in possession developing the lode, and claiming in good faith to be the
owner, no abandonment took place, nor did he lose or forfeit any rights
acquired by the previous discovery. Id.
6. MINES AND MINING. FAILURE TO RECORD MINERAL LOCATION CERTIFI-
CATE, within three months from the date of discovery of the lode, will
not inure to the benefit of the owners of an overlapping claim based on
a junior discovery, when such owners have neither made nor attempted
to make a relocation. Id.
7. MINES AND MINING.-WHERE CLAIM SET UP TO TITLE to mineral lode
is void in its inception, plaintiff has no standing to question the validity
of defendant's title. Id.
8. MINES AND MINING.- MINING TITLES cannot be questioned collaterally.
Id.
1. CHATTEL MORTGAGE IS NOT VOID BECAUSE MORTGAGOR IS TO RECEIVE
SOME BENEFIT therefrom, if the provisions for such benefit are made in
good faith, and not for the purpose of hindering, delaying, or defraud-
ing creditors. Whitson v. Griffis, 546.
2. CHATTEL MORTGAGE IS NOT TO BE CONSIDERED VOID AS TO MORTGAGOR'S
CREDITORS UNLESS GOOD FAITH OF TRANSACTION IS ESTABLISHED BY
STRICT PROOF, from the mere fact that the mortgager is a step-daughter
of the mortgagee, although that is a circumstance to be taken into con-
sideration by the jury. Id.
8. CHATTEL MORTGAGE ON STOCK OF GOODS IS NOT VOID, AS MATTER OF LAW,
AS TO CREDITORS OF MORTGAGOR, but the question of good faith should be
submitted to the jury, where the mortgage contains a provision that the
mortgagor shall remain in possession of the property, and sell the same
in the course of trade, account for the proceeds, and receive out of the
same the expenses of operating the business, and the means of sub-
sistence of his family. Id.
4. MORTGAGE. — THE TERM "ASSIGNMENT" does not, like the term "deed"
or "specialty," signify an instrument under seal. Barrett v. Hinckley,
331.
5. MORTGAGE - INSTRUMENT UNDER SEAL. A WRITTEN ASSIGNMENT
founded upon a valuable consideration is as available as an instrument
under scal to pass assignee the equitable title to land; but an instrument
inter partes, in order to pass the legal title to real property, must be
under seal. Id.
6. TITLE OF MORTGAGEE Conveyance of Land WITHOUT ASSIGNMENT OF
THE DEBT. -The doctrine would seem to be fundamental that if one sui
juris having the legal title to land intentionally delivers to another a deed
therefor containing apt words of conveyance, the title at law at least
will pass to the grantee; but for what purposes or uses the grantee will
hold it, or to what extent he will be able to enforce it, will depend upon
circumstances. If the mortgagee conveys the land without assigning
the debt to the grantee, the latter holds the legal title as trustee for
the holder of the mortgage debt, though the interest which passes is of
no appreciable value to the grantee. Id.
7. TITLE OF MORTGAGEE IN FEE IS IN NATURE OF Base or Determinable
FEE. The term of its existence is measured by the mortgage debt;
when that is paid off, or becomes barred by the statute of limitations, the
mortgagee's title is extinguished by operation of law. Id.
8. NOTICE OF FIRST MORTGAGE IS NOT IMPUTED TO A SECOND MORTGAGEE be-
cause his agent, who negotiated and took the second mortgage, acted in
a like capacity in respect to the first mortgage, unless it is shown that
the agent, when taking the second mortgage, had the first mortgage
present in his mind, and did not proceed in the belief that it had ceased
to be an existing and valid lien on the mortgaged premises.
Id.
9. ONE IS ENTITLED TO BE REGARDED AS A MORTGAGEE FOR A VALUABLE
CONSIDERATION who surrenders therefor a prior mortgage with the ac-
crued interest thereon. Constant v. Rochester University, 769.
10. ADVERSE INTEREST TO MORTGAGOR CANNOT PROPERLY BE LITIGATED IN
FORECLOSURE SUIT; but if it is put in issue, tried, and determined, the
judgment is not void on a collateral attack. Johnston v. San Francisco
Savings Union, 129.
11. ORAL TESTIMONY TO PROVE ABSOLUTE DeeD WAS IN REALITY MORTGAGE
is not admissible in an action at law in New Jersey. In the judicial
system of that state, the jurisdiction to convert an absolute deed into a
mortgage by parol evidence is exclusively in the equity courts. Lindley
v. O'Reilly, 802.
12. MORTGAGE is, in New JersEY, MERE SECURITY FOR DEBT or liability for
which it is given, and payment or satisfaction of the debt or liability dis-
charges the mortgage, and revests the mortgaged premises in the mort-
gagor without a reconveyance. Id.
13. MORTGAGES. — BETWEEN PARTIES, MORTGAGE TRANSFERS LEGAL TITLE,
defeasible on performance of the conditions and the right of immediate
possession, unless by its terms possession is reserved in the mortgagor for
an unexpired term. As to the mortgagee, the mortgagor has only an
equity, but as to all persons except the mortgagee and those claiming in
his right, the mortgagor is the owner of the fee, and has title under
which he may maintain ejectment against strangers who have no con-
nection with the title of the mortgagee, and the defendant in ejectment
will not be allowed to set up such outstanding title to defeat the action.
Cotton v. Carlisle, 29.
14. UNDER PROVISION OF ALABAMA CODE OF 1886, SECTION 2892, that "when
any interest less than the absolute title is sold, the purchaser is subro-
gated to all the rights of the defendant, and subject to all his disabili-
ties," a purchaser of the equity of redemption in mortgaged lands, at
execution sale against the mortgagor, acquires a title on which he may
maintain ejectment to recover possession from the mortgagor, who can.
not defeat the action by setting up the outstanding title of the mort-
gagee. Id.
15. MORTGAGEE IS CHARGED WITH NOTICE OF FACT AFFECTING TITLE TO
MORTGAGED PROPERTY, when he has readily accessible means of acquir.
ing knowledge thereof which he might have ascertained by inquiry.
Montgomery v. Keppel, 125.
16. PRIOR MORTGAGEE IS CHARGED WITH NOTICE OF TERMS UPON WHICH
PURCHASE OF MORTGAGED PROPERTY IS MADE, where, pending his ne-
gotiation with the mortgagor, he acquires knowledge that the title to the
property is in a third person, with whom the mortgagor was negotiating
for the purchase, which was afterwards consummated by the delivery of
a deed to the mortgagor, and the execution by him of a mortgage back
to the grantor to secure the purchase-money. Id.
17. ONE WHO COMES INTO EQUITY FOR RELIEF AGAINST CLOUD CAST BY FORE-
CLOSURE PROCEEDINGS UPON HIS INTEREST, which escaped being bound
by the decree in foreclosure through a slip in the proceedings, will be re-
quired, as a condition for relief, to pay his proportion of the mortgage
debt, less the amount of the rents and profits of his interest received by
the mortgagee, who purchased at the foreclosure sale and went into pos-
session thereunder. Johnston v. San Francisco Savings Union, 129.
See EJECTMENT; HOMESTEADS, 5.
MUNICIPAL BONDS.
See MUNICIPAL CORPORATIONS, 3–6.
1. AN INTEREST IN THE STREETS OF THE CITY OF NEW YORK MAY 2
GRANTED IN PERPETUITY, and irrevocably, by the city authorities. Peo-
ple v. O'Brien, 684.
2. SPECIAL Meeting of a BOARD OF SUPERVISORS WILL BE PRESUMED TO
HAVE BEEN LEGALLY CALLED. Tierney v. Brown, 679.
8. NEGOTIABLE COUNTY BONDS ARE VALID IN HANDS OF BONA FIDE PUB-
CHASERS FOR VALUE, notwithstanding there were such irregularities in
calling and holding the elections authorizing their issue that if the ques-
tion of their validity had been raised in the proper manner and at the
proper time they would have been held invalid. State v. Commissioners,
569.
4. CONTRACT BY CITY, AND ADDITIONAL BONDS ISSUED and DepositED BY
IT THEREUNDER, ARE BOTH VOID, where a city in Kansas refunds a
portion of its outstanding bonded indebtedness at sixty cents on the
dollar, under chapter 89 of the laws of 1877, which permits it to refund
such indebtedness at that rate only, and at the same time, and as a part
of the same transaction, it enters into a contract with the holders of the
original bonded indebtedness to issue still other and additional bonds on
the same bonded indebtedness, and to deposit such additional bonds with
a third party to be afterwards delivered to the holders of the original
bonded indebtedness, and to become valid and binding instruments upon
certain contingencies; nor are they valid under chapter 50 of the laws
of 1879, because the bonds were not issued in conformity with that act;
nor valid under chapter 67 of the laws of 1873, because the city council
never took action as provided under such act, and the bonds were not
issued thereunder. Brown v. Atchison, 515.
B. PARTY WHO RECEIVES BENEFIT UNDER CONTRACT ENTERED INTO IN GOOD
FAITH BETWEEN CORPORATION, PUBLIC OR Private, and IndiVIDUAL,
but which contract is void in whole or in part because of a want of
power on the part of the corporation to make it, or to enter into it in.
the manner in which it was entered into, but which is not immoral, in-
equitable, or unjust, and which is performed in whole or in part by and
on the part of one of the parties, and the other party receives benefits
by reason of such performance, over and above any equivalent rendered
in return, and these benefits are such as one party may lawfully render
and the other party lawfully receive, will be required to do equity
toward the other party, by either rescinding the contract and placing
him in statu quo, or by accounting to him for all benefits received for
which no equivalent has been rendered in return; and all this should be ·
done as nearly in accordance with the terms of the contract as the law
and equity will permit. Id.
6. MUNICIPAL CORPORATION WILL BE REQUIRED TO ACCOUNT TO HOLDERS OF
ORIGINAL BONDED INDEBTEDNESS FOR ALL BENEFITS RECEIVED BY IT
UNDER CONTRACT to re-fund the bonds, which is void because of a want of
power on the part of the corporation to make it in the form in which it
was made, where the contract is not inequitable or unjust, or otherwise
illegal, and has been performed by such holders, and under which the
corporation has received benefits which it might lawfully have received,
and for which it has rendered no equivalent. Id.
See CORPORATIONS; FRANCHISES; NUISANCE, 5, 6.
MURDER.
See CRIMINAL LAW.
1. NEGLIGENCE IS THE OMISSION OF CARE OR CAUTION IN WHAT WE DO;
but where there is no duty to be cautious and vigilant, there can be no
negligence in the legal sense of the term. Morris v. Brown, 751.
2. QUESTION OF CONTRIBUTORY NEGLIGENCE IS TO BE DETERMINED BY JURY,
and not by the court, when the testimony leaves the question in doubt.
City R. R. Co. v. Lee, 798.
8. OPINION AS EVIDENCE ON QUESTION OF CONTRIBUTORY NEGLIGENCE. — In
an action against a railroad company for causing the death of an em-
ployee who was on a hand-car at the time that it came in collision with
an extra train of defendant's, causing the accident, the defendant may
ask a witness, who was a co-employee and on the hand-car at the time,
and who had testified to all the facts relating to the matter in dispute,
whether deceased had sufficient time to jump from the hand-car before
the collision happened. Quinn v. New York etc. R. R. Co., 284.
4 EVIDENCE-INCONSISTENT STATEMENTS OR CONDUCT OF WITNESS.-In an
action against a railroad company for causing the death of an employee,
after the superintendent of the company has testified that the rules and
regulations in force at the time of the accident were the best that could
be devised for such exigencies, he may be asked on cross-examination if
he has not issued new rules and orders since the accident, to show incon-
sistency in his testimony. Id.
5. NEGLIGENCE OF THIRD PARTY WILL NOT BE IMPUTED TO PLAINTIFF seek-
ing damages for injury occasioned by defendant's negligence, where
plaintiff was injured without his personal fault while riding in a private
conveyance under the sole control and charge of the owner and driver,
who was a fit person to manage horses. Brannen v. Kokomo etc. Co., 411.
6. WHERE THE ISSUE IS NEGLIGENCE, IT MUST BE ALLEGED AND MADE TO
APPEAR FROM THE EVIDENCE that plaintiff was not guilty of negligence
contributing to the injury, and if from the whole evidence it cannot be
determined whether or not he was free from such negligence, he cannot
recover, unless the defendant be chargeable with willful wrong. Id.
7. WILLFUL WRONG WHICH WILL JUSTIFY RECOVERY, NOTWITHSTANDING
CONTRIBUTORY NEGLIGENCE, exists where there is an express intent to
commit the injury. It may also exist where there is a constructive or
implied intent, as where the act which produced the injury is done
under circumstances such as evince a reckless disregard for the safety
of others, and a willingness to inflict the injury complained of, or where
it is committed under such circumstances that the natural and proba
ble consequences of the act would be to produce the injury; otherwise
there is no such willful wrong. Id.
8. NEGLIGENCE EVIDENCE OF CHARACTER AND EXTENT OF INJURY IN AC-
TION FOR DAMAGES. — In such action, for the purpose of showing the
character of his injury and the nature and intensity of his suffering,
plaintiff may show, after stating how accident occurred and the manner
and extent of his injury, that after he had extricated himself from the
collision causing the injury, he had proceeded in his disabled condition
about one quarter of a mile along the track to flag a train, and prevent
its running into the wreck; that he had so done believing it to be his
duty as brakeman; that in doing such act he had suffered great pain,
and after flagging the train, became unconscious, and remained so till the
next day. Evansville etc. R. R. Co. v. Guyton, 458.
Bee COMMON CARRIERS; ESTOPPEL, 2; Master and Servant; RAILROADS.
1. MAKER OF PROMISSORY NOTE WHO SIGNS IT WITHOUT READING, OR
HAVING IT READ to him, no fraud, deceit, or misrepresentation being
practiced by which he was induced to do so, cannot defeat an action on
it by an assignee, under the plea of non est factum, because he did not
know it was made payable to a partnership and not to an individual
partner with whom he was dealing, and against whom he claimed
set-off. Cannon v. Lindsey, 38.
2. CONSIDERATION OF NOTE IS NOT ILLEGAL when it is given by an agent of a
county treasurer, whom the latter had, without authority of law, ap-
pointed to conduct the office, to secure the repayment of moneys pre-
viously misappropriated by such agent. Board of Supervisors v. Al-
ford, 637.
8. BILL OF EXCHANGE OR CHECK SPECIFYING NO TIME OF PAYMENT is pay-
able on demand. Parker v. Reddick, 646.
4. PRESENTMEnt for Payment of a Bill oR CHECK PAYABLE on DemaND
must be within a reasonable time. Id.
5. WHAT IS REASONABLE TIME WITHIN WHICH TO PRESENT BILL OR CHECK
FOR PAYMENT is a question of law to be determined by the court when
the facts are ascertained. Delay in such presentment cannot be reason.
able if it is more than is fairly required in the ordinary course of busi-
ness, without special inconvenience to the holder, or by the special
circumstances of the case. Id.
6. PRESENTMENT for Payment when the DrawEE OF A BILL LIVES IN A
DIFFERENT PLACE FROM THAT IN WHICH IT IS DRAWN, and the in-
strument must be sent by mail for presentment, must be by mailing it
the next day after it was received by the holder. Id.
7. PAPER PAYABLE ON DEMAND MAY BE PUT IN CIRCULATION, BUT ITS ULTI-
MATE PRESENTMENT FOR PAYMENT cannot be delayed beyond a reason-
able time by successive transfers, any more than it can by being locked
up or held an unreasonable time by the first or any successive holder. Id.
8. DELAY IN PRESENTING A CHECK FOR PAYMENT, THOUGH SUFFICIENT TO
RELEASE THE INDORSER THEREOF, WILL NOT RELIEVE THE DRAWER
from liability, unless he shows that he was injured thereby. Id.
9. NEGOTIABLE Instruments.-BONA FIDE PURCHASER OF NEGOTIABLE BILL,
BOND, OR NOTE, ACQUIRES GOOD TITLE THERETO, although he buys
from a thief, if he pays value for it without notice of the infirmity of
his vendor's title. East Birmingham L. Co. v. Dennis, 73.
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