2. Recital of the provision amended. An act amendatory of a former stat-
ute need not recite the provision changed......
8. Mistake in such recital. If the former provision which is amended
be recited in the new enactment, and a mistake in such recital be
made, it does not render the new act void as in contravention of this
clause of the constitution.... ...
4. ACT IMPAIRING THE OBLIGATION OF A CONTRACT. An act requiring
the holder of a county warrant, which is over due and which draws
ten per cent per annum interest, to present the same at the treasury,
and surrender it and take in its place bonds drawing interest at
seven per cent per annum, payable at a distant day, is unconstitu-
tional. Brewer v. Otoe County ...
See ACTIONS 1. JURISDICTION 1, 2. TAXATION 1, 4.
1. The failure of a vendee of lands to perform the stipulations of the
contract on his part does not terminate the contract, but leaves it
optional with the vendor to adhere to or rescind it. Eaton v. Redick. 805
2. Rescission. The vendor, by selling the property to another, exercises
his option and rescinds the contract, and thereafter the parties stand
as if no contract subsisted between them
8. Recovery of amount paid. When the vendor, availing himself of the
vendee's default, elects to put an end to the contract, the vendee
may recover back the money he has paid in part performance, with
interest from the date of the rescission......
See CONSTITUTION 4. DAMAGES 1, 2.
EVIDENCE 2. LEX LOCI CONtractus 1.
SPECIFIC PERFORMANCE 1, 2, 9, 10, 11.
VENDOR 2, 4.
1. ABSOLUTE CONVEYANCES to be construed as mortgages. A deed of real
estate, absolute on its face, given to secure the payment of a sum of
money, as between the parties, and all persons having knowledge of
the purpose for which it is given, must be construed as a mortgage.
Wilson v. Richards.....
See CORPORATIONS 2. PRE-EMPTIONS 14.
STATUTE OF LIMITATIONS 2.
A resolution recorded at length on the journal
of the proceedings of a corporation, authorizing a party to negotiate
a loan for it, and execute a mortgage to secure the same, is suffi-
cient authority in that behalf. Cook v. Kuhn.....
A corporation which has enjoyed the fruits
of a loan, which it has authorized to be made, cannot avoid the se-
curity which its officer has given, until it has done equity by repay-
ing the money loaned......
3. ACT OF MEMBERS. A corporation whose governing power is vested in
a board of directors, is not bound by the act of its stockholders.
The Columbus Company v. Hurford ....
4 DEED. A deed executed in the name of the president of a corpora-
tion purporting to convey its lands, is inoperative. Zoller v. Ide.. 439
See AGENCY 2, 3, 4, 5, 6, 7. JURISDICTION 4.
1 A written request to counsel for his deliberate legal opinion, justifies
him in preparing and forwarding such opinion in writing. Jameson
v. Butler
1. The judgment creditor may reach the unpaid purchase money by
creditor's bill. Filley v. Duncan..
Criminal Law.
See LARCENY 1. PRACTICE 12.
PRACTICE IN CRIMINAL CASES 13, 14, 15
1. DAMAGES for breach of a contract for machinery, sustained by reason
of furnishing imperfect articles, cannot be shown by proof of what the
party to whom the same were furnished actually paid for replacing
them with such as the contract required. Holmes v. Boydston..... 846
The true rule is, the difference between the value of
the machinery furnished and what it would cost to replace the same
with such as was demanded by the contract......
1. Although it may be true as an abstract proposition that a derivative
title cannot be better than that from which it is derived, yet there
are many necessary exceptions to the operation of the rule. Mc-
Ausland v. Pundt...
1. ESTOPPELS must be reciprocal. Towsley v. Johnson
See NIEL TIEL CORPORATION 1.
1. VERDICT. A verdict of a jury in one case, in order to operate an
abatement of another, must have been recovered for the identical
cause of action and between the same parties. McReady v. Rogers. 124
2. The owners of a mill, in their contract for the erection therein of the
machinery, agreed to have their building ready for setting the same
up by a certain day, and the parties furnishing the machinery agreed
to have it up by a day also limited. The owners not being ready
when they were required to be, and thereby greatly delaying the
work of putting the machinery in, were not permitted to show what
their mill would have earned from the time the machinery was to
be in, had it then been ready to run.
Holmes v. Boydston.......
-: The value of services cannot be shown by proof of what was paid
therefor, but only by proof of what they are worth....
4. REBUTTING INCOMPETENT EVIDENCE. Competent evidence may be
received on behalf of one party, to rebut incompetent evidence in-
troduced by the other party without objection. McCartney v. The
Territory......
But incompetent testimony cannot be admitted to rebut incom-
petent testimony....
See AGENCY 3. DAMAGES 1, 2. PRACTICE 8, a, c, 13, g.
PRACTICE IN CRIMINAL CASES 6. RES ADJUDICATA 3
SPECIFIC PERFORMANCE 1.
1. CAVEAT EMPTOR applies with all its force to a purchaser of real estate
on execution. Miller v. Finn..........
2. -: D. had judgment against B. in 1858, took out execution under
which real estate was sold on the 24th of October, 1859. The sher-
iff's deed to the purchaser expressed the conveyance of B.'s interest
on the 24th day of October. P. had a judgment against B. which,
on the 16th day of October, 1859, became a lien on the premises.
Afterward he took out execution and sold the same premises, held,
that the purchaser took no title.....
8. ―: A creditor had judgment in 1859, took out execution, but at
what time did not appear; took out an alias in 1862, held, that his
lien was postponed to those of intermediate judgments....
1. THE REMEDY OF STRICT FORECLOSURE is not taken away by the statute
of this territory providing a remedy by sale of the mortgaged pre-
Woods v. Shields.....
MECHANICS' LIEN 1. PARTIES 2, 6.
REDEMPTION 2, 3. SHERIFF'S SALE 1.
If an insolvent convert his property into notes,
payable to a third party as his assignee, and the transaction is con-
cealed from his creditors, a creditor's bill will lie to reach the fund,
and the plaintiff therein will be entitled to it. Rogers v. Jones...... 417
2. IN MORTGAGE AND IN FORECLOSURE THEREOF. A mortgage to secure
a sum certain, and future advances duly recorded, and by regular pro-
ceedings foreclosed, is not fraudulent as to creditors. Miller v. Finn, 254
Strong positive proof of fraud is required to avoid the recitals
and findings in a decree of a court of general jurisdiction
4. IN SALE. It is fraud in a vendor of a horse not to acquaint a vendee,
when negotiating for the purchase, of facts affecting the value of the
animal, which, if known to him, would prevent the vendee from buy-
ing. Jones v. Edwards.....
1. LIEN OF JUDGMENT: After acquired lands. Until levy of execution, the
lien of a judgment does not attach to lands, acquired after its rendi-
tion, so as to affect bona fide purchasers. Filley v. Duncan....
-: As against equities. Equity will control judgments, so as to pro-
tect equities of third parties existing at its recovery...
-: As against vendee. A judgment against a vendor of lands, recov-
ered after his agreement to convey, is not a lien against a vendee in
possession, beyond the unpaid purchase money.......
· Constructive notice. The entry of the judgment will not of itself
compel the vendee in possession, under contract, to make subsequent
payments to the creditor
5 -: Actual notice, of the mere fact of the entry of the judgment, will
not compel him to do so.-CROUNSE, J.........
6. SEVERAL JUDGMENTS AGAINST WRONG-DOERS. Several actions may be
brought, and several judgments recovered against several wrong-doers,
although but one satisfaction can be had. McReady v. Rogers...... 124
See EXECUTION TITLE 2, 8. PARTIES 11. SURETY 1.
1. CONFIRMATION. The return of the sheriff or master of a judicial sale
must show that the appraisers were residents of the county in which
the premises are situated. Laughlin v. Schuyler
2. -: In parcels. Each lot or parcel of ground must be appraised and
sold separately, or the sale will be set aside......
-: Not defeasible. A party who has recovered a judgment or decree,
under which his adversary's property has been sold to him, holds an
estate which is not merely defeasible upon a reversal of the judgment
or decree by an appellate court. McAusland v. Pundt
4. -:Why restored on reversal. The principle upon which the property
so sold, remaining in the hands of such party at the time of reversal,
is returned to the former owner, is that of convenience in doing jus-
tice between the parties....
-: Not restored when held by grantee. If a party who has recovered
a judgment or decree becomes the purchaser of property thereunder,
and conveys the same to a third party, and afterwards, the judgment
and decree not having been superseded by bond, is reversed in the
appellate court, such grantee will retain the property notwithstanding
the reversal
6. -:When party thereto retains property. And so will the party if he
retain the property at the time of the reversal Per CROUNSE, J.... id
See SHERIFF'S SALE 1, 2, 3, 4, 5.
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