CH. 31. FISH. 599 CHAPTER 31.-FISH. 3169 SECTION 1. [Fish commissioner-Appointment.] That the governor shall nominate, and by and with the advice and consent of the senate appoint three resident citizens of the state of Nebraska, who shall constitute a board of fish commissioners, who shall hold such office for the term of three years from the date of such appointment and until the appointment of their successors; Provided, That the persons first appointed under this act shall hold such office one, two, and three years, respectively, whose respective terms of office shall be designated in such appointment, and thereafter the governor shall in like manner fill all vacancies in said board during the remainder of the term. [1879, § 1, 154.] 3170 SEC. 2. [Same-Government.] The board may adopt by-laws for its government not inconsistent with the laws of the state. The person whose unexpired term of office is the shortest shall preside at the business meetings of the board. In the determination of all questions by the board, two members must concur. 3171 SEC. 3. [Compensation-Expenses.] The members of the board shall receive no compensation for services performed, but they shall be reimbursed actual and necessary expenses incurred in the discharge of the duties of the commission, not to exceed the sum of $500 in any one year, out of money appropriated for that purpose. 3172 SEC. 4. [Powers-Duties.] The board shall have the entire charge and supervision of all public waters pertaining to the collection, propagation, cultivation, distribution, and protection of fish in this state. It shall have control of all property of the state obtained or held for the purposes contemplated by this act. It may It shall receive all fish and fish spawn donated to the state by the United States fishery commission, or from other sources or persons, or purchased by the state. establish hatching boxes, etc., for the preservation and hatching of spawn and fry, and in the most practical and economical manner procure and distribute fish in the public waters of this state, and adopt such other means as shall, in its judgment, best promote the increase and preservation of food fishes. 3173 SEC. 5. [Same.] The commission may take or cause to be taken, under the direction of the board, any fish at any time for the purpose of fish culture or for scientific observation. They shall give special attention to the enforcement of the laws of the state relative to the protection of fish and fisheries in the state. 3174 SEC. 6. [Report to governor.] The board shall annually, on or before the first day of January in each year, report its transactions, with an account in detail of all its receipts and expenditures, to the governor, also of all spawn and fish taken or received and distributed, giving time, place, and sources from which received, and such other matters as appertain to the fishery interests of the state. CHAP. 31. "An act creating a board of fish commissioners for the propagation and distribution of fish in the public waters of Nebraska." Laws, 1879, 154. CHAPTER 32.-FRAUDS. OF FRAUDULENT CONVEYANCES AND CONTRACTS RELATIVE TO REAL ESTATE. 3175 SECTION 1. [When void.] Every conveyance of, or charge upou, any estate or interest in lands, or the rents and profits thereof, made or created with intent to defraud prior or subsequent purchasers for a valuable consideration, shall, as against such purchasers, be void. [R. S., 292, § 60. G. S., 391.] 3176 SEC. 2. [Subsequent purchaser.] No such conveyance or charge shall be deemed fraudulent, in favor of a subsequent purchaser, who shall have actual or legal notice thereof at the time of his purchase, unless it shall appear that the grantor in such conveyance, or person to be benefited by such charge, was privy to the fraud intended. [Id., § 61.] 3177 SEC. 3. [Conveyance to be in writing.] No estate or interest in land, other than leases for a term not exceeding one year, nor any trust or power over or concerning lands, or in any manner relating thereto, shall hereafter be created, granted, assigned, or surrendered or declared, unless by act or operation of law, or by a deed or conveyance in writing, subscribed by the party creating, granting, assigning, surrendering, or declaring the same. [Id., § 62.] 3178 SEC. 4. [Wills and trusts.] The preceding section shall not be construed to affect in any manner the power of a testator in the disposition of his real estate by a last will and testament, nor to prevent any trust from arising or being extinguished by implication or operation of law. [Id., § 63.] 3179 SEC. 5. [Lease.] Every contract for the leasing, for a longer period than one year, or for the sale of any lands, or any interest in lands, shall be void unless the contract, or some note or memorandum thereof, be in writing, and signed by the party by whom the lease or sale is to be made. [Id., § 64.] 3180 SEC. 6. [Specific performance.] Nothing in this chapter contained shall be construed to abridge the powers of the court of chancery to compel the specific performance of agreements in cases of part performance. [Id., § 65.] CHAP. 32. SECS. 1 to 25, being secs. 60-84, R. S., chap. LXIII. SEC. 1. Statute does not render contract void, but voidable. 8 Neb., 114. 11 Id., 227. Exempt property not susceptible of fraudulent alienation. 8 Neb., 174. 10 Id.. 117. 13 Id., 403. Bona fide purchasers for valuable consideration without notice protected. 6 Neb., 99. But one who purchases with notice, though for a valuable consideration, is not bona fide. Id. 11 Id., 328. Fraudulent intent must have been participated in or at least known to the purchaser. 9 Neb.. 47. 13 Id., 514. 22 Id., 814. But where purchaser has notice of fraudulent intent, he is not bona fide. 13 Neb., 514. 15 Id., 404. 12 Id., 456. 22 Id., 814. Burden of proof on purchaser. 15 Neb., 289. 19 Id., 47. Debtor cannot mortgage all his property to preferred creditor. 29 Id., 108. 30 Id., 800. SEC. 3. Parol testimony inadmissible to prove surrender of leased premises. 7 Neb., 75. Payment of a small portion of purchase money is not such part performance as takes the contract out of the statute 1 Neb., 53. 17 id., 58. 20 Id., 50. Whether payment of considerable portion sufficient, quare. 13 Neb., 306. Part performance by the vendor, including delivery of possession and full performance by the vendee, will take the case out of the statute. 10 Neb., 138. Verbal contract for purchase of real property with payment of a portion of purchase price and actual possession, would constitute a valid contract not within the statute. 25 Neb., 94. Third party purchasing from vendor while first vendee is in possession takes property subject to his rights. Id. Parol agreements held not within the statute. 9 Neb., 381. Under this section acknowledgement and record of deed not necessary to pass title. 12 Neb., 155. Statute no defense in action to recover price of land conveyed. 12 Neb., 634. 14 Id', 177. Authority of agent to sell must be in writing unless there is subsequent ratification of his acts. 14 Neb.. 292. Memorandum of contract which contains names of the parties, description of property, price, and refers to ten year terms of the seller as the terms of sale, is sufficient. Memorandum signed by agent in his own name binding on principal. 15 Neb., 131. Agreement need only be signed by him to be charged. 12 Neb., 552 17 Id., 679. Express trust cannot be raised by parol. 19 Neb, 440. Memorandum as evidenced by letters passing between parties, held, sufficient to take case out of the statute. 16 Neb.. 288. Where order for goods is entire, the acceptance of part of the goods takes case out of statute. 16 Neb., 402. Direct promise of agent, who is in possession of goods of an insolvent debtor in satisfaction of a debt of his principal, to pay the claim of another against such debtor. if he will not disturb him in the possession of such goods, is not a promise to answer for the debt of another and • need not be in writing. 24 Neb., 655. Parol agreement to convey does not create express trust. 3 Neb., 61. 19 Id., 433. 20 Id., 347. 31 Id., 340. Trust may be created by written contract. 30 Id., 469. Contemporaneous oral agreement of conditions. 30 Id., 302. Parol promise of grantor of real estate to warrant title void. 42 Id., 123. Memorandum signed by vendor sufficient. 36 Id., 493. SEC. 5. Contracts of agents. 3 Neb., 213. 17 Id., 124. Leases. 13 Neb., 6. 15 Id., 170. 19 Id., 542. 35 Id., 103. Oral acceptance of an option to purchase contained in a lease, held, sufficient under the statute. 25 Neb., 517. Contract of sale. 11 Id., 196. 20 Id., 662. SEC. 6. Part performance, deposit of building material. 30 Neb. 469. OF FRAUDULENT CONVEYANCES AND CONTRACTS RELATIVE TO GOODS, CHATTELS, AND THINGS IN ACTION. 3181 SEC. 7. [When void.] All deeds of gift, all conveyances, and all transfers or assignments, verbal or written, of goods, chattels, or things in action, made in trust for the use of the person making the same, shall be void as against the creditors, existing or subsequent, of such person. [Id., § 66.] 3182 SEC. 8. [Contract to be written.] In the following cases every agreement shall be void unless such agreement, or some note or memorandum thereof, be in writing, and subscribed by the party to be charged therewith: FirstEvery agreement that by its terms is not to be performed within one year from the making thereof. Second-Every special promise to answer for the debt, default, or misdoings of another person. Third-Every agreement, promise, or undertaking made upon consideration of marriage, except mutual promises to marry. FourthEvery special promise by an executor or administrator to answer damages out of his own estate. [Id., § 67.] 3183 SEC. 9. [Same.] Every contract for the sale of any goods, chattels, or things in action, for the price of fifty dollars or more, shall be void unless-FirstA note or memorandum of such contract be made in writing, and be subscribed by the party to be charged thereby; or, Second-Unless the buyer shall accept and receive part of such goods or the evidences, or some of them, of such things in action; or, Third-Unless the buyer shall, at the time, pay some part of the purchase money. [Id., § 68.] 3184 SEC. 10. [Public auction.] Whenever goods shall be sold at public auction, and the auctioneer shall, at the time of sale, enter in a sale book a memorandum specifying the nature and price of the property sold, the terms of sale, the name of the purchaser, and the name of the person on whose account the sale is made, such memorandum shall be deemed a note of the contract of sale within the meaning of the last section. [Id., § 69.] 3185 SEC. 11. [Sale void unless accompanied by delivery.] Every sale made by a vendor of goods and chattels in his possession or under his control, and every assignment of goods and chattels, by way of mortgage or security, or upon any condition whatever, unless the same be accompanied by an immediate delivery, and be followed by an actual and continued change of possession, of the things sold, mortgaged, or assigned, shall be presumed to be fraudulent and void, as against the creditors of the vendor, or the creditors of the person making such assignment, or subsequent purchasers in good faith; and shall be conclusive evidence of fraud unless it shall be made to appear on the part of the persons claiming under such sale or assignment that the same was made in good faith, and without any intent to defraud such creditors or purchasers. [Id., § 70.] 3186 SEC. 12. [Creditors.] The term "creditors," as used in the last section, shall be construed to include all persons who shall be creditors of the vendor or SEC. 7. Decisions relative to assignments. See chap. 6. SEC. 8. Promises, held, good under the statute. 12 Neb.. 70. 14 Id., 20. 15 Id., 101, 131. 9 Id., 384. 18 Id., 567. 19 Id., 532. Promises, held, void. 10 Neb., 368. 16 Id., 17. And see 13 Neb., 306. There being no delivery of the deed in question, held, that it was not available as a memorandum of a contract; nor would certain mortgage and notes executed by the grantee, but not delivered, constitute such memorandum sufficient to take the case out of the statute. 24 Neb., 86. Promise to pay debt of another; case stated, and promise, held, to be an original undertaking and not within the statute. 25 Neb., 226. 41 Id., 516. Contract which may be performed within a year not within the statute. 38 Id., 339. Contract to work a year for $150 per month within the statute. 43 Id., 121. SEC. 9. Object of section stated. 9 Neb., 180. Defense cannot be interposed by strangers. 10 Neb., 417. Acceptance as well as delivery necessary. 38 Id., 339. Memoranda in parts, as in correspondence. Id., 512. SEC. 11. Question of fraud, how raised. 2 Neb., 151. 13 Id., 77. Retention of possession by mortgagor. 3 Neb., 75. 6 Id., 219, 333, 397, 400. 11 Id., 120, 122. 7 Id., 138, 433. 8 Id., 377. 9 Id., 50. 12 Id., 586. 13 Id., 264. 14 Id., 393. 16 Id., 439. See also 12 Id., 456. 20 Id., 554. 25 Id., 80. Replevin by mortgagee. 18 Neb., 225. Presumption of fraud. 20 Neb., 171. Delivery without removal. 27 Id., 414. Mortgage greatly in excess of debt. Void as to creditors. 33 Id.. 714. Retention of possession only prima facie evidence of fraud. 34 Neb., 568. SEC. 12. Cited 12 Neb., 586. assignor at any time whilst such goods and chattels shall remain in his possession or under his control. [Id., § 71.] 3187 SEC. 13. [Exception.] Nothing contained in sections seventy and seventy-one [10, 11] shall be construed to apply to contracts of bottomry or respondentia, nor to assignments or hypothecations of vessels or goods at sea, or in foreign ports, or upon the waters of a navigable stream, if the assignee or mortgagee shall take possession of such vessels or goods as soon as may be after the arrival thereof. [Id., § 72.] 3188 SEC. 14. [Chattel mortgage.] Every mortgage or conveyance intended to operate as a mortgage of goods and chattels hereafter made, which shall not be accompanied by an immediate delivery and be followed by an actual and continued change of possession of the things mortgaged, shall be absolutely void as against the creditor of the mortgager, and as against subsequent purchasers and mortgagers in good faith, unless the mortgage, or a true copy thereof, shall be filed in the office of the county clerk of the county where the mortgager executing the same resides, or in case he is a non-resident of the state, then in the office of the clerk of the county where the property mortgaged may be at the time of executing such mortgage, and such clerk shall endorse on such instrument or copy the time of receiving the same, and shall keep the same in his office for the inspection of all persons; and such mortgage or instrument may be so filed, although not acknowledged, and shall be valid, as if the same were fully spread at large upon the records of the county. [1879, 107.] 3189 SEC. 15. [Index.] Such clerk shall also enter in a book to be provided by him for that purpose the name of all the parties to such instrument, arranging the names of such mortgagors alphabetically, and shall note thereon the time of filing such instrument or copy. Such mortgage when satisfied shall be discharged by an entry by the mortgagee, his agent or assignee on the margin of such index, which shall be attested by the clerk without fee; Provided, also, That the county clerk may discharge a mortgage on the presentation or receipt of an order in writing, signed by the mortgagee thereof and attested by a justice of the peace or some officer with a seal. Any mortgagee, assignee, or their legal personal representatives, after full performance of the conditions of the mortgage, who for the space of ten (10) days after being requested shall refuse or neglect to discharge the same as provided in this section, shall be liable to the mortgagor, his heirs, or assigns in the sum of fifty ($50) dollars damages; and also for all actual damages sustained by the mortgagor, occasioned by such neglect or refusal, said damages to be recovered in the proper action. [Amended 1885, chap. 53.] 3190 SEC. 16. [Ceases to be valid in five years.] Every such mortgage shall cease to be valid as against the creditors of the person making the same, or subsequent purchasers or mortgagees in good faith, after the expiration of five years from the filing of the same copy thereof. Every such clerk shall be entitled to receive the following fees for services under the provisions of this chapter: For filing such instrument or copy theref, ten (10) cents; for entering the same in SEC. 14. Mortgage between parties good though not written. 8 Neb., 4. 22 Id., 114. Good between parties. though not recorded. 11 Neb., 496. Or filed. 31 Id., 792. Failure of clerk to index does not render mortgage void as to subsequent mortgagee. 11 Neb., 501. Filing in case stated, held, insufficient as legal notice. 25 Neb.. 418. Refiling and recording not necessary for protection of mortgagee. 13 Neb., 76. Object of filing stated. 16 Neb., 461. Filed in county where mortgagor resides is notice into whatever county mortgagor removes property. 20 Neb., 555. 25 Id., 70. Mortgagee cannot withdraw original instrument from office of clerk where filed and proceed to foreclose. 24 Neb., 595. Removal of property to another county; mortgage must be duly filed in county where sale is to take place. 21 Neb., 400. Notice does not dispense with filing. Subsequent purchaser defined. 39 Id., 343. Mortgage properly filed becomes part of the records of county; duly certified to by proper officers is competent evidence of equal credibility to the original. 25 Neb., 563. Execution of mortgage under assumed and fictitious name; mortgage property filed; sale by mortgagor to third party under his true name, held, that title did not pass by the latter sale. 25 Neb., 456. In execution of chattel mortgage a trust is created in favor of mortgagor in respect to residue of property after claim of mortgagee is satisfied. 24 Neb., 63. Sureties not necessarily 34 Id., a book, ten (10) cents; and for certified copies of such instruments so filed as aforesaid, for every one hundred words, ten (10) cents. [1879, 108.] GENERAL PROVISIONS. 3191 SEC. 17. [Agreements to defraud.] Every conveyance or assignment, in writing or otherwise, of any estate or interest in lands, or in goods or things.in action, or of any rents or profits issuing therefrom, and every charge upon lands, goods, or things in action, or upon the rents and profits thereof, made with the intent to hinder, delay, or defraud creditors or persons of their lawful rights, damages, forfeitures, debts, or demands, and every bond or other evidence of debt given, suit commenced, or decree or judgment suffered, with the like intent as against the person so hindered, delayed, or defrauded, shall be void. [R. S., chap. LXIII, § 76.] 3192 SEC. 18. [Grants or assignments.] Every grant or assignment of any existing trust in lands, goods, or things in action, unless the same shall be in writing, subscribed by the party making the same, shall be void. [Id., 77.] 3193 SEC. 19. [Void, as to heirs, etc.] Every conveyance, charge, instrument, or proceeding declared to be void, by the provisions of this chapter, as against creditors or purchasers, shall be equally void against the heirs, successors, personal representatives, or assignees of such creditors or purchasers. [Id., § 78.] 3194 Sec. 20. [Fraudulent intent.] The question of fraudulent intent in all cases arising under the provisions of this chapter shall be deemed a question of fact, and not of law, and no conveyance or charge shall be adjudged fraudulent, as against creditors or purchasers, solely on the ground that it was not founded on a valuable consideration. [Id., § 79.] 3195 SEC. 21. [Title of purchasers.] The provisions of this chapter shall not be construed in any manner to affect or impair the title of a purchaser for a valuable consideration, unless it shall appear that such purchaser had previous notice of the fraudulent intent of his immediate grantor, or of the fraud rendering void the title of such grantor. [Id., § 80.] 3196 SEC. 22. [Lands.] The term "lands," as used in this chapter, shall be construed as co-extensive in meaning with "lands, tenements, and hereditaments," and the terms "estate and interest in lands" shall be construed to embrace every estate and interest, free hold and chattel, legal and equitable, present and future, vested and contingent, in lands as above described. [Id., § 81.] 3197 SEC. 23. [Conveyance.] The term "conveyance," as used in this chapter, shall be construed to embrace every instrument in writing (except a last will and testament), whatever may be its form, and by whatever name it may be known in law, by which any estate or interest in lands is created, aliened, assigned, or surrendered. [Id., § 82.] 3198 SEC. 24. [Consideration.] The consideration of any contract or agreement, required by the provisions of this chapter to be in writing, need not be set forth in the contract or agreement, or in the note or memorandum thereof, but may be proved by any other legal evidence. [Id., § 83.] SEC. 17. Cause of action, how stated. 7 Neb., 434. Vendee participating in fraud. 6 Neb., 99. Rights of ali mony included. 18 Neb., 476. Section cited. 19 Neb., 341. 7 Id., 24. 22 Id., 814. See also chap. 6, ante. Right of action limited to person hindered, etc. 28 Neb., 575. Contracts between relatives scrutinized. 43 Id.. 97. SEC. 20. 4 Neb., 171. 6 Id., 99. 12 Id., 586. 13 Id., 33. And see 16 Neb., 93. 18 Id., 453, 573. 19 Id., 47. 31 Id., 453. Intent must be plead. 12 Neb., 586. Not abrogated by assignment law. 41 Id., 67. 39 Id., 8. Perishable property. 37 Id., 463. SEC. 21. Cited 22 Neb., 814. |