed to show it was in fact made for a substantial consideration.</p> <p>10. Quieting Title — Plaintiff’s Denial of Defendant’s Title Held to Raise Issue of no Consideration for Deed Under Which Defendant Claimed. In a suit to cancel a mortgage upon land and to quiet title thereto, it was not necessary to make a special issue in the pleadings as to the question of no consideration for a deed under which defendant claimed, as that was sufficiently presented by simply denying defendant’s title, and it was incumbent on defendant to show a substantial consideration in support of her title.</p> <p>11. Appeal and Error — Ground of Motion to Strike Deed in Defendant’s Chain of Title Held Not to Present Question of Consideration Ti-ierefor. In a suit to cancel a mortgage on land and to quiet title thereto, wherein plaintiff moved to strike from the evidence a deed under which defendant claimed on the ground that the attorney in fact who had executed such deed had exhausted his power by the execution of a prior deed to another party, and not on the ground that there was no consideration for the deed, and wherein the trial court granted the motion solely upon the untenable ground alleged, ruling would not be upheld on ground of want of consideration.</p> <p>12. Appeal and Error — Appellate Court Should Not Modify or Affirm on Reason Not Given by Trial Court if Injustice Would Result. Though Supreme Court is not bound by the reasons given by the trial court for its conclusions, but may affirm or modify judgment upon any legal ground appearing in the record, still it is not bound to do so, and ought not to do so in an equitable proceeding if it might result in injustice to appellant.4</p>