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When not fraudulent. See INSURANCE, 2.
Void for fraud. See SUBSCRIPTIONS, 4. IN PROCURING ACKNOWLEDGMENT OF DEED.
May be shown by parol. See ACKNOWLEDGMENTS OF DEEDS, 1. RESCISSION OF CONTRACT FOR FRAUD.
In equity. See CHANCERY, 10, 11.
1. Conveyance of property to place it beyond the reach of creditors is fraudulent in law. A debtor in failing circumstances is only allowed to place his property beyond the reach of his creditors by making a general assignment of it, when he does so for the benefit of the credi. lors, by devoting it unreservedly to the payment of his debts, and not with a view to his advantage, in delaying until a favorable time the appropriation of the property for such purpose. Phelps et al. v. Curts et al. 109.
2. A conveyance by a debtor in failing circumstances of all his property for the purpose of placing it out of the reach of creditors, not for the purpose of depriving them of all benefit of the property, but to prevent its sacrifice for the payment of their claims by enforcement of legal remedies, and to await favorable opportunities for disposing of the property and applying it to the satisfaction of the claims, is fraudulent in law, although there may be no fraud in fact intended by such debtor. Ibid. 109.
3. When only constructively fraudulent, may be upheld as to one guilty of no actual fraud. Where a security or conveyance is set aside as constructively fraudulent, it may be upheld in favor of one not guilty of any actual fraud to the extent of the actual consideration, and be vacated as to the excess. Ibid. 109,
4. Conveyance by grantee in a fraudulent conveyance to secure a bona fide debt of the debtor grantor. A debtor in failing circumstances conveyed to his brother all his property, and the brother took up notes which the owner of the property owed to another brother, and gave his own notes for the amount thereof, with the understanding that he was to pay them out of the proceeds of the sale of the property conveyed to him, or he was to have the privilege of paying in property, at cash value. Afterwards he conveyed to the brother holding his notes a por. tion of the property, with a verbal agreement that, upon payment of the notes, the property so conveyed should be reconveyed to him: Held, that although the conveyance by the failing debtor to his brother was fraudulent as against creditors, yet the conveyance by that brother to
FRAUDULENT CONVEYANCE. WHAT IS, IN LAW. Continued.
the other, being for the purpose of securing a bona fide indebtedness, was not void, but should be treated as a mortgage; and that upon a creditor's bill to set aside such conveyances, the decree should be that such second conveyance be treated as a mortgage, and that the debt in. tended to be secured thereby have precedence over the other debts of the debtor, and be first paid. Phelps et al. v. Curts et al. 109.
GUARDIAN AND WARD.
1. On contract in respect to ward's property. A guardian can pot, by his own contract, bind the person or estate of his ward; but if he promises, on a sufficient consideration, to pay the debt of his ward, he is personally bound by it, although he expressly promises as guardian. And a guardian who thus discharges the debt of his ward, may lawtully indemnify himself out of the ward's estate, or, if he be discharged from his guardianship, he may have an action against the ward for money paid for his use. Sperry v. Fanning et al. 371.
2. Where a guardian contracted, as such, for stone for a building for his ward, and signed the same as guardian, and the contract did not assume to bind the ward, and did not limit the guardian's liability by a provision that the price should be paid from the assets belonging to the ward in the guardian's hands: Held, that the guardian was personally
liable on the contract. Ibid. 371. TESTAMENTARY GUARDIAN.
Who may appoint. See DIVORCE AND ALIMONY, 4.
1. Does not depend on solvency of maker. The liability of the guarantor of a promissory note, whose guaranty is absolute and unconditional, does not depend upon the solvency or insolvency of the maker or in. dorser, and the holder is not required to institute any proceedings against the maker. Penny v. Crane Brothers' Manufacturing Co. 244.
2. Not released by payee taking collateral security. Taking a note as collateral security to another note, upon which there is an absolute guaranty, and transferring the collateral note, the original all the time remaining in the hands of the payee, does not release the guarantor. Ibid. 244.
1. The petition. A fair interpretation of sections 69 to 77 inclusive, of chapter 121 of Revised Statutes of 1874, warrants including a prayer for a new road and for vacating an old road in the same petition. Anderson r. Woud et al. 15.
HIGHWAYS. OF ESTABLISHING AND VACATING ROAD. Continued.
2. Decision of commissioners-rohen to be reduced to writing. The commissioners of highways met on the day named in the notice, and went upon and viewed the line of a proposed road, and afterwards, and on the same day, announced publicly that they would not order the roud to be established, which decision was not committed to writing until two days afterwards, when it was filed in the office of the town clerk: Held, that this was a substantial compliance with section 73 of
the Road and Bridge Law of 1874. Anderson v. Wood et al. 15. APPEAL FROM ORDER REFUSING TO LAY OUT ROAD.
3. Appearance before supervisors waives irregularities. Where an appeal is taken from the decisivn of commissioners of highways refusing to establish a road, to three supervisors, if the commissioners of highways and two of the petitioners appear before the supervisors on the day fixed by them, any informality there may be in the notice is waived, and if a postponement of the action of the supervisors is then and there had to a future day by common consent, it is regular. Ibid. 15.
4. Appearance of parties at an adjourned meeting cures irregularity in the adjournment. Where the supervisors, to whom an appeal has been taken from the decision of the commissioners of highways, meet with the commissioners and two of the petitioners at a time and place fixed by the supervisors, and, by common consent, their action is postponed to another time, when they meet again, and the supervisors render their decision, the last meeting cures any irregularity there may bave
been in the adjournment of the first. Ibid. 15. VARIANCE IN DESCRIPTION.
5. When not material. Where the court can, from the petition for the establishment of a road, the order establishing it, and the plat thereof, locate the road, without any difficulty, as the same road described in the complaint for obstructing a road, there is no substantial variance, although some of the points on the line of the road may be described in different nguage in different parts of the proceedings.
Kile v. Town of Yellowhead, 208. ESTOPPEL TO QUESTION PROCEEDINGS.
6. By receiving damages awarded. Where a road is ordered to be opened, and the owner of land over which it passes receives the money awarded to him as damages by the commissioners of highways, he is
estopped from alleging that the proceedings were void. Ibid. 208. COMMISSIONERS OF HIGHWAYS.
7. Pocer to levy tax. The commissioners of highways, in discharg. ing their duties, are required carefully to estimate the sum necessary to be expended in their township for roads and bridges for the ensuing year, and to levy the same, if it does not exceed forty cents on the $100 worth of taxable property, and return the same to the county clerk on or before the Tucsday next preceding the annual meeting of the board of supervisors, in September. They are limited to what wiil be re
HIGHWAYS. COMMISSIONERS OF HIGHWAYS. Continued.
quired in defraying the cost of keeping in repair the roads and bridges for the ensuing year. Commissioners of Highways, etc. v. Newell et al. 587.
8. If the levy of forty cents on the $100 worth of taxable property is not sufficient, they must call upon the people to vote an additional amount, which is limited to sixty cents on the $100, or for power to borrow money. Ibid. 587.
9. Power to contract debts. The commissioners of highways being powerless to borrow money, are equally so to contract indebtedness, ex. cept that they may have such work done and repairs made, and give orders on their treasurer, to the extent and not beyond the amount of tax already actually levied by them. After this levy is made they may incur indebtedness in the discharge of their duties, before its collection. Ibid. 587.
10. When estimate to be made. The fiscal year commences with the Tuesday preceding the annual September meeting of the county board, and it is at that time the commissioners are required to make their esti. mates, and levy of the tax, to meet the expenses until the corresponding period of the next year. Ibid. 587.
11. The commissioners of highways have no legal power to incur indebtedness for road and bridge purposes, in any fiscal year, beyond the amount of the taxes already ievied for that year. In other words, they can in no one year expend lawfully more than the tax levied for
that year. Ibid. 587.
1. Does not extend to widow as against the heirs and their grantecs, under acts of 1851 and 1857. The acts of 1851 and 1857, in relation to homestead, only created an exemption from forced sales or alienations by the husband, and did not extend to the widow the right of home. stead in premises of which her husband died seized, as against the heirs or the grantees, or purchasers from the heirs. Fight v. Holt, 84.
HUSBAND AND WIFE.
HUSBAND TO INSURE. See INSU.
RIGHT OF WIFE
ENFORCEMENT OF DECREE BY. See DIVORCE AND ALIMONY, 13, 14.
1. A preventive remedy only. An injunction is a preventive remedy merely, and can not be so framed as to command a party to undo what
he has done. Fisher v. Board of Trade of Chicago et al. 85. RESTRAINING PROCEEDINGS FOR RIGHT OF WAY.
2. After reasonable time. See RIGHT OF WAY, 3. DAMAGES ON DISSOLUTION.
3. After the dissolution of an injunction the defendant may tile his suggestions and claim damages, at any time before the decree is signed and filed, and the court may dispose of the suggestions even after the decree is filed. It is error to refuse leave to file them before the decree is filed. Wing et al. v. Dodge et il. 564.
ORDER GRANTING PRELIMINARY INJUNCTION.
4. Not reviewable on error. See PRACTICE IN SUPREME COURT, 1.
Can not be questioned collaterally. See CONSERVATOR, 1.
SALE OF REAL ESTATE. Same title, 2, 3, 4.
1. Assuming that there is a custom. An instruction which assumes that there was some general custom or usage, instead of leaving that fact to be found by the jury, is erroneous. Wilson v. Bauman et nl. 493.
2. As to presumption of lov. An instruction as to what the presumption of law is, upon a question of disputed fact, is extremely likely to mislead a jury, and should not be given. Guardian Mutual Life Insurance Co. v. Hogan, 35.
3. As to exemplary damages. The employment of the words “ *puni. tive damages," instead of "exemplary damages," in an instruction, is not material, as they are synonymous. Roth v. Eppy, 283.
4. Bused upon irrelevant testimony. Where irrelevant testimony has been introduced, on the trial of a case, it is error for the court to give instructions based upon hypothetical cases supposed to have been made by such evidence. Evins v. George et al. 51.
5. Based upon a partiul view of the fricts. An instruction which undertakes to give a summary of the principal facts, but directs the attention of the jury only to those favorable to one of the parties, leaving out of view all that tend to illustrate the theory of the other party, is objectionable. Ibid. 51.