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the building, and next to the Howes & King cense to use or impose a servitude upon the building, instead of on the east side, as real property of another ceases to be a mere originally planned. No written agreement license revocable at will, and ripens into of any kind was entered into, and after the the certainty and dignity of an easement. building was completed the stairway was Still there are some primary and fundamenused by the Barmons and their tenants, tal principles, well established, which underand also by Howes & King and their tenants. lie this class of cases, a reference to which On the other hand, the Barmons, by means should afford a reasonably safe guide. of posts, erected a porch 5 feet wide and 50 It is settled law that a license creates no feet long (the full length of their building) estate in lands, and may therefore rest in to the second story of the building, and parol. Johnson v. Skillman, 29 Minn. 95, used that, in connection with their resi 43 Am. Rep. 192, 12 N. W. 149; Mumford v. dence in the second story of that building, Whitney, 15 Wend. 380, 30 Am. Dec. 60; until a few days prior to the commencement Great Falls Waterworks Co. v. Great Northof this action. Matters ran along in this ern R. Co. 21 Mont. 487, 54 Pac. 963; Cook manner until about the 14th day of June, v. Stearns, 11 Mass. 533; Clark v. Glidden, 1902, when the Barmons tore away the 60 Vt. 702, 15 Atl. 358; Wood v. Leadbitter, porch, and ceased to use the same, and noti- | 13 Mees. & W. 838, 16 English Ruling Cases. fied Howes & King that it was their in- 54; Jones, Easements, $$ 63, 68. On the tention to revoke the license previously other hand, an easement is an interest or granted to them to use the stairway; and estate in real property, and is subject to they thereupon proceeded to lock up the the operation of the statute of frauds. Rev. front entrance and close up the entrance Stat. 1887, 8 6007; 14 Cyc. Law & Proc. p. from the top of the stairway into the Howes | 1144; Pifer v. Brown, 43 W. Va. 412, 49 & King building. The respondents there- L. R. A. 497, and note, 27 S. E. 399; Clark upon commenced this action, and secured a v. Glidden, 60 Vt. 702, 15 Atl. 358; Jones, temporary injunction against the appellants, Easements, § 65. Where the contract or restraining them from closing up the stair agreement, whether it be called a license or way or interfering with their free use there an easement, looks to the acquirement of a of. The Barmon property was purchased right of passage, as in this case, over a in the name of Fannie Barmon, the wife of stairway, and rests entirely in parol, it is the defendant Abraham Barmon, and at all clear, under all the authorities, that the times has stood upon the records in her licensee or grantee must have entered into name, and is claimed by her as her separate possession, expended money, and made improperty. A great portion of the briefs of provements in such manner and to such an counsel has been devoted to the discussion of extent that a refusal to enforce the agreethe evidence on that question, and the law ment in specific terms would work a fraud applicable thereto. The court found, how- upon the licensee or grantee. 10 Am. & ever, that the property was the community Eng. Enc. Law, 2d ed. p. 412; 18 Am. & property of the defendants, and we are in. Eng. Enc. Law, 2d ed. p. 1146; Baltimore clined to think there is sufficient evidence & H. R. Co. v. Algire, 65 Md. 337, 4 Atl. in the record to justify that finding. It is 293. See note to Pifer v. Brown, 49 L. R. Rot necessary for us, however, to discuss the A. 497. It is also true that the alleged sufficiency of the evidence to sustain the part performance relied on to take the case findings, for the reason that, in the view out of the statute of frauds must be founded we take of this case, the findings of fact do on, and referable solely to, the specific terms not support the legal conclusions that the of the agreement. Johnson v. Skillman, 29 court has drawn from them.

Minn. 95, 43 Am. Rep. 192, 12 N. W. 149; The appellants claim that the privileges Wheeler v. Reynolds, 66 N. Y. 227; Wiseexercised by each over the realty of the oth- man v. Lucksinger; 84 N. Y. 31, 38 Am. er were merely mutual licenses, revocable Rep. 479. In this cise the respondents by either at will. On the other hand, the had parted with nothing whatever. They respondents claim that these transactions paid no consideration for the perpetual amounted to mutual contracts for convey- easement they claim to have purchased. ances by good and sufficient deeds.—a titl. They were out nothing for the construction from Howes & King to the Barmons to the of the stairway, and the evidence shows 5-foot strip of ground immediately south that they never at any time have assisted in of the Barmon building, and a conveyance maintaining or keeping up the stairway, or from the Barmons to Howes & King of a keeping the same cleaned or lighted; nor did perpetual easement in the stairway ascend the respondents offer to show upon the ing from the street to the second story of trial what agreement, if any, they made their building.

with reference to the maintenance of the It is difficult to ascertain from the great | stairway, or the care and lighting of the mass of conflicting decisions just when a li same, or the width thereof, or the character of the stairway which should be constructed | scionable for a court to encumber the appel. or maintained. It is true that the appellants' property with a perpetual servitude, lants entered into the possession and use of which the evidence shows would depreciate the 5-foot strip of land which respondents the property from 10 to 25 per cent. The contend was to be given as a consideration privileges granted by appellants to respondfor this easement. But it is not contended ents were evidently of a purely personal anywhere that the use of this strip of land character, and would not have been conwas of any greater value for the same period ferred on a stranger to the licensors, even of time than was the right to pass over the though he had had title to the Howes & King stairway for a like period of time. These property. But if the easement should be rights appear to have been mutual and in- decreed as contended for, it would run with terchangeable, and one would apparently off- the Howes & King property, and would pass set the other. This arrangement or agree to their grantees, whoever they might be. ment should be interpreted and dealt with After the perusal of a great number of in the light of the circumstances under conflicting and in harmonious decisions, we which the parties acted. It is clearly ap- have been unable to find any case where parent from the testimony of both Howes the courts have held a license such as this and Barmon that, whatever conversation irrevocable on the ground alone that the or agreement they had, it was merely in licensee had been let into possession; but the light and spirit of an exchange of in such cases, where specific performance neighborly courtesies, and was never given has been required, the courts have uniformthe consideration which the parties would ly rested their decisions upon the grounds attach to a contract which looks to one par- that the licensee had not only been lot into ty parting with the fee to his property, and possession, but that he had made expendithe other to burdening his realty with a tures or erected valuable improvements, perpetual servitude. As an instance of this, for which he could not be adequately comthe title to the property stood on the rec. pensated in damages. Lawrence v. Springer, ords in the name of Mrs. Barmon at the 49 N. J. Eq. 289, 31 Am. St. Rep. 702, 24 time of the agreement, and yet no contract Atl. 933; Whceler v. Reynolds, 66 N. Y. was made with her, and nothing appears to 227; notes to cases hereinbefore cited. The have been said in reference to the transfer modern decisions seem strongly inclined to of title, or whether or not the property was hold a parol agreement looking to encumcommunity property, or the separate prop- bering real property with a servitude as a erty of the wife.

mere license, revocable at will, and this we There is no reason shown in this case, think the much safer rule. While this court that we can discover, why the aid of a is not now prepared to go to the extent ancourt of equity should be invoked in behalf nounced in Crosdale v. Lanigan, 129 N. Y. of the plaintiffs. If the court should re- 604, 26 Am. St. Rep. 551, 29 N. E. 824, still fuse to decree them a perpet''al easement in the language there used by the New York this stairway, they would be in no worse court appeals to us as both safe and just, position than they would have been in the when they say: “The courts in this state first place, had the Barmons erected their have upheld with great steadiness the genbuilding without permitting plaintiffs to eral rule that a parol license to do an act on use their stairway. In that event Howes & the land of the licensor, while it justifies King would have been under the necessity anything done by the licensee before revocaof erecting a stairway by means of which tion, is nevertheless revocable at the option to reach the second story of their building. of the licensor; and this, although the intenThey have parted with no consideration for tion was to confer a continuing right, and the use of this stairway, nor have they lost money had been expended by the licensee upany property or right by reason of having on the faith of the license. This is plainly neglected to build a stairway themselves. the rule of the statute. It is also, we beIf they are refused a decree in this case, they lieve, the rule required by public policy. It will only be left in the same position they prevents the burdening of lands with reoriginally occupied. This is a case where a strictions founded upon oral agreements refusal bv the court to gront plaintiffs a de- easily misunderstood.” See also Johnson v. cree will leave them absolutely in statu quo. Skillman, 29 Minn. 95, 43 Am. Rep. 192, But courts of equity grant relief in such 12 N. W. 149; Cronkhite :v. Cronkhite, 94 cases upon the principal theory that the N. Y. 323; St. Louis Nat. Stockyards v. parties cannot be placed in the position they Wiggins Ferry Co. 112 Ill. 384, 54 Am. Rep. originally occupied, and therefore equity 243; Wood v. Michigan Air Line R. Co. 90 will compel them to live up to their agree- Mich, 334, 51 N. W. 263. This seems to ments. Here the reasons for equitable in grow out of the proposition that, since a terposition do not seem to exist, and we do parol license to impress real property with not think it would be either just or con- a servitude cannot be perpetual or irrevo

а

cable, on account of the prohibitions of the show that a deed delivered to the statute of frauds, and the parties not having

grantee and absolute on its face shall take

effect only upon the performance of some concomplied with the requirements of the stat

dition or the happening of some contingency ute, they will be presumed to have dealt in

unexpressed therein. conformity with law, and therefore to have 6. In such case the vesting of title is intended a license rather than an easement.

determined by the legal effect of the terms The trial court evidently concluded in this of the grant, and cannot be controlled by case that the acts and conduct of the par- parol evidence. ties amounted to an executed contract for a

7. A grantor cannot by warranty deed,

absolute on its face, and free from perpetual easement over the appellants'

conditions or restrictions, convey such property, but we are clearly of the opinion

title to his grantee as will enable the that it only amounted to a license revocable

grantee to pass a good title to a specific corat will. It follows that the judgment must poration, and at the same time attach such be reversed, and it is so ordered. The cause parol conditions to the deed upon its deis remanded, with directions to enter judg. livery as to preclude the grantee from transment in accordance with the views herein

ferring an equally good title to any other

person or corporation. expressed. Costs awarded to appellants.

8. Where B. executes a warranty deed

free from any conditions or qualifiStockslager, Ch. J., and Sullivan, J.,

cations as to the vesting of title, and deconcur.

livers it to the grantee, W., accompanied with a contemporaneous parol agreement to the ef

fect that W. shall form a corporation and W. G. WHITNEY, Respt.,

deed the property to such corporation, and

thereupon pay B. $1,000 cash and deliver V.

to B. $5.000 worth of first-mortgage bonds E. H. DEWEY, Appt.

of the corporation secured on the property

so deeded, and the deed is placed in the hands (........ Idaho....... .)

of the grantee to facilitate such transaction,

- Held, that the delivery was absolute, and *1. Where a motion for a new trial has

title vested at once in the grantee. been made, and the statement used on such 9. Even though a valid delivery of a motion contained an assignment and speci. deed had not been made at the time of fication of error's, and an appeal is taken its execution, still the grantor may thereafter from the order denying the motion, and the ratify the wrongful taking of the deed by the original brief of appellant contains no enu- grantee after the grantor has acquired commeration of errors relied on, but refers to the plete knowledge of the facts of the transactranscript and discusses such errors, and

tion, and thereby perfect the title. prior to the argument in the appellate court a supplemental brief is filed by appellant,

(February 23, 1905.) making a specific enumeration of such errors. the same will be regarded as a substantial compliance with the rules of this court, and

PPEAL by defendant from a judgment the case will be examined on the merits.

of the District Court for Canyon 2. Section 4127, Rev. Stat. 1887, gives to County in plaintifls favor in an action

an aggrieved party an exception to brought to quiet title to certain real esthe ruling of the court in granting or tate. Reversed. overruling a motion for a new trial, and

The facts are stated in the opinion. on appeal from such order the appellant is entitled to have the assignment and specifi

Messrs. N. M. Ruick and W. E. Borah, cation of errors contained in his statement

for appellant: used on the hearing of such motion examined There is no rule of pleading and practice

and considered by the appellate court. which will permit an allegation that a deed 3. A deed alosolute on its face cannot was delivered under the terms of a written be delivered to the grantee therein

contract, and proof of the fact that it was named, to be by him held in escrow; and a

delivered under an oral contract, when the delivery which purports to be sich will op erate as alsolute and freed from all parol

question of delivery is not an incident, but conditions, and title will vest at once. goes to the vital controversy in the case, 4. It is a settled principle of law that and to the very validity of the deed itself.

the evidence of delivery of a deed Spader v. AlcVell, 130 Cal. 500, 62 Pac. must come from without the deed : in other | 928; Frazier v. Ebenezer Baptist Church, words, a deed does not upon its face show

60 Kan. 404, 56 Pac. 752: Westchester F. delivery, and therefore parol evidence is ad. missible to show such fact.

Ins. Co. v. Coverdale, 9 Kan. App. 651. 58 5. Parol evidence is inadmissible

Pac. 1029; Maynard v. Firemen's Fund Ins. to

Co. 34 Cal. 60, 91 Am. Dec. 072; Stout v. *Ileadnotes by AILSHIE, J.

Coffin, 28 Cal. 65; Cox v. AlcLaughlin, 03

Cal. 207: Hinkle v. San Francisco E N. P. NOTE.-For a case in this series holding that a deed cannot be delivered in escrow to the

R. Co. 55 Cal. 627; Perkins Vindmill it grantee, see Darling v. Butler, 10 L. R. A. 469, Ax Co. v. Yeoman, 23 Ind. App. 483. 55 N. with note as to definition of escrow.

E. 782; Stewart v. Cleveland, C. C. & St. L.

A

R. Co. 21 Ind. App. 218, 52 N. E. 89; v. Atherton, 106 Ill. 35; Gaston v. PortTrueblood v. Shellhouse, 19 Ind. App. 91, land, 16 Or. 255, 19 Pac. 130; Miller v. 49 N. E. 47; Broroning v. Walbrun, 45 Mo. Fletcher, 27 Gratt. 403, 21 Am. Rep. 356; 477; Glick v. Weatherwax, 14 Wash. 560, Wadsworth v. Warren, 12 Wall. 313, 20 L. 45 Pac. 156; Wheeler v. Schad, 7 Nev. 204; ed. 404. Adams v. Hicks, 41 Tex. 239; Rogers v. There was an attempt to show by parol Kimball, 121 Cal. 247, 63 Pac. 649; Mon- evidence a trust which is in the teeth of dran v. Goux, 51 Cal. 151.

our statute of frauds. If a writing imports upon its face to be Rev. Stat. § 607; Feeney v. Howard, 79 a complete expression of the whole agree- Cal. 525, 4 L. R. A. 826, 12 Am. St. Rep. ment, it is to be presumed that the parties 162, 21 Pac. 985; Johnson v. Calnan, 19 have introduced into it every material item Colo. 168, 41 Am. St. Rep. 224, 34 Pac. and term; and parol evidence cannot be ad. 905; Doran v. Doran, ,99 Cal. 311, 33 Pac. mitted to add another term to the agree. 929; Highland Park Co. v. Walker, 13 Colo. ment, although the writing contains noth- App. 352, 57 Pac. 759. ing on the particular one to which the If the grantor delivers the deed to the parol evidence is directed.

grantee, the law will not allow the solemn Harrison v. McCormick, 89 Cal. 327, 23 recital therein of conveyance and delivery to Am. St. Rep. 469, 26 Pac. 830; Nicholson be so modified as to show that it was held v. Tarpey, 89 Cal. 617, 26 Pac. 1102; Thomp by the grantee in escrow, or for some other son v. Libby, 34 Minn. 374, 26 N. W. 1: purpose than that of conveying title. Naumberg v. Young, 44 N. J. L. 333, 43 Am. Mays v. Shields, 117 Ga. 814, 45 S. E. 68; Rep. 380; Hei v. Heller, 53 Wis. 415, 10 Sims v. Greenfield & N. R. Co. 102 Mo. N. W. 620; Crecry v. Holly, 14 Wend. 26; App. 29, 74 S. W. 421; Findley v. Means, Stone v. Harmon, 31 Minn. 512, 19 N. W.71 Ark. 289, 73 S. W. 101; Galreston, H. 88; Mackey v. Magnon, 12 Colo. App. 137,54 E 8. A. R. Co. v. Pfeuffer, 56 Tex. 72; Pac. 907; Ming v. Pratt, 22 Mont. 262, 56 Ward v. Dougherty, 75 Cal. 240, 7 Am. St. Pac. 279; Judson v. Malloy, 40 Cal. 307: Rep. 151, 17 Pac. 193; Tunison v. ChambMcIntosh-Huntington Co. v. Rice, 13 Colo. lin, 88 Ill. 379; McClendon v. Brockett, 32 App. 393, 58 Pac. 358; Irving v. Cunning. Tex. Civ. Ann. 150, 73 S. W. 854; Hoffmire ham, 66 Cal. 15, 4 Pac. 766; Liverpool, L. v. Martin, 29 Or. 240, 45 Pac. 754; Bury v. at G. Ins. Co. v. T. M. Richardson Lumber Young, 98 Cal. 446, 35 Am. St. Rep. 186, Co. 11 Okla. 585, 69 Pac. !938; Forsyth Mfg. 33 Pac. 338; Ruiz v. Dow, 113 Cal. 490, 45 Co. v. Castlen, 112 Ga. 199, 81 Am. St. Rep. Pac. 867; Foley v. Cowgill, 5 Blackf. 18, 28, 37 S. E. 485; Hand v. Miller, 58 App. 32 Am. Dec. 49; Hicks v. Goode, 12 Leigh, Div. 126, 68 N. Y. Supp. 531; Hilgar v. 479, 37 Am. Dec. 677; Moss v. Riddle, 5 Hiller, 42 Or. 552, 72 Pac. 319.

Cranch, 351, 3 L. ed. 123; McGee v. Allison, Whether a deed passes title or not must 94 Iowa, 527, 63 N. W. 324; Beers v. Beers, be determined by its legal effect. If it 22 Mich. 43; Blewett v. Front-Street Cable has been executed and delivered its effect R. Co. 49 Fed. 126; Bryan v. Walsh, 7 Ill. is determined by its language. The deed 567. cannot be delivered to the grantee as an There was a complete delivery.

McLennan v. McDonnell, 78 Cal. 273, 20 Moury v. Heney, 86 Cal. 471, 25 Pac. 18; Pac. 566; Kenniff v. Caulfield, 140 Cal. 34, Co. Litt. 36a; Williams v. Green, Cro. Eliz. 73 Pac. 803; Standiford v. Standiford, 97 pt. 2, p. 884; Shep. Touch. 59; Whyddon's Mo. 231, 3 L. R. A. 299, 10 S. W. 836; Case, Cro. Eliz. pt. 2, p. 520; Braman v Iļoffmire v. Martin, 29 Or. 240, 45 Pac. Bingham, 26 N. Y. 483; Worrall v. Aunn. 754; Wittenbrock v. Cass, 110 Cal. 1, 42 5 N. Y. 238, 55 Am. Dec. 330; Blewitt v. Pac. 300; Martin v. Flaharty, 13 Mont. 96, Boorum, 142 N. Y. 357, 40 Am. St. Rep. | 19 L. R. A. 242, 40 Am. St. Rep. 415, 32 600, 37 N. E. 119; Lawton v. Sager, 11 Burb. | Pac. 287; Phelan v. Hyland, 197 1l. 395, 64 349; Fairbanks v. Metcalf, 8 Mass. 237; V. E. 360; Schlicher v. Keeler, 61 N. J. Eq. Ward v. Lewis, 4 Pick. 518; Darling v. 394, 48 Atl. 393; Doe ex dem. Smith v. Roe, Butler, 10 L. R. A. 469, 45 Fed. 332; Hub- 3 Penn. (Del.) 233, 50 Atl. 59; Adams bard v. Greeley, 84 Me. 340, 17 L. R. A. v. Baker, 50 W. Va. 249, 40 S. E. 356; 511, 24 Atl. 799; Hargrave v. Melbourne. Delaplain v. Grubb, 44 W. Va. 612, 67 Am. 86 Ala. 270, 5 So. 285; Richmond v. Mor- St. Rep. 788, 30 S. E. 201; Hargrave v. ford, 4 Wash. 337, 30 Pac. 241, 31 Pac. 513: Melbourne, 86 Ala. 270, 5 So. 285. Stevenson v. Crapnell, 114 III. 19, 28 N. E. The transfer was ratified. 379; Neely v. Leuis, 10 ml. 31; 3 Washb. McNulty v. McNulty, 47 Kan. 208, 27 Real Prop. 267; Kingsbury v. Burnside, 58 Pac. 821; Tucker v. Allen, 16 Kan. 312; II. 310, 11 Am. Rep. 67; Jackson v. Cleve- Devin v. Himer, 29 Iowa, 297; Hall v. Vanland. 15 Mich. 94, 90 Am. Dec. 266; Baker ness, 49 Pa. 457 ; Pittman v. Sofley, 64 Ill. v. Baker, 159 Ill. 394, 42 N. E. 867; McCann | 155; Swisher v. Palmer, 195 Il. App. 432;

escrow.

man

Taylor v. Smith, 61 App. Div. 623, 71 N. Y. Chicago City R. Co. v. Van Vleck, 40 Ill. Supp. 160; Harkness v. Cleaves, 113 Iowa, App. 367; Phillips v. Owsley, 4 Ky. L. Rep. 140, 84 N. W. 1033; Holbrook v. Chamber. 832; Honeycutt v. St. Louis, 1. M. & 8. R. lin, 116 Mass. 155, 17 Am. Rep. 146; Parker Co. 40 Mo. App. 674; Archbishop v. Hack, v. Hill, 8 Met. 447; Cook v. Patrick, 135 Ill. 23 Or. 536, 32 Pac. 402; McCullough v. Mar499, 11 L. R. A. 573, 26 N. E. 658.

tin (Ind. App.) 35 N. E. 719; Saunders v. Messrs. O. O. Haga and Hawley, Puck- Montgomery, 143 Ind. 185, 41 N. E. 453; ett, & Hawley, for respondent:

McCormack v. Phillips, 4 Dak. 506, 34 N. Appellant has assigned no error in this W. 39; Christian v. Bowman, 49 Minn. 99, court on which he relies or seeks a reversal 51 N. W. 663; Stephenson v. Flagg, 41 Neb. of the judgment entered against him, con 371, 59 N. W. 785; Reilly v. Atchison, 4 trary to the established rules of practice Ariz. 72, 32 Pac. 262; Bill v. Klaus, 4 Dak. and the rules of this court.

328, 30 N. W. 171; Commercial Nat. Bank: Rev. Stat. § 3863; 8 Am. & Eng. Enc. v. Brill, 37 Neb. 626, 56 N. W. 382; SherLaw. p. 29; Hanson v. McCue, 43 Cal. 178; v. Shaw, 9 Nev. 148; Metropolitan United States v. Tidball, 3 Ariz. 384, 29 Nat. Bank v. Rogers, 3 C. C. A. 666, 3 Pac. 385; Williston v. Fisher, 28 Ill. 43. U. S. App. 406, 53 Fed. 776; Richardson

The failure to file assignment of errors v. Walton, 9 C. C. A. 604, 17 U. S. App. must entail an affirmance of the judgment 525, 61 Fed. 535; Nading v. Elliott, 137 or decree.

Ind. 261, 36 N. E. 695; Dabney's Appeal, McNeill v. Kyle, 86 Ala. 338, 5 So. 461; | 120 Pa. 344, 14 Atl. 158; Lutlopp v. HeckPutnam V. Putnam, 3 Ariz. 182, 24 Pac. mann, 70 N. J. L. 272, 57 Atl. 1046; Vinall 320; Globe Invest. Co. v. Boyum, 3 N. D. v. Hendricks (Ind. App.) 71 N. E. 632: 538, 58 N. W. 339; 2 Enc. Pl. & Pr. pp. Lincoln v. Bailey (Neb.) 99 N. W. 830; 922-927; Rehberg v. Greiser, 24 Mont. 487, Bitter v. Mouat Lumber & Invest. Co. 27 62 Pac. 820, 63 •Pac. 41; Charles Schatzlein Colo. 120, 59 Pac. 403; Chicago, B. & Q. R. Paint Co. v. Godin, 24 Mont. 483, 62 Pac. Co. v. German Ins. Co. 2 Kan. App. 395, 819; Shilling v. Curran, 30 Mont. 370, 76 42 Pac. 5.94; Case v. Jacobitz, 9 Kan. App. Pac. 998; Purdy v. Steel, 1 Idaho, 216; 842, 62 Pac. 115; Whitinger v. Nelson, 29 Brovelli v. Bianchi, 136 Cal. 612, 69 Pac. Ind. 441; Bartholomew v. Preston, 46 Ind. 416; Squires v. Foorman, 10 Cal. 298; Hag../ 286; Pierce v. Manning, 2 S. D. 517, 51 N. gin v. Clark, 28 Cal. 162; Haas v. Pueblo W. 332; Toulouse v. Burkett, 2 Idaho, 184, County, 5 Colo. 125; Johnson v. Robinson, 10 Pac. 26; Rice v. Innskcep, 34 Cal. 224; 68 Tex. 399, 4 S. W. 625; Schroeder v. Prince v. Lynch, 38 Cal. 531, 99 Am. Dec. Schmidt, 74 Cal. 459, 16 Pac. 243; Malone 427; Pico v. Cuyas, 47 Cal. 174; Warren v. v. Del Norte County, 77 Cal. 217, 19 Pac. Quill, 9 Nev. 264; Glaser v. Glaser, 13 Okla. 422; Pearson V. Flanagan, 52 Tex. 266; 389, 74 Pac. 944; Borgerson v. Cook Stone Chappell v. Missouri P. R. Co. 75 Tex. 82, Co. 91 Minn. 91, 97 N. W. 734; Mc Vah v. 12 S. W. 977; San Antonio & A. P. R. Co, Northern P. R. Co, 12 N. D. 568, 98 N. W. V. Adams, 6 Tex. Civ. App. 102, 24 S. W. 353; Lichty v. Clark, 10 Neb. 472, 6 N. W. 839; Hutton v. Reed, 25 Cal. 479; Brew- 760; United States v. Trabing, 3 Wyo. 147, ster v. Johnson, 51 Cal. 222; McCormack v. 6 Pac. 721; Hawkins v. Hubbard, 2 S. D. Phillips, 4 Dak. 506, 34 N. W. 39; Syndi- 633, 51 N. W. 774; First Nat. Bank v. Comcate Improv. Co. v. Bradley, 6 Wyo. 171, fort, 4 Dak. 167, 28 N. W. 855; Myers v. 43 Pac. 79, 44 Pac. 60; Ashley v. Martin, Longstaff, 14 S. D. 98, 84 N. W. 233; Boyd 50 Ala. 537; Ashman v. F'lint & P. M. R. Co. v. Bryan, 11 Okla. 56, 65 Pac. 940. 90 Mich. 567, 51 N. W. 615; Bishop v. Mid- The statement used on motion for a new dleton, 43 Neb. 10, 26 L. R. A. 445, 61 N. trial, when used on an appeal from a judg. W. 129; Daggs v. Hoskins, 5 Ariz. 236, 52 ment, takes the place of a bill of exceptions Pac. 350; Penny v. Fellner, 6 Okla. 386, 50 only, and only errors of law therein conPac. 123; Gavin v. Gavin, 92 Cal. 292, 28 tained, if properly specified, can be considPac. 567; Kyle v. Craig, 125 Cal. 107, 57 erel. Pac. 791; Jay v. Zeissness, 6 Okla. 591, 52 Rev. Stat. $ 4426 ; Carpentier v. IVilliamPac. 928.

son, 25 Cal. 158; United States v. Trabing, 3 Errors must be separately stated and dis- Wyo. 147, 6 Pac. 721; Withers v. Kemper, tinctly pointed out; general assignments 25 Mont. 432, 65 Pac. 422. are not suflicient.

Declarations of White against his title Bell v. Southern P. R. Co. 144 Cal. 560. under such a deed are admissible. 77 Pac. 1124; Louisville, N. A. & C. R. Co. Stanley v. Green, 12 Cal. 164; Daly v. v. Renicker, 8 Ind. App. 404, 35 N. E. 1017; Josslyn, 7 Idaho, 657, 65 Pac. 442. Eagle Fire Co. v. Globe Loan & T. Co. The deed was not delivered to White, in 44 Neb. 380, 62 N. W. 895; Sigler v. IcCon. the sense that such term is used in the nell, 45 Neb. 598, 63 N. W. 870; Chicago, conveyance of real property. R. I. P. R. Co. v. Moffitt, 75 Ill. 524;! 9 Am. & Eng. Enc. Law, p. 154; Black

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