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CHAPTER 16.-FIRE COMPANIES.

Secs. 1779 to 1781. "An act to exempt firemen from jury, militia, and road duty." 1867 (Ter.), p. 16. In force February 18.

1779. All members in good standing in any fire company, or hook and ladder company, in this state, and all persons who have been members of such company in good standing for five consecutive years in the state of Nebraska, shall be exempt from serving upon grand and petit juries of justice of the peace courts of this state, and from militia duty in time of peace, and from the assessment of any poll tax.

Amended 1871, p. 131; 1873, G. S., p. 390.

1780. [Numbers limited-Fire company defined.]-No fire company shall have upon its rolls at one time more than seventy-five persons, and no hook and ladder company shall have upon its rolls at any one time more than fifty members; and the foreman and secretary of every such company shall, on the first days of April and October in each year, file in the office of the clerk of the district court in and for the respective counties a certified copy of the rolls of their respective companies, so as to obtain for the members thereof the privilege of the exemption herein named; Provided, That no organization shall be deemed to be a bona fide fire, or hook and ladder company until it shall have procured for active service apparatus for the extinguishment or prevention of fires, in case of a fire company to the value of $1,500, and of a hook and ladder company to the value of $500. Amended 1873, G. S., p. 390.

1781. Members in good standing are hereby defined to be those who keep their dues promptly paid up, and are present and render active service when called out for the legitimate purposes of their organization.

Sec. 1782. "An act to exempt from sale on execution property used and kept to extinguish fires." 1869, p. 17. In force January 22.

1782. That all fire engines, hose, hose carriages, ladders, buckets, and all vehicles, machinery, and appliances of every kind used or kept by incorporate cities, villages, or fire companies for the purpose of extinguishing fire be and the same is hereby exempt from execution and sale to satisfy any debt, judgment, or decree arising upon contract or otherwise; Provided, That the provisions of this act shall not affect any voluntary lien created by bill of sale, mortgage, or otherwise, on such property, by the proper owner; Provided further, That the provisions of this act shall not apply to, or in any way affect the remedy upon any contract now existing, or judgment rendered upon any contract in any court of this state.

CHAPTER 17.-FRAUDS.

FRAUDULENT CONVEYANCES AND CONTRACTS RELATIVE TO REAL ESTATE. Secs. 1783 to 1807 originally formed secs. 60-84, ch. 45, R. S. 1866, entitled "Real Estate." 1783. Every conveyance of, or charge upon, any estate or interest in lands, or the rents and profits thereof, made or created with intent to defraud prior or subsequent purchasers for a valuable consideration, shall, as against such purchasers, be void.

Deed to bona fide purchasers for value without notice good. 6, 100. Statute does not render a contract void but voidable. It does not require a party to ignore considerations of moral obligation, equity, and good faith by pleading it; and a creditor cannot do so. 11, 223 (9 N. W., 52); 8, 114. The statute will not enable one who has accepted a conveyance of land to escape paying for it simply because the contract of purchase rested in parol. 14, 177 (15 N. W., 318).

1784. No such conveyance or charge shall be deemed fraudulent in favor of a subsequent purchaser, who shall have actual or legal notice thereof at the time of his purchase, unless it shall appear that the grantor in such conveyance, or person to be benefited by such charge, was privy to the fraud intended.

1785. No estate or interest in land, other than leases for a term not exceeding one year, nor any trust or power over or concerning lands, or in any manner relating thereto, shall hereafter be created, granted, assigned, or surrendered, or declared, unless by act or operation of law, or by a deed of conveyance in writing, subscribed by the party creating, granting, assigning, surrendering, or declaring the

same.

Deed, if properly executed and delivered, is valid between the parties and persons having notice of it although not acknowledged or recorded. 12, 155 (10 N. W., 545). A letter from a principal to his agent directing a sale of his land, is sufficient authority for the agent to sell. 14, 291 (15 N. W., 234). Part payment of the purchase price of real estate is not such part performance as to take an oral contract of sale out of statute. 17, 52 (22 N. W., 111). A parol notice of a surrender of a lease inadmissible. 7, 74. A lease signed by agent is good. 17, 124 (22 N. W., 346). Agreement between judgment creditor and debtor, that in case former purchased at judicial sale land on which his judgment was a lien, he would satisfy judgment therefrom, and restore surplus, if any, to debtor, is sufficient to create a trust. 29, 324 (45 N. W., 634). See 1, 52.

1786. The preceding section shall not be construed to affect in any manner the power of a testator in the disposition of his real estate by a last will and testament, nor to prevent any trust from arising or being extinguished by implication or operation of law.

1787. Every contract for the leasing, for a longer period than one year, or for the sale of any lands, or any interest in lands, shall be void unless the contract, or some note or memorandum thereof, be in writing, and signed by the party by whom the lease or sale is to be made.

While a parol lease for two years is void, yet if the tenant enter into possession it is valid as a lease for one year 13, 6 (12 N. W., 820). Agreement need only to be signed by the party to be charged by it. 12, 552 (11 N. W., 732). An oral acceptance of the option to purchase in a properly executed lease is not within the statute. 25, 517 (41 N. W., 360). Between parties agreement not within the statute of frauds. 8, 389 (2 N. W., 729). See 20, 662 (31 N. W., 370). 19, (541 26 N. W., 248).

1788. Nothing in this chapter contained shall be construed to abridge the powers of the court of chancery to compel the specific performance of agreements in cases of part performance.

Contract must be clearly established and must unequivocally relate to the identical contract set up. 3, 214. Courts will not decree specific performance for the conveyance of homestead right before settler has obtained a patent therefor. Such a contract is against public policy and courts will not enforce. 2, 124. Courts will not at all times decree specific performance. 9, 424 (2 N. W., 748).

FRAUDULENT CONVEYANCES AND CONTRACTS RELATIVE TO GOODS, CHATTELS, AND THINGS IN ACTION.

1789. All deeds of gift, all conveyance, and all transfers or assignments, verbal or written, of goods, chattels, or things in action, made in trust for the use of the person making the same, shall be void as against the creditors, existing or subsequent, of such person.

1790. In the following cases every agreement shall be void unless such agreement, or some note or memorandum thereof, be in writing, and subscribed by the party to be charged therewith: First-Every agreement that by its terms is not to be performed within one year from the making thereof. Second-Every special promise to answer for the debt, default, or misdoings of another person. Third-Every agreement, promise, or undertaking made upon consideration of marriage, except mutual promises to marry. Fourth-Every special promise by an executor or administrator to answer damages out of his own estate.

Promise held void under second clause. 10, 364 (6 N. W., 430). Assignment in blank of real estate contracts void. 29, 129 (45 N. W., 269). Evidence showed a direct promise to pay for goods furnished another, given before delivery, the latter being made upon the faith of the promise, which was therefore an original undertaking. 27, 667 (43 N. W., 420). Parol contract to pay a tenant for certain improvements placed on real estate, not void where there was nothing to prevent it being performed in less than a year. 24, 133 (37 N. W., 939). Promise to pay the debt of another as a part of the consideration of property purchased need not be in writing. 12, 69 (10 N. W., 538). Deed and other writings undelivered not sufficient memorandum to take a contract out of the statute. 24, 87 (38 N. W., 22). When the leading object of a party promising to pay the debt of another is to promote his own interests, and not to become a guarantor, it will be valid though not in writing. 14, 201 (15 N. W., 233). Promise of agent in possession of goods of insolvent, in satisfaction of principal's debt, to pay claim of another if he will not disturb him in such possession, not within the statute. 24, 655 (39 N. W., 844). See 16, 17 (19 N. W., 454); 18, 567 (26 N. W., 360); 26, 219 (41 N. W., 1006).

1791. Every contract for the sale of any goods, chattels, or things in action, for the price of fifty dollars or more, shall be void unless-First-A note or memorandum of such contract be made in writing, and be subscribed by the party to be charged thereby; or, Second-Unless the buyer shall accept and receive part of such goods or the evidence, or some of them, of such things in action; or, Third-Unless the buyer shall, at the time, pay some part of the purchase money.

Object not to avoid sales but to provide specified proofs in order to enforce them. 9, 180 (2 N. W., 372). The defense given by this section is personal and cannot be interposed by strangers to the agreement. 10, 420 (6 N. W., 475).

1792. Whenever goods shall be sold at public auction, and the auctioneer shall, at the time of sale, enter in a sale book a memorandum specifying the nature and price of the property sold, the terms of the sale, the name of the purchaser, and the name of the person on whose account the sale is made, such memorandum shall be deemed a note of the contract of sale within the meaning of the last section.

1793. Every sale made by a vendor of goods and chattels in his possession or under his control, and every assignment of goods and chattels, by way of mortgage or security, or upon any condition whatever, unless the same be accompanied by an immediate delivery, and be followed by an actual and continued change of possession, of the things sold, mortgaged, or assigned, shall be presumed to be fraudulent and void, as against the creditors of the vendor, or the creditors of the person making such assignment, or subsequent purchasers in good faith; and shall be conclusive evidence of fraud unless it shall be made to appear on the part of the persons claiming under such sale or assignment that the same was made in good faith, and without any intent to defraud such creditors or purchasers.

Mortgage of goods with possession and power of sale in the mortgagor void as against his creditors. 6, 399. Chattel mortgage good between parties but void as to creditors and subsequent

purchasers in good faith. 8, 378. When fraud presumed. 20, 171 (29 N. W., 292). Chattel mortgage is prima facie traudulent. Burden of showing that it is not, is on mortgagee. 13, 263 (13 N. W., 279). Sale void unless accompanied by delivery; presumed to be void. 6, 219; 9, 50 (2 N. W., 461). Retention of possession prima facie evidence of fraud. Burden of proving the sale fair and bona fide is on vendee. 11, 118 (7 N. W., 535), and 14, 393 (15 N. W., 734); 11, 122 (7 N. W., 755); 25, 8 (41 N. W., 123). Delivery of possession of goods sold not necessary to protect purchaser from creditors of seller if purchase made in good faith. Posession only prima facie fraud which is a question of fact. 6, 333. Delivery sufficient when property is separated and counted, though left in charge of vendor, and on his farm, which had been leased to vendee. 27, 421 (43 N. W., 254). A failing debtor may secure one creditor by mortgage and hold possession without violation of this section. 18, 225 (24 N. W., 685). Question of fraud, how raised. 7, 138. The question of fraud can be raised only by creditors and purchasers. Creditors cannot raise it without first obtaining a judgment or process of some sort against the property; and purchasers cannot without first establishing their own good faith. 13, 77 (12 N. W., 926). The term "creditors" includes all persons who are creditors of the vendor at any time while the goods remain in his possession or under his control. 14, 394 (15 N. W., 734). See 12, 585 (12 N. W., 101).

1794. The term "creditors," as used in the last section, shall be construed to include all persons who shall be creditors of the vendor or assignor at any time whilst such goods and chattels shall remain in his possession or under his control. See 12, 586 (12 N. W., 101).

1795. Nothing contained in sections ten and eleven [1392-3] shall be construed to apply to contracts of bottomry or respondentia, nor to assignments or hypothecations of vessels or goods at sea, or in foreign ports, or upon the waters of a navigable stream, if the assignee or mortgagee shall take possession of such vessels or goods as soon as may be after the arrival thereof.

1796. Every mortgage or conveyance intended to operate as a mortgage of goods and chattels hereafter made, which shall not be accompanied by an immediate delivery and be followed by an actual and continued change of possession of the things mortgaged, shall be absolutely void as against the creditor of the mortgagor, and as against subsequent purchasers and mortgagors in good faith, unless the mortgage, or a true copy thereof, shall be filed in the office of the county clerk of the county where the mortgagor executing the same resides, or in case he is a non-resident of the state, then in the office of the clerk of the county where the property mortgaged may be at the time of executing such mortgage, and such clerk shall endorse on such instrument or copy the time of receiving the same, and shall keep the same in his office for the inspection of all persons; and such mortgage or instrument may be so filed, although not acknowledged, and shall be valid as if the same were fully spread at large upon the records of the county.

All after* added 1879, p. 107. Good between parties and those having notice, though unwritten. 22, 115 (34 N. W., 111); 8, 4. Good between parties though not filed, but void as to creditors and purchasers in good faith. 21, 702 (33 N. W., 254). A trifling mistake in copy filed will not vitiate it. 16, 461 (20 N. W., 632). When filed in county where mortgagor resides not necessary to file in county to which mortgagor removes. 20, 555 (31 N. W., 367). When so filed it is a part of the record and a certified copy admissible in evidence. 25, 360 (41 N. W., 192). When in form a bill of sale with defeasance clause, and executed bona fide, though unfiled, valid against subsequent mortgagees with actual notice. 29, 209 (45 N. W., 624). Party purchasing property before mortgage is recorded is presumed to be a bona fide purchaser, and burden is on other party to show he is not. One purchasing from a bona fide purchaser is not liable for conver sion. 12, 51 (10 N. W., 535). Unless filed, void as to creditors and subsequent purchasers in good faith. 3, 76. Description of property contained. 21, 198 (31 N. W., 511). Legal presumptions are against the bona fides of mortgages where mortgagors remain in possession of the property with power of sale in the usual course of trade, yet they may be shown by competent evidence that they were made in good faith. 22, 157 (34 N. W., 353). Law as it was in 1875 cited and construed. 11, 496 (9 N. W., 640). Law of 1877 cited, and held that failure to index mortgage did not render it invalid. 11, 501 (9 N. W., 654). Effect of senior mortgagee fraudulently releasing a part of the property. 11, 504 (9 N. W., 654). See 2, 252; 3, 137; 13, 263 (13 N. W., 279); 20, 389 (30 N. W., 269); 24, 63 (37 N. W., 688).

1797. Such clerk shall also enter in a book to be provided by him for that purpose the names of all the parties to such instrument, arranging the names of such mortgagors alphabetically, and shall note thereon the time of filing such in

strument or copy. Such mortgage when satisfied shall be discharged by an entry by the mortgagee, his agent or assignee, on the margin of such index, which shall be attested by the clerk without fee; Provided, also, That the county clerk may discharge a mortgage on the presentation or receipt of an order in writing, signed by the mortgagee thereof and attested by a justice of the peace or some officer with a seal. Any mortgagee, assignee, or their legal personal representatives, after full performance of the conditions of the mortgage, who for the space of ten (10) days after being requested shall refuse or neglect to discharge the same as provided in this section, shall be liable to the mortgagor, his heirs or assigns, in the sum of fifty (50) dollars damages; and also for all actual damages sustained by the mortgagor, occasioned by such neglect or refusal, said damages to be recovered in the proper action.

Amended 1879, p. 108; 1885, p. 260. Tender of amount due on note secured by chattel mortgage divests lien thereof. 24, 634 (39 N. W., 786). Mortgagee cannot withdraw original from files and foreclose. 24, 596 (39 N. W., 615).

1798. Every such mortgage shall cease to be valid as against the creditors of the person making the same, or subsequent purchasers or mortgagees in good faith, after the expiration of five years from the filing of the same copy thereof. Every such clerk shall be entitled to receive the following fees for services under the provisions of this chapter: For filing such instrument or copy thereof, ten (10) cents; for entering the same in a book, ten (10) cents; and for certified copies of such instruments so filed as aforesaid, for every one hundred words, ten (10) cents. Rewritten 1879, p. 108.

1799. Every conveyance or assignment, in writing or otherwise, of any estate or interest in lands, or in goods or things in action, or of any rents or profits issuing therefrom, and every charge upon lands, goods, or things in action, or upon the rents and profits thereof, made with the intent to hinder, delay or defraud creditors or persons of their lawful rights, damages, forfeitures, debts, or demands, and every bond or other evidence of debt given, suit commenced, or decree or judgment suffered, with the like intent as against the person so hindered, delayed, or defrauded shall be void.

"As against the person so hindered, delayed, and defrauded," excludes volunteers and those who have no interest in the subject-matter. 28, 581 (44 N. W., 732). Preference of bona fide creditor not fraudulent. 24, 375 (38 N. W., 793). Mortgage is fraudulent when given by a failing debtor on all his goods to one creditor for a small debt, and to the prejudice of other creditors. 29, 79 (45 N. W., 265); 29, 111 (46 N. W., 922). Fraudulent transfer made by grantor and being carried into effect by his executor and grantee who is insolvent will be restrained by injunction pending action. 6, 503. It must be clearly shown that purchaser was ignorant of the fraudulent intent and purpose of the vendor in order to set aside sale. 22, 815 (36 N .W., 465.) Deed executed by one free from debt, but concealed and not recorded, will not be upheld as against subsequent creditors. Conveyance through another between husband and wife upheld to extent of actual consideration. 27, 597 (43 N. W., 411). Creditors not entitled to increment of property fraudulently transferred. 27, 264 (42 N. W., 1035). See 7, 24; 27, 522 (43 N. W., 356).

1800. Every grant or assignment of any existing trust in lands, goods, or things in action, unless the same shall be in writing, subscribed by the party making the same, shall be void.

What constitutes fraudulent assignment. 7, 433.

1801. Every conveyance, charge, instrument, or proceeding declared to be void, by the provisions of this chapter, as against creditors or purchasers, shall be equally void against the heirs, successors, personal representatives, or assignees of such creditors or purchasers.

1802. The question of fraudulent intent in all cases arising under the proVisions of this chapter shall be deemed a question of fact, and not of law, and

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