Where the writ of mandamus is sought for the enforcement of a public
right, common to the whole community, it is not necessary that the re-
lator should have a special interest in the matter, or be a public officer;
the statute, however, requires that the proceeding shall be in the name
of the State.
Id.
3. Will not lie to compel Commissioner of State Lunds to execute a second patent.
In a proceeding by mandamus against the Commissioner of State lands, to
compel him to issue a patent to the petitioner to certain lands described,
it was alleged that he had, subsequent to the entry under which peti-
tioner claimed, issued a patent to another person who had been permitted
to enter the land: Held, that by the issuance of the patent the State had
parted with her title, and the petitioner's remedy was by a proceeding in
equity to divest the title of the patentee. Smithee, Com'r, etc., v. Mose-
ley.
MARSHALLING OF SECURITIES.
1. When purchaser not entitled to.
Where a vendee sold a tract of land subject to the vendor's lien for unpaid
purchase money, and the subsequent purchaser mortgaged one parcel,
and afterwards sold the remainder of it, without covenants against the
incumbrance in either case; Held, that the lien should be charged rateably
upon the two parcels according to value. Haskell, adm'r, v. The State
et al.
91
When one creditor has a security upon two funds, another having a security
on one of them, may, if necessary to the protection of his security, com-
pel the other to resort to the fund not embraced in it, if it can be done
without prejudice to the other creditor, or injustice to the common debtor
or third persons having an interest in the fund. Marr v. Lewis.
A held a mortgage on two tracts of land, B also held a mortgage on one of
the tracts; in a proceeding by A to foreclose, B sought to compel him to
exhaust the tract not embraced in his mortgage first. The widow of the
mortgagor, who was also a party, claimed a homestead in the latter tract:
Held, that by reason of the widow's equity, the securities should not be
marshalled.
Id.
Where the record-shows an order of the court below, appointing an attor-
ney ad litem for non-resident minor defendants, the court will not, there-
fore, presume there were minors in the case, in the absence of allegations
in the pleadings to that effect, but will treat it as a misprision. Hodges
et al. v. Frazier.
See DEED OF TRUST. LIEN, 3. MARSHALLING OF SECURITIES, 1, 3. POWER
OF SALE.
1. Removol of mortgaged property from another State, effect upon the lien.
Where a mortgage or deed of trust of personal property is duly executed
and recorded in another S ate, the removal of the property to this State
will not displace the lien, or render it necessary to record the instrument
here; and a purchaser for value will take subject to the lien. Hall v.
Pillow.
2. Bill of sale construed to be.
An absolute bill of sale, executed to secure a debt, operates as a mortgage,
an wil be postponed to a subsequent, and, recorded mortgage. Rogers
v. Vaughan, admı'r.
A land owner who had let his land to laborers for one half the crop, mort-
gaged his share to secure debts due various parties, and, among others, to
secure future advances and a debt due to A. The laborers afterward
gave to the land owner a lien on their shares to secure future supplies
and other debts due him, he transferred this lien to A, who, at the time
took a mortgage from the laborers to secure the supplies: Held, that A
did not take the lien and latter mortgage as collateral to the original se-
curity, but as independent security for the supplies to be furnished the
laborers, and the other creditors were not entitled to have it brought into
the trust fund.
. Id.
It requires clear and decisive testimony to show that a bill of sale, absolute
on its face, was intended as a mortgage.. Trieber v. Andrews.
163
A deed of trust, executed for the purpose of securing a debt, and to be void
upon payment of the debt, and containing a power of sale upon default,
is, in legal effect, a mortgage. (For a full review of the former d cisions
on this subject, see the opinion.) Turner v. Watkins.
429
6. EQUITY OF REDEMPTION: Right of the purchaser. Tender, etc.
A purchaser at execution sale of the equity of redemption in real estate,
succeeds to all the rights of the mortgagor, among which is the equitable
right of redemption, by paying the mortgage debt. And a tender of the
debt by such purchaser will stop the accrual of interest from the date
thereof.
Id.
The purchaser at execution sale of the equity of redemption under a deed
of trust, does not acquire such an int-rost in the land as entitles him to
maintain an action for the rents.
A mortgage on an unplanted crop, executed prior to the act of February
11th, 1875, was void at law. Tomlinson v. Greenfield.
See APPEAL, 5. BONA FIDE PURCHASER, 3, 4. DESCENT AND DISTRIBUTION,
4. DONATION, 1. JUDICIAL SALE, 2. LANDLORD AND TENANT, 1. LIS
PENDENS, 1. MORTGAGE, 1. PROMISSORY NOTES AND BILLS OF EX-
CHANGE, 3.
1. CONSTRUCTIVE SERVICE: Appearance, etc.
A warning order published against a minor defendant was not entirely
definite as to the place at which he was warned to appear. A guardian
ad litem was appointed by the court and filed an answer for the minor:
Held, the notice and appearance were sufficient to bind him. Williams et
al. v. Ewing & Fanning.
2. Judgment on constructive service.
Personal judgment cannot be rendered against a defendant constructively
served with notice.
See ACTION, RIGHT OF, 1, 2. MANDAMUS, 2.
As a general rule, all persons interested in the subject of the action must
be joined as plaintiffs or defendants, or an excuse shown for the non-
joinder; where, however, the cause of the omission is otherwise apparent
on the face of the complaint, no special averment is necessary. Jones et
al. v. Williams et al.
In a proceeding involving the validity of a will, all persons named in it as
legatees or devisees are necessary parties.
Id.
3. Legatees and devisees.
Where a bill for the settlement and distribution of an estate, alleges that
the deceased died intestate, but discloses the fact that a will was made
and published, and duly probated according to the laws of another State,
the latter allegations will control the former, and the legatees and devi-
sees under the will should be made parties.
Letters testamentary were granted to A, by the Probate Court, and were
subsequently revoked. Afterward a decree was rendered in a proceeding
in equity to re-instate him, under which he again assumed control of the
assets, but this proceeding was void: Held, in a proceeding to charge
him with the assets, that he should have been sued in his representative
capacity.
In a proceeding against the trustee in a trust mortgage, affecting the sub-
ject matter of the trust, the cestui que trust should be made a party, and,
upon a failure to do so, leave should be given the plaintiff to amend, or the
complaint should be dismissed without prejudice. Benjamin v. Lough-
borough's adm'r.
6. In proceedings to subject assets descended.
The heir is the only proper party. Williams v. Ewing & Fanning.
7. DESCENT, SUBSTITUTION, ETC.
Under the provisions of section 7 Gantt's Digest, if a woman dies leaving
a minor child, and an estate under the value of three hundred dollars, the
estate will vest in the child, who may be substituted as the plaintiff in a
suit instituted by the deceased parent. If the motion to substitute is
made within one year after the death of the parent, the opposite party is
not entitled to notice. Smith et al v. Allen.
8. Equitable proceeding to enforce satisfaction of judgment, etc.
In a bill filed under the provisions of sec, 2713 Gantt's Digest, by an execu-
tion creditor, for the purpose of subjecting the property of a defendant in
execution, the latter must be made a party, to entitle the plaintiff to dis-
covery and relief. Boone County v. Keck.
9. Misjoinder, waiver, etc.
Misjoinder of parties plaintiff cannot be taken advantage of in the Supreme
court, unless the objection was raised in the court below. Long v. De
Bevois & Co.、、
1. Articles of partnership, construction of.
Under articles of partnership which stipulated that the cash receipts, after
deducting one half the profits, are to be paid to one partner, and that the
other partners are, at the expiration of the partnership, to take their pro-
portion of the outstanding claims as part of the profits, the latter are not
required to take the whole of their profits out of the claims. The last
clause of the stipulation relates to such parts of the profits as the claims
represents. Moore v. Trieber and Wife.
113
Where a particular course of dealing is established between partners, without
objection, their assent thereto will be presumed, and they will be bound
by it.
3. Admissions of one partner.
Where a partnership is established, the admissions and representations of
one of the partners, about the partnership business, will bind the others.
Talbot et al. v. Wilkins et al.
Legal effect. Recitals, etc.
A patent executed by the Governor to swamp land is sufficient evidence of
title. The recitals thereof are official evidence of the facts recited. Chris-
man v. Jones.
609
See FRAUDS, STATUTE OF, 1
Option to pay in money or property.
Where the vendee of real estate contracts to pay the purchase money in
cash, or by the delivery of cotton of a specified class at a designated place,
as the payments become due, at his option, the right of election is not lost
by the failure to deliver the cotton at the time and place, where it is
brought about by the conduct of the vendor. Brodie & King v. Watkins
and Wife.
See ACCOUNT, 1. ACTION, RIGHT OF. EJECTMENT, 5, PARTIES. RELEASE.
SLANDER, 2.
1. Answer. Effect of admission, etc.
A material fact alleged in the complaint and admitted in the answer, is as
well pleaded in the answer as if averred therein. Gerson v. Pool. 85
Vol. XXXI.-49.
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