is only required in order that such mortgage may be entitled to be filed
in the office of the register of deeds of the proper county, and operate
as constructive notice to creditors, subsequent purchasers, and incum-
brancers who have no actual notice of such mortgage. Id.
14. Section 4374, Comp. Laws, provides only for the manner and mode of a
foreclosure by sale of persona! property which has been mortgaged.
First Nat'l Bank of DeSmet v. Northwestern Elevator Co., 409.
15. A sale of part of the property mortgaged does not discharge the lien
on the mortgaged property unsold. Id.
16. Until the debt for which the property was hypothecated is paid the
mortgage lien continues, subject to the provisions of the statute. Id.
17. Where a mortgagor has surreptitiously hidden, secreted or sold some of
the property mortgaged, so that the mortgagee cannot find it, or make
it available at the time of the foreclosure by sale of the property found,
the mortgagee can assert his lien upon that property when found, either
in the hands of the mortgagor or another person. If found in the hands
of a third person, he can demand possession of it, and, if not surrendered
he can recover from the person who has the possession the value there-
of to the extent of his interest. Id.
18. A statutory provision requiring that a mortgage of personal property
must be signed by the mortgagor in the presence of two persons who
must sign as witnesses thereto, is met by the words "In the presence
of," and signed by two persons as witnesses thereto. When a statute
prescribes no precise form of words to be used in the certificate, it is
sufficient if the words used have the same meaning, and are in sub-
stance the same, as was intended by the statute. Id.
See Attachment, 3, 4, 5, 6.
CONDEMNATION PROCEEDINGS.
1. The power of eminent domain resides in the state as an element of its
sovereignty, and it belongs to the legislative department of the state
to determine when it may be exercised. Railroad v. City of Water-
town, 323.
2. The exercise of that power may by the same authority be delegated to
municipalities or other public agents. Id.
3. Property already devoted to public use, although held by a municipality
or other corporation, may be appropriated under the power of eminent
domain.
But in every case of claimed delegated power there is the preliminary
question whether the power claimed has really been conferred, and
that is a question for the courts. Id.
Mere general language granting the power to condemn, will not be taken
to include the power to appropriate land already subjected to a public
use, where the new use proposed will materially interfere with the
former. Id.
6. When the trial court finds upon sufficient evidence that the laying out
and opening of a public street across the tracks and depot grounds of a
railroad company would so materially interfere with the usual, proper
and necessary public use of the same by the company as to be incon-
sistent therewith, it will be held, as a matter of law, that such power
is not conferred by the general and ordinary authority given to the
municipality to lay out and open strects and to condemn land there-
for. Id.
7. Held, further, that under the evidence in this case such conclusion would
not be affected by proof of the fact that the municipality had provided
for the vacation of an existing street across said depot grounds, parallel
with the proposed new street, and a block and a half further east.
See Assessment and Taxation.
1. Where A. deposits with B. $500 cash and his note for $500, at four
months, to be in payment for a piece of land, if B. shall perfect the title
thereof in himself within 60 days, otherwise to be returned to A., a re-
newal by A. of his note is not necessarily a waiver of his right to such
return, if, at the maturity of the renewal note, the title is not thus per-
fected. Washabaugh v. Hall, 168.
2. An agreement in substance as follows: "Agreement between the under-
signed members of the board of directors of the district township of
Spirit Lake.
We, the undersigned, hereby order shipped to
us, as named below,
four copies of Yaggy's Anatomical
Studies,
* * provided a majority of said board sign this agree-
ment. We agree to pay for the above named goods when delivered, A.
D. 1889," and signed by a majority of the members of said school
township board in their individual names, with the addition of the re-
spective postoffice address of each, is the individual contract of the
persons signing it. Western Publishing House v. Murdick, 207.
3. An answer to an action upon such an agreement, alleging "that at the
time said paper was signed, these defendants were members of the
school board of Spirit Lake township, in said county and state, and
that said paper was signed by the defendants as members of said board,
and in no other capacity whatever, and that their act in signing said
paper was never ratified by such board of said school township," does
not state facts sufficient to constitute a defense to the action. Id.
4. When a special contract is entered into for the sale and delivery of per-
sonal property, a substantial performance by the vendor is a condition
precedent to his right of action against the vendee for the price of any
part of the property delivered under the contract. D. M. Osborne &
Co. v. Martin, 297.
5. The plaintiff, through his local agent, agreed to sell and deliver to the
defendant a seven foot binder, or a seven foot platform, to be attached
to a six foot machine, which the defendant was permitted to take and
use until the seven foot binder, or seven foot platform, should be re-
ceived. Plaintiff failed to deliver the seven foot binder, or seven foot
platform. Held, that plaintiff was not entitled to recover on the note,
though the defendant still had the six foot machine in his posses-
sion. Id.
At about the time said agreement was made, the plaintiff, not having a
seven foot binder on hand, permitted the defendant to take a six foot
binder to use until the seven foot machine should be delivered, or a
seven foot platform delivered to be attached to the six foot machine.
The defendant used the six foot machine two seasons, and had it in his
possession at time of trial; but on several occasions he had offered to
return it, and receive the seven foot machine, and at all times insisted
on the delivery of the seven foot machine, or seven foot platform for
the six foot machine. Held, that the retention of the six foot machine
under the evidence, was no waiver of the delivery of the seven foot
machine or platform. Id.
7. One who has contracted for the purchase of a certain tract of land cannot
be required to accept a deed for the same, when the vendee has no title
reasonably free from doubt to one-half of the same. Before such ven-
dee can be required to accept the land, the vendor must be able to con-
vey all, or substantially all, the land he has contracted to sell, by a
title reasonably free from doubt. Black Hills National Bank v. Kel-
logg, 312.
An action on a joint and several obligations against two defendants, only
one of whom appeared and answered in the action, can be tried, and
verdict and judgment rendered for or against the party answering,
without regard to the proceedings against his codefendant, who failed
to appear in the action; and such trial, verdict and judgment, without
reference to such codefendant, will be regular and proper. Id.
Where father and son enter into an agreement with G. by which they
agree to convey to G. a tract of land in Nebraska owned by the father,
and a tract of land in South Dakota owned by the son, and by the same
agreement G. agrees to convey to the father and son a tract of land in
Kansas on which there is a $6,000 mortgage, and in which agreement
there is a recital: "Whereas, there is now a mortgage upon said above
described land
for six thousand dollars ($6,000,) which said
second party [G.] is to cause to be paid off and discharged,"-held, that
this constitutes a distinct admission that G. had agreed to pay off said
mortgage on the Kansas land as a part of his contract, and that a fail-
ure to so pay off the mortgaee by G. and a denial of his liability to pay
off said mortgage, entitled the father and son to rescind the contract.
Fletcher v. Arnett, 615.
10. Said agreement contained the following clause, in substance: "But in
case said G. shall fail to deliver a release of the mortgage, and a re-
ceipt for $1,040 cash, to the parties with whom deed was to be depos-
ited, on or before the first day of July, 1891, then the said G's right to
said [Nebraska] land shall be forfeited, and the same shall be returned
to the father." Held, that under this clause G. could not relieve him-
self from his liability, to pay off and discharge the $6,000 mortgage, as
a part of his contract, by a failure to deliver a release and to pay the
$1,040, and permitting the deed to the Nebraska land to be returned to
the father, and that a failure by G. to pay off the mortgage and $1,040
cash entitled the father and son to rescind the contract. Id.
11. By the terms of said agreement the said G. agreed to convey to the said
father and son, or to such persons as they might direct, "by good and
sufficient warranty deed," the Kansas land, without any clause except-
ing from such warranty the $6,000 mortgage. Held, that a deed con-
taining a warranty of title, and against incumbrances "excepting a
mortgage for $6,000," did not comply with the terms of the agreement,
and the exception inserted was without authority, and the parties were
under no obligation to accept the same. Id.
12. A contract on the part of father and son to convey land owned by the
father individually, and land owned by the son individually, to a party
who agrees to convey a tract of land on which there was a mortgage,
but who agrees to pay off and discharge said mortgage and pay $1,040
cash, constitutes an entire contract, although there may be a clause in
the contract that in case the mortgage is not paid off, and the $1,040
cash not paid, the deed to the land conveyed by the father shall be re-
turned, and the party's right to such land be forfeited. The forfeiture
clause does not relieve the party from his express contract to pay off
the mortgage. Id.
1. The burden of proving contributory negligence on the part of the plain-
tiff rests upon the defendant, unless the plaintiff, in making out his
case, prove, or give evidence tending to prove, that he was guilty of
such contributory negligence; and when there is no evidence upon the
subject it is the duty of the court to assume that the plaintiff was not
guilty of such contributory negligence, and so instruct the jury. Smith
v. Railroad, 71.
Foreign, see Foreign Corporations; De facto, see Foreign corporations, 6; As-
signments for Benefit of Creditors by, see Assignments for Benefit of
Creditors, 2, 3, 4, 5, 6, 7.
1. The capital stock of every corporation is a trust fund for the payment of
its debts, and its creditors have the right of priority of payment over
any stockholder. South Bend Toy Mfg. Co. v. Pierre F. & M. Ins. Co.,
173.
2. Judgment creditors of a corporation may sustain an action as in equity
to reach and apply concealed assets or misappropriated property, the
same as against individual debtors; but, where a receiver for such cor-
poration is duly appointed, the right to bring such action passes to
him. Id.
3. Proceedings supplementary to execution, under Section 5174 et seq. Comp.
Laws, are available against a corporation. Id.
4. When the defendant is sued by a name indicating that it is not a natural
person, but a company of some kind, the complaint must state that it is
a corporation, or state facts showing that it is an artificial being, capa-
ble of being sued. State v. Railroad, 261.
5. Section 2998, Comp. Laws, which provides that, "in all civil actions
brought by or against a corporation, it shall not be necessary to prove
on the trial of the cause the existence of such corporation, unless the
defendant shall in his answer expressly aver that the plaintiff or de-
fendant is not a corporation," does not relieve the plaintiff from the
necessity of alleging in his complaint that the defendant is a corpora-
tion. Id.
6. The failure to allege in the complaint that the defendant is a corporation
may be taken advantage of on demurrer, under subdivision 6, 4909.
Comp Laws, stating as ground of demurrer "that the complaint does
not state facts sufficient to constitute a cause of action." Id.
A party who has contracted with a corporation de facto as such, cannot
be permitted after receiving the benefits of his contract, to allege any
defects in the organization of such corporation affecting its capacity to
enforce such contract; but all such objections, if valid, are available
only on behalf of the sovereign power of the state. Building and Loan
Association of Dakota v. Chamberlain, 271.
8. Stockholders who subscribe for stock, or assist in organizing a corpora-
tion under a charter, and reap the benefits of the law, and thereby in-
duce persons to credit the corporation, and do business with it on the
faith of its being legally organized, will be estopped from alleging that
the law under which the corporation is organized is unconstitutional,
as a means of avoiding any personal liability by reason of these trans-
actions or contracts with such corporation. Id.
9. The knowledge of S., who was the principal promotor and organizer of a
corporation, and who acquires his knowledge as such, and who, upon
its organization, becomes its manager, is the knowledge of the corpor-
ation. Huron Printing & Bindery Co. v. Kittleson, 520.
10. The adoption by a corporation of an agreement made by its promotor
may be implied from the acts of the corporation without any express
acceptance. Id.
1. Rule 13 of this court contemplates that the respondent may serve and file
a further or additional abstract to supply defects and omissions in appel-
lant's abstract, necessary to a proper presentation of the case on the
part of the respondent for the determination of the same by this court;
but, when such further or additional abstract largely duplicates matter
contained in appellant's abstract, the respondent will only be entitled
to tax as costs for printing such new or additional matter as was neces-
sary to be inserted in such further or additional abstract. Aldrich v.
Wilmarth, 38.
2. When, in an action commenced in the circuit court, the plaintiff re-
covers less than $50, and the action is one the subject matter of which
is within the jurisdiction of a justice of the peace, the defendant is en-
titled to costs, under subdivision 4, § 5191, Comp. Laws, though the
amount claimed in the complaint exceeds the jurisdiction of such jus-
tice. Township of DeSmet v. Dow, 163.
3. Chap. 66, Laws 1893, entitled "An act relating to costs in civil actions,"
does not apply to costs in this court on appeal. Ellis v. Wait, 504.
4. A respondent successful in this court is entitled to have allowed him as
taxable costs, the amount properly paid for stenographer's transcript
when such expense on his part is shown to have been necessary. Id.
1. By the provisions of Section 6, Chapter 78, Laws 1890, defining the juris-
diction of county courts, and limiting the jurisdiction of the same to
"all classes of cases wherein justices of the peace now have, or may
hereafter have jurisdiction, the amount thereof being limited accord-
ing to the population of the counties," the jurisdiction of such county
courts is not only limited as to the subject matter of the action over
which justices of the peace have jurisdiction, but to the jurisdiction of
justices' courts over the parties to the action. Benedict v. Johnson, 387.
2. Section 6044, Comp Laws, providing that "actions in justices' courts
must be commenced and
must be tried in the county where
the defendant resides or in which he may be summoned," and Section
6055 providing "that the summons cannot be served out of the county
of the justice before whom the action is brought, except, when the ac-
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