« AnteriorContinuar »
thereby acquires an adverse possession, and sets the statute of limita-
tions in operation. King v. Carmichael, 303.
CONVEYANCE BY ONE — ADVERSE POSSESSION.- A cotenant who sells
and conveys the whole of the land held in common and gives por
session thereby creates in the grantee a title and possession adverse
to the other cotenant or cotenants, and if such grantee continues to
hold for the period of time prescribed by the statute of limitations be
thereby acquires a good title as against them. King v. Carmichael, *
& PURCHASE OF Tax TrrLE. — A cotenant in possession cannot acquire
title as against his cotenant by purchasing a tax title to the common
property. Thompson v. McCorkle, 334.
4 TENDER—WHEN UNNECESSARY.-In an action by one cotenant to set aside
a tax title to the common property acquired by another cotenant, do
tender of taxes is necessary before bringing suit. Thompson v. Vs
4 EJECTMENT AGAINST STRANGER. A tenant in common is, as against
every person but his cotenant, entitled to the possession of every
part of the common land, and may recover such possession in an actica
of ejectment brought against a stranger to the common titloAllen .
See APPEAL, 4.
Thx GENERAL LANGUAGE OF THE OPINION IN A CASE MUST BE CONSTROED
with reference to the particular facts then before the courts Chapmax
V. State, 158.
THE ATTEMPT TO COMMIT A Crime has been made when the opportunity
occurs, and the intending perpetrator has done some act tending to
accomplish his purpose, though he is baffled by an unexpected obstacle
or condition. People v. Gardner, 741.
See EXTORTION; HOMICIDE; Incest; INDECENCY; INTOXICATING LIQUORS;
JUSTICES OF THE PEACE, 3; New TRIAL, I, 2.
Seo PARENT IND CHILD, 1-4.
EVIDENCE TO PROVE - PARTIES ARE PRESUMED to have dealt with refer.
ence to a general custom, and, in order to correctly interpret their
intentions, evidence is admissible to put the court or jury in possession
of a knowledge of the custom in the light of which the parties trans-
acted their business. Bowman v. First Nat. Bank, 870.
1. Damages Purely SPECULATIVE in character, and dependent on so many
contingencies that they cannot be traced with reasonable certainty to
the breach of the contract, are not allowable. Hitchcock v. Supreme
2 MEASURE OF—Logs of Profits.—If one party breaks a contract which
the other party has partly performed, and the violater then per-
forms and completes the work himself from which he reaps the profits
which the other party might have made, he cannot escape liability for
damages if the other party can show the profits made while he was
executing it, and the benefits received from its subsequent completion.
The measure of damages is the profits and benefits remaining after the
cost of doing the work has been deducted from the amount agreed to
be paid for doing it. Hitchcock v. Supreme Tent, 423.
8. MEASURE OF.-AN INSTRUCTION TO THE JURY in an action to recover
damages for the death of a railway employee, that they should assess
the damages at whatever sum they should deem just and reason.
able from all the evidence in the case, not exceeding the amount
of the declaration, is not erroneous. The instruction could not have
been understood by the jury to have authorized damages to be assessed
by way of solutium, if there is no claim for such damages made in the
declaration. Chicago etc. R. R. Co. v. Kneirim, 259.
Master AND SERVANT — NEGLIGENCE-MEASURE OF DAMAGES-EARN.
INGS. -In an action by a father to recover for personal injury to his
minor son caused by negligence it is error to charge the jury, without
evidence, that such son was likely to earn more than his present wages
in the near future “by way of promotion.” Reese v. Hershey, 795.
B. STATUTES GIVING PUNITIVE, Double, OR TREBLE DAMAGES against one
cutting or otherwise converting to his own use timber growing on the
land of another without his consent are confined to cases where some
element of recklessness, wantonness, willfulness, or evil design enters
into the act. Therefore, if the land is located in a wilderness, far from
human habitation, and there is nothing to indicate that any one actu.
ally asserted ownership of any part of the country thereabout, and there
is nothing to indicate willfulness, wantonness, or recklessness, actual
damages only will be allowed. McDonald v. Montana Wood Co., 616.
6. PENALTY OR LIQUIDATED DAMAGES. – TO DETERMINE WHETHER A SUM
SPECIFIED IN A CONTRACT IS A PENALTY OR LIQUIDATED Damages the
court will consider the language used, the subject matter of the con.
tract, and the intention of the parties. The fact that the parties used
the words “liquidated damages” in their agreement does not always
determine the question. The courts generally lean toward that con.
struction which excludes the idea of liquidated damages, and permits
the party to recover only the damages which he Las actually sustained.
Hennessy v. Metzger, 267.
7. PENALTY OR LIQUIDATED DAMAGES.—If a building contract names the day
at which it is to be completed, and declares that the contractor for each
day's delay beyond that time shall be charged with the sum of fifty
dollars as liquidated damages, and it is difficult to determine what the
actual damages were, the sum named will be treated as liquidated dame-
ages, and the builder held answerable therefor. Hennessy v. Metzger,
& PENALTY OR LIQUIDATED DAMAGES. —Where, from the natare of a contract,
the damages cannot be calculated with any degree of certainty, a stipu.
lated sum will usually be held to be liquidated damages when so desig.
nated in the contract. Hennessy v. Metzger, 267.
Soe BUILDING CONTRACTS: JUDGMENTS, 12; LANDLORD AND TENANT, 4;
NEGLIGENCE; NUISANCE, 4, 5; SLANDER, 3; TRESPASS, 2
See DAMAGES, 3; MECHANICS' LIENS, &
DEBTOR AND CREDITOR.
TRAUDULENT CONVEYANCES—WHAT SUFFICIENT TO CREATE RELATION 01.-
The contingent liability of a surety is sufficient to create the relation of
debtor and creditor within the meaning of the statute of frauds against
the fraudulent alienation of property, and a note given for a pre-exist-
ing debt and renewed from time to time by the maker and surety con-
tinues the debt in force as originally made. Reel v. Livingston, 202.
See ASSIGNMENT, 4.
See EVIDENCE, 9; WILLS, 9.
THE DEDICATION TO PUBLIO USE OF A RIVER AND THE LAND COVERED
THEREBY, except for the purposes of navigation, will not be presumed
from the fact that the owner made and filed a plat subdividing his lands
into lots and blocks, and on such plat represented the river as between
parallel lines, and in the space between such lines wrote the name of
the river. Chicago v. Van Ingen, 285.
1. DELIVERY IN Escrow.—Delivery of a deed by a grantor to his daugh.
ter for subsequent delivery, upon the happening of a certain event
to another of his daughters, named as grantee therein, is a good
delivery. Upon the happening of the event named the grantee may
compel the delivery of the deed to her. Brown v. Stutson, 462.
LA CONVEYANCE OF ALL THE LANDS, TENEMENTS, HEREDITAMENTS, Ap.
PURTENANCES OF EVERY DESCRIPTION belonging to the grantors, or either
of them, or in which they have, or either of them has, any interest,
wherever such property, or any part thereof, may be situate, is not
void for want of description, and transfers their title to any and all
lands in which they have any interest. McCulloh v. Price, 637.
8. CONVEYANCE.-An ExceptiON FROM A CONVEYANCE OF ALL PROPERTY OF
THE GRANTORS, OR EITHER OF THEM, EXEMPT FROM EXECUTION by the
laws of the state wherein the conveyance is made, does not render it void
for uncertainty. That is certain wbich may be made certain. McCulo
loh v, Price, 637.
RECORD AS EVIDENCE OF EXISTENCE OF. – An original record of a
deed is not admissible in evidence to show the eristence and execution
of the original deed when it is not shown that such original is not
within the custody or control of the party offering such record copy.
Johnson v. State, 172.
B. QUITCLAIM—LIABILITY UNDER-A grantor conveying by deed of bar.
gain and sale all his right, title, ciaim, and interest in and to a tract
of land is not responsibls for defects in the title beyond the covenanto
in his deed. Reynolds v. Shaver, 36.
& DEEDS OF ALL TITLE AND INTEREST-EFFECT OF COVENANT OF WAR.
RANTY.-If a deed purports in terms to convey only the right, title, and
interest of the grantor to the land described, instead of conveying in
terms the land itself, a general covenant of warranty is limited to that
right or interest, and cannot be broken by the enforcement of a pnre
mount title outstanding against the grantor at the time of the convoy.
anom. Reynolds v. Shaver, 36.
See JUDGMENTS, 16.
“Attestation." Wickersham v. Johnson, 118
“Body." Walker v. State, 186.
Wickersham v. Johnson, 118.
“Due process of law." State v. Billings, 525.
“Forthwith render judgment.” Sorenson v. Swoensen, 472
“Immediately.” Kentzler v. American elc. Accident A881., 934.
“Legal disability." King v. Carmichael, 303.
Night-time,” What is. In the absence of statutory definition it to
“night-tiine" so long as a man's face cannot be discerned; otherwiso,
without taking moonlight into consideration, it is daytime. Hence,
an instruction fixing the end of night and the commencement of day at
oxactly one hour before sunrise is erroneous. Klieforth v. State, 876.
“Open and gross lewdness.” Stale v. Juneau, 877.
ESTATES-RIGHT OF WIDOW TO SHARE IN PERSONAL PROPERTY OF Hur
BAND.-Under the Michigan statute a widow takes a share of the per
sonal property of her husband an distributee, und not as dowress, and
is an heir as to such property. Lyons v. Yerex, 452.
See HUSBAND AND WIFE, 3.
See MARRIAGE AND DIVORCE.
See WATERS, 6; WHARVES.
1. EFFECT OF DIVORCE. —A decree of divorce from the bonds of matrimony
bars the wife's claim of dower. Wood v. Wood, 42.
2. Tas Titles-EFFECT ON DowER INTEREST.-A wife's inchoate dowor in-
terest in land is not divested or affected by a tax sale of the land in the
absence of a statute so providing. Thompson v. McGorkle, 334.
Soo CLOUD ON TITLE; LIMITATIONS OF ACTIONS, 3; Taxes, 1, 2
DUE PROCESS OF LAW.
See CONSTITUTIONAL LAW; INSANE PERSONS.
1 NEGOTIABLE INSTRUMENTS—DURESS AS A DEFENSE. — The defense of de.
ress is not, as a general rule, available in an action upon a promissory
note given to prevent the prosecution of another person; but one excep.
tion to this rule is, that a wife may avoid her note made under duress
of threats of criminal prosecutiou against her husband, as it is for that
reason void. City National Bankv. Kusworm, 880.
& DISAFFIRMANCE OF CONTRACT WITHOUT RESTORATION OF CONSIDERA.
rion.-A wife may avoid her contract for duress without any ref.
erence to formal restoration if she has received no benefit, as there
is nothing to restore. Hence, if, under duress of threats of criminal
prosecution of her husband on the charge of forging notes deposited
as collateral security for his own notes to a bank, a wife gives her
note to the bank for the amount of her husband's notes, and the cashier
of the bank delivers the husband's notes and the collaterals to a friend
of the wife, who iminediately hands them to her, with the request for
her to deliver them to her husband, which she does, she may avoid her
note, in an action upon it by the bank, upon the ground of duresa,
without restoring her husband's notes or the collaterals to the bank, w
she has received no benefit. City Nut. Bank v. Kusworm, 880.
EIGHT HOUR LAW.
See STATUTES, 2, 3
L. PLEADING-Prima FACIE CASE. -Under a statute requiring the defend.
ant in ejectment to plead the estate or license, under which he holds
possession, an answer by way of general denial creates no issue under
which evidence of his title is admissible, and, if the plaintiff pleads
and proves any legal title to the premises, be thereby establishes «
prima facie case. Allen v. Higgins, 847,
2 EQUITABLE DefeNSE.—A plea on equitable grounds may be interposed
in an action of ejectment, provided the matter set up authorizes the
defendant to enjoin the judgment, should one be recovered against
bim. The facts alleged in such plea must not, however, make such a
defense as is available in the common-law action, or the court is justi-
fied in refusing to allow the plea to be filed, or in striking it out if
filed. Johnson v. Drew, 172.
See COTENANCY; MUNICIPAL CORPORATIONS, 8; PATENTS, I.
800 CORPORATIONS, 3-3; INTOXICATING LIQUORS; WITNESSES, 6-7.
See NEGLIGENCE, 4, B.
ELEVATORS—MASTER AND SERVANT-CARRIERS. If a person using a whole
building for his business permits, but does not require, bis employees