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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, § 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 woull 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. not 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; Wheeler v. Reynolds, 66 N. Y. 227; Wiseman v. Lucksinger, 84 N. Y. 31, 38 Am. Rep. 479. In this case the respondents had parted with nothing whatever. They paid no consideration for the perpetual easement they claim to have purchased. They were out nothing for the construction of the stairway, and the evidence shows that they never at any time have assisted in maintaining or keeping up the stairway, or keeping the same cleaned or lighted; nor did the respondents offer to show upon the trial what agreement, if any, they made 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

The appellants claim that the privileges exercised by each over the realty of the other were merely mutual licenses, revocable by either at will. On the other hand, the respondents claim that these transactions amounted to mutual contracts for conveyances by good and sufficient deeds.-a title from Howes & King to the Barmons to the 5-foot strip of ground immediately south of the Barmon building, and a conveyance from the Barmons to Howes & King of a perpetual easement in the stairway ascend ing from the street to the second story of their building.

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of the stairway which should be constructed | scionable for a court to encumber the appel

or maintained. It is true that the appellants entered into the possession and use of the 5-foot strip of land which respondents contend was to be given as a consideration for this easement. But it is not contended anywhere that the use of this strip of land was of any greater value for the same period of time than was the right to pass over the stairway for a like period of time. These rights appear to have been mutual and interchangeable, and one would apparently offset the other. This arrangement or agree ment should be interpreted and dealt with in the light of the circumstances under which the parties acted. It is clearly apparent from the testimony of both Howes and Barmon that, whatever conversation or agreement they had, it was merely in the light and spirit of an exchange of neighborly courtesies, and was never given the consideration which the parties would attach to a contract which looks to one party parting with the fee to his property, and the other to burdening his realty with a perpetual servitude. As an instance of this. the title to the property stood on the records in the name of Mrs. Barmon at the time of the agreement, and yet no contract was made with her, and nothing appears to have been said in reference to the transfer of title, or whether or not the property was community property, or the separate property of the wife.

lants' property with a perpetual servitude, which the evidence shows would depreciate the property from 10 to 25 per cent. The privileges granted by appellants to respondents were evidently of a purely personal character, and would not have been conferred on a stranger to the licensors, even though he had had title to the Howes & King property. But if the easement should be decreed as contended for, it would run with the Howes & King property, and would pass to their grantees, whoever they might be. After the perusal of a great number of conflicting and inharmonious decisions, we have been unable to find any case where the courts have held a license such as this irrevocable on the ground alone that the licensee had been let into possession; but in such cases, where specific performance has been required, the courts have uniformly rested their decisions upon the grounds that the licensee had not only been let into possession, but that he had made expenditures or erected valuable improvements, for which he could not be adequately compensated in damages. Lawrence v. Springer, 49 N. J. Eq. 289, 31 Am. St. Rep. 702, 24 Atl. 933; Wheeler v. Reynolds, 66 N. Y. 227; notes to cases hereinbefore cited. The modern decisions seem strongly inclined to hold a parol agreement looking to encumbering real property with a servitude as a mere license, revocable at will, and this we think the much safer rule. While this court is not now prepared to go to the extent announced in Crosdale v. Lanigan, 129 N. Y. 604, 26 Am. St. Rep. 551, 29 N. E. 824, still the language there used by the New York court appeals to us as both safe and just, when they say: "The courts in this state have upheld with great steadiness the general rule that a parol license to do an act on the land of the licensor, while it justifies anything done by the licensee before revocation, is nevertheless revocable at the option of the licensor; and this, although the intention was to confer a continuing right, and money had been expended by the licensee upon the faith of the license. This is plainly the rule of the statute. It is also, we believe, the rule required by public policy. It prevents the burdening of lands with restrictions founded upon oral agreements easily misunderstood." See also Johnson v. Skillman, 29 Minn. 95, 43 Am. Rep. 192, 12 N. W. 149; Cronkhite v. Cronkhite, 94 N. Y. 323; St. Louis Nat. Stockyards v. Wiggins Ferry Co. 112 III. 384, 54 Am. Rep. 243; Wood v. Michigan Air Line R. Co. 90 Mich, 334, 51 N. W. 263. This seems to grow out of the proposition that, since a parol license to impress real property with a servitude cannot be perpetual or irrevo

There is no reason shown in this case, that we can discover, why the aid of a court of equity should be invoked in behalf of the plaintiffs. If the court should refuse to decree them a perpet al easement in this stairway, they would be in no worse position than they would have been in the first place, had the Barmons erected their building without permitting plaintiffs to use their stairway. In that event Howes & King would have been under the necessity of erecting a stairway by means of which to reach the second story of their building. They have parted with no consideration for the use of this stairway, nor have they lost any property or right by reason of having neglected to build a stairway themselves. If they are refused a decree in this case, they will only be left in the same position they originally occupied. This is a case where a refusal by the court to grant plaintiffs a decree will leave them absolutely in statu quo. But courts of equity grant relief in such cases upon the principal theory that the parties cannot be placed in the position they originally occupied, and therefore equity will compel them to live up to their agreements. Here the reasons for equitable interposition do not seem to exist, and we do not think it would be either just or con

cable, on account of the prohibitions of the
statute of frauds, and the parties not having
complied with the requirements of the stat-
ute, they will be presumed to have dealt in
conformity with law, and therefore to have 6. In such case the vesting of title is

show that a deed delivered to the
grantee and absolute on its face shall take
effect only upon the performance of some con-
dition or the happening of some contingency
unexpressed therein.

intended a license rather than an easement.

determined by the legal effect of the terms
of the grant, and cannot be controlled by
parol evidence.

7. A grantor cannot by warranty deed.
absolute on its face, and free from
conditions or restrictions, convey such
a title to his grantee as will enable the
grantee to pass a good title to a specific cor-
poration, and at the same time attach such
parol conditions to the deed upon its de-
livery as to preclude the grantee from trans-
ferring an equally good title to any other
person or corporation.

The trial court evidently concluded in this case that the acts and conduct of the parties amounted to an executed contract for a perpetual easement over the appellants' property, but we are clearly of the opinion that it only amounted to a license revocable at will. It follows that the judgment must be reversed, and it is so ordered. The cause is remanded, with directions to enter judg ment in accordance with the views herein expressed. Costs awarded to appellants.

Stockslager, Ch. J., and Sullivan, J.,


W. G. WHITNEY, Respt.,


E. H. DEWEY, Appt.



1. Where a motion for a new trial has been made, and the statement used on such motion contained an assignment and specification of errors, and an appeal is taken from the order denying the motion, and the original brief of appellant contains no enumeration of errors relied on, but refers to the transcript and discusses such errors, and prior to the argument in the appellate court a supplemental brief is filed by appellant, making a specific enumeration of such errors. the same will be regarded as a substantial compliance with the rules of this court, and the case will be examined on the merits. 2. Section 4427, Rev. Stat. 1887, gives to an aggrieved party an exception to the ruling of the court in granting or overruling a motion for a new trial, and on appeal from such order the appellant is entitled to have the assignment and specifi cation of errors contained in his statement used on the hearing of such motion examined and considered by the appellate court. 3. A deed absolute on its face cannot be delivered to the grantee therein named, to be by him held in escrow and a delivery which purports to be such will op erate as absolute and freed from all parol conditions, and title will vest at once.

4. It is a settled principle of law that the evidence of delivery of a deed must come from without the deed in other words, a deed does not upon its face show delivery, and therefore parol evidence is admissible to show such fact.

5. Parol evidence is inadmissible to

Headnotes by AILSHIE, J.

NOTE. For a case in this series holding that a deed cannot be delivered in escrow to the grantee. see Darling v. Butler, 10 L. R. A. 469, with note as to definition of escrow.

8. Where B. executes a warranty deed
free from any conditions or qualifi-
cations as to the vesting of title, and de-
livers it to the grantee, W., accompanied with
a contemporaneous parol agreement to the ef-
fect that W. shall form a corporation and
deed the property to such corporation, and
thereupon pay B. $1,000 cash and deliver
to B. $5,000 worth of first-mortgage bonds
of the corporation secured on the property
so deeded, and the deed is placed in the hands
of the grantee to facilitate such transaction,
-Held, that the delivery was absolute, and
title vested at once in the grantee.

9. Even though a valid delivery of a
deed had not been made at the time of
its execution, still the grantor may thereafter
ratify the wrongful taking of the deed by the
grantee after the grantor has acquired com-
plete knowledge of the facts of the transac-
tion, and thereby perfect the title.

(February 23, 1905.)


PPEAL by defendant from a judgment of the District Court for Canyon County in plaintiff's favor in an action brought to quiet title to certain real estate. Reversed.

The facts are stated in the opinion. Messrs. N. M. Ruick and W. E. Borah, for appellant:

There is no rule of pleading and practice
which will permit an allegation that a deed
was delivered under the terms of a written
contract, and proof of the fact that it was
delivered under an oral contract, when the
question of delivery is not an incident, but
goes to the vital controversy in the case,
and to the very validity of the deed itself.

Spader v. McNell, 130 Cal. 500, 62 Pac.
928; Frazier v. Ebenezer Baptist Church,
60 Kon. 404, 56 Pac. 752: Westchester F.
Ins. Co. v. Coverdale, 9 Kan. App. 651. 5S
Pac. 1029; Maynard v. Firemen's Fund Ins.
Co. 34 Cal. 60, 91 Am. Dec. 672; Stout v.
Coffin, 28 Cal. 65; Cox v. McLaughlin, 63
Cal. 207: Hinkle v. San Francisco & N. P.
R. Co. 55 Cal. 627; Perkins Windmill &
Ax Co. v. Yeoman, 23 Ind. App. 483. 55 N.
E. 782; Stewart v. Cleveland, C. C. & St. L.

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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; Browning 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. Kimball, 121 Cal. 247, 63 Pac. 649; Mondran v. Goux, 51 Cal. 151.

If a writing imports upon its face to be a complete expression of the whole agreement, it is to be presumed that the parties have introduced into it every material item and term; and parol evidence cannot be admitted to add another term to the agreement, although the writing contains nothing on the particular one to which the parol evidence is directed.

Rev. Stat. § 607; Feeney v. Howard, 79 Cal. 525, 4 L. R. A. 826, 12 Am. St. Rep. 162, 21 Pac. 985; Johnson v. Calnan, 19 Colo. 168, 41 Am. St. Rep. 224, 34 Pac. 905; Doran v. Doran, 99 Cal. 311, 33 Pac. 929; Highland Park Co. v. Walker, 13 Colo. App. 352, 57 Pac. 759.

If the grantor delivers the deed to the grantee, the law will not allow the solemn recital therein of conveyance and delivery to be so modified as to show that it was held by the grantee in escrow, or for some other purpose than that of conveying title.

Mays v. Shields, 117 Ga. 814, 45 S. E. 68; Sims v. Greenfield & N. R. Co. 102 Mo. App. 29, 74 S. W. 421; Findley v. Means, 71 Ark. 289, 73 S. W. 101; Galveston, H. & S. A. R. Co. v. Pfeuffer, 56 Tex. 72; Ward v. Dougherty, 75 Cal. 240, 7 Am. St. Rep. 151, 17 Pac. 193; Tunison v. Chamblin, 88 Ill. 379; McClendon v. Brockett, 32 Tex. Civ. Ann. 150, 73 S. W. 854; Hoffmire v. Martin, 29 Or. 240, 45 Pac. 754; Bury v. Young, 98 Cal. 446, 35 Am. St. Rep. 186, 33 Pac. 338; Ruiz v. Dow, 113 Cal. 490, 45 Pac. 867; Foley v. Cowgill, 5 Blackf. 18, 32 Am. Dec. 49; Hicks v. Goode, 12 Leigh, 479, 37 Am. Dec. 677; Moss v. Riddle, 5 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


Harrison v. McCormick, 89 Cal. 327, 23 Am. St. Rep. 469, 26 Pac. 830; Nicholson v. Tarpey, 89 Cal. 617, 26 Pac. 1102; Thomp son v. Libby, 34 Minn. 374, 26 N. W. 1; Naumberg v. Young, 44 N. J. L. 333, 43 Am. Rep. 380; Hei v. Heller, 53 Wis. 415, 10 N. W. 620; Crecry v. Holly, 14 Wend. 26; Stone v. Harmon, 31 Minn. 512, 19 N. W. 88; Mackey v. Magnon, 12 Colo. App. 137, 54 Pac. 907; Ming v. Pratt, 22 Mont. 262, 56 Pac. 279; Judson v. Malloy, 40 Cal. 307: McIntosh-Huntington Co. v. Rice, 13 Colo. App. 393, 58 Pac. 358; Irving v. Cunning ham, 66 Cal. 15, 4 Pac. 766; Liverpool, L. & G. Ins. Co. v. T. M. Richardson Lumber Co. 11 Okla. 585, 69 Pac. 938; Forsyth Mfg. Co. v. Castlen, 112 Ga. 199, 81 Am. St. Rep. 28, 37 S. E. 485; Hand v. Miller, 58 App. Div. 126, 68 N. Y. Supp. 531; Hilgar v. Miller, 42 Or. 552, 72 Pac. 319.

There was an attempt to show by parol evidence a trust which is in the teeth of our statute of frauds.

Mowry v. Heney, 86 Cal. 471, 25 Pac. 18; Co. Litt. 36a; Williams v. Green, Cro. Eliz. pt. 2, p. 884; Shep. Touch. 59; Whyddon's Case, Cro. Eliz. pt. 2, p. 520; Braman v Bingham, 26 N. Y. 483; Worrall v. Munn, 5 N. Y. 238, 55 Am. Dec. 330; Blewitt v. Boorum, 142 N. Y. 357, 40 Am. St. Rep. 600, 37 N. E. 119; Lawton v. Sager, 11 Barb. 349; Fairbanks v. Metcalf, 8 Mass. 237; Ward v. Lewis, 4 Pick. 518; Darling v. Butler, 10 L. R. A. 469, 45 Fed. 332; Hubbard v. Greeley, 84 Me. 340, 17 L. R. A. 511, 24 Atl. 799; Hargrave v. Melbourne. 86 Ala. 270, 5 So. 285; Richmond v. Morford, Wash. 337, 30 Pac. 241, 31 Pac. 513: Stevenson v. Crapnell, 114 Ill. 19, 28 N. E. 379; Neely v. Lewis, 10 Ill. 31; 3 Washb. Real Prop. 267; Kingsbury v. Burnside, 58 Ill. 310, 11 Am. Rep. 67; Jackson v. Cleveland, 15 Mich. 94, 90 Am. Dec. 266; Baker v. Baker, 159 Ill. 394, 42 N. E. 867; McCann

There was a complete delivery.

McLennan v. McDonnell, 78 Cal. 273, 20 Pac. 566; Kenniff v. Caulfield, 140 Cal. 34, 73 Pac. 803; Standiford v. Standiford, 97 Mo. 231, 3 L. R. A. 299, 10 S. W. 836; Hoffmire v. Martin, 29 Or. 240, 45 Pac. 754; Wittenbrock v. Cass, 110 Cal. 1, 42 Pac. 300; Martin v. Flaharty, 13 Mont. 96, 19 L. R. A. 242, 40 Am. St. Rep. 415, 32 Pac. 287; Phelan v. Hyland, 197 Ill. 395, 64 N. E. 360; Schlicher v. Keeler, 61 N. J. Eq. 394, 48 Atl. 393; Doe ex dem. Smith v. Roe, 3 Penn. (Del.) 233, 50 Atl. 59; Adams v. Baker, 50 W. Va. 249, 40 S. E. 356; Delaplain v. Grubb, 44 W. Va. 612, 67 Am. St. Rep. 788, 30 S. E. 201; Hargrave v. Melbourne, 86 Ala. 270, 5 So. 285. The transfer was ratified.

McNulty v. McNulty, 47 Kan. 208, 27 Pac. 821; Tucker v. Allen, 16 Kan. 312; Devin v. Himer, 29 Iowa, 297; Hall v. Vanness, 49 Pa. 457; Pittman v. Sofley, 64 III. 155; Swisher v. Palmer, 15 Ill. App. 432;

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, I. M. & S. 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. | Montgomery, 143 Ind. 185, 41 N. E. 453; McCormack v. Phillips, 4 Dak. 506, 34 N. W. 39; Christian v. Bowman, 49 Minn. 99, 51 N. W. 663; Stephenson v. Flagg, 41 Neb. 371, 59 N. W. 785; Reilly v. Atchison, 4 Ariz. 72, 32 Pac. 262; Bill v. Klaus, 4 Dak. 328, 30 N. W. 171; Commercial Nat. Bank v. Brill, 37 Neb. 626, 56 N. W. 382; Sherman v. Shaw, 9 Nev. 148; Metropolitan Nat. Bank v. Rogers, 3 C. C. A. 666, 3 U. S. App. 406, 53 Fed. 776; Richardson v. Walton, 9 C. C. A. 604, 17 U. S. App. 525, 61 Fed. 535; Nading v. Elliott, 137 Ind. 261, 36 N. E. 695; Dabney's Appeal, 120 Pa. 344, 14 Atl. 158; Lutlopp v. Heckmann, 70 N. J. L. 272, 57 Atl. 1046; Vinall v. Hendricks (Ind. App.) 71 N. E. 632; Lincoln v. Bailey (Neb.) 99 N. W. 830; Bitter v. Mouat Lumber & Invest. Co. 27 Colo. 120, 59 Pac. 403; Chicago, B. & Q. R. Co. v. German Ins. Co. 2 Kan. App. 395, 42 Pac. 594; Case v. Jacobitz, 9 Kan. App. 842, 62 Pac. 115; Whitinger v. Nelson, 29 Ind. 441; Bartholomew v. Preston, 46 Ind. 286; Pierce v. Manning, 2 S. D. 517, 51 N. W. 332; Toulouse v. Burkett, 2 Idaho, 184, 10 Pac. 26; Rice v. Innskcep, 34 Cal. 224; Prince v. Lynch, 38 Cal. 531, 99 Am. Dec. 427; Pico v. Cuyas, 47 Cal. 174; Warren v. Quill, 9 Nev. 264; Glaser v. Glaser, 13 Okla. 389, 74 Pac. 944; Borgerson v. Cook Stone Co. 91 Minn. 91, 97 N. W. 734: McNab v. Northern P. R. Co. 12 N. D. 568, 98 N. W. 353; Lichty v. Clark, 10 Neb. 472, 6 N. W. 760; United States v. Trabing, 3 Wyo. 147, 6 Pac. 721; Hawkins v. Hubbard, 2 S. D. 633, 51 N. W. 774; First Nat. Bank v. Comfort, 4 Dak. 167, 28 N. W. 855; Myers v. Longstaff, 14 S. D. 98, 84 N. W. 233; Boyd v. Bryan, 11 Okla. 56, 65 Pac. 940.

Messrs. O. O. Haga and Hawley, Puckett, & Hawley, for respondent:

Appellant has assigned no error in this court on which he relies or seeks a reversal of the judgment entered against him, con trary to the established rules of practice and the rules of this court.

Rev. Stat. § 3863; 8 Am. & Eng. Enc. Law. p. 29; Hanson v. McCue, 43 Cal. 178; United States v. Tidball, 3 Ariz. 384, 29 Pac. 385; Williston v. Fisher, 28 Ill. 43.

The failure to file assignment of errors must entail an affirmance of the judgment or decree.

McNeill v. Kyle, 86 Ala. 338, 5 So. 461; Putnam v. Putnam, 3 Ariz. 182, 24 Pac. 320; Globe Invest. Co. v. Boyum, 3 N. D. 538, 58 N. W. 339; 2 Enc. Pl. & Pr. pp. 922-927; Rehberg v. Greiser, 24 Mont. 487, 62 Pac. 820, 63 Pac. 41; Charles Schatzlein Paint Co. v. Godin, 24 Mont. 483, 62 Pac. 819; Shilling v. Curran, 30 Mont. 370, 76 Pac. 998; Purdy v. Steel, 1 Idaho, 216; Brovelli v. Bianchi, 136 Cal. 612, 69 Pac. 416; Squires v. Foorman, 10 Cal. 298; Haggin v. Clark, 28 Cal. 162; Haas v. Pueblo County, 5 Colo. 125; Johnson v. Robinson, 68 Tex. 399, 4 S. W. 625; Schroeder v. Schmidt, 74 Cal. 459, 16 Pac. 243; Malone v. Del Norte County, 77 Cal. 217, 19 Pac. 422; Pearson v. Flanagan, 52 Tex. 266; Chappell v. Missouri P. R. Co. 75 Tex. 82, 12 S. W. 977; San Antonio & A. P. R. Co. v. Adams, 6 Tex. Civ. App. 102, 24 S. W. 839; Hutton v. Reed, 25 Cal. 479; Brewster v. Johnson, 51 Cal. 222; McCormack v. Phillips, 4 Dak. 506, 34 N. W. 39; Syndicate Improv. Co. v. Bradley, 6 Wyo. 171, 43 Pac. 79, 44 Pac. 60; Ashley v. Martin, 50 Ala. 537; Ashman v. Flint & P. M. R. Co. 90 Mich. 567, 51 N. W. 645; Bishop v. Middleton, 43 Neb. 10, 26 L. R. A. 445, 61 N. W. 129; Daggs v. Hoskins, 5 Ariz. 236, 52 Pac. 350; Penny v. Fellner, 6 Okla. 386, 50 Pac. 123; Gavin v. Gavin, 92 Cal. 292, 28 Pac. 567; Kyle v. Craig, 125 Cal. 107, 57 Pac. 791; Jay v. Zeissness, 6 Okla. 591, 52 Pac. 928.

Errors must be separately stated and distinctly pointed out; general assignments are not sufficient.

Bell v. Southern P. R. Co. 144 Cal. 560. 77 Pac. 1124; Louisville, N. A. & C. R. Co. v. Renicker, 8 Ind. App. 404, 35 N. E. 1017; Eagle Fire Co. v. Globe Loan & T. Co. 44 Neb. 380, 62 N. W. 895; Sigler v. McConnell, 45 Neb. 598, 63 N. W. 870; Chicago, R. I. & P. R. Co. v. Moffitt, 75 Ill. 524;

The statement used on motion for a new trial, when used on an appeal from a judg ment, takes the place of a bill of exceptions only, and only errors of law therein contained, if properly specified, can be considered.

Rev. Stat. § 4426; Carpentier v. Williamson, 25 Cal. 158; United States v. Trabing, 3 Wyo. 147, 6 Pac. 721; Withers v. Kemper, 25 Mont. 432, 65 Pac. 422.

Declarations of White against his title under such a deed are admissible.

Stanley v. Green, 12 Cal. 164; Daly v. Josslyn, 7 Idaho, 657, 65 Pac. 442.

The deed was not delivered to White, in the sense that such term is used in the conveyance of real property.

9 Am. & Eng. Enc. Law, p. 154; Black

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