5. FORMAL DEFECTS IN ACKNOWLEGMENTS of deeds, or the omission of
words of identification, can generally only be taken advantage of by
subsequent purchasers for value. Id.
6. OFFICERS TAKING ACKNOWLEDGMENS TO DEEDS have the right and may
be compelled at any time to correct mistakes in their certificates. Id.
7. PAROL EVIDENCE IS INADMISSIBLE TO SHOW an agreement that posses
sion under a deed is to be retained by the vendor until the purchase
price is paid, under Colorado General Statutes, chapter 18, section 9,
providing that conveyances of real estate duly executed and delivered
carry with them the right to immediate possession, unless a future day
for possession is therein specified. Omaha etc. Co. v. Tabor, 185.
8. AVOIDANCE OF, For Insanity. — A judgment creditor cannot set aside as
fraudulent a deed because of the insanity of the grantor; such deed can
only be avoided by the grantor or his privies in blood or estate. Rollet
v. Heiman, 340.
9. REFORMATION OF DEED CONVEYING HOMESTEAD. — Equity will correct a
misdescription in a deed made by mutual mistake, and executed by
husband and wife, conveying land held by them as tenants in common,
and constituting part of their homestead, when it appears that the
purchaser paid full value and the conveyance was sufficient to pass the
wife's interest, though she was ignorant of the fact that she was a part
owner of the land conveyed. Parker v. Parker, 52.
See FRAUDULENT CONVEYANCES, 1; MARRIED WOMEN, 2-4; VENDOR AND
VENDEE, 1, 2.
1. PROPERTY TURNED OVER TO DEVISEES AND LEGATEES DOES NOT CON-
TINUE TO BE SPECIFICALLY BOUND for any possible future deficiency.
Their interests vest at once, and should not be needlessly interfered
with by the executor. Frost v. Atwood, 560.
2. POWER TO COMPEL CONTRIBUTION BY DEVISEES BEING WHOLLY STATU
TORY, the statute cannot be supplemented by creating charges which it
does not authorize the probate court to make. Id.
3. EXECUTOR IS ONLY PERSON AUTHORIZED TO ENFORCE CONTRIBUTION
from devisees and legatees for the payment of debts, and he has no
power to sell or grant this authority to any one else. If he seeks relief
in the probate court, he must enforce it by execution. Id.
4. DECREE FOR CONTRIBUTION BY DEVISEES TO PAY DEBTS OF ESTATE IS
NO MORE THAN PERSONAL JUDGMENT, to be enforced by execution. Id.
See MARRIAGE AND DIVORCE.
1. WIFE'S RIGHT TO DOWER WHICH IS VESTED IN HER PRIOR TO A DI-
VORCE is not divested thereby, unless the statute has so specially de-
clared. Van Cleaf v. Burns, 782.
2. CONFLICT OF LAWS. - Statute of New York declaring that a wife shall not
be entitled to dower in any real property of her husband if a divorce is
granted in an action brought by him, is not applicable to a decree of di-
vorce rendered against her in another state, in an action there commenced
by her nusband, but based upon a cause which could not entitle him to
a divorce in New York.
3. JUDGMENT OF DIVORCE RENDERED IN ANOTHER STate does not DEPRIVE
THE WIFE OF HER RIGHT TO DOWER in the lands of which her husband
has been previously seised during the marriage, when it is not shown to
have that effect in the state where it was rendered, and the cause of di-
vorce is not one recognized by the laws of this state. Id.
See BANKS AND BANKING, 3.
1. RECLAMATION OF WET LANDS AND DRAINING OF MARSHES AND PONDS is of
public utility, and is conducive to public welfare, health, and conve-
nience. Zigler v. Menges, 357.
2. DUTY OF LOCAL TRIBUNALS AS TO PARTICULAR DITCH. — The legislature
having declared that the drainage of wet lands is a matter of public ben-
efit, nothing is left to the local tribunals beyond the duty of determining
whether a particular ditch will be of public utility, or will be conducive
to the public health, welfare, and convenience. If the particular ditch
will drain any considerable body of wet lands, it is of public utility and
benefit. Id.
3. POLICE POWER, AUTHORITY TO DIRECT DRAINAGE OF WET LANDS IS VALID
EXERCISE OF, WHEN. - Where the drainage of wet lands will promote
the health, comfort, and convenience of the public, the authority to direct
it is exercised by virtue of the police power; and the drainage act is a
constitutional and valid exercise of that power. Id.
4 ASSESSMENTS MAY BE LEVIED TO PAY EXPENSE OF DRAINAGE OF WET LANDS
wherever such drainage will promote the public health; and from the
very fact that it will accomplish this result, assessments may be author-
ized without proving what particular citizens will be beneficially affected;
it is, however, necessary to show that the land-owner will receive a
special benefit, in order to authorize the levying of an assessment.
Id.
6. EXPEDIENCY OF CONSTRUCTION OF DITCH, BY WHOM TO BE DETERMINED.
Whether it is practicable or expedient to construct a ditch upon the route
proposed is a matter to be determined by the officers to whom the
authority to locate ditches is intrusted, and their decision is not sub-
ject to review or control by the courts. Id.
6. CIRCUIT COURT MAY REMAND DRAINAGE CASE to BOARD OF COMMISSIONERS
for further proceedings in a proper case. Id.
7. COSTS IN DRAINAGE CASE.
The court does not err in refusing to include
costs made by the remonstrant in a drainage case in the cost of construct-
ing the ditch, nor in denying his motion to tax all the costs of appeal
against the petitions who have succeeded on many of the issues. Id.
6. DESCRIPTION OF LAND INSUFFICIENT TO AUTHORIZE ASSESSMENT WHEN. — A
finding that six acres of remonstrant's land will be benefited, without
stating what six acres will be benefited, is not a sufficient description to
authorize an assessment.
See CARRIERS, 17, 18; MASTER AND SERVANT, 2.
1. GRANTEE OF A RIGHT OF WAY has not only a right to the undisputed
passage at all times over the grantor's land, but also to such rights as are
necessary or incident to the enjoyment of such right of passage. The
grantee may enter upon the land and construct such roadway as he de-
sires, and keep it in repair. Herman v. Roberts, 800.
2. OWNER OF RIGHT OF WAY has a right to exclude strangers from its use,
and to restrict such use of it by the owner of the servient tenement as
is inconsistent with the enjoyment of such right of way. Id.
3. CONSTRUCTION OF A GRANT OF A RIGHT OF WAY cannot be aided by
parol negotiations; but the language of the grant itself, when uncertain
or ambiguous, must be regarded in the light of surrounding circum-
stances and the situation of the parties. Id.
4. Owner of LAND WHICH IS SUBJECT TO A RIGHT OF WAY has the right
to use his land in any way not inconsistent with the easement, and the
extent of the easement must be determined by the construction of the
grant or reservation by which it was created, aided by circumstances
surrounding the estate and the parties, which have a legitimate tendency
to establish their intention.
5. RIGHT OF WAY-OWNER OF SERVIENT LANDS MAY NOT IMPAIR OR OB-
STRUCT. - One who has granted another a right of way of a definite
width, to be used as a means of access between the latter's country seat
or residence and the public highway, has no right, when a road has been
constructed over such right of way by the grantee, to enter upon the
road and use it for carrying barn produce and other heavy loads over
it, whereby it is cut up and injured, and repairs thereon made necessary,
nor has he a right to obstruct any part of the right of way with stone or
other materials. Id.
See Co-TENANCY, 12; EXECUTIONS, 1.
See MORTGAGES, 2; Vendor and Vendee, 3,
1. PASSENGER-ELEVATOR NEGLIGENCE IN CARE OF PROOF SUFFICIENT TO
ESTABLISH. In an action for damages sustained from the giving way of
a passenger-elevator in consequence of the breaking of the cable con-
nected therewith, evidence that such cable has been so long in use as to
be seriously worn, weakened, and rendered insecure, and that such
wearing could easily have been seen if properly looked after, is sufficient
to justify the jury in finding negligence in the care and management of
the elevator. Goodsell v. Taylor, 700.
2. PASSENGER-ELEVATOR QUESTION OF NECESSITY OF EXAMINATION OF, As
TO ITS SAFETY, FOR JURY. Whether due care and prudence required
the examination of the cable of a passenger-elevator in order to ascer
tain its condition as to safety is not a question of expert evidence, but
is for the jury to determine. Id.
3. PASSENGER-ELEVATOR. - Presumption of safety of cable of a passenger-
elevator does not arise from the fact that it is not obviously dangerous,
and has been used with safety for years, nor will it be presumed that it
will continue safe for use without examination to ascertain its condition,
and if its safety may not have become impaired by wear. Id.
4 PASSENGER-ELEVATOR - RELATION BETWEEN OWNER AND PASSENGER
THEREIN. The relations between the owner and manager of a passen-
ger-elevator and those carried in it are similar to those between a carrier
of passengers and those carried by him. Such owner is required to exert
the utmost human care and foresight, and is responsible for the slightest
degree of negligence; and in case of the giving way of the elevator,
causing injury to a passenger, the burden of proof is on the owner to
show that it occurred through no fault or neglect of his. Id.
See MASTER AND SERVANT, 10, 11.
EMBEZZLEMENT.
See CRIMINAL LAW, 19, 20.
TAKING OF PROPERTY, WHAT IS. Where a city, in grading a street, raises
an embankment upon nearly thirty-five feet of the entire frontage of an
abutting lot, thereby burying a portion of the dwelling-house and barn
of the owner, this is as much a taking as to that part of the lot covered
by the embankment as though the owner had been ejected by any other
means, and is plainly within the inhibition of the constitution. And in
such a case, the law does not require the owner to wait until his prop-
erty is completely destroyed, and then turn him over to his action of
trespass to recover his damages, but equity, when appealed to, will in-
terfere to restrain the threatened destruction. Vanderlip v. Grand
Rapids, 597.
1. CONTRIBUTION BETWEEN WRONG-DOERS will be enforced in equity when
the person seeking redress is presumed not to have known that he was
doing an unlawful act. Farwell v. Becker, 267.
2. CONTRIBUTIONS BETWEEN PERSONS WHO HAVE MADE AN UNLAWFUL
LEVY. — If several persons levy upon goods under separate writs of at-
tachment, and the goods are sold by a receiver appointed for that pur-
pose, and the proceeds applied towards the satisfaction of such writs, and
an action is subsequently brought by a claimant of the goods against the
plaintffs in the writs, and a judgment recovered for the value thereof,
which one of the parties satisfies, he may maintain a suit in equity to en-
force contributions from the others in proportion to the respective amounts
collected by him and by them by means of such write. Id.
See DEEDS, 9; Pleading, 1.
1. ESTOPPEL IN ACTION FOR POSSESSION OF PERSONALTY.
action to recover possession of personal property, an affidavit is made for
the purpose of obtaining possession of such property, in which it is
specifically described, and a requisition is issued and delivered to the
coroner requiring him to take such property from the possession of the
defendant, and the defendant, to prevent the delivery of the property to
the plaintiff, gives an undertaking in favor of the plaintiff, reciting that
the coroner has taken all the property described in the affidavit, and
that the defendant requires the return thereof to him, and that the
sureties become bound to the plaintiff for the delivery of the property to
him, if delivery thereof should be adjudged, the defendant is estopped,
on the trial, from contending that a part only of the property was in his
possession when the action was begun, and was seized by the coroner.
Martin v. Gilbert, 823.
2. EQUITABLE ESTOPPELS MUST BE MUTUAL. Where, therefore, a compro-
mise agreement is affected between plaintiff and defendants, in which
railroad bonds involved in the compromise are represented to plaintiff to
be worth only sixty cents on the dollar, and are so estimated to the set-
tlement, the fact that, a few days after the execution of the compromise
agreement, they are used by defendants to pay the indebtedness of one cor.
poration to another at a valuation of ninety cents on the dollar does not
amount to a fraud upon the plaintiff, nor constitute an equitable estoppel
preventing the defendants from claiming that they were not worth ninety
cents at the time of the compromise, it appearing that the defendants
practically dealt with themselves in the transaction, and rated the bonds
at what they supposed they would become worth in the future, the trans-
action being merely a temporary mode of settling up a corporate obliga-
tion, and the plaintiff not being in any way bound by the transaction.
Colton v. Stanford, 137.
3. EFFECT OF MISREPRESENTATION NOT RELIED UPON BY PARTY TO WHOM
MADE. -The rule that where a party to a contract, without belief or
without information, makes a representation which is not true, he is as
responsible as if he had knowledge of its falsity, where the other party
has acted upon such representation, relying upon it as correct, does not
apply where such party, discarding the representation as unworthy of
belief, proceeds to inquire for himself, is given full and fair facilities for
informing himself, and finally acts upon his own judgment and that of
his advisers. Id.
See BANKS AND BANKING, 5; CORPORATIONS, 9, 21-23; JUDICIAL SALES,
5, 6; Landlord and Tenant, 7; Married WOMEN, 2, 3; NEGOTIABLE
INSTRUMENTS, 20, 21.
1. RES GESTA, EVIDENCE ADMISSIBLE AS PART OF. - Declarations made
contemporaneously with or immediately preparatory to a particular
litigated act, which tend to illustrate and give character to the act in
question, are admissible as part of the res gestœ. Where, therefore, in
an action to recover for an alleged breach of a contract of hiring, the
disputed question is whether the hiring was for a year or for an in-
definite period, a letter written by the defendants to the plaintiff on the
day before the hiring, containing a declaration that the writers desired
to see plaintiff the next day, with a view of securing his services for the
coming year as foreman, though not received by the plaintiff till the day
after the contract was completed, is admissible in evidence as corrobora.
tive of the plaintiff's version of the contract. Hinchcliffe v. Koontz, 403.
2 HEARSAY.-SURGEON WHO ATTENDED AN INJURED PARTY may give in
evidence such party's statements as to the nature and location of the
pain from which he was suffering. Wabash County v. Pearson, 325.
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