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at execution sale of an equity of redemption against whom a decree of foreclosure and sale has been entered, for a sum greatly in excess of what the premises afterwards bring on the sale, who has consented to the decree and withdrawn his appeal therefrom, has no interest in the premises and can convey none.


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Release 1 THE RELEASE of one of several joint obligors operates a release of all. Neligh v. Bradford......


Removal of Causes to Federal Court. 1. The acts of congress do not authorize the removal of causes from State

to Federal Courts, on the ground of prejudice or local influence, unless

1st. The application for removal be made before the trial or final

hearing in the State Court of original jurisdiction ; and 2d. The affidavit of prejudice or local influence be made by the

party in person. 3d. The application, when made by one of several defendants, must

be made in a cause which may be effectually proceeded in against one defendant separately from the other. Miller v. Finn.....


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Replevin. -: Demand. Under the Code, in Nebraska, in an action of replevin, in which ownership in the plaintiff is established, proof of demand by him of the defendant of the property before suit, is not necessary to maintain his action. Homan y. Laboo...


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If, at the service of the order, the defendant is not the owner of, or has not a special interest in the property, but holds the same innocently, only nominal damages can, without demand, be recovered by him ...



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If such be the fact he should so plead, and then he will have nominal damages and costs......


If such be the fact, but he alleges property in himself, demand need not be proved in order to maintain the action against him



.: Replevin will lie to recover the possession of buildings erected on a lot of ground by a party claiming title thereto, who, by judicial determination, has been evicted therefrom, if the buildings were by him set upon blocks, and were not, at the time of eviction, affixed to the soil, notwithstanding another being afterward in possession did

affix them to the soil, and they were so affixed when the replevin was brought. Mills v. Regick

.... 437

Res Adjudicata. 1. —: The decision oi a tribunal acting within its jurisdiction, whether

it be a court or merely a board, or an officer having special enumerated powers, can be reviewed or set aside only by a direct proceeding for that purpose. Mills v. Paynter ....



-: The mayor oť a city under the town site act, in determining a controversy between adverse claimants to the same lot, acts judicially, and his decision can be reviewed only by appeal.....



A verdict of a jury is not admissible, to show that the matter has been determined, even if it be between the same parties for the same cause of action ; because it is not conclusive of the matter. McReady v. Rogers


School Board. 1. POWER TO REMOVE TEACHERS. A statute empowering a school board

to employ teachers and remove them at pleasure, enters into and forms part of a contract made by the board with a teacher for his services for one year ; and he may be discharged within that time notwithstanding the terms of his employment. Jones v. Nebraska City, 176

2. JURISDICTION: To inquire the cause of removal. The court has not juris

diction to inquire the cause of the removal, nor whether the cause alleged be sufficient....

... id



Sheriff's Sale. 1. BUNA FJDE PURCHASER. A purchaser at execution sale of lands, who,

under the act of 1857, had the sheriff's certificate, but had not yet received his deed, was protected against an unrecorded prior mortgage upon a bill of foreclosure, filed before the expiration of the time allowed a defendant to redeem his lands sold on execution. Bennett v. Fooks & Moff!

.... 466

2 ORDERS CONFIRMING SALES. Until a sale of real estate, on execution or

order, is confirmed, either party to the same, and also the purchaser
may object thereto. Phillips. v. Dawley.....

820 purchase, and is entitled of right to an order directing the sheriff to make the deed.....

1 RichTS OF PURCHASER, A person by becoming a purchaser at a judicial

sale, becomes a party thereto, and may be compelled to complete his


4. ATTACKING ORDER. The order confirming the sale cannot be collater

ally attacked. It can only be questioned by a party in interest, and in a proper proceeding to review it.....


5. SHERIFF MAKING DEED. If the term of office of the sheriff who made

the sale expire before he make the deed, his successor, and not his
immediate successor only, but any other, may make the same.


Specific Performance.
SPECIFIC PERFORMANCE of a parol contract for the sale of lands-
1. Must be clearly established. A parol agreement for the sale and convey-

ance of land must be established by clear and most satisfactory proof,
or the court will not specifically enforce it. Poland v. O'Connor..... 50


2. PART PERFORMANCE. Payment of a small portion of the purchase price

is not such part performance as takes the contract out of the statute

of frauds.....

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3. -: Possession. To take such a case out of the statute, the posses

sion of the vendee must be by acts clear, certain and definite in their
object, and having reference to the contract...



Possession taken by the vendee after the vendor has disavowed the contract, which has been made by a person pretending to be his agent, will not support the claim....



Using a lot otherwise vacant, and adjoining the vendee's warehouse, for storing lumber, wagons and like articles, of himself, his firm and others who have placed the same in his hands for sale on commission, is not such possession as will take the case out of the statute....



-: Building. Not every possible act of the vendee done with reference to the contract, but those only to which he has been induced by positive action or permission of the vendor, or at most by those results which naturally flow from the agreement, operate to take the case out of the statute..


7. -: An instance. A vendee under such contract, who has purchased

a house with the view of placing it on the premises, but who has not done so, has not thereby taken his case out of the statute ....


8. POSSESSION EVIDENCE OF TITLE. A party in possession and cultivating

a tract of land, will be presumed to have some interest therein ; especially if he afterwards acquire the legal title. Filley v. Duncan..... 134 [S. C. N.]



He will, after acquiring the title, be compelled to specifi-
cally perform a contract to convey made prior thereto....... .... 134

10. Gross NEGLIGENCE. Specific performance of a contract for the sale

of real estate will not be decreed when the vendee has been guilty of
gross negligence in the performance of his stipulations. McAusland
v. Pundt.

.... 211


-: Excuses. Such neglect is not excusable, on the ground that
the title was involved in dispute, if the dispute existed when the con-
tract was made, and an unfavorable determination was provided
against by security taken and stipulations made at the time for the
vendee's protection ....


Statute of Limitations.
1. --: County warrants. The Statute of Limitations does not limit the

time within which proceedings to enforce the payment of county
warrants shall be instituted. Brewer v. Otoe County.

1st arg. The whole course of legislation shows that county war.

rants are not within the statute.

2d. arg. The cause of action upon a county warrant does not

accrue when the warrant is issued, but only when the money
for its payment is collected, or time sufficient for the collec-
tion of the money has elapsed.......


2. - : Suits to redeem. As against the right to redeem a conveyance

absolute in its terms, but in fact a mortgage upon unoccupied land,
the statute of limitations does not begin to run until tender of the
money secured by the mortgage, and refusal to reconvey. Wilson
v. Richards.

See Actions 1.

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1. —: A surety paying a judgment recovered against himself and his

principal, may, in an action brought by him thereon against his
principal, recover what he has actually paid to satisfy the same,
with legal interest and no more. Eaton v. Lambert .


2. —: A surety on one attachment bond incurs an obligation, several

as respects a surety on another attachment bond, when the two are
given respectively in several suits, against the same defendant, and
the same property is taken upon the two writs. Mc Ready v. Rogers 124

8. LIABILITY on an attachment bond. A surety on an attachment bond is

liable for all damages which the defendant in the writ may sustain,

up to the re-delivery of the property to him, if the attachment be dissolved because wrongfully issued....

... 124 See Parties 11.

Taxation. 1: CONSTITUTIONAL PROVISIONS. There is in the constitution of

Nebraska no express provision, limiting the legislative power of imposing, or distributing, or enforcing taxes. Brudshaw v. The City of Omaha



By the general provisions thereof the exercise of that power, when unjustly exercised, may be restrained .


3. City AND State. Whether a city can be authorized to tax property

not justly subject thereto, is a question very different from that of the validity of State taxes ·

1. The relations of the citizen to the State and to a particular

city, are different.

2. All citizens are compensated for what, in the form of taxes,

they pay to support the State. This may not be true of taxes
levied and exacted by a city.

8. State taxes are levied for political, city taxes for administra

tive purposes


4. COMPENSATION. The constitutional provision that private property

shall not be taken for public use without just compensation, implies that it shall not be taken for private use at all; either with, or with: out compensation. This is the same as the axiom of natural justice. that the State shall not take A's property, and give it to B .......


5. City. The nature of the act of taking one man's property and giving

it to another, is not modified by the circumstance, that the party to whom it is given is a city


6. PUBLIC OBJECT. When a city seeks to take private property for its

uso, whether under the form of taxes or otherwise. the object for which it is taken must be a matter of public advantago .


7. Tests. If lands have been divided into town lots, and purchasers of

small parcels have been invited to settle thereon, if she owner has done any affirmative act inducing the corporate authorities to treat them as town property, or if town settlements have approached near to them, so that their enjoyment in peace and good order demands the police regulations of a city, they are justly liable to municipal taxation


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