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Execution Title,
1. CAVEAT EMPTOR applies with all its force to a purchaser of real estate
on execution. Miller v. Finn

.... 256

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 .....

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-: 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...

See REDEMPTION 4.

Foreclosure of Mortgage.
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-
mises. Woods v. Shields...

... 468
See FRAUD 2. MECHANICS' LIEN 1. PARTIES 2, 6.

REDEMPTION 2, 3. SHERIFF'S SALE 1.

Fraud.
1. AS TO CREDITORS. 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

8.

Strong positive proof of fraud is required to avoid the recitals
and findings in a decree of a court of general jurisdiction

id
2.

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.....

170
See PRE-EMPTIONS 10, 14.

Judgment.
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......... 134

-: As against equities. Equity will control judgments, so as to protect equities of third parties existing at its recovery..

184

8.

- : 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 .....

id

5 : Actual notice, of the mere fact of the entry of the judgment, will

not compel him to do 80.-CROUNSE, J......

id

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.

Judicial Sale. 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

409

2.

-: In parcels. Each lot or parcel of ground must be appraised and

sold separately, or the sale will be set aside...

id

3.

—: 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 .

211

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 justice between the parties.....

5. -: 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....

See Sheriff's SALE 1, 2, 3, 4, 5. [S. C. N.]

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Jurisdiction.
1. The power to hear and determine a matter in controversy, is jurisdic-

ton. It is coram judice, whenever a case is presented which brings
the power into action. It may be exercised according to the rules
of the common law, or by special direction, or informally. Smiley v.
Sampson

56

2.

: OVER CONSTITUTIONAL QUESTIONS. The courts have no jurisdic-
tion of matters which are committed to the discretion of the legisla-
ture. Bradshaw v. The City of Omaha......

16

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Nor may they declare an act unconstitutional, because the
legislature in passing it, was influenced by unworthy motives....... id

4.

-: Municipal corporations. The legislature may increase or restrict
the powers, extend or contract the limits, of cities, and the courts
cannot interfere.....

..... id

:

6. —: Municipal taxes. The courts have jurisdiction to inquire and

determine whether lands brought by the legislature within the limits
of a city, are justly subjected to taxes levied by it for its support;
because that is a question of property and private right ...

See PRACTICE 3, 6, 6.

PRACTICE IN CRIMINAL CASES 3.
PRE-EMPTIONS 2, 3. SCHOOL BOARD 2.

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Landlord and Tenant.
1. —: TENANT HOLDING OVER. A tenant for one year, holding over after

the expiration of his term, cannot disclaim his relation, nor question
his landlord's title. Mattis v. Robinson

8

2

i Assailing his landlord's title. Before he can be permitted to
assail his landlord's title, he must surrender his possession, acquired
under the lease

id

8.

-: Eviction or its equivalent necessary. Wherever there is a para-

mount title in a third person, who has a right thereby to the
possession, and it can be done without any collusion or bad faith to
the lessor, the tenant, in order to prevent being expelled by the
holder of that title, to whom otherwise he would be rendering him-
self liable as a trespasser, may yield the possession and attorn to or
take from such holder of the title, a new lease, or he may abandon
the possession. In neither case will he be liable to the first lessor
for rent. In the former case, he may resist his first lessor's claim to
the possession, by the new right thereby acquired

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-: Notice to his landlord. In all cases, he should notify his land-

lord of his action

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6. -: Pierce v. Brown, 24 Vt., 165, examined and overruled.....

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-: Buying in outstanding title. A tenant buying in an outstanding

title for the purpose of protecting his possession, shall have what he
has paid and legal interest, and no more ..

id

Larceny.
1. The bringing into this State, by the thief, of goods stolen in another

State, is not larceny. The People v. Loughridge

11

Lex Loci Contractus.
1. An agreement for a loan of money was made in New York, and the

money advanced there : a note dated in Nebraska, payable in New
York, and a mortgage on lands in Nebraska, were given to secure
the debt: held, that the circumstance that the note was made and
dated in Nebraska, was immaterial; the note was but and incident to
the agreement. The contract is to be governed by the laws of New
York. Sands v. Smith...

108

Mandamus.
1. A mandamus will not be allowed upon the hearing of the application

for which the applicant's title to an office, in virtue whereof he claims
the writ, is drawn in question. Anderson y. Colson ....

172

Mechanics' Lien.
. A party who furnishes material for the building of a house, but does

not follow the directions of the mechanics' lien law, has no lien on
the premises entitling him to redeem a mortgage made thereon, nor
does he acquire any interest in the premises by reason of his recovery
of judgment against the mortgagor after foreclosure and sale. Eaton
v. Bender

426

Merger.
1. There can be no merger unless a greater and a less estate meet in the

same person holding in the same right. Miller y. Finn ...... 255

2. Nor where intervening rights or estates interfere, nor where the inte-

rests of the party in whom the estates meet so require.....

id

8. Nor where the intention to keep the estates distinct may be inferred

or has been expressed......

id

Mortgages.
See CONVEYANCES 1. CORPORATIONS 1, 2.

FORECLOSURE 1. FRAUD 2.

Niel Tiel Corporation. 1. The maker of a note which is in terms payable to a bank, cannot, in an

action brought by it thereon, raise the question of its incorporation.
He is estopped to deny it. The Platte Valley Bank v. Harding...... 461

Officer 1. NEGLECT. The law will protect an individual who, in the prosecution

of a right, has done all that the law requires him to do, but fails to attain his right, by reason of the neglect or misconduct of a public officer. Smiley v. Sampson..

67

2. LIABILITY. A Probate Judge issuing an attachment and a sheriff exe

cut it, are not liable for the taking and conversion of property thereon if they have acted in good faith. Morgan v. Larsh. ........ 861

See ATTACHMENT 2. BONDS 1, 2. MANDAMUS 1.

Parties. 1. To suits BROUGHT ON CHOSES IN ACTION. The assignee of a chose in

action is the proper and the only party who can maintain a suit thereon. Mills v. Murry.

827

2.

-: Bringing them in by notice. An affidavit for publication of notice of pendency of suit alleged that the action was brought for the foreclosure of a mortgage, and that the defendants were non-residents of the State, without alleging that they could not be served with process in the State ; the notice was published four weeks next after June 16, 1860, and required the answer on the 30th July, 1860; held, the notice was sufficient, and a decree rendered thereon concluded the defendant. Miller v. Finn.....

254

8.

-: Appearance. A party whose agent, not an attorney of the court, has entered his appearance, and who has answered a cross-bill filed in the cause against him and the plaintiff in the original bill, affirms the appearance and becomes a party in the principal suit.

id

: Partners. The omission of one partner as a co-defendant in an action in respect of partnership property, can, at the common law, only be taken advantage of by plea in abatement duly verified.....

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: Impleading parties in a bill as “Pomeroy & Benton," and publishing notice of pendency of the suit addressed in that form, is sufficient to bring before the court the members of a firm doing dusiness under the style of Pomeroy, Benton & Co., composed of Pomeroy, Benton & Chase. ....

, 3

: Incumbrancers not made parties to foreclosure bill are not affected by decree .....

... 255

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