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MORTGAGES AND DEEDS OF TRUST.
TO SECURE ACCOMMODATION PAPER. Continued.
was not released from the payment of the mortgage debt, the contract
as to him being without consideration, was a nullity, and the mortga-
gor had no right to have payments subsequently made on the mortgage
debt applied upon any particular part of the mortgaged premises.
Bush et al. v. Sherman, 160.
POWER OF SALE IN MORGAGE.
5. Not defeated by mortgagor voluntarily going within the enemy's
lines. Where a mortgagor voluntarily went within the enemy's lines,
with a view to cast his lot with those who were in open rebellion against
the government, the right of the mortgagee to execute the power of' saic
contained in the mortgage was not thereby impaired. Ibid. 160.
6. Assignee may execute pouer of sale. The assignee of a mortgage
containing a power of sale, being the legal holder of the indebtedness
thereby secured, is authorized to execute the power of sale. Ibid. 160.
SALE UNDER POWER.
7. What the notice of sale should contain. It is sufficient if the notice
of sale under a mortgage containing a power of sale contains enough 10
show there has been a default in the conditions, and also that it recites
any facts the mortgage itself may provide it shall contain. Ibid. 160.
8. Burden of proof on the party charging fraud. When a sale under
a mortgage is challenged on the ground of fraud and collusion between
the seller and the buyer, the burden of proof is upon the party making
the charge to prove it. Ibid. 160.
9. Acquiescence waives all irregularities. Acquiescence, unexplained,
for any considerable time, in a sale which is voidable, but not void, will
be deemed a waiver of all mere irregularities that may have inter-
vened. Ibid. 160.
10. Ignorance of facts which are claimed as vitiating a sale, is not a
sufficient explanation of long acquiescence in such sale, if such igno-
rance is the result of the conduct of the party in voluntarily going into
the military service of the Southern States, in the late civil war. Ibid.
11. Order of sale in case of subsequent grants by mortgagor. On the
foreclosure of a mortgage as against subsequent grantees of the mori-
gagor of different portions of the mortgaged premises, the general rule
in equity is, that the granted portions shall be sold in the inverse order
of their alienation, so that the land of the last grantee is first subject to
sale. Niles et al. v. Harmon et al. 396.
12. Foreclosure when mortgagor sells part. Where the owner of
mortgageil land conveys a part of it with warranty, it is his duty 10 pro-
tect the grantee against the mortgage, and upon foreclosure of the mort.
gage, it should first be satisfied out of the portion of the land remaining
MORTGAGES AND DEEDS OF TRUST. FORECLOSURE. Continued.
in the mortgagor. And shouid the mortgagor convey the portion re
maining in him to a second purchaser, he takes the land as it was in
the hands of the mortgagor, primarily charged with the payment of the
mortgage debt. Niles et al. v. Harmon et al. 396.
13. Where the mortgagor sells a part of the mortgaged premises
taking notes and mortgage on the same from the purchaser, which re-
main unpaid, and afierward conveys the balance to other parties, on
foreclosure of the original mortg:ge, and on cross-bill to foreclose the
second one, where the notes secured thereby have not been transferred,
it seems that the land first conveyed should first be charged to the ex-
tent of the sum due thereon by the purchaser, and sold, and the proceeds
of sale applied in extinguishment of both mortgages. But where the
notes of the first purchaser have been transferred before maturity, the
purchase money will be treated as paid, and the portions last alienated
must first be sold to satisfy the original mortgage. Ibid. 396.
DECREE OF FORECLOSURE.
14. When binding, on failure to redeem. A decree of foreclosure of
a mortgage, if it is of such force as to be taken advantage of by the de-
fendants as an estoppel against the complainants denying their title, in
case they chose to redeem from sale under it, is binding on them in case
they fail to redeem. Bostwick et al. v. Skinner et al. 147.
15. Mortgagee taking property maliciously, liable. Where a chattel
mortgage is given on household furniture and goods, to secure a debt,
giving the mortgagee the right to take possession at any time he should
feel himself insecure or unsafe, or fear waste, diminution or removal,
and he takes possession on the same day, and at an unusual hour, with.
out previous notice, from malicious motives or without a reasonable
belief that his debt is unsafe or insecure, he will be liable to the mort-
gagor in trespass, and if the taking is malicious, the jury may give
exemplary damages. Davenport v. Ledger, 574.
Measure of damage for taking before debt is due. See MEASURE
OF DAMAGES, 1.
POWER OF CORPORATIONS TO MORTGAGE. See CORPORATIONS, 2.
RIGHTS OF MORTGAGEE.
As to insurance. See INSURANCE, 4.
ESPOPPEL TO SHOW PAYMENT. See ESTOPPEL, 2.
QUO WARRANTO DOES NOT LIE AGAINST TIIEM. See QUO WARRAN-
ADOPTION OF ACT OF 1872. See ELECTIONS, 1 to 5.
GENERALLY. Sec CORPORATIONS, 8 to 11.
1. Employer not liable for negligence of contractor in performance of
work under contract. While a master is responsible for injuries arising
from the negligence of his servant, a party who has contracted for the
doing of certain work for his use and benefit is not liable for injuries
arising during the performance of such work. Hule et al. v. Johnson,
NEGLIGENCE IN RAILROADS.
2. In respect to brush growing on right of way. Where a railroad
company permits brush and other obstructions on its right of way so as
to prevent the view of approaching trains by travelers on the highway
crossing its track, and neglects to give any signal of danger by a train
approaching the crossing, either by ringing a bell or sounding a whistle,
whereby a party, in attempting to cross the track on the public road, is
killed, the company will be guilty of negligence. Dimick, Admr. v.
Chicago and Northwestern Railway Co. 338.
3. Liable for injury to stock in cities and towns only where negli-
gence is shmon. In a suit against a railroad company for injury done to
stock by their trains within the limits of a city, town or village, there
can be no recovery without an averment in the declaration that the ser.
vants of the company were guilty of negligence in running its trains
through such city, town or village. Negligence must not only be aver.
red in the declaration, but there must be proof of negligence on the
part of the agents and servants of the company in charge of the train
at the time the injury occurs. Peoria, Pekin and Jacksonville Railroud
Co. v. Burton, 72.
4. Liability for injury to stock when they neglect to fence their track.
A railroad ran through a common field of several square miles, owned
by different parties, some of whom resided therein, which was fenced
only on the outside. The railroad had been opened for use more than
six months, and the company had neglected to fence its track entirely
through the inclosure: Held, the company was liable for the stock
killed by its trains inside of the inclosure. Ibid. 72.
5. Required to construct barrier to stock getting on the track, at both
public and private crossings. Where there was a common field of sev-
eral square miles, belonging to different owners, but fenced only on the
outside, through which a railroad ran, and there was a crossing over the
railroad track inside of the inclosure, which was used principally by
parties residing therein, it was held, that such crossing was not, in any
just sense, a public road crossing, across which the company could not
lawfully fence, and that even if it was, the company would be required
to place cattle guards there to keep the cattle from getting on its track,
and if it was a private farm crossing, as it really was, it was the ciuty
of the company to place bars or gates there, and if it failed to place
either cattle guards or gates or bars there, it would be liable for any
NEGLIGENCE. NEGLIGENCE IN RAILROADS. Continued.
injury to stock by its trains. Peoria, Pekin and Jacksonville Railroad
Co. v. Burton, 72.
CONTRIBUTORY AND COMPARATIVE.
6. General rule. Where it appears that the plaintiff's negligence is
comparatively slight, and that of the defendant gross, the plaintiff will
not be deprived of his action; but even if the negiigence of the defend.
ant is gross, yet if the negligence of the plaintiff is not slight, as com-
pared with each other, the plaintiff can not recover, and it is error to
instruct the jury that a plaintiff who has been guilty of negligence
which has contributed to the injury complained of, is entitled to re-
cover unless his negligence contributed to a considerable degree to such
injury. Sterling Bridge Co. v. Pearl, 251.
7. A plaintiff can not recover for injuries received through the de-
fendant's negligence, where his own negligence has contributed to such
injuries, unless his negligence was slight and that of the defendant
gross, when compared with each other. Kewanee v. Deper, 119.
8. Care required in passing over sidewalk. A person in the full pos-
session of his faculties, passing over a sidewalk in daylight, with no
crowd to jostle or disturb him, no intervening obstacle to obscure ap-
proaching danger, and no sudden occurring cause to distract his atten-
tion, is under obligation to use his eyes to direct his footsteps, and if he
fails to do so, he is ne igent. Ibid. 119.
9. Duty of person approaching railroad crossing. It is the duty of a
person coming on to a railroad crossing of a highway, to use care and
caution to avoid a collision with any passing train, and to use precau-
tion before going thereon, to ascertain whether there is a train approach-
ing; and the failure of those having the train in charge to ring the
bell or sound the whistle, does not exempt travelers on the highway
from this duty. Chicago, Burlington and Quincy Railroad Co. v. Har.
10. It is error to give an instruction which authorizes a recovery
against a railroad upon the ground of negligence in omitting to sound
the whistle or ring the bell, without containing a requirement of any
care or caution on the part of the person injured. Ibid. 88.
11. Slackening speed at highusay crossings. There is no law requiring
railroad companies, when running at a high rate of speed, to slacken
the speed of their trains when teams are approaching a railway cross-
ing in the country. Ibid. 88.
12. On part of one killed while crossing a railroad. Where a person,
when approaching a railroad crossing, looks and listens for an ap
proaching train before passing a cornfield which obstructed the view,
and after passing the same, again looks and listens, and no warning is
given him by bell or whistle, he will be guilty of no negligence on his
part in going upon the track, and the fact that he is told to stop, that
NEGLIGENCE. CONTRIBUTORY AND COMPARATIVE. Continued.
the cars are coming, which he does not hear, will not change the rule.
Dimick, Admr. v. Chicago and Northwestern Railway Co. 338.
13. No recovery for death where decensed 2018 quilty of gro88 negligence.
Where a person was killed by a train at a railway crossing which was
ciisficult to cross, and dangerous, was perfectly familiar with this fact, yet
attempted to cross the same with a team about the time a regular train
was due, without looking to see if the train was in sight, it being in the
daytime, and the whistle was sounded ninety rods distant from the cross-
ing, and the bell rung continuously, and an alarm sounded some twenty-
tive rods before reaching the crossing, when the deceased was upon the
track, and he then discovered the train for the first time, and before lie
could get off was killed, the company using every exertion to prevent
the accident, it was held, that the negligence of the deceased was so
great as to preclude a recovery, even though the company was derelict
in not making the crossing safe and easy to get over. Rockford, Rock
Island and St. Louis Railroud Co. v. Byam, Admr. 528.
TO AVOID LIMITATION. See LIMITATIONS, 1 to 7.
EFFECT ON DEBT DISCILARGED IN BANKRUPTCY. See BANKRUPTCY, 2.
NEWLY DISCOVERED EVIDENCE.
1. A new trial will not be granted on the ground of newly discovered
evidence, where such evidence is impeaching or merely cumuiative in
its nature. Knickerbocker Insurance Co. v. Gould et al. 388.
1. Of equitable rights. See PURCHASERS, 3.
2. Of irregularity in administrator's sales. See ADMINISTRA.
TION OF ESTATES, 7.
3. Of payment. See PAYMENT, 1.
OF LOSS UNDER INSURANCE POLICY.
4. Sufficiency, etc. See INSURANCE, 7 to 11.
OF ELECTION. See ELECTIONS, 3.
BY PUBLICATION. See CONSERVATOR, 3.
WHEN PROTECTED UNDER PROCESS. See PROCESS, 2, 3; TRESPASS, 3.