Volume 70 — Nebraska Reports

<p>1. Chattel Mortgages: Validity. Where mortgaged stock are described as being upon a certain farm owned by the mortgagor in the county of his residence, the mortgage is not void for uncertainty, if the description of the animals is not applicable to any others kept on such farm.</p> <p>2. Promissory Note: Evidence. A promissory note in the hands of the payee is, even after maturity, evidence of the existence of a debt.</p> <p>3. Herd Law: Award: Notice. A mortgagee of cattle can not, in a proceeding under the herd law, be bound by an award made without giving him a hearing or an opportunity to be heard.</p> <p>4. -: Notice. Notice to the owner of cattle in such a proceeding is not notice to the mortgagee.</p> <p>5. -: Owner: Mortgagee. The remedy by distress under article 3, chapter 2, Compiled Statutes, is given to enforce in a summary manner a claim for damages against the owner of cattle who is charged with the duty of keeping them off the cultivated lands of others. A mortgagee, without possession, is not an owner within the meaning of the statute.</p>

<p>1. Review: Verdict: Evidence. The finding of a jury will be set aside when there is not sufficient evidence to support it, as where the clear weight of testimony is against the verdict, so that it is apparent that it is wrong.</p> <p>2. Question of Law. Frequently, the necessary inference from an undisputed state of facts is so certain that it is ruled upon as a question of law.</p> <p>3. Verdict. A verdict of a jury whose finding is based upon conjecture and not on the evidence, can not be permitted to stand.</p> <p>4. -: Evidence. Record examined, and the verdict of the jury held to be unsupported by and against the evidence.</p>

<p>Error to the district court for Webster county: Ed L. Adams, Judge.</p>

<p>Review: Estoppel. A party who objects to evidence and causes it to be excluded can not obtain a reversal of tbe judgment as unsupported for want of tbe evidence so excluded.</p>

<p>1. Accident Insurance: Pleading: Demurrer. An allegation of settlement of all claims which a certificate holder in an accident association “had or might have” against the association, which makes no express reference to the beneficiary, nor to future accruing claims, will be held, on demurrer by the beneficiary who is suing for indemnity for the subsequent death from the same accident of the certificate holder, to refer only to the then accrued claims for disability, and not to the subsequent death of the insured, and to state no defense to the death claim beyond the amount of the payment alleged.</p> <p>2. Evidence. Evidence held to suport verdict that death resulted from accident as claimed.</p> <p>1. Review. Unless there is material error in the record brought to this court for review, the judgment of the trial court will be affirmed regardless of the theory upon which it was defended.</p> <p>2. Mutual Benefit Association: Chanos op Beneficiary. In this state, by express statute, members of mutual benefit associations have the right, at any time, with the consent of the association, to substitute one beneficiary for another.</p> <p>3. -: Interest op Beneficiary. A certificate issued by such an association providing for the payment of indemnity in case of accidental death, gives to the beneficiary named therein a vested interest, not when tne accident happens, but when death occurs in consequence of the accident.</p>

<p>Appeal from the district court for Paivnee couuty: Charles -B. Letton, Jurge.</p>

<p>Error to tbe district court for Howard county: James N. Paul, Judge.</p>

<p>Error to the district court for Phelps county: Ed L. Adams, Judge.</p>

<p>Error to the district court for Saline county: George W. Stubbs, Judge.</p>

<p>1. Election: Judgment: Res Judicata. A judgment establishing the invalidity of an election attempted to he made at the geheral election in 1899, does not render res judicata between the same parties the power to make such an election at the general election 'in 1901, even if there be no change i'n the law affecting the validity of such election.</p> <p>2. -. An election provided for and required to take place by the constitution, may be held at the required time without special legislation providing therefor.</p> <p>3.-: Police Judoe. Held, That a successor to relator for the office of police judge has been, elected and qualified; that relator was not the incumbent of such office during the time for which he is seeking herein to enforce payment of salary, and that the writ prayed for was properly denied.</p> <p>1. Municipality: Office of Police Judge. The office of police judge or police magistrate of an incorporated city is called into existence by the constitution. State v. Moores, 61 Neh. 9, followed and approved.</p> <p>2. Action: Title to Office. The right to an office occupied by one claiming title thereto under a certificate of election, can not he determined in a suit instituted'by an adverse claimant for the salary of the position.</p>

<p>1. County Commissioners: Allowance of Claims. The hoard of county commissioners in allowing claims made for salaries of county officers and other claims against the county, where the amounts to foe allowed therefor are fixed by law and where no judicial inquiry is required to determine the amount, act in a mere ministerial capacity and have no power or jurisdiction to allow an amount in excess of the fixed statutory compensation.</p> <p>2. -: -: Judicial Discretion. Where judicial discretion is called for in the allowance of a claim presented, the board then acts as any other judicial body, and its findings can be questioned and set aside only by an appeal taken from the decision as provided by statute. Neither can the members of the board be made liable for a mere mistake made in passing judgment on the claim, the commissioners, in such case, being entitled to the same immunity as other judicial officers.</p>

<p>Error to the district court for Fillmore county: George W. Stubbs, Judge.</p>

<p>Mandamus: Discretionary Writ. Mandamus is a discretionary writ and will be allowed only in furtherance of justice upon a proper case presented. It will not be allowed where it is apparent that it is applied for to gratify the spite of a private individual, nor where the relator has instigated, authorized or approved the acts complained of.</p>

<p>1. Dismissal: Demurrer to Evidence. Where a ease has been submitted upon a demurrer to the evidence, plaintiff’s absolute right to dismiss without prejudice is lost. Bee Building Oo. v. Dalton, 68 Neb. 38.</p> <p>2. Master and Servant: Negligence. Before recovery can be had against an employer based on the ground of negligence in hot informing the employee of the danger attending the operation of a machine and instructing her how to avoid injury thereby, it must appear that the injury complained of occurred because of the want of such instruction. If it fairly appears that the injury complained of did not occur from want of knowledge of how the machine should be operated, but was incurred from causes which could not be foreseen or anticipated, it can not be imputed to the neglect of the master to give proper instructions.</p> <p>3. Question for Jury. Whether a guard rail attached to a mangle for the purpose of protecting the hand of the operator from being caught and drawn into the machine was properly attached and placed in position, is a question for the jury under the evidence.</p>

<p>1. Specific Performance. In a written agreement for the sale of real estate consisting of three quarter sections, it was stipulated on behalf of the vendee that he might elect not to take any of the quarter sections, if he could not also obtain the conveyance of a fourth quarter section. The vendee failed to obtain a conveyance of the fourth quarter section, and elected to take the three quarter sections. Held, That he was entitled to specific performance of the agreement to convey:</p> <p>2. Executory Contract: Offer to Convey. A vendor under an ex-ecutory contract to convey real estate, on the day of performance, presented himself at the bank where his deed had been deposited as an escrow, offered to. convey and demanded the purchase money; the demand was refused, and it was several days before the vendee concluded to take the land. Held, That the vendor was relieved from the obligation to perform.</p> <p>3. Homestead: Contract to Convey: Specific Performance. A contract to convey a homestead was signed only by the husband, but both husband and wife signed and acknowledged a deed for such homestead, placing the deed in escrow to await the payment of the purchase price. The acknowledgment was taken before a notary who was disqualified by reason of his direct pecuniary interest in the conveyance. Held, That the vendee was not entitled to a specific performance of his contract as to such homestead.</p> <p>4. Tender. A vendor under an agreement to convey real estate, on the day of performance of the contract, appeared at a bank where he had placed a deed for the land in escrow and demanded the purchase money. He was tendered a check signed by the vendee, but refused it. The cashier then offered to cash the check and give him the money. Held, That the vendee was entitled to a conveyance.</p> <p>5. Contract: Construction. Contract for the conveyance of real estate between a vendee and three vendors, each owners of separate tracts of land, construed, and held to be severable and independent as to each vendor.</p>

<p>1. Will: Devise: Construction. A testator devised certain lands located in Nebraska, Missouri, Iowa and Dakota, to bis daughter, M., her heirs and assigns forever, upon the condition that she • should not alienate the lands in Nebraska until she attained the age of thirty-three; but that she might alienate the other lands with the consent of the testator’s executors; and for the purposes of such alienation, appointed the mother of M. her guardian until M. reached the age of majority, clothing the guardian with full power to transfer on beha-lf of M. such title as testator possessed at the time of his decease. He then declared that, in the event of M.’s death without living issue, so much of all the lands described as she had not alienated and conveyed should go to certain other persons named. M. died after attaining the age of thirty-three but without issue, devising the lands in Nebraska to her husband. Held, That the testator intended to give to M. a fee simple estate in the Nebraska lands, with power of alienation after attaining the age of thirty-three.</p> <p>2. -: -: Limitation Over Void. Where a testator devises land to his daughter in fee simple, a subsequent clause in his will, by which he attempts to devise over to others so much of the land as his daughter has not alienated during her lifetime, if she dies without living issue, is void.</p>

<p>1. New Trial: Notice: Court Rules. A failure to give one day’s notice in writing of the hearing on a motion for a new trial, as provided for in the rules governing the district court for Douglas county, will not ipso facto render the ruling of the trial court on such motion erroneous, requiring the reversal of the judgment; but in this court the inquiry will be, whether the trial court should have allowed or denied the motion.</p> <p>2. Lease: Default: Action: Notice. Under a lease containing the provision that if the rent, or any part thereof, shall be in arrears and unpaid at any time, it shall be lawful for the landlord to retake possession without any formal notice, a right to maintain ah action of detention accrues after default and statutory notice to the tenant.</p> <p>3. Forfeiture: Waiver. A tenant who held possession of premises under a lease providing for the payment of $15 rental, payable on the 12th day of each month in advance, was thirteen months in default. He sent a check for $15 by mail to the agent of the landlord, unaccompanied by letter of explanation or instruction, and in abbreviated terms on the face of the check wrote, “1 mo. rent, 1021 S. 36 St., to Apl. 25, ’02.” The check was cashed and the money applied on the past due rent. In an action to dispossess the tenant, commenced before the expiration of the period indicated on the face of the check, held, that the acceptance and retention by the landlord of the check, did not waive the forfeiture, in the absence of a showing that the landlord or his agent received the check with actual knowledge of the proposed limitation in its application.</p> <p>4. Evidence. Evidence examined, and held that a peremptory instruction for plaintiff was properly given.</p>

<p>Appeal from the district court for Holt county: James F. Boyd, Judge. .</p>

<p>1. Riparian Owner: Use oi? Water. A riparian owner has a right to make a reasonable use of a stream flowing over or along his lands for the purposes of irrigation.</p> <p>2. -: -. This right is to be measured primarily by the amount of water in the stream available for such purposes, the number of persons who may so use it, the size, situation and character of the stream, and the nature of the region.</p> <p>3/-: Injury to Rights. In case a reasonable use of the water, consistent with a like use by other riparian owners, can not be made, the injury to a riparian owner by reason of appropriation of the water by an irrigation enterprise is nominal only.</p> <p>4. -: -: Remedy. • A lower riparian owner can not enjoin an irrigation enterprise by an upper appropriator under the statutes, merely because his damages for injury to his riparian rights have not been paid; his remedy is to sue at law for such damages.</p> <p>5. Equitable Relief: Dama&es. But in case a lower appropriator under the statute is materially affected by diversions of water by upper riparian owners, he may bring a suit in equity to determine the rights of all claimants to use of the water and to quiet his title thereto, in which the damages to riparian rights may be ascertained and due compensation awárded.</p> <p>6.-: Plaintiee Must Do Equity. The lower appropriator may not maintain such a suit against upper riparian owners, without offering to do equity by paying whatever damages accrue to such owners by reason of the appropriation.</p> <p>7. Damages: Peesumttion. It will not be presumed that the damages in such case are nominal only.</p> <p>8. Remand: Amendment: New Parties. In furtherance of justice, where a decree is reversed, this court may remand the cause with leave to amend the petition and bring in new parties, instead of requiring the expense of a new suit</p> <p>1. Appeal: Issues. Ordinarily, a case on appeal will be tried and determined in the appellate court upon the same issues raised by the pleadings and the evidence as were presented in the trial of the case in the court in which it originated.</p> <p>2. Irrigation: Use oe Waters. It is the policy of the law to regulate the diversion and use of the waters flowing in the streams of the state for the irrigation of lands by a uniform system applying alike to all waters thus diverted; and the law of appropriation, as defined by the statute and administered by the state board of irrigation, is deemed an effective means to accomplish the desired results.</p> <p>3. Damages. Where an appropriator of water for purposes of irrigation has acquired a vested right under the law to the use thereof for such purposes, a riparian owner on the same stream can not enhance the damages he has sustained, if any, to his riparian estate by, subsequently to the appropriation thus acquired, constructing irrigating ditches to irrigate his riparian lands under his common law right to a reasonable use of the water of such stream for such purpose.</p> <p>4. Injunction. Where an appropriator has acquired a valid right to the use of water under the laws governing the taking and use of water for purposes of irrigation, the right is in its nature property and entitled to be protected as such, and for any invasion of, or injury to, the same the law will afford a remedy. And in such a case, equity will restrain an upper riparian owner from subsequently diverting water, the right to use which had been thus acquired, without requiring the appropriator to institute proceedings to condemn the rights under the common law of all riparian owners to the reasonable use of water flowing in the stream for irrigating riparian lands.</p> <p>5. Statutory Eights: Action. Where an appropriator has acquired a valid right to the use of water under, the irrigation laws of the state, and is in the actual use of such water for purposes of irrigation, the right thus acquired is superior to that of a riparian owner to a reasonable use of the water of the stream under the common law, to irrigate riparian lands, and, for the taking or impairment of the latter’s right, an action is maintainable if any damages have been suffered by-the owners of the riparian estates.</p> <p>6. Eights Under Act of 1895: Remedy. The irrigation act of 1895 authorizes and regulates the appropriation of the waters of the state for irrigation and other purposes which are declared to be a public use; and, in making appropriations of water as contemplated by the act, a riparian owner whose property rights are appropriated or impaired is entitled to compensation for the injuries actually sustained, to be recovered in a suitable action or proceeding instituted for that purpose. Crawford Go. v. Hathaway, 67 Neb. 325.</p> <p>7. Eight of Eminent Domain. Under the constitution and statutes of this state, condemnation is authorized of the right of the private riparian proprietor to the use and enjoyment of a natural stream flowing past his lands, or its impairment by an appropriation of such water for irrigation purposes, and such riparian proprietor may recover damages in the same way and subject'to the same rules as a person whose property is affected injuriously by the construction and operation of a railroad. Crawford Co. v. Hathaway, 67 Neb. 325.</p> <p>8. Statute Constitutional. The statute governing the subject of the appropriation of water flowing in the streams, for the purposes of irrigation, is constitutional.</p> <p>9. Estoppel. Held, That the plaintiff is not estopped from asserting its superior right to the use of the water in controversy for purposes of irrigation.</p>

<p>Error to the district court for Douglas county: Willard W. Slabaugh, Judge.</p>

<p>1. Probate Proceeding: Equity. Every proceeding to set aside an order of a county court made in the course of probate or administration proceedings, on the ground that it was obtained by fraud, is not of necessity equitable in its nature.</p> <p>2. Equity: Fraud: Final Judgment. It is only where a final judgment has been procured by fraud, or some order which by reason of the lapse of the term and its finality can not be set aside by the ordinary powers of the court, that its equity powers come into play.</p> <p>3. Allowance to Widow. An order allowing ah alleged widow a certain sum each month pending administration, for her maintenance, is subject to modification during administration as circumstances may require.</p> <p>i. Proceeding in Error. Where no summons in error issues, the date of voluntary appearance is to be taken as the date of commencement of proceedings in error within the meaning of section 592 of the code.</p>

<p>1. Transcript: Diminution oe the Record. If a transcript filed in this court is incomplete or incorrect in some particular, the appropriate remedy is to procure an additional or corrected transcript, duly certified.</p> <p>2. -: When Stricken. In case it appears from the transcript . filed and a further transcript duly certified, that a party has wilfully filed an incomplete and incorrect transcript or has altered the tianscript certified and furnished him, for the purpose of deceiving this court, the transcript will be stricken from the files. FeVber v. Boyd, 44 Neb. 700.</p> <p>3. —-: Correctness: Affidavit. But this court will not try the correctness or completeness of the transcript upon affidavits, nor require the clerk of the lower court to produce the original record.</p>

<p>Error to the district court for Dundy county: Robert C. Orr, Judge.</p>

<p>Error to the district court for Perkins county: Hanson M. G-rimes, Judge.</p>

<p>Estoppel: Appeal Undertaking. Principles of estoppel are mutual and reciprocal. One who successfully attacks appellate proceedings, upon the ground that they are unauthorized by law and wholly void, is estopped afterwards to assert that they are in any respect valid. - This rule applies to an appeal undertaking by which such proceedings were begun.</p> <p>1. Appeal Under taking: Estoppel. One who executes a bond under circumstances that would estop him to assert its invalidity for want of consideration, can not, in an action upon the bond, avoid liablty on the ground that plaintiff is estopped to assert that there was any consideration for the bond. Estoppel against estoppel sets the matter at large.</p> <p>2. -: Validity. A bond in pursuance of a statute afterwards held unconstitutional is not valid as a statutory bond, but may he valid as a common law contract, if supported by a consideration independent of the statute.</p> <p>3. -: -. A bond, given in an attempted appeal in an action of forcible entry and detention, conditioned for the payment of rent, is valid as a contract, if the obligor has by reason of the bond retained possession of the premises, though the statute authorizing such appeal is afterwards held unconstitutional.</p> <p>4.--: Execution. One of three persons who are appointed attorneys in fact by power of attorney may act for the principal, if the power of attorney contains no provision requiring more than one to join in the act.</p>

<p>1. Parties: Joinder. To authorize a joinder of parties as defendants, they must be under a joint liability or must be claiming some right in the subject matter of the action.</p> <p>2. Sumipons to Another County. To authorize summons to another county in a merely personal action for money, there must Be an actual right to join the resident and nonresident defendants.</p> <p>3. Defenses: Joinder. A nonresident defendant may join a plea to the merits with a plea to the jurisdiction, where the facts as to the latter are not apparent on the face of the record.</p> <p>4. -: Jurisdiction: Waiver. Where the question of jurisdiction is thus litigated, the nonresident defendant does not, by appealing from a county court’s adverse decision, waive his plea to the-jurisdiction.</p> <p>5. -: -: Record. Where defendant’s plea to the jurisdiction only inferentially alleges a service of summons in another county, the facts of service appearing in the record will be considered, when his pleading is attacked for the first time in this court.</p>

<p>Error to the district court for Lancaster county: Edward P. Hodmes, Judge.</p>

<p>1. Liquor License: Notice. It is not necessary to republish the notice of application for license to sell intoxicating liquors after additional names are permitted to be added to the petition.</p> <p>2. -: Petition: Infants. Infant children, although residents and heirs to estates of inheritance in real estate in the precinct, are not qualified signers of a petition for the sale of intoxicating liquors in such precinct.</p>

<p>1. Master and Servant: Negligence: Liability. The master is liable for the negligent act of a servant committed within the scope of, or as a necessary incident of, his employment.</p> <p>2. Liability of Master for Servant’s Negligence. Where, as an incident of employment, it is necessary for a servant to open a trapdoor to perform his lalior, and he carelessly and negligently leaves the trap-door open, after performing the work, and one to whom such duty is owed is injured by such negligence, the master is liable.</p> <p>3. Contributory Negligence: Burden of Proof. Where plaintiff makes out his ease without disclosing contributory negligence, the burden is on defendant to establish its existence, as an affirmative defense.</p> <p>4. Action for Injuries: Proof. In an action by a married woman for personal injuries, it is proper to show that she has been incapacitated by reason of her injuries from performing labor, for the purpose of showing the nature and extent of her injuries.</p> <p>5. Case Distinguished. Central City v. Engle, 65 Neb. 885, examined and distinguished.</p> <p>6. Admission of Evidence: Review. Action of the trial court, in admission of evidence, examined and approved.</p> <p>7. Damages. Quantum of damages examined, and held not excessive.</p> <p>Married Woman: Action: Damages. In an action for personal injuries by a married, woman, she is not entitled to recover the value of medical services rendered, in the absence of proof that she has paid for such medical services, or that she is the OAvner of a separate estate which might become liable therefor.</p>

<p>Appeal from tlie district court for Perkins county: Hanson M. Grimes, Judue.</p>

<p>Error to tbe district court for Douglas county: William W. Keysor, Judge.</p>

<p>Sale: Rescission: Replevin. The vendor' of personal property can not rescind the contract of sale and recover possession from the vendee on the ground of fraud and deceit, in the absence of fraudulent representations made by the vendee respecting some matter material to the contract, and upon which the vendor relied in making the sale and extending credit for the purchase price.</p>

<p>Error to the district court for Johnson county: Charles B. Letton, Judge.</p>

<p>Appeal from the district court for Saline county: William G. Hastings, Judge.</p>

<p>Husband and Wife: Alienation of Affections: Damaoes. In an action by a husband against his father-in-law for alienating the affections and enticing away the wife of the former, such damages only are recoverable as are the natural and probable consequence of the act complained of, or are due to the negligence or wrongful conduct of the defendant connected therewith.</p>

<p>Error to the district court for Thayer county: (3-eorge W. Stubbs, Judge.</p>

<p>1. Constitutional Law. “Changes or modifications of existing statutes, as an incidental result of adopting a new law covering the whole subject to which it relates, are not forbidden by section 11, article III of the constitution.” De France v. Harmer, 66 Neb. 14.</p> <p>2. General and Special Laws. It is for the legislature to determine as to the applicability of a general law to a given emergency, and as to the consequent propriety or otherwise of a special law.</p> <p>3. Act Constitutional. This court will not undertake to say as to the act of February 23, 1887, under which, the ballots as to the adoption of the amendment to section 4, article III of the slate constitution, were counted, and the result declared, that a general law would have been applicable, and that the act in question was therefore unconstitutional.</p> <p>4. Legislative Acts. Something more than mere irregularities and improprieties in declaring the result of an election'should appear, to warrant this court in attempting to set aside the solemn acts of the legislative bodies and the executive of the state as to the fundamental law of the state, especially after such legislative and executive action has been acquiesced in for sixteen years.</p> <p>1. Submission of Constitutional Amendment. Tbe submission by tbe legislature to tbe electors of a proposed constitutional amendment is not a legislative act. In making sucb a submission, tbe legislature act in a capacity strictly analogous to that of a constitutional convention and are subject to sucb constitutional restrictions and limitations, only, as bave direct reference to tbe exercise of that power.</p> <p>2. Constitutional Law. An act is not obnoxious to tbe constitutional inhibition against special legislation, if tbe subject with wbicb it deals is special and particular in its nature.</p> <p>3. Amendment to Constitution: Power of Legislature. When a proposed constitutional amendment has been duly submitted to tbe people without prescribed regulations with reference to the manner of counting, canvassing or returning the ballots, or ascertaining or authenticating the result of the election, it is competent for the legislature to provide by special enactment for so doing.</p>

<p>1. Presumption of Grant of Lands: Prescription. A grant of lands may be presumed from acts of exclusive use and continuous occupation for ten years or more, when such use and occupation is accompanied by a claim of ownership.</p> <p>2. Appeal: Error. On an appeal in an equity proceeding, error can not be predicated on the action of the trial court in the admission of evidence.</p> <p>3. Evidence. Evidence examined, and held sufficient to sustain the judgment of the district court.</p>

<p>Error to the district court for Douglas county: Lee S. Estelle, Judge.</p>

<p>Error to the district court for Phelps county: Ed L. Adams, Judge.</p>

<p>Error to tbe district court for Seward county: Benjamin F. Good, Judge.</p>

<p>Telegraph Company: Negligence: Damages. Where the negligent delay of a telegraph company, in the delivery of a message delivered to it for transmission hy the plaintiff, results in the loss to the plaintiff of a sale of a quantity of corn at a price above the market value of the corn at the time and place it would have been delivered bad such sale been made, the measure of damages is the difference^ in value between the price the plaintiff would have received for the corn, had the sale been made, and the market value of the corn at such time and place of delivery, unaffected by the price at which the plaintiff may have disposed of the corn after that time.</p>

<p>Error to the district court for Dawson county: Homer M. Sullivan, Judge.</p>

<p>Error to the district court for Lancaster county: Albert J. Cornish, Judos.</p>

<p>1. Trial to Court: Review. When trial has been by the court without ■ a Jury, reversible error can not be predicated on the admission of evidence, in the absence of an adequate showing by bill of exceptions that improper evidence was actually considered by the court as the basis of its findings, nor upon an exercise of the court’s discretion in allowing proper evidence in the case to be brought out on the redirect examination of a witness.</p> <p>2. Evidence. Evidence examined, and held sufficient to sustain the findings of the trial court.</p>

<p>Error to the district court for Hamilton county: Benjamin F. Good, Judge.</p>

<p>Error to the district court for Lancaster county: Albert J. Cornish, Judge.</p>

<p>1. Tax Lien: Foreclosure by Coukty. A county can not foreclose its lien for taxes, without a sale first having been made by the county treasurer and a certificate of tax sale issued thereon.</p> <p>2. Limitation. A foreclosure proceeding by a county, upon a ta.x sale certificate, must be brought within the time limited by section 1, article 4, and section 2, article 5, chapter 77, Compiled Statutes.</p> <p>3. -. The five-year limit, within which foreclosure proceedings upon a tax sale certificate must be brought, does not commence to run until the expiration of the two years within which the tax debtor may redeem from the sale.</p> <p>4. Loss of Lien. The county’s lien for taxes is not devested by the failure of the county to foreclose its tax lien within the time limited by statute, but the county may again purchase at tax sale for the years covered by its prior purchase.</p>

<p>Appeal from the district court for Lincoln county: Hanson M. Grimes, Judge.</p>

<p>1. Replevin Undertaking: Exceptions to Sureties. Under section 189 of the code, exceptions to the sufficiency of sureties upon a replevin undertaking must be taken within twenty-four hours from the time the undertaking is given; the defendant is not entitled to the whole of the day after that on which the undertaking is given in which to except thereto.</p> <p>2. -: -. It seems that such period of twenty-four hours should be held to begin on the expiration of the twenty-four hours from the taking of the property, allowed the plaintiff for the purpose of furnishing the undertaking, although the undertaking may have been given before the expiration of that period.</p> <p>3. Waiver of Objections. Where no exception is taken to the sufficiency of the sureties within the time fixed by section 189 of the code, all objections as to sufficiency are waived; and the question whether the officer acted in good faith in accepting the undertaking becomes immaterial.</p> <p>4. Witness: Impeachment. In laying the foundation for impeachment of a witness by showing a contradictory statement out of court, the witness may be asked whether in making the statement he did not detail a conversation with a third person, by reason whereof he claimed to remember the fact stated, and, if he denies the whole, proof may be made, not only of the ■ statement itself, but of the reasons he gave for remembering the fact in controversy.</p> <p>5.-: -. It is not error, in such a case, to exclude testimony of such third person as to the conversation, the conversation itself not being material, but only the fact, if such it was, that the witness in question referred to it as confirming his memory of the fact in dispute.</p> <p>6. Trial: Statement of Testimony: Exceptions. If the trial judge substantially misstates the testimony in giving his recollection thereof under section 287 of the code, it is error; but if he merely fails to make a complete statement, the party who desires that a further or fuller statement be made, being present at the time, should make a request to that effect, and, if he makes no request, a mere general exception to the statement of the trial judge will not suffice.</p>

<p>Appeal from the district court for Lancaster county: Lincoln Frost, Judge. Rehearing of case reported in 3 Neb. (Unof.) 104 and 108.</p>

<p>Error to the district court for Dodge county: James A. Grimison, Judge.</p>

<p>1. Reversal of Judgment: Restitution. It is a general rule that, “upon the reversal of a judgment which has been executed, it is the duty of the court to compel restitution,” but restitution is not, in all cases, a matter of absolute right; it rests in the sound discretion of the court.</p> <p>2. Restitution. Ordinarily an order of restitution will not be made against a solvent party where the result will be to deprive him of an opportunity to be heard in the courts of this state as to the merits of his claim.</p> <p>3. Corporation: Bankruptcy: Restitution. A corporation neglected to issue stock to a subscriber therefor and, by its proper officers, ordered the money which had been paid upon subscription returned to the subscriber. The subscriber procured a peremptory writ of mandamus, compelling subordinate officers of the corporation to execute papers deemed necessary to secure a return of the money. The order allowing the writ was afterwards reversed. The corporation having gone into bankruptcy, and the relator being solvent, it is held that the trustee in bankruptcy is not entitled to an order requiring the relator to return the money, so obtained, to the trustee in bankruptcy. _</p> <p>Mandamus: Finae Order. In mandamus proceedings, the hearing upon an order to show cause why money obtained by the relator from the respondent under such proceedings should not be returned to the respondent, is summary in its nature, and an order therein is not a final adjudication of the rights of the parties to the money in controversy.</p>

<p>Appeal from the district court for Buffalo county: Homer M. Sullivan, Judge.</p>

<p>1. Tenancy from Year to Year. A tenancy from year to year will not be created against the contrary intention of both parties, landlord as well as tenant, and the payment of rent is merely an evidential fact bearing upon the question of the intent of the parties. Johnson v. Foreman, 40 111. App. 456.</p> <p>2. Receipt of Rent. The receipt of rent by the landlord is not conclusive as to the continuance of the term, but it is an equivocal act to be determined by the quo animo. Atlantic Nat. Banlc v. Demmon, 139 Mass. 420.</p> <p>3. Evidence. Evidence examined, and held insufficient to prove an intent to renew or continue the term.</p>

<p>New Trial. In an action for personal injuries, a new trial will not be granted on account of smallness of damages. Code, sec. 315.</p>

<p>Error to the district court for Phelps county: Ed L. Adams, Judge.</p>

<p>Error to tbe district court for Sherman county: Homer M. Sullivan, Judge.</p>

<p>Error to the district court for Saline county: George W. Stubbs, Judge.</p>

<p>1. Pleading: Duress. The plea of duress as a defense to an action upon a contract is sufficient if it shows that, hy reason of threats or other unlawful means, the defendant was deprived of his free will and understanding, and that the contract sued upon was not his free and voluntary act.</p> <p>2. Instructions. Instructions examined, and held correctly given.</p> <p>3. Evidence. Evidence examined, and held sufficient to sustain the verdict and judgment.</p>

<p>Error to the district court for Custer county: Homer M. Sullivan, Judge.</p>

<p>Burglary: Evidence. The conduct and behavier of bloodhounds, after being set upon the trail of a fugitive criminal, may not be given in evidence by the state, for the purpose of proving that the scent of the accused and the scent of the person who perpetrated the crime which is being investigated are identical.</p>

<p>1. Foreclosure of Tax Lien by County. In an action brought in the district court by a county to foreclose a tax lien on real estate for delinquent taxes, the determination of the question whether or not the county could, under the statute, maintain such action, without an antecedent administrative sale by the county treasurer and the issuance to the county of a tax sale certificate as a basis for such proceedings, goes to the existence of a cause of action and not to the jurisdiction of the court.</p> <p>2. -: Decree. A decree rendered in a foreclosure proceeding 'for the sale of real estate to satisfy a tax lien, barring the equity of redemption of the owner of such property, is an adjudication of that question which can not be inquired into on objections to confirmation of sale, on the ground that the owner had not been given the time to redeem allowed by law.</p> <p>3. -: -. Where the district court has jurisdiction of the subject of the action and of the parties in a foreclosure proceeding, questions which aifect the regularity of the decree are concluded thereby. Such a decree can not be assailed for any mere irregularity upon a motion to set aside a sale made in pursuance of such decree.</p> <p>4. Decree: Irregularity: Remedy. Where a decree in foreclosure proceedings, by its terms, erroneously denies to the owner of the equity of redemption the time to redeem from sale which is allowed by law, his remedy is by a direct proceeding to obtain a reversal or modification of the decree, and not by an indirect attack thereon, by objecting to the confirmation of sale made in pursuance of the decree because of such error.</p> <p>1. Foreclosure of Tax Lieu: Decree: Right of Redemption. In a suit to foreclose a tax lien on real estate and to sell the land for the satisfaction of the taxes found to be due, a decree barring the equity of redemption, only, does not, necessarily, adjudicate the right of redemption from tax sale given by the statute or the constitution.</p> <p>a. Right of Redemption. The statutory right of redemption from tax sale differs essentially from the equity of redemption proper.</p> <p>2. -. A statutory right of redemption from sale as distinguished from the equity of redemption is usually self-executing, and to enjoy the benefit thereof, no proceedings, ordinarily, are required to be had in the courts to make such right effective.</p> <p>3. ——: Constitution. Section 3, article IX, of the constitution declares that “the right of redemption from all sales of real estate, for the nonpayment of taxes or special assessments of any character whatever, shall exist in favor of owners and persons interested in such real estate, for a period of not less that two years,” and, in the absence of statutory provisions more definitely pointing out the mode by which redemption may be made, these provisions are self-executing and secure to all whose property, as therein mentioned, may be sold for nonpayment of taxes or special assessments the right of redemption from tax sale as therein provided.</p> <p>4.-: -. The sale of lands for taxes contemplated by the constitutional provisions above mentioned refers to and embraces both administrative and judicial sales.</p> <p>5.-: Sale: Confirmation. The equity of redemption, only, being barred by the decree in the case at bar, the right to redeem from tax sale may appropriately be raised by an objection to a motion to confirm a sale made in pursuance of the decree.</p> <p>a.-: -: -. An absolute order of confirmation of a sale, made in pursuance of a decree for the sale of land for the satisfaction of taxes over objections which deprives the decree debtor of the right of redemption from tax sale given by the statute or the constitution, is erroneous.</p>

<p>1. Attachment: Aeeidavit: Amendment. The provisions of the code relating to amendments should be liberally construed, but one can not amend an affidavit in attachment so as tó state a cause of action different from that stated in the original affidavit on which the writ was issued.</p> <p>2. Justice of the Peace: Jurisdiction. The statute provides that in an action tried by a justice of the peace, where the defendant has been arrested or his property attached, the justice shall render judgment immediately on the conclusion of the trial. By taking such a case under advisement by consent of parties to a future day, in order to examine the evidence and briefs filed therein, the justice does not lose jurisdiction to render judgment.</p> <p>3. -: Error: Procedure. Where, on a petition in error, the district court reverses a judgment of a justice of the peace, it should not dismiss the case, but must set it down for trial, as provided in section 601 of the code.</p>

<p>Error to the district court for Lancaster county: Edward P. Holmes, Judge.</p>

<p>1. Heirship: Proof. Proof of heirship is not confined to- the records of the probate court alone, but may be established by the testimony of any one who knows the facts constituting such relation.</p> <p>2. Deed: Condition Running with Land. A condition in a deed conveying real estate, by which it is provided, “That no malt, spirituous or vinous liquors shall be kept or disposed of on the premises conveyed, and that any violation of this condition, either by the grantee or any person claiming rights under him or her, shall render the conveyance void, and cause the premises to revert to the grantor, his heirs and assigns,” is a valid condition subsequent which, until broken, runs with the land.</p> <p>3. -: Breach of Condition: Ejectment. On a breach of such condition the grantor, if living, or, if dead, his heirs may claim a reversion of the estate and can maintain an action in ejectment to recover it.</p> <p>4. No Waiver. Record examined, and held that such right had not been waived by either the grantor or the plaintiffs.</p>

<p>Promissory Note: Signature: Liability.' A note was signed “Globe Loan & Trust Co., H. O. Devries, Presdt., W. B. Taylor, Secy.” Held, That such note on its face shows no personal liability on the part of Devries or Taylor.</p>

<p>Appeal from the district court for Hall ¡county: John R. Thompson, Judge.</p>

<p>Error to the district court for Saunders county: Benjamin F. Good, Judge.</p>

<p>1. Tontine Company: Receives. Tlie bolder of a contract, purporting to' be for the purchase and sale of a diamond, issued by what is commonly called a tontine company, is not a stockholder in such company, and can not secure the appointment of a receiver for such company because of the mismanagement of its affairs by its officers.</p> <p>2. -: -. The holder of such a contract who has not reduced his claim to judgment, and who has no lien upon the property of the company, has no standing in a court of equity in an action to sequester or impound the assets of such company.</p> <p>3.-: Equity. Whether the holder of such a contract can have “clean hands” as required of one who seeks the aid of a court of equity, qucere.</p> <p>4. Receiver: Authority to Appoint. An order of the district court appointing a receiver for a corporation, in an action wherein such relief is the only relief sought, will be vacated for want of authority in such court to make the same.</p> <p>5. Petition: Prayer. A prayer for general relief, coupled with one for the appointment of a receiver, only, will not be considered as a prayer for relief other than such appointment, unless the petition states a good cause of action for other relief.</p>

<p>Error to the district court for Otoe county: Paul Jessen, Judge.</p>

<p>Appeal from the district court for Knox county: James P. Boyd, Judge.</p>

<p>Appeal from the district court for Lancaster county: Lincoln Frost, Judge.</p>

<p>Error to the district court for Douglas county: Benjamin S. Baker, Judge.</p>

<p>Error to the district court for Lancaster county: Albert J. Cornish, Judge.</p>

<p>Error to the district court for Hamilton county: Samuel H. Sornborger, Judge.</p>

<p>1. Mortgage: Insurance: Equitable Lien. Where the owner of real estate binds himself, in a mortgage executed thereon, to keep the premises insured for the protection and indemnity of the mortgagee, such mortgagee will have an equitable lien upon the money due on a policy taken out by the mortgagor, although the policy may run to the mortgagor alone.</p> <p>2. Assignment: Rights of Assignee. Where a mortgagee assigns a mortgage, containing a covenant on the part of the mortgagor to keep the premises insured as further security, and agreeing that the mortgagee may procure such insurance if the mortgagor fails to do so, and in his assignment guarantees the payment of the mortgage indebtedness, and, thereafter, such assignor of the mortgage becomes the owner of the mortgaged premises, and takes out insurance thereon in his own name to the full amount of the insurable interest of the mortgaged property, and a loss occurs while his liability as guarantor of the mortgaged debt is still in full force, the then owner of the mortgage will have an equitable lien on the proceeds of the policy to the extent of his interest in the property destroyed by the fire.</p> <p>3. Statute of Limitations. The fact that the statute of limitations had barred a personal action against the assignor on his guarantee of payment when suit was commenced by the assignee to establish her claim to the proceeds of the policy, does not in any manner release or impair her equitable lien upon such proceeds.</p>

<p>1. Proof of Agency. Agency can not be proved by tbe acts or declarations of the alleged agent not brought home to the principal.</p> <p>2. Evidence. Evidence examined, and held not. to support the finding and judgment.</p>

<p>Appeal from the district court for Holt county: William H. Westover, Judge.</p>

<p>Error to the district court for Lancaster county: Edward P. Holmes, Judge.</p>

<p>Original applications for units of mandamus to the tax commissioner of the city of Omaha.</p>

<p>Appeal from the district court for Madison county: John S. Robinson, Judge.</p>

<p>Error to the district court for Cass county: Paul Jessen, Judge.</p>

<p>Error to the district court for Furnas county: Hanson M. Grimes, Judge.</p>

<p>Error to the district court for Dodge county: James A. G-rimison, Judge.</p>

<p>Appeal from the district court for Jefferson county: John S. Stull, Judge.</p>

<p>Instruction: Pbooi’. The expression “unequivocal evidence,” in the syllabus and opinion in McCoy v. Conrad, 64 Neb. 150, was intended as the equivalent of “evidence of an unequivocal act or conduct.” A simple preponderance of the evidence is all that is required to maintain an issue of fact in a civil action.</p>

<p>1. County Court: Practice. Section 11, chapter 20, Compiled Statutes, providing that “the rules of practice concerning pleadings and processes in the district court shall he applicable so far as may be, to pleadings in the county court,” when the amount involved exceeds a justice’s jurisdiction, held, to authorize a summons in the form allowable in district court in such cases.</p> <p>2. Summons. It is not necessary to state the nature of the action in a district court summons. German Ins. Go. v. Frederick, 57 Neb. 538. Consequently it is not necessary in county court eases above a justice’s jurisdiction.</p>

<p>1. Street Kailway: Negligence. Negligence of plaintiff in driving across a street railway track without stopping to look and listen, will not excuse the company from its duty to use reasonable diligence to stop its car after discovering the perilous situation, and if its failure to do so, after seeing the danger, directly and immediately causes an injury to him, the company may be held liable for such injury.</p> <p>2. Question of Fact for Jury. Where the evidence is fairly conflicting, the question as to the direct and proximate cause of an alleged injury is one of fact for the determination of the jury.</p> <p>3. Experiments: Evidence. Proof of an experiment, without establishing the fact that the person who made the experiment is competent to do so, and that the apparatus used was of the kind and in a condition suitable for the experiment, and that it was honestly and fairly made, is without probative force.</p> <p>4. Witness: Competency. A witness who sees a moving car, and possesses a knowledge of time and distance, is competent to express an opinion as to the rate of speed at which the car was moving.</p> <p>5. Pleading: Evidence. Evidence of an ordinance of a city, regulating the rate of speed of street railway cars, is admissible under a general averment of negligence.</p>

<p>Settlement: Avoidance: Burden of Proof. The burden of proof is upon the party admitting a settlement to establish the facts relied on in avoidance thereof.</p>

<p>1. Error: Continuance. Action of the trial court in refusing a continuance examined, and held not error.</p> <p>2. Judgment: Bab. Judgment in Linton v. Oathers, ante, p. 598, held not a har to the action in the instant case.</p> <p>3. Error: Rulings. Action of the trial court in the admission and exclusion of evidence examined, and held not error.</p>

<p>Appeal from the district court for Nuckolls county: Lee -S. Estelle, Judge.</p>

<p>1. County Officer: Accounting. A county officer is not required to account for and pay over to his county money received by him in payment for services performed for another, by private agreement, which are no part of the duties of his office, and which are not incompatible with, and are not included within, his official duties.</p> <p>2. -: Duties. It is no part of the official duties of a register of deeds to search the records of his office, to ascertain whether persons signing a petition to obtain a liquor license are freeholders. '</p> <p>3. -: Compensation. Such officer may, by agreement, perform such services for persons who, under the rules of the excise board of a city, are required to make proof of the qualifications of such signers by his certificate, and may collect and receive such compensation as may be agreed upon therefor.</p> <p>4. -: Accounting. In such a case, he must place the fee for his certificate and seal on his fee book, and account for and pay the same over to the county, if in excess of the salary allowed him by law; but he can not be compelled to account for and pay over the amount received by him for his labor in searching the records.</p>

<p>1. Administrator: Discharge. An executor or administrator may resign-or may be removed for cause, but a county court has no authority to discharge such officer from his trust, merely upon the settlement of what is called a final account.</p> <p>2. -: -: Trust. The trust of such officer is a continuing one, and his formal discharge, in a decree upon final accounting, does not destroy the relation, but merely discharges him from liability for the past.</p> <p>3. Contingent Claim. A contingent claim does not become absolute, within the meaning of the decedent’s act, until it becomes a claim proper to be presented to the county court for final adjudication as a claim against the estate.</p>

<p>Error to the district court for Lancaster county: Edward P. Holmes, Judge.</p>

<p>Error to the district court for Hamilton county: Samuel H. Sórnborger, Judge.</p>

<p>Error to the district court for Cedar county: Guy T. Graves, Judge.</p>

<p>Error to the district court for Douglas county: Willard W. Slabaugh, Judge.</p>

<p>Error to the district court for Washington county: George A. Dat, Judge.</p>

<p>1. Parol Trust. A trust in personal property may be created by parol.</p> <p>2. Assumpsit. Wherever one person has money to which in equity and good conscience another is entitled, the law creates a promise by the former to pay it to the latter and the obligation may be enforced by assumpsit.</p> <p>3. Trust: Action Against Estate. Where a son constituted his father beneficiary in a fraternal life insurance beneficiary certificate for the purpose of indemnifying the father against loss by reason of having signed an obligation for the son, and afterwards the liability of the father is discharged by the son, and a request made by the son that the money named in the certificate go to his infant daughter, which was agreed to by the father, and after the death of the son the father collects the money as beneficiary, and after its receipt declares that it is for the child and that it is to go to her, these facts constitute the father a trustee of the fund for the use and benefit of the child. The fund still being in his possession at the time of his death, the same may be recovered from his estate by the child in an action for money had and received.</p>

<p>Error to the district court for Lancaster county: Edward P. Holmes, Judge.</p>

<p>Constitutional Law: Peddlers: License. Sections 62, 63 and 64, article I, chapter 77 of the Compiled Statutes of 1903, providing for the licensing of peddlers^ and denouncing a penalty for their violation, are not void as being in contravention either of the constitution of this state, or of the constitution of the United States, but they are inapplicable to transactions constituting interstate commerce.</p>

<p>Mortgage: Foreclosure: Redemption. Redemption from a decree of foreclosure and from a sale thereunder for taxes, by a mortgagor who bas covenanted that, upon bis default in tbe payment of taxes, bis mortgagee may pay tbem and add tbe amount to the mortgage debt, will both discharge tbe decree of foreclosure and tbe sale pursuant to it, and satisfy tbe lien of tbe tax. Redemption by the bolder of such mortgage will discharge tbe decree of foreclosure and tbe sale thereunder; but a lien for tbe redemption money and interest will subsist for tbe protection of bis security in accordance with tbe covenants of tbe instrument.</p> <p>1. Right of Redemption: Res Judicata. An interlocutory order entered on a former appeal of this case considered, and held not to be res judicata as to the rights of the parties to redeem land from a decree rendered in the action and sale made in pursuance thereof so as to become the law of the case.</p> <p>'2. -. The statutory right 'of redemption from sale differs essentially from the equity of redemption proper; it is usually self executing, and to enjoy the benefit thereof, no proceedings are ordinarily required to be had in the courts to make such right effective. This right or privilege is given by statute to the owner of the equity of redemption or his grantee.</p> <p>3. Rights of Assignee of Mortgagee Not in Issue. Whether or not the redemption of real estate by the owner of the equity of redemption or his grantee from the decree and the sale made thereunder, as effectuated, is with or without prejudice to the rights of one claiming as the assignee of a mortgagee, is not determined. This question is not within the issues raised by the application to redeem, nor is it involved in the exercise of the statutory right of redemption from a decree and a sale of real estate made in pursuance thereof.</p>

<p>Error to the district court for Adams county: Ed. L. Adajis, Judge.</p>

Original proceeding in the nature of quo warranto to determine the right of respondent to exercise the duties of county engineer.

<p>Error to the district court for Douglas county: Guy R. C. Read, Judge.</p>

<p>Error to the district court for Lancaster county: Lincoln Frost, Judge.</p>

<p>1. Election of Remedies. One who by action pursues one remedy without being chargeable with notice of facts entitling him to a different one, is not thereby estopped to pursue the latter upon discovery of such facts, if he then discontinues his action for the ' former.</p> <p>2. Remedies: Estoppel. An action for the conversion of chattels and one for the possession thereof are not inconsistent remedies; and one who has sued for conversion may dismiss such action and recover in replevin, if his right is otherwise good.</p>

<p>Error to the district court for Harlan county: Ed L. Adams, Judge.</p>

<p>1. Fraudulent Conveyance: Burden of Proof. Where a conveyance of real estate is presumptively fraudulent, the burden is on those claiming under such conveyance to show the tona fieles of the transaction. In such case, when the grantee attempts to show-payment of a consideration for the conveyance, he must also show that the money used was his own.</p> <p>2. Incorporation: Collateral Attack. Where a collection of person^ claim to have organized themselves into a corporation, the invalidity of their organization may be shown, even when questioned collaterally, by evidence that no articles of incorporation were filed as required by statute.</p> <p>T. Evidence. Evidence examined, and held not sufficient to sustain the judgment of the trial court.</p> <p>2. Corporation: Collatekal Attack. Where the law authorizes a corporation and there has been an attempt in good faith to organize, and the requirements of the statute have been eolorably complied with and corporate functions thereafter exercised, there exists a corporation de facto, which can not ordinarily be called .in question collaterally. Haas v. Bank of Commerce, 41 Neb. 754, followed and approved.</p> <p>S. Overruled. Paragraph 2 of the syllabus of the original opinion in ' ' ' this case' 'examined, and overruled.</p>

<p>Error to the district court for Boone county: John E. Thompson, Judge.</p>

<p>Appeal from the district court for Lancaster county: Edward P. Holmes, Judge.</p>

<p>1. Attachment: Fraudulent Conveyance: Action. A plaintiff who has obtained an attachment upon specific real estate in this state, and recovered judgment thereon, may maintain an action in equity to set aside a fraudulent conveyance of the real estate by the judgment defendant, without the issuing and return of a general execution upon such judgment.</p> <p>2. -: Foreign Assets: Jurisdiction. In an action in equity to set aside a fraudulent conveyance of real estate in this state, and enable the plaintiff to enforce his attachment and judgment thereon against the land, amendments to the petition, alleging that the judgment defendant had also fraudulently transferred to the same grantee all his property situated beyond the jurisdiction of the court, but not describing any of the property so transferred or otherwise identifying it, will not give the court jurisdiction to subject property and assets outside of this state to the payment of the judgment, no general execution upon such judgment having been issued and returned unsatisfied.</p> <p>3. -: Discharge in Bankruptcy. After plaintiff in attachment has recovered judgment, and an order for the sale of the attached real estate, and has begun an action in equity to set aside a fraudulent conveyance of the real estate, the. discharge in bankruptcy of the judgment defendant will not defeat such action.</p> <p>4. Action: Abandonment: Defense. If such action to set aside a fraudulent conveyance is pending for several years, it is not a defense that the holder of the legal title has made valuable improvements thereon, while the action was pending, being led by the delay in bringing the action to trial to suppose that plaintiff’s claim would be abandoned.</p> <p>5. Appeal: TAtae De Novo. Upon an appeal in equity this court will try the the issue Ae novo, and will not be influenced, in its decision by the findings of the trial' court based upon depositions or other written evidence. The conclusions of the trial court, derived from the consideration of the evidence of witnesses examined in the presence of the court, will not be regarded unless, upon the whole record, in view of the position of the trial court in weighing such evidence, they appear to be right. Faulkner v. Simms, 68 Neb. 295.</p> <p>6. Evidence. Evidence in this case found to support the general finding of the trial court.</p>

<p>Will: Remainder. A remainder in fee may tie limited to the heirs at law of one to whom, hy the same instrument, is given the precedent freehold.</p> <p>Conveyance: Suit to Set Aside: Decree fob Possession. In a suit in equity to set aside a conveyance of real estate, where the right of possession is in issue and depends upon principles of equity that must necessarily be determined by the court, it is the duty of the court to determine the right of possession and, if all parties interested are before the court, to put the party who is entitled thereto in possession.</p>

<p>Error to the district court for Custer county: Hanson M! Grimes, Judge.</p>

<p>Error to the district court for Lancaster county: Lincoln Frost, Judge.</p>

<p>Error to the district court for Kearney county: Ed L. Adams, Judge.</p>

<p>1. Decedent’s Estate: Action by Heirs. The hejrs of an insolvent estate can not prosecute an action in their individual capacity to recover newly discovered assets of the estate until the debts and costs of administration have been paid.</p> <p>2. Allowance of Claim: Dormant Judgment. The allowance of a claim against an insolvent estate is not a judgment which becomes dormant by lapse of time as against newly discovered assets of such estate.</p> <p>3. Insolvent Estate: Assets. Newly discovered assets of an insolvent estate are a trust fund in the hands of an administrator for the payment of debts and costs of administration, and do not descend to the heirs and distributees until such claims are paid.</p> <p>4. Limitation of Actions. The statute of limitations does not begin to run against a bank on a certificate of deposit payable on demand until a demand has been made.</p> <p>5. Subrogation. “A person seeking the benefit of subrogation must have paid a debt due to a third party before he can be substituted to that party’s right; and in doing this he must not act as a mere volunteer, but on compulsion to save himself from loss by reason of a superior lien or claim on the part of the person to whom he pays the debt. The right of subrogation is never accorded in ■equity to one who is a mere volunteer in paying a debt of one person to another.” Rice v. Winters, 45 Neb. 517, followed and approved.</p> <p>6. -: Evidence. Evidence examined, and held insufficient to show a right of subrogation of the sureties on notes of an intestate to a lien on money of the estate deposited in a bank to which the notes were payable.</p>

<p>Error to the district court for Merrick county: Conrad Hollenbeck, Judge.</p>

<p>Appeal from the district court for Douglas county: Charles T. Dickinson, Judge.</p>

<p>Appeal from the district court for Douglas county: Charles T. Dickinson, Judge.</p>

<p>Appeal from the district court for Lancaster county: Edward P. Holmes, Judge.</p>

<p>Foreclosure Sale: Objections to Confirmation. Technical objections on the confirmation of a judicial sale, where the matters complained of are not shown to have resulted in any prejudice to the rights of the person making the objections, should be disregarded.</p>

<p>1. Pleading: Amendment. The matter of permitting the filing of amended pleadings at any time during the trial is confided to the sound discretion of the district court and, unless it clearly appears that the court has been guilty of an abuse of such discretion, its orders in that behalf will not be disturbed.</p> <p>2. Contract: Parol Evidence. Where a contract of sale has been consummated by writing, the presumption is that the writing contains the whole contract, and in absence of fraud, mistake, or ambiguity of expression in the contract itself, parol evidence is inadmissible to change or vary its terms.</p> <p>3. New Trial. If an instruction be given, not called for by the evidence, and which appears to have a tendency to prejudice the party complaining, a new trial will be granted.</p>

<p>Error to the district court for Boone county: James N. Paul, Judge.</p>

<p>Appeal from the district court for Douglas county: Guy R. 0. Read, Judge.</p>

<p>Appeal from the district court for Thurston county: Guy T. Graves, Judge.</p>

<p>1. Appeal: Issues. A cause must be tried upon appeal upon the same issues as in the lower court.</p> <p>2. Acknowledgment: Impeachment. The evidence to impeach successfully the certificate of acknowledgment of a notary public must be clear, convincing and satisfactory that the certificate is false and fraudulent.</p> <p>3. -: Notary, Interest op. Under the facts in this case, held, that the notary public, who took the acknowledgment to the mortgage foreclosed, was not disqualified by reason of interest.</p>