Opinion of the Court-Hawley, C. J.

question. The resolution passed by the trustees of the corporation is as follows: "Resolved, that the president be and is hereby authorized, on behalf of the company, to deed and convey to purchasers, at his discretion, town lots in the town of Hawthorne."

Does this resolution authorize the president, on behalf of the corporation, to donate the land to the county? We think it does. The use of the word "purchasers' was not intended to limit his authority to only convey land to those who paid a price or value for the same. It is evident that the word "purchasers," as used in the resolution, is more extensive in its meaning. In its broadest sense it includes the power to donate land, to execute a conveyance by gift, and all other modes of the personal acquisition of real property, except by descent or inheritance. (2 Bl. Comm. 244; Greer v. Blanchar, 40 Cal. 197; 2 Whart. Law Dict. 356.) The words "at his discretion," give force and effect to this meaning. The language of the deed is, "does grant, bargain, sell, and convey unto the said party of the second part, and to its successors, and assigns forever, all of that certain real estate "-describing it-"for the purpose of erecting thereon county buildings, to which the same is hereby dedicated for the use and benefit of said party of the second part, its successors and assigns, forever." The deed expresses a consideration of one dollar, but it is admitted that no money was paid. It is claimed that the deed dedicates the land to a certain use, and that it is not a donation of the land to

the county. This is too narrow a construction to be adopted. The deed complies with the statute. The land is donated to the county for the purpose of having county buildings erected thereon. If used for such purpose, the county will own the land as absolutely as if it had obtained the same by purchase, without the words of dedication as expressed in this deed.

It is claimed that the land conveyed is incumbered by mortgage. The mortgage in question was executed by the "Carson & Colorado Railroad Company," and conveys "all that certain railroad now owned and operated, or hereafter

Opinion of the Court-Hawley, C. J.

to be constructed, owned and operated by the party of the first part in the State of Nevada." The line of the road is specifically designated. The mortgage includes "all the lands of an average width of sixty feet, more or less, upon which said railroad is located and built, or to be built,

*

* * which are or may be necessary for the use and operation thereof." It conveys all the stations, depots, and all superstructures of every kind, with the land upon which the same are situated, and all personal property used or to be used, by the railroad company in the working and operation of its road. After a minute description of the railroad is given, the following words are employed: "and all rights, privileges, franchises, and property whatever, now belonging or hereafter to belong to or to be acquired by said party of the first part." At the time this mortgage was executed, the Carson & Colorado Railroad Company owned the land, mentioned in the deed of the Southern Development Company to the county of Esmeralda. This land is not within sixty feet of the railroad. But it is contended, that by the use of the language last quoted, all property owned by the corporation wherever situate, was conveyed to the mortgagees. This construction cannot. prevail. All the words employed in giving the description of the property mortgaged must be considered, in order to determine the meaning and intent of any particular clause or

sentence.

Upon a careful reading of the entire instrument, we are clearly of the opinion that the mortgage only conveys such property, real and personal, as was or would be employed and be useful or necessary in the construction, maintenance, operation, preservation, repair, or security of the railroad mortgaged; and that property owned by the Carson & Colorado Railroad Company not used, or to be used, in connection with the railroad, in promotion of the direct and proximate purposes of its construction, was not thereby conveyed. (Morgan v. Donoran, 58 Ala. 242.)

It is ordered that a peremptory writ of mandamus be immediately issued as prayed for by relator.

REPORTS OF CASES

DETERMINED IN

THE SUPREME COURT

OF THE

STATE OF NEVADA,

JULY TERM, 1883.

[No. 1139.]

JOHN KELLY, RESPONDENT, v. KATE KELLY, APPEL

LANT.

DIVORCE-EXTREME CRUELTY.-The element of danger to life, limb or health, or the reasonable apprehension of such danger, must exist in order to constitute legal cruelty. There may, however, be cruelty without personal violence, and such cruelty, working upon the mind, may affect the health. IDEM-CRUELTY OF WIFE.-False accusations, by the wife, of marital infidelity on the part of the husband, may in certain cases constitute such extreme cruelty as to entitle the husband to a divorce. The statute contemplates cases in which the husband may be the complaining party, and in such cases it affords him the same relief which it extends to a complaining wife. APPEAL FROM JUDGMENT-PRESUMPTIONS.-When matter is necessary to be proven in order to support the judgment it will be presumed to have been proven, in the absence of an affirmative showing to the contrary. This principle is always applied where the appeal is taken from the judgment roll alone.

VERIFICATION OF COMPLAINT SUFFICIENCY OF.-When the allegations of the complaint are made positively, and no averments stated upon information or belief, a verification, which omits the words "except as to those matters which are therein stated on his information or belief, and, as to those matters, he believes it to be true," but otherwise follows the form prescribed by statute, is sufficient.

VOL. XVIII-7

Argument for Appellant.

APPEAL from the District Court of the First Judicial District, Storey County.

The complaint is sufficiently set forth in the opinion. The answer, omitting the title of court, is in the following words: "Now comes the defendant in the above entitled cause; and for answer unto the complaint of plaintiff, filed herein, admits the truth of each and every allegation therein contained, and prays the sum of twenty thousand dollars be awarded to her out of the community property.'

Crittenden Thornton and F. H. Merzbach, for Appellant:

I. The averments of the charges of adultery made by the defendant against the plaintiff are insufficient in sub

stance.

(1.) The offense consists in words, a spoken, not an acted, crime. Following the analogy of the precedents of pleading in slander, the words should be set forth in ipsissimis verbis. (Towns. on Slan. and Lib. sec. 329.)

The only existing exception to this rule is where the words uttered are so obscene as to render it improper that they should appear upon the record, and in such cases the statement of the words may be omitted altogether, and a description substituted; but the reason for not setting forth the exact words must appear by proper averments on the face of the complaint. (Id. sec. 332.)

(2.) The charge of adultery alleged to have been made by the defendant against the plaintiff is not alleged to have been made in the presence or hearing of hearing of any third person.

In an action for slander, the allegation that the defendant spoke the words in the presence or hearing of divers persons is indispensable. (Style, 70; Stark. on Slan. 360; Edwards v. Wooton, 12 Co. 35; Hicks' Case, Pop. 139, and Hob. 215; Wheeler & Appleton's Case, Godb. 340; Phillips v. Jansen, 2 Esp. R. 624; Lyle v. Clason, 1 Caines, 581; Sheffill v. Van Deusen, 13 Gray, 304.)

(3.) The charges of adultery made by the defendant against the plaintiff in the hearing of third persons are not alleged to be false.

Argument for Appellant.

That falsehood is of the gist and essence of the plaintiff's cause of action, not only in a technical action of slander, but in a suit for divorce on the same grounds, is a point on which all the authorities are so unanimous, that it would be a waste of time and space to cite them.

II. A charge of adultery, brought by either spouse against the other, even if false, is not extreme cruelty per se, but depends upon matters of aggravation and surrounding circumstances, its results and consequences, and the character of the parties, in the following particulars :

(1.) Publicity; the presence of the parents, children, friends, or servants. (Powelson v. Powelson, 22 Cal. 358; Cook v. Cook, 3 Stockt. (N. J. Ch.) 195; Wheeler v. Wheeler, 53 Iowa, 511; Farnham v. Farnham, 73 Ill. 497; Goodman v. Goodman, 26 Mich 417.)

Of all the surrounding circumstances which might or could characterize this offense against marital peace and happiness, publicity is the most essential. If the reproach be not uttered in the hearing of a third person, the law itself dooms it to perpetual oblivion. The charge may rankle and wound, but it cannot disgrace. A charge of this kind, uttered in the privacy of the home, far from the hearing of the outer world, would, by the law, be held to be unspoken. (2.) Falsehood.

This is essential. The truth would certainly be a justification in this if in any cause.

(3.) The lack of existence of probable cause, or of wellfounded suspicion.

In addition to the abstract falsehood of a single charge of unchastity, bad faith, and lack of reasonable or probable ground of belief in its truth, should appear. (Kennedy v. Kennedy, 73 N. Y. 374; Lewis v. Lewis, 5 Mo. 278.)

(4.) Habitual repetition. (Powelson v. Powelson, 22 Cal. 358; Bennett v. Bennett, 24 Mich. 483; Goodman v. Goodman, 26 Mich. 417; Hoshall v. Hoshall, 51 Md. 72; Cook v. Cook, 3 Stockt. (N. J. Ch.) 195; Wheeler v. Wheeler, 53 Iowa, 511; Farnham v. Farnham, 73 Ill. 497.)