MORTGAGE (Continued). 5. IMPROVEMENTS BY MORTGAGEE-WRONGFUL POSSESSION.-Where the mortgageee wrongfully takes possession of the premises mortgaged, without the consent of the mortgagor, and makes improvements thereon, which are not made with the consent or approbation of the mortgagor, no allowance can be made for such improvements. -Id. 6. CONFLICTING CLAIMS OF OWNERSHIP-ACTION TO QUIET TITLE.— The fact that the mortgagee holding under the deed claimed title to the mortgaged property, and brought an action to quiet title, does not aid him as to money expended for improvements, where he was informed by the proceedings in the action that the mortgagor denied his ownership, and insisted that the deed was given as security only, and any money expended for repairs and improvements as though he were owner, in the face of the appeal of the mortgagor from a judgment quieting title in favor of the mortgagee, cannot be allowed to him after a reversal of the judgment in a subsequent action to foreclose the mortgage.—Id. 7. RIGHTS OF MORTGAGEE IN POSSESSION-REPAIRS AND IMPROVEMENTS. To constitute a mortgagee in possession who can be allowed for repairs and improvements, the mortgagee must be in possession by reason of the agreement or assent of the mortgagor.-Id. 8. ORAL AGREEMENT FOR PAYMENT OF TAXES-FORECLOSURE—EVIDENCE. In an action to foreclose a mortgage, evidence of a contemporaneous parol agreement between the parties to the mortgage, whereby the mortgagor undertook to pay the taxes which might be assessed or levied upon the mortgage or the debt secured thereby, is inadmissible, for the purpose of defeating the mortgagor's liability for interest on the debt.-Harrelson v. Tomich, 627. 9. FORECLOSURE-INSERTING UNTAXED COSTS IN DECREE-CLERICAL MISPRISION-VALIDITY OF ORDER OF SALE.-The action of the clerk in inserting in a decree of foreclosure the amount of costs as claimed by plaintiff, before the same had been taxed or ascertained, is a mere clerical misprision, not affecting the validity of the decree in other respects, nor invalidating the order of sale issued thereon, nor affecting the validity of the sale thereunder. Janes v. Bullard, 130. 10. AMENDMENT OF DECREE AND ORDER OF SALE-TAXATION OF COSTS -CURING OF ERROR.-The decree and order of sale, being merely erroneous in the insertion of costs before taxation, are amendable in that regard, and the subsequent action of the court in taxing the costs is, in effect, such an amendment, and cures the error, and, where the property is sold under the decree as modified by the taxation of costs, and only the costs taxed are collected, there is no prejudicial error.-Id. 11. ORDER OF SALE NOT PREMATURE-FRIVOLOUS APPEAL-DAMAGES.The issuance of an order of sale before the taxation of costs is not premature, and an appeal taken after the taxation of costs from an order refusing to vacate the order of sale because the costs were inserted in the decree before taxation is without merit; and the order will be affirmed with damages.-Id. 12. APPEAL BY MORTGAGOR-SERVICE OF NOTICE-DEFAULTING CODEFENDANTS.-In an action to foreclose a mortgage, where an aver ment in the complaint, that the interest of other defendants than MORTGAGE (Continued). the mortgagor in the mortgaged property is subject to the lien of the plaintiff, is admitted by their default, and the judgment merely forecloses their interest in the property, upon an appeal taken by the mortgagor alone, it is sufficient to serve the notice of appeal upon the plaintiffs, and it need not be served upon the defaulting codefendants, who could not be affected by a reversal or modification of the judgment.-Boob v. Hall, 160. 13. DESCRIPTION OF MORTGAGED PROPERTY-CERTAINTY-SHARES OF WATER STOCK-CAPITAL STOCK OF WATER COMPANY-CERTIFICATE. Where the mortgage, in addition to the land mortgaged, described certain shares of water stock, and the complaint described the same in the same terms in which it had been described in the mortgage, the mortgagor upon appeal cannot object to uncertainty in the description; and where it does not appear that a certificate had been issued for shares of the stock of a water company, the description of it as so many shares of its capital stock, in the mortgage and in the complaint, is sufficient to identify the property mortgaged, as well as for the purpose of a sale under the judgment, and such sale will transfer any title which the mortgagor might have to shares of the capital stock for which no certificate had been issued.-Id. 14. ALLOWANCE OF COUNSEL FEES-ABSENCE OF AGREEMENT.-In the absence of an agreement for the payment of counsel fees in a mortgage the court is not authorized to include counsel fees as a part of the judgment; and where the complaint contains no aver ment of any agreement on the part of the mortgagor to pay a counsel fee, and the copy of the mortgage annexed to the complaint does not contain any such stipulation, no counsel fees can be allowed, although prayed for.-Id. 15. CHATTEL MORTGAGE-HARVESTED CROP-COMMON-LAW MORTGAGE -CHANGE OF POSSESSION.-A valid statutory chattel mortgage cannot be made upon a harvested crop, but what is frequently called "a common-law chattel mortgage" may be taken upon any species of personal property, if followed by a delivery of the property to the mortgagee, and an actual and continued change of possession, as required by section 3440 of the Civil Code.-Rohrbough v. Johnson, 144. 16. DELIVERY OF GOODS AS SECURITY-PLEDGE.-The delivery of goods to a creditor as security for a debt is not properly a common-law mortgage, nor is it a mortgage under the Civil Code, but is properly denominated a pledge, yet the question whether the instrument be called a mortgage or a pledge does not affect its efficacy as a security where there is a sufficient delivery and change of possession.-Id. 17. CONSTRUCTION OF STATUTE OF FRAUDS-RULE AS TO CHANGE OF POSSESSION.-The construction fixed by the decisions of this court upon section 3440 of the Civil Code, which requires an immediate delivery and an actual and continued change of possession upon a sale of personal property, is equally applicable to chattel mortgages, other than those authorized by statute, and the same rule must apply in determining what is an immediate delivery and an actual and continued change of possession, viz., that these questions must be determined upon the facts of each particular case.-Id. MORTGAGE (Continued). 18. MORTGAGE GIVING RIGHT OF POSSESSION-DEBT NOT DUE-DELIV◄ ERY FROM BAILEE TO MORTGAGEE-ATTACHMENT.-Where the mortgage of a harvested crop provided that, if the mortgagee should deem himself insecure, he might take possession of the property, and sell it without foreclosure, and the crop had been delivered by the mortgagor to a bailee for the purpose of being cured and made into bales, the bailee having knowledge of the mortgage, and having a lien upon the crop dependent upon possession for the value of his services in curing and baling the crop, the mortgagee may, as soon as the crop is dried and baled, pay to the bailee the amount of his charges, and lawfully take possession of the crop from him, and may maintain his right of possession as against an attaching creditor of the mortgagor, although the debt secured by the mortgage was not due.-Id. 19. LIEN OF BAILEE SUBROGATION.-The mortgagee being compelled for his own security to disclose the lien of the bailee is subrogated to that lien as against an attaching creditor of the mortgagor, and may rightfully defend the possession of the crop by virtue of such subrogation.-Id. 20. EVIDENCE-AGENCY-POWER OF ATTORNEY.-Where a note and mortgage were given to the plaintiff through his agent, the note and mortgage, together with a power of attorney from the plaintiff to the agent, are properly admitted in evidence; and the power of attorney is the best evidence of the agency.-Id. 21. INADMISSIBLE EVIDENCE-INSTRUCTIONS OF MORTGAGOR AFTER DELIVERY TO MORTGAGEE.-Instructions given by the mortgagor to a warehouseman concerning the crop after the mortgagee had taken possession are not admissible in evidence, as they could not affect the mortgagee who was rightfully in possession by express authority of the mortgagor.—Id. 22. CHATTEL MORTGAGE-GROWING CROP EXTINGUISHMENT OF LIEN -REMOVAL FROM LAND.-The lien of a chattel mortgage on a growing crop continues only as long as the same remains on the land of the mortgagor; and is prima facie extinguished when the crop is removed from the land.-Horgan v. Zanetta, 27. 23. REMOVAL TO LAND OF CREDITOR-ATTACHMENT-ESTOPPEL.-The fact that a creditor of the mortgagor who attached the crop after removal thereof from the land of the mortgagor to his land represented that the land of the mortgagor was not suited to the placing of a machine for the threshing of the crop, and requested him to take the grain on to his land as more adapted to the threshing of it, the creditor not at the time knowing of the existence of the mortgage, does not estop the creditor from attaching the grain after its removal from the land of the mortgagor to his land, notwithstanding the existence of the mortgage was known prior to the levy of attachment, it appearing that the mortgagee did not use any care and diligence in looking after the crop when harvested, or pay any attention to the grain until it had been attached nearly a month subsequently to its removal from the land of the mortgagor. -Id. See CORPORATIONS, 34; SUBROGATION. MUNICIPAL CORPORATIONS. 1. MUNICIPAL ORDINANCE-LIQUOR LICENSE-DUTY OF CITY TRUSTEES-ABSENCE OF DISCRETION-MANDAMUS.-Where the ordinance of a city entitles every man who complies with its provisions to a retail liquor license, upon written application to the trustees, and the giving of a bond conditioned to keep a quiet and orderly house, one who complies with such provisions is entitled to the license, and the trustees have no discretion to say that the license shall not be granted, and they will be compelled by mandamus to issue a license to the applicant.-Henry v. Barton, 535. 2. UNAUTHORIZED ISSUANCE OF BONDS-DEPARTURE FROM NOTICE OF ELECTION-CHANGE IN TERMS OF PAYMENT INJUNCTION.-Where a notice of election held under the act of 1889, as amended in 1891, which authorizes the incurring of indebtedness by municipal corporations for the construction of water-works and other improvements, notified the electors that the bonds to be issued were to bear annual interest at the rate of four per cent per annum, and to be payable at the office of the city treasurer, an ordinance passed after the result of the election was ascertained changing the form of the bonds so as to make them payable in the city of New York, in gold coin of the United States, with interest at four per cent per annum, payable semi-annually in gold coin, the departure in the ordinance from the notice of election is fatal to the validity of the bonds provided for in the ordinance, and the sale and delivery thereof will be enjoined.-Skinner v. City of Santa Rosa, 464. 3. DEPARTURE FROM RATE OF INTEREST.-The common council cannot depart at all from the rate of interest submitted to the voters, and a provision for the payment of interest semi-annually under a notice of election stating that interest was to be payable annually is an unauthorized increase of the rate.-Id. 4. PLACE OF PAYMENT-KIND OF MONEY-SUBMISSION TO ELECTORS. -Although the place of payment and the kind of money in which the bonds are to be paid are not necessary to be submitted to the voters, yet, if they are submitted, the vote authorizing the indebtedness to be incurred imports the particulars named as the conditions upon which the assent of the voters has been given; and, where the question arises before the bonds have been delivered, the city has no power to issue them in a form which do not substantially comply with the terms stated in the ordinance of submission and notice of election.-Id.. 5. VALIDITY OF ORGANIZATION-SUBSTANTIAL COMPLIANCE WITH STATUTE-QUO WARRANTO.-While substantial compliance with the statute in the organization of a municipal corporation is sufficient, yet, where any important provisions of the law have been violated or ignored, the corporation may be annulled at suit of the people in an action of quo warranto.-People ex rel. Boardman v. Town of Linden, 94. 6. TIME OF PRESENTING PETITION-PUBLICATION OF NOTICE-CONSTRUCTION OF STATUTE.-The proper construction of section 2 of the statute of 1883, as amended in 1889, respecting the formation of municipal corporations, does not require that the petition describing the territory to be incorporated, and signed by at least fifty qualified electors of the county, resident within the limits of such territory, should be presented to the board in the first place before the publication of notice; but it is only required to be pre MUNICIPAL CORPORATIONS (Continued). sented to the board of supervisors after two weeks' notice by publication of the time when it will be presented.-Id. OF SIGΤΟ PETITION-GENUINENESS 7. INSUFFICIENT AFFIDAVIT NATURES. An affidavit attached to a petition for the organization of a municipal corporation which merely shows that the names attached to the petition were names of qualified electors, resident within the limits of the proposed corporation, but which does not show that their signatures were genuine, is radically defective; and if it does not appear that there was any evidence offered before the board of supervisors, or before the court, of the genuineness of the signatures other than the affidavit attached to the petition, there is no evidence to sustain a finding that the petition was in fact signed by fifty qualified petitioners, and there was a failure, in a substantial particular, to comply with the statute.-Id. 8. JURISDICTION OF BOARD TO ESTABLISH CORPORATION.-It is absolutely essential to the jurisdiction of the board to make an order declaring the establishment of the corporation that a proper petition, signed by the requisite number of qualified petitioners, should be laid before them, involving proof of the genuineness of the signatures attached to the petition, and filed with it; and where no evidence was placed before the supervisors of the genuineness of the signatures of a sufficient number of qualified petitioners, and there is no finding or declaration of that fact by the board, it had no jurisdiction to declare the establishment of the corporation.Id. 9. Loss oF JURISDICTION-ADJOURNMENTS OF HEARING-HOURS NOT 11. MANNER OF GIVING NOTICE OF ELECTION-UNAUTHORIZED DELEGA- 13. COMPLETION OF CORPORATION-FILING OF CERTIFIED COPY OF ORDER |