The Saint Paul globe. (St. Paul, Minn.) 1896-1905, 1897-06-24


lawful act of the directors in FORGETTING
their shares, and in appropriating the sums
paid in for the benefit Of members in good
standing. Order reversed. Collins, j.
d. S. MoOers, appellant, Northern Pacific
Railroad Company, respondent.
l. Persons in charge of a locomotive in
motion are not bound to keep lookout Tor
animals trespassng upon the track, nor to
presume that they will be there but having
notice of their presence and that they are
liable to injury, bound to use reasonable
care-at least-to avert such injury
2. The circumstances in this case, as
shown on trial, would have warranted the
jury in finding that the defendants en-
ployes, running one Of its locomotives, saw
certain horses, which were run over and
killed while on the track, in time to have
avoided the killing, although there was no
positive evidence that the horses were dis
covered until they were struck, and no evil
dence as to the time or distance within which
the locomotive could have been stopped.
3. Held, on the evidence, that the ques-
tion whether the persons in charge of the
locomotive neglected to use reasonable care
after discovering the horses on the track
was for the jury. Order reversed
Oliver Mining Company, appellant, VS.. Mer
riIl NJ. Clark ct al, respondents.
Held. that the complaint herein as amend
ed after a former decision in the action-68
N. w. Rep, 23-states facts sufficient to
constitute cause of action for specific per-
conveyance of land, not only as against the
contracting vendor, but also against
third party, to whom the land had been
veyed. Order reversed Collins, j.
E. Walther and James E. Trask, assignee
of James E. Trask. respondents, VS.. War
rem S. Briggs, appellant.
/. Where in deed or mortgage 1t is re-
cited that the real property therein described
is sold or mortgaged, subject to a. certain
specified and existing incumDrance, such re-
cital qualities subsequent covenants of seZen,
quiet enjoyment and of general warranty,
and they do not cover or embrace the in
cumbrance mentioned.
2. Where the maker of promssory note
secured by a second mortgage on real prop
erty enters into an agreement with the
payees of the note, owners and holders there
Of that he will pay the interest then due
upon the debt secured by the first mortgage
upon the property, he being under no per-
! sonal obligation TO pay such interest, either
as original debtor, or because he has as
sumed it, or by reason of any covenants in
the second mortgage, in consideration OF
which such payees agree to release and dis
charge him from all personal liability
the note and to look solely to their security
for payment, and the maker performs his
part by paying the interest, as agreed on,
there is sufficient consideration to support
the agreement to release and discharge him.
g. Held, that it was for the jury to de-
termine from the evidence introduced on the
trial of this case, whether an agreement of
the nature above referred to had been en-
tered into between the payees of the note
sued upon and defendant, by which the for
mer had released aad discharged the latter
rom al perS~' .Iatii,tv as the maker of
such note. Order reversed. Collins, j.
Thomas Manufacturing Company appellant
VS.. Charles NJ. Drew respondent.
1. conditional contract of the sale of per-
sonal property in which the vendee stipulates,
that the title to and ownership thereof shall
remain in the vendor until the purchase price
is paid, which contract is not fled in accord
ance with the provisions of G. S. 1894, sec
lions 414S-4149, until after assignment has
been made by the vendee under the insoven-
cy law, is a conveyance made by debtor within
the meaning of the title of the act of 1871
G. l.. 1877, chapter 142 G. S. 1894, section
1928. And such a contract is covered by sec
ton 1 of said chapter-section 4293-supra
which declares that in all of general
assignments for the benefit of creditors as
signees shall be considered representing
the rights and interests Of creditors
against all transfers and conveyances of
property, which would be held fraudulent or
void as to creditors, and shall have all the
rights which such creditors would have to
avoid such fraudulent transfers and convey
anceS.
the time of the assignment is fraudulent and
void as to all creditors of the vendee, having
no notice of the state of the title to such
property, and the assignee may enforce the
rights and interests of these creditors. in an
action of replevin brought against him by
vendor to recover possession of property in
3. When the bond of the assignee has been
approved by the court and filed within the
period prescribed by statute it is imma-
terial in so far as the assignee's rights are
concerned that the bond had not been ap-
proved filed when the action in replevin
commenced. Order affirmed.
Collins, ].
W. ]. Anderson, appellant, VS.. John Liston ct
al, defendants; Herman Wallis, respond
An .oroonoon+ for +bo o,,l+;uo+;o- sc 1,s
on shares construed and held that the owner
and the occupier were tenants in common of
the crops, the title, however, remaining in the
owner security for the performance by the
occupier of the terms of the agreement and
for the repayment of advances which the
owner might make to the occupier, and for
all Indebtedness due from the latter to the
former; following Strangeway VS.. Eisenman,
II N. w. Rep.
Where mortgage is given to secure future
advances the filing of a subsequent
mortgage is not conStrutive notice to the
prior MORTGAGE so as to postpone the lien of
his mortgage for advances thereafter made
and not obligatory. The prior mortgage is
affected only by mutual notice of the subse-
quent mortgage; and the burden is on the
subsequent mortgage to prove such notice.
Judgment affirmed. Mitchell, ].
John A. Arnold, appellant, VS. Fred Hos
childt ct al, respondents.
In an action to set aside a conveyance as
fraudulent as to creditors, held that from the
facts found by the trial court it necessarily
follows that the grantee is chargeable with
notice of the fraudulent intent of the grantor.
The plaintiff held mortgage on the prem
ises by the fraudulent grantor, payment of
which he accepted from the grantee after the
conveyance.
Held, that this does not estop the plaintiff
from attacking the conveyance fraudulent
but if it is set aside the grantee is entitled
to be subrogated to plaintiff rights as mort
gage. Judgment reversed. Mitchell J.